Andhra Pradesh High Court - Amravati
Sri Chenakesava Sri Anjaneya Swamy ... vs P.Sambaiah Sambasiva Rao, Guntur Dist ... on 20 November, 2019
Author: M. Venkata Ramana
Bench: M. Venkata Ramana
MVR,J
S.A.No.24 of 2009
1
HON'BLE SRI JUSTICE M. VENKATA RAMANA
SECOND APPEAL No.24 OF 2009
JUDGMENT:
This second appeal is directed against judgment of the Court of learned Principal Senior Civil Judge, Tenali, in A.S.No.45 of 2006 dated 24.07.2008, which was in turn filed against the judgment of the Court of learned I Additional Junior Civil Judge, Tenali, in O.S.No.720 of 2002, dated 04.05.2006.
2. The plaintiff is the appellant. Respondents 1 to 5 are defendants 1 to 5 in the suit.
3. The suit was laid by the appellant, which is a temple for realization of Rs.54,116.23 ps with costs and with future interest at 12% per annum on the suit amount till realization.
4. The case of the appellant in the plaint was as follows:
(1) An extent of Ac.2.80 cents, which is a wet land in Survey No.857 of Katevaram village belonged to the appellant-temple. The first respondent was its' tenant right from the years 1973-74. He had agreed to pay a rent of 40 bags of paddy per annum, by Maghabahula Amavasya.
However, he defaulted to pay rents regularly and whenever he was paying rents, he was collecting receipts from the Executive Officer of the appellant-temple.
(2) Arrears due by the first respondent as on 01.02.1990 towards maktha was 176 bags and 47 kgs of paddy. The second respondent was the Executive Officer of the appellant-temple from 15.07.1987 to 15.09.1990. He collected Rs.6,500/- from the first respondent, referring to the arrears at 139 bags and 16 kgs., of paddy, for the years from 1976-77 to 1987-88, though in all including interest at 12% per annum as agreed, the first MVR,J S.A.No.24 of 2009 2 respondent was liable to pay Rs.26,033.97ps., by then. He had issued a receipt to the first respondent, as if the arrears due was Rs.12,250/- as on 01.02.1990. After deducting Rs.6,500/- on that day, he has shown the balance payable at Rs.5,750/- in collusion with the first respondent making an endorsement to the above effect on the back of the counterfoil maintained by the appellant-temple. However, it was not so stated in the original receipt issued to the first respondent.
(3) The third respondent was Executive Officer of the appellant temple from 15.09.1990 to 21.07.1992 and he got issued a legal notice to the first respondent on 09.09.1991 demanding the above amount. The fourth respondent laid a suit against first respondent in S.C.No.15 of 1993 on the file of the Court of learned Additional Senior Civil Judge, Tenali, for arrears of maktha. While the fifth respondent as successor of fourth respondent as Executive Officer of the appellant temple, when the above suit was dismissed, got filed a Civil Revision Petition No.4886 of 2001 on the file of then composite High Court of Andhra Pradesh at Hyderabad. All these acts by respondents 2 to 4 are in collusion with the first respondent and thus, resulting in serious loss to the appellant temple. Thus, they played fraud on the appellant temple and entries were not reflected in respect of the arrears in D.C.B. maintained in the appellant-temple. The second respondent did not make such entries and on account of improper maintenance of the records, the suit in S.C.No.15 of 1993 was dismissed and C.R.P. referred to above, was also dismissed on the same ground.
(4) The appellant temple had to incur expenses for filing the suit as well as the CRP of Rs.4,000/-. In the circumstances of the fraud played by all the respondents, they are liable to pay the suit amount with costs and with future interest at 12% per annum from the date of suit till realisation.
5. Separate written statements were filed by respondents 1 to 5.
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6. In the written statement of the first respondent while admitting that he was tenant of the land belonging to the appellant-temple as pleaded in the plaint, he denied his liability to pay arrears as alleged and also the alleged collusion between him and other respondents. He further contended that the suit stood barred by time. He further alleged in the written statement that the founder trustee of the appellant temple is a chronic litigant, who developed personal enmity against him and got filed the suit even though there is no claim that could be made.
6(i) The second respondent in the written statement denied the claim in the plaint, of the appellant. It was the specific contention in the written statement of the second respondent that during his period as Executive Officer of the appellant temple, he had collected entire maktha for the year 1988-89 and 1989-90 and Rs.6,500/- from the first respondent towards arrears of maktha payable by him. He also alleged that the Executive Officer of the appellant temple on the date of filing the suit, worked in the same temple for the period from 1983-84 to 1986-87, who did not collect maktha nor take any steps to recover maktha due from the years 1976-77 to 1986-87. The second respondent further contended that he got issued notice to first respondent for recovery of arrears of maktha and also filed O.A.No.149 of 1988 before the Deputy Commissioner of Endowments, Guntur, against the first respondent for eviction on the ground of default of payment of maktha.
(ii) The second respondent attributed animosity to then Executive Officer of the appellant temple on account of their Executive Officers Association affairs since he was the elected president of the association and the candidate supported by the said Executive Officer was defeated leading to his election. He also claimed that he is not a necessary and proper party to the suit and under Section 151 of A.P.Charitable and Hindu Religious Endowments Act, according to him, the suit could not be MVR,J S.A.No.24 of 2009 4 maintained. He further claimed that in view of Sections 58 to 62 of the Act, the authorities concerned are empowered to initiate action against trustee or Executive Officer of the temple for recovery of loss due to misconducts etc., issuing surcharge proceedings in terms of Section 148 of the said Act, which action cannot be questioned in any civil suit. He further claimed that this suit is barred by time.
7. Respondents 3 and 5 while denying the claim of the appellant against them substantially raised, similar contentions, as of the second respondent.
8. The third respondent stated further in his written statement that he had collected entire maktha for the years 1990-91, 1991-92 from the first respondent and got issued a legal notice on 09.09.1991 demanding the first respondent to pay arrears of maktha as per the record available in the appellant temple. He further stated that after receiving legal notice from the appellant temple, he approached Deputy Commissioner of Endowments, to permit him to go through relevant records and since he is not liable to pay, he could not issue any reply. The fifth respondent also stated that he deposed in S.C.No.15 of 1993 on behalf of appellant temple and had taken all necessary steps in that process. He also claimed that in the judgment in S.C.No.15 of 1993 or in CRP, there is no comment against any of the Executive Officers of the appellant temple attributing impropriety.
9. In written statement of the fourth respondent, while denying the claim of the appellant-temple in the plaint, referring to the circumstances leading to filing S.C.No.15 of 1993 against the first respondent, he claimed that when the above suit was pending, he was transferred from the appellant temple. He further stated that he had taken necessary steps including permission from Deputy Commissioner of Endowments, Guntur for MVR,J S.A.No.24 of 2009 5 filing the suit and when he received a legal notice on behalf of the appellant temple, he personally issued a reply on 20.11.2002 stating true and correct facts. Similarly, according to him, when he received a notice from Deputy Commissioner of Endowments, he also sent a reply denying any liability in respect of the appellant temple.
10. Basing on the above pleadings, the learned trial Judge settled the following issues for trial:
1. Whether the suit is maintainable plaintiff is entitled to recover the suit sum as prayed for?
2. To what relief?
11. At the trial, on behalf of the appellant temple, P.W.2 then Executive Officer was examined while relying on Exs.A1 to A36. All the respondents examined themselves as D.W.1 to D.W.5 and through the fourth respondent, Exs.B1 to B3 were marked.
12. Basing on the material, learned trial Judge dismissed the suit holding that it is barred by time and that the liability of the respondents has not been established. The outcome of the suit in S.C.No.15 of 1993 including CRP was also considered by learned trial Judge and ultimately holding that the appellant failed to prove its claim against the respondents, the suit was dismissed and without costs.
13. In the appeal, learned appellate Judge considered the judgment of the trial Court and mainly referring to effect of Sections 61 and 62 as well as Section 151 of A.P.Charitable and Hindu Religious Endowments Act, held that the suit as filed could not be maintained and that the civil Court did not have jurisdiction to entertain the suit. Thus, the decree and judgment of the trial Court were confirmed by the appellate Court. This second appeal is preferred in these circumstances.
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14. Contentions are advanced for the appellant and for the respondents by their learned counsel.
15. The question of law settled by this Court when this matter was admitted on 06.02.2009 is as follows:
"The Court below did not even frame a point for consideration, much less considered whether the defendants played a fraud upon the court by suppressing vital documents and information of relevant DCB registers Ex.A-2 to A-8 and A23 to A29 for dismissing the suit in S.C.No.15/93 dated 27-11-1996 and C.R.O.4886/01 dated 06-12-2001."
16. It is with reference to this question, the matter in the second appeal has to be considered basing on the material.
17. The claim of the appellant in the suit as pleaded is that respondents 2 to 5 facilitated the first respondent in a scheme of fraud on the appellant temple, to avoid payment of arrears of maktha. It is the gist that can be culled out from the plaint averments.
18. Respondents 2 to 4 are no other than former Executive Officers of the appellant temple, who worked for different spells. According to the appellant, this fraud came to light when original of Ex.A1 receipt was produced by the first respondent, during April 2002 and the second respondent was primarily responsible for this fraud. A reference is also made in respect of the earlier claim of the appellant temple in S.C.No.15 of 1993 on the file of the Court of learned Additional Senior Civil Judge, Tenali, against the first respondent for arrears of maktha. As seen from Ex.P9, the judgment in S.C.No.15 of 1993 of the above Court, there is a specific finding that the second respondent did not maintain the required records of the appellant temple in relation to arrears of maktha payable by the first respondent, particularly in the concerned DCB register making appropriate entries.
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19. Original of Ex.A36 is stated to be the receipt corresponding to Ex.A1 counterfoil. On the reverse of Ex.A1, there are certain entries relating to quantum of arrears payable by the first respondent to the appellant temple and it is stated to be incorrect. According to the appellant what was due by 01.02.1990 was 176 bags 47 kgs., of paddy for the period from 1976-77 to 1987-88. Whereas, entries on the reverse of Ex.A1 make out that it was 139 bags and 16 kgs., of paddy. Though it recorded that Rs.6,500/- was paid by the first respondent there under, when it is compared with Ex.A36, only Rs.5,750/- was shown to be due, out of total amount payable at Rs.12,250/- as on 01.02.1990.
20. The liability of the first respondent to pay such arrears was subject matter of S.C.No.15 of 1993, which ended in dismissal by the judgment dated 27.11.1996. C.R.P.No.4886 of 2001 carried to the then composite High Court of Andhra Pradesh at Hyderabad, also ended in dismissal, by the order dated 06.12.2001, confirming the judgment in S.C.No.15 of 1993.
21. The specific claim of the appellant is in relation to the transactions covering not only Ex.A1, Ex.A36 and manner of issuance of notice to the first respondent making such claim under Ex.A11 but also in respect of conduct of proceedings in S.C.No.15 of 1993 as well as C.R.P.No.4886 of 2001 against respondents 2 to 5.
22. All the respondents have set up such defences denying their liability as well as the role attributed to them in the alleged fraud. Another contention raised by them in their defence is as to bar of limitation as well as enforceability of the claim of the appellant temple against them. When these specific questions were raised in the pleadings, the trial Court should have settled appropriate issues in terms of Order 14 Rule 1 and 2 CPC. But as seen from the issues so settled by the trial Court as referred to supra, no specific issue was directed to any one of these pleas and contentions. Only MVR,J S.A.No.24 of 2009 8 a common issue was settled as to maintainability of the suit and entitlement of the appellant to recover the suit amount. The manner in which issues have been settled leaves much to be desired. It is manifest that entire gamut of dispute has not been specifically reflected by this omnibus issue settled by the trial Court for consideration and determination.
23. As seen from the judgment of the appellate Court, though burden is cast to frame points for determination covering all the disputed issues including of facts, learned appellate Judge did not bestow attention in that direction. Framing such points for determination is a requirement in terms of Order XLI Rule 31 CPC. The appellate Court framed, as seen from para- 14 of the judgment, the following points for determination:
1. Whether the plaintiff is entitled to recover the suit amount against the defendants?
2. Whether there are any grounds to set aside the findings of the learned trial Judge?
24. Both the Courts bestowed attention as to application of various provisions of A.P.Charitable and Hindu Religious Endowments Act. The facts, which both the Courts are required to consider have taken a back seat in the process. Both the courts have considered effect of Section 151 of the above Act and whereas, the trial Court took into consideration the effect of Sections 61 and 62 as well as Section 148 of the said Act.
Thereby, the findings recorded are to the effect that the appellant should have pursued remedies before the appropriate authority under the above Act, viz., Deputy Commissioner of Endowments and not by laying a civil suit. They are also to the effect that liability of respondents 2 to 5 be arrived at, by taking out surcharge proceedings in terms of Section 148 of the Act. There is no clear discussion in respect of bar of limitation as such, particularly as seen from the appellate judgment.
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25. When both parties have let-in evidence in support of their respective contentions, it is obligatory for both the Courts to raise appropriate issues, considering the evidence adduced by the parties in respect thereof and record definite findings thereon. As seen from the judgments of both the Courts, no such effort was made. The judgment of the appellate Court is completely confined to questions of law than fact. It is to be borne in mind that the first appellate Court is a last Court of fact. In particular circumstances, the findings recorded by the first appellate Court on questions of fact shall bind the superior courts and the findings so recorded on such questions of fact, cannot lightly be interfered with either in the second appeal or otherwise. Obviously, the first appellate Court was not conscious of these consequences.
26. Added to it, certain parts of the judgment of the trial Court are un- understandable. For instance, para-18 and para-20 can be considered. For facility, they are extracted hereunder:
"18. The allegation of the plaintiff is that D2 to D5 committed fraud in collecting maktha and in suit O.S.15/1993. As discussed above D2 collected the maktha during his tenure and also collected previous maktha and some amount was time barred by that time. On the other hand, on behalf of the plaintiff, it is stated that they have noticed the fraud and within one year they filed the suit and suit is maintainable. As per Section 151 of the Act, if there is any such fraud it comes under the administration of the management of subject temple and as per Section 151 of the Act no suit or other legal proceedings shall be instituted in any court of law. In these circumstances, the contention raised by the plaintiff that there is no specific provision for filing the suit for fraud or in collusion of the executive officers. Hence, the above section applies is not tenable. As seen from the record, no action was taken or departmental proceedings were initiated against the defendants. If they detected any fraud or collusion against the defendants and they filed the present suit and it is not maintainable as per Section 151 of the Act.
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20. As seen from the record, the previous officer worked earlier to D2 not collected the maktha and during his tenure D2 collected some amount and by the date of his tenure some of the arrears of the maktha are barred by limitation. In the circumstances, it cannot be said that D2 and D3 committed fraud with collusion of D1 and also D3 and D4 not property followed with S.C.No.15 of 1993. The plaintiff temple without proceeding with the departmental enquiry filed the present suit."
27. A careful reading of these two paragraphs did not give any indication that the facts in issue were considered in proper perspective.
28. Only area of discussion relating to the facts in the appellate judgment is, with reference to observations of the trial Court and it is in para-18. It reads as follows:
"The learned Trial Judge in its judgment held that the plaintiff admitted in his pleadings that during tenancy of the second defendant he collected the amount from the first defendant for the previous years and also it is an admitted fact that due to pressure of D2 he did not take any steps to collect the maktha from D1. The learned trial Judge went on to hold that when the arrears of the amount became barred by limitation. It cannot be said that D2 played fraud and collected lesser amount. D2 worked during period from 15.07.1987 to 15.09.1990. D3 worked from 15.09.1990 to 21.07.1992. D4 worked from 21.07.1992 to 08.08.1993. D5 worked from 11.09.1996 to 13.07.2000. Now the amounts that are sought to be recovered by the plaintiff is for the period from 1976-77 to 1987-88. For those amounts which are due by the first defendant of Rs.26,033/-. The plaintiff filed the suit for the loss sustained by 01.02.1990. Admittedly as seen from the record the Small Cause 15/93 was dismissed on 27.11.1996. But the C.R.P. mentioned in the plaint appears to have been filed 4886/2001. This shows that the plaintiff temple had filed the CRP long after the dismissal of the small cause in 1996. It clearly presupposes that the CRP was not filed within time by the temple. So now the plaintiff claims that after the dismissal of CRP on 06.12.2001, it had filed the suit against the defendant for the loss sustained."
29. In the backdrop of these circumstances, when the whole approach of the Courts below is found to be absolutely unsatisfactory, in view of the MVR,J S.A.No.24 of 2009 11 question of law formulated by this Court for determination in this second appeal, the course now appears and desirable to follow is to relegate matter to the trial Court for fresh consideration and determination.
30. In this context, the contention advanced on behalf of the appellant temple in respect of bar of limitation should be considered. It is with reference to application of Section 143 of A.P.Charitable and Hindu Religious Endowments Act, 1987. This contention on behalf of the appellant cannot be brushed aside. Section 143 of this Act reads as follows:
"143. Property of Charitable or religious institution or endowment not to vest under the law of limitation after commencement of this Act: Nothing in any law of limitation for the time being in force shall be deemed to vest in any person the property or funds of any charitable or religious institution or endowment which have not vested in such person or his predecessor in title before the 30th September, 1951, in the Andhra Area of the State and the 26th January, 1967 in the remaining area of the State."
31. It covers the funds relating to a charitable or religious institution or endowment. When there is insulation for the claims of such institutions, in terms of Section 145 of this Act as to applicability of law of limitation, both the Courts below should have addressed this issue in proper perspective.
32. Therefore, in view of nature of the judgments as well as decrees of both the Courts below, there is no other option but to remand the matter. At this stage, this Court is empowered when interest of justice required to exercise such power.
33. Therefore, the second appeal has to be allowed setting aside the judgments of both the Courts below, remanding the matter to the trial Court for fresh consideration upon settling appropriate issues in tune with the pleadings raised by the parties. It is desirable that the parties be MVR,J S.A.No.24 of 2009 12 heard by the trial Court before settling such issues and therefore, this Court did not undertake such exercise of settling the issues in the matter, when remanding the case for fresh consideration.
34. In the result, the second appeal is allowed. The decree and judgment of the Court of learned Principal Senior Civil Judge, Tenali, in A.S.No.45 of 2006 dated 24.07.2008 and decree and judgment of the Court of learned I Additional Junior Civil Judge, Tenali, in O.S.No.720 of 2002, dated 04.05.2006, are set aside. The matter is remanded to the Court of learned I Additional Junior Civil Judge, Tenali, to consider afresh, including settling appropriate issues based on the pleadings of the parties. For this purpose, parties are given an opportunity to be heard. They shall also be given an opportunity to amend the pleadings if necessary and let-in fresh evidence. The trial Court is directed to consider question of jurisdiction also upon framing an appropriate issue and in the light of the material placed by the parties. This entire exercise shall be completed by the trial Court within a period of six (6) months from the date of receipt of copy of this judgment. Parties are directed to bear costs throughout. Pending petitions, if any, shall stand closed. Registry is directed to forward all the records received to the Court of learned I Additional Junior Civil Judge, Tenali, immediately, for consideration.
____________________ M. VENKATA RAMANA, J Dt:20.11.2019 Rns MVR,J S.A.No.24 of 2009 13 HON'BLE SRI JUSTICE M. VENKATA RAMANA SECOND APPEAL No.24 OF 2009 Date:20.11.2019 Rns