Andhra HC (Pre-Telangana)
Majeti Venkateswarlu vs Pothuri Tulasidas And Anr. on 6 August, 2003
Equivalent citations: 2004(4)ALD543, 2004(4)ALT770
Author: E. Dharma Rao
Bench: E. Dharma Rao
JUDGMENT B.S.A. Swamy, J.
1. Both these Letters Patent Appeals arise out of the orders passed by the learned Single Judge and they arise from very same cause of action.
2. We are astonished to see the comedy of errors that have taken place in these cases and how all the concerned i.e., Judges and Advocates, involved in the administration of justice, are casually discharging their duties without any concern to the clients and the plight of the clients is becoming miserable. The clients approach the members of the legal fraternity thinking that they have expertise knowledge and they will be helping them to come out of the miseries, in which they are placed.
3. After hearing both the Counsel and after going through the records, the factual position emerges as under.
4. The parties are referred to as they are arrayed in the suit OS No. 14 of 1978.
5. One Smt. Pothuri Sesharatnamma gifted land to her son under registered gift deed dated 4.4.1972. According to the learned Counsel for 1st respondent in the L.P.As. i.e., Mr. Pothuri Tulasidas, subsequently some disputes seem to have arisen, and both the parties approached Civil Court. The first respondent filed OS No. 338 of 1974, which was subsequently transferred to Subordinate Judge's Court, Guntur and numbered as OS No. 135 of 1978. Ultimately, gift seems to have been upheld by the Court and the suit OS No. 135. of 1978 was decreed on 24.10.1979. In the meantime, the donor i.e., Pothuri Sesharatnamma, sold the said land to one Majeti Venkateswarlu, under agreement of sale dated 19.1.1976. When the vendor was not coming forward to execute the sale deed, the plaintiff got issued legal notice for execution of the sale deed. A reply notice was sent by the vendor stating that she never executed the agreement of sale. Under these circumstances, the plaintiff filed OS No. 14 of 1978 on the file of the I Additional Subordinate Judge, Narsaraopet, making the vendor and her son donee as party defendants. After the written statement was filed, the defendants seem to have filed IA No. 2978 of 1983 under Order 14, Rule 5 of the Code of Civil Procedure (for brevity the Code) to decide certain issues as preliminary issues. The Court below by order dated 2.8.1984 held in favour of the defendants.
6. Aggrieved by the said order, the plaintiff filed A.S. No. 2168 of 1984 on 3.9.1984 along with two Civil Miscellaneous Petitions to dispense with the lodgment schedule and seeking stay of the operation of the order and a learned Single Judge of this Court after dispensing with the lodgment schedule took up stay petition for hearing on 26.9.1984. The defendants having filed caveat through one Mr. S.L. Chennakesava Rao, sought two weeks time for filing counter and the matter was adjourned by two weeks. Thereafter, the civil miscellaneous petition seemed to have not seen the light of the day. Having taken time to file counter the donee filed I.A. No. 2114 of 1984 in the Trial Court seeking dismissal of the suit on the basis of the orders passed in I.A. No. 2978 of 1983, making his mother as Respondent No. 2. The docket sheet orders on this petition shows that notice was ordered on 10.8.1984 returnable by 30.8.1984. No where we find in these proceedings that the notice was served on the plaintiff. The mother filed her counter and the Court passed following order on 24.8.1984 "counter of R-2 filed. For enquiry on 28.8.1984". Thereafter, the matter went some more adjournments and ultimately on 24.10.1984, the Court passed the following order:
"...Respondents called absent. Set ex parte. Heard. Petition allowed..."
7. Thus, it cannot be said that notice was served on the plaintiff before dismissing the suit, though mother filed counter, since she is sailing with the son, she remained ex parte and the suit itself was dismissed.
8. Aggrieved by the said order, Letters Patent Appeal No. 17 of 1998 is filed.
9. From this, it is evident that the donee has played fraud on the Court for several reasons. Firstly, having filed caveat and obtained time to file counter, he would not have filed an application to dismiss the suit. Secondly, knowing fully well that the plaintiff carried the matter in appeal and appeared before the Appellate Court, he did not bring this fact to the notice of the Trial Court at the time when the suit was dismissed. Thirdly, according to the Counsel for the donee, the appeal is not maintainable and it is only revision that has to be filed. Whether revision has to be filed or an appeal, we need not go into this aspect of the matter. Since, 90 days time is given to the affected party to agitate correctness of the order in the superior Court. Under Section 96 of the Code, again the time limit for obtaining certified copy of the order has to be excluded. In this case, even before expiry of 90 days from the date of passing of the order, the Trial Court dismissed the suit. For all these reasons, the order of the Trial Court in dismissing the suit is vitiated and we have to go to the extent of recording a finding that fraud was played on the Court. Subsequently, the donee, having allowed the matter to settle for some time, started trying to sell away the property in 1993. Under those circumstances, the plaintiff filed CMP No. 9448 of 1993 seeking injunction restraining the donee from alienating the suit schedule property in OS No. 14 of 1978 and a learned Single Judge of this Court not only granted interim injunction but the same was also made absolute on 1.10.1993, when a Vacate CMP No. 12300 of 1993 was filed. While making the stay absolute, the learned Judge seems to have directed the office to post the appeal for hearing on 6.10.1993 and, as usual, the Registry did not comply with this direction. Subsequently, the appeal came to be heard in 1994. At that time, the Counsel for the plaintiff was not appearing before the Court due to certain personal problems and on 20.6.1994, when the appeal reached for hearing, the Counsel appearing for donee simply stated that the suit was dismissed by the Trial Court way back on 25.10.1984.
10. On the basis of the submission made by the Counsel, the learned Single Judge dismissed the Appeal as infructuous without applying his mind whether the procedure followed by the Court below is correct or not, more so when the order on the basis of which the Trial Court dismissed the suit is being assailed in the appeal before him. Aggrieved by the said Judgment and decree LPA No. 17/98 was filed.
11. Subsequently, the plaintiff having obtained certified copy of the order in IA No. 2144 of 1984 dated 23.10.1984 filed AS (SR) No. 33938 of 1994, with an application CMP No. 10560 of 1994 to condone the delay of nine years, five months and 20 days in filing the appeal by giving entire factual background. That application was dismissed by another learned Single Judge. This application was contested by the donee by stating that the plaintiff is having knowledge of the order dated 25.10.1984. The learned Judge having faithfully extracted the contents of the affidavit and counter-affidavit, unfortunately without looking into the orders passed by the Trial Court, jumped at the conclusion that the plaintiff is having knowledge of the order passed by the Trial Court on 25.10.1984 in the following words:
" ...from these facts, it is clear that the petitioner's Counsel was in fact served with notice in IA No. 2144 of 1984, and he also filed a counter to that IA. Therefore, the petitioner's allegation that he came to know of the passing of the order in IA No. 2144 of 1984 for the first time on 21.1994, or subsequently thereafter, is absolutely false..."
12. On the other hand, the record of the Trial Court clearly shows that no notice was served on the plaintiff personally, the person who was served with the notice was donor and the order was passed in the absence of plaintiff. It is only after the appellate Court dismissed the appeal on 20.6.1994, the plaintiff came to know of this order and preferred appeal. Since the CMP was dismissed, Letters Patent Appeal No. 16 of 1998 was filed.
13. Mr. Srinivas, learned Counsel appearing for the respondents herein tried to defend the orders by raising the following contentions:
14. The very Appeal as No. 2168 of 1984 is not maintainable since it was filed against an interlocutory order deciding the preliminary issue in favour of the defendants. It is only a revision that has to be filed. Firstly, the appeal was not dismissed on the ground of non-maintainability of the appeal. The appeal was dismissed on the ground that the very suit was dismissed during the pendency of the appeal. Secondly, the office has taken an objection with regard to the maintainability of the appeal. But the Registry having been satisfied with the explanation offered by the Counsel for the appellant that the Trial Court while deciding the preliminary issue, adjudicated the rights of the parties, only an appeal has to be filed, the appeal was numbered. Thirdly, even if the appeal was filed instead of revision, if this fact was brought to the notice of the Court, the Court is having inherent jurisdiction to convert the appeal into revision and decide the merits of the case. That has not happened in this case. Hence, this contention has no legs to stand.
15. Now the question that arises for consideration would be whether the learned Judge is right in dismissing the appeal on the ground that the Trial Court dismissed the suit.
16. Admittedly, the suit was not dismissed on merits, but it was dismissed following the order passed by the Trial Court in I.A. No. 2978 of 1983. Hence, the very , basis for dismissal of the suit is the order dated 2.8.1984, which was under appeal before this Court. Even if the Trial Court erroneously dismissed the suit, since it is only a consequential order, following its earlier order, that can always be set right by the appellate Court while considering the merits of the appeal that has arisen from the earlier order.
17. The decision G. Ramegowda v. Special Land Acquisition Officer, Bangalore, , deals with the delay in filing the appeal filed under Section 54 of the Land Acquisition Act. In that case, by the time, the Special Leave Petition came up for hearing; the very appeals were disposed of by the High Court. The Counsel appearing for the Government contended that the Special Leave Petition preferred against the order of the High Court condoning the delay in filing the appeal does not survive at all and must be held to have been infructuous. Their Lordship in paragraph No. 5 of the judgment observed as under:
"... We might, perhaps, deal with the latter submission of Shri Veerappa first. The fact that the main appeals are themselves, in the meanwhile, disposed of finally on the merits by the High Court would not by itself detract from and bar the consideration of the correctness of the order condoning the delays. This is an instance of what are called 'dependant-orders' and if the order executing the delays is itself set aside in these appeals, the further exercise, made in the meanwhile by the High Court finally disposing of the appeals would be rendered nugatory. The submission of Shri Veerappa is, therefore, insubstantial... "
18. So from this it is evident that even if the Trial Court passed an order on an erroneous application of law, since the very order holding that the judgment in previous case between the donor and donee operates as res judicata, still awaits the judgment of the appellate Court. The appellate Court, without adjudicating the appeal on merits, wrongly dismissed the appeal itself, which is not permissible in law. The very action of the learned Judge in dismissing the very appeal cannot be sustained. Hence we hold that the learned Judge committed grave error in dismissing the appeal without considering the merits of the case.
19. Mr. Srinivas, further contended that if the appeal is converted as revision by the Court, the Letters Patent Appeal is not maintainable.
20. We have already recorded the reasons how the matter was disposed of as an appeal. Since the matter was disposed of an appeal we are bound to deal with the matter passed in an appeal, but not in Revision. Hence, we do not find any substance in this contention.
21. Lastly Mr. Srinivas, contended that even if the orders of the Courts below are set aside, still the Court has to adjudicate the correctness or otherwise of the orders of the Trial Court in IA No. 2978 of 1983 dated 2.8.1984.
22. We have no quarrel with the proposition. Normally the matter would have to remanded to the learned Single Judge, But since all the first appeals are being heard by a Division Bench, after amendment to the Code, and this Court is having provision to dispose of the Appeal No. 2168/94, we propose to decide the correctness or otherwise of the order, since the other appeal is only a consequential order though of the year 1994.
23. The plaintiff filed OS No. 14 of 1978 seeking the relief of specific performance of the agreement of sale dated 19.1.1976 executed by the 2nd defendant -mother of the first defendant. In the written statement, the 2nd defendant has taken a stand that she never executed the agreement of sale and it is a fabricated one. The first defendant has taken a stand that his mother executed a gift deed on 4.4.1972 in his favour and when disputes arose between him and his mother, he filed OS No. 338 of 1974 on the file of the District Munsif Court, Narsaraopet seeking permanent injunction. Hence, the 2nd defendant is not competent to execute the agreement of sale. Secondly, the said agreement of sale is hit by the principle of lis pendence. In the light of the plea of the defendant the plaintiff amended the plaint and sought for declaration of title and permanent injunction. Thereafter, the suit was transferred to Subordinate Judge's Court, Guntur and the same was numbered as OS No. 135 of 1978. The Trial Court framed issue to be tried in the suit. Subsequently, the suit filed by the 1st defendant was decreed against the 2nd defendant on 24.10.1979. Thereafter, the 1st defendant filed additional written statement and the plaintiff seems to have also filed rejoinder and additional issues were framed on 2.12.1983.
"1. ... whether the suit is barred by time and lis pendence?
2. Whether the plaintiff and first defendant are estopped and entitled to question the gift deed dated 4.4.1972 in favour of 1st defendant?
3. Whether the suit is barred by res judicata by virtue of decision in OS No. 135 of 1978?..."
24. Thereafter the first defendant filed I.A. No. 2978 of 1983 praying the Court to try the issue relating to limitation, estoppel and res judicata as preliminary issues. The defendant filed counter contending that these issues can be considered in the suit itself. Without considering the objection raised by the defendants, the learned Judge proceeded with the consideration of the preliminary objection and by order dated 2.8.1984 held on all the above issues against the plaintiff.
25. Questioning the said order, AS No. 2168 of 1984 was filed before this Court.
26. Mr. S. Satyanarayana Prasad learned Senior Counsel, appearing for the plaintiff, strenuously contended that all the questions that are said to be considered, as preliminary issues by the defendant are both mixed questions of fact and law and they cannot be tried as preliminary issues. Even assuming without admitting that these issues can be tried as preliminary issues, the findings recorded by the Court below are perverse.
27. Countering the arguments of Mr. Satyanarayana Prasad, Mr. Srinivas appearing for the defendant contended that these questions are purely questions of law and are decided by the Trial Court on the basis of the documents filed in the Court. Hence, no illegality or irregularity has been committed by the learned Judge in deciding the preliminary issues.
28. Such a contention was negatived by the Apex Court in Lufthansa German Airlines v. Vij Sales Corporation, (1998) SCC 623. In a suit filed on original side jurisdiction of Bombay High Court, by the respondent for recovery of an amount of Rs. 1,87769.40Ps. along with interest, as damages, for non-delivery of the goods to the consignee, the appellant raised preliminary objection that the suit is barred by limitation. The learned trial Judge having considered the issue as preliminary issue, held that the suit was barred by limitation. Questioning the said finding, Special Leave Petition was filed by the appellant. It is useful to extract paragraph Nos. 4 and 5, which reads thus:
"... The learned Counsel appearing for the respondent took an objection that the learned Judge should not have decided the question of limitation as a preliminary issue, especially when that question did not arise, merely on the basis of allegations made in the plaint. This Court has pointed out the undesirability of deciding a suit on a preliminary issue. This Court has also insisted that normally all issues should be decided while disposing of the suit. The amendment introduced in Order XIV, Rule 2 of the Code of Civil Procedure by the Amendment Act of 1976, also provides that notwithstanding that a case may be disposed of on a preliminary issue, the Court shall, subject to the provisions of Sub-rule (2) of Rule 2, pronounce the judgment on all issues. Sub-rule (2) of Rule 2 of Order XIV is an exception where a suit can be disposed of on the question of law only.
5. After hearing learned Counsel for the parties, we are of the opinion that the present case was not one of such suits which should have been disposed of on the preliminary issue. While deciding the question whether the suit was bared by limitation, the High Court had to examine the allegations made in the plaint and the stand taken by the appellant in the written statement. In our view, it shall not be proper for this Court to express any opinion on the finding recorded by the learned Single Judge on the question of limitation. The proper course shall be to direct that the trial of the suit which had been withheld for more than 14 years should proceed. We request the High Court to dispose of the said suit as early as possible. We make it clear that it will be open to the appellant if the suit is decreed in favour of the respondent to raise all the questions including in respect of the finding recorded by the learned Single Judge on the question of limitation before the Court of appeal. The appeal is accordingly disposed of. No costs..."
29. From this judgment, it is seen that the Apex Court deprecated the practice of disposing the suits on preliminary issues. The Court held that on the basis of the allegations made in the pleadings, normally all issues should be decided while disposing of the suit. The exception carved out is under Order XIV. Rule 2 of the Code that was in existence in the year 1976, which provides that suit can be disposed of on a preliminary issue only on a question of law only. Their Lordship" held that issues on questions of limitation couldn't be decided, as a preliminary issue.
30. But Mr. Srinivas, contends that under Order XIV, Rule 2(2) of the Code, the Court is fully empowered to decide the issue raised by his client as a preliminary issue. It is useful to extract Order XIV Rule 2(2) of the Code, which reads:
"... Where issues both of law and of fact arise in the same suit, and the Court is of opinion that the case or any part thereof may be disposed of on an issue of law only, it may try that issue first if that issue relates to--
(a) the jurisdiction of the Court, or
(b) a bar to the suit created by any law for the time being in force and for that purpose may, if it thinks fit, postpone the settlement of the other issues until after that issue has been determined and may deal with the suit in accordance with the decision on that issue... "
He placed reliance on Sub-clause (b) of Sub-rule (2) to Order XIV of the Code. His contention is that under Section 11 of the Code, any judgment and decree between the same parties on the same issue operates as res judicata in subsequent proceedings. He also contends that since the plaintiff is claiming through the 2nd defendant, against whom the Court passed decree resulting loss of title to the land, the principle of res judicata has to be extended to the plaintiff also.
31. On the other hand, the learned Counsel appearing on behalf of the plaintiff contends that it is an admitted fact that the plaintiff is not a party to the proceedings that have taken place between the Defendants 1 and 2. The specific case of the plaintiff is that he is a bona fide purchaser of the property from 2nd defendant and it is also his case that the suit between the defendants is collusive one and he being a bona fide purchaser and the issues that came up for consideration in that suit being altogether different from the issues that have arisen for consideration, in the present suit, the question of applying the principle of res judicata does not arise in this case.
32. The issue is whether such an issue can be tried as a preliminary issue or not, when the plaintiff contended that he is not bound by the principles of res judicata. We have no hesitation to hold that the Trial Court erred in considering the issue as a preliminary issue. Further it is a mixed question of both fact and law. As such the Trial Court gravely erred in considering the same as preliminary issue and holding in favour of the defendants.
33. As regards the issue of limitation, the learned Counsel for the plaintiff himself conceded that the learned Judge wrongly held that the suit is barred by limitation by applying Article 56 of the Limitation Act. The learned Judge has taken objection for not filing the suit within three years from the date of execution of the gift deed in favour of the first defendant by the 2nd defendant. The view taken by the learned Subordinate Judge is very preposterous. It is not the case that the suit was not filed within three years from the date of execution of the agreement of sale. On the other hand, the well settled legal position is that the period of limitation starts only from the date of refusal by the vendor to comply with his or her part of agreement of sale. Till then, the question of limitation does not arise. Hence, Mr. Srinivas is right in conceding that the learned Judge went wrong in holding that the suit is barred by limitation.
34. With regard to the lis pendence, the learned Judge came to the conclusion that the suit is hit by the said principle, because of the pendency of OS No. 135 of 1978 filed by first respondent. The defendants may take a plea in the written statement and even an issue can be framed on that aspect for trial in the suit. At the same time, the same cannot be tried as a preliminary issue, more so, when the plaintiff is seeking relief of specific performance of the agreement of sale executed by 2nd defendant. While the other suit filed by the first defendant is that the gift deed executed by the 2nd defendant is valid and binding on the 2nd defendant. Hence, the issues that cropped up for consideration in both the suits are different and, the principle of lis pendence cannot be decided as a preliminary issue. We have no hesitation in holding that the learned Subordinate Judge exceeded his jurisdiction in deciding the issue as a preliminary issue and dismissing the suit thereafter even before the time for Appeal expired and even without recording a finding that the notice was served in the Interlocutory Application IA No. 2114 of 1984 and without setting him ex parte.
35. For all these reasons, we hold that the whole exercise made by the learned Subordinate Judge is vitiated by severe infirmities and as such the order in IA No. 2978 of 1983 dated 2.8.1984 cannot be allowed to remain in force. Accordingly the order in AS No. 2168 of 1984 is set aside and the appeal is allowed and the matter is remanded to the Trial Court for fresh consideration.
36. Since the suit is of the year 1978, we direct the Trial Court to dispose of the same within six months from the date of receipt of the notice by the parties. The Court shall take expeditious steps to serve notice on both the parties and commence trial in the matter without further loss of time.
37. In the light of this view taken by us, AS No. 2168 of 1984 and LPA.No. 17 of 1998 are allowed and order in CMP No. 10560 of 1994 in ASSR No. 33938 of 1994 is set aside and the delay is condoned in filing the appeal Since the order passed by the Trial Court in IA No. 2114 of 1984 is a dependant order subsequent to the order passed in IA No. 2978 of 1983 dated 2.8.1984, the order cannot be allowed to stand. Accordingly, the order IA No. 2114 of 1984 is set aside and the Letter Patent Appeals 16 of 1998 is allowed by setting aside the impugned order.
38. In the result, both the Letter Patent Appeal are allowed. It is needless to observe that the plaintiff is entitled for costs throughout, since the defendant has not come to the Court with clean hands.