Andhra Pradesh High Court - Amravati
Puli Lakshmi Devi vs Nuka Kusuma Kumari on 6 September, 2022
SRS,J
C MA_117_2022
1
THE HON'BLE SRI JUSTICE SUBBA REDDY
SATTI
CIVIL MISCELLANEOUS APPEAL NO.117 of 2022
JUDGMENT:
The appellant, being defendant in O.S. No.605 of 2012 on the file of the learned Principal Junior Civil Judge, Gudivada, filed the above Civil Miscellaneous Appeal under Order XLIII Rule 1 of CPC against the Judgment and Decree dated 11.12.2019 in A.S. No.132 of 2014 on the file of learned VII Additional District and Sessions Judge Vijayawada, remanding the matter to the trial Court.
2. Parties to this judgment are referred to as per their array in this suit.
3. Plaintiff filed suit O.S. No.605 of 2012 against the defendant for perpetual injunction. The suit schedule property is an extent of Ac.0.28 cents in R.S. No.388/2022 at Kondapalli Gram Panchayat, Ibrahimpatnam Mandal, Krishna District.
4. By judgment and decree dated 28.03.2014, SRS,J C MA_117_2022 2 the suit was dismissed. Aggrieved by the said judgment and decree, plaintiff filed appeal A.S. No.132 of 2014 on the file of learned VII Additional District and Sessions Judge, Vijayawada. Lower Appellate Court by judgment and decree dated 11.12.2019 remanded the matter to the trial Court for fresh consideration.
5. After the judgment of Lower Appellate Court, copy application was filed on 16.12.2019. Stamps were called for on 20.09.2019 and the application for certified copy of judgment was made again on 25.02.2020. Stamps were made ready on 25.02.2020. Copy was delivered on 27.02.2020.
6. By that time, when the appellant could get the certified copy of the judgment in A.S. No.132 of 2014, the trial Court i.e. Learned V Additional Junior Civil Judge's Court, Vijayawada pursuant to the remand, disposed of the suit O.S. No.605 of 2012 by judgment and decree dated 17.02.2020. Suit O.S. No.605 of 2012 was decreed.
7. Against the order of the remand, the above SRS,J C MA_117_2022 3 appeal was filed by the defendant on 27.05.2021. It was returned by registry with certain objections on 07.02.2022 and 15.02.2022. Eventually, the appeal is numbered on 13.04.2022.
8. By the time when the appeal was numbered before this Court, the appellant filed A.S. No.11 of 2022 on the file of learned XIII Additional District Judge, Vijayawada, assailing the judgment and decree dated 17.02.2020 in O.S. No. 605 of 2012 on the file of learned V Additional Junior Civil Judge, Vijayawada.
9. Heard Sri D. Butchi Babu, learned counsel appearing for the appellant and Sri Ch. Markondaiah, learned counsel for the respondent.
10. Learned counsel for the appellant would submit that even before the appellant could get certified copies of the judgment and decree in A.S. No.132 of 2014, trial Court disposed of the suit O.S. No.605 of 2012 afresh. He also contended that appellate Court remanded the matter mainly on the ground that the trial Court did not consider the written SRS,J C MA_117_2022 4 arguments filed in the suit. Lower Appellate Court being the final fact finding Court, since the arguments are already on record, ought to have disposed of the appeal instead of remanding. Learned counsel for the appellant relied upon the judgment of the Patna High Court in Pragash Singh and Ors. Vs. Madan Mohan Prasad Singh and Ors1.
11. Learned counsel for the respondent contended that since the appellant filed appeal challenging the judgment and decree, no cause survives for adjudication. He also supported the judgment of appellate Court.
12. Whether the Civil Miscellaneous Appeal filed against the order of remand is maintainable since the suit itself was decided and a regular appeal against the said judgment is filed?
13. Suit O.S. No.605 of 2012 was filed by the plaintiff seeking perpetual injunction. The suit was dismissed by the trial Court on 28.03.2014. Against 1 AIR 1960 Patna 47 SRS,J C MA_117_2022 5 the said judgment and decree, plaintiff filed appeal A.S. No.132 of 2014 on the file of learned VII Additional District and Sessions Judge, Vijayawada. Appellate Court by judgment and decree dated 11.12.2019 set aside the judgment of the trial Court and remanded the matter to the trial Court for fresh consideration.
14. The appellate Court directed the appellant/plaintiff and respondent/defendant to appear before the learned V Additional Junior Civil Judge, Vijayawada on 30.12.2019 and there is no need for issuing notice to the parties. Before the lower Appellate Court, the appellant and the respondent were represented by the counsel. Thus, appellate Court while disposing the appeal, specifically directed the parties to appear before the learned V Additional Junior Civil Judge, Vijayawada on 30.12.2019. Specific date was given by the appellate Court directing to appear the parties before the Court.
15. However, after the remand, as seen from the judgment, no representation was made on behalf of the SRS,J C MA_117_2022 6 appellant/defendant in the suit. After remand learned V Additional Junior Civil Judge on consideration of the material available on record decreed the suit by judgment and decree dated 17.02.2020. Against the said judgment and decree defendant filed appeal A.S. No.11 of 2022 on 11.02.2022 on the file of learned XIII Additional District Judge, Vijayawada and the same is pending consideration.
16. Learned counsel for the appellant would contend that since the order of the lower appellate Court remanding the appeal is bad in law and notwithstanding the fact that the suit was disposed of by the time when the CMA is filed, this Court can entertain the CMA. In support of the said argument, learned counsel relied upon Pragash Singh's case (supra-1). He also relied upon Anil Agarwal vs. Indian Oil Corporation Limited and Others2, when there is no statutory embargo imposed on the aggrieved party to invoke two proceedings simultaneously. The ratio laid down in the above two judgments have no 2 2012(1) A.R.C.444 SRS,J C MA_117_2022 7 application to the facts of the case.
17. The Concept of dependant order was discussed by Hon'ble Apex Court in G. Ramegowda and Ors. Vs. Special Land Acquisition Officer, Bangalore3, wherein it was held at Paragraph No.5:-
"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 excusing 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."
The Hon'ble Apex Court in Ajay Bansal v. Anup Mehta [(2007) 2 SCC 275], wherein it was held:
"14. A decree passed subsequent to the refusal of leave to defend could either be under Order 37 Rule 3(6) of the Code or it could be based on the affidavit evidence on the side of the plaintiff and the documents produced or even based on oral evidence formally proving, say, the execution of a promissory note by the defendant. It may not be proper or necessary to apply the theory of "dependent order" in such circumstances. For one, the theory may not apply. Even if this Court were to set aside the order of the court below and give the defendant leave to defend the suit, the decree that is passed may not go automatically. It may have to be set aside. Secondly, the defendant can always go to the court which passed the decree and move under Rule 4 of Order 37 of the Code to reopen the decree."3
AIR 1988 SC 897 SRS,J C MA_117_2022 8
18. In view of the expression of the Hon'ble Apex Court, this Court is not persuaded to the submission of the learned counsel. In the considered opinion of this Court the principle of dependant order will not apply to the facts of the present case. Appellate Court pronounced judgment in A.S. No.134 of 2012 dated 11.12.2019 in the presence of both the advocates. Appellate Court specifically directed the parties to appear before the trial Court on 30.12.2019. Trial Court in obedience of the remand order by the lower Appellate Court on consideration of material available on record, decreed the suit by judgment dated 17.02.2020. Neither the defendant nor his counsel represented before the trial Court after the matter was remanded. Had the defendant or his counsel represented the suit before the trial Court, trial Court could have noted the objection, if any, raised by them. In the absence of any objection, trial Court proceeded with the matter and decreed the suit. In fact, the appellant in the CMA filed regular appeal under Section 96 CPC as A.S. No.11 of 2022 on the file of the learned XIII Additional District and Sessions Judge, SRS,J C MA_117_2022 9 Vijayawada and the same is pending consideration. The appellant can as well raise the ground before the appellate Court regarding the remand under Section 105 CPC.
19. In view of the facts and circumstances of this case, this Court finds no merits in the appeal and the same is dismissed accordingly. There shall be no order as to costs.
The miscellaneous petitions pending, if any, shall also stand closed.
JUSTICE SUBBA REDDY SATTI 06.09.2022 ASH SRS,J C MA_117_2022 10 277 THE HON'BLE SRI JUSTICE SUBBA REDDY SATTI CIVIL MISCELLANEOUS APPEAL NO.117 of 2022 Dt: 06.09.2022.
ASH