Andhra HC (Pre-Telangana)
G. Vidyasagar vs P. Venkataramana Reddy on 11 October, 2001
ORDER P.S. Narayana, J.
1. Heard both the counsel and perused the material available on record.
2. This C.R.P. is filed under Section 25 of the Provincial Small Cause Courts Act by the revision petitioner-defendant as against the judgment in S.C.No.25 of 1998 on the file of the Principal Junior Civil Judge, Madanapalli decreeing the suit with proportionate costs for Rs.2,850/- with interest at 6% per annum from 8.11.1996 till the date of realization.
3. The respondent-plaintiff instituted a suit for recovery of Rs.3,933/- bring the principal and interest due towards refund of subscription fee of Rs.150/- per month for 19 months including interest thereon at 24% per annum from 9.11.1996.The case of the respondent-plaintiff is that the revision petitioner-defendant is the managing partner of Shirdisai Real Estates concern and he has been selling the house site plots in monthly instalments under the name and style of Besant Nagar Housing Scheme and as per the terms and conditions of the said scheme, each member will be allotted with a house site plot measuring 0.021/2 cents and each member has to pay an amount of Rs.150/- per month for 36 months and total consideration will be Rs.5,400/- and if any member intends to have a plot urgently, he can pay the entire instalment amount in lumpsum and can obtain a registered sale deed. The respondent-plaintiff, who is a member of the said scheme, paid 19 monthly instalments at the rate of Rs.150/- per instalment and he was given a pass book bearing No.154 and cash receipts were also issued. It was further pleaded that after 19th instalment, the respondent-plaintiff intended to obtain the registered sale deed after paying further instalments but the revision petitioner-defendant had been postponing the execution of registered sale deed on some lame excuse and on 9.10.1995 the respondent-plaintiff paid last instalment and since then the revision petitioner-defendant had been postponing the execution of the sale deed and though the respondent-plaintiff insisted atleast for return of the amount, the revision petitioner-defendant is evading to pay the same and consequently, a notice dated 11.4.1998 was issued and after receipt of notice, the revision petitioner-defendant had sent a requisition asking for copies of the documents and even after compliance, the revision petitioner-defendant had neither replied nor complied with the said demand. Hence, the suit.
4. The revision petitioner-defendant had resisted the suit on the following grounds:
A detailed written statement was filed pleading that he has only one among the five partners of the firm Shirdi Sai Real Estates and a suit filed against him a lone is bad in law. It was also further pleaded that after receipt of the copies, the revision petitioner-defendant got issued a detail reply notice.It was also stated that the respondent-plaintiff was irregular in paying the instalments and became a defaulter, and the last payment on 9.10.1995 and certain other payments also had not been received, and it was specifically stated that the revision petitioner-defendant had received only 13 instalments on behalf of Shirdi Sai Real Estates and not in his personal capacity and after 9.10.1995 the respondent-plaintiff did not come to the office at all and remained unheard till 10.4.1998. On 26.5.1997 the respondent-plaintiff and some other default members were informed by way of letter under certificate of posting calling upon them to pay the entire balance amount and take registered documents in relation to their respective plots since one of the partners of Shirdi Sai Real Estates by name Imtiaz was leaving for abroad. Then some members paid balance amount and obtained sale deeds, but the respondent-plaintiff did not do so. It was also pleaded that there is a contract between the respondent-plaintiff and Shirdi Sai Real Estates at the time of joining as a member and since the respondent-plaintiff failed to pay three instalments consequently, he ceased to be a member and he cannot ask for refund of money and a person who had committed breach of contract cannot ask for return of the money and the revision petitioner-defendant and other partners of the firm have got absolute right to transfer the sites in favour of the members of Shirdi sai Real Estates on payment of full amount as agreed and on 30.6.1998 the counsel for the respondent received reply notice, but the said fact was intentionally suppressed. It was also further pleaded that suit would have been filed for specific performance or the other appropriate reliefs under the Specific Relief Act and the suit claim is unsustainable.
The Court below had framed the following point for determination:
"Whether the plaintiff is entitled for recovery of the suit amount with interest and costs as prayed for?
On behalf of the respondent-plaintiff, P.W.1 was examined and Exs.A.1 to A.4 were marked. On behalf of the revision petitioner-defendant, D.W.1 was examined and Exs.B.1 to B.4 were marked. The Court below after discussing the oral and documentary evidence at paragraph Nos. 6 to 13 had arrived at a conclusion that the respondent-plaintiff is entitled to a decree in part with proportionate costs for Rs.2,850/- with interest at 6% per annum from 8.11.1996 till the date of realization. Aggrieved by the said judgment, the unsuccessful defendant had filed the present revision.
5. Sri G. Bhasker, the learned counsel representing the revision petitioner-defendant had raised a preliminary objection relating to the very maintainability of the suit, which had not been considered by the Court below. The learned counsel submitted that in a sense this is a suit relating to breach of contract only and a suit of this nature could not be entertained on small cause side. The learned counsel had submitted that Section 15 of the Provincial Small Cause Courts Act, 1887, stipulates that a Court of Small Causes shall not take cognizance of the suits specified in the second schedule, which are suits for specific performance or recission of a contract. The learned counsel also had placed reliance on a case reported in PANDURANG LAXMAN MOHITE v. KALURAM BAHIRU BHIKULE to the effect that when a question of jurisdiction to entertain the suit of this nature was raised a point for consideration or an issue relating to the same should have been framed and decided by the Court below. The learned counsel also had contended that the suit as instituted against only one of the partners, which is not maintainable in law.
6. Mr. Chetluru Sreenivas, learned counsel for the respondent-plaintiff had submitted that the revisional jurisdiction conferred under Section 25 of the Provincial Small Cause Courts Act is a limited jurisdiction and the Court below having appreciated all the facts and circumstances and decreed the suit in part, which need not be interfered with while exercising the revisional powers.
7. No doubt, the Court below had appreciated both oral and documentary evidence and recorded the findings regarding the same. But, when a dispute relating to the very jurisdiction to entertain the suit had been raised and also the maintainability of the suit as against only one of the partners, the Court below should have framed these points for consideration and should have recorded findings relating to the same. Apart from it, except the evidence of P.W.1 and D.W.2, there is no other evidence let in by either of the parties. After going through the material on record and also ratio laid down in PANDURANG LAXMAN MOHITE v. KALURAM BAHIRU BHIKULE (cited supra), I am of the considered opinion that the impugned judgment in S.C.No.25/98 is liable to be set aside and the matter to be remitted back to the Court below for framing and deciding the following points for consideration:
a. Whether the suit of this nature relating to a breach of contract and refund of amount can be entertained on small cause side?
b. Whether the suit as framed against only one of the partners is maintainable in law?
8. The Court below is directed to deal with these points for consideration also specified supra after giving further opportunity to both the parties to let in further evidence if any relating to their respective contentions. Hence, the impugned order is set aside and the matter is remitted back to the Court below to dispose of the matter afresh in accordance with law. The C.R.P. is allowed to the extent indicated above.No order as to costs.