High Court · 2009

Order

This civil revision petition is filed against the order dated 7-10-2009 passed in OS (GR) No.10318 of 18/9/2009 by the District & Sessions Judge, Visakhapatnam.

2. Heard the learned counsel for the petitioner. Perused the impugned order passed by the Court below.

3. Learned counsel for the petitioner states that the petitioner is the plaintiff in the suit and she sought to file the suit for declaration that she is the absolute owner of the suit schedule land and for other reliefs. That the suit is valued at Rs.10,00,825/- for purpose of payment of Court fees and under Section 24(b) & Section 20 of Schedule I of AP Court Fee and Suit Valuation Act, 1956, a Court fees of Rs.17,478/- has been paid. It is stated that the Court below ought not to have rejected the suit at the threshold and the various averments made in the plaint cannot be decided at the time of registering the suit as burden is on the

plaintiff to substantiate her case and ultimately it is for the Court to give a finding. In support of his contentions, learned counsel relied on the decision of this Court in GUNDSAY SWAROOPA VS. GUNDSAY BALAIAH1.

4. The impugned order dated 7-10-2009 reads thus: “The valuation adopted by the plaintiff for refund of consideration on the market value is incorrect. In case of any failure of the refund of the consideration in a sale deed, a person is entitled for refund of the sale price in the document, and not on the market value on the date of the suit. Hence, it has to be valued properly. So far as the valuation of the mandatory injunction at Rs.Two lakhs for correction of the survey number is concerned, it is a superfluous valuation since the declaration sought for under the relief no.1 already covers with regard to the survey number, and no further direction with regard to the sale deed can be given. Therefore, if both the reliefs are properly valued, this Court will not be having jurisdiction, and the plaint is returned for presentation before proper Court after making necessary amendments.”

5. The plaintiff valued the suit at Rs.10,00,825/- and under Section 24(b) and Section 20 of Schedule I of AP Court Fee and Suit Valuation Act, 1956, a Court fees of Rs.17,478/- is stated to have been paid. The observation of the Court below that the relief of correction of survey numbers covers the relief sought under relief no.1 is pre-mature, inasmuch as such a conclusion can only be arrived after the other side entering appearance and leading the evidence and after leading evidence if it appears otherwise, that issue can be tried as a preliminary issue.

6. This Court in Gundsay Swaroopa’s case observed thus: “2……While numbering the suit, the office of the lower Court took an objection as to the maintainability of the suit since as per the pahanies and pattedar passbook filed along with the plaint, the partition of the suit schedule property was already effected, and accordingly, called for an explanation from the plaintiff as to how she constitutes joint possession by returning the plaint. The same was re-presented to the Court by citing judgment of this Court in Carlapalli Yadamma v. Miryala Gopaiah and another and R. V. Bhuvaneswari and others v. Ponnuboina Chenchu Ramaiah and others. When the matter was put up before the Court, the learned Judge returned the same for payment of deficit Court fee under Section 34 (1) of the Act. “3. The pahanies and pattedar passbook, which were filed along with the plaint, did not indicate any prior partition though the names were recorded separately to the various extents of land in the revenue records. The lower Court for collection of court fee has to see the averments made in the plaint, wherein it was stated that there was no prior partition of suit schedule property, which is in joint possession. On defendant's appearance, if any plea is taken that there was an earlier partition, it is always open for the Court, during the course of trial, to insist for payment of necessary court fee after framing an appropriate issue to the said effect but the plaint cannot be returned at the initial stage on the presumption that the pahanies and pattedar passbook were issued on the basis of a prior partition.”

6. In the circumstances, the impugned order is set aside and the Court below is directed to register the suit and decided the matter in accordance with law. The civil revision petition is allowed accordingly. ______________________ Ghulam Mohammed, J Dated 15-10-2009 Note: Office to return the lower court case papers to the counsel for the petitioner. CC by Monday. (b/o) Nrg. THE HON’BLE SRI JUSTICE GHULAM MOHAMMED CRP NO.1970 of 2009 ORDER: This civil revision petition is filed against the order dated 6-3-2009 passed in IA No.627 of 2008 in OP No.410 of 2008 by the Addl. Family Court at Visakhapatnam, granting an amount of Rs.5,000/- per month to the respondent herein as maintenance. The petitioner is the husband of the respondent and there is no dispute as to their relationship. The respondent, by way of interim application sought maintenance of Rs.10,000/- per month. The trial Court having regard to the circumstance that the petitioner is getting a monthly income of Rs.15,000/- and the averment made by the respondent-wife that his income is Rs.15,000/- remained un-rebutted, granted maintenance of Rs.5,000/- per month. Though learned counsel for the petitioner strenuously sought to contend that the petitioner has also to maintain his parents, but it is settled proposition of law that the husband is bound to maintain his wife. In the facts and circumstances of the case, the amount of maintenance granted by the trial Court is reasonable. In the result, the civil revision petition fails and it is accordingly dismissed at the admission stage itself. ______________________ Ghulam Mohammed, J Dated 5-6-2009 Nrg. THE HON’BLE SRI JUSTICE GHULAM MOHAMMED CRP NO.5196 of 2008 ORDER: This civil revision petition is filed against the order dated 1-7-2008 passed in IA No.1065 of 2006 in OS No.161 of 2004 by the Junior Senior Civil Judge, Gajuwaka, Visakhapatnam District, allowing the said IA filed under Section 5 of the Limitation Act, seeking to condone the delay of 223 days in filing a petition to set aside the ex-parte decree. The revision petitioner is the plaintiff in the suit filed for declaration of title and recovery of possession and the same was decreed ex-parte. The trial Court allowed the above IA having regard to the averments that both the defendants were ailing at the relevant time and, therefore, could not file a petition in time to set aside the ex-parte decree. As per the cause title, it is evident that both the defendants are senior citizens and in support of their ailment, at the relevant time, they have filed xerox copies of medical record books. Mr.S.Rajan, learned counsel for the plaintiff-petitioner strenuously contended that there is no satisfaction recorded by the trial Court as to the acceptance or otherwise of the reasons given by the defendants in the application filed by them to condone the delay of 223 days. In support of his contention, learned counsel relied on the decisions in TVK SASTRY rep. By his GPA SYED MEER vs. DISTRICT FOREST OFFICER, WARANGAL (1980 (1) HC) & RAMALAL vs. REWA COALFIELDS LTD (AIR 1962 SC 361) There is no dispute and there cannot be any dispute with the proposition laid down by the Apex Court in Ramalal’s case (2 supra) that after expiration of the period of limitation prescribed for marking an appeal gives rise to a right in favour of the decree holder to treat the decree as binding between the parties and this legal right which has accrued to the decree holder by lapse of time should not be light heartedly disturbed. The ratio in TVK Sastry’s case (1 supra) is that the Court is bound to give reasons whether the party has explained every day’s delay satisfactorily or not. In the instant case, both the defendants are senior citizens and their specific case is that in the relevant time, when they were expected to file a petition to set aside the ex-parte decree, they fell ill and in support thereof they produced medical book records and under those circumstances, the trial Court taking a liberal view and to advance the cause of justice, as it is always desirable that matters are decided on merits, more particularly, the suit being a suit for declaration of title and recovery of possession, allowed the application, that being a discretionary order passed by the trial Court, in the facts and circumstances of the case, does not warrant any interference by this Court. The civil revision petition fails and is accordingly dismissed, at the admission stage itself. ______________________ Ghulam Mohammed, J Dated 5-6-2009 Nrg. ____________________ THE HON’BLE SRI JUSTICE GHULAM MOHAMMED ORDER: CRP NO.147 OF 2009 This civil revision petition is filed against the order dated 8-9-2008 passed in IA No.158 of 2007 in OS No.549 of 2004 by the IV Addl. Senior Civil Judge (FTC), at Visakhapatnam, dismissing the said IA filed under Order 14, Rule 2, read with Section 151 CPC to try the issue of jurisdiction of the Court, to try the suit, as a preliminary issue, by postponing the settlement of all other issues, till the jurisdictional point is decided.

2. Heard the learned counsel for the petitioner. Perused the impugned order passed by the trial Court.

3. The revision petitioner who is 1st defendant in the suit filed the IA on the ground that the Court has no jurisdiction as the alleged suit transaction had taken place at Eluru, West Godavari District and, therefore, the Court at Vishakapatnam has no jurisdiction. The trial Court in the light of the decision of this Court reported in 2005 (6) ALT page 780 and also in view of the amendment and substitution of the word ‘shall’ with ‘may’ appearing in Rule 2, Order 14 CPC and inasmuch as there was no imperative on the part of the Court in view of the language used, dismissed the application. The decision of the Apex Court in SHREE SUBHLAXMI FABRICKS (P) LTD. V. CHAND MAL BARADIA (2005 10 SCC 704) relied on by the learned counsel is not applicable to the facts of the present case as it was case arising under Arbitration and Conciliation Act, 1996. The impugned order passed by the trial Court being a discretionary order, does not call for any interference by this Court. The civil revision petition fails and it is accordingly dismissed, at the admission stage itself. ____________________ Mohammed, J Dated: 6-2-2009 Nrg. Ghulam THE HON’BLE SRI JUSTICE GHULAM MOHAMMED JUDGMENT: SA NO.22 OF 2009 This second appeal is filed against the judgment and decree dated 18-9-2008 passed in AS No.19 of 2008 by the VII Addl. District Judge, (Fast Track Court) at Visakhapatnam, confirming the judgment and decree dated 15-11-2007 passed in OS No.1442 of 2005 by the Principal Junior Civil Judge, Visakhapatnam.

2. The defendant in the suit OS No.1442 of 2005 is the appellant herein. The plaintiff-respondent herein filed the said suit for the relief of evicting the defendant and her men etc. and for putting the plaintiff in vacant possession of the suit schedule property and for other reliefs. After considering the oral and documentary evidence adduced, the trial Court decreed the suit against the which the defendant-appellant herein unsuccessfully carried the matter in appeal before the lower appellate Court. Further aggrieved this second appeal is filed.

3. Heard the learned counsel for the appellant and the learned counsel for the respondent. Perused the impugned judgments passed by both the Courts below.

4. Both the Courts below on consideration of the evidence adduced by the parities recorded a finding that the lease in respect of the suit schedule property was terminated and there was no further extension of the lease though the defendant-appellant herein pleaded that she orally requested to execute fresh lease by the plaintiff. It has also come on record that the defendant was continuing in the suit schedule property without paying any rents unauthorizedly and under those circumstances directed vacate the suit schedule property and handover the same to the plaintiff. There is no question of law, muchless substantial question of law to invoke the jurisdiction of this Court under Section 100 CPC. The second appeal is, therefore, dismissed, at the admission stage itself. However, in view of the submission made by the learned counsel for the appellant-defendant that the defendant is running business in the suit schedule property for a considerable time and to enable her to find a suitable premises, four months time is granted from today to vacate the suit schedule property and handover the same to the respondent-plaintiff. Ghulam ____________________ Mohammed, J Dated: 6-2-2009 Nrg. 1 2005 (3) ALT 98