Chintapalli Atchaiah vs P. Gopala Krishna Reddy and Another

Mohd. Sardar Ali Khan, J.—This Writ Appeal is directed against the order of a learned single judge passed in W.P. No. 9550 of l991,dated 12-11-1991 in which the question regarding the issue of a writ of prohibition restraining the second respondent-Additional Chief judge City Civil Court, Hyderabad from proceeding with I.A. No. 203 of 1988 in O.S. No. 91 of 1965. was considered in all its dimensions our learned brother, Y. Bhaskar Rao, J. The eventual conclusion arrived at by the learned single judge is that the interlocutory Application has already been taken on record by the lower court and the enquiry has also commenced and certain witnesses also have been examined and the petitioner participated in the enquiry by cross-examining the witnesses. In that view of the matter, the learned single judge held that it cannot be said that the petitioner has yet to seek the relief available to him before a different forum The learned single Judge came to the conclusion that the writ petition is devoid of any merit and dismissed the same. More over, the 2nd respondent in the writ petition happens to be the civil court before whom the impugned I.A. filed under Order 20, Rule 12 of the CPC read with Section 151, is pending and as per the settled proposition of law jurisdiction to decide maintainability of the suit in the I.A. is vested in the Court before whom it is pending. It may be stated here that the scope of a writ of prohibition is, by the very nature of things, a limited one. The law is well-settled on the point that if the court or an adjudicating authority is embarking upon a decision in a matter in which apparently it lacks jurisdiction or when such a court or authority, as the case may be, is exercising jurisdiction vested in it in a manifestly improper manner, then a writ of prohibition can be issued to prevent such judicial forums to decide the matters pending before them. We are convinced that in the matter before us there is no scope for the issue of a writ of prohibition to the 2nd respondent-Additional Chief judge, City Civil Court as it has all the power under the CPC to decide the questions arising in 1. Article 203/88 including the question of its own jurisdiction to decide such matters. From another point of view also this writ appeal is rendered devoid of any merit because in the presence of an effective alternative remedy available to the petitioner by way of having the matter decided by the civil court before whom the matter is pending, the writ petition cannot be entertained. We have been taken through the pleadings involved in the I.A. in great detail by both the sides. The question that has to be considered primarily is whether the decree passed in the matter ordains that the property should be delivered in the same condition as and when they were entrusted to the defendants subject to reasonable wear and tear. These are the words of the decree which call for consideration in the I.A., but, apart from the merits of the case, the main submission made in the writ appeal before us by Sri A. Panduranga Rao, learned counsel appearing for the appellant, is that the very maintainability of the I.A. has to be decided first before going into the merits of the claims made by the other side that the property has not been delivered in the same condition in which it ought to have been delivered to them. We have examined in this regard the provisions of Order 41, Rule 2 of the Civil Procedure Code, which, in the fitness of things, may be re-produced in this judgment. Order 14, Rule 2, C.P.C. is in the following terms:

"Order XIV, Rule 2. Court to Pronounce Judgment on all issues:-

(1) Notwithstanding that a case may be disposed of on a preliminary issue, the court shall, subject to the provisions of Sub-rule (2), pronounce judgment on all issues.

(2) Where issues both of law and of fact arise in the same suit, and the court is of opinion that the case or any part thereof may be disposed of on an issue of law only, it may try that issue first if that issue relates to

(a) the jurisdiction of the Court,

or

(b) a bar to the suit created by any law for the time being in force, and for that purpose may, if it thinks fit, postpone the settlement of the other issues until after that issue has been determined, and may deal with the suit in accordance with the decision on that issue."

It is, therefore, open for the appellant-petitioner to file an application under Order 14, Rule 2, C.P.C., if so advised, requesting that the question relating to the maintainability of the I.A. may be taken up by the court at the first instance as an issue of law relating to the jurisdiction of the court. If such an application is filed, the court may pass orders on the same in accordance with law after hearing both sides. Since we are in agreement with the view taken by the learned single Judge, we dismiss the Writ Appeal in the context of the observations made by us earlier. It would be fair and proper that if any application is filed under Order 14, Rule 2 of the Civil Procedure Code, the same may be disposed of by the Court below within two months from the date of filing of such a petition. In the circumstances of the case, there be no order as to costs.