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2021 DIGILAW 391 (AP)

A. Shamiullah v. Adoni Aadam Sab

2021-07-06

ARUP KUMAR GOSWAMI, NINALA JAYASURYA

body2021
JUDGMENT Arup Kumar Goswami, C.J. - Heard Mr. Maheswara Rao Kuncheam, learned counsel for the appellants. 2. Also heard Mr.Virupaksha Dattatreya Gouda, learned counsel for respondent No.1/writ petitioner and Mr.V.Maheswara Reddy, learned Government Pleader for Home, for respondent Nos.2 to 4. 3. This appeal is preferred against an order dated 13.12.2019 passed by the learned single Judge in W.P.No.20194 of 2019. 4. Mr.Maheswara Rao Kuncheam, learned counsel for the appellants, submits that respondent No.1/writ petitioner had suppressed the judgment and order dated 03.06.2013 passed in O.S.No.12 of 2009 by the Judge, Family Court-cum-Additional District Judge, Anantapur. The subject matter of O.S.No.116 of 2007 on the file of the Junior Civil Judge, Uravakonda, mention of which finds reference in the order of the learned single Judge, is landed property with structures and building thereon in Budagavi village within SRD of Uravakonda and RD of Anantapur in Sy.No.374 in an extent of Ac.2.00 cents out of Ac.16.21 cents. The said property is also part of the suit property in O.S.No.12 of 2009 in which respondent No.1/writ petitioner was defendant No.1 and to demonstrate the same, he has drawn our attention to schedules of the plaint at page 11 of the appeal papers. A perusal thereof would go to show that Sy.No.374 admeasuring Ac.16.21 cents was also part of the suit land. Schedules II, III and IV also show that there are buildings, amongst others, in Sy.No.374. Respondent No.1/writ petitioner did not make any whisper in the pleadings about the aforesaid suit. 5. Finding was recorded in the judgment dated 03.06.2013 that item Nos.1 to 4 are not exclusive properties of defendant Nos.1 to 3 and that they are liable for partition. 6. We are not expressing any opinion as to whether the aforesaid finding will have an impact in O.S.No.116 of 2007 or if there is impact, to what extent. 7. In the counter-affidavit filed in I.A.No.1 of 2021, respondent No.1/writ petitioner had stated about filing of partition suit in O.S.No.12 of 2009 and that preliminary decree had been passed and that he had filed an appeal in A.S.No.813 of 2013 before this Court. It is stated that as he could not furnish the copies to his counsel, these facts were not mentioned in the writ petition. 8. The jurisdiction under Article 226 of the Constitution of India is extraordinary, equitable and discretionary and writs are issued for doing substantial justice. It is stated that as he could not furnish the copies to his counsel, these facts were not mentioned in the writ petition. 8. The jurisdiction under Article 226 of the Constitution of India is extraordinary, equitable and discretionary and writs are issued for doing substantial justice. A person who invokes the equitable jurisdiction of this Court under Article 226 of the Constitution of India, therefore, has to approach the Writ Court with clean hands and put forth all the facts before the Court without suppressing or concealing any material. He must make candid disclosure of all relevant and material facts. 9. We need not go into the reasons as ascribed by respondent No.1/writ petitioner for not making pleadings in that regard. The fact of Judgment being delivered in O.S.No.12 of 2009 and filing of the appeal by him were very much within his knowledge and, therefore, even in the absence of any papers, necessary averments ought to have been made in that regard. 10. That apart, the impugned order came to be passed without notice to the appellants. 11. Operative portion of the impugned order reads as follows: "In view of the request made by the learned counsel for petitioner no further adjudication is necessary. Hence, I deem it is a fit case to issue a direction to the respondents 1 to 3 to consider the representation of the petitioner, dated 21-10-2019 and pass appropriate order. If the respondents feel that it is a fit case to provide necessary police protection, then provide police protection to the petitioner to protect his rights in an extent of Ac.2.00 cents situated in Uravakonda, Anantapuramu District, which is described in the schedule of the decree in O.S.No.116 of 2007 on the file of Junior Civil Judge, Uravakonda." 12. As noticed above, direction was issued to respondent Nos.1 to 3 to consider the representation dated 21.10.2019 submitted by respondent No.1/writ petitioner. 13. Though the direction issued by the learned single Judge otherwise appears to be innocuous, having regard to the discussions supra, we set aside the order of the learned single Judge and remand the matter back to the learned single Judge for fresh consideration. We, however, hasten to add that we have expressed no final opinion on the merits of the case of either of the parties. No order as to costs. Pending miscellaneous applications, if any, shall stand closed.