latest case law of AP HIGH COURT – VOL 2 [1]

 

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AP LAW REPORT

2020 VOL -2

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AP 2020 [2] – Parties names – case number

  1. PROMISSORY NOTE & LIMITATION

A]. Whether Ex.A1-promissory note / Ex.A2-part payment endorsement therein and Ex.A6-promissory note / Ex.A7- part payment endorsement therein are true, valid and binding on the appellants? 

FORMAL DENIAL – NON SUGGESTIONS on SPECIFIC MATERIAL POINTS READ WITH ADMISSIONS MAKE THEM LIABLE FOR THEIR DEBTS

Plaintiff proved his case – the defendants failed to rebut the same successfully -as either in the written statement or in his examination-in-chief it was never the clear and categorical version that the signatures appearing on promissory notes or in payment endorsements are not his signatures. Bare denial of the transactions per se cannot have any significance in this respect. the defence so set up is appearing as casual as it could be without any seriousness attached to it. Reply notice  was after institution of the suit. Even otherwise, in this reply notice, similar defence of casual nature was set up by them. Since it was issued post-institution of the suit, it cannot have any bearing as such. The scribe of these promissory notes viz., Sri Pathalam Srinivasa Rao was a clerk working in the 1st appellant firm.It was not suggested to P.W.3 that these promissory notes were not scribed by Sri Pathalam Srinivasa Rao. – even though part payments endorsements did not contain name of the scriber nor none attested – practicing advocate was examined – though turned hostile He admitted in further examination for the respondent that the endorsements, evidence payments and they were not a record of mere representation. They further did not reflect that they were made at the instance of Sri Pothuraju, which fact this witness admitted. With reference to the contents of these endorsements that part payments were made therein on the respective dates, he further admitted. It is further to be noted that the appellants did not suggest to this witness that he is not the author of the two endorsements  One strong circumstance that stands against the testimony of this witness is that being a practising Advocate at Guntur, he would not have merely scribed Ex.A2 and Ex.A7-endorsements on Ex.A1 and Ex.A6 respectively, without there being such transaction and it they were not signed by the 2nd appellant, upon making such part-payments. Added to it, he stated as D.W.1 that the signature in Ex.A2 appears to be his signature. The material so placed with proof let in by the respondent was not rebutted effectively by the appellants in any manner since the burden shifts on to them, upon proof of due execution of these instruments. They miserably failed to discharge such burden. 

B].Whether the suit is barred by limitation ?

It is the contention on behalf of the appellants that this suit should have been laid on 21.12.2015 since the period of limitation of three years ends by 21.12.2005 itself from 22.12.2005. 34. In terms of either Article-19 or Article-35 of the Limitation Act, the period of limitation to file a suit of this nature based on promissory MVR,J A.S. No. 17 OF 2009 11 notes is ‘three years’ from the date of these instruments. The learned counsel for the appellants though strenuously contended in this respect, effect of Section 12(1) of the Limitation Act in computation of period for this purpose, cannot be overlooked. It speaks of exclusion of the day from which such period has to be reckoned. Therefore, in terms of Section 12(1) of the Limitation Act, when the date of payment endorsement viz., 22.12.2002 on these promissory notes is considered in conjunction with the date of filing the suit viz., 22.12.2005, it has to be stated that the suit is well within time viz., ‘three years’ as required under Article-35 of the Limitation Act particularly or under Article 19 of the Limitation Act. Thus, the contention of the appellants as to bar of time shall be rejected confirming the findings recorded by the learned trial Judge on issue No.3. 

  1. CLAIM PETITION IN EP

Order 21 Rule 58 of the Code of Civil Procedure =  without finding that it is liable to be dismissed in limini or designed for delay – no court can pass orders on argument without conducting trial = claiming that he was the owner of the suit schedule property. The claim of the appellant was that he had advanced a loan of Rs.2,00,000/- to Sri Thota Uma Maheswara Rao, (the deceased 1st respondent herein) and Sri Thota Uma Maheswara Rao had created a mortgage over the schedule property by depositing title deeds on RRR,J A.S.No.77 of 2017 2 11.10.2004. As Sri Thota Uma Maheswara Rao did not repay the loan taken by him, the appellant claims to have issued a legal notice  and filed suit and the same was decreed by way of a preliminary decree and that in view of the said preliminary decree Sri Thota Uma Maheswara Rao (the deceased 1st respondent herein) had executed a registered sale deed dated 26.08.2014 and the appellant had become the owner of the schedule property. -The 1st respondent herein resisted the said claim on the ground that the order of attachment before judgment in favour of the 1st respondent was issued earlier to the sale deed is said to have been executed and in view of the same, the sale deed itself is highly suspect and in any event not binding on the 1st respondent as such. – Trial court straight away dismissed the claim petition without conducting any enquiry only basing on the arguments – High court held that  under Order XXI Rule 58 read with Section 47 of C.P.C.,an enquiry is required.- the question whether the mortgage of the property by the deceased 1st respondent is in the year 2004 itself and the subsequent events leading to the execution of the sale deed would have to be taken into account and the objection of the 1st respondent herein on the genuineness and validity of the sale deed dated 26.8.2014, would require to be examined in depth and such facts can be determined by the executing Court only after a proper enquiry is conducted, in which the witnesses would be cross examined and the documents would be examined in a proper manner. – there is no finding by the learned executing Judge that this is a matter which requires to be dismissed in limini on the ground that the objection or claim is designedly or unnecessarily delayed. As the executing Court went on the basis of the claims made before it, the procedure adopted by the Court would not be in consonance with the provisions of Order XXI Rule 58 (2) C.P.C., and  is set aside and the matter is remanded.

  1. ARBITRATION

whether the procedure that is followed in appointing arbitrator is in accordance with law?

Clause 7.12 of the Loan Agreement [Ex.A4] states that ‘all the disputes, differences of claims arising out of the said agreement shall be settled by an Arbitrator, duly appointed by the 1st Respondent Company’.It nowhere indicates any choice being given to the loanees or the Appellants herein in selecting an Arbitrator. Existence of this clause in the agreement was never objected to by the appellant herein at any point of time. – Therefore, the argument of the learned Counsel for the Appellants that, no opportunity was given to the Appellants in proposing the name of an arbitrator, has no merit. -DISMISSED

  1. Divorce Act

Sections 18 and 19(4) of the  Divorce  Act – CUSTOMARY DIVORCE

“Whether the petitioner is entitled for decree of divorce by declaring the marriage between the petitioner and respondent as null and void?” 

 it is clear that there is a customary divorce prevailing in the community. Not only the evidence of P.W.2, but the evidence of R.Ws.1 and 2 also categorically establishes the presence of caste elders at the time when the respondent obtained customary divorce and that R.W.2 was one of the caste elders for that. Therefore, the argument that the respondent failed to establish that there was customary divorce cannot be accepted. On the other hand, the evidence of P.W.2 itself establishes customary divorce, which corroborates the evidence of R.Ws.2 and 3. –  Coming to the other aspect, it is to be noted that the evidence of P.W.2 does not support the evidence of P.W.1 in many aspects. His evidence does not show as to whether the said Sriramulu was alive or dead. Even as per his evidence, the whereabouts of Sriramulu are not known. The same is also spoken to by R.Ws.2 and 3, who are the caste elders in the village. In fact, at this stage, it would be useful to note that P.W.1, in his evidence, categorically stated that after conducting enquiry and being satisfied, he married the respondent. He cannot now turn around and say about the subsistence of the first marriage of the respondent, which has no legal basis. The other fact which requires consideration is the petitioner kept quiet for pretty long time after the respondent deserted him and only after receiving summons in the maintenance case, this petition came to be filed. – DISMISSED

  1. PARTITION SUIT 

DEFENCE SET UP WAS WILL DEED AND AS SUCH NO PROPERTIES LEFT FOR PARTITION. 

A]. Whether the wills were proved ?

Trial court held that  Ex.B 3 proved + B6 not proved 

 High court held that  In the light of the definite stand of the defendants, it is not open for them to turn round and contend that in the event of rejection of Ex.B6, they can rely on Ex.B3- Will. It was the contention advanced before the learned trial Judge on behalf of the defendants. Unfortunately, the learned trial Judge followed it assigning such reasons, which are mostly without any foundation, either by means of pleadings or evidence and further held that the finding has no justification for the learned trial Judge to accept Ex.B3 in given facts and circumstances, the same has to be rejected. The basis for rejection of Ex.B3 is mainly on account of the defence of the defendants, who themselves stated that it was revoked by the testator and cancelled leading to execution of Ex.B6 thereafter by him. Infirmities surrounding Ex.B3 discussed above, are also determinative factors to reject it. The testimony of the 1st defendant to call Ex.B3 a holograph Will, is not sufficient in the proved facts and circumstances of this case. Thus, findings of the learned trial Judge in this respect with reference to Ex.B3 shall be set aside. Thus, this point is answered. 

B]Whether non examination of the plaintiff, after attaining majority  at the trial was fatal on account of it.? 

No-When P.W.1, being father who represented the plaintiff in all her affairs in this dispute, as her next friend and guardian, he is the best and proper person to speak on her behalf. Therefore, omission to examine the plaintiff as a witness at the trial can have no bearing in this matter.

C].Whether the property can be excluded from consideration due to lack of identification of location ?

No- Question of consideration or deciding title or rights among the parties in a suit for partition cannot arise when all the parties have admitted that these properties belonged to Sri late Kandula Sanjeeva Rao . Therefore, merely because the parties could not trace out or locate this property at that point of time or before institution of the suit, there is no reason to exclude the same from consideration.

  1. How to pass an exparte decree and judgement ?

 Rule 4(2) of Order XX C.P.C., would be applicable and the Court would have to set out a concise statement of the case, the points for determination, the decision thereon and the reasons for such decision. But The trial Judge,  decreed the suit ex parte, in the following manner.                       “PW.1 examined, Exs.A.1 to A.13 marked. Suit is decreed directing the plaintiff to deposit the balance of sale consideration before the court within one month from this date and the defendant is directed to execute the registered sale deed in favour of the plaintiff within two months from this date, and receive balance of sale consideration from the court. In the event of failure by the plaintiff, the suit stands dismissed. In the event of default on the part of the defendant, the plaintiff is at liberty to get the document executed through process of the Court. Accordingly, the suit is decreed with costs.” 

High court held that a perusal of the judgment would show that none of the requirements of Rule 4(2) of Order XX C.P.C., have been complied with. There is no application of mind by the learned trial Judge, except to state that PW.1 was examined and Exs.A.1 to A.13 were marked. In these circumstances, the appeal is allowed and the judgment and decree  is set aside and the suit is remanded to the Court of III Additional District Judge, for fresh adjudication 

  1. PARTITION SUIT – DEFENDANTS FILED AN APPLICATION FOR COMMISSIONER FOR PARTITION FOR PASSING FINAL DECREE

Learned trial Judge, took into consideration improper provision of law stated by the appellants, as if Order XXXIV Rule 1 C.P.C. is applicable for passing a final decree and thus held that the application of the appellants could not be maintained. It was further observed that the appellants being the defendants 2 cannot file an application to appoint a Commissioner for partition of the properties by metes and bounds and for allotment of shares in a suit for partition .HIGH COURT HELD THAT  In a suit for partition, all the parties stand in the position of the plaintiffs and therefore, when there are shares allotable to the petitioners and the respondents as per the preliminary decree, they have every right to file an application to pass a final decree. In terms of Order XX Rule 18 C.P.C., such an application is clearly maintainable. -In the result, this appeal is allowed and order of learned Senior Civil Judge is set aside.

  1.  SUMMONS TO PRODUCE DOCUMENT FOR SENDING TO EXPERT OPINION                      Order XVI Rules 1 and 2 CPC to summon Sub-Registrar, Nandyal, to produce thumb impression register/ledger pertaining to the document dated 01-12-1953 vide document bearing No.541 of 1954 and also to depose in respect thereto relating to thumb impression as well as signatures of Sri late V.Thirumala Rao= the request of the petitioners is relating to nature of this dispute covering thumb impressions. The law is settled that the science relating to thumb impressions is an exact science. In such an event, when a document is sought to be subjected to examination with reference to thumb impressions appearing on it and the thumb impressions of the same individual available in certain authenticated records, which cannot be disputed by the parties, it is always desirable to have such an exercise undertaken. It assists the Court in arriving at the truth or otherwise in respect of the document, nature of which is questioned. If such an exercise is undertaken, none of the party stands to any prejudice. The opinion of the expert in this respect ultimately helps and ultimately assists the Court in arriving at the truth in relation to this document, viz., Ex.B19. 8. Viewed from such perspective, the reasons assigned in the order under revision are difficult to support. Therefore, it warrants interference. 9. In the result, this Civil Revision Petition is allowed setting aside the order of the Court of learned VI Additional District Judge, Kurnool,
  1. WHEN SEND FOR EXPERT OPINION PETITION WAS ALLOWED – SUMMON TO PRODUCE OF CONTEMPORARY DOCUMENTS SHOUD BE ALLOWED .

 Order-16, Rule-6 CPC r/w. Section 151 CPC for causing production of the documents said to contain his signatures from Indian Overseas Bank, Main Branch, Ongole. = In fact, the petition filed by the petitioner was only a step in aid to abide by the earlier order of the trial Court and nothing more. Thus, finding no justification in the order passed by the learned trial Judge, which is apparently perverse and passed without looking into the record, it has to be interfered with. There is failure on the part of the learned trial Judge to properly appreciate the issue, which has lead to miscarriage of justice.

  1. Order 6 Rule 17 CPC and Section 151 CPC as well as Rule 28 of Civil Rules of Practice –

No amendment be allowed changing grounds of divorce already taken-Divorce  petition under Section 13(1)(ia)(ib) of Hindu Marriage Act  on the ground of cruelty and desertion.-  Order 6 Rule 17 CPC and Section 151 CPC as well as Rule 28 of Civil Rules of Practice to amend the petition setting out the ground of alleged adultery against the petitioner.-The reason  was that there was a settlement between himself and the petitioner, to have divorce by mutual consent, which made him to file a formal application for divorce.- but  the wife contest the divorce petition and therefore, in order to bring real facts as to what happened in their matrimonial life, he intended to amend the petition to set out such pleadings –  trial Judge allowed the proposed amendment mainly on the ground that enquiry has not commenced in the main O.P. and accepting the reasons assigned by the respondent. It was further observed that the alleged addition of the adulterer could be looked into in the course of enquiry in the main petition; that the proposed amendment would not cause prejudice to the petitioner and that it would not change the nature of the main petition. – High court  held that His very position as an advocate gives rise to an impression that he knew the grounds on which he requires divorce against his wife. It cannot be stated that the petition earlier presented by him was casual, which did not provide for material particulars. Knowing full well the basis and foundation on which he wants to pursue the action against the respondent on the grounds of cruelty as well as desertion, he laid the petition. – Now, surprisingly he wants to introduce an element of alleged unchastity attributed to his wife and adulterous conduct. The allegation so set up by the respondent is so serious and causing damage to the interest of the petitioner, that the respondent could not have ignored such plea. As rightly contended for the petitioner, this ground proposed by means of the amendment, introduces a new cause adversely affecting the petitioner. In a way, it can be taken that the respondent has attempted to dilute his earlier claim against the petitioner and thus, tried to project altogether a new version. Certainly, the proposed amendment changes the nature and character of the defence set up by the respondent causing any amount of prejudice to the case of the petitioner.Therefore, in the above circumstances, the proposed amendment could not have been permitted by the learned trial Judge. The reasons assigned by the learned trial Judge in the process of allowing this amendment are not acceptable and only ground on which it was allowed was that no prejudice would be caused to the respondent and that the enquiry in the matter has not commenced as yet. 

  1. Sec.5 of limitation Act along with Or.9 Rule 13 CPC – Exparte decree was passed – set aside the ex parte decree petition  along with a petition under Section 5 of the Limitation Act to condone the delay of 138 days are filed- Trial court dismissed – High court upheld the same that  on account of work pressure, he forgot about the pending suit, is hard to believe. In fact, it is reflecting gross negligence on the part of the 1 st petitioner. When a suit of such nature was filed by the respondent against them with reference to an immovable property, it is impossible to believe that the 1st petitioner would have forgotten of the same.  The suit was filed not only against the 1st petitioner but also against the other petitioners. No explanation is offered by the petitioners as to the reason why the petitioners 2 to 4 remained silent without prosecuting the suit properly or initiating any action after decree was passed against them. The petitioners have remained silent without explaining if the petitioners 2 to 4 had knowledge of the pending suit or ex parte decree passed against them. – possession was also delivered -When once the property is delivered, which is subject matter of the suit, through process of the Court, the event so occurred cannot be set at naught by setting aside the ex parte decree, particularly, when reasons assigned by the petitioners are found to be untrustworthy and unbelievable. Conduct of the petitioners, as stated above, is not beyond reproach in this matter. They apparently took the matter for granted very casually and averment in the affidavit of the 1st petitioner that he forgot about the suit itself demonstrating this fact. Thus, gross negligence is perceptible in prosecuting the matter by the petitioners. Therefore, they should bear the consequences, which they have invited upon themselves
  1. Order-21, Rules-37 & 38 CPC to arrest -.”whether the respondent proved that the petitioners have ready and sufficient means to pay E.P.amount, which they have refused or neglected to pay inspite of demands?

Trial court issued arrest warrant – High court held that Apart from the oral evidence of himself as P.W.1, the respondent also produced Ex.A5-certified copy of the plaint in O.S.No.113/2017. As seen from Ex.A5, a suit was laid by the 2nd petitioner against one Smt. Akiri Annapurna for recovery of Rs.8,53,667/- on the file of the Court of learned Additional Senior Civil Judge, Eluru. He also deposed as P.W.1 in the above suit, certified copy of which is Ex.A6. The original of Ex.A7 is the promissory note concerned to the above suit. This fact clearly proves that the second petitioner had surplus money to lend and makes out the extent of income he had, post decree. The disputed property between these parties is subject matter of O.S.No.161 of 2015. Value of the property is about Rs.25,00,000/- as per the admission of the second petitioner elicited in the course of enquiry, in the execution petition. He attended the court in Scorpio vehicle, which fact he admitted but claimed that it belonged to his mother. He also claimed that the money lent under the Ex.A7 also belonged to his mother, which is falsified by his deposition in the above suit as per Ex.A6. -Dismissed the revision.

  1. The Mines and Minerals (Development and Regulation) Amendment Act, 2015, – Mere inspection report cannot be termed as letter of intent – held that it reveals that one Assistant Director submitted his report to the Government regarding the mining land, which is open for quarrying operation. On the basis of the said report, if any decision is taken by the Government in favour of the appellant issuing communication to him or to favour him under law, it can be termed as a letter of intent. Mere inspection report cannot be termed as letter of intent as argued by the learned Counsel for the appellant. -On perusal of the provision of Section 10A(1) of the MMDR Act, it is clear that all the applications received prior to the date of commencement of MMDR Amendment Act, 2015 shall be ineligible giving the exception, in Section 10A (2)(c ) of the MMDR Act, by which if a letter of intent (by whatever name called) has been issued by the State Government to grant a mining lease in favour of a person, who applied for, in such a case, shall not be ineligible. But in the present case as discussed herein above, there is no letter of intent.
  1. Water plant without licence – complaint – not taking action on the complaints made by the petitioner, including the complaint dated 08.07.2019, against the 6 th respondent, who has illegally established water plant and running the same at H.No.6-107, Tadepalli town, creating obstruction for free flow of traffic, causing nuisance and inconvenience to the inhabitants of the locality; as arbitrary and contrary to the guidelines issued by the Government.  not in dispute that water purifying plant is being run in Tadepalli at the place which is specified in the writ petitions. Section 263 of the Act deals with a situation where the premises, if situated within the limits of the Municipality, or at a distance within 3 kms., of such limits, shall not be used for any one or more of the purposes specified in schedule IV without the licence of the Commissioner and except in accordance with the conditions specified therein. Schedule IV makes it clear, the purpose for which the premises may be used without licence. Clause (ni) thereof includes manufacturing and selling or exhibiting for sale of packaged W.P.(PIL) No.184 of 2019 and W.P.No.20703 of 2019 5 drinking water. Therefore, water purifying plant falls within the purview of Section 263 Schedule IV of Section 263 of the Act. – writ allowed 
  1. Assigned lands = SALE OF PRIOR TO 1954 ASSIGNED LANDS CAN NOT QUESTIONED = assignments made prior to issue of G.O.Ms.No.1142, dt. 18-6-1954 in Andhra Area and that were made prior to issue of G.O.Ms.No.1406, dt. 25-7-1958 in Telangana Area, did not contain prohibition on alienation that the assignees are entitled to exercise all the rights including transfer of lands; that the initial burden lies on the Government and its functionaries to show that the assignments contain a condition against alienation of the land and that unless the revenue functionaries are first satisfied that the land is an assigned land within the meaning of sub-section (1) of Section 2 of Act 9 of 1977, no proceeding for cancellation of assignment can be initiated.” In the instant case, it is very much manifest from the proceedings of respondent No.3-Mandal Revenue Officer that the first purchase from the original assignee was on 05.01.1946. Having regard to the law laid down by the composite High Court in the above referred judgment, the provisions of the Act, 1977 cannot be pressed into service for the purpose of resumption of the said land. In the considered opinion of this Court, the order passed by respondent No.1-Joint Collector ordering resumption of the subject land, which is impugned in the present Writ Petition, is one without jurisdiction. For the aforesaid reasons, the Writ Petition is allowed, setting aside the order passed by respondent No.1-Joint Collector in proceedings D.Dis (E4) 7307/2008, dated 30.10.2009
  1. Sections 10 to 12 of Contempt of Courts Act, 1971 (for short the Act)- Order XXXIX Rules 1 and 2 of C.P.C, for grant of interim injunction, trial court granted interim injunction during pendency of suit and the order when challenged before the appellate court affirmed the order passed by the Principal Senior Civil Judge. But the order was set aside by this Court in Civil Revision Petition No.6565 of 2012, with a specific direction, to maintain status quo by both the parties, while directing Principal Senior Civil Judge,to dispose of the petition within three months i.e outer limit for disposal of the petition. When no stay was granted by this Court, question of its expiry in  terms of judgment in Asian Resurfacing of Road Agency Private Ltd and another (1st referred supra) does not arise. -The clarification sought by Principal Senior Civil Judge,  vide docket order dated 20.04.2018, itself indicates nonapplication of mind by Principal Senior Civil Judge, to the facts of the case and law declared by Apex Court in Asian Resurfacing of Road Agency Private Ltd and another (1st referred supra). But respondent being a practicing advocate, is not expected to flout the orders willfully or deliberately, since he is expected to be aware of ill consequences of such deliberate violation or disobedience of order passed by this Court and raised construction in the disputed site. Such act would fall within the Civil Contempt as defined under Section 2(b) of the Act, such contemnor is liable for punishment under Section 12 of the Act
  1. INSOLVENCY ACT – burden to prove that all the conditions of Section 10 of the Act are satisfied is on the debtor. In the instant case, none of the respondents have appeared to file their counters. However, since the burden is on the appellant to prove the act of insolvency as per the Act. Further, it is the bounden duty of the appellant to produce the books of accounts in order to substantiate his allegations. In the absence of evidence on record, this Court deems it fit that the trial Court has rightly arrived at a conclusion that it is not a fit case to declare the petitioner as an insolvent. Hence, there are no grounds to interfere with the Judgment of the trial Court. Therefore, this Court is of the view that the finding of the trial Court is just and reasonable and does not require any interference. 
  1. Order IX Rule 13 CPC. – Exparte decree against both defendants- second respondent/defendant filed or.9 rule 13 , his petition  was allowed – both sides adduced evidence also – at that stage, the 1st defendant filed Or.9 rule 13 petition – Trial court allowed the same – High court held that now, that the proceedings in the suit are continuing. The trial Court also observed that the petitioner as well as the second respondent have let-in evidence.  In the above circumstances, having regard to the nature of the relief sought in the suit for declaration as well as cancellation of a registered sale deed dated 16.02.2010 and the property in dispute being valuable immovable property at Yemmiganur, it is desirable that the first respondent shall have liberty to participate in the proceedings in the suit. If she is permitted to participate, none of the parties would suffer any prejudice. However, her participation shall be confined only from the stage of the suit obtaining as of now and she cannot be permitted to participate from the stage of filing written statement or issues or commencement of trial.
  1. ONCE THE DOCUMENT WAS MARKED, IT IS JUST TO SUMMON THE CONCERN PERSONS ON APPLICATION TO PROVE THE SAME

Order XVI Rules 6 & 7 r/w Section 151 of C.P.C., seeking to summon the Tahsildar, Visakhapatnam to produce the record relating to the suit property. – The trial Court has dismissed 2 the said application on the ground that even though the Tahsildar, Visakhapatnam is summoned, he will depose only to the extent of Exs.A4 to A7 and nothing more would be elicited through the proposed witness. It is also observed by the trial court the documents are already marked and available on record, no purpose will be served and the petitioners deliberately filed this petition with a view to protract the proceedings. – High court held that it is obvious that the trial Court has already marked Exs.A4 to A7. Therefore, to prove those documents, calling of the Tahsildar as a witness is necessary. Hence, this Court deems it fit to summon the Tahsildar, Visakhapatnam, for recording his evidence to know the genuineness of Exs.A4 to A7. In the light of the foregoing discussion, the trial Court is hereby directed to issue summons to the Tahsildar, Visakhapatnam, and record his evidence in respect of Exs.A4 to A7 only

  1. Order XXI Rules 37 and 38 C.P.C. =  Whether the arrest by the trial court is correct ?

it is very clear from the settled judgments of our HIGH COURT  that even if there is some semblance of material to show that the judgment debtors had capacity to pay the amount, an order as impugned in this case can be passed. It is not necessary that the property possessed by the judgment debtors has to be proved with mathematical precision. In the instant case, as observed by us earlier, P.W.1, in his evidence, categorically speaks about the income of judgment debtor No.1 and in the cross examination, he admits the money earned by judgment debtor No.2 coupled with the version that judgment debtor No.1 has immovable properties.  For the aforesaid reasons, we hold that the executing Court has not committed any gross error or any illegality in passing the impugned order, which warrants interference of this Court. 

  1. SUIT FOR PARTITION – OBJECTION FOR MARKING PARTITION DEED + RECTIFICATION DEED

 Section 35 of the Indian Stamp Act & Section 17(1) of the Indian Registration Act= Two documents, dated 21.06.1977 and 12.01.1980 were sought to be introduced in evidence, on the premise that they reflect an understanding among the members of the joint family in respect of possession and enjoyment of the family properties and that they are not evidencing any partition entered into among the parties thereto. -The 1st respondent objected on the ground that they are partition lists, which are amenable for payment of stamp duty and penalty and that they are inadmissible in evidence in view of Section 17(1) of the Indian Registration Act. – Considering the nature of these documents and the recitals therein, learned trial Judge negatived the contention of the petitioner holding that they are reflecting partition and thus, they are liable to be impounded in view of Section 35 of the Indian Stamp Act and that they are also barred in terms of Section 17(1) of the Indian Registration Act, being inadmissible in evidence. – “Whether the documents dated 21.06.1977 and another document dated 12.01.1980 styled as rectification document dated 21.06.1977, suffer from such vice in terms of Stamp Act and Registration Act? – These recitals clearly indicate that an arrangement was entered into on that day i.e. 21.06.1977, dividing the agricultural lands into three shares. -When these recitals are very clear and unambiguous indicating that it was a partition deed, these parties had entered into on 21.06.1977, it cannot be deemed an arrangement entered into among the members of the family for their beneficial enjoyment reflecting division in status alone. On this sole ground alone, the objection raised by the learned trial Judge and rightly pointed out on behalf of the 1st respondent at the trial, shall be sustained. -The next document dated 12.01.1980, is styled as a rectification instrument, correcting certain recitals in the earlier document dated 21.06.1977. The rectification is with reference to the share allotted to Sri Krishna Rao as part ‘A’ in the earlier 5 document. While recording the past transaction covered by the document dated 21.06.1977, it is stated in this document that Sri Krishna Rao shall enjoy the properties in ‘A’ schedule with absolute rights including of alienation or encumbrance of any nature. Thus, the limited right with reference to possession and enjoyment of part ‘A’ of the properties stated in the document dated 21.06.1977, stood elevated to the status conferring absolute ownership of such portion of the properties of the joint family allotted to Sri Krishna Rao. 14. This second document dated 12.01.1980, shall be considered as a continuation of the document dated 21.06.1977 and it cannot be considered in isolation. When the purport of the document dated 21.06.1977, is to record division of immovable properties among members of the joint family, its effect shall fall on the latter document dated 12.01.1980. Therefore, in view of the recitals conferring absolute right on Sri Krishna Rao in this document dated 12.01.1980 and to which, other two are also parties, it also suffers from the same vice in respect of stamp duty and under the Registration Act. 

  1. Order-6, Rule-17 CPC- NO PROPOSED AMENDMENT OF PLAINT BE ALLOWED WHEN IT IS NOTHING BUT FILING A NEW PLAINT =  If the proposed amendments are permitted, it amounts to presenting almost a new plaint in the place of the existing pleadings. Ultimately, it is not the course intended by Order-6, Rule-17 CPC nor it is desirable to aver the amendments sought particularly in the given facts and circumstances of the case. – SUIT FOR PARTITION – AMENDMENT OF PLAINT- DISMISSED.
  1. SUIT BY GPA

The question relating to granting permission in terms of Rule – 32 of Civil Rules of Practice at the threshold of the litigation is essentially between the Court and the plaintiff. If at all any of the defendants is aggrieved, either in respect of status of the attorney representing the plaintiff or in respect of the prejudice they stand to suffer, such question can well be raised as part of defence by the defendants. 

  1.  Sec.10[3][a][iii][b] and sec.12[2] of A.P Buildings (Lease, Rent and Eviction) Control Act, 1960 

A].Bona Fide Requirement – no further information was elicited as to whether or not the said shop room was conducive to manufacture oil and sell. Therefore, mere availability of another shop which was let out cannot be a ground to reject the request of the landlord. Further, it is a trite law that when a landlord owns number of premises which are on rent, he cannot be directed by the Court to occupy any other premises other than the one he seeks eviction. The discretion rests with him depending upon the suitability and other facts. Therefore, in the instant case, merely because respondent / petitioner let out a shop room situated in the Main Road to one Karri Ramana instead of occupying the same to do oil business that is not a ground to reject his petition. Thus, on a consideration of facts and evidence, it is clear that the respondent/petitioner bonafide requires the petition mentioned shop room for doing his family trade of oil business. 

B].sec.12[2]-Thus, the words ‘shall’ and ‘unless’ employed in the above provision make it clear that the Court shall not pass an order for eviction unless the landlord gives an undertaking to offer the building again to the tenant either after effecting repairs or reconstruction. In this case, the respondent/petitioner has admittedly not filed such a mandatory affidavit. Therefore, the Courts below were right in holding that the eviction petition under Section 12 of the Act was not maintainable. BUT the eviction petition hinges on the doctrine of bonafide requirement envisaged under Section 10 (3) (a) (iii) (b) of the Act. SO IS MAINTAINABLE

  1. ADDITIONAL WRITTEN STATEMENT

Order VIII Rule 9 and Section 151 CPC seeking permission to file his additional written statement in the suit

TRIAL COURT dismissed the same on the ground that the petitioner is trying to improve his case by creating a new version in his defence. –  as he could not mention the previous transaction of compromise and Oppudala Patram in respect of previous suit in O.S.No.790 of 2014, and  he filed additional written statement, seeking all the pleas.- High court held that  In view of the provision under Order VIII Rule 9 read with Section 151CPC, the trial Court can receive additional written statement. The petitioner has relied on the documents like Oppudala Patram and notices in respect of previous suit O.S.No.790 of 2014 to prove his case. Therefore, the petitioner must be given an opportunity to take all his defences available to him to prove his case. Therefore this Court is of the view that the petitioner must be permitted to file his additional written statement with all the pleas in respect of previous transaction in O.S.No.790 of 2014 and the relevant documents along with his written statement. 

  1. GPA – WIFE – EVIDENCE ACT SEC.120

the power of attorney holder is no other than the wife of the plaintiff and she is a competent witness to give evidence on behalf of her spouse under section 120 of Indian Evidence Act. Whether the third party, who is not the owner of the property can evict the tenant? YES.

  1. Order VII Rule 14(3) C.P.C CERTIFIED COPY OF DEPOSITION OF AN ATTESTOR TO A WILL CAN BE RECEIVED

“whether dismissal of an application for production of a deposition of an attestor to a Will, who is no more is appropriate and if the reasons assigned by the trial Court are correct? 

This witness, according to the plaintiffs, was examined in an earlier suit in between the same parties in O.S.No.183 of 1999 on the file of the same Court. According to the plaintiffs, since this attestor is no more, the deposition referred to 2 above of this witness is necessary to produce, on their behalf. So stating, the plaintiffs filed an application under Order VII Rule 14(3) C.P.C.=

 It is a certified copy of the deposition of a witness, and pertaining to a judicial proceedings between the same parties. The 4 nature of presumption such certified copy bears should have been considered by the learned trial Judge. Without adverting to these circumstances, going by the nature of the objections raised on behalf of the defendant, to reject the request of the plaintiffs in the given facts and circumstances of the case, is unjustified.Therefore, the order under revision has to be set aside. The trial Court is directed to receive the deposition of Sri late V.Satyanarayana Raju, subject to proof and relevancy. The trial Court is directed to consider the effect of the above deposition, once it is marked on behalf of the plaintiffs through an appropriate witness upon hearing the parties in final arguments and the defendant is at liberty to raise all such objections in respect thereof. No costs. 

  1. Production of a document at the end of the trial – when already a cc copy was marked – marking of it’s original would not cause any prejudice to the other side.

 Order 16 Rule 15 CPC to issue summons to the Sub-Registrar, Greams pet, Chittoor, to produce the original registered sealed cover along with Will deed bearing No.2/2006 dated 08.05.2006 and Will deed registered document No.168/D/2007 executed by Sri Gopala Modili in favour of Sri P.Balaram (the defendant). The above petition was dismissed by the trial Court.-The Will in question in original was not produced in the course of trial. Ex.B1 is it’s registration copy produced by the defendant during trial on his behalf. When the defence of a party is based on such a crucial document, which is in the custody of a public authority, its production is necessary. Responsibility of making such an attempt at belated stage cannot be placed on the defendant alone and apparently he did not have proper advice in this respect. When there was such deficiency in service for the defendant, he alone cannot be blamed for such omission.  Therefore, there is justification to produce this Will and the learned trial Judge could not have refused the request of the defendant only on the ground that Ex.B1 is already on record. The purpose of summoning Sub Registrar is also to prove the factum of deposit of this Will. Thus, there is no justification for the trial Court to pass an order of such nature in I.A.No.448 of 2014 and it has to be set aside. 

  1. DEPOSIT OF RENTS PENDING MAIN CASE

Section 11(4) of Andhra Pradesh Buildings (Lease, Rent And Eviction) Control Act, 1960,

FILED I.A.  seeking the respondent to deposit the monthly rent of Rs.2,000/- per month. The trial Court has dismissed the said application on the ground that there is no jural relationship between the petitioner and the respondent. – HELD THAT The scope of this revision petition is very limited to the extent of payment of rents under Section 11(4) of Andhra Pradesh Buildings (Lease, Rent And Eviction) Control Act, 1960. The jural relationship between the petitioner and the respondent would be decided in the R.C.C. Initially the jural relationship is disputed by respondent, but in the light of petition prima facie material the rents can be deposited. The order of the trial Court is not in accordance with law as the conclusion reached by the trial Court with regard to jural relationship is not based on any material evidence. Therefore, the order passed by the trial Court is not a speaking order. Hence, the order is set aside and the matter is remitted to the trial Court for fresh consideration by giving opportunity to both the parties, and dispose of the matter within 15 days from the date of receipt of a copy of this order. 

  1. Order VII Rule 14(1) and Order XII Rule 1(1)(2) of CPC 

 filed an Interlocutory Application  under Order VII Rule 14 (3) and Section 151 CPC before the trial Court to receive the list of documents as documentary evidence on behalf of the petitioner/plaintiff in the suit by condoning the delay in filing the same. List of the documents are as follows: 1. Acquaintance register maintained by the plaintiff. 2. Account book maintained by the plaintiff for the construction of Churches and other buildings 3. List of Executive Committee Members of A.E. Mission, Tadepalligudem, for the years 2017-2018. 4. The trial Court has dismissed the above application on the ground that the petitioner has not given any satisfactory reasons to show that it was beyond his control for non-filing of those documents earlier along with plaint and there was no reference about those documents in the plaint. – HELD THAT “Mere non-mention of the documents in the plaint or subsequent incidental or supplemental proceedings in the suit does not in any manner affect the power of the Court to grant leave to produce the documents at the subsequent stage. Non Mentioning of the documents sought to be produced at the subsequent stage is a curable defect. With leave of Court, which is condition precedent under Sub-rule(3) of Rule 4 of Order VII read with Sub-rule(1) of Order 13 to receive the documents, documents can be produced at the time of trial. But Order VII Rule 14(3) being an exception to the rule in Order VII  Rule 14(1) as well as Order XII Rule 1(1)(2), the power to grant must be exercised in rare cases and not in a routine manner.”  in the light of the ratio laid down BY this Court EARLIER, the petitioner is permitted to file those documents under Order VII Rule 14(1) and Order XII Rule 1(1)(2) of CPC and the trial Court is directed to take up the matter and dispose of the same in accordance with law, by giving opportunity, by receiving the documents filed by the petitioner, within three (03) months from the date of receipt of a copy of this order.

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