Research › Search › Judgment

Andhra High Court · body

2011 DIGILAW 204 (AP)

Lakshmi Parvathi v. K. Umamaheswari

2011-03-08

B.PRAKASH RAO, R.KANTHA RAO

body2011
Judgment R. Kantha Rao,J This appeal is filed by the defendant against the judgment and decree dated 18.01.2005 passed by the II Senior Civil Judge, City Civil Court, Hyderabad in O.S.No.82 of 1999. The unsuccessful defendant is the appellant. We have heard Sri Vedula Venkata Ramana, learned senior counsel appearing for the appellant and Sri D. Prakash Reddy, learned senior counsel appearing for the respondent. For the convenience sake, we refer the parties to the lis as ‘the plaintiff and the defendant.’ The plaintiff instituted the suit to recover the possession of the house bearing No.8-2-674/6/1 situated at Road No.13, Banjara Hills, Hyderabad, hereinafter called as “suit property” by evicting the defendant therefrom and to recover the damages at the rate of Rs.15,000/- per month for use and occupation by the defendant with effect from 01.02.1996. The plaintiff asserted her title to the suit property by virtue of a registered sale deed dated 10.08.1990 executed in her favour by its original owner. As the plaintiff at relevant time was staying in USA executed, a General Power of Attorney in favour of her brother M.Ramakrishna, who filed the suit on her behalf. The version of the plaintiff is that as she was in USA at the time of execution of the registered sale deed dated 10.08.1990, her father late N.T.Rama Rao took possession of the suit property on her behalf, but the consideration was paid by her and she became entitled to the suit property under the registered sale deed dated 10.08.1990 and thus, she is the absolute owner of the said property. On the other hand, it was the contention of the defendant that she is the legally wedded wife of late N.T.Rama Rao, the entire sale consideration was paid by late N.T.Rama Rao but he purchased the suit property benami in the name of the plaintiff, late N.T.Rama Rao also reconstructed the entire house by spending his own money and lived therein along with the defendant in his own right. Thus, according to the defendant, the plaintiff has no title to the property and late N.T.Rama Rao bequeathed all his moveable and immoveable properties in favour of the defendant under a will and after the death of late N.T.Rama Rao, she became absolute owner of the properties including the suit property. Thus, according to the defendant, the plaintiff has no title to the property and late N.T.Rama Rao bequeathed all his moveable and immoveable properties in favour of the defendant under a will and after the death of late N.T.Rama Rao, she became absolute owner of the properties including the suit property. It was also contended that since she disputed the title of the plaintiff, the court fee paid by the plaintiff under Section 40(2) of the A.P. Court Fee and Suits Valuation Act is not correct. Contending as such, the defendant sought to dismiss the suit. Basing on the rival contentions, the following issues and additional issues have been framed by the trial Court: 1. Whether the plaintiff is entitled for recovery of possession of the suit property as prayed for? 2. Whether the suit schedule property is the self acquired property of late N.T.Rama Rao? 3. Whether the defendant is legally wedded wife of late N.T.Rama Rao? 4. Whether the suit schedule property was transferred in the name of the defendant under a will by late N.T.Rama Rao? 5. To what relief? Additional Issues: 1. Whether the deed of General Power of Attorney dated 23.01.1996 alleged to be executed by the plaintiff in favour of N.Ramakrishna is proved and if so, whether GPA holder is having authority to represent the plaintiff? 2. Whether the plaintiff came into possession of the suit property after purchasing the same? 3. Whether the suit as framed and filed is maintainable? 4. Whether the suit is properly valued and proper court fee was paid? Before the learned trial court, the General Power of Attorney holder of the plaintiff was examined as PW.1, one of the attestors of the registered Sale Deed dated 10.08.1990 was examined as PW.2 and Exs.A.1 to A30 were marked. The defendant got herself examined as DW1 and marked Exs.B.1 to B.7. Before the learned trial court, the General Power of Attorney holder of the plaintiff was examined as PW.1, one of the attestors of the registered Sale Deed dated 10.08.1990 was examined as PW.2 and Exs.A.1 to A30 were marked. The defendant got herself examined as DW1 and marked Exs.B.1 to B.7. The learned trial Court having answered all crucial issues in favour of the plaintiff, decreed the suit directing the defendant to vacate the suit property within a period of two months from the date of its judgment, but disapproved the valuation of the suit by the plaintiff basing on the damages for use and occupation at the rate of Rs.15,000/-per month and paying Court fee of Rs.1,80,000/-under Section 40(2) of the A.P. Court Fee and Suits Valuation Act on the ground that the suit is not between the landlord and the tenant. The learned trial Court held that the plaintiff ought to have valued the suit under Section 29 of the A.P. Court Fee and Suits Valuation Act and ought to have paid the Court fee on the 3/4th of the market value of the property in view of the denial of the title of the plaintiff by the defendant, consequently the trial Court directed the plaintiff to value the suit for the purpose of Court fee on 3/4th of the market value of the property as on the date of filing of the suit and to pay the balance of Court fee within a month from the date of the judgment. The learned trial Court repelling the contention of the defendant that the suit property was purchased benami by late N.T.Rama Rao in the name of the plaintiff and that late N.T.Rama Rao is the real owner of the property and also taking into consideration that no will as such allegedly executed by late N.T.Rama Rao had been produced by the defendant, decreed the suit and directed the defendant to vacate the suit property. The following contentions have been urged by the defendant in this appeal before us. Late N.T.Rama Rao is the true owner of the suit property and the plaintiff having not been in possession of the property at any point of time, she is not entitled for a decree of recovery of possession. The following contentions have been urged by the defendant in this appeal before us. Late N.T.Rama Rao is the true owner of the suit property and the plaintiff having not been in possession of the property at any point of time, she is not entitled for a decree of recovery of possession. The plaintiff having not entered into the witness box to substantiate her pleas, the trial Court ought to have drawn adverse inference against the case of the plaintiff. PW.1, the brother of the plaintiff though General Power of Attorney holder, he is not competent to give evidence on behalf of the plaintiff and the suit is liable to be dismissed for non examination of the plaintiff. Ultimately, the learned trial court found that the valuation of the suit made by the plaintiff is incorrect, as the defendant disputed the title of the plaintiff and in the light of the direction issued by the trial Court to the plaintiff to value the suit on 3/4th of the property and to pay court fee thereon, the trial court at relevant point of time had no pecuniary jurisdiction to try the suit and therefore, the decision rendered by the trial Court on merits is not valid and is liable to be set aside in this appeal. As to the contention that the trial Court failed to take notice of the fact that the real owner of the property is late N.T.Rama Rao and he obtained the sale deed benami in the name of the plaintiff, who is his daughter, we wish to state that as rightly submitted on behalf of the plaintiff that on the date of execution of the registered sale deed dated 10.08.1990 in favour of the plaintiff, she was married, she was not member of the Hindu Joint Family and therefore, the prohibition under Section 4 of the Binami Transactions (Prohibition) Act 1988 is attracted and the defendant is debarred from setting up the defence that the transaction is binami and the sale deed was obtained in the name of the plaintiff by late N.T.Rama Rao. The trial Court therefore, did not commit any mistake in repelling the contention urged by the defendant and holding that she is precluded from taking such plea. The trial Court therefore, did not commit any mistake in repelling the contention urged by the defendant and holding that she is precluded from taking such plea. In regard to the other contention that PW.1, the brother of the plaintiff and her General Power of Attorney holder, cannot be examined as a witness on behalf of the plaintiff and an adverse inference has to be drawn against the case of the plaintiff for not offering herself to be examined as a witness to testify her case, we wish to make it clear that there is no statutory prohibition envisaged under Order 3 of the Code of Civil Procedure for the power of attorney holder being examined as witness on behalf of the plaintiff. In MALLIPUDI BABU RAO v MALLIPUDI PRAMEELA KUMARI 2004(1)ALD 241(2)(DB) to which one of us (Sri Justice B.Prakash Rao) is a party, delivering the judgment for the Division Bench held as follows: “the only requirement for a person to come into witness box to speak in regard to any facts and circumstances of the case is that he should be competent enough to testify i.e. to speak. The competency as contemplated is a very wider in its connotation. There is distinctive feature between one who is said to be competent on behalf of the person to speak and another how far and to what extent the person can speak. These two aspects cannot be mixed up to reject a person from entering the witness box. As long as one holds proper authority under a power of attorney or otherwise, he is fully competent to come as witness on behalf of the said party”. We are not inclined to take any different view in the context of the case on hand. We wish to emphasize that PW.1 may not substitute the plaintiff as a party witness, but certainly he can be examined as a witness on behalf of the plaintiff and can testify the facts within his knowledge. It is not the case where PW.1, the Power of Attorney holder deposing instead of principal. We wish to emphasize that PW.1 may not substitute the plaintiff as a party witness, but certainly he can be examined as a witness on behalf of the plaintiff and can testify the facts within his knowledge. It is not the case where PW.1, the Power of Attorney holder deposing instead of principal. What all he stated in regard to the acts personally done by the principal (plaintiff) may not be relevant but as a holder of power of attorney and in exercise of power granted under the instrument, he can be examined as a witness and depose to certain acts which he does in pursuance of the Power of Attorney. PW.1 being no other person than the brother of the plaintiff can testify certain relevant facts within his knowledge. We want to further make it clear that for non-examination of a party to the suit, adverse inference cannot be drawn in each and every case. When adverse inference can be drawn, is a question varies from case to case. If the evidence is of such a nature that it is insufficient in the absence of the testimony of the party to the suit, then the Court would be justified in drawing adverse inference against the case of the said party for his non-examination to the effect that the case which had been set up by him is not correct. Here is a case wherein the plaintiff relied upon a registered sale deed dated 10.08.1990 executed in her favour by its original owner. The dispute is not with any person claiming through the original owner. It is not the case of the defendant that she derived any right or interest from the original owner of the property. As already said the defendant is precluded from taking the plea that late N.T.Rama Rao purchased the suit property benami in the name of the plaintiff by virtue of the prohibition envisaged in Section 4 of the Binami Transactions (Prohibition) Act. The plaintiff could be able to prove the execution of the sale deed by examining one of the attestors as PW.2. Even it is not the case of the defendant that no sale deed was executed by the original owner in favour of the plaintiff. The plaintiff could be able to prove the execution of the sale deed by examining one of the attestors as PW.2. Even it is not the case of the defendant that no sale deed was executed by the original owner in favour of the plaintiff. She admits the sale deed, but only contends that it was obtained by late N.T.Rama Rao benami in the name of the plaintiff which plea as we have already held, the defendant is not entitled to take. Further the defendant claims right in the property by virtue of the will allegedly executed by late N.T.Rama Rao bequeathing all his property in her favour, but no such will is produced by the defendant. In a civil case, the Court is guided by preponderance of probabilities to arrive at a decision in regard to the proof of certain facts. It is well settled that when both parties adduce evidence, the burden of proof looses it’s significance and the court has to take a decision basing on preponderance of probabilities. In the facts and circumstances of the case and having regard to the evidence let in by the plaintiff, the learned trial Court is perfectly justified in concluding that the plaintiff has title to the property and possession of the property had been taken by late N.T.Rama Rao on behalf of the plaintiff, who is his daughter under Ex.A.1-sale deed. The last contention on which much emphasis has been laid by the learned counsel appearing for the defendant is that if the suit is valid on 3/4th of the market value of the property as directed by the learned trial Court, the learned trial Court (Senior Civil Judge, City Civil Court, Hyderabad) has no pecuniary jurisdiction to try the suit at relevant time and the District Judge only has jurisdiction to try the suit and therefore, the judgment passed by the trial Court is not valid. Here the issue relates to the pecuniary jurisdiction of the Court and a decision had already been rendered by the trial Court on merits, the crucial point therefore arises for consideration is whether the decree and judgment passed by the trial court is nullity for want of jurisdiction. Here the issue relates to the pecuniary jurisdiction of the Court and a decision had already been rendered by the trial Court on merits, the crucial point therefore arises for consideration is whether the decree and judgment passed by the trial court is nullity for want of jurisdiction. It was argued on behalf of the defendant by the learned counsel that the objection for valuation of the suit and pecuniary jurisdiction was taken in the written statement itself, the trial court therefore ought to have returned the plaint for presentation in the proper court instead of rendering the decision on merits and directing the plaintiff to value the suit properly and pay the court fee thereon. Under the scheme of the Civil Procedure Code there is a distinction between territorial and pecuniary jurisdiction on one hand and the inherent lack of jurisdiction on the other. If the Court lacking territorial or pecuniary jurisdiction renders a judgment, it is not nullity unless it is shown that substantial prejudice has been caused to the opposite party. If it is a case of inherent lack of jurisdiction, certainly the judgment passed by the trial court is nullity, but if it is a case of either lack of territorial jurisdiction or pecuniary jurisdiction, the decision rendered by the Court is not nullity, so long as such exercise of jurisdiction does not result in failure of justice. Inherent lack of jurisdiction means lack of competence of the Court to decide a particular subject matter. It may arise out of a limitation or bar created by a statute prohibiting to take up the very cause or the subject matter involved in the suit. In KIRAN SINGH ANDOTHERS v. CHAMAN PASWAN AND OTHERS AIR 1954 SC 340 (1) the Hon’ble Supreme Court held that the policy envisaged under Sections 21 and 99 C.P.C. and Section 11 of the Suits Valuation Act is one and the same namely, that when a case had been tried by a court on merits and judgment rendered, it should not be liable to be reversed purely on technical grounds, unless it had resulted in failure of justice and the policy of the legislature has been to treat objections to jurisdiction both territorial and pecuniary as technical and not open to consideration by an appellate Court, unless there has been a prejudice on the merits. Same view was taken by the Hon’ble Supreme Court in SUBHASH MAHADEVASA HABIB v NEMASA AMBASA DHARMADAS (DEAD) BY LRS AND OTHERS (2007)13 SCC 650 , HASHAM ABBAS SAYYAD v USMAN ABBAS SAYYAD ANDOTHERS (2007)2 SCC 355 and HARSHAD CHIMAN LAL MODI v DLF UNIVERSAL LTD. AND ANOTHER (2005)7SCC 791. Obviously in the instant case it cannot be said that the learned trial Court i.e. II Senior Civil Judge, City Civil Court, Hyderabad at relevant time had lack of inherent jurisdiction, but for the pecuniary nature of jurisdiction, the learned trial court is competent to adjudicate upon the subject matter of dispute. Therefore, the contention urged on behalf of the defendant that the decree and judgment passed by the learned trial Court are nullity, has no legal force. In this appeal, we are not supposed to reverse the judgment passed by the trial Court on merits on mere technical ground that it had in fact no pecuniary jurisdiction at relevant time. For the reasons aforementioned, we absolutely see no merit in the appeal and accordingly, dismiss the same. The defendant/appellant is directed to vacate the schedule mentioned premises within two months from the date of the judgment in the present appeal. There shall be no order as to costs.