Telangana High Court
Mrs.S Rama Devi vs Vijaya Kumar Sethi And 9 Others on 10 August, 2022
Author: P.Sree Sudha
Bench: P.Sree Sudha
HON'BLE Smt. JUSTICE P.SREE SUDHA
CIVIL REVISION PETITION No.243 of 2019
ORDER
1. This revision petition is filed by Mrs.S.Rama Devi, Office Superintendent in the Office of General Manager, B.S.N.L., Adilabad, aggrieved by the orders dated 14.10.2015 passed in I.A.No.194 of 2015 in O.S.No.6 of 1998 on the file the learned Senior Civil Judge at Nirmal.
2. The petitioner herein is the fifth defendant in the suit. The suit O.S.No.6 of 1998 filed by the plaintiffs-respondents herein seeking to pass a preliminary decree was decreed on 28.02.2005 and hence the plaintiffs in the suit requested the Court to pass final decree by allotting the plots by way of lucky draw in the presence of the parties and also in the presence of the counsel of the respective parties by filing a joint memo and thereupon the Court considered the it and allotted the plots by passing a final decree to that effect. Aggrieved by the said order, this revision is preferred by the fifth defendant on the ground that she did not attend the Court on the day of allotment and that her counsel signed on the memo without her knowledge or consent and thus it is to be set aside.
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3. For better understanding of the facts, this Court feels it reasonable to extract the history of the case from the date of filing of the suit till today.
4. O.S.No.6 of 1998 is filed for partition and separate possession of house property in house bearing Nos.5-11-36, 5- 11-37 and 5-11-38 situated at old bus stand road, Nirmal, and for mense profits. Late Mangalsen Sethi purchased the said property in the name of his wife Smt.Vidyadevi Sethi and she died intestate on 26.03.1997. Plaintiffs and defendants are their children and they filed the suit for partition. The third plaintiff is in occupation of one mulgi out of the suit schedule property whereas the defendants 1 to 3 and 7 are in possession of the residential building of the suit schedule house property. The plaintiffs demanded for partition in the month of October 1997 but the defendants refused the same on 12.04.1998 and thus the suit was filed on 06.06.1998 seeking partition.
5. The fifth defendant filed her written statement on 12.12.2002 stating that the suit was decreed on 28.02.2005 declaring that the plaintiffs are entitled to 1/10th share each in the suit properties. I.A.No.136 of 1999 in the suit was filed for appointment of a receiver and it was dismissed on the same 3 day. Aggrieved by the same the third defendant filed A.S.No.32 of 2007 seeking the Court to remand the matter on the ground that he did not file his written statement. Defendants 1 to 7 engaged an Advocate but did not file their written statement for more than seven years. The trial Court after hearing all the counsel dismissed the appeal confirming the order of the trial Court dated 28.02.2005 in all respects. I.A.No.194 of 2005 is filed by the plaintiffs on 11.04.2005 seeking passing of final decree and notices were sent to all the parties. Written statement was filed by the fifth and sixth defendants opposing the suit claim. The sixth defendant affirmed the plea of the plaintiffs. Defendants four and five set ex parte. The fifth defendant is the revision petitioner herein. She was examined as DW.1 in the suit but she did not turn up for cross-examination and thus her evidence was eschewed. As already stated plaintiffs and defendants are brothers and sisters and they are children of Late Mangalsen Sethi and Smt.Vidyadevi Sethi. I.A.No.194 of 2005 was filed by the first plaintiff on his behalf and also on behalf of the second plaintiff seeking for appointment of a Commissioner for division of properties by metes and bounds. The Commissioner filed a report on 03.10.2012 in which he stated that the petitioners-plaintiffs 4 requested for division of the shares among surviving legal heirs and as there was no specific direction by the Court to that effect and as the guardian of the first defendant was not appointed, the Commissioner did not file his report and requested the Court to allot the shares in the open Court. Objections on the Commissioner's report were filed on 30.11.2012. The plaintiffs enclosed a map showing the possible division of the suit schedule property as per the preliminary decree and requested the Court to reject the Commissioner's report for allotment of ten shares and to pass a final decree. The application for passing of final decree was filed by the plaintiffs on 11.04.2005. A joint memo was filed in the Court on 13.10.2005 by the learned counsel for the plaintiffs and also the learned counsel for respondent Nos.3 to 7 and 9 with a map dated 09.07.2015. Considering the joint memo, plots were allotted by the lucky draw in the open Court and shares were allotted to eight members, with is as follows:
Allotted Sl.No. Name of the parties portion
1. Vijay Kumar Sethi Plot No.7
2. Ashok Kumar Sethi Plot No.1
3. Amarjeeth Sing Sethi @ Raju Plot No.4 5
4. Mrs. Usha Plot No.8
5. Mrs. Rama Devi Plot No.5
6. Mrs. Nirmala Dhameeja Plot No.3
7. Mrs. Seems Sahani Plot No.2
8. Suresh Kumar Sethi Plot No.6
6. Accordingly a final decree was passed on 14.10.2015.
From a perusal of the joint memo, among the eight members, the allottee plot members 1, 5, 3 and 2 not signed and the allottees of plot members 7, 4, 8 and 6 were signed, but the objection is raised only by the fifth defendant and she filed review application vide I.A.No.370 of 2015 against the order dated 14.10.2015 passed in I.A.No.194 of 2015 in O.S.No.6 of 1998 before the trial Court and the trial Court after considering the arguments on either side, submissions made on their behalf and the case law cited by the petitioner herein held that review is not maintainable in an order dated 16.11.2018. Thereafter, she filed the present revision against the final decree passed in I.A.No.194 of 2015. In the review petition counters were filed by the second and the fifth respondents stating that the revision petitioner has not submitted any proposal and she intentionally not participated in the lucky draw as she and her husband are 6 government employees. In the counter filed by the fifth respondent i.e., the third defendant in the suit he clearly stated that he along with his counsel intimated through mobile phone to the petitioner herein regarding fixing of the date for allotment of the shares on 14.10.2015 by way of lucky draw system and as such the petitioner and her husband approached the counsel in his office and informed that he along with the other respondents gave consent for lucky draw in the open Court and they have no objection and also requested the petitioner herein to participate in the proceedings. As it is a old matter, she told her counsel that she will attend on that day and in case of her absence, she gave no objection to the counsel to participate on her behalf to put an end to the litigation between the parties. Her counsel explained regarding the division of measurements in the said area to each person and also regarding the area and she did not make any objection. The son of the petitioner is also a practising Advocate and the petitioner herein stated the same to her counsel in his presence. Even on 14.10.2015 the counsel made a phone call to the petitioner herein at about 10:30 AM and requested her to attend the Court after lunch hours. She introduced her son to the Advocate on 11.10.2015 and apart from that she ascertained the posting of the case from the civil 7 bench clerk. Even on 14.10.2015 the bench clerk informed to the petitioner regarding allotment of Plot No.5 to her and allotment of plot No.4 towards the share of the third defendant on the same day evening.
7. The revision petitioner mainly contended that she has no knowledge of the proceedings to be conducted in the open Court on 14.10.2015 but the third defendant in his counter specifically stated that they informed about the proceedings to the petitioner herein over phone and she also enquired personally from the bench clerk. She knows about the proceedings of 14.10.2015 on 11.10.2015 itself and she promised to attend the Court on the day of lucky draw and if she fails to attend, she will authorise her counsel but later when the allotment of the Plot No.5 was made to her, for the reasons best known to her she continued the litigation by filing this review petition and also this revision apart from that she also filed another application which was rejected by the office i.e., C.F.R.No.85 of 2019 in I.A.No.194 of 2015 dated 29.01.2019 and it was rejected on 18.03.2019.
8. Heard the learned counsel appearing for the petitioner and the learned counsel appearing for respondents. 8
9. Learned counsel for the petitioner would mainly argue that an order was passed on the joint memo and it is unheard and as such it is not valid and it is to be set aside. Plaintiffs in the suit filed an application for passing of final decree on 11.04.2005 itself even afterwards as the final decree was not passed for various reasons, they filed a joint memo by suggesting to allot the plot by way of lucky draw in the open Court. Therefore, the argument of the learned counsel for the petitioner that the final decree order was passed only basing on the joint memo is not tenable and moreover all the parties along with their respective counsel were present before the Court.
10. At the time of lucky draw and only with an intention to put an end to the long drawn litigation, the parties to the lis accepted the allotment as mentioned in the joint memo and accordingly final decree was passed by the Court. Therefore, the Court cannot found fault with in passing of the final decree on the joint memo.
11. Learned counsel for the petitioner relied upon the case law reported in SYED YOUSUF ALI V/s. MOHD. YOSUF1 in which it was held that Court cannot pass a judicial order on a 1 2016 (2) ALT 557 9 memo since it is not contemplated under CPC or Civil Rules of Practice. In this case the judicial order is not passed on the memo, but it was passed basing on the final decree application filed by the plaintiffs. The joint memo was filed by all the parties and their counsel in respect of allotment of plots by open draw with an intention to put an end to the litigation and it was accepted. Therefore, the argument of the learned counsel for the petitioner is not sustainable. The learned counsel for the petitioner relied upon a case law reported in PUSHPA DEVI BHAGAT (D) BY LR V/s. RAJINDER SINGH2 holding to the effect that the only remedy available to a party to a consent decree is, to approach the Court which recorded the compromise and made a decree in terms of it and establish that there was no compromise and he further contended that appeal is not maintainable against the consent decree. In this case on hand though the preliminary decree was passed way back in the year 2005, till 2015 final decree could not be passed and as such all the parties along with their counsel requested the Court to allot the plots by way of lucky draw and accordingly final decree was passed and none of the parties raised any objection except the revision petitioner herein. Therefore, the 2 AIR 2006 SC 2628) 10 argument of the learned counsel for the petitioner that again the matter should go to the trial Court is not accepted. Moreover, the revision petitioner expressed her no objection and requested the Court to allot the plots by lucky draw by taking into account the sketch enclosed to proposal number one to the joint memo dated 09.07.2015 and she filed the said application on 21.08.2021. The learned counsel for the petitioner requested the Court to allot the plots once again and it is binding on all the parties. The main grievance of the petitioner is that she could not attend the Court when the plots were allotted by lucky draw and her counsel made an endorsement without her consent or knowledge. As the plots were allotted by way of lots, even if the petitioner was present, it makes no difference for her. If it is a case of allotment of plots by choice of each person, it can be said that she could not attend and she could not opt a plot of her choice, and therefore, request of the revision petitioner for again conducting the lots in the open Court amounts to abuse of process of law. Firstly, in spite of knowledge, the petitioner could not attend the Court on that day, secondly, she filed review and also the revision petition and dragged on the proceedings and thirdly she is again requesting the Court to conduct lots basing on the same proposal and same sketch. The 11 petitioner herein cannot dictate terms to the Court and the Court proceedings cannot be conducted as per her whims and fancies. Out of eight members there is no objection from seven members who are in majority, the request of the petitioner herein cannot be considered and is rejected.
12. In view of the dismissal of the review petition, draft final decree was prepared which is as under
S.No. Name of the Party Plot Extent No. Sq. fts = sq. yards
1. Plaintiff No.1 7 286 = 31.77
2. Plaintiff No.2 1 260 = 28.88
3. Defendant No.3 4 338 = 37.55
4. Defendant No.4 8 260 = 28.88
5. Defendant No.5 5 338= 37.55
6. Plaintiff No.3 6 299 = 33.22
7. Defendant No.6 3 299 = 33.22
8. Defendant No.8 2 286 = 31.77
13. The above table clearly shows that the revision petitioner herein who is the fifth defendant and the third defendant got more extent than the other parties and thus it cannot be said 12 that prejudice was caused to her in the allotment. Admittedly, as on the date of lucky lots, her counsel was representing her and as such he signed on the joint memo on her behalf. When she engaged the counsel and he represented in the Court on her behalf, the said representation is proper and she cannot dispute it later.
14. In this civil revision petition I.A.No.2 of 2019 was filed for stay for passing of final decree in O.S.No.6 of 1999, this Court on 26.03.2019 granted interim stay and it is still in force.
15. In view of my above discussion this Court finds that this revision is devoid of merit and is dismissed with costs of Rs.10,000/- payable to Member Secretary, Telangana Legal Services Authority, within a period of one month from today. The interim stay granted in I.A.No.2 OF 2019 shall stand vacated.
16. Miscellaneous Petitions, if any, pending in this revision shall also dismissed in the light of this final order.
____________________ P.SREE SUDHA, J.
10th AUGUST, 2022.
PGS