Andhra HC (Pre-Telangana)
Thimmaraju Satyanarayana Rao vs Secretary, I.L.T.D. Co. Staff ... on 7 February, 2007
Equivalent citations: 2007(4)ALT472
JUDGMENT P.S. Narayana, J.
1. Thimmaraju Satyanarayana Rao, the plaintiff in O.S. No. 317 of 1977 on the file of the 1 Additional District Munsif, Chirala, had preferred the present second appeal.
2. The following substantial questions of law were raised in the present second appeal.
(a) Whether the judgment of the appellate court is not vitiated for not framing points for determination on relative case of the parties.
(b) Whether the appellate court not erred in law in disposing of the appeal without deciding I.A. No. 65/96 filed to receive additional evidence contrary to Order 41 Rule 27 CPC.
(c) Whether the courts below have not committed error in law by holding that the civil courts jurisdiction is ousted as hit by Section 61 of the A.P. Co-operative Societies Act, contrary to Section 121 of A.P. Co-operative Societies Act.
(d) Whether the findings of the trial court on issues 3 and 4 are not inconsistent to each others to vitiate the judgment and decree.
(e) Whether the courts below are not wrong in misconstruing Section 61 of the A.P. Co-operative Societies Act to hold that the suit relief comes under it.
(f) Whether the trial Court has not exceeded in its jurisdiction in recasting the issues on 18-6-91 after the entire trial is over.
3. The counsel on record made elaborate submissions touching the merits and demerits of the matter. Sri Addepalli Suryanarayana, the learned Counsel appearing for the appellant-plaintiff, submits that the second respondent died and all the legal representatives were brought on record and, though it is shown as the appeal having been abated as against R-4 and R-5, the estate of the deceased R-2 is well represented since all other legal representatives continue to be on record. The counsel also had taken this Court through the application, which was filed for reception of additional evidence, and had pointed out the order, which was made by the appellate Court, dismissing the said application as having become infructuous after the disposal of the appeal. The counsel also would point out that this approach adopted by the appellate Court cannot be sustained. The learned Counsel placed strong reliance of The Premier Automobiles Ltd., Bombay v. Kabirunnisa . The counsel also while further elaborating the submissions would point out that when findings had been recorded relating to the lack of jurisdiction of the civil Court to entertain the suit other findings touching the merits and demerits need not be gone into. The learned Counsel would also point out to certain findings which had been recorded by the appellate Court and also would further contend that at para-8 the appellate Court framed the following point for consideration.
Whether the findings of the learned District Munsif are correct?
The learned Counsel would submit that as can be seen from the list of documents filed for reception of the additional evidence it would be just and proper to make an order of remand.
4. The learned Counsel representing the respondents resisted the same on the ground that concurrent findings had been recorded and also on the ground that positive findings had been recorded on the ground of lack of inherent jurisdiction to entertain the suit.
5. Heard the counsel.
6. The parties hereinafter would be referred to as plaintiff and defendants as arrayed in O.S. No. 317 of 1977 on the file of the I Additional District Munsif, Chirala.
7. The plaintiff filed the suit for declaration of the sale deed dated 2-4-77 executed by D-1 in favour of D-2 and another sale deed on the even date executed by D-2 in favour of D-3 with reference to the suit schedule property as null and void and for a perpetual injunction restraining the defendants from making any construction in the vacant site in plot No. 292 of the Society and for costs.
8. It was pleaded in the plaint that the first defendant was a cooperative society, formed for acquiring site for allotment of the house sites for the members and the plaintiff, D-2 members of the said society. It is further stated that originally about 131 house sites were formed and were allotted to various members and runs through various particulars as to how the funds are raised. It was further contended that the 1st defendant's society owned the lands of two types; one is called mortgaged land and other one is non-mortgaged land as detailed in the sketch filed with the plaint. He further stated that by a common consent of all the members of the society a scheme was formulated to allot excess vacant site to the members for the persons who are holding plots adjacent to him and basing on those lines plot No. 281 was given to the owner of the plot No. 287 by name K. Subrahmanya Sastry and plot No. 239 was given to the owner of plot No. 295 by name O. Seshagirirao and like manner plot No. 245 was given to the owner of plot No. 298 by name P. Krishna Murthy, while so the plaintiff sought for allotment of plot No. 292 which is adjacent to this plot No. 295 and further asked for the society atleast permitting him to raise the level of plot No. 292 to prevent the water being stagnating in the said plot. It is further contended that the plaintiff addressed the letter on 6-6-1970 to the 1st defendant and the same was refused. The plaint further takes to various correspondence made by the plaintiff, to the higher authorities against D-1 society. It was further contended that the Commissioner of Labour in his proceedings dated 13-8-73 called upon the 1st defendant society to submit explanation against allegations made by the plaintiff and also consider the plaintiff's request to allot plot No. 292. It was further averred that the General Body of the 1st defendant's society on 22-7-73 has resolved to avoid the speculative transactions and since no action was taken by the 1st defendant society with regard to the request of the plaintiff got issued a lawyer's notice dated 4-3-74 and the defendant society gave an evasive reply. The plaint further discusses on various aspects of the alleged irregularities of accounts of the society and contends that the 1st defendant, contrary to rules bye-laws and convention brought into existence a nominal sale deed in favour of the 2nd defendant for plot No. 292 for consideration of Rs. 800/- under a registered sale deed dated 2-4-77 and the 2nd defendant purported to sell the same plot No. 292 to third defendant for a sum of Rs. 1500/- and it was further contended that in the said registered sale deeds the property is described as non-mortgage land where in fact it is mortgaged land and as the sale in question is highly speculative nature and against the General Body resolution passed on 22-7-73. It was further contended that if the defendants are allowed to proceed with construction in the disputed site it will cause irreparable loss to the society and to the plaintiff. Hence prays for grant of permanent injunction restraining the defendants from making any construction in the said site and lastly it was contended that in the cause of action para that registered sale deeds were got executed by fraud, contrary to general body resolution dated 22-7-1973 and bye-laws of the society and hence prays to set aside the impugned sale deeds and also permanent injunction restraining the defendants from making any further construction.
9. The 1st defendant filed a memo requesting the Court to treat the counter filed in I.A. No. 1700/77 to be read as part and parcel of the written statement wherein it was specifically pleaded that the civil Court has no jurisdiction and the plaintiff has to approach only Co-operative Tribunal constituted under the A.P. Co-operative Societies Act (hereinafter for short referred to as 'the Act') and the plaintiff has no right to claim any relief in plot No. 292. Several other factual details also had been narrated. Second defendant adopted the written statement of the third defendant. The Third defendant filed a written statement denying the allegations. The fourth defendant also filed written statement taking a plea that by virtue of Section 61 of the Act the suit cannot be maintained. During the tendency of the suit, D-2 died and D-5 to D-11 were impleaded as legal representatives of D-2. 5th defendant also filed written statement taking a plea that the civil Court has no jurisdiction.
10. The Court of first instance framed the issues and again amended the issues by recasting the issues.
11. Before the Court of first instance, P.Ws. 1 to 3 and D.Ws.1 to 3 were examined. Exs.A-1 to A-15 Exs.B-1 to B-3 and Exs.X-1 and X-2 were marked.
12. The Court of first instance came to the conclusion that the civil Court has no jurisdiction to entertain the suit in view of Section 61 of the Act. It is pertinent to note that having held so the parties could have been given liberty to approach the appropriate Tribunal. Instead, the Court of first instance entered into the merits and demerits. Be that as it may, the matter was carried by way of appeal in A.S. No. 48 of 1991 on the file of the Subordinate Judge, Chirala, and before the appellate Court a cryptic point for consideration had been framed and the appeal also was dismissed.
13. The application for reception of additional evidence was made before the appellate Court and the following documents were filed along with the said application:
1. True copy of vacant site allottees personal Register -1971 -72.
2. Certified copy of Book No. 42 -Pages 212 and 213.
3. Certified copy of Book No. 42 -Pages 166 and 167.
4. The ILTD company staff Cooperative Industrial House Construction Society, J. 152. Chirala Circular issued by the Secretary on 10-3-89.5. Certified copy of Book No. 42 -Page 96
6. Registration Extract of Agreement Dated 20-3-1962 (Document No. 1795/62).
The judgment in A.S. No. 48 of 1991 was delivered by the learned Subordinate Judge, Chirala, on 21st March, 1996, and on the same day in relation to the application for reception of additional evidence i.e. I.A. No. 65/96 filed under Order 41 Rule 27 of the Code of Civil Procedure it was recorded as the main appeal is disposed of, this petition is also dismissed as infructuous. This Court is not inclined to express any opinion touching the merits and demerits of the matter. No doubt, an attempt was made by the counsel on record to convince the Court on the aspect of jurisdiction of the civil Court to entertain the suit. The counsel for appellant contending that inasmuch as the sale deed which is being questioned is in favour of a third party as well, Section 61 of the Act may not be applicable, and on the contrary the counsel representing the respondents asserted that in the light of the clear language of Section 61 of the Act the civil Court cannot entertain such a suit at all and the remedy is elsewhere.
14. However, the decision of the Apex Court in The Premier Automobiles Ltd. case (1 supra) was cited before this Court and the Apex Court at para-5 held as hereunder:
The learned Counsel for the appellant has also placed before us several material pieces of evidence and circumstances including an important admission of the original plaintiff, and in reply the learned advocates for the respondents have relied upon the evidence led on their behalf and accepted by the first two courts. We do not consider it appropriate to deal with them as, inourview, the entire evidence led by the parties requires a fresh consideration by the court of facts. Accordingly, we allow the appeal, set aside the judgments of the appellate court and the High court, and remit the case to the appellate court for a fresh decision in accordance with law. The court will, in the first instance, hear and dispose of the application under Order 41 Rule 27, Civil Procedure Code and only thereafter take up the final hearing of the appeal.
15. In the light of the peculiar facts and circumstances of the case and taking into consideration the nature of the order which was made by the appellate Court in relation to the application for reception of the additional evidence, the decree and judgment of the appellate Court are hereby set aside and the matter is remanded to the appellate Court for the purpose of deciding the application for reception of additional evidence and also further make appropriate orders in the appeal in accordance with law.
16. Accordingly, the appeal is allowed to the extent indicated above and the parties are directed to appear before the learned Senior Civil Judge Court at Chirala on 12-03-2007. No orders as to costs.