Andhra Pradesh High Court - Amravati
Sri Raghavendra Swamy Mutt vs The Executive Officer on 25 February, 2021
Author: B Krishna Mohan
Bench: B Krishna Mohan
| [3233 ] THURSDAY, THE TWENTY FIFTH DAY OF FEBRUARY , TWO THOUSAND AND TWENTY ONE :PRESENT: THE HONOURABLE SRI JUSTICE B KRISHNA MOHAN Re a : ; % gee SECOND APPEAL NO: 63 OF 2021 Between: Sri Raghavendra Swamy Mutt, Mantralayam, Represented by its OSD-Coordination, Mantralayam-Village and Mandal, Kurnool! District. Appellant/Appellant/Plaintiff AND . 1. The Executive Officer, Gram Panchayat, Mantralayam, Mantralayam, Mantralayam Post and Mandal, Kurnool District. 2. The Panchayat Secretary, Gram Panchayat, Mantralayam, Mantralayam, Mantralayam Post and Mandal, Kurnool District. 3. M. Venkatesh, S/o Sri Thotadha Rao, aged about 62 years, Occ. Ex-Sarpanch, R/o Mantralayam Village and Mandal, Kurnool District. 4. Mandal Parishad Development Officer, Mantralayam Mandal, Mantralayam Post and Mandal, Kurnool District. Respondents/Respondents/Defendants Second Appeal under Section 100 CPC, praying that in the circumstances stated in the memo of grounds filed herein, the High Court may be pleased: to allow the Second Appeal and set aside the judgment and Decree dated 20-03-2020 passed by Addl. District and Sessions Judge Kurnool at Adoni in AS. No. 46 of 2013 confirming the Judgment & Decree dated 22-12-2012 passed by the Senior Civil judge, Adoni, in IA. No. 1055 of 2012 in O.S. No. 63 of 2008 rejecting the plaint filed by the Appellant herein and restore the same to its original file for the purpose of adjudication. IA NO: 1 OF 2021 Petition under Order 39 Rule 1 & 2 of CPC praying that in the circumstances stated in the affidavit filed herein, the High Court may be pleased to grant ad-interim temporary injunction in favour of the Petitioner/Appellant and against the Respondents/ restraining the Respondents/Respondents herein their officials, agents or anybody claiming through them from conducting the auction of leasehold rights for collecting the parking fee on vehicles within the territorial limits of Grampanchayat Mantralayam, Post & Mandal, Mantralayam, Kurnool District pursuant to the auction notice dated 28/06/2008 or any other future date, Pending disposal SA 63 of 2021, on the file of the High Court. The Appeal coming on for hearing, upon perusing the Petition and memo of grounds filed herein and upon hearing the arguments of Sri Salloori Ramesh Advocate for the Petitioner, the Court made the following ORDER:
The 2"¢ Appeal arises against the Judgment and decree in A.S.No.46 of 2013 on the file of the II Additional District Judge, Kurnool dated 20.03.2020 confirming the Judgment and decree in I.A.No.1055 of 2021 in O.S.No.63 of 2008 on the file of the Senior Civil Judge's Court, Adoni, dated 22.12.2012.
The appellant herein is the appellant in the lower appellate Court . and the petitioner in the suit. The respondents herein are the respondents before the lower appellate Court and the defendants in the suit.
The plaintiff initiated the action in I.A.No.267 of 2008 in O.S.No.63 of 2008 on the file of the Senior Civil Judge's Court, Adoni seeking grant of permanent injunction against the defendants restraining from proceeding with the auction of leasehold rights. Upon hearing the matter, the trial Court granted temporary injunction vide its order dated 28.08.2008 pending the suit. While so, the defendants filed I.A.1055 of 2012 in O.S.63 of 2008 under Rule 11 of Order 7 and Section 151 of C.P.C on the file of Senior Civil Judge, Adoni for rejection of plaint on the ground of non-compliance of Section 138-A of A.P.Panchayat Act, 1994. This petition is allowed by the trial Court rejecting the plaint on the ground of maintainability vide its order dated 22.12.2012. Aggrieved by the same, the plaintiff preferred A.S.No.46 of 2013 on the file of the II Additional District Judge, Kurnool. Upon hearing the matter, the lower appellate Court dismissed the said appeal confirming the Judgment of the trial Court vide its Judgment dated 20.03.2020. Assailing the same, the plaintiff in the suit came in 24 appeal before this Court raising substantial question of law as follows.
1. i) Whether the impugned Judgments and Decrees of both the Courts below in_ rejecting the plaint filed by the Appellant/Plaintiff are sustainable on the solitary ground of non-issue of pre-suit notice under Section 138-A of the Panchayat Act, 1994,('the PR Act' in short) even when the said provisions do not apply to the facts of the case?
ti) Whether the impugned Judgments and Decrees of both the Courts below in _ rejecting the plaint filed by the Appellant/Plaintiff under Order VII, Rule 11(d) of the CPC, 1908 for want of pre-suit notice at the pre-trial stage of the suit are sustainable?
2. Whether the appreciation and finding of the Courts below in rejecting the suit on the ground of maintainability even at the stage of framing issues and grant of temporary injunction is perverse?
In view of the above said reasons, the appeal is admitted. Notice to the respondents.
The learned counsel for the appellant is permitted to take out personal notice to the respondents and file proof of service in the Registry, within a period of three(3) weeks from today.
List the matter after four(4) weeks.
In the meanwhile, there shall be an order of status-quo with respect to the suit schedule property until further orders.
Sd/-B.NarsingaRao --
ASSISTANT REGISTRAR IMTRUE COPYII SECTION OFFICER For To, wWN> fo) COM Skm The Addi. District Judge, Adoni, Kurool District The Senior Civil Judge at Adoni, Kurnool Distirct The Executive Officer, Gram Panchayat, Mantralayam, Mantralayam, Mantralayam Post and Mandal, Kurnool District.
The Panchayat Secretary, Gram Panchayat, Mantralayam, Mantralayam, Mantralayam Post and Mandal, Kurnool District.
M. Venkatesh, S/o Sri Thotadha Rao, aged about 62 years, Occ. Ex-Sarpanch, R/o Mantralayam Village and Mandal, Kurnool District.
The Mandal Parishad Development Officer, Mantralayam Mandal, Mantralayam Post and Mandal, Kurnool District. (Addressee Nos 3 to 6 by RPAD) One CC to Sri. Salloori Ramesh Advocate [OPUC] One spare copy "HIGH COURT BKM,J DATED:25/02/2021 ORDER SA.No.63 of 2021 STATUS QUO