Research › Search › Judgment

Telangana High Court · body

2023 DIGILAW 314 (TS)

Pothuraju Mysaiah v. Pothuraju Sudarshan

2023-04-21

J.SRIDEVI

body2023
JUDGMENT 1. This Civil Revision Petition, under Article 227 of the Constitution of India, is filed by the petitioner/defendant No.1, challenging the order, dtd. 15/9/2022, passed in I.A.No.58 of 2022 in O.S.No.64 of 2022 by the Agent to Government, Bhadradri Kothagudem (for short, 'Agency Court'), whereby, temporary injunction order was granted in favour of the respondents/plaintiffs. 2. Heard the learned counsel for the petitioner/defendant No.1, learned counsel for the respondents/plaintiffs and perused the record. 3. Learned counsel for the petitioner/defendant No.1 would submit that the respondents/plaintiffs have not adduced any single document to substantiate that they are in possession of the suit schedule property. Though the petitioner/defendant No.1 have adduced documentary evidence, the Agency Court has neither marked them nor referred to them while passing the order of injunction, which is contrary to the judgment of the Division Bench of the erstwhile High Court of Andhra Pradesh in T.Bhopal Reddy and another Vs. K.R.Lakshmi Bai and another, 1998 (1) ALD 770 (DB). The petitioner/defendant No.1 and his brother are in possession and enjoyment of the suit schedule property and they were granted pattadar passbook and title deed to the schedule property and also receiving the aid under Rythu Bandhu Scheme. The Court below failed to consider the cardinal principles of assigning reasons for grant of temporary injunction and erroneously opined that the balance of convenience lies in favour of the respondents/plaintiffs. Without there being any evidence on record, the Court below granted injunction in favour of the respondents/plaintiffs on the ipse dixit of the respondents/plaintiffs and ultimately requested this Court to set aside the impugned order and remand the matter to the Agency Court. 4. On the other hand, learned counsel for the respondents/plaintiffs contended that in the absence of any rule in the Agency Rules for marking the documents and in view of nonapplication of Civil Rules of Practice to the proceedings before the Agency Court, the impugned order cannot be set aside on the simple ground that the Court below did not mark the documents which are required to be marked under Rules 60 and 115 of the Civil Rules of Practice. Therefore, the impugned order cannot be set aside. 5. Therefore, the impugned order cannot be set aside. 5. Undoubtedly, the Civil Rules of Practice have no application to the proceedings before the Agency Courts and they are only applicable to the Civil Courts in the State of Telangana, but the Agency Courts are marking the documents, though Civil Rules of Practice are not applicable, by practice, to consider the documents. An identical question came up for consideration before a Division Bench of the composite High Court for the States of Telangana and Andhra Pradesh in the case between R.Parijatham and another Vs. M.Kameshwari and others, 2017 (5) ALD 348 (DB). wherein, it was held that failure to mark the documents is an error and set aside the order impugned therein and remanded the matter to the trial Court, directing the parties therein to maintain status quo till disposal of the petitions. It was further held as follows: "...in order to come to a prima facie conclusion, both the trial Court and the Appellate Court should necessarily be able to locate the documents and know its contents to agree with either of the contentions; that nowhere it is envisaged that the case of the contesting parties can only be decided on the affidavits and not on any other material and that in the absence of any specific rule so far as marking of documents at the interlocutory stage is concerned, the Courts would not be justified in not giving any marking at all to such of the documents on which both sides would rely. Regrettably, despite this authoritative pronouncement of the Division Bench, some Courts have been ignoring the same and not marking the documents. The case on hand reflects one such instance. We, therefore, direct the High Court on administrative side to issue a Circular directing the Subordinate Courts to mark the documents filed by the parties to the interlocutory applications before deciding such applications." 6. In Amina Ayesha Vs. Model Constructions, rep. by its Managing Partner, 2014 (3) ALT 345 (DB). the composite High Court for the States of Telangana and Andhra Pradesh held as follows: "Though the Court below referred to certain documents, as we could see, the order under appeal does not even contain the Appendix of Evidence. In Amina Ayesha Vs. Model Constructions, rep. by its Managing Partner, 2014 (3) ALT 345 (DB). the composite High Court for the States of Telangana and Andhra Pradesh held as follows: "Though the Court below referred to certain documents, as we could see, the order under appeal does not even contain the Appendix of Evidence. Under the circumstances, we find force in the submission of the learned counsel for the appellant that the order under appeal came to be passed without appreciation of evidence on behalf of the respondent herein/petitioner in O.P.No.726 of 2013. Therefore, the order under appeal is liable to be set aside on that ground alone." 7. Further, in CRP Nos.5027 and 5046 of 2017 also, a single Judge of the composite High Court for the States of Telangana and Andhra Pradesh, while passing the common order, dtd. 6/2/2018, observed that non-marking the documents by the Agency Courts is an irregularity and set aside the impugned order directing both the parties to maintain status quo. 8. Following the principles laid down by the Division Bench of this Court in R.Parijatham's case (1 supra), Amina Ayesha's case (2 supra) and also Mahaveer Infoway Ltd., Hyderabad and another Vs. Tech Minfy Info Solutions LLP, Hyderabad, 2017 (5) ALD 351 (DB). and the order, dtd. 5/2/2018, of a single Judge CRP Nos.5027 and 5046 of 2017, I am of the view that by practice, the Agency Courts are bound to mark the documents only for referral purpose while deciding the dispute between the parties at the time of passing order. But still, non-marking of documents and absence of Appendix of Evidence in an order is an irregularity. 9. In the light of the above discussion, this Civil Revision Petition is allowed by setting aside the order, dtd. 15/9/2022, passed in I.A.No.58 of 2022 in O.S.No.64 of 2022 by the Agent to Government, Bhadradri Kothagudem. The matter is remitted to the Agency Court with a direction to mark the documents filed by both the parties, hear both sides after such marking and dispose of the subject I.A.No.58 of 2022 afresh, as expeditiously as possible, not later than two (2) months from the date of receipt of a copy of this order. Till the disposal of the subject I.A.No.58 of 2022, status quo shall be maintained by both the parties. Till the disposal of the subject I.A.No.58 of 2022, status quo shall be maintained by both the parties. The parties as well as their respective counsel shall cooperate for disposal of the subject I.A.No.58 of 2022 by the Agency Court within the time stipulated above. Miscellaneous petitions, if any, pending in this Civil Revision Petition, shall stand closed. There shall be no order as to costs.