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Order 7 Rule 11 r/w.Sec.151 CPC, for rejection of plaint on the ground that the same is barred under law. It is the case of petitioner that he has already filed insolvency petition which is pending in I.P.No.34 of 2010, seeking to declare him as insolvent and soon after receipt of summons in the aforesaid I.P., the 1st respondent/plaintiff has filed suit for recovery of money. Precisely, it is the case of petitioner that in view of pendency of insolvency proceedings in I.P.No.34 of 2010, the suit filed by the 1st respondent is barred under Section 28(2) of the Provincial Insolvency Act, 1920.=Section 28 deals with the effect of an order of adjudication by the competent Court. From a reading of the provision under Section 28(2) of the said Act, it is clear that, on making of an order of adjudication, the whole of the property of the insolvent shall vest in the Court or in a receiver as provided in the said Section and shall become divisible among the creditors, and thereafter, after adjudication, it is not open to any creditor to commence any suit or other legal proceeding, except with the leave of the Court and on such terms as the Court may impose. It is clear from the said provision that Section 28(2) comes into effect only after adjudication of the application filed by the applicant under the provisions of the Provincial Insolvency Act, 1920. Therefore, after adjudication of the application filed by the applicant seeking to declare him as insolvent and during pendency of further proceedings for division of properties to the creditors, no creditor can institute any suit or commence any legal proceedings without the leave of the Court. Pendency of proceedings as referred under Section 28(2) of the Act refers to the pendency of proceedings subsequent to adjudication of the application, but not on mere filing of application seeking declaration of applicant as insolvent. 6. Coming to the judgments relied on by the learned counsel for petitioner, Kalamalla Babakkas case (2 supra) deals with the issue of date of vesting of properties of insolvent in the receiver of the Court. Further, in Pentala Githavardhana Raos case (1 supra), a Division Bench of this Court has considered the scope of Section 28(2) of the Act and held that the intendment and purpose of Section 28(2) is broadly two-fold; (i) to make the entire estate of the insolvent vest in the Court or in a receiver the moment an order of adjudication is made and to make it available for distribution among the body of creditors, and (ii) to prohibit any creditor of the insolvent from proceeding against his property in respect of his debt or commence any suit or other legal proceeding, without the leave of the insolvency Court during the pendency of the insolvency proceedings. So, even in this judgment, it is not held that the provision under Section 28(2) of the Act comes into play on mere filing of application for declaration of petitioner as insolvent.

HONBLE SRI JUSTICE R. SUBHASH REDDY        

CIVIL REVISION PETITION No.2003 of 2015  

19-06-2015

M. Linga Murthy...Petitioner

R.M.Rama Devi & others...Respondents.  

For petitioner :Sri M. Satish Kumar, Advocate.

For Respondents:None appeared.

<Gist:

>Head Note:

?CITATIONS:

1. AIR 1973 AP 245
2. AIR 1973 AP 312


HONBLE SRI JUSTICE R. SUBHASH REDDY        

CIVIL REVISION PETITION No.2003 of 2015  

ORDER :
        This civil revision petition is filed under Article 227 of the
Constitution of India, by the petitioner in I.A.No.777 of 2014 in
O.S.No.2577 of 2010, aggrieved by order dated 03.02.2015, passed by
the V-Senior Civil Judge, City Civil Court, Hyderabad.
2.      Respondent No.1 herein has filed the aforesaid suit in
O.S.No.2577 of 2010 against the petitioner herein and three others, for
recovery of an amount of Rs.5,00,000/-.  In the aforesaid suit, the
petitioner/1st defendant has filed the present application in I.A.No.777
of 2014 under Order 7 Rule 11 r/w.Sec.15…

Or.VII, rule 11 read with Or.9, rule 9 C.P.C. - earlier suit was dismissed for default , fresh suit on the same cause of action is maintainable ? = The principle underlying Order IX Rule 9 is that no one shall be vexed twice with the same cause of action and it is also a settled law that this rule does not prohibit the plaintiff from instituting a fresh suit on different cause of action as per the principles laid down in Shivashankar Prasad Sah and another V. Baikunth Nath Singh and others (4 supra) and Raj Kumar and others V. Mutsaddi Lal and others . It is also a settled law that dismissal of suit under Order IX Rule 8 of CPC bars fresh suit in respect of the same cause of action. It is also a settled law that the operation of this rule is confined to the cases where the second suit is brought for the same subject and on the same cause of action and it does not preclude fresh suit if a cause of action is separate and distinct. While considering whether the cause of action in the subsequent suit is or is not the same as the cause of action in the previous suit, the test to be applied is are the causes of action in the two suits in substance and not technically identical as laid down in M/s. Parasram Harnand Rao V. M/s. Shanti Parsad Narinder Kumar Jain and another . It is also to be noted that as to the identity of cause of action one workable test though not conclusive is whether the same evidence would support the claim in both the suits and if the reply is affirmative, a fresh suit will be barred and if it is negatived, a fresh suit will lie. It is also settled law that the fact that the mode of relief claimed in the subsequent suit is different than claimed in the previous suit, it will not be a ground for refusing to apply the bar of Order IX Rule 9 of CPC as held in Aziz Din V. Moti Ram and others . At the same time, there is absolutely no dispute with regard to the principles laid down in the judgments referred to by the learned counsel for the respondents and in fact the Court below had no occasion to deal with the same. There is absolutely no dispute that both the suits are eventually for the reliefs of declaration of title and injunction in respect of the same subject property. The distinction is subsequent developments and the relief pertaining to the revenue entries. The instant application is for rejection of plaint under Order VII Rule 11 (d) of CPC. It is the case of the petitioners herein that in view of the provisions of Order IX Rule 9 of CPC the present suit is barred, since the earlier suit i.e., O.S.No.195 of 1982 filed by the plaintiffs herein on the same foundation and cause of action was dismissed for default. It is also the contention of the learned counsel for the petitioners that the cause of action referred to include any cause of action flowing from the main cause of action.- the basis and foundation of the earlier suit and the cause of action set out therein and the effect of dismissal of the said suit O.S.No.195 of 1982 and the impact of provisions of Order IX Rule 9 of CPC on the present suit and the Court below had also no occasion to consider the principles laid down on the issue in the above referred judgments. In fact, no exercise was undertaken by the Court below in the light of the principles laid down in the authoritative pronouncements. Therefore, this Court, after anxious and thoughtful consideration and taking into consideration the totality of the circumstances deems it appropriate to remand the matter for fresh consideration to the Court below.

HONBLE SRI JUSTICE A.V. SESHA SAI    

CIVIL REVISION PETITION No.3243 of 2014  

16-04-2015

1. Yachamaneni Chandra Mohan Rao & another...Petitioners

1. Edmala Narsamma @ Narsavva & 28 others...Respondents    

Counsel for Petitioners: Sri Bodduluri Srinivasa Rao

Counsel for Respondents 1 & 2: Sri N. Ashok Kumar

<GIST:

>HEAD NOTE:  

? Cases referred
1.      2012 (6) ALD 36 (SC)
2.      (2009) 1 Supreme Court Cases 689
3.      AIR 1984 Orissa 187
4.      AIR 1969 Supreme Court 971
5.      AIR 1978 Punjab and Haryana 216
6.      2014 (2) ALD 149
7.      AIR 1952 Punjab 190
8.      (1980) 3 Supreme Court Cases 565
9.      AIR 1926 Lahore 563



HONBLE SRI JUSTICE A.V. SESHA SAI    

CIVIL REVISION PETITION No.3243 of 2014  

Date: April 16, 2015

O R D E R:

        The application which is the genesis for the present revision
filed under Article 227 of the Constitution of India is one under
Order VII Rule 11 of the Code of Civil Procedure (CPC).  In the
present revis…

Rejection of plaint as the amendment of plaint petition for declaration and recovery of possession was dismissed = the plaint is liable to be rejected under Order VII Rule 11 of the Code on the ground of principle of res judicata, by any stretch of imagination, can neither be sustained nor can be approved by this Court. Yet another contention advanced by the learned counsel for the petitioner that in view of the filing of I.A.No.3167 of 2007 by the plaintiff under Order VI Rule 17 of the Code for amendment of the relief portion as a suit for recovery of possession and declaration and dismissal of the same and confirmation of the said order by this Court in C.R.P.No.3913 of 2008 and the findings recorded therein, further continuation of the proceedings in the suit would be absurd and tantamounts to abuse of process of law and vexatious and cannot be permitted, in considered and definite view of this Court is also not sustainable and tenable. In view of the settled law that the pleadings in the plaint should be the criterion for consideration of the application under Order VII rule 11 of the Code, but not the defence set up by the defendants, the dismissal of I.A.No.3167 of 2007 and the confirmation of the same by this Court in C.R.P.No.3913 of 2008 by any stretch of imagination cannot be the basis nor can it be used as a foundation for maintaining the present application or for rejecting the plaint. In fact, in a suit for injunction, the only aspect, which requires to be examined, is possession as on the date of the suit.;delay is certainly one of the grounds which disentitles the petitioner from claiming this extraordinary relief under Order VII Rule 11 of the Code.

THE HONOURABLE SRI JUSTICE A.V.SESHA SAI        

CIVIL REVISION PETITION No.1872 of 2014  

20-02-2015

Emundla Lingaiah..Petitioner

Kokkula alias Burra Narsavva and others.. Respondents

Counsel for the Petitioner : Sri P.V. Narayana Rao.

Counsel for Respondent No.1:  Sri V.V.Ramana Rao.
Counsel for  Respondent No.3: Sri Pulla Karthik.
Counsel for Respondents 4 to 7:   --

<Gist :

>Head Note:

?Cases referred:
  (1977) 4 SCC 467
2 2007 (5) ALD 565
3 2014(4) ALD 63 (SC)
4 AIR 1974 PATNA 153  
5 2007(6) ALD 388 (DB)
6 2013 (5) ALD 439 (DB)
7 2013(5) ALD 72


THE HONOURABLE SRI JUSTICE A.V.SESHA SAI        

CIVIL REVISION PETITION No.1872 of 2014  

ORDER  
        Defendant No.2 in O.S.No.740 of 2004 on the file of the Court
of Principal Junior Civil Judge at Karimnagar, is the petitioner in the
present revision filed under Article 227 of the Constitution of India.
This revision assails the order dated 24.04.2014, passed by the said
Court, dismissing I.A.No.1827 of 2012 filed by t…

rejected on the ground that it was already barred by time. But, such a bar would work in perpetuity , so filing of fresh plaint as per Delhi Wakf Boards case does not arise =The order of the Supreme Court in Delhi Wakf Boards case, referred to supra, has been rendered in a different context. That is a case where the fresh plaint presented on the second occasion was rejected by the Trial Court on the ground that a similar plaint was rejected earlier. In that context, the Supreme Court clarified that rejection of a plaint earlier once before does not prevent the plaintiff to present a suit afresh, as per the provision contained under Rule 13 of Order VII C.P.C. But, in the instant case, the earlier plaint in O.S.S.R.No.1156 of 2007, (numbered as O.S.No.7 of 2008) has been rejected on the ground that it was already barred by time. But, such a bar would work in perpetuity against the present plaintiff/petitioner. Therefore, the ratio in Delhi Wakf Boards case would not get attracted to the cases of rejection of plaint under Clause (d) of Rule 11 of Order VII C.P.C,

THE HONBLE SRI JUSTICE NOOTY RAMAMOHANA RAO            

CIVIL REVISION PETITION NO.1874 OF 2015    

07-10-2015

Nalla Raji Reddy Petitioner

Venkatanantha Chary. Respondent  

Counsel for the petitioner :Sri Mohd. Adnan

Counsel for the respondents  :

<GIST:

>HEAD NOTE:  

? Cases referred

1. (1997) 10 SCC 192

THE HONBLE SRI JUSTICE NOOTY RAMAMOHANA RAO            

CIVIL REVISION PETITION No.1874 of 2015  

ORDER:

        This revision is preferred by the plaintiff, whose plaint
bearing O.S.S.R No.639 of 2009 has been rejected by the Court
of the Senior Civil Judge, Vikarabad, Ranga Reddy District,
under Order VII Rule 11(d) of C.P.C.
        O.S.S.R No.639 of 2009 has been preferred for directing
the sole defendant to execute sale deed and to register the same
in favour of the plaintiff or his nominees in respect of the land
comprising of Ac.33-41 cts situate in various survey numbers of
Aloor Village, Chevella Mandal, Ranga Reddy district. The
plaintiff also sought for a pe…

Order XLI Rule 28 of the CPC reads as under: Under Rule 27 (1), the parties to appeal shall not be entitled to produce additional evidence, whether oral or documentary, in the appellate Court except under the circumstances envisaged under sub- clauses (a), (aa) and (b) thereof. Under sub-rule (2) of Rule 27, whenever additional evidence is allowed to be produced by an appellate Court, the Court shall record the reasons for its admission. Rule 28 prescribed the procedure for taking additional evidence. Under this Rule, wherever additional evidence is allowed to be produced, the appellate Court may either record such evidence by itself or direct the Court, from whose decree the appeal is preferred, or any other sub-ordinate Court to take such evidence and forward the same to it. Mode of taking additional evidence- Wherever additional evidence is allowed to be produced, the Appellate Court may either take such evidence, or direct the Court from whose decree the appeal is preferred, or any other subordinate Court, to take such evidence and to send it when taken to the Appellate Court. As the lower appellate Court has committed a serious procedural illegality in remitting the case to the trial Court, the judgment and decree under appeal cannot be sustained and the same is, accordingly, set aside. The Civil Miscellaneous Appeal is allowed. The lower appellate Court is directed to decide as to whether it will itself record the evidence or direct the trial Court to record the evidence and forward the same to it. After recording of the evidence either by itself or by the trial court, the lower appellate Court shall dispose of the appeal on merits. This process shall be completed within three months from the date of receipt of this order.

The Honble Sri Justice C.V.Nagarjuna Reddy

Civil Miscellaneous Appeal No.1058 of 2014

06-02-2015

Kesava ReddyAppellant  

A.Visupaksha Reddy (died) and 7 others  Respondents  

Counsel for the Appellant: Mr.M.Radha Krishna

Counsel for respondent Nos.2 to 6: Mr.K.Sita Ram

<GIST:

>HEAD NOTE:  

? Cases cited:

2010 (2) ALD 86 (SC)

The Honble Sri Justice C.V.Nagarjuna Reddy

Civil Miscellaneous Appeal No.1058 of 2014

Dated 06.02.2015

The Court made the following:

Judgment:
        This Civil Miscellaneous Appeal arises out of the judgment
and decree, dated 25-08-2014, in AS.No.60 of 2012, on the file of
the Court of the learned II Additional District Judge, Kurnool at
Adoni, whereby he has remanded the case to the Court of the
Junior Civil Judge, Aluru, for considering the additional
documentary evidence filed by respondent Nos.2 to 6, who are
the appellants before it, and to answer the issues afresh.
        I have heard Mr.M.Radha Krishna, learned Counsel for the
appellant, and Mr.K…