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Friday, July 29, 2016

Order XXIII Rule 1 applies to the interlocutory applications also.= Order XXIII Rule 1 applies to suit, but I feel that the principle underlying the same is based on public policy, as such, I do not see any reason for not applying the said principle to the interlocutory applications also. = petitioner filed petition under Order 1 Rule 10 and Section 151 CPC to implead him as 7th respondent/7th defendant in the place of 1st respondent/1st defendant to contest the proceedings as a legatee under the Will.= The 1st defendant died on 05.11.2011 due to old age and on her death, the Will dated 29.09.2010 came into operation and he became the legatee of the will and became absolute owner of his mother estate i.e., half share of the suit schedule property. The 1st respondent/plaintiff knowing fully well, have filed a memo stating that she is only legal heir and already succeeded to the half share of his mother. The 1st respondent/plaintiff has no manner of right, title and interest against the property and sought to implead him as 7th respondent/7th defendant to contest the proceedings as a legatee.= But at the same, in the instant case, petitioner cannot maintain the present application for the same cause of action after withdrawal of I.A.No.1 of 2012 filed by him, that too, without obtaining permission to institute the present application. Though the present application is not hit by the principles of res judicata, but whoever waives, abandons or disclaims a right will forego the same. In order to prevent a litigant from abusing the process of the court by instituting suits again and again on the same cause of action without any good reason, the Code insists that he should obtain the permission of the Court to file a fresh suit after establishing either of the two grounds mentioned in Rule 1(3) of the Order XXIII. The principle underlying the above rule is founded on public policy as held by the Hon'ble Supreme Court in Sarguja Transport Service v. State Transport Appellate Tribunal, M.P.Gwalior (supra). Though the above said decision was rendered in the context of suit proceedings, but the said principle was made applicable to writ proceedings also, since the same is founded on public policy. Though Order XXIII Rule 1 applies to suit, but I feel that the principle underlying the same is based on public policy, as such, I do not see any reason for not applying the said principle to the interlocutory applications also. In the instant case, the trial Court was right in holding that a fresh interlocutory application is not maintainable before it, in respect of the same subject matter since the earlier interlocutory application had been withdrawn without permission to file a fresh application.

THE HON'BLE SRI JUSTICE A.RAJASHEKER REDDY          

Civil Revision Petition No.27 of 2016

Dated 02-06-2016

B.Venkata Laxmamma, Died by LR B.Koteswara Rao... PETITIONER      

VERSUS  

Smt. N.Janakamma and others....RESPONDENTS      

Counsel for the Petitioner:  Sri C.Prakash Reddy

Counsel for the Respondents:Sri O.Manoher Reddy.

>HEAD NOTE:  

?Cases referred
1.(2013) 15 Supreme Court Cases 655
2 2012 Law Suit (Ker) 1734
3 2012 (6) ALT 537
4 (2008) 8 Supreme Court Cases 521
5 (1987) 1 Supreme Court Cases 5



HONOURABLE SRI JUSTICE A.RAJASHEKER REDDY            

C.R.P. No. 27 OF 2016

ORDER :

         This Civil Revision Petition is filed against order in
I.A.No.62 of 2013 in I.A.No.141 of 2004 in O.S.No.41 of 1981
dated 30.10.2015, wherein the petition filed by the petitioner
under Order 1 Rule 10 and Section 151 of CPC for impleading him
as 7th respondent/7th defendant in the place of 1st respondent/1st
defendant in the proceedings as a legatee under the Will was
dismissed.
2.         The parties hereinafter will be referred to as arrayed in the
interlocutory application before the Court below.
        Originally, the 1st respondent/plaintiff filed the suit against
the petitioner, her mother and others for partition and same was
dismissed by the Principal Subordinate Judge, Kurnool.
Aggrieved by the same, the 1st respondent/plaintiff preferred
Appeal Suit No.2072 of 1986 before this Court, which was allowed
by setting aside the decree and judgment of the Court below.  As
per the judgment in the Appeal No.2072 of 1986, the 1st
respondent/plaintiff and 1st defendant are entitled to half share
each in the suit schedule property.  Subsequently, upon
interlocutory application i.e., I.A.No.27 of 2002 filed by the 1st
respondent/plaintiff for final decree for division of suit schedule
property into two equal shares, the Court below allowed the same,
divided the property into two shares and allotted one share to the
1st respondent/plaintiff and other part to the 1st defendant.
           Now the petitioner filed petition under Order 1 Rule 10
and Section 151 CPC to implead him as 7th respondent/7th 
defendant in the place of 1st respondent/1st defendant to contest
the proceedings as a legatee under the Will.   The petitioner is the
2nd defendant in the suit and also 2nd respondent in I.A.No.141 of
2004 filed for ascertainment of mesne profits.  He was allegedly
brought up under the guardianship of 1st defendant i.e,
Smt.Baldlamuri Venkata Laxmamma since his childhood as she is  
issueless.  The petitioner is the legatee under registered Will
D.No.24/2010 dated 29.09.2010 executed by his mother i.e., 1st
defendant towards love and affection.  The 1st defendant died on
05.11.2011 due to old age and on her death, the Will dated
29.09.2010 came into operation and he became the legatee of the
will and became absolute owner of his mother estate i.e., half
share of the suit schedule property. The 1st respondent/plaintiff
knowing fully well, have filed a memo stating that she is only legal
heir and already succeeded to the half share of his mother.  The
1st respondent/plaintiff has no manner of right, title and interest
against the property and sought to implead him as 7th
respondent/7th defendant to contest the proceedings as a legatee.
3.          The 1st respondent/plaintiff filed counter denying the
averments in the affidavit filed in support of the petition stating
that Bandlamuri Venkata Lakshmamma cannot be the mother of  
the petitioner at all as she only fostered him for some years.
Subsequently, petitioner went to Hyderabad and never came to
visit the testator at any time.  The petitioner was married 15 years
back and during the marriage, a quarrel took place between the
petitioner and his mother with regard to handing over of the dowry
to the mother of the petitioner i.e., testator.  While she was
bedridden, she was looked by one Pinjari Gokaramma,
w/o.Moulali, who is a neighbour and remuneration was paid by
the sister's son of late Venkata Lakshmamma.   That Bandlamuri
Venkata Lakshmamma was of unsound mind  and the alleged Will  
was not executed in sound state of mind.  That 1st
respondent/plaintiff  has already succeeded half share of late
B.Venkaakshmamma as her only legal heir, as such, the petitioner
has no locus standi to come on record.
4.          To substantiate the contention of the petitioner, P.Ws. 1
to 3 were examined and got marked Exs.A1 to A3.  On behalf of
the respondents, R.W.1 was examined but no documentary  
evidence was let in on their behalf.
5.         After considering the rival contentions of both parties, oral
and documentary evidence, the trial Court dismissed the
application filed by the petitioner.
6.          Heard Sri C.Prakash Reddy, learned counsel for the
petitioner and Sri O.Manoher Reddy, learned Counsel for the 1st
respondent.
7.          Learned counsel for the petitioner submits that the Court
below erroneously dismissed the application on the ground that
I.A.No.1 of 2012 filed by the petitioner for impleading him has
been withdrawn.  He would further contend that the said I.A. is
not decided on merits, as such, bar of res judicata will not be
applicable.  In support of his contention, he relied on the
judgments reported in Erach Boman Khavar v. Tukaram Shridhar Bhat
and another , Seetha Ramachandran v. Radhakrishnan  and Ponnuri
Venkata Sai Sivananda Prabhu v. Popuri Sunitha and others .
8.          On the other hand, learned counsel for the respondent
submits that I.A.No.1 of 2012 was filed by the petitioner for the
same relief as in the present I.A for coming on record as legatee on
the basis of Will.  After evidence is let in and the matter was
reserved for orders, application was filed for reopening the same
and after same is allowed, petitioner withdrew the said I.A.  As
such, petitioner is estopped from filing the present application for
the self same relief.  In support of his contentions, he relied on the
judgments reported in Jaladi Suguna (deceased) through LRs v. Satya
Sai Central Trust and others  and Sarguja Transport Service v. State
Transport Appellate Tribunal, M.P.Gwalior .
9.        In this case, it is to be seen that when the learned counsel
for the petitioner was asked to produce a copy the affidavit filed in
I.A.No.1 of 2012 in I.A.No.141 of 2004 in O.S.No.41 of 1981, the
certified copy of the same was produced before this Court.  A
perusal of the affidavit in I.A.No.1 of 2012 goes to show that the
averments in I.A.No.62 of 2013 are same with that of the
averments in I.A.No.1 of 2012, for impleadment of legal heir of
Smt. B.Venkata Lakshmamma, i.e., defendant No.1 in the suit. 
No reasons are assigned in the affidavit filed in support of
I.A.No.62 of 2013 why interlocutory application i.e.,I.A.No.1 of
2012 was withdrawn earlier, after evidence is let in and after the
said application was reserved for orders.
10.        No doubt, as contended by the learned counsel for the
petitioner since the I.A.No.1 of 2012 is not decided on merits, the
plea of principles of res judicata has no application, as per the
judgment reported in Erach Boman Khavar v. Tukaram Shridhar Bhat
and another (supra), wherein the Hon'ble Supreme Court held as
follows:
        "39.  From the aforesaid authorities it is clear as crystal that to
attract the doctrine of res judicata it must be manifest that there
has been a conscious adjudication of an issue.  A plea of res judicata
cannot be taken aid of unless there is an expression of an opinion
on the merits.  It is well settled in law that principle of res judicata is
applicable between the two stages of the same litigation but the
question or issue involved must have been decided at earlier stage of
the same litigation."

        There is no dispute with the regard to the above proposition
of law.  But at the same, in the instant case, petitioner cannot
maintain the present application for the same cause of action after
withdrawal of I.A.No.1 of 2012 filed by him, that too, without
obtaining permission to institute the present application.  Though
the present application is not hit by the principles of res judicata,
but whoever waives, abandons or disclaims a right will forego the
same.  In order to prevent a litigant from abusing the process of
the court by instituting suits again and again on the same cause
of action without any good reason, the Code insists that he should
obtain the permission of the Court to file a fresh suit after
establishing either of the two grounds mentioned in Rule 1(3) of
the Order XXIII. The principle underlying the above rule is
founded on public policy as held by the Hon'ble Supreme Court in
Sarguja Transport Service v. State Transport Appellate Tribunal,
M.P.Gwalior (supra).  Though the above said decision was rendered
in the context of suit proceedings, but the said principle was made
applicable to writ proceedings also, since the same is founded on
public policy.  Though Order XXIII Rule 1 applies to suit, but I feel
that the principle underlying the same is based on public policy,
as such, I do not see any reason for not applying the said principle
to the interlocutory applications also.  In the instant case, the trial
Court was right in holding that a fresh interlocutory application is
not maintainable before it, in respect of the same subject matter
since the earlier interlocutory application had been withdrawn
without permission to file a fresh application.  The other decisions
relied on by both the counsel have no application to the facts of
the case on hand.  The trial Court also observed that the
petitioner had withdrawn the I.A.No.1 of 2012, which was filed for
impleading him as the 7th respondent in the place of 1st
respondent and for the same relief, the present application i.e,
I.A.No.62 of 2013 has been filed, which is nothing but abuse of
process of law.
        In view of above facts and circumstances, I do not see any
merit in this Civil Revision Petition and the same is liable to be
dismissed.
        Accordingly, this Civil Revision Petition is dismissed.  There
shall be no order as to costs.  As a sequel thereto, miscellaneous
petitions, if any, pending in this CRP, shall stand dismissed.

_______________________  
A.RAJASHEKER REDDY, J    
Dated 02-06-2016

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