Smt. Seelam Laxmamma v. Smt. Chand Sultana

[ 32181

IN THE HIGH COURT FOR THE STATE OF TELANGANA

AT HYDERABAD FRIDAY, THE THIRTIETH DAY OF DECEMBER TWO THOUSAND AND TWENTY TWO PRESENT THE HONOURABLE SRI JUSTICE A.VENKATESHWARA REDDY CIVIL REVISION PETITION NO:2338 OF 2022 Petition under Article 727 ot lhe Constitution of lndia, aggrieved by the order dated B-08-2O22 in lA No. 3OO ot 2021 in OS No. 109 of 2008 on the file of the Court of the XXVI Additional Chief Judge, City Civil Court at Hyderabad Befoveen:

Smt. Seelam Laxmamma, Wo C.R. Govind Reddy, aged about 64 years, Occ. Retd. Govt. Service, Rl/o H.No.1&1 1-16-CN2, Sripuram Colony, Hyderabad.

...PETITIONER/PLAINTIFF AND

1. Smt. Chand Sultana, D/o Mir Abbas Hussaini, Wo Syed Mohd Ali Khan, aged about 65 years, Occ. Flcusehold, R/o H. No. 13-64211158, Satyanarayana Nagar Colony, Gudimalkapur, Mehdipatnam, Hyderabad. M/s Shell Leasing and Finance, Office at No. 1-8-3067/4, Saleem Nagar Colony, Prakash Nagar, Begumpet, Hyderabad.

8. Lakshman Rao, S/o B. Rajalingam, aged about 58 years, R/o 1-8-306I//A, Saeem Nagar Colony, Prakash Nagar, Begumpet, Hyderabad. Smt. Razia Sultana, D/o S.A. Khan, aged about 49 years, Occ. Director oI Shell Leasing and Finance, Rt/o H. No. 13-642'l l'158, Satyanarayana Nagar Colony, Gudimalkapur, Mehdipatnam, Hyderabad The State Bank of lndia, Rep. by its Manager, lndustrial Branch, Sanath Nagar, Hyderabad.

G. Venkat Rao, S/o G. Rama Rao, aged about 65 years, Occ. Business, R/o H. No. 12-242119, Alapati Nagar, Guclimalkapur, Hyderabad. A.V. Prasanth Kumar Reddy, S/o A.V. Uma Shanker Reddy, aged about 33 years, Occ. Business, Ri/o Quarter No. 236, New MLA Quarters, Hill Fort, Hyderabad.

Khaleeq lmran, S/o Md. Habeen-ur-Rahman, aged about 43 years, Occ. Businesq R:/o H. No. 877-8 ('11-3-769), Mallepally, Hyderabad. 2.

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& ...RESPONDENTS/DEFENDANTS (Respondent Nos 2 to 7 Not Necessary parties)

lA NO: 1 OF 2022 Petition under Section 151 CPC praying that in the circumstances stated in the affidavit filed in support of the petition, the High Court may be pleased to stay of all further proceedings the operation of the common order dated 08-08-2022 in lA No. 3OG of 2O21 in OS No. 109 of 2008 on the file of XXVI Additional Chief Judge, City Civil Court at Hyderabad Counsel for the Petitioner: SRI MAHMOOO ALI Counsel for the Respondent No.8: M/s. SHARAD SANGHI The Court made the following: ORDER

THE HON'BLE SRI JUSTICE A, VENKATESHWARA REDDY CRP No.2338 of2022 ORDER:

This Civil Revision Petition is filed under Article 227 of the Constitution of India assailing the common order dated O8.O8.2022 in LA.No.3O6 of 2021 in O.S.No.109 of 2008 on the file on the Iile of the XXVI Additional Chief Judge, Hyderabad

2. This I.A. No.3O6 of 2021 was filed by the petitioner/plaintiff under Section 151 of the Civil Proceduie Code, 1908 (for short 'CPC) for a direction to the re spondents/ defendant Nos.1 to 4 to be present in the Court in O.S.No. 109 of 2OO8 and if necessar5r to direct the Police Tappachabutra and Langer House to ensure their presence and to pass such other orders as the Court deems fit. The leanned judge of the trial Court has dismissed this I.A.No.3O6 of 2027 along with IA No.3O7 of 2O2I filed by the petitioner/plaintiff to reopen the suit, which is coming up for argurnents, through the common order dated 08 .OA .2022 . The revision petitioner/ plaintiff has challenged

CRP No.2338 of 2022 the common order dated O8.O8.2O22 only to the extent in IA No.306 of 2021 .

3.

Be it stated that on behalf of respondent No.S, Sri Sharad Sanghi, learned advocate has filed Vakalat. As per the ca'rse title in the civil revision petition, respondent Nos.2 to 7 are not necessary parties. Whereas, according to the proceedings dated 30.11.2022, the revision petition was adjourned to 15.12.2022 with a condition that in default of filing of any proof of service or sending notice to respondent No.1, the civil revision petition stands dismissed against respondent lJo.1. Thereafter, as per the memo dated ).9.12.2022, no such report is filed, but in the written submissions, it is mentioned that the respondent/ defendant No.1 was set ex parte before the trial Court in the original suit in OS No.109 of 2008 and that the only issue is the defendant No.8 does not have any title. As such, the civil revision petition stands dismissed against respondent No. 1 pursuant to the proceedings dated 30.17.2022.

CRP No.2338 of 2022 4.

Heard the learned counsel for the revision petitioner/ plaintiff and the respondent No.8/defendant No.8. The submissions made on either side have received due consideration of this Court.

5.

Undisputedly, the original suit in OS No. 109 of 2O0B was filed by the plaintiff for declaration of title and recovery of possession ln respect of the suit schedule property. In the original suit, defendants I to 4 remained absent and they were set ex parte. Evidence on both sides concluded and when the suit was adjourned for arguments, the present application in IA No.306 of 2O2l was filed by the petitioner/ plaintiff with a prayer to direct the defendant Nos.1 to 4 to be present in the Court. Along with this I.A., another I.A.No.3O7 ol 2027 is a-lso filed with a prayer to reopen the suit, which is coming up for arguments.

6.

As per the orders impugned, defendant Nos.l and 4 were set ex parte on 09.06.2008, whereas defendant Nos.2 and 4 were set ex parte on 15.10.2008. The suit summons were taken against them by way of substituted

CRP No.2338 of 2022 service by publishing in a news paper and they remained absent and set ex parte. The only defendant contested the suit is defendant No.B, u,ho filed the written statement, issues settled, trial concluded, written arguments were also Iiled on both sides. At this stage, the present application in I.A.No.3O6 of 2027 along with I.A.No.3O7 of 2021 are filed for direction against the defendant Nos. I to 4 for their appearance, if necessarv directing the concerned police to produce them before the trial Court and to reopen the suit respectively.

7.

Whereas, the specific case of the contesting defendant No.B is that the prayer in the petition 1S misconceived, no such direction could be issued either to the defendant Nos.l to 4 or to the police concerned to secure their presence before the trial Court and such application is only filed to delay the proceedings before the trial Court.

The learned counsel for the revision petitioner/ plaintiff would submit that the present civil revision petition may be disposed of by giving an opportunity to the

CRP No.233a of 2022 parties to file the documents in their possession. Per contra, the learned counsel for the respondent/defendant No.B would submit that the original suit is filed in the year 2008, defendant Nos.1 to 4 were set ex parte way back in the year 20OB itself and at this belated stage, after conclusion of the trial, when the suit was posted for a-rguments, this application in IA No.3O6 of 2O2l dong with IA No.3O7 of 2027 is filed and without assailing the orders in IA No.3O7 of 2027, as such the present civil revision petition questioning the validity of the crders in IA No.3O5 of 2021 only is'miseonceived and at this belated stage, no such direction be issued either to the defendant Nos. 1 to 4 or to the police concerned for causing their presence in the original suit before the trial Court. 9.

As per the prayer in IA No.306 of 2021, the petitioner/plaintiff has requested the trial Court to direct the respondents/ defendant Nos.1 to 4 to be present in the Court and if necessary to direct the police concerned to ensure their presence before the tria-l Court. Whereas, as per the cause title in the present civil revision petition, the

AVR.J CRP No.2338 of 2022 respondent Nos.2 to 7 who a-re defendant Nos.2 to 7 are not necessarv parties and the notice of respondent /defendant No.1 is not served in spite of conditional order dated 30.71.2022. Undisputedly, the respondent/ defendant Nos.l and 4 rvere set ex parte on 09.06.2008 and respondent/ defendant Nos.2 and 3 were set ex parte on 15.10.2OO8 in the original suit. The defendant No.B is only contesting the original suit, trial concluded, written arguments were also filed. At this belated stage, the application in IA No.306 ol 2021 is filed under Section 115 of CPC rn aking certaiq allegations against the Process Server as mentioned in para-4 of the supporting affidavit. As per the order impugned in para-9, it is categorically mentioned by the learned judge of the trial Court that the summons were issued to these defendant Nos. 1 to 4 by way of substituted service, as such I find no force in the averments rnade in the supporting affidavit making certain allegations against the Process Server concerned in the year 2OO8.

PaBe 7 of l0 CRP No.233a of 2022

10. That apart, though the present civil revision petition is filed to set aside the impugned order, as stated above, the defendant Nos.2 to 7 (including the defendant Nos.2 to 4) are not necessary parties as mentioned in the cause title and that notice was not served in spite of granting ample opportunity to the defendant No.1 and failed to comply with the conditional order dated 30.11.2022, as such the petitioner/plaintiff is not entitled for any such relief against the defendant Nos. I to 7. 1 1 . The learned counsel for the revision petitioner would submit that without looking into the merits or otherwise of the claim made by the revision petitioner/ plaintiff, the present civil revision petition may be disposed of by giving an opportunity to the parties to lile documents in their possession in support of their respective claims.

12. In this context, I may refer to the principles laid by the Hon'ble Supreme Court of India in M/s. Bagai Construction, through its Proprietor Lo.lit Bagai u. M/s.

CliP No.2338 of 2022 Gupta Building Material Storet and in IV,C. Bansal a. Uttar Prrrdesh Financial Corporation and anothefl .

13. In the above decisions, the Hon'ble Supreme Court while dealing with similar facts for production of additiona-l documents and recall of witnesses held that recording of evidence is to be a continuous process followed by arguments and decision of the Court. Adjournments, reopening and recalling of witnesses are tc be a-llowed only in compelling circumstances. Further held that such applications for reopening the case and prcduction of documents can only be consiriered when the trial is yet to begin or when it is at the initial stage. 14 . In the case on hand, undisputediy, defendant Nos.l to 4 were set ex parte way back in the year 2008 itself. Therea-fter, the contesting defendant No.S has filed the written statement, issues settled, trial concluded ald written arguments were also filed. At this belated stage in suit relating to the year 2008, the applications in IA a I 'aln 2ot3 sc la4s 2 1zots1 z scc 347

CRP No.2338 of 2022 Nos.306 and 307 of 2O2l were filed to direct the defendants 1 to 4 to be present in the court or to cause their presence with the help of police concerned and to reopen the suit.

15. It is pertinent to note that the common order impugned in IA No.3O7 of 2O2I for reopening the original suit is not assailed and the only order challenged through this revision petition is the order in IA No.306 of 2027 seeking a direction to the defendant Nos.1 to 4 to appear before the Court or direction to the concerned police to -cause their appearance. But, the learned counsel for the revision petitioner has requested to dispose of the present revts10tl petition directing the trial Court to receive the documents filed by the parties to the suit.

16. ln the above factual matrix, considering the settled legal principles, the prayer in IA No.306 of 2O2l to ( ( t direct the defendant Nos. 1 to 4 to be present in the court or to cause their presence with the help of the concemed police or the request made by the learned counsel for revision petitioner to permit the petitioner to file the

CRP No-2338 of 2022 documents is wholly untenable, misconceived and cannot be granted. Therefore, I do not find any jurisdictional error or infirmity in the common order impugned, the trial Court has rightly dismissed the application and it does not warrant any interference b.y this Court.

17. Therefore, in that view of the matter, since the original suit is pending since 2008 onwards, arguments also appears to have becn concluded, the learned judge of the trial Court shall make every endeavour to dispose of the original suit rvithin tu,o months from the date of receipt of copy of this order.

18. With the above observations and findings, the Civil Revision Petition is clismissed without costs. As a sequel, miscellaneous applications, if any pending in this revision petition, shall stand closed. Sd/-K.AMMAJI //TRUE COPY// ASSISTANT REGISTRAR c_;p ro, sEcTloN oFFlcER '1. The XXV| Additionat Chief Judge, City Civil Court at Hyderabad ? 9n" cc to Sri Mahmood Ari dr;;aL fOpUCi'

3. one CC to M/s. Sharad Sanshf no*.jt 'f5ELcl

4. Two CD Copies / plp I r{

HIGH COURT DATED:301'1212022 'I llE s iA /a

ORDER

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