RELIANCE CONSTRUCTIONS Vs. MOHD YOUNUS AHMED

JUDGEMENT

(1.) Reliance Constructions, represented by its Partners, moved this Court under Article 227 of the Constitution of India as against Mohd. Younus Ahmed and others aggrieved by an order made in I.A. No.59/ 2003 in O.S. No.294/2003 dated 8- 5-2003 on the file of IV Junior Civil Judge, City Civil Court, Hyderabad. It is also brought to the notice of this Court that as against the selfsame order, inasmuch as it is an appealable order, C.M.A. No.307/03 on the file of III Additional Chief Judge, City Civil Court, Hyderabad was preferred and the same is pending disposal.

(2.) Sri E. Manohar, the Senior Counsel representing the revision petitioner/4th respondent/4th defendant had taken this Court through the grounds raised in the civil revision petition and would contend that the IV Junior Civil Judge, City Civil Court, Hyderabad has no jurisdiction to entertain the suit O.S. No.294/2003 and I.A. No.59/2003 in view of the fact that the plaintiffs have already filed L.G.C. No.73/ 2002 on the file of Special Court established under the A.P. Land Grabbing (Prohibition) Act, 1982 and also filed a similar application LA. No. 105 9/2002 under Order 39, Rules 1 and 2 read with Section 151 of the Code of Civil Procedure, hereinafter in short referred to as "Code" for the purpose of convenience, in relation to the self-same property. The main grievance ventilated by the learned Senior Counsel is that though the question of jurisdiction was specifically raised both in the counter and also by filing a memo S.R. No.6072/2003 dated 6-3-2003, the learned Judge had left that question untouched and had not disposed of the said memo but had disposed of the temporary injunction application only without touching the crucial aspect of jurisdiction which was specifically raised. The learned Senior Counsel while elaborating his submissions would maintain that in para 3 of the plaint in O.S. No.294/2003 it was specifically pleaded that the plaintiffs were constrained to file LGC No.73/2002 against Defendants 1 to 5 and others which is pending. In the light of the said plea being specifically taken, the suit is barred by virtue of the provisions of the A.P. Land Grabbing (Prohibition) Act, 1982 and hence the learned Judge should have rejected the plaint under Order 7, Rule 11 of the Code. At any rate, the Counsel would contend that when the question of jurisdiction is specifically raised, on the mere fact that an application in this regard was not preferred, the said aspect cannot be ignored. Even otherwise, the Counsel submitted that non-recording of reasons on the aspect of jurisdiction while disposing of the temporary injunction application and non-disposal of memo to which a counter memo also was filed, would definitely vitiate the impugned order and hence this is a fit case where the parties need not be driven to appellate forum on the ground that the revision petitioner is having a remedy by way of an Appeal under Order 43, Rule 1 of the Code. The learned Counsel no doubt had taken this Court through the respective pleadings of the plaintiffs both in L.G.C. No.73/2002 and also in O.S. No.294/2003 aforesaid and also would contend that in substance the questions involved are one and the same except impleading the Municipal Corporation of Hyderabad as an additional party. The learned Counsel also had pointed out that a similar application filed in the Land Grabbing case i.e., I.A. No. 1059/2002, was not pressed and the petition was dismissed as withdrawn with liberty to file fresh petition if so advised by an order made by the Special Court dated 1-4-2003. The Counsel also had placed reliance on Government of A.P. v. Sathaiah, 1993 (2) ALT 252 and State of A.P., Revenue Department v. C. Murali Mohan, 1997 (1) ALD 442.

(3.) Per contra, Sri Niranjan Reddy, the learned Counsel representing the respondents/plaintiffs would maintain that the remedy under Article 227 of the Constitution of India itself is a misconceived remedy since the self-same order was questioned by way of C.M.A. No.307/2003 on the file of III Additional Chief Judge, City Civil Court, Hyderabad and hence this practice of proceeding with simultaneous proceedings may have to be deprecated. The learned Counsel also had explained in detail the different provisions of A.P.Land Grabbing (Prohibition) Act, 1982 and the scope and ambit of Land Grabbing case and the prayers made therein and the scope and ambit of the Civil suit filed by the parties and the averments made in the pleadings therein and the reliefs prayed for in the suit. The learned Counsel also would maintain that such suit cannot be entertained by the Special Court under the A.P.Land Grabbing (Prohibition) Act, 1982 and in view of Section 9 of the Code, Civil Court alone is competent to entertain such suit. The learned Counsel on the aspect of land grabbing had placed reliance on Shalivahana Builders Private Limited v. Sri Ganapathy Co-operative Housing Society, 2003 (2) ALD 476 and Syedulla v. Special Court Under A.P. Land Grabbing (Prohibition) Act, Hyderabad, 2002 (1) ALD 654. The learned Counsel also would contend that even if an order of rejection would have been made, inasmuch as it would amount to the final disposal to suit itself, the remedy is to file a civil revision petition under Section 115 of the Code and at any rate not to invoke the jurisdiction of this Court under Article 227 of the Constitution of India. The learned Counsel also would contend that filing of a memo is not contemplated either by the Code or by the civil rules of practice and hence non-disposal of the same would be of no consequence unless a regular application as contemplated by the provisions of the Code had been preferred. The learned Counsel ultimately had concluded that at any rate such civil revision petitions under Article 227 of the Constitution of India definitely cannot be encouraged in the facts and circumstances of the case.