Andhra Pradesh High Court - Amravati
Uppalapu Venkata Krishna Rao vs Gajavalli Venkata Ramesh Bhavani ... on 23 January, 2023
IN THE HIGH COURT OF ANDHRA PRADESH AT AMARAVATI
CIVIL REVISION PETITION Nos.2483, 2560 and 2561 of
2022
Between:
Uppalapu Venkata Krishna Rao, S/o
Venkateswara Rao, Hindu, aged 47, R/o
D.No.31-15-35A, Katurivari Street, Machavaram,
Vijayawada.
... Petitioner/Plaintiff in three CRPs.
Versus
Gajavalli Venkata Ramesh Bhavani Prasad (Died)
and nine others.
... Respondents in three CRPs.
DATE OF ORDER PRONOUNCED : 23.01.2023
SUBMITTED FOR APPROVAL:
HONOURABLE SRI JUSTICE SUBBA REDDY SATTI
1. Whether Reporters of Local Newspapers
may be allowed to see the order? : Yes/No
2. Whether the copy of order may be
marked to Law Reporters/Journals? : Yes/No
3. Whether His Lordship wish to
see the fair copy of the order? : Yes/No
__________________________
SUBBA REDDY SATTI, J
Page 2 of 18
SRSJ,
CRP Nos.2483, 2560, 2561 of 2022
* HONOURABLE SRI JUSTICE SUBBA REDDY SATTI
+ CIVIL REVISION PETITION Nos.2483, 2560 and 2561 of
2022
% 23.01.2023
CIVIL REVISION PETITION Nos.2483, 2560 and 2561 of 2022:
Uppalapu Venkata Krishna Rao, S/o
Venkateswara Rao, Hindu, aged 47, R/o
D.No.31-15-35A, Katurivari Street, Machavaram,
Vijayawada.
... Petitioner/Plaintiff in three CRPs.
Versus
Gajavalli Venkata Ramesh Bhavani Prasad (Died)
and nine others.
... Respondents in three CRPs.
! Counsel for Petitioner : Smt.V.Disha Chowdary
^ Counsel for Respondents : Sri K.G.Krishna Murthy,
learned Senior Counsel
representing Sri Chalasani
Ajay Kumar
< Gist:
> Head Note:
? Cases referred:
1) AIR 2002 SC 1201
2) AIR 1971 SC 742
3) (2010) 9 SCC 385
This Court made the following:
Page 3 of 18
SRSJ,
CRP Nos.2483, 2560, 2561 of 2022
HONOURABLE SRI JUSTICE SUBBA REDDY SATTI
CIVIL REVISION PETITION Nos.2483, 2560 and 2561 of
2022
Between:
Uppalapu Venkata Krishna Rao, S/o
Venkateswara Rao, Hindu, aged 47, R/o
D.No.31-15-35A, Katurivari Street, Machavaram,
Vijayawada.
... Petitioner/Plaintiff in three CRPs.
Versus
Gajavalli Venkata Ramesh Bhavani Prasad (Died)
and nine others.
... Respondents in three CRPs.
Counsel for the petitioner : Smt.V.Disha Chowdary
Counsel for respondent No.6 : Sri K.G.Krishna Murthy, learned
Senior Counsel representing Sri
Chalasani Ajay Kumar
COMMON ORDER
Plaintiff, in the suit, filed above revisions aggrieved by the order dated 19.09.2022 in I.A.No.149 of 2022 in O.S.No.382 of 2013 on the file of the XIV Additional District Judge-cum- Judge, Additional Family Court, Vijayawada and I.A.Nos.150 of 2022 and 151 of 2022.
Page 4 of 18
SRSJ, CRP Nos.2483, 2560, 2561 of 2022
2. Plaintiff filed suit O.S.No.382 of 2013 for declaration that the plaintiff is the absolute owner of plaint B schedule property and the sale deeds dated 11.10.2011 and 13.06.2012 and all other subsequent documents entered and executed in between the defendants are not valid under law and not binding on the plaintiff and for consequential relief of permanent injunction.
3. In the plaint, it was contended interalia that defendants 1 to 4 are owners of schedule property admeasuring 636 square yards of site bearing D.No.27-19-8 situated in Durgaiah Street, Governorpet, Vijayawada described as plaint A schedule property; that defendants 1 to 4 entered into a development agreement with the plaintiff and another by name Mallikarjuna Reddy to develop the property and to construct cellar, ground, first, second and third floors in the above said site; that plaintiff obtained necessary permission from the Municipal Corporation, Vijayawada in the name of defendants 1 to 4 by paying necessary charges; that defendants 1 to 4 came to an understanding to construct fourth floor in the above said site with a specific understanding that all expenses, fees for construction are to be shared by both of them equally; that defendants 1 to 4 are having 50% share and plaintiff is having Page 5 of 18 SRSJ, CRP Nos.2483, 2560, 2561 of 2022 50% share each in the constructed area; that the plaintiff has to invest all the amounts for the purpose of obtaining permission and to complete the entire construction; that defendants 1 to 4 delivered possession of plaint A schedule property and the plaintiff completed construction as per the understanding that plaintiff; that defendants 1 to 4 and partner of plaintiff entered into Memorandum of Understanding (MOU) dated 28.01.2010; that as per that MOU plaintiff is entitled for first and second floors towards his share described as plaint B schedule; that defendants 1 to 4 are entitled to remaining share i.e. ground, third and fourth floors; that cellar and terrace of building have to be shared as per floor ratio; that Mallikarjuna Reddy is having no manner of right since his claim was settled by plaintiff and defendant 1 to 4; that MOU was duly acknowledged and signed by said Mallikarjuna Reddy; that defendants 1 to 4 agreed to pay Rs.40 lakhs to plaintiff, which was paid to defendants 1 to 4 as security deposit as per the terms of agreement dated 13.10.2006; that plaintiff has to complete unfinished part on or before 31.12.2020 and to provide other amenities; that plaintiff and defendants 1 to 4 are entitled to sell their respective shares in the building; that if the Page 6 of 18 SRSJ, CRP Nos.2483, 2560, 2561 of 2022 plaintiff sells his share of property, defendants 1 to 4 have to execute regular sale deeds in the name of purchasers or their nominees; that plaintiff several times requested defendants 1 to 4 to execute regular necessary deeds in his favour or his nominees regarding first and second floors as per MOU dated 28.01.2010, however, defendants 1 to 4 postponed to execute the same; that plaintiff subsequently came to know that defendants 1 to 4 without having any manner of right over first and second floors i.e. plaint B schedule property created collusive, sham and nominal documents in the name of 5 th defendant by way of sale deeds dated 13.06.2012 and 11.10.2011; that 5th defendant in turn executed agreement of sale-cum-General Power of Attorney dated 29.06.2012 in favour of 6th defendant in respect of item No.1 of plaint B schedule property; that 6th defendant executed sale deed dated 19.10.2013 onto himself basing on sale agreement-cum-GPA dated 29.06.2012; that 5th defendant also created mortgage in respect of second floor, item No.2 of plaint B schedule property, in the name of defendants 7 to 9 on 02.03.2012; that plaintiff never delivered possession of property to defendants 1 to 4; that above documents are sham, collusive and nominal documents; Page 7 of 18
SRSJ, CRP Nos.2483, 2560, 2561 of 2022 that 6th defendant in fact filed complaints against the plaintiff, resulted in initiating proceedings under Section 145 (1) of Cr.P.C and thus, filed the suit for the reliefs stated supra.
4. 6th Defendant filed written statement and is contesting the suit.
5. 5th defendant died on 29.05.2017.
6. Pending the suit, I.A.No.149 of 2022 is filed under Section 5 of the Limitation Act to condone the delay of 685 days in filing the petition to set aside abatement; I.A.No.150 of 2022 is filed under Order XXII Rule 9 and Section 151 of CPC to set aside abatement caused due to death of the 5th defendant and I.A.No.151 of 2022 is filed under Order XXII Rule 4 and Section 151 of CPC to implead the legal representatives of deceased 5th defendant i.e. his mother Kancherla Annapurna, W/o K.Janakiramaiah as 10th defendant in the suit.
7. In the affidavit filed in support of the petitions to condone delay, set aside abatement and to implead the legal representatives, it was contended that a memo was filed by learned counsel for 6th defendant on 21.01.2020 about death of Page 8 of 18 SRSJ, CRP Nos.2483, 2560, 2561 of 2022 5th defendant, then petitioner came to know about death; that on enquiry, he came to know that 5th defendant died leaving behind his mother and recently the petitioner came to know about the particulars of legal heirs of deceased and hence filed the petition to condone the delay of 685 days in filing the petition to set aside the abatement, to set aside abatement and to add legal representatives of deceased 5th defendant.
8. 6th Respondent filed counter opposing the application. In the counter, it was contended interalia that 6th respondent filed memo dated 05.09.2018 and brought to the notice of Court about death of 5th defendant and the same was recorded by the Court; that contrary to the said fact, petitioner deposed in his cross examination on 20.12.2019 that he does not know about death of 5th defendant; that plaintiff did not take steps to bring legal representatives of deceased 5th defendant on record till filing of memo dated 21.01.2020; that no reasons were assigned for not taking steps to bring the legal representatives on record; that the delay is more than 685 days and thus, prayed to dismiss the applications.
Page 9 of 18
SRSJ, CRP Nos.2483, 2560, 2561 of 2022
9. Heard Sri A.S.C.Bose, learned counsel representing Smt.V.Disha Chowdary, learned counsel for petitioner and Sri K.G Krishna Murthy, learned senior counsel representing Sri Chalasani Ajay Kumar, learned counsel for 6th respondent.
10. Learned counsel for petitioner would submit that petitioner is not aware of death of 5th defendant till memo dated 21.01.2020 was filed by learned counsel for 6th defendant. He would also submit that in the memo dated 21.01.2020 no particulars of death of 5th defendant were mentioned, except stating that 5th defendant died and hence, intimated. He would also submit that despite best efforts, plaintiff could not get particulars of legal representatives of 5th defendant and hence, immediately he could not file the application. He would submit that in the cross examination of P.W.1 on 20.09.2019 he deposed that he does not know about death of 5th defendant. He would also submit that 6th defendant being purchaser of property from 5th defendant is already on record representing the estate of 5th defendant, however to avoid other technicalities, filed the application to bring the mother of 5 th defendant on record as 10th defendant and the trial Court Page 10 of 18 SRSJ, CRP Nos.2483, 2560, 2561 of 2022 without considering these aspects dismissed the application and thus, prayed to set aside the order.
11. Learned senior counsel for 6th respondent would submit that when memo dated 05.09.2018 was filed intimating the death. Counsel for plaintiff, inturn, filed memo stating that defendants 2 to 4 who are legal representatives of 1st defendant are already on record and there is no need to implead the legal representatives of 1st defendant and in respect of 5th defendant, it was mentioned in the memo that to his knowledge there are no legal heirs. He would submit that the affidavit filed by petitioner to the effect that he is not aware of death of 5th defendant till the memo dated 21.01.2020 filed by 6th defendant in the Court is not true and correct. He would also submit that no proper explanation was mentioned in the affidavit regarding delay. He would also submit that trial Court in fact after considering all these aspects dismissed the application and thus, prayed the Court to dismiss the revisions.
12. Now, the point for consideration is:
Whether the Court below failed to exercise jurisdiction vested with it warranting interference Page 11 of 18 SRSJ, CRP Nos.2483, 2560, 2561 of 2022 of this Court under Article 227 of the Constitution of India?
13. As discussed supra, suit is filed for declaration and permanent injunction. Plaintiff pleaded MOU between plaintiff on one side and defendants 1 to 4 on the other. According to plaintiff, as per MOU, he is entitled to first and second floors. Plaintiff further pleaded that defendants 1 to 4 alienated plaint B schedule property to 5th defendant under registered sale deeds dated 13.06.2012 and 11.10.2011 and 5 th defendant in turn executed an agreement of sale-cum-GPA dated 29.06.2012 in respect of item No.1 of plaint B schedule in favour of 6th defendant, who in turn got the sale deed onto himself in respect of item No.1 of plaint B schedule on 19.10.2013. In respect of item No.2 of plaint B schedule property, basing on agreement of sale-cum-GPA, 5th defendant mortgaged item No.2 of plaint B schedule in favour of defendants 7 to 9 o 02.03.2012.
14. During the course of arguments, learned counsel for petitioner would submit that defendants 1 to 5 remained exparte in the suit and they are not contesting the suit. A perusal of memo filed by 6th defendant reads as follows: Page 12 of 18
SRSJ, CRP Nos.2483, 2560, 2561 of 2022 "It is submitted that the 5th defendant in the above suit died. Hence, intimated."
15. No particulars as to when death took place or details of legal representatives are mentioned in the memo. It is also pertinent to mention here that a memo was filed on behalf of plaintiff on 05.09.2018 stating that to the knowledge of plaintiff 5th defendant had no legal heirs. The affidavit filed in support of I.A.No.149 of 2022 would disclose that after filing of memo dated 21.01.2020 plaintiff came to know about death of 5 th defendant. After enquiry, he could get the particulars of legal representatives of 5th defendant and hence, filed the application. However, in filing petition under Order XXII Rule 9 of CPC, delay of 685 days is occurred.
16. The Hon'ble Apex Court in Ram Nath Sao alias Ram Nath Sahu and others Vs. Gobardhan Sao and others1, was pleased to condone the delay of 130 days in filing the application for substitution while setting aside the High Court's order in declining to entertain the application.
17. In the case on hand, plaintiff prayed to set aside the documents executed by defendants 1 to 4 in favour of 5 th 1 AIR 2002 SC 1201 Page 13 of 18 SRSJ, CRP Nos.2483, 2560, 2561 of 2022 defendant and consequential documents executed by 5th defendant in favour of 6th defendant and defendants 7 to 9 respectively. Defendants 1 to 5 are not contesting the suit. 6 th defendant who has been contesting the suit filed memo which has been extracted supra. Even a perusal of memo does not indicate the date of death, except stating that 5th defendant died. It is also pertinent to mention here that a memo, inturn, was filed on behalf of plaintiff that 5th defendant died, however to the knowledge of plaintiff, there are no legal heirs to 5th defendant. In fact, plaintiff as P.W.1 deposed in his cross examination that he does not know about death of 5th defendant. A memo dated 05.09.2018 said to have been filed by counsel for plaintiff, is without the signature of plaintiff. Apart from that 6th defendant, who is a purchaser of item No.1 of plaint B schedule is representing the estate of deceased 5th defendant.
18. As per Section 2 (11) of CPC, "legal representative"
means a person who in law represents the estate of a deceased person, and includes any person who intermeddles with the estate of the deceased and where a party sues or is sued in a Page 14 of 18 SRSJ, CRP Nos.2483, 2560, 2561 of 2022 representative character the person on whom the estate devolves on the death of the party so suing or sued.
19. Thus, as per the above definition, 6th defendant also can be termed as legal representative of 5th defendant in respect of item No.1 of B schedule property. Once the representative of deceased is already on record, on the date of party, suit does not abate against the said person. In respect of item No.2 of B schedule property, it is only a mortgage in favour of defendants 7 to 9 by 5th defendant. Hence, legal representatives of 5th defendant should be brought on record. Since one of the legal representatives of the deceased 5th defendant is already on record, the suit does not abate on the death of 5th defendant.
20. In Mahabir Prasad Vs. Jage Ram and Ors.2, the Hon'ble Apex Court held thus:
"Where in a proceeding a party dies and one of the legal representatives is already on the record in another capacity, it is only necessary that he should be described by an appropriate application made in that behalf that he is also on the record, as an heir and legal representative. Even if there are other heirs and legal representatives and no application for impleading them is made within the period of limitation prescribed by the Limitation Act the proceeding will not abate. On that ground also the order passed by the High Court cannot be sustained."2
AIR 1971 SC 742 Page 15 of 18 SRSJ, CRP Nos.2483, 2560, 2561 of 2022
21. In view of ratio referred supra, since the suit does not abate against 5th defendant, delay to set aside abatement does not arise as such there is no need to file petition to condone the delay. In view of the same, the judgments relied on the learned counsel have no application to the facts of the case.
22. All the rules of procedure are the handmaid of justice. The language employed by the draftsman of procedural law may be liberal or stringent, but the fact remains that the object of prescribing procedure is to advance the cause of justice. In an adversarial system, no party should ordinarily be denied the opportunity of participating in the process of justice dispensation. Unless compelled by express and specific language of the Statute, the provisions of the CPC or any other procedural enactment ought not to be construed in a manner which would leave the court helpless to meet extraordinary situations in the ends of justice.
23. Suit is to be disposed of on merits. When substantial justice and technical considerations are pitted against each other, the cause of substantial justice deserves to be preferred Page 16 of 18 SRSJ, CRP Nos.2483, 2560, 2561 of 2022 for the other side cannot claim to have vested right in injustice being done.
24. In Jai Singh and Ors. Vs. Municipal corporation of Delhi and Ors.3, while dealing with scope and ambit of Article 227 of the Constitution of India, the Hon'ble Apex Court held thus:
25. Undoubtedly, the High Court has the power to reach injustice whenever, wherever found. The scope and ambit of Article 227 of the Constitution of India had been discussed in the case of The Estralla Rubber v. Dass Estate (P) Ltd.
: (2001) 8 SCC 97 wherein it was observed as follows:
"The scope and ambit of exercise of power and jurisdiction by a High Court under Article 227 of the Constitution of India is examined and explained in a number of decisions of this Court. The exercise of power under this article involves a duty on the High Court to keep inferior courts and tribunals within the bounds of their authority and to see that they do the duty expected or required of them in a legal manner. The High Court is not vested with any unlimited prerogative to correct all kinds of hardship or wrong decisions made within the limits of the jurisdiction of the subordinate courts or tribunals. Exercise of this power and interfering with the orders of the courts or tribunals is restricted to cases of serious dereliction of duty and flagrant violation of fundamental principles of law or justice, where if the High Court does not interfere, a grave injustice remains uncorrected. It is also well settled that the High Court while acting under this article cannot exercise its power as an appellate court or substitute its own judgment in place of that of the subordinate court to correct an error, which is not apparent on the face of the record. The High Court can set aside or ignore 3 (2010) 9 SCC 385 Page 17 of 18 SRSJ, CRP Nos.2483, 2560, 2561 of 2022 the findings of facts of an inferior court or tribunal, if there is no evidence at all to justify or the finding is so perverse, that no reasonable person can possibly come to such a conclusion, which the court or tribunal has come to."
25. Thus, High Court while exercising power under Article 227 of the Constitution of India, can exercise its discretion to interfere in the following circumstances:
(a) When the inferior court assumes jurisdiction erroneously in excess of power.
(b) When refused to exercise jurisdiction.
(c) When found an error of law apparent on the face of record.
(d) Violated principles of natural justice.
(e) Arbitrary or capricious exercise of authority or discretion.
(f) Arriving at a finding which is perverse or based on no material.
(g) A patent or flagrant error in procedure.
(h) Order resulting in manifest injustice and
(i) Error both on facts and law or even otherwise.
26. The case on hand, in view of above discussion, this Court is of the opinion that Court below failed to exercise jurisdiction vested with it. The order of the trial court is liable to be set aside.
27. Accordingly, the order dated 19.09.2022 in I.A.No.149 of 2022 in O.S.No.382 of 2013 on the file of the XIV Additional District Judge-cum-Judge, Additional Family Court, Vijayawada Page 18 of 18 SRSJ, CRP Nos.2483, 2560, 2561 of 2022 is set aside. I.A.No.149 of 2022 stands allowed. Consequently, I.A.No.150 of 2022 and I.A.No.151 of 2022 are allowed. Petitioner shall file fair copy of the plaint after making necessary amendments as indicated supra by impleading the legal representatives of deceased 5th defendant i.e. his mother Kancherla Annapurna, W/o K.Janakiramaiah as 10th defendant in the suit.
28. Accordingly, the Civil Revision Petitions are allowed. No costs.
As a sequel, all the pending miscellaneous applications shall stand closed.
_________________________ SUBBA REDDY SATTI, J 23rd January, 2023 PVD