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2012 DIGILAW 1183 (AP)

Akshyapatra Subhadra Devi v. Nambula Venkata Ratnam (died) Khambhampati Nageswara Avadhanulu

2012-11-28

B.N.RAO NALLA

body2012
Judgment This Civil Miscellaneous Appeal is filed assailing the judgment dated 22.03.2005 in A.S. No.60 of 2001 on the file of the Court of II Additional District Judge, Vijayawada, whereby and whereunder the judgment dated 28.09.2001 in O.S. No.511 of 1992 on the file of the Court of III Additional Senior Civil Judge, Vijayawada, was set-aside and remanded the matter back for fresh disposal. 2. Appellant herein is 1st respondent in the A.S. and plaintiff in the O.S. Respondent No. 1 herein died during the pendency of the A.S., who is appellant No.1 in the A.S. and defendant No.2 in the O.S. Respondent No.2 herein is appellant No.2 in the A.S. and defendant No.3 in the O.S. Respondent No.3 herein is respondent No.2 in the A.S. and defendant No.1 in the O.S. Respondents 4 to 6 herein, who are legal heirs of Respondent No.1, are respondent Nos. 3 to 5 in the A.S. 3. For the sake of convenience, the parties herein after referred to as they arrayed in the original suit. 4. The plaintiff (appellant herein) originally filed the suit for specific performance of an agreement of sale dated 10.06.1992 in respect of the plaint schedule land in R.S.No.81/4 in an extent of 297 square yards, Bhavanipuram, Vijayawada against defendant No.1 (respondent No.3 herein) only. Thereafter, defendant Nos. 2 and 3 (respondent Nos 1 and 2 herein) were added. The trial Court taking into consideration the evidence on record and the submissions made on either side, decreed the suit on 28.09.2001 in favour of the plaintiff directing the defendants to execute sale deed in respect of schedule land at her (plaintiff) expenses within two months from the date of the decree and to deliver vacant possession of the suit schedule land. Aggrieved thereby, defendant Nos.2 and 3 filed appeal in A.S. No.60 of 2001 and the first appellate Court after re-appreciating the evidence on record and having heard the submissions made on either side, allowed the A.S. setting aside the decree and judgement of the trial Court in O.S. No.511 of 1992 and remanded the matter back to the trial Court for disposal afresh with the following directions. “1. that the trial court has to take the case to file with the original suit number and all the parties to the appeal herein without any further notice by the trial court shall appear before the trial court on 8.4.2005. “1. that the trial court has to take the case to file with the original suit number and all the parties to the appeal herein without any further notice by the trial court shall appear before the trial court on 8.4.2005. 2. that within one week therefrom the plaintiff shall exercise the option for suitably amending the plaint not only by showing the legal heirs of late 2nd defendant but also by payment of court fee for the relief of declarations U/s.37 of A.P.C.F. Act or by relinquishing that part of the claim, by so amending the plaint if chooses in the prayer portion to seek direction for specific performance against defendants and for execution of registerd sale deed by defendant, i.e. since D.2 died by the L.Rs of D.2 who are R.3 to R.5 in the appeal and it is needless to say that the amended copy of the plaint shall be served on the defendants to the suit and it is only to the extent of that amended portion to allow in contesting and not to plea additional facts and to file such additional written statement within one week from that date and failing which to treat no additional written statement and in fact no additional evidence is arise as evidence is on record from both sides who faced the trial after the original plaint amended by impleading D.2 and D.3; that the trial court shall permit the 3rd defendant for cross-examination of PW.2 the scribe of Exs.A.1 and A.3 documents since no opportunity to D.3 given in the trial court, for that it is made clear that as D.3 did not cross –examine PW.2, it is needless to say that it is not only to confine to alterations, deletions and interpolations in Ex. A. 1 sale agreement, but also on all other aspects arisen in the matter from the contest of D.3 and from disproving the contest of the plaintiff. A. 1 sale agreement, but also on all other aspects arisen in the matter from the contest of D.3 and from disproving the contest of the plaintiff. From the above observations, the trial court has to hear the arguments of both sides and give fresh disposal if necessary by recasting the issues on record with specific findings on each issue; that the trial court shall dispose of the suit preferably within three months from 8.4.2005 by giving priority, no doubt it is subject to other workload and other matters that are preferred from the directions of Hon’ble Supreme Court or Hon’ble High Court if any.” Assailing the same, this C.M.A. has been filed by the plaintiff. 5. Heard the learned counsel for the plaintiff (appellant herein) and the learned counsel for defendant No.3 (respondent No.2 hereinn). 6. The case of the plaintiff is that she filed suit O.S. No.511 of 1992 for specific performance of an agreement of sale dated 10.06.1992 and she secured interim injunction orders from the trial Court. While so, defendant No.1 entered into agreement of sale with defendant No.2 to defeat the rights of the plaintiff in respect of the suit schedule land and got filed a collusive suit through defendant No.2 in O.S.No.537 of 1992 on the file of the II Additional Sub Court, Vijayawada against defendant No.1 seeking specific performance of agreement of sale ante dated and that defendant No.1 appeared in the said suit and got the said suit dismissed as not pressed. Thereafter, defendant No.1 executed a sale deed in favour of defendant No.2. Thereafter, defendant No.2 was impleaded in O.S.No.511 of 1992. Pending trial of O.S. No.511 of 1992, defendant No.2 sold the suit schedule land in favour of defendant No.3 and he was impleaded in O.S. No.511 of 1992. The trial Court appreciating the evidence on record and the facts and circumstances of the case decreed the suit in favour of the plaintiff and against the defendants. 7. Pending trial of O.S. No.511 of 1992, defendant No.2 sold the suit schedule land in favour of defendant No.3 and he was impleaded in O.S. No.511 of 1992. The trial Court appreciating the evidence on record and the facts and circumstances of the case decreed the suit in favour of the plaintiff and against the defendants. 7. In the light of the above facts, the learned counsel for the plaintiff contended that the first appellate Court has failed to consider the material on record in proper perspective and thereby came to a wrong conclusion in remanding the matter back to the trial Court with the directions as referred above.The learned counsel contended that the first appellate Court failed to consider the above facts and also the fact that both sides led their evidence and there remains nothing to further probe in to the matter. As such, the learned counsel contended that the first appellate Court has committed an error in doing so. The learned counsel took exception for the direction given by the first appellate Court to the trial Court to give an opportunity to D.3 to cross examine the plaintiff’s side witness. The learned counsel further contended that remand of the matter by the first appellate Court to the trial Court in the said circumstances, amounted to permitting all the defendants in general and defendant No. 3 in particular to fill up the lacunae, more so, in the absence of such a plea being raised before the first appellate Court by defendant No.3. 8. Per contra, the learned counsel for defendant No.3 (respondent No.2 herein) submitted that though the appeal lies against the order of remand to this Court, no substantial questions of law raised or recorded in this appeal, and as such, the appeal is not maintainable. The leaned counsel submitted that the first appellate Court was not wrong in remanding the matter back to the trial Court at the instance of defendant No.3 as he was not given any opportunity to cross examine the witness of the plaintiff and the same has caused sufficient prejudice to the interest of defendant No.3, and as such, defendant Nos. The leaned counsel submitted that the first appellate Court was not wrong in remanding the matter back to the trial Court at the instance of defendant No.3 as he was not given any opportunity to cross examine the witness of the plaintiff and the same has caused sufficient prejudice to the interest of defendant No.3, and as such, defendant Nos. 2 and 3 preferred A.S. No.60 of 2001 and the first appellate Court taking into consideration, inter alia, the plea raised on behalf of defendant No.3, ordered remand of the matter back to the trial Court for fresh disposal with certain directions as referred supra. Lastly, the learned counsel submitted that the first appellate Court also has given opportunity to both sides to proceed with the matter and that the first appellate Court even directed amendment of pleadings and filing of additional written statement, and as such, the first appellate Court cannot be found fault with. 9. After having heard both sides and after reappraisal of the entire material made available on record, it is seen that defendant No.3 was not given opportunity to cross examine PW.2 and that the plaint was amended to declare the sale deeds of defendant Nos.2 and 3 as null and void, in addition to specific relief. In such circumstances, this Court is of the considered view that the first appellate Court did not commit any error or irregularity in remanding the matter back to the trial Court with the directions as referred above. 10. Therefore, the appeal is devoid of merit and the same is hereby dismissed. No order as to costs. However, the trial Court is hereby directed to proceed with the trial of the matter on the priority basis and dispose of the same according to law, as expeditiously as possible, preferably within a period of four months from the date of receipt of a copy of this order.