Andhra HC (Pre-Telangana)
Edara Tirumala Prasad Rao vs Pauls Educational Society And Anr. on 22 April, 2003
Equivalent citations: 2003(6)ALD177, 2003(5)ALT361
JUDGMENT
M. Narayana Reddy. J.
1. This judgment, according to Law, based on the legal material placed by both the parties, on Record, arises out of a Second Appeal, filed by the soleappellant, against R-1 and R-2, under Section 100, C.P.C. questioning the, validity and legality, of the adjudications made by, and set forth in para 2, infra.
2. Judgment and Decree, both, dated 24-7-2001, of the Court of the m Additional Chief Judge, City Civil Court, Hyderabad, made in A.S.No. 259/2000, of its file, setting aside, in toto, the earlier judgment and decree, both, dated 25-4-2000, of the Court of the I Additional Senior Civil Judge, City Civil Court, Hyderabad, made in O.S. No. 461/1991, of its file, and, consequently, dismissing that suit without costs, as set forth, in detail, in para 11 infra.
3. Perused the material papers of the Record.
4. Arguments were heard of the learned Counsel for both the parties.
5. The sole appellant in this Second Appeal corresponds to R-1 in the said A.S.No. 259/2001, of the file of the said First Appellate Court and the sole plaintiff in the said O.S.No. 461/91, of the said Trial Court. R.1 in this Second Appeal corresponds to R-2 in the said First Appellate Court and D.1 in that suit. R.2 herein corresponds to the sole appellant in that First Appeal and D.2 in that suit.
6. The parties are, hereinafter, referred to, with reference to their respective descriptions before the said Trial Court, in that suit, unless, otherwise, so specified.
7. The subject-matter of the said suit, as also, the first appeal, as well as, this Second Appeal, and the reliefs claimed in respect whereof, as described in the schedule of the plaint, is set forth, in brief, as under:
"First floor of the house bearing No. 3-5-169/ 6, measuring 4,500 sq.ft, situate at YMCA Cross Roads, Narayanaguda, Hyderabad."
8. In respect thereof, the sole plaintiff filed the said O.S. No. 461/91, against D.1 and D.2, in the said Trial Court, for the main reliefs as set forth, hereunder;
(a) For eviction of D-1 and D-2 from the plaint scheduled house property;
(b) For recovery of vacant possession thereof;
(c) For recovery of arrears of rent of Rs. 42,000/-, at Rs. 2,000/-, per month, from 1-6-1989 to 28-2-1991;
(d) For recovery of earlier arrears of rent of Rs. 19,000/-, prior to 1-6-1989;
(e) Interest thereon at 18%, per annum, from 1-3-1991 till date of payment, or eviction; and
(f) For costs of the case.
9. The defendants opposed the suit claims and the foregoing reliefs, and, hence, urged for dismissal of the suit. Also, D-2 made a counter-claim of Rs. 87,125/-, to be payable from the plaintiff.
10. After due settlement of the issues therein, the said Trial Court tried the said O.S. No. 461/91, in the process whereof, it recorded the oral evidence of P.W.1, and D.W.1, and exhibited, the documentary evidence, by way of ExsA-1 to A-12, and Exs.B-1 to B-7, and, later, after due arguments there-into, finally, adjudicated thereupon, by its judgment and the decree, both, dated 25-4-2000, set forth in para 2, supra, as under:
(a) Directing D-1 and D-2, to vacate the plaint scheduled house property and to deliver vacant possession thereof to the plaintiff, within three months;
(b) Directing D-1 and D-2, to pay to the plaintiffs, a sum of Rs. 61,000/- towards arrears of rent;
(c) Directing D-1 and D-2, to pay to the plaintiff Rs. 2,000/- per month, towards mesne profits, from 1-3-1991 till actual delivery of vacant possession of the said property to the plaintiff; and
(d) To pay costs of the case to the plaintiff.
11. Aggrieved thereby, and questioning the, validity and legality, thereof, only, D-2 filed the said A.S. No. 259/2000, in the said First Appellate Court, which, after due enquiry thereinto, finally, adjudicated thereupon, by its judgment and decree, both, dated 24-7-2001, set forth in para 2, supra, as under:
(I) Setting aside, in toto, the impugned judgment and decree, of the said Trial Court, set forth in the immediately preceding paragraph;
(II) (a) Consequently, dismissing, in toto, the said O.S. No. 461/91, of the said Trial Court; and
(b) Directing the parties to bear their own costs incurred in the suit;
(III) Dismissing the counter-claim made by the defendants; and (IV) Directing the parties to the First Appeal, to bear their own costs incurred therein.
12. Aggrieved thereby, and questioning the, validity and legality, thereof, the sole plaintiff filed the present Second Appeal, as set forth in paras 1 and 2, supra.
13. After hearing the arguments of the learned Counsel, this Court, under Sub-section (4) of Section 100, C.P.C., framed two substantial questions of Law for enquiry thereinto in this Second Appeal. They are:
(1) Whether the First Appellate Court, in its judgment in A.S. No. 259/2000, in para 8 thereof, framed, for the first time, a new, or fresh point, as to whether late Venkatramaiah bequeathed the scheduled premises in favour of the plaintiff (appellant herein) under will, dated 29-10-1989, that too, at the time of the said judgment being prepared and that too without giving opportunity to either of the parties to adduce any evidence in respect thereof, and without hearing them in respect thereof and especially, when the Trial Court itself did not frame, consider, or, adjudge any such issue on such subject?; and (2) Whether the subject and the point covered by question No. 1, supra, and the finding therein recorded by the First Appellate Court warrant the grave miscarriage of substantial justice so as to warrant the High Court to interfere therewith in the Second Appeal, under Section 100, C.P.C?
14. The learned Counsel for the sole appellant-plaintiff relied upon the two Rulings, set forth, hereunder:
(1) Ram Sarup Gupta (dead) By LRs. v. Bishun Narain Inter College and Ors., (1987) 2 SCJ 279, delivered, inter alia, interpreting Rule 1 of Order 6, C.P.C., inter alia, postulating, that, in the absence of a pleading, evidence produced by the parties cannot be considered; and (2) Arulmigu Visweswaraswami and Veeraraghava Perumal Temples represented by its Executive Officer, Tiruppur, Coimbatore District v. R.V.E. Venkatachala Gounder and Anr., 1996 (2) MLJ 553, delivered, inter alia, interpreting Sections 35 and 74 of the Evidence Act, and postulating, that, the Municipal extracts and Tax Receipts are not evidence as to title to the property, etc.
15. The said Trial Court framed, in total, six issues, for trial by it. They are set forth, hereunder:-
(1) Whether the suit is barred by principles of resjudicata?
(2) Whether the rent of Rs. 1,350/-was towards rent and maintenance from 14-6-1983 to 7-4-1984 as pleaded by the defendants is true and correct?
(3) Whether the termination notice is valid and legal?
(4) Whether the plaintiff is entitled for the amount claiming towards arrears of rent and future rent?
(5) Whether the defendants are entitled to the counter-claim made in the written statement?
(6) To what relief?
16. After due trial in respect of the foregoing issues, as set forth in para 15, the Trial Court recorded separate findings thereon, as set forth, hereunder:
(i) Recording a finding on issue No. 1, that, the suit is not barred by the principles of resjudicata;
(ii) Recording a finding on issue No. 2, that, the claim of the defendants, that, the rent of Rs. 1,350/- was towards rent and maintenance from 14-6-1983 to 7-4-1984, has not proved;
(iii) Recording a finding on issue No. 3, that, the notice to quit, covered by Ex.A-1, is valid and binding on the defendants;
(iv) Recording a finding on issue No. 4, that, the plaintiff is entitled for mesne profits at Rs. 2,000/- per month, etc.;
(v) Recording a finding on issue No. 5, that, D-2 is not entitled for counter claim made by them for Rs. 65,000/-, as claimed in his written statement; and
(vi) Consequently, adjudicating upon, by way of issue No. 6, as set forth, in detail, in para 10 supra.
17. In the said First Appeal Court, before which the said A.S.No. 259/2000 was filed, questioning the foregoing material findings, however, had framed four points in para 8 of its impugned judgment, for consideration and adjudication, as set forth, hereunder:
(1) Whether late Venkatramaiah (Plaintiffs father) bequeathed the schedule premises in favour of the plaintiff under Will, dated 29-10-1989?
(2) If not, the quit notice (Ex.A-1) got issued by the plaintiff alone is valid and legal and the suit filed by the plaintiff for eviction and arrears of rent is maintainable?
(3) Whether the appellant/second defendant is entitled for the counter-claim of Rs. 87,125/-?
"(4) To what relief?
18. However, as can be seen from the issues framed by the Trial Court and the finding recorded thereby, as set forth in paras 15 and 16 supra, vis-a-vis, the points framed by the First Appellate Court, and set forth in the immediately preceding paragraph, point No. 2 framed by the First Appellate Court pertains to and covers issue No. 3 framed by the Trial Court, while point No. 3 framed pertains to issue No. 5 framed by the Trial Court. Point No. 4 and issue No. 6 are general points, as to what reliefs.
19. While so, point No. 1 framed by the First Appellate Court pertains to the question as to proof of bequeathing of the scheduled premises in favour of the plaintiff under a Will, dated 29-10-1989, executed by the father of the plaintiff, by name late Venkatramaiah.
20. The First Appellate Court dealt with that point No. 1, vis-a-vis, point No. 2, in paragraph Nos. 9 and 10 of its judgment, and, finally, arrived at and recorded a finding, that, that Will is not proved by the plaintiff, etc., apart from the same being not produced by the plaintiff, Etc., etc.
21. Hence, that Court recorded a finding, that, without joining the three other brothers and two sisters of the plaintiff, who are co-owners, the plaintiff could not have file the suit for the reliefs claimed by him, after the death of their late father, etc.
22. For that reason, Trial Court also recorded a finding on issue No. 3 framed by it, as that Ex.A-1 notice to quit is not valid, etc.
23. However, nowhere by way of their pleadings in the written statement, D-1 and D-2 did deny, or, dispute the right, title, or, interest of the plaintiff, to file the suit for the reliefs claimed in the plaint and set forth earlier,
24. Nor, did, either of them, during the cross-examination of the plaintiff-P.W.1, or, through the evidence of D.W.1 or, otherwise that is, by way of other oral evidence, or, by way of documentary evidence, placed on Record, inter alia, by way of reply notice, if any, dispute the right of the present plaintiff to file the suit and maintain the same, or, to give such a notice for their eviction, etc. What all the defendant disputed is on other aspects covered by the issues framed in the suit and set forth in para 15 supra.
25. So, therefore, the First Appellate Court had no legal sanction, or, authority, or, warranty, to frame such a point as it did and set forth as point No. 2 in para 17, supra as to the Will. Much more so, when such a question as to will is not at all raised before the Trial Court either by way of pleadings of the defendants, or, otherwise.
26. A perusal of Rules 1 and 3 of Order 14, C.P.C., pertaining to framing of issues, etc., and also Rule 31(a) of Order 41, C.P.C., will speak for themselves, manifestly, as to how and in what manner the issues have to be settled for trial, or, points have to be framed by the First Appellate Court, as the case may be, for trial and enquiry into and adjudication thereupon, as the case may be, by the concerned trial, or, First Appellate, Courts.
27. When so examined in the light of these legal provisions, apart from the pleadings of both the parties, vis-a-vis as also the oral and documentary evidence placed, on Record, it will be manifest and beyond doubt, that, under no circumstance, such a point No. 2, as was framed by the First Appellate Court, will arise for consideration, much less for adjudication thereupon.
28. Much more so, when the said point No. 2 was framed by the said Court, for the first time, at the time of dictation of its impugned judgment and its later pronouncement. So, both the parties had no opportunities at all to urge before that Court, as to whether such a point will arise, or, not, for the first time, in that First Appeal.
29. Even otherwise, none of the parties were given opportunities and much less, the plaintiff, to prove the Will, even if, otherwise, the same is warranted by fact and Law.
30. Even otherwise, framing of such Point No. 2, by surprise, for the first time and deciding thereon, without any material and without hearing both sides in respect thereof, again, ipso facto renders the point, as well as the finding thereon unsustainable at Law, even if, assuming for a moment such an issue, or, point, is otherwise warranted by fact and Law, though, in fact, not so warranted.
31. So, therefore, the finding recorded by the said First Appellate Court on point No. 1, as to proof of will, etc., has to be set aside, ipso facto outright, as such, and hence, is hereby accordingly set aside.
32. When so, the consequent finding recorded by that Court on point No. 2 as to , the invalidity of Ex.A-1, quit notice, also stands set aside.
33. Point No. 3 pertains to as to whether D-2 is entitled for the counter-claim of Rs. 87,125/- from the plaintiff, which was decided as that D-2 is not entitled for the same, etc., by the Trial Court, which was confirmed by the First Appellate Court, there is no Cross Second Appeal filed by D-2. Nor, did, D-2 filed cr6ss-objections in the present Second Appeal. Hence, it became final.
34. I, therefore, record my findings on substantial question Nos. 1 to 3 of Law, framed in para 3 supra, accordingly, and as I did in paras 31, 32 and 33 supra.
35. Consequent to my findings on the said substantial question No. 1 of Law, it, factually and legally, ipso facto, follows that grave miscarriage of substantial justice resulted in, and, hence, warranting the High Court, to interefere therewith under Section 100, C.P.C., and, hence, I find on substantial question No. 2 of Law, accordingly.
36. In the foregoing facts and circumstances, it factually and legally, ipso facto, follows that the impugned judgment of the First Appellate Court, setting aside, that of the Trial Court, is unsustainable, both at fact and Law, and hence, the same have to be set aside, in toto, as such, and, consequently, the judgment of the Trial Court has to be restored, as is being done, hereunder.
37. Hence, the High Court doth hereby adjudicate upon the Second Appeal as under:
(I) Setting aside, in toto, the Judgment and Decree, both, dated 24-7-2001, of the Court of the III Addl. Chief Judge, City Civil Court, Hyderabad, made in A.S.No. 259/2000 of its file;
(II) Consequently, restoring the Judgment and Decree, both, dated 25-4-2000, of the Court of the I Addl. Senior Civil Judge, City Civil Court, Hyderabad, made in OS No. 461/91, of its file;
(III) Directing the sole appellant (D-2) in AS.No. 259/2000, to pay to R-1 therein (sole plaintiff), the costs of that First Appeal; and (IV) Directing R-1 (D.2) in this Second Appeal, to pay the sole appellant herein (sole plaintiff), the costs of the Second Appeal.