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Friday, April 22, 2016

Order 15-A of CPC provides for striking off defence in a suit filed by the lessor. Rule 2 thereof requires the Civil Court to serve a notice on the defendant to show-cause as to why the defence should not be struck off, and then the Court shall consider any such cause, if shown in order to decide as to whether the defendant should be relieved of an order striking off the defence put up by him. The order passed on 02.07.2015 by the Court in I.A.No.116 of 2014 is very clear. For the period from December 2011 up to end of June 2015 for nearly 43 months period, the defendant was directed to deposit the admitted rent @ Rs.3,500/- per month and 30 days time was granted by the Court for that purpose. Therefore, the petitioner herein ought to have deposited the entire arrears of rent within the time so stipulated by the Court. That he has not done and on the other hand, he has drawn a cheque of Rs.75,000/- on 01.09.2015 and offered to the plaintiff. Rs.75,000/- does not answer or satisfy the quantum of arrears payable for the entire 43 months period, which works out to Rs.1,50,500/-. This apart, there is a finding of fact recorded now that the petitioner herein has also failed to comply with the other obligation to deposit the admitted rent of Rs.3,500/- before 10th of every month. Hence, for the default committed by the petitioner herein to live up and comply with the stipulations contained in I.A., the Court below rightly struck off the defence set up by him as provided for under Order 15-A (2) of CPC. I, therefore, do not find any good reason for interference in exercise of jurisdiction vested in the Court below.

THE HONBLE SRI JUSTICE NOOTY RAMAMOHANA RAO            

CIVIL REVISION PETITION No.161 of 2016  

26-02-2016

Sri K.Bhaskar ReddyPetitioner  

Smt. K.Anasuya  Respondent  

Counsel for the Petitioner: Sri N.Harinath

Counsel for the Respondent :---                
                               
<Gist:

>Head Note:

? Citations:

THE HONBLE SRI JUSTICE NOOTY RAMAMOHANA RAO            

CIVIL REVISION PETITION No.161 of 2016  
ORDER:
      This revision is preferred against an order passed on
15.12.2015 in I.A.No.587 of 2015 in O.S.No.403 of 2011.
      The petitioner herein is the defendant in the suit.  The
respondent/plaintiff moved I.A.No.587/2015 under Order 15-A (2)
of CPC praying the Court to strike off the defence of the defendant
on the premises that the defendant in the suit was directed by the
Court on 02.07.2015 by an order passed in I.A.No.116 of 2014 to
deposit the arrears of rent from the date of filing the suit i.e., from
December 2011 to June 2015 @ Rs.3,500/- per month, which is
the admitted rent.  In I.A.No.116 of 2014, the Court also directed
the petitioner herein to deposit the monthly rent before 10th of
every month until disposal of the suit.  Both these directions
issued by the Court in I.A.No.116/2014 dated 02.07.2015 have not
been complied with by the petitioner.  On the other hand, the
petitioner herein offered a cheque drawn in a sum of Rs.75,000/-
in favour of the plaintiff on 01.09.2015 and he offered another
cheque in a sum of Rs.86,000/- on the next date of adjournment,
which she refused to receive.  It was also pointed to the Court that
rents have not been deposited into the Court as per the order
dated 02.07.2015 before 10th of every month.  In view of the default
committed by the petitioner herein in complying with the order
dated 02.07.2015 passed in I.A.No.116 of 2014, the present
I.A.No.587 of 2015 is allowed and the defence of the petitioner
herein has been ordered to be struck off.
      Order 15-A of CPC provides for striking off defence in a suit
filed by the lessor.  Rule 2 thereof requires the Civil Court to serve
a notice on the defendant to show-cause as to why the defence
should not be struck off, and then the Court shall consider any
such cause, if shown in order to decide as to whether the
defendant should be relieved of an order striking off the defence
put up by him.
      In the instant case duly following the said procedure, the
present I.A.No.587 of 2015 has been ordered by the Court.
      Sri Avinash, learned counsel appearing on behalf of the
learned counsel for the petitioner herein would submit that the
petitioner has drawn a memo trying to explain as to how he has
complied with the Court order, but the said memo was not acted
upon.
      The order passed on 02.07.2015 by the Court in I.A.No.116
of 2014 is very clear. For the period from December 2011 up to end
of June 2015 for nearly 43 months period, the defendant was
directed to deposit the admitted rent @ Rs.3,500/- per month and
30 days time was granted by the Court for that purpose.
Therefore, the petitioner herein ought to have deposited the entire
arrears of rent within the time so stipulated by the Court.  That he
has not done and on the other hand, he has drawn a cheque of
Rs.75,000/- on 01.09.2015 and offered to the plaintiff.
Rs.75,000/- does not answer or satisfy the quantum of arrears
payable for the entire 43 months period, which works out to
Rs.1,50,500/-.  This apart, there is a finding of fact recorded now
that the petitioner herein has also failed to comply with the other
obligation to deposit the admitted rent of Rs.3,500/- before 10th of
every month.  Hence, for the default committed by the petitioner
herein to live up and comply with the stipulations contained in
I.A., the Court below rightly struck off the defence set up by him as
provided for under Order 15-A (2) of CPC.  I, therefore, do not find
any good reason for interference in exercise of jurisdiction vested
in the Court below.
      Accordingly, the civil revision petition is dismissed.
      Consequently, miscellaneous petitions, if any shall stand
dismissed.  No costs.

_______________________________________      
JUSTICE NOOTY RAMAMOHANA RAO          
26.02.2016

Order XXVI Rule 9 read with Section 151 of the Code of Civil Procedure, 1908 (the Code, for short) requesting to appoint an Advocate Commissioner to visit the suit schedule properties and note down the physical features of the suit C schedule property and the existence of a road-C schedule property and file a report.=the entire property is divided as A to G parts and that out of that A to G, C schedule property is a road carved out and that the plaintiff also relies upon a plan to that effect and that in turn the defendants are contending that there is no road in existence as claimed by the plaintiff, had eventually appointed a commissioner while observing that there are no tenable objections in the counter and that no prejudice would be caused if a commissioner is appointed.In the result, the Civil Revision Petition is dismissed with costs. the trial court shall consider the probative value of the Commissioners report at the appropriate time having regard to the facts and the circumstances of the case, however, after giving an opportunity to both the parties to file objections, if any, to the said report.

THE HON'BLE SRI JUSTICE  M. SEETHARAMA MURTI        

Civil Revision Petition no.1414 of 2014

22-02-2016

Mohammed Jaffer Abdul Qadeer Qureshi.Petitioner  

Aziz-ur-Rehman Qureshi and 5 others .Respondents  

Counsel for the Petitioner: Sri Chavali Ramanand

Counsel for Respondents 1 to 4: Sri T. Janardhan Reddy

<Gist :

>Head Note:

? Cases referred:

1.2009(5)ALD 459
2.2014(5) ALD 376
3.2016(1) ALT 134

THE HONBLE SRI JUSTICE M.SEETHARAMA MURTI          

Civil Revision Petition No.1414 of 2014

ORDER:
        This civil revision petition under Article 227 of the Constitution of
India by the plaintiff is directed against the order and decretal order dated
02.04.2014 of the learned III Additional District Judge, Ranga Reddy
District passed in IA.No.1104 of 2013 in IA.No.918 of 2013 in OS.No.1228
of 2013 filed by the defendants 1,3,4 and 5 under Order XXVI Rule 9 read
with Section 151 of the Code of Civil Procedure, 1908 (the Code, for
short) requesting to appoint an Advocate Commissioner to visit the suit
schedule properties and note down the physical features of the suit C
schedule property and the existence of a road-C schedule property and file
a report.
2.      I have heard the submissions of the learned counsel for the revision
petitioner/plaintiff and the learned counsel for the respondents/defendants
1,3,4 and 5.  I have perused the material record.
3.      The said defendants in support of their request for appointment of an
advocate commissioner inter alia urged, in the affidavit of the 5th defendant,
as follows:
        The plaintiff brought the suit for partition and allotment of 2/13th
share in ABDEF and G schedule properties and for a perpetual injunction
restraining the defendants including the present defendants from altering the
nature or physical features and causing any obstruction or obstacle or
hindrance on the use of the C schedule property as a road and for recovery
of money.  In the said suit, the plaintiff had also filed IA.No.917 of 2013 for
grant of a temporary injunction in respect of C schedule property.
However, there is no road as described in C schedule property.  Even the
police of Pahadisheriff Police Station inspected the land on a complaint of
the plaintiff and had closed the said complaint as there was no road as
alleged.  The plaintiff is trying to create a road by obtaining order from the
Court (trial Court).  In order to know the existence or otherwise of such road
as C schedule property in the entire suit schedule property, it is just and
necessary to appoint an Advocate Commissioner.  Hence, the petition is filed
for the purpose mentioned in the petition.
4.      The said application was resisted by the plaintiff by filing a counter
affidavit inter alia contending as follows:
     The material allegations in the affidavit filed in support of the petition
are false.  The contentions that there is no road as described in the C
schedule property and that the Police of Pahadisheriff Police Station
inspected the land on complaint of the plaintiff and had closed the said
complaint as there was no road etcetera are all false.  The complaint was
never closed.  The complaint does not relate to the verification of the
existence of the road.  The contents of the said complaint have no nexus to
the relief sought in the instant application nor are they relevant for deciding
the instant application.  The plaintiff is trying to create a road is incorrect.
It
is not just and necessary to appoint an Advocate Commissioner for the
purpose sought for by the defendants.  The existence or otherwise of the
road can be proved by adducing necessary evidence.  Appointment of an
Advocate Commissioner is neither necessary nor permissible; and the
appointment of an Advocate Commissioner for the desired purpose
tantamounts to collection of evidence. The petition is devoid of merit and is
liable to be dismissed.
5.      The Court below by the order impugned had allowed the application
and appointed an Advocate Commissioner and directed for entrustment of a
warrant to him to execute the warrant in respect of the following works.
1.      The Commissioner is directed not to take photographs or video graph the
property;
2.      The commissioner is directed t draw rough sketch showing the existence of
the
schedule C property;
3.      The commissioner is directed not to give his/her opinion;
4.      The commissioner is at liberty to take the assistance of the surveyor if
necessary;
5.      The commissioner fee is fixed at Rs.3,000/- payable by the petitioner
directly.


Aggrieved of the said orders, the plaintiff is before this Court.
6.      The learned counsel for the plaintiff would contend that the plaintiff
had earlier filed two interlocutory applications in IA.Nos.917 and 918 of
2013 for grant of a temporary injunction in respect of C schedule property;
and for a temporary injunction restraining the defendants from alienating the
suit schedule properties to third parties; and the IA.No.918 of 2013 was
allowed on 27.01.2014;  however, the present application viz., IA.No.1104
of 2013 was filed in IA.No.918 of 2013, when it was pending; and as the
said IA.No.918 of 2013 was already disposed of, the present application,
which is an interlocutory application in the said IA is not maintainable and is
liable for dismissal as the main IA was already disposed of; the plaintiffs
only contention is that the mother of the parties, who is admittedly the owner
of a large extent of Ac.54.00 cents of land, has only carved out a private
road in the land adjacent to the land gifted to the plaintiff under a oral Hiba,
which was later reduced into writing;  the said fact is also acknowledged by
the revenue authorities; and no Commissioner can be appointed for
collection of any evidence; the existence or otherwise of a road can be
established by adducing evidence; to prove the existence of a road and to
disprove the same evidence can be adduced; and, hence, for the said purpose
a Commissioner cannot be appointed; and by the words carving out a road
as stated in the plaint, the plaintiff only intended to say that there was no
black top road or a kacha road, but, only a passage was provided to the
property gifted to the plaintiff; the order, which was passed without
application of mind by the trial Court, is erroneous and unsustainable.
7.      On the other hand, the learned counsel for the defendants while
supporting the impugned orders of the Court below inter alia contended that
the defendants filed written statements specifically contending that there is
no road as being claimed by the plaintiff in the plaint and that the C
schedule property is not a road and that there is no road in existence on land
and that appointment of a Commissioner to note down the physical features
of the property and to file a report after noting the features as to the
existence or otherwise of a road would not amount to collection of evidence
and that, therefore, the order impugned is sustainable both under facts and in
law.
8.      In reply, the learned counsel for the plaintiff would submit that since
both the IAs filed for injunction in IA.Nos.917 and 918 of 2013 are already
allowed for the purpose of maintenance of the road and as a Hiba along with
the copy of the property gifted showing the existence of a road, which is
carved out, and a surveyor report are also filed, no purpose would be served
by now appointing an advocate commissioner and that the report of the
commissioner, if any, filed is not going to advance the defence of the
defendants.
9.      The learned counsel for the defendants brought to the notice of the
Court, the fact that a Commissioner who was already appointed made a visit
and filed his report and that the plaintiff herein filed IA.No.1136 of 2014 for
discarding the said report and the said application was dismissed giving an
opportunity to the plaintiff to file objections to the report and that in the
circumstances, the revision petition is not maintainable.
10.     Before proceeding further, it is apt to note that the learned counsel for
the plaintiff placed reliance on a decision of this Court in Sagi Vijaya
Ramachandra Raju and others v. Koppisetti Satyanarayana and others
in support of the contention that a Commissioner cannot be appointed for
collection of evidence and also in support of the contention that the fact that
the Commissioner appointed by the Court had already filed the report will
not make the revision infructuous, as the report would be kept out of
consideration and will not be looked into by the trial Court, if the revision
filed by the plaintiff is allowed, and that, therefore, the revision petition
can
be entertained.
11.     On the other hand, the learned counsel for the defendants placed
reliance on the following two decisions.  (1) Badana Mutyalu and another
v. Palli Appalaraju  and (2) Jajula Koteshwar Rao v. Ravulapalli
Masthan Rao .
12.     I have gone through the precedents.  In Sagi Vijaya Ramachandra
Raju and others Badana Mutyalu (1 supra) cited by the learned counsel
for the plaintiff, the suit is one for perpetual injunction whereas in the case
on hand, the suit is for partition of A,B,D,E,F and G schedule properties,
besides injunction in respect of C schedule property, which is the property
in question and which is said to be a road carved out, and for recovery of
money.  In the said cited decision, the facts disclose that in that suit for
perpetual injunction a dispute was also about the identity of property.  In the
decision in Badana Mutyalu (2nd cited) the facts disclose that the parties are
neighbours and there is an allegation that property belonging to the
respondent is being interfered with by the petitioner; and, therefore, it was
observed that it is incumbent on the Court to decide where the disputed
portion is located and whether or not it forms part of the property being
claimed by the respondent.  In the decision in Jajula Koteshwar Rao (3
cited), the suit is one filed for declaration of right in the plaint schedule
property and consequential mandatory injunction for removal of a disputed
wall on the allegation of encroachment/occupation of the land/site belonging
to the respondent and his family in their absence from the village.
Ultimately, the decisions in the three cases turned on the facts of the cases.
There is no hard and fast rule or a settled possession of law that an advocate
commissioner cannot at all be appointed for any purpose in a suit for
perpetual injunction and it cannot be laid down as a rule of thumb that in no
suit for perpetual injunction, an advocate Commissioner can be appointed;
however, the law is well settled that a Commissioner cannot be appointed to
find out as to who amongst the parties is in possession of the property as it is
the function of the Court to decide the issue as to who amongst the parties is
in possession of the property and the said judicial function cannot be
delegated to an advocate commissioner.  Under law, in any suit in which the
Court deems local investigation is requisite or proper for the purpose of
elucidating any matter in dispute, the Court may issue a commission to an
advocate or any competent person and direct to make such investigation and
to report to the Court.
13.     Reverting to the facts of the case, it is to be noted that from the
submissions, the following facts emerge: One Akthari Begum who is
mother of the parties is the owner of Ac.54.00 guntas of land.  Some
property out of it was acquired.  She had gifted Ac.6.00 guntas to the
plaintiff under a oral Hiba is the claim of the plaintiff.  The defendants are
disputing the same and are inter alia pleading cancellation of the same. She
had also gifted similarly Ac.6.00 guntas, Ac.7.08 guntas and Ac.2.20 guntas
to the 4th, 5th and 6th defendants. Excluding the land which was acquired and
also the lands that are gifted, the suit is filed for partition of the remaining
extents of land i.e., ABDEF and G properties by inter alia stating that the
C schedule property is the portion carved out for road in that large extent
of property.  It is not in dispute that in the plaint it is averred that the
said
Begum has carved out a private road in the land left out after acquisition by
the Government situated in Sy.No.621, 622, 623 and 624 of Mankhal
village, Maheshwaram Mandal and the same has also been acknowledged by  
the revenue authorities for the use of herself and her legal heirs.  The
defendants are denying the existence of any such road on land and,
therefore, they had sought for the appointment of an advocate-Commissioner
to note down the physical features, particularly the existence of road, if any,
as C schedule property on land in the suit schedule properties.
14.     Coming first to the contention that the instant application is filed in
IA.No.918 of 2013 and that the said IA.918 of 2013 was already disposed of
in January 2014 and that, therefore, this instant IA is no longer maintainable,
what is to be noted is that it is fairly stated that after the disposal of the
said
IA.No.918 of 2013, an amendment of the instant petition was sought and, as
of now the defect, which is purely a technical defect, stands cured.
15.     Dealing next with the contentions that a Commissioner cannot be
appointed for gathering evidence and that the existence or otherwise of a
road, which is borne out by the Hiba and the surveyors report, can be
proved by adducing oral evidence by both the sides and that, therefore, the
commissioner cannot be appointed, what is to be noted is that the law is well
settled that for noting down physical features a Commissioner can be
appointed.  The existence or otherwise of a road, which is being described as
C schedule property, is a physical feature is not in dispute.  Therefore, this
contention has no substance.
16.     Dealing lastly with the contention that the report of the Commissioner
is not going to serve any purpose, be it noted that issuance of Commissions
is dealt with in Section 75 of the Code, which deals with Incidental
Proceedings; whereas the other interlocutory proceedings like grant of
temporary injunctions and appointment of receivers etcetera are dealt with in
Section 94 of the Code which deals with Supplemental Proceedings.
Supplemental proceedings are separate proceedings in a Original action, in
which the Court is called upon to exercise jurisdiction in aid of the judgment
in action. Incidental Orders are those, which follow as a matter of course
being necessary complements in the main order without which the matter
would be incomplete or ineffective. [Vide M A Mohamed Ali v. R
Ramadoss (AIR 1966 Madras 441)].  Thus, incidental orders are
complementary in nature and are intended to assist the Court in arriving at a
just decision in the lis unlike supplemental orders.  The request for
appointment of a commissioner for noting down the physical features of a
property, in the well considered view of this court, by no stretch of
imagination can be called as an attempt to gather evidence.  The court below
having noted that the claim of the plaintiff is that the entire property is
divided as A to G parts and that out of that A to G, C schedule property is a
road carved out and that the plaintiff also relies upon a plan to that effect
and
that in turn the defendants are contending that there is no road in existence
as claimed by the plaintiff, had eventually appointed a commissioner while
observing that there are no tenable objections in the counter and that no
prejudice would be caused if a commissioner is appointed.

17.     Having regard to the reasons and the legal position obtaining, this
court is satisfied that the order of the court below which is sufficiently well
reasoned and which is proper in the facts and circumstances of the case calls
for no interference.
18.     In the result, the Civil Revision Petition is dismissed with costs.  It is
needless to state that the trial court shall consider the probative value of the
Commissioners report at the appropriate time having regard to the facts and
the circumstances of the case, however, after giving an opportunity to both
the parties to file objections, if any, to the said report.  In view of the
desire
of the learned counsel, this Court deems it appropriate that a direction can be
given for expeditious disposal of the suit.  Accordingly the Court below is
directed to dispose of the suit as expeditiously as possible and preferably
within a period of three months from the date of the receipt of a copy of this
order.
     Miscellaneous petitions pending, if any, in this civil revision petition
shall stand closed.
__________________________  
M. SEETHARAMA MURTI, J    
Date: 22.02.2016

Order VII Rule 10 and 10A of C.P.C.- In the present case, the application has not been made under Order VII Rule 11 of CPC. The same is made under Order VII Rule 10 and 10A of C.P.C. which provides only in one contingency the return of plaint i.e., only on the Court coming to the conclusion that the suit is not initiated in the proper Court or the Court does not have either pecuniary or territorial jurisdiction. The same is clear on a conjoint reading of Order VII Rule 10 and Rule 10A (iii) of C.P.C. The learned I Additional District Judge, Nalgonda (FAC Judge, VIII Additional District Judge, Miryalaguda) had taken all these aspects into consideration and rightly refused to return the plaint. In the facts of the present case, the impugned order does not warrant any interference of this Court and as such this Civil Revision Petition is liable to be dismissed.

HONBLE SRI JUSTICE CHALLA KODANDA RAM          

CIVIL REVISION PETITION No. 5676 of 2015  

23-02-2016

Anireddy Amrutha Devi @ Amruthamma, W/o late A. Raghava Reddy, Aged about 72    
years, Occ: Hosuehold, R/o Mothinagar, barkatpura, Hyderabad Petitioner  

Anireddy VAsudha @ Vasudha Reddy, W/o Late Veera Reddy, Aged about 55 years,    
Occ: Household and three others.  Respondents...

Counsel for the Petitioner: Sri K. Mahipathi Rao

Counsel for the respondents 1&2: Sri B. Nalin Kumar

<Gist:

>Head Note:

?Cases referred:
  2013 (6) ALD 355 (DB)
2 AIR 2008 Supreme Court 2033


HONOURABLE SRI JUSTICE CHALLA KODANDA RAM            

CIVIL REVISION PETITION No.5676 OF 2015    

O R D E R:
      The order dated 19.11.2015 in I.A.No.880 of 2015 in
O.S.No.37 of 2015 passed by the learned I Additional District
Judge, Nalgonda (FAC Judge, VIII Additional District Judge,
Miryalaguda) rejecting the prayer of the petitioner-1st defendant,
filed under Order VII Rule 10 and 10A of CPC read with Section
151 C.P.C. seeking returning of the plaint, is challenged before this
Court.
      The respondents 1 and 2 are the plaintiffs filed a suit against
the petitioner and respondents 3 and 4 herein, who are defendants
1 to 3 respectively in O.S.No.37 of 2015 on the file of VIII
Additional District Judge at Miryalaguda.
      The averments made in the affidavit filed in support of the
I.A.No.880 of 2015 in brief are that the suit is filed by the 1st and
2nd respondents-plaintiffs seeking grant of permanent injunction
restraining the petitioner-1st defendant from alienating or
conveying or delivering possession or otherwise creating rights in
favour of the 3rd parties with respect to the suit schedule property
without first offering the same to the plaintiffs.  Petitioner filed her
written statement.  In the written statement a specific plea was
taken that the suit relief of the nature which has been prayed for is
misconceived and not maintainable.   Along with suit petitioners
filed I.A.No.880 of 2015 praying for returning of the plaint to the
plaintiffs under Order VII Rule 10 and 10A read with Section 151
of C.P.C.  The averments in the affidavit filed along with I.A. are
that the suit is not maintainable in view of the relief claimed by the
plaintiffs seeking perpetual injunction restraining the petitioner-1st
defendant from alienating his property, which is clearly
demarcated with specific boundaries in the Award passed by the
Lok Adalath.  The maintainability or otherwise of the suit of the
nature is considered and settled by a Division Bench of this Court
in Shankar Hills Plot Purchasers Welfare Association,
Hyderabad and another Vs Ch. Anantha Reddy and others  
wherein this Court directed returning of the plaint.
      The learned Additional District Judge, after considering the
pleadings and respective submissions did not accept the plea of
the petitioner and dismissed the I.A.
      Appearing on behalf of the petitioner-1st defendant Sri
Vedula Venkata Ramana, learned Senior Counsel, by drawing
attention to the main relief which has been claimed in the suit and
by reference to the Division Bench judgment in Shankar Hills Plot
Purchasers Welfare Association case (1 supra), would submit
that the relief of the nature which has been claimed is not capable
of being granted by the Court below and as such the Court ought
to have returned the plaint.  Learned senior counsel fairly submits
that though in strict sense under Order VII Rule 10 or 10A of
C.P.C. does not provide for return of the plaint, Division Bench had
considered moulding the relief.  He would draw particular attention
to the paras 12 and 13 of the said judgment wherein the Division
Bench of this Court while refusing to grant relief of rejection of the
plaint issued certain directions to return of the plaint to make
necessary amendments in the plaint.  He would submit that
particularly when the suit simpliciter is filed seeking mandatory
injunction without seeking declaration, similar orders may be
passed in the present case as well.
      Learned counsel Sri B. Nalin Kumar, appearing on behalf of
the Caveators-plaintiffs supports the order of the Court below and
further placed reliance on the judgment of the Supreme Court in
Anathula Sudhakar Vs. P. Buchi Reddy (Dead) by L.Rs., and
Others  wherein it was held that in a suit for declaration there is
no requirement of praying for declaration as there is already pre-
existing right in favour of the plaintiff.
      For settling the issue in controversy we may notice the relief
claimed in the suit which is as under:
Honble Court may be pleased to pass a judgment and
decree in favour of the plaintiffs and against the defendants:
(a)     Granting a permanent injunction restraining the 1st
defendant from alienating or conveying or delivering
possession or otherwise creating rights in favour of third
parties including the 2nd defendant pursuant to the public
notice dated 07.10.2015 published in Eenadu Telugu daily
news paper any part of suit schedule property without first
offering the same for purchase by the plaintiffs and the
defendant No.3 at market rate, and contrary to the terms,
and in excess of the property allotted to the 1st defendant in
the Award dated 18.06.2009 in Lok Adalat Case
No.497/2009 in O.S.No.20/2009 on the file of the Honble
Principal District Judge, Nalgonda and without demarcation
of the share of the plaintiffs, defendant No.3 and defendant
No.1 herein as also common amenities in the suit schedule
property.
      The claim of the plaintiffs stems from the Lok Adalat Award
dated 18.06.2009.  In other words, the right of the plaintiff in the
suit schedule property is not in dispute.  The parties to the suit in
O.S.No.20 of 2009 on the file of learned Principal District Judge,
Nalgonda, are admittedly interrelated and the owners of the suit
schedule property.  Originally the suit schedule property belonging
to one Sri Late A. Raghava Reddy who inherited the same from his
father.  The 1st plaintiff in O.S.No.37 of 2015 is the wife and the 2nd
and 3rd defendants are the sons of late Veera Reddy, who is the son
of late A. Raghava Reddy.  Late A. Raghava Reddy was father-in-
law of 1st plaintiff and paternal grandfather of the plaintiff No.2
and defendant No.3 in O.S.No.37 of 2015.  Defendant No.1 is the
second wife of late A. Raghava Reddy.  During the life time of late
A. Raghava Reddy, he executed a Will dated 15.07.1998 and
settled the properties in favour of the 1st defendant and her step
son late A. Veera Reddy.  As the disputes arose between the 1st
defendant and her step son A. Veera Reddy and step daughters,
O.S.No.20 of 2009 was filed on the file of Principal District Judge
at Nalgonda for partition and separate possession of the properties.
Thereafter, the parties arrived at a compromise through mediation
and the compromise was formalized through Lok Adalath Award
dated 18.06.2009.  In terms of the Lok Adalath settlement the
rights of the respective parties and their shares were determined,
but there was no physical demarcation made by metes and
bounds.  It is the contention of the plaintiffs that the defendants,
without there being a clear demarcation of the suit schedule
properties, are trying to alienate more extent of property than what
was otherwise entitled to and the same cannot be done without
there being clear demarcation.  Hence the suit is maintainable
injecting the defendants from proceedings with the proposed
alienation.  The claiming of such relief is maintainable.  If at all 1st
defendant intends to alienate the property they are the one who
has to seek demarcation of the property by metes and bounds in
terms of the Lok Adalat Award and thereafter such demarcated
portion which falls to their share can be dealt in the manner as
they may please.  Inasmuch as, the plaintiff at this stage are not
interested in alienating the property and they have a right to enjoy
the same and in terms of the Award they are entitled to seek the
relief as claimed in the suit.
      Heard the learned counsel appearing on behalf of the parties.
Perused the record.  The judgment of the Division Bench referred
to by the learned Senior Counsel has no application in the case on
hand as in that case the plaintiffs therein never had any right over
the property and as such the relief of the nature claimed was held
to be not maintainable.  The same is clear from a reading of para
11 of the said judgment;
11. However, we find force in the contention of the
respondents that there are several defects in the suit.  If they
are brought to the notice of the trial Court, it can be a case
for return of the plaint, than for rejection thereof.  For
instance, whenever the relief of perpetual injunction is
claimed in the suit, it must be with reference to a specific
item of property.  Except that the plaintiffs have furnished
the numbers to certain plots, they did not indicate the
particulars.  The second aspect is that it was not even
pleaded that the 1st plaintiff purchased the land; divided the
same into plots, and allotted to its members.  The
Association came into existence, after the so-called
purchases.  Therefore, the ownership of the plots, if at all, is
with the respective purchasers.  The mere fact that the
purchasers formed themselves into an association cannot be
a ground to claim the relief of perpetual injunction, for and
on behalf of such persons.  Add to that, the individual
purchaser must feel the grievance, in relation to his plot.
The grievance in this regard cannot be general or common.
      Apart from that the Order VII Rule 11 of C.P.C. provides for
rejection of a plaint on certain grounds.  In the present case, the
application has not been made under Order VII Rule 11 of CPC.
The same is made under Order VII Rule 10 and 10A of C.P.C. 
which provides only in one contingency the return of plaint i.e.,
only on the Court coming to the conclusion that the suit is not
initiated in the proper Court or the Court does not have either
pecuniary or territorial jurisdiction.  The same is clear on a
conjoint reading of Order VII Rule 10 and Rule 10A (iii) of C.P.C.
The learned I Additional District Judge, Nalgonda (FAC Judge, VIII
Additional District Judge, Miryalaguda) had taken all these aspects
into consideration and rightly refused to return the plaint.  In the
facts of the present case, the impugned order does not warrant any
interference of this Court and as such this Civil Revision Petition is
liable to be dismissed.
     Accordingly, the Civil Revision Petition is dismissed. There
shall be no order as to costs.  Miscellaneous petitions, if any,
pending shall also stand closed.
-----------------------------------
CHALLA KODANDA RAM, J      
Dated:23.02.2016

Order VI Rule 17 C.P.C., seeking amendment of the description of the plaint schedule property by way of insertion of Survey Number and Patta Number. The learned Judge allowed the said amendment by way of the order impugned in the instant revision.=Section 26 of the Specific Relief Act, 1963, we do not find any difficulty to hold that in a suit for specific performance of contract for sale, it is permissible to amend a part of the description of the suit property not only in the plaint but also in the agreement Section 26 clearly says as to when a contract or other instrument can be rectified and provides that when through fraud or a mutual mistake of the parties, the agreement in writing does not express their real intention, it is open to the parties to apply for amendment of the instrument. It provides that when such a situation arises, then- (a) either party or his representative in interest may institute a suit to have the instrument rectified, or (b) the plaintiff may, in any suit in which any right arising under the instrument is in issue, claim in his pleading that the instrument be rectified.- the amendment was sought only with regard to the description of the schedule of the property in the plaint, but not the description of the property in the suit agreement of sale in the light of the provisions of Section 26 of the Specific Relief Act. It is also to be noted that even for maintaining such application for amendment of description of property in the schedule of agreement, the contingencies as stipulated under Section 26 of the Act shall exist. In the instant case, the above circumstances and the contingencies are conspicuously absent. Therefore, the Court below grossly erred in applying the principles laid down by the Honble Apex Court in the judgment referred to above. Therefore, this Court has absolutely no scintilla of hesitation to hold that the order under challenge cannot be sustained in the eye of law.

THE HONBLE SRI JUSTICE A.V.SESHA SAI      

CIVIL REVISION PETITION No. 3210 of 2011  

14-03-2016

Molli Eswara Rao, S/o. Nookalayya,Aged 39 years, Hindu, Cultivation,r/o.
Jaithavaram (V) in Chidikada (M), Visakhapatnam District...... Petitioner

Kurcha Chandra Rao, S/o. Appalanaidu,  Aged 38 years, Hindu, Cultivation and
Employee, R/o. Jaithavaram (V), Chidikada (M), Visakhapatnam District. .....
Respondent

Counsel for petitioner  :Sri G. Rama Gopal

Counsel for Respondent  :N.A.

<GIST   :

>HEAD NOTE :  

? Cases referred :
1.      AIR 2008 SUPREME COURT 1960      

THE HONBLE SRI JUSTICE A.V.SESHA SAI      

CIVIL REVISION PETITION No. 3210 of 2011  

ORDER:

      This revision filed by the defendant in O.S.No.35 of 2007 on
the file of the Court of Principal Junior Civil Judge, Chodavaram,
challenges the order dated 13.07.2011, allowing I.A.No.273 of 2011
in O.S.No.35 of 2007 filed by the plaintiff/respondent herein under
the provisions of Order VI Rule 17 of the Code of Civil Procedure (for
short C.P.C).
      Heard Sri G. Rama Gopal, learned counsel for the petitioner.
Despite service of notice, none appears for the respondent.
      The respondent herein instituted O.S.No.35 of 2007 for specific
performance of an agreement of sale alleged to have been executed
by the petitioner.  In the said suit, the respondent filed the present
Interlocutory Application under Order VI Rule 17 C.P.C., seeking
amendment of the description of the plaint schedule property by way
of insertion of Survey Number and Patta Number.  The learned Judge
allowed the said amendment by way of the order impugned in the
instant revision.
      It is contended by the learned counsel for the petitioner that
the order impugned is erroneous, contrary to law and opposed to the
very spirit and object of the provisions of Order VI Rule 17 C.P.C;
that in view of the prohibition contained under proviso to Order VI
Rule 17 C.P.C., the present application is not maintainable after
commencement of trial in the absence of due diligence on the part of
the plaintiff; the judgment of the Honble Apex Court in the case of
Puran Ram v. Bhaguram  is not applicable in the facts and
circumstances of the case.
      In the above background, now the issue that emanates for
consideration of this Court is:
      Whether the order under challenge, in the facts and
circumstances of the case, is sustainable and tenable and
whether the same is in accordance with the provisions of
Order VI Rule 17 C.P.C?
      Admittedly, the respondent herein filed the present application
after commencement of trial and according to proviso to Order VI
Rule 17 C.P.C., it is incumbent and obligatory on the part of the
person applying to show that despite exercising due diligence, such
application could not be filed before commencement of trial. In the
affidavit filed in support of the application, this Court does not find
any such foundation laid by the respondent in the said direction and
in the absence of compliance of such a statutory mandate, the
application filed by the respondent cannot be maintained.
      Another significant aspect, which needs to be noted, is that the
Court below for holding in favour of the plaintiff/respondent herein,
placed reliance on the judgment of the Honble Apex Court in the
case of Puran Ram v. Bhaguram.
      According to the learned counsel for the petitioner, the said
judgment of the Honble Apex Court is not applicable to the facts and
circumstances of the instant case.  In the said pronouncement, the
Honble Apex Court while dealing with the provisions of Section 26 of
the Specific Relief Act, 1963 (for short the Act) held in favour of
maintainability of such applications for amendment of schedule.  In
this context, it may be apt to reproduce the relevant paragraphs of
the said judgment, which read thus:
10. Keeping the arguments advanced by the learned
counsel for the parties in mind, let us now consider
whether the prayer for amendment of the plaint and the
agreement, in the facts and circumstances of the case,
could be allowed or not. So far as the prayer for correcting
or rectifying the agreement in respect of a part of the
description of the suit property is concerned, it would be
appropriate to look into the provisions made in Section 26
of the Specific Relief Act, 1963. Chapter 3 of the Specific
Relief Act, 1963 specifically deals with rectification of
instruments. Section 26 provides as to when an instrument
may be rectified and reads as under: -
"26. When instrument may be rectified. (1) When, through
fraud or a mutual mistake of the parties, a contract or
other instrument in writing (not being the articles of
association of a company to which the Companies Act,
1956, applies) does not express their real intention, then-
(a) either party or his representative in interest may
institute a suit to have the instrument rectified; or
(b) the plaintiff may, in any suit in which any right arising
under the instrument is in issue, claim in his pleading that
the instrument be rectified; or
(c) a defendant in any such suit as is referred to in clause
(b), may, in addition to any other defence open to him, ask
for rectification of the instrument.
(2) If, in any suit in which a contract or other instrument is
sought to be rectified under sub-section (1), the court finds
that the instrument, through fraud or mistake, does not
express the real intention of the parties, the court may, in
its discretion, direct rectification of the instrument so as to
express that intention, so far as this can be done without
prejudice to rights acquired by third persons in good faith
and for value.
(3) A contract in writing may first be rectified, and then if
the party claiming rectification has so prayed in his
pleading and the court thinks fit, may be specifically
enforced.
(4) No relief for the rectification of an instrument shall be
granted to any party under this section unless it has been
specifically claimed;
Provided that where a party has not claimed any such relief
in his pleading, the court shall, at any stage of the
proceeding, allow him to amend the pleading on such terms
as may be just for including such claim."
11. After closely examining the provisions made under
Section 26 of the Specific Relief Act, 1963, we do not find
any difficulty to hold that in a suit for specific performance
of contract for sale, it is permissible to amend a part of the
description of the suit property not only in the plaint but
also in the agreement. Section 26 clearly says as to when a
contract or other instrument can be rectified and provides
that when through fraud or a mutual mistake of the
parties, the agreement in writing does not express their real
intention, it is open to the parties to apply for amendment
of the instrument. It provides that when such a situation
arises, then-
(a) either party or his representative in interest may
institute a suit to have the instrument rectified, or
(b) the plaintiff may, in any suit in which any right arising
under the instrument is in issue, claim in his pleading that
the instrument be rectified.
12. A reading of these two conditions made under Section
26 of the Act would amply show that either party may
institute a suit to have the instrument rectified or a party
who has already filed a suit in which any right arising
under the instrument is in issue may claim in his pleading
that the instrument be rectified. So far as the facts of the
present case are concerned, it cannot be doubted that the
main issue in the suit for specific performance of the
contract for sale was relating to the agreement for sale in
which a part of the description of the suit property was
wrongly given by mutual mistake and therefore, needed to
be amended. Section 26, of course, says that it would be
open to a party to institute a suit for correcting the
description of the suit property, but the proviso to Section
26 clearly permits that where a party has not claimed any
such relief in his pleading, the court shall at any stage of
the proceeding allow him to amend the plaint on such
terms as may be just for including such claim. From a plain
reading of the provisions under Section 26 of the Act, there
is no reason why the prayer for amendment of the
agreement to correct a part of the description of the suit
property from Chak No. 3 SSM to Chak No. 3 SLM, later on
converted to Chak No. 3 SWM could not be granted. In our
view, it is only a correction or rectification of a part of the
description of the suit property, which cannot involve either
the question of limitation or the change of nature of suit. In
our view, the suit shall remain a suit for specific
performance of the contract for sale and a separate
independent suit is not needed to be filed when the proviso
to Section 26 itself clearly permits either party to correct or
rectify the description of the suit property not only in the
plaint but also in the agreement itself. So far as the
question of limitation is concerned, the agreement was
entered into on 12th of April, 1991 and the suit, admittedly,
was filed within the period of limitation. Therefore, even if
the amendment of plaint or agreement is allowed, that will
relate back to the filing of the suit which was filed within
the period of limitation. So far as the submission of the
learned counsel for the respondent that the rectification of
the agreement cannot be permitted is concerned, we are of
the view that Section 26(4) of the Act only says that no relief
for rectification of instrument shall be granted unless it is
specifically claimed. However, proviso to Section 26, as
noted herein earlier, makes it clear that when such relief
has not been claimed specifically, the court shall at any
stage of the proceeding allow such party to amend the
pleading as may be thought fit and proper to include such
claim. Therefore, we are not in agreement with the learned
counsel for the respondent that section 26 would stand in
the way of allowing the application for amendment of the
agreement. The views expressed by us find support in a
decision of the Madras High Court in Raipur Manufacturing
Co., Ltd Vs. Joolaganti Venkatasubba RaoVeerasamy & Co  
[AIR 1921 Mad 664], wherein it was held that where in the
course of a suit for damages for breach of contract, the
plaintiff contends that there is a clerical error in the
document embodying the contract, it is not always
necessary that a separate suit should have been brought
for rectification of the document and it is open to the court
in a proper case to allow the plaintiff to amend the plaint
and ask for the necessary rectification. As noted herein
earlier, the learned counsel for the respondent contended
before us that the appellant could not get specific
performance of the contract for sale unless he sued for
rectification of the agreement for sale. We are unable to
accept this contention of the learned counsel for the
respondent for the simple reason that in this case, by filing
the application for amendment in the suit for specific
performance of the contract for sale, the appellant had
sought the rectification of the agreement also. It is sufficient
to observe that it was not necessary for the appellant to file
a separate suit for that purpose as contended by the
learned counsel for the respondent. It is open to the
appellant to claim the relief of rectification of the
instrument in the instant suit. The amendment, in our
view, in the agreement was a formal one and there was no
reason why such amendment could not be allowed.
13. The other ground on which the High Court has refused
to permit the appellant to amend the plaint is that if the
amendment is allowed, the suit shall be converted into a
suit for declaration. We are unable to accept this view of the
High Court. In our view, the suit is a suit for specific
performance of the contract for sale simplicitor and only a
part of the description of the suit property in the agreement
as well as in the plaint was sought to be corrected or
amended by the appellant by filing the application for
amendment of the plaint. If we are permitted to look into
the description of the suit property from the original plaint
as well as from the application for amendment, it would be
clear that the description of the suit property has been kept
intact excepting that instead of Chak No. 3 SSM, Chak No.
3 SLM, later on converted to Chak No. 3 SWM, has been
sought to be replaced. Therefore, it is difficult to conceive
that by such amendment, that is, instead of Chak No.3
SSM, if Chak No.3 SLM, later on converted to SWM is
substituted, either the description of the suit property or
the nature of the suit would change. This is only a change
in a part of the description of the suit property, which was
wrongly described by mutual mistake. Therefore, in our
view, this change in a part of the description of the suit
property in the plaint cannot convert the suit for specific
performance of the contract to a suit for declaration. In any
view of the matter, the relief claimed in the suit remained
the same i.e. a decree for specific performance of the
contract for sale and by amendment, no declaration has
been sought for in respect of the instrument.
      It is to be noted that in the instant case, the amendment was
sought only with regard to the description of the schedule of the
property in the plaint, but not the description of the property in the
suit agreement of sale in the light of the provisions of Section 26 of
the Specific Relief Act.  It is also to be noted that even for
maintaining such application for amendment of description of
property in the schedule of agreement, the contingencies as
stipulated under Section 26 of the Act shall exist.  In the instant
case, the above circumstances and the contingencies are 
conspicuously absent.  Therefore, the Court below grossly erred in
applying the principles laid down by the Honble Apex Court in the
judgment referred to above.  Therefore, this Court has absolutely no
scintilla of hesitation to hold that the order under challenge cannot
be sustained in the eye of law.
      For the aforesaid reasons, the Civil Revision Petition is allowed,
setting aside the order dated 13.07.2011 passed by the Principal
Junior Civil Judge, Chodavaram, in I.A.No.273 of 2011 in O.S.No.35
of 2007.  Consequently,         I.A.No.273 of 2011 is dismissed. As a sequel,
the miscellaneous petitions, if any, shall stand closed. There shall be
no order as to costs.
_________________  
A.V.SESHA SAI, J
Date: 14.03.2016

Wednesday, April 20, 2016

business manager - termination of service of private employee - whether hit by sec.23 of Contract and entitled for damages ?= I) Whether the civil suit lies and the relief granted by the trial Court in awarding damages including on the quantum for the termination while holding the termination is hit by Section 23 of the Contract Act, is unsustainable ? = the declaratory relief in service matters are maintainable.= the age of the plaintiff as on the date of termination notice under Ex.A.4 was about 45 years in claiming there could be at least 12 years of service remained and in saying as on the date of termination he was drawing undisputedly Rs.45,430/- per month and therefrom even estimated for 4 years of the salary payable at that rate it can be arrived of Rs.20lakhs. In fact, as pointed out by the appellant neither in the plaint nor in the plaintiffs evidence much less in the arguments before the trial Court, it was not raised much less pleaded of plaintiff could not get any alternative employment and remained idle totally with no any earnings or avocation and became burden to somebody with any basis for it but for saying the plaintiff could not secure an equivalent employment. Thus, it is not even a case of specific plea of he could not be in some other avocation to get any means. Once that also requires consideration in arriving the quantum of damages, even from possessing earning capacity not in dispute, even 50% therein as capacity of getting alternative source of earning taken consideration, what the trial Court granted of Rs.20lakhs requires to reduce to Rs.10lakhs and but for that there is nothing to interfere with the trial Courts decree and judgment by sitting against.

HONOURABLE Dr. JUSTICE B.SIVA SANKARA RAO          

C.C.C.A.No.177 of 2004

29-01-2016

M/s. Zee Tele-Films Limited  Rep. by its Assistant Vice President, Legal,
Continental Building and others...Appellants/Defendant Nos.1 and 3

Syed Inam Ur Rahaman.Respondent/plaintiff.
                          Indru Bai Chandani,
                          Director (H.R.) and another.Respondents/Defendants 3
and 4.
                                                                       
Counsel for the appellant:Sri Vedula Venkataramana

Counsel for 1st respondent: Sri A. Tulsi Raj Gokul
                             Counsel for 2nd and 3rd respondents : None

<GIST :  ---

>HEAD NOTE :  ---

? Cases referred:        :
1. AIR 1986 SC  1571
2. AIR 1991 SC  101
3. 1974 (1) WLR 1308
4. (2005)6  SCC 657
5. AIR 1977 SC  745
6.  AIR 1976 SC 888

HONOURABLE Dr. JUSTICE B.SIVA SANKARA RAO          

C.C.C.A.No.177 OF 2004  

JUDGMENT:  
        The sole plaintiff who is the 1st respondent to the appeal filed the
suit O.S.No.47 of 2002 on the file of the XI Additional Chief Judge (Fast
Track Court) City Civil Court, Hyderabad against four defendants of
whom the appellants M/s Zee Tele-films Limited, Siti Cable Network
Private Limited are the defendants 1 and 3 and 2nd defendant is one
Indru Bai Chandani, Director(H.R.) of 1st defendant and 4th defendant is
the Director of 3rd defendant. The 3rd and 4th defendants are shown as
proforma parties and they are the respondents 2 and 3 in the appeal.
The suit was filed seeking the reliefs to declare the action of the
defendants contained in the letter dated 06.09.2001 terminating the
services of the plaintiff invoking Clause 16 of the appointment order
dated 05.09.95, is wrongful and illegal as opposed to public policy and
also for damages against the  defendants to a sum of Rs.20lakhs with
interest at 24%p.a. from the date of the suit till the date of realization
as a consequential relief to the main prayer that the termination of
services of the plaintiff was wrongful and to grant such other reliefs.
        2. The averments in brief in the plaint are that the plaintiff by
name Syed Inam Ur Rahaman was appointed as Business Manager vide    
Ex.A.1 letter dated 05.09.1995 issued by the 3rd defendant-Siti Cable
Network Private Limited now represented by the 4th defendant as its
resident Manager posted under said 3rd defendant within the State of
A.P. and it is covered by the contractual terms of appointment with 17
clauses. He worked later as directed under the 1st defendant in Bombay
w.e.f. 01.04.2000 covered by Ex.A.2 till transferred back to Hyderabad
under Ex.A.3,dated 29.11.2000 while he was so working, not even for
any allegations against his performance much less as a measure of
disciplinary action, while appreciating his performance as above
satisfying with positive remark, however, claimed terminated by
invoking clause 16 of the contract of employment with three months
notice of termination from the alleged option both the employer and
employee got to do so.
        3. The suit claim was opposed by the defendants by filing written
statement of D.1 adopted by the D.2 and D.3, leave about the D.4 did
not file any separate written statement much less adopted.  It is averred
that of D.3-Siti Cable Network having its registered office at New Delhi is
a subsidiary of D.1-Zee Tele films Limited which is engaging of Cable
Network operations,  and distribution of films through cable and satellite
channel and D.1 and D.3 are not one and the same entity as alleged by
the plaintiff but are independent entities and they are justified in
serving the termination notice under Ex.A.4 in view of the closure of the
UTN channel w.e.f. July, 2001 for not able to generate work to continue
and by invoking clause 16 which includes with three months notice of
termination and sought for dismissal of the suit saying plaintiff is not
entitled to the relief of declaration much less the other relief of
damages with interest.
       4.  The trial Court therefrom having formulated and settled as many
as 8 issues of which issue No.6 is as to the entitlement of the relief of
declaration and consequential relief of damages, besides issue No.5 and
7 are on maintainability of the suit reliefs and existence of cause of
action or not and issue No.3 besides 1 and 2 as consequential to it of the
appointment and authority to terminate respectively for D.3 by D.1 and
having answered the two issues mainly placing reliance upon the
expressions of the Apex Court in Central Inland Water Transport
Corporation Limited Vs. Brojonath  two Judge Bench, that was referred
in the subsequent Constitution Bench expression in Delhi Transport
Corporation Vs. D.T.C. Mazdoor Congress  and by quoting the
expressions from Delhi Transport Corporation supra which relied upon
the observations of Lord Diplock in A Schroeder Music publishing
Company Limited  Vs. Macaulay (formerly instore)  and the
observations of Justice Madon which includes reference as to distress,
circumstances and conditions of one prevails upon the other in a
dominating position can be construed irrespective of there is consensus
ad idem as opposed to public policy dragnet u/sec.23 of the Contract
Act to grant the relief and therefrom concluded of the plaintiff entitles
to the damages as claimed in the suit by estimation of Rs.20lakhs with
interest thereon from date of suit at 6% p.a. till realization.
        5. The defendants 1 and 3 as referred supra maintained the
present appeal impugning said findings and conclusions arrived by the
trial Court with contentions in the appeal that once clause 16 is a
private contractual obligation with consensus ad idem enables not only
the employer if at all but also the employee to leave the entity if he
chooses when contemplated with three months notice and the same is  
neither arbitrary nor unreasonable nor inequitable much less opposed to
public policy and there is nothing to say the same is hit by Section 23 of
the Contract Act, apart from no cause of action to maintain civil suit for
its maintainability, much less to grant the discretionary relief of
declaration of the said termination is hit by Section 23 of the Contract
Act or to award any damages and the damages arrived are also 
unsustainable and baseless with no reason or rationale and thereby
sought for setting aside the trial Courts decree and judgment supra and
by dismissing the suit claim.
      6. The learned counsel for the appellants /defendants 1 and 3 in
support of the appeal contention placed reliance on the subsequent
expression of the Apex Court (two Judge Bench) in Binny Ltd. Vs.
V.Sadasivan  where particularly at paras-25,26, 29 to 33 observed that
the matters are prone to writ jurisdiction only when there is any
element of public sector contract of employment and not for any private
bodies in saying the principles of natural justice and violation of the
Section 23 of the Contract Act and Article 14 of the Constitution of India
with reference to the respective rules, cannot be applied to the private
bodies and ultimately observed in deciding the issue is not prone to a
writ jurisdiction of the private employee impugning the termination but
for to invoke any civil remedy or to approach other fora like labour
Court.  It is the submission of the learned counsel for the appellant
therefrom that the trial Court went wrong in placing reliance on the two
expressions of the Apex Court in Central Inland and Delhi Transport
Corporation supra which are in respect of either public employee or in a
civil suit in relation to a college formed as a society for termination of
the employee and not in private sector and not within the meaning of
State for writ jurisdiction and those decisions have no applications to
the present facts.
         7. Whereas, it is the contention of the learned counsel for the 1st
respondent/plaintiff by supporting the trial Courts judgment in saying
once the trial Court arrived in its conclusions within the discretionary
exercise of declaration from maintainability of the civil suit within the
meaning of Section 42 of the Specific Relief Act if not even otherwise
under Section 9 of C.P.C. as a suit of civil nature and so far as that
discretionary exercise of the trial Court concerned, there are limitations
particularly in service matters on the appellate authorities to interfere
merely because some other view is possible, unless it comes to the
conclusion on wrongful exercise of discretion, by relying upon in Mysore
State Road Transport Corporation Vs. Mirza Khasim Ali Beig  at para 18
and also the other expressions in support of the conclusions arrived by
the trial Court from Central Inland and Delhi Transport Corporation
supra and from the expression of the Apex Court in Executive
Committee of Vaish Degree college, Shamli  Vs. Laxmi Narain  (three
judge Bench) in relation to private employee though it prohibits
reinstatement under the Section 14(b) of the Specific Relief Act,
damages can be awarded for wrongful termination of service.
      8. Heard as referred supra at length and perused the material on
record.
      9. Now the points for consideration to decide the appeal are:
I) Whether the civil suit lies and the relief granted by the
trial Court in awarding damages including on the quantum
for the termination while holding the termination is hit by
Section 23 of the Contract Act, is unsustainable and it
requires any interference by this Court and if so, to what
extent this Court while sitting in appeal can interfere?
II) To what relief?
Point No.I:
      10. The facts not in dispute are that the plaintiff was appointed as a
business manager in the 3rd defendant entity-Siti Cable Network Private
Limited as per Ex.A.1 letter dated 05.09.1995 and while so working was
terminated with three months notice invoking clause 16 of the
appointment order under Ex.A.1 by Ex.A.4 by the 1st defendant. It is one
of the contentions therefrom that is also answered by the trial Court in
saying once it is the contest of the defendants in the written statement
of D.1 and D.3 are separate entities D.3 having been appointed if at all
terminate is only by D.3, and not by D.1 and that is enough to say
therefrom of termination is not pursuant even to the private contract
much less to invoke clause 16 of the contract and thus the termination is
not legal; apart from same also opposed to the public policy even
governed by the contractual terms. There is substance to the conclusion,
though not in so many specific words by the trial Court.
        11.  Coming to the other aspects covered by rival contentions, the
two expressions that is of Vaish Degree college(three Judge Bench)  and
Mysore State Road Transport Corporation(two Judge Bench) supra clearly
speak and spelt out the declaratory relief in service matters are
maintainable. No doubt specific relief Act provisions are not exhaustive,
however, that does not mean even a suit of civil nature otherwise not
falling within the scope of Section 34 of the Specific Relief Act, wont lie
for not impliedly or expressly taking away the jurisdiction of a civil
Court. It is not a contention either from the written statement or
grounds of the appeal much less from any of the expressions referred
supra including of the appellant of Binny supra to say there is a bar to
civil suit. In Binny supra even in the case of private bodies, it is not
prone to writ jurisdiction much less to construe strictly the application
of   Article 14 of the Constitution of India or basic principles of natural
justice, but for otherwise to govern by contractual terms and to consider
the scope of Section 23 of the Contract Act therefrom, if at all, opposed
to public policy. Though it is one of the contentions of the learned
counsel for the appellants (D.1 and D.3 of the suit) of the contractual
terms when equitably speak, either of the employer and employee can
invoke when the employer invoked the clause 16 and terminated with
three months notice, there is nothing to say opposed to public policy
from the facts and circumstances showing employee did not leave the
job all through after appointment by working hard and still employer
terminated him and from that the employee could not secure a suitable
employment suffice to say, the employer is in a dominant position in
upperhand and exercised the discretion unjustly, that too, when the
employee has been sincerely working with clear track record with
unblemished service and not even terminated for any misconduct and
misdemeanor in the course of his employment and  that too the so called
entity issued the termination order is not even the entity that appointed
as can be seen by keeping Exs.A.1 and A.4 in juxtaposition, besides same
not even in dispute but for to say another sister concern to whom if at
all transferred  was not continuing there as was re-transferred back to
the entity appointed i.e. D.3, apart from if at all to terminate is only by
D.3,D.1 has no right undisputedly being an independently and separate
entity to give order of termination, same is illegal and also opposed to
public policy including contra to the terms of the clauses 1 to 16 of the
contract of employment under Ex.A.1.
       12. Therefore, so far as that finding of the trial Court concerned,
even trial Court referred to the expressions of Central Inland and Delhi
Transport Corporation supra which are in relation to public employment
there in Delhi Transport Corporation(particularly) the principle laid down
by Lord Diplock in A Schroeder Music publishing Company Limited
supra referred and relied which principle equally applies herein, so
also the observations in saying, not even under direct undue influence, it
can be implied if any of the dominance of employer that is prone to the
dragnet of Section 23 of the Contract as opposed to public policy from
such distress situation prevailed in the position of the employee when
compared to the upperhand of the employer to consider. Apart from it,
the two expressions in Mysore State Transport and Vaish Degree college
supra also speak of a claim by a private employee, civil law remedy is
sustainable but for to say declaratory relief is discretionary to exercise
sparingly. Here from the expressions once the discretion was exercised
by the trial Court, for this Court while sitting in appeal, there is nothing
to interfere for nothing to say any wrongful exercise of the discretion so
far as that finding of the trial Court of the termination is not legal and
opposed to Public policy under Section 23 of the Contract Act.  Hence
said finding of the trial Court requires confirmation even by considering
the expression of Binny supra placed reliance by the appellants from its
saying the private employment contracts which govern by contractual
obligations prove to dragnet of public policy principle.
     13. Next coming to the quantum of compensation arrived by the trial
Court of Rs.20lakhs with interest at 6% p.a. is excessive and
unsustainable concerned, no doubt in the plaint there is a calculation
more particularly at para-6 in saying the age of the plaintiff as on the
date of termination notice under Ex.A.4 was about 45 years in claiming
there could be at least 12 years of service remained and in saying as on
the date of termination he was drawing undisputedly Rs.45,430/- per
month and therefrom even estimated for 4 years of the salary payable at
that rate it can be arrived of Rs.20lakhs. In fact, as pointed out by the
appellant neither in the plaint nor in the plaintiffs evidence much less
in the arguments before the trial Court, it was not raised much less
pleaded of plaintiff could not get any alternative employment and
remained idle totally with no any earnings or avocation and became
burden to somebody with any basis for it but for saying the plaintiff
could not secure an equivalent employment. Thus, it is not even a case
of specific plea of he could not be in some other avocation to get any
means. Once that also requires consideration in arriving the quantum of
damages, even from possessing earning capacity not in dispute, even 50% 
therein as capacity of getting alternative source of earning taken
consideration, what the trial Court granted of Rs.20lakhs requires to
reduce to Rs.10lakhs and but for that there is nothing to interfere with
the trial Courts decree and judgment by sitting against.
Point No.II:
         14. Accordingly and in the result, the appeal is allowed in part by
confirming the order of termination as illegal and opposed to public
policy and consequently from entitlement to reasonable sum as damages
to be arrived by some guess work and from what the trial Court arrived
of  Rs.20,00,000/-(Rupees twenty lakhs only)  is excessive by reducing to
50% therein awarded towards damages Rs.10,00,000/-(Rupees ten lakhs  
only) by confirming the rate of interest awarded thereon. Needless to
say any amount so far paid or deposited can be withdrawn, if not
withdrawn and if not paid, or partly paid, to pay the whole or the
remaining balance within three months from today.  There shall be no
order as to costs of the appeal. Consequently, miscellaneous petitions, if
any pending in this appeal, shall stand closed.
________________________  
Dr. B. SIVA SANKARA RAO, J  
Date: 29.01.2016

In the instant case, the respondents proved their title by filing Ex.A-1, dated 21-03-1966. Both on account of the fact that the document is more than 30 years old and that there is no controversy as to its execution, the document was held proved. It is true that there is some discrepancy as to the extent that is mentioned in the document on the one hand, and the one found on the ground as measured by the Commissioner. However, the principle that the "boundaries mentioned in a document would prevail upon the extent and other particulars", needs to be kept in mind. It is not in dispute that the eastern boundary for the property under Ex.A-1 is a road leading to Mosque. It means that the property of the respondents abuts the road. The suit schedule property is a vacant land between the road on the one hand, and the house of the respondents on the other. The title of the respondents over the suit schedule property came to be proved. The appellant could have convinced the Courts below to dismiss the suit if only he established a superior title to the property. Though a plea was taken that a deed of settlement was executed in favour of the Mosque in respect of the suit schedule property, the document was not made part of record. Thereby, the presumption provided for under Section 114 (g) of the Evidence Act gets attracted.


THE HONOURABLE SRI JUSTICE L.NARASIMHA REDDY          
SECOND APPEAL No.218 OF 2011    

24-06-2011

Shaik Rahim S/o.Habibulla

Shaik Nasar Ahmed S/o. Late Ahmed and others

Counsel for the Appellant:Mr. M.V. Suresh

Counsel for the Respondents: None.

:ORDER:

        This Second Appeal is filed against the concurrent judgments rendered by
the Court of the Principal Junior Civil Judge, Markapur in O.S. No.355 of 1999
and the Court of the V Additional District Judge, Markapur in A.S. No.243 of
2009.  The appellant is the 2nd defendant in the suit.

        2. The suit was filed by Shaik Imambi and her husband against the
appellant herein and his father (1st defendant), who is no more, for the relief
of declaration of title in respect of suit schedule property, marked as: (a) B C
E D and (b) E F G J.  They have also prayed for the relief in the form of a
mandatory injunction for removal of gate fixed at point 'K' in the land.  It was
pleaded that they purchased the suit schedule property and other extent through
Sale Deed, dated 21-03-1966, marked as Ex.A-1 and constructed a house on part of
it.  The first part of the suit schedule property is a site between a public
road on the eastern side of the house of the plaintiffs and the second part of
it is a land between their house and the Mosque on the southern side.  According
to them, the appellant and his father have high-handedly erected a gate opening
into the suit site and are interfering with the enjoyment of the said property
by them.

        3.  On behalf of the appellant, written statement was filed.  It was
stated that the suit schedule property is part of the Mosque ever since 1989,
when the owner of the property had settled the same in favour of the Mosque.
The father of the appellant was said to be the Muttawalli of the Mosque.

4.  During the pendency of the suit, Shaik Imambi and her husband died and their
legal representatives i.e. respondents herein, were brought on record.  The
father of the appellant herein also died and the appellant was treated as his
legal heir.  Through judgment, dated
06-07-2009, the trial Court decreed the suit.  The appellant herein filed A.S.
No.243 of 2009.  The appeal was dismissed on 27-07-2010.  Hence, this second
appeal.

        5.  Sri M.V. Suresh, learned counsel for the appellant submits that the
trial Court categorically found that there is a vast difference between the
extent mentioned in Ex.A-1, on the one hand and the one found on the ground.  He
submits that though the deed of settlement was not filed, the evidence on record
clearly disclosed that the disputed site was being used as an access to the
Mosque.  Learned counsel further submits that since the suit schedule property
was being utilized as an access to the Mosque, the respondents were under
obligation to implead the Mosque as well as the Wakf Board in whom it vests and
that suit is bad for non-joinder of necessary parties.
     
6.  While the respondents laid their claim over the suit schedule property on
the basis of Ex.A-1, the appellant and his father pleaded a deed of settlement
of the year 1989 as the base for their rights.  The trial Court framed the
following issues for its consideration:
"01.   Whether the site shown as B,C,D,E,F in the Plaint Plan is
          not a part of the Registered sale deed dt.21.03.1966?

02. Whether the settlement deed dt.19.12.1989 said to have been a executed in
favour D. is true, valid and binding on the plaintiffs?

03. Whether the Plaintiffs are entitled to declare title in the sites shown as
E,G,J,F and B,C,D,E as shown in the Plaint Plan?

04. Whether the Plaintiffs are entitled to the relief of mandatory injunction in
respect of those sties as prayed for in the Plaint?

05. Whether the Plaintiffs are entitled to the relief of mandatory injunction as
prayed for in the Plaint?


        7.  On behalf of the respondents, PWs.1 and 2 were examined and Exs.A-1 to
A-6 were filed.  On behalf of the appellant DWs.1 and 2 were examined and no
documentary evidence was adduced.  The trial Court appointed an Advocate
Commissioner and the report and other related documents were taken on record as
Exs.C1 to C5.  The suit was decreed as prayed for.

        8.  The lower appellate Court framed only one point for its consideration,
viz., whether the appellant had established substantial grounds to set aside the
decree and ultimately dismissed the appeal.

        9.  The principal controversy in the suit revolves around the source of
title for the suit schedule property, as pleaded by the respondents.  In a suit
filed for declaration of title and consequential mandatory injunction, two
aspects become necessary.  First is that the plaintiff must independently prove
his title over the property without depending upon the weakness of the
defendant.  The second is that even if the plaintiff has proved his title, the
defendant can successfully resist the suit in case, he proves a title, which is
superior to the one pleaded and proved by the plaintiff.  Many a time both these
aspects are dealt with together and a finding is recorded.  In the instant case,
the respondents proved their title by filing Ex.A-1, dated 21-03-1966.  Both on
account of the fact that the document is more than 30 years old and that there
is no controversy as to its execution, the document was held proved.
     
10.  It is true that there is some discrepancy as to the extent that is
mentioned in the document on the one hand, and the one found on the ground as 
measured by the Commissioner.  However, the principle that the "boundaries
mentioned in a document would prevail upon the extent and other particulars",
needs to be kept in mind.  It is not in dispute that the eastern boundary for
the property under Ex.A-1 is a road leading to Mosque.  It means that the
property of the respondents abuts the road.  The suit schedule property is a
vacant land between the road on the one hand, and the house of the respondents
on the other.  The title of the respondents over the suit schedule property came
to be proved.  The appellant could have convinced the Courts below to dismiss
the suit if only he established a superior title to the property.  Though a plea
was taken that a deed of settlement was executed in favour of the Mosque in
respect of the suit schedule property, the document was not made part of record.
Thereby, the presumption provided for under Section 114 (g) of the Evidence Act
gets attracted.  Even if the document was made part of record, the fact remains
that it is almost a quarter century later to the transaction covered by Ex.A-1.
Viewed from any angle, this Court does not find substantial question of law.

11.  The Second Appeal is, accordingly, dismissed.  There shall be no order as
to costs.

The appellate court has held that for claiming a right of easement, it has to be established that the petitioners have been using the same continuously and uninterruptedly. However, there is no such evidence on record. The Amin commissioner had exceeded its power in mentioning in his report that the alleged Rasta seems to be in existence from the year 1975. It has been further noted in the order of the lower appellate court that during consolidation operations, only a four feet wide Rasta was left. For coming to such conclusion, reliance has been placed on the order dated 2.7.2012 passed by Deputy Director of Consolidation, in revision filed by the petitioners. The claim of the petitioners, in relation to existence of a 15 feet wide Rasta, was held to be unsustainable. The lower appellate court has also held that there is neither any prima facie case in favour of the petitioners nor the balance of convenience lies with them. In such view of the matter, the contention of the petitioners that report of the Amin commissioner has not been considered by the courts below, cannot be accepted.

HIGH COURT OF JUDICATURE AT ALLAHABAD 

?Court No. - 58 
Case :- MATTERS UNDER ARTICLE 227 No. - 3738 of 2015 
Petitioner :- Jai Narayan Singh & Another 
Respondent :- Vijay Prakash & 2 Others 
Counsel for Petitioner :- A.D. Singh 

Hon'ble Manoj Kumar Gupta,J. 
The petitioners, by means of this petition, have challenged the order dated 30.5.2013 passed by Civil Judge (Senior Division), Jaunpur rejecting the application 6 Ga for temporary injunction in Original Suit No.179 of 2013 and the order dated 18.10.2014 passed by Additional District Judge, Court No.1, Jaunpur dismissing the appeal. 
The petitioners instituted a suit for permanent prohibitory injunction in respect of an alleged Rasta shown with letters a, b, c, e, d in the plaint map, restraining the defendant-respondents from causing any interference in its use by plaintiffs. It is alleged that the Rasta exists on the northern side of the house of the petitioners and one Surendra and has been in existence since 1975. It is further claimed that the disputed Rasta is the only passage from their house to the main road. The petitioners have easementary rights over it. The suit was contested by the defendant-respondents with a specific plea that the suit property belongs to them. It is pointed out that during the consolidation operations, a four feet wide Rasta was left over Arazi No.57, belonging to Surendra. Beyond that, the plaintiff-petitioners have no right to claim any land as part of Rasta. It was categorically denied that the suit property was being used as Rasta by the petitioners or they have perfected easementary rights over the same. It is further pleaded that there also exists Chak road on the western side of the plot No.57, which is also being used by the plaintiffs for ingress and egress from their house. 
The trial court, after considering the entire evidence on record, has held that the petitioners could not prove prima facie case in their favour. It has been held that the only evidence available on record is regarding existence of a four feet wide Rasta, left during consolidation operations. It has been further held that the petitioners could not prove that they have perfected their rights by way of easement. The balance of convenience was not found in favour of the petitioners. The appellate court has concurred with the findings recorded by the trial court and has dismissed the appeal. 
The submission made by learned counsel for the petitioners is that the Amin commissioner has inspected the site and has submitted a report dated 8.3.2013, wherein the existence of a 15 feet Kachcha Rasta has been mentioned. It is also noted in the report of the Amin commissioner that on inquiry, he found that the Rasta is being used since the year 1975. It is thus urged that the courts below have committed a manifest error of law in not considering the report of the Amin commissioner, which establishes the existence of the Rasta. 
Similar contention was raised before the lower appellate court. It had duly taken into consideration the report of the Amin commissioner Paper No.11 Ga and the map prepared by him Paper No.12 Ka. The appellate court has held that for claiming a right of easement, it has to be established that the petitioners have been using the same continuously and uninterruptedly. However, there is no such evidence on record. The Amin commissioner had exceeded its power in mentioning in his report that the alleged Rasta seems to be in existence from the year 1975. It has been further noted in the order of the lower appellate court that during consolidation operations, only a four feet wide Rasta was left. For coming to such conclusion, reliance has been placed on the order dated 2.7.2012 passed by Deputy Director of Consolidation, in revision filed by the petitioners. The claim of the petitioners, in relation to existence of a 15 feet wide Rasta, was held to be unsustainable. The lower appellate court has also held that there is neither any prima facie case in favour of the petitioners nor the balance of convenience lies with them. 
In such view of the matter, the contention of the petitioners that report of the Amin commissioner has not been considered by the courts below, cannot be accepted. 
The findings recorded by the courts below are pure findings of fact and do not call for any interference in exercise of supervisory power under Article 227 of the Constitution. The petition lacks merit and is dismissed. 
It is, however, clarified that while deciding the suit, the trial court shall not be prejudiced by any of the findings recorded in the impugned orders or by this Court in the instant petition.� 

(Manoj Kumar Gupta, J.) 
Order Date :- 4.8.2015 
SL 

Friday, April 1, 2016

Order XVIII Rule 17A C.P.C- It is an admitted fact that the suit is at the stage of arguments of the defendants. At this belated stage the relief of the nature cannot be granted. Another aspect which needs to be considered is maintainability of such application invoking section 151 C.P.C. though relief of the nature is akin to the relief that could be considered under Order XVIII Rule 17A C.P.C. The enormous delay that is likely to be caused in entertaining the applications of this nature at every stage succinctly elaborate in the judgment cited by the learned counsel for the respondents. At this stage, this court is conscious of the limitations. Further allowing of the application of this nature at this stage would only be paving way for one or the other of the parties to fill lacuna in evidences which is also not permissible. In that view of the matter, the order passed by the junior civil judge refusing to entertain the application for reopening of the case and further refusal to appoint advocate commissioner cannot be found fault and accordingly there are no merits in the Civil Revision Petition.

HONBLE SRI JUSTICE CHALLA KODANDA RAM          

CIVIL REVISION PETITION No. 534 of 2016  

01-03-2016

Nerudu Srinivas Reddy and another. Petitioners

Neerudu Sunanda @ Sunanda Reddy @ Sripathy Sunanda Reddy rep. by her G.P.A.      
Neerudu Bharathi Devi Respondent...

Counsel for the Petitioner: Sri Srinivas Chitturu

Counsel for the respondent: Sri P. Sriharsha Reddy

<Gist:

>Head Note:
       
? Cases referred:
1. 2009 (1) ALD 548
2. 1992 Law Suit (AP) 381 = 1993 (1) ALT 204
3. 2015 ALT 560
4. (2013) 14 SCC 1

HONOURABLE SRI JUSTICE CHALLA KODANDA RAM            

CIVIL REVISION PETITION No.534 OF 2016    

O R D E R:
      The Civil Revision Petition is filed by the petitioners who are
the defendants in O.S. No.9 of 2007 on the file of the learned
Junior Civil Judge, Nalgonda.  The suit is filed seeking perpetual
injunction restraining the defendants, their agents, servants,
workmen etc., from interfering with the peaceful possession and
enjoyment of the suit schedule property.  The suit schedule
property is an agricultural dry land of Ac.10-00 guntas situated in
Sy.No.98 (98/    ) of Avuravani village, Narketpally Mandal of
Nalgonda District.  Suit is at the stage of arguments, particularly
the defendants arguments.  At that stage I.A.No.330 of 2015 is
filed seeking to reopen the suit and for appointment of Advocate
Commissioner to note the physical features of the suit schedule as
per the work memo to be filed by both the parties.  As per the
averments in the affidavit filed in support of the I.A., the
petitioners have been contending that the suit schedule property
was in their possession and enjoyment for a long time.  The suit
schedule property is only a portion of the land in the entire survey
number and according to them they have made developments in
the land which would show their possession and enjoyment.
Unless an Advocate Commissioner is appointed to note the various
physical features such as available water resources, irrigation
channels, mosambi garden and localization of the suit schedule
property in the total extent of the survey number great prejudice
would be caused to the petitioners.  The grant of relief in the I.A.
was resisted by the respondents/plaintiffs.  Learned Junior Civil
Judge, Nalgonda, after considering the case on merits dismissed
the I.A.
      Sri Chitturu Srinivas, learned counsel for the petitioners
would urge that while reiterating the averments in the I.A. affidavit
and by drawing specific attention of this court to the pleading in
the written statement particularly about the existence of bore wells
and the water sources unless these aspects are brought on record
the controversy in issue cannot be resolved.  It is the case of the
petitioners that, as pleaded by them in the written statement, it is
only by virtue of interim injunction granted by the Court
respondents-plaintiffs unlawfully entered into the possession and
unless this court reopens the case and appoints Advocate
Commissioner great prejudice would be caused to the petitioners.
He submits by placing reliance on the judgments of this court in
Yeera Ayyanna Vs. H. Marthamma , B. Lalita Devi Vs. Special
Court under A.P. land Grabbing (Prohibition) Act  and K.
Dayanand and another Vs. P. Sampath Kumar  and contends  
that in exercise of the inherent power of the court under Section
151 of CPC, the Court has ample power to grant relief and further
there is no bar for appointment of Advocate Commissioner if the
same is helpful in deciding the controversy in issue, as such no
prejudice would be caused to the respondents.
      On the other hand Sri P. Sriharsha Reddy by placing
reliance on the judgment of the Supreme Court in Bagai
Construction Vs Gupta Building Material Store   would submit
that the reopening of the evidence is impermissible and such
reopening of the case at belated stage under Section 151 C.P.C. is
impermissible.  Therefore, he prays for dismissal of the Civil
Revision Petition.
      Having considered the rival submissions one thing may be
noticed that the IA was filed invoking inherent powers of the court
under section 151 CPC.  CPC does not provide any specific
provision for reopening of a case after completion of recording
evidence.  It is only for that reason petitioners had invoked the
inherent power under Section 151 CPC.  The invoking of inherent
power under Section 151 C.P.C. in the facts of the present case is
for bringing of further evidence in the form of an Advocate
Commissioners report by the petitioners.  In that view of the
matter, the procedure for adducing and recording of evidence as
provided for under Order XVIII may be noticed.  Order XVIII C.P.C.
deals with the rights of the parties for leading evidence and for
further addressing arguments including the power of the Court to
examine or cross-examining a witness and also recall and
reexamine a witness.  Order XVIII Rule 17A C.P.C. where a
provision was available for production of evidence not previously
known or which could not be produced despite due diligence was
repealed by the Act 46 of 1999, Code of Civil Procedure
(Amendment) Act, 1999 with effect from 01.07.2002.  In other
words, the right of a party to produce evidence not previously
known or which could not be produced despite due diligence was
also taken away.  The effect of the omission of Order XVIII Rule
17A C.P.C. in the context of the other provisions would leave no
manner of doubt that the parties to the proceedings are required to
be diligent in the first instance and at every stage to protect their
interests and bring best possible evidence at the earliest.  The
same is evident from various other amendments which have been
brought in the CPC.  The object of various amendments is to
curtile the delay in disposal of the suits and to discourage the
parties to the suit to prolong the proceedings.  In the present case,
it is not even the case of the petitioners that the application of the
nature seeking appointment of the Advocate Commissioner to note
the physical features of the suit schedule land could not have been
made at the earliest point of time. We may note that the suit came
to be filed in the year 2006, numbered in the year 2007 and the
written statement itself came to be filed by the petitioners on
28.03.2007.  It is an admitted fact that the suit is at the stage of
arguments of the defendants.  At this belated stage the relief of the
nature cannot be granted.  Another aspect which needs to be
considered is maintainability of such application invoking section
151 C.P.C. though relief of the nature is akin to the relief that
could be considered under Order XVIII Rule 17A C.P.C.   The
enormous delay that is likely to be caused in entertaining the
applications of this nature at every stage succinctly elaborate in
the judgment cited by the learned counsel for the respondents.  At
this stage, this court is conscious of the limitations.  Further
allowing of the application of this nature at this stage would only
be paving way for one or the other of the parties to fill lacuna in
evidences which is also not permissible.  In that view of the matter,
the order passed by the junior civil judge refusing to entertain the
application for reopening of the case and further refusal to appoint
advocate commissioner cannot be found fault and accordingly
there are no merits in the Civil Revision Petition.
      Accordingly the Civil Revision Petition is dismissed.  There
shall be no order as to costs.  Miscellaneous petitions, if any,
pending shall also stand closed.

-----------------------------------
CHALLA KODANDA RAM, J      
Dated:01.03.2016