Sri Jagannadha Swamy etc. Vs Thota Siva Kumari

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IN THE HIGH COURT OF ANDHRA PRADESH AMARAVATI

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THURSDAY. THE SECOND DAY OF JANUARY TWO THOUSAND AND TWENTY FIVE

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PRESENT

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THE HONOURABLE MS JUSTICE B S BHANUMATHI

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CIVIL REVISION PETITION NO: 1036 OF 2024

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Petition under Article 227 of the Constitution of India aggrieved by the pendency in I.A. No. 297 of 2022 in O.S. No. 121 of 2018 Dated; 09.03.2023 in II Additional Junior Civil Judge, Guntur.

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Between:

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Sri Jagannadha Swamy etc., Group temples, Lalapet, Guntur, Rep. by its Assistant Commissioner-cum-Executive Officer.

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...Appellant / Petitioner

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AND

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Thota Siva Kumari, W/o Srirama Murthy, Aged about⁴⁴ years, R/o. D.No. 12-27-209, Seelamvari Street, Kothapet, Guntur, Guntur District,

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The Guntur Municipal Corporation, (D1), Rep. by its Commissioner, Guntur.

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The Deputy Commissioner, (D2), Guntur, Municipal Corporation, Guntur.

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The Town Planning Officer, (D3), Guntur, Municipal Corporation, Guntur.

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The Assistant Commissioner, (D4), Endowments Department. Guntur District.

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’m. ml mW

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Maripudi Srinivasa Rao, (D6), S/o Satyanarayana, R/o. D.No. 12-27217, Seelamvari Street, Kothapet, Guntur.

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...Respondents / Respondents

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lA NO: 1 OF 2024

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Petition under Section 151 CPC praying that in the circumstances stated in the affidavit filed in support of the petition, the High Court may be pleased to stay all further to the orders dated 09.03.2023 in I.A. No. 297 of 2022 in O.S. No. 121 of 2018 passed by the court of the Hon'ble II Additional Junior Civil Judge, Guntur.

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Counsel for the Petitioner: M/s. Padmavathi Padnavis

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Counsel for the Respondent No.1: Sri. Nanda Kishore Konduri

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Counsel for other Respondents: -

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The Court made the following: ORDER

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APHC010116352024

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IN THE HIGH COURT OF ANDHRA PRADESH AT AMARAVATI (Special Original Jurisdiction)

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[3311]

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THURSDAY , THE SECOND DAY OF JANUARY TWO THOUSAND AND TWENTY FIVE

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PRESENT

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THE HONOURABLE MS JUSTICE B S BHANUMATHI

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CIVIL REVISION PETITION NO: 1036/2024

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Between:

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Sri Jagannadha Swamy Etc ...PETITIONER

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AND

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Thota Siva Kumari and others ...RESPONDENT(S)

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Counsel for the Petitioner:

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1.PADMAVATHI PADI^AVIS

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Counsel for the Respondent(S):

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1.NANDA KISHORE KONDURI

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The Court made the following:

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ORDER:

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This petition is filed under Article 227 of the Constitution of India against the order dated 09.03.2023 dismissing I.A.No.297 of 2022 in O.S.No.121 of 2018 on the file of the court of II Additional Junior Civil Judge, Guntur filed by the petitioner/5*^ defendant against the 1®* respondent/plaintiff under Order VII, rule 11 of CPC to reject the plaint for want of statutory jurisdiction.

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The case of the petitioner is briefly as follows: The petitioner/5th defendant temple is a public institution which is under the purview and administrative control of the Endowments Department of Government of Andhra Pradesh. The respondent/plaintiff stated in the plaint that the schedule mentioned property originally belongs to the petitioner/5*^ defendant temple and the inmates of the locality acquired their respective properties^from the 5*^ defendant temple and they are using the temple’s vacant land shown as EFGH in plaint plan for ingress and egress and the plaintiff is also claiming right to use the said portion for' her passage and also mentioned that there was well in that area left out by the temple. Originally, the entire land in town survey numbers 567, 568 in which the plaint schedule property is part and parcel, belongs to the petitioner/ 5*^ defendant temple and was regularized in favour of encroachers about 40 years back as per the decision of the government on nominal amount vide G.O. Rt.No.1561, Revenue Department, dated 24.09.1980, in that plot No.33 was allotted to D.Suseelamma who is the mother of 1®* respondent/plaintiff and now she is in possession of the said plot No.33 and also plot No.32, while plot No.30 is Sri Vinayaka Swamy Temple and the old well and its site situated on the back side are of the temple. The site on the back side of the Ganesh temple^asshowninthe plaint plan was totally belongs to the temple and neither the plaintiff nor the other occupants in the vicinity have any right^{overthesaidsiteas} shown in the plaint plan, except a small gully left^{overatthattimefor} their ingress and egress into the main road situated on the eastern side of the plaint plan. Every occupier has passage in front of the respective encroachment to reach the main road. Even now, there is a passage to the plaintiff to directly reach the main road without passing over tl^e

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portion as shown in EFGH and ABCD in plaint plan. In fact, there is a gully passage in front of the plaintiff and also her neighbours on her left side and right side which passes along with EG in plaint plan to reach main road without coming into EFGH portion and ABCD pathway. The plaintiff occupied even the front side pathway originally provided and raised construction. Thereby, created obstruction of way to the neighbours and tried to close the gully portion left over by the petitioner/5th defendant temple for ingress and egress. There is an emergency door way provided into the said gully by the adjacent Fancy Merchants Association Kalyana Mandapam. The plaintiff extended her construction into the site left over as pathway and tried to make her entrance into the temple site in plot No.30 unauthorizedly and illegally. Hence, there arose disputes among the plaintiff and the 6'^ defendant which culminated into filing the present suit, as well as the prior suit in O.S. No.331/2017 on the file of I Additional Junior Civil Judge Court, Court, Guntur. Admittedly, there is another suit filed by plaintiff in O.S.No.331/2017 on the file of I Addl. Junior Civil Judge Court, Guntur regarding the same facts as mentioned in the present suit for the same kind of relief of injunction. Hence, the present suit for same relief is not maintainable and this Court shall not proceed with the trial of the present suit. The 1®* respondent/plaintiff is raising a dispute over an endowment property for which the common law has no application and the Endowments Act 30/1987 only applies. The proper authority to decide the dispute is the AP Endowments Tribunal, Amaravathi Peda Kakani, Guntur District which was constituted under section 162 of the Endowments Act No.30/1987 as amended through Amended Act No.33/2007. It is the established principle of law that when there is a special enactment governing any particular subject, it prevails over common law and common law applies when there is no specific law. As

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such, the suit is to be rejected out rightly on the jurisdiction aspect, instead of going into merits of the case. Hence, the plaint is liable to be rejected.

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The Respondents no.2 to 6/defendants no.1 to 4 and 6 did not choose to file counter and remained ex-parte before the trial Court. 4. The 1®* respondent/plaintiff filed counter denying the averments made in the affidavit and further contended that originally^themotherof the 1®* respondent, D.Suseelamma, purchased the properties from the petitioner/S'^ defendant under a registered sale deed dt.22.10.1981 vide document No. 1136/1981 and possession of the same was delivered to her. In the recitals of the said sale deed, the right of way from the temple's land in schedule is clearly detailed. The 1®* respondent purchased the said property from Suseelamma under two registered sale deeds vide document No.8242/1998 dt. 15.10.1998 and document No.6462/1999 dt. 15.09.1999. From the date of purchase until the filing of the suit, there was no dispute between the petitioner and 1®‘ respondent regarding the pathway. The 1®‘ respondent filed a suit in O.S No. 331/2017 on the file of I AJCJ court, Guntur against^the 6*^ defendant restraining him and his men from obstructing the 1®* respondent from using the pathway, In that suit, the 1®' respondent filed an interlocutory application in I.A.No.445/2017 in O.S.No.331/2017 seeking ad-interim injunction against the 6*^^ defendant and his men and the Court granted temporary injunction against him^{andhismen.After} passing of the orders in the said suit, the 6^^ defendant disobeyed the order of the Court and created new litigation by influencing the government and brought the 1®* to the O*'" defendants herein for obstructing the 1®‘ respondent from using the path way to the plaint schedule property. In the year 2017, prior to filing of the suit, the] 1®'

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/

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respondent gave a complaint to the Municipal Commissioner about the encroachments of the plaint schedule property which was municipal site and endowment land. Pursuant to it, the municipal authorities, with the help of the surveyor, conducted survey and submitted their report to the endowment department and the District Collector. The present suit was filed seeking permanent injunction and mandatory injunction against the defendants restraining them from obstructing the 1 respondent in the peaceful possession and enjoyment of the plaint schedule property. If there is any dispute regarding the endowment property, one should approach the Endowment Tribunal, but here, in this case, there is no dispute regarding title of the petitioner. The bar of jurisdiction under sections 150 and 151 of the Act, as per the contention of the petitioner, is not applicable to the present suit and there is no ground to reject the plaint. The petitioner, having sold the property to^the 1 respondent. cannot dispute her right to protect her property. The bar, as claimed by the petitioner, is a mixed question of law and fact. The objections raised by the petitioner as grounds for rejection of plaint under Order VII , rule 11 of Code of Civil Procedure are not tenable and such points cannot be decided during the enquiry in this petition and it can be decided only after due trial. Hence, this respondent prayed to dismiss the petition with costs.

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After hearing both parties, the petition was dismissed by the trial Court holding that a full fledged trial is required by the trial Court to express its opinion on this point. 6. Having aggrieved by the order, this revision petition is filed. 7. The main contention of the petitioner is that the tribunal has exclusive jurisdiction and therefore the civil court’s jurisdiction is expressly ousted, but, the trial court failed to decide the same. The

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learned counsel for the petitioner placed reliance on the decision of this High Court in Jampani Trilokeswari and another Vs. Dharmadaya Tope rep. by its Fit person and others\ wherein it is stated at para 9 as under:

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“9. To decide the disputes pertaining to the claims relating to properties, the Act provides a perfect mechanism under Section 87 of the Act. Earlier the power to resolve such disputes was conferred upon the Deputy Commissioner of Endowments of the concerned area. In the recent past, an, independent Tribunal is constituted for that very purpose under Section 162 of the Act. Therefore, the suit instituted by the appellants was barred by Section 151 of the Act.”

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He further placed reliance on another decision of this High Court in S. Anjana Reddy Vs. Palvoi Ranga Reddy and others^ wherein it is stated at paras 11 and 25 as under:

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In all the four revision petitions, it is the common contention that the trial Court ought to have framed preliminary^issueas sought for from the bar of jurisdiction to the Civil Court, but for to the Endowments Tribunal constituted under the Act No. 30 of 1987 from reading of Section 151 of the Act and framing of issues and putting on all issues for trial without answering to decide preliminary issue on bar of jurisdiction and very maintainability of the suit is by non application of mind and by

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^2012 (2) ALT 294 (S.B.) ^2017 (2) ALT 393 (S.B.)

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non-consideration of the requirement under Order XIV Rule 2(b) CPC and hence to pass just orders by revising the impugned order of the lower Court.

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From this it is also necessary to mention particularly with reference to the Act No.30/1987 amended by 33/2007 incorporating Section 162 of the Act and also from Section 151 of the Act, another expression of this Court in Jampani Trilokeswari v. Dharmadoyatopu, rep. by its fit person^ where it was held that civil Court has no jurisdiction but for the Endowments Tribunal and earlier the Deputy Commissioners who were having exclusive jurisdiction by virtue of the wording of Sections 151 and 162 of the Act.” 8. On the other hand, the contention of the 1®‘ respondent/plaintif^f ISi that since the title is not in dispute, the suit before civil Court IS maintainable and placed reliance on the decision of this High Court ini Atapaka Venkateswarlp died per LRs and others Vs. Sri Kalahastheeswara Swamy Temple and another^ wherein it is stated at para 16 as under; “16. In view of the limited jurisdiction conferred on the Tribunal, it is required to be examined whether the relief claimed in O.As can be granted by the Tribunal. In the instant case, the similar issue is involved, which is mixed question of fact in issue to decide with regard to title dispute between the parties. Therefore the learned tribunal has no jurisdiction to decide the same.”

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'2012(2) ALT 294 (S.B)

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"CMA No.346 of 2023 dated; 20-02-2024

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He further placed reliance on another decision of this High Court in Kommineni Narendra Vs. Ravela Rama Mohana Rao®, wherein it is stated at paras 36 to 39 as under:

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“36. The further contention of defendant No.6 is that under Section 87 of A.P. Charitable and Hindu Religious Institutions and Endowments Act, 1987, the Endowments Tribunal got jurisdiction, but not civil Court. In reply to the above contention, learned counsel for the plaintiffs submitted that the suit is filed for declaration and for recovery of possession of the property and hence, civil suit alone is maintainable. 37. In Executive Officer, Sri Bramaramba Mallikarjuna Swamy Temple, Beeranguda, Patancheru Mandal, Medak District v. Sai Krupa Homes, Karimnagar and others (2010 see Online AP 352, the apex Court held as under: “Similar issue was considered by this Court in a Division Bench judgment in Jaggayya's case (supra), which is^based upon the decision of the Supreme Court, which considered similar contention with respect to Andhra Pradesh Charitable and Hindu Religious Institutions and Endowment Act, 1966 wherein similar question with reference to Section 77 of the 1966 Act was considered and the suit was held to be maintainable. The present Section 87 being similar^toSection 77 of the 1966 Act, it has to be held that since it is a suit for declaration, the same would not fall within the purview^ofthe authorities under the Act, 30 of 1987 under Section 87. Similarly, Section 151 contains a bar of jurisdiction^thatnosuit

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= CRP No. 2200 of 2022 dated: 20-01-2023

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or legal proceeding in respect of administration or management of an institution or endowment or any other matters of dispute for determining or deciding, for which the provision is made in this Act, 30 of 1987 shall be instituted in any Court.^Asasuitfor declaration of title is not falling within the parameters^ofSection 151 of the Act, 30 of 1987 the said contention of the appellants is liable to be rejected and it is accordingly rejected.

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Thus, a perusal of expression referred to supra, the contention of counsel for the petitioner that plaintiff^had to approach Tribunal constituted under Endowment Act falls to ground. Suit is one filed declaration of title and for recovery of possession and hence civil suit is maintainable. 39. The issue as to whether property belongs to Endowments Department or Panchayat Raj Department, or the plaintiffs^will be decided after full pledged trial. In fact, plaintiffs also filed petition under Section 80 (c)(ii) of CPC and the same was allowed and thereafter the suit was numbered.”

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He further placed reliance on the decision of this High Court in Nathani Ravindrudu Vs. The Assistant Commissioner, Endowments Department, Ongole, Prakasam District and another®,^wherein it is stated at paras 24 to 27 as under;

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“24. This Court, in Kommineni Narendra's case (4 supra), relied on another decision of the Hon'ble Supreme Court reported in Executive Officer, Sri Bramaramba Mallikarjuna Swamy Temple, Beeranguda, Patancheru Mandal, Medak District v. Sai Krupa Homes, Karimnagar (2010 SCC Online

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AP 352) and opined that the civil suit is maintainable^todecide the issue as to whether the property belongs to Endowment Department or others.

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And also while relying on a case of Anam Educational Charitable v. The Assistant Commissioner^, the learned Single Judge of this Court categorically discussed the power of endowments tribunal to decide certain disputes as per^Section 87 of the Act 30 of 1987, which reproduced hereunder;

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“Section 87(1) The Endowments Tribunal having jurisdiction shall have the power, after giving notice in the prescribed manner to the person concerned, to enquire into and decide any dispute as to the question-

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(a) Whether an institution or endowment is a charitable institution or endowment;

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(b) Whether an institution or endowment is a religious^institution or endowment;

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(c) Whether any property is an endowment, if so whether it is a charitable endowment or religious endowment;

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(d) Whether any property is a specific endowment;

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(e) Whether any person is entitled by custom or otherwise^to any honour, emoluments or perquisites in any charitable or religious institution or endowment and what the established usage of such institution or endowment is in regard to any other matter;

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'W.P.No.17713 of 2017

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institution or endowment is wholly partly of a (f) Whether any secular or religious character and whether any property^isgiven wholly or partly for secular or religious uses; or has been given for the (g) Where any property or money endowment which is partly of a support of an institution or secular character and partly of a religious character or the or charity connected with such performance of any service institution or endowment or the performance of a charity which secular character and partly of a religious character is partly of a or where any property or money given is appropriated^partlyto secular uses and partly to religious uses, as to what^portionof such property of money shall be allocated to secular^orreligious uses;

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member from the family (h) Whether a person is a founder or a of the founder of an Institution or Endowment

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of'the above citations, it is required to be 26. On a perusal examined whether the reliefs claimed in O.As can be^grantedby is involved, the Tribunal. In the instant case, the similar issue which is a mixed question of fact, to decide with regard to title dispute between the parties. Therefore the learned tribunal has no jurisdiction to decide the same.

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In view of the above foregoing discussion and following the decision of M/s Sri Santhi Nikethan’s case (supra), this Court of these appeals while granting liberty to is inclined to dispose the appellants.”

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above decisions indicate that the jurisdiction 9. A perusal of the ousted and depends on facts and of a civil Court is not always

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circumstances in each case. In the present case, from the pleadings in the plaint alone, the suit cannot be rejected under Order VII, rule 11 CPC. Only on consideration of the pleas taken in the written statement and the plaint, the mixed question of law and fact of the jurisdiction in the present can be decided. As such, if no issue is so far framed on the question of jurisdiction, the same can be framed or if it was already framed, the same can be decided along with the other issues.

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Consequently, the result in the impugried order requires no interference, but the findings given regarding the question of jurisdiction shall be confined only to the scope of the petition of Order VII, rule 11 CPC and the issue separately framed on jurisdiction shall be independently decided basing on the evidence led by both the parties and the pleadings in that regard, Thus, the findings in the impugned order shall have no bearing on the said issue to be decided later on. 11. Accordingly, the civil revision petition is dismissed, however subject to the above observations.

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There shall be no order as to costs.

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Miscellaneous petitions, if any pending, in this civil revision petition, shall stand closed.

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//TRUE COPY//

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Sd/-B PRASADA RAO ASSISTANT REGISTRAR / SECTION OFFICER

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To,

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