Sri Kasi Visweswara Swamy Vari Devasthanam, Nunna, Vijayawada v. Ramadugu Viswanadham & Others

Sri Kasi Visweswara Swamy Vari Devasthanam, Nunna, Vijayawada. …Respondent THIS COURT MADE THE FOLLOWING: HON’BLE SRI JUSTICE A. GOPAL REDDY AND HON'BLE SRI JUSTICE B.CHANDRA KUMAR C.M.A. No.14 OF 2008 & C.R.P.No.1073 OF 2008 COMMON JUDGMENT: (Per Hon’ble Sri Justice A.Gopal Reddy) This appeal and revision are interlinked and arise out of the same proceedings and therefore, they are heard together and being disposed of by this common judgment. The Trustee of Sri Kasi Visweswara Swamy Vari Devasthanam, Nunna, Vijayawada laid a suit in O.S.No.7 of 2003 for declaration of title in respect of the suit schedule property claiming it under a Will, dated 8.4.1987 and for recovery of possession thereof. Whereas, the 2nd and 3rd defendants in the said suit laid a suit in O.S.No.561 of 1997 before the Principal Senior Civil Judge, Vijayawada against their brother, one Ramadugu Viswanadham, who is described as 1st defendant in O.S.No.7 of 2003 for partition of plaint schedule properties. According to the Temple, the 2nd and 3rd defendants in the suit laid the suit for partition in O.S.No.561 of 1997 stating that their father-Ramadugu Sivaramaiah died intestate on 10.1.1992 suppressing his last Will, dated 8.4.1987 executed in a sound and disposing state of mind. In the said suit i.e. O.S.No.561 of 1997, the sole defendant filed a written statement setting up a forged, fabricated and concocted Will said to have been executed by their father on 15.12.1991. The suit filed by the Temple was dismissed for default. The single Trustee of the Temple who is appointed on

8.10.2004 filed I.A.No.22 of 2005 in O.S.No.561 of 1997 to implead the Temple as a party-defendant to the suit, but, however the same was dismissed. On dismissal of I.A., the Temple filed a revision in C.R.P.No.446 of 2005 before this Court which was allowed on 28.6.2006 allowing the I.A.No.22 of 2005. Since the Temple was impleaded as a party-defendant to the suit in O.S.No.561 of 1997, the defendants 2 and 3, who are plaintiffs therein filed I.A.No.1357 of 2006 with Xerox copy of the decree passed in the suit filed by the Temple i.e. O.S.No.7 of 2003, dated

3.9.2006 dismissing the suit for default. On coming to know of said dismissal, the appellant-Temple filed I.A.No.645 of 2006 for condonation of delay in filing the petition for restoration of the suit. The lower Court by its order dated 8.2.2007 allowed I.A.No.645 of 2006 condoning the delay of 25 months 3 days in filing the petition under Order IX Rule 9 C.P.C. on payment of costs. The petition filed under Order IX Rule 9 C.P.C. was numbered as I.A.No.197 of 2007, but the lower Court by order, dated 04.06.2007 dismissed the I.A. on the ground that the appellant-Temple had already got impleaded the suit O.S.No.561 of 1997 and all the allegations made in the petition in I.A.No.197 of 2007 are false and concocted for the sake of getting the suit restored, and that since the Temple exhausted the remedies, if it got any registered Will, dated 8.4.1987 allegedly executed by the father of the defendants in O.S.No.7 of 2003, it can file a separate suit claiming the property and that no purpose would be served in restoring the suit-O.S.No.7 of 2003 (wrongly typed as O.S.No.561 of 1997). It is that order which is impugned in C.M.A.No.14 of 2008. On filing the appeal on 12.09.2007, the defendants 2 and 3, after one year, filed C.R.P.No.1073 of 2008 questioning the order passed by the trial Court in allowing I.A.No.645 of 2006 condoning the delay in filing I.A.No.197 of 2007 filed under Order IX Rule 9 C.P.C. We have heard the learned counsel for the appellant-Temple and learned counsel for respondents, who filed the revision. The trial Court having satisfied with the explanation offered by the appellant-Temple and condoned the delay by allowing I.A.No.645 of 2006, dismissing I.A.No.197 of 2007 filed under Order IX Rule 9 C.P.C. on the ground that the appellant-Temple filed a false affidavit before the Court and not approached the Court with clean hands is totally erroneous and non-application of mind. Having satisfied with the explanation offered for condoning the delay in preferring the application under Order IX Rule 9 C.P.C., the conclusions reached by the trial Court that the appellant-Temple filed I.A.No.22 of 2005 and I.A.No.1688 of 2006 during the pendency of O.S.No.561 of 1997 and having already exhausted the remedies filed the present petition only to protract the litigation and that no purpose would be served in restoring the suit-O.S.No.561 of 1997 shows the turmoil situation of the learned trial judge. Now, it is brought to our notice that the suit-O.S.No.561 of 1997 filed by the defendants 2 and 3 in O.S.No.7 of 2003 has been dismissed on merits pending the appeal and revision upholding the Will under which the appellant-Temple is claiming title to the suit schedule property, and that the same has become final inasmuch as no appeal has been preferred. Under those circumstances, the appeal deserves to be allowed by setting aside the order passed by the lower Court. It is well settled that the revision under Article 227 of Constitution is not to circumvent the law of limitation, and that the present revision is obviously filed only as a counter-blast to filing of the appeal. Since we are inclined to allow the appeal by allowing I.A.No.197 of 2007 filed under Order IX Rule 9 C.P.C., the revision is liable to be dismissed. Accordingly, we set aside the order, dated 04.06.2007 and allow I.A.No.197 of 2007 and consequently, the suit in O.S.No.7 of 2003 is restored to its file. The revision is dismissed. The lower Court shall dispose of the suit on its own merits uninfluenced by any of the observations made by it or by this Court. The parties are at liberty to raise all the contentions before the lower Court, which are raised before this Court. There shall be no order as to costs. _______________ A. GOPAL REDDY, J. B.CHANDRA KUMAR, J. __________________ OCTOBER 12, 2009 Tsr.