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2025 DIGILAW 62 (AP)

Rudi Appa Rao v. Rudi Mallamma

2025-01-07

VENUTHURUMALLI GOPALA KRISHNA RAO

body2025
JUDGMENT : Venuthurumalli Gopala Krishna Rao, J. The second appeal is filed against the order dated 28-10-2022 in A.A.S. No.01/2022 passed by the Additional District Magistrate and Additional Agent to Government cum Project Officer, Integrated Tribal Development Agency (ITDA), Paderu of Alluri Sitharama Raju District, in confirming the order dated 30-4-2022 in A.O.S.No.20/2022 passed by the Sub Collector cum Agency Subordinate Judge, Paderu. 2. Both parties in the second appeal will be referred to as they are arrayed in A.O.S.No.20/2022 before the Sub Collector cum Agency Subordinate Judge, Paderu. 3. The case of the petitioner, in brief, is as follows: It is pleaded that while the petitioner was studying 10 th Class, the respondent by name Rudi Apparao, who was working as Horticulture Officer, Coffee Board, ITDA, Paderu, got married her on 15-6-1994 in the presence of village elders and both of them have executed an agreement dated 18-6-1994. The petitioner further pleaded that in pursuance of the said agreement, the respondent has to look after all her responsibilities as husband. She further pleaded that after marrying the respondent, she was completely dependant on him for her livelihood and at present, he is not providing minimum necessities and livelihood to live in the society to maintain and she prayed to do justice financially by attaching 30 per cent gross salary of the respondent. Hence, the petition. 4. The case of the respondent, in brief, is as follows: It is pleaded that there is no relation in between the respondent and the petitioner as husband and his 2 nd wife as alleged by the petitioner and the petitioner is no way related to the respondent in any manner and the respondent is a married person, having three daughters through his wife viz., Rudi Appalamma and leading family life with them only. He further pleaded that whatever documents filed by the petitioner are all created and fabricated and the respondent is a respectable person in the society and the petitioner filed a complaint petition with false and untenable allegations with an evil intention to gain benefits unlawfully and that he is no way connected to the petitioner and she is not entitled to any relief and he prayed to dismiss the complaint petition filed by the petitioner. 5. On hearing both sides? 5. On hearing both sides? counsel, the Sub Collector cum Agency Sub Judge, Paderu, passed the following order: “Maintenance charges of 30% of gross salary of the defendant to be given to the petitioner. The Assistant Director (Coffee), ITDA, Paderu is hereby directed to attach the bank details of the petitioner and to ensure that the monthly maintenance charge is deposited to petitioner through bank.” 6. Aggrieved against the said order, the respondent filed a first appeal vide A.A.S.No.01/2022 before the Additional District Magistrate and Additional Agent to Government cum Project Officer, ITDA, Paderu, under Order 41, Rule 1 of the Code of Civil Procedure. 7. On hearing both sides, the first appellate Authority passed the following order: “The respondent side advocate submitted the following original documents, which were clear-cut evidences as the respondent is wife of the appellant: (a) Marriage Certificate duly attested by village elders (b) Letters which were written by the appellant to the respondent. Hence, the first appellate Court opined that there are no sufficient grounds to set aside the lower Court order.” 8. Heard Dr. Majji Suri Babu, learned counsel for the appellant/ respondent and Sri M. Solomon Raju, learned counsel for the respondent/ petitioner. 9. The learned counsel for respondent herein has taken a preliminary objection that the second appeal filed by the petitioner herein before the Additional Agent to Government is not at all maintainable and he would further contend that as seen from Rule 47 of the Andhra Pradesh Agency Rules, 1924, the language employed therein is that Agent to Government alone is empowered to deal with first appeal and there is no obligation of power to the Additional Agent to Government by the Agent to Government and also placed a reliance in Kurapati Lakshmaiah v. Additional Agent to Govt. and PS, ITDA, Bhadrachalam, [ 2008(1) ALD 840 (DB)]. In the aforesaid case law, a Division Bench of the composite High Court of Andhra Pradesh at Hyderabad held as follows: “36. This Court has already referred to the relevant Government Orders, which would show that after establishment of ITDAs, which were exercising control over all matters in sub-plan areas, Project Officers of ITDAs were designated as ex-officio Joint Collector (Tribal Welfare) and Additional District Magistrates. These Project Officers were also designated as Additional Agents so far as Agency Areas are concerned. This Court has already referred to the relevant Government Orders, which would show that after establishment of ITDAs, which were exercising control over all matters in sub-plan areas, Project Officers of ITDAs were designated as ex-officio Joint Collector (Tribal Welfare) and Additional District Magistrates. These Project Officers were also designated as Additional Agents so far as Agency Areas are concerned. As is already noticed, Paragraph 3(4) of G.O.Ms.No.434 authorised these Project Officers to exercise powers vested in the District Collectors under various „laws? including Scheduled Areas Land Transfer Regulation. Therefore, even by 1986, Project Officers were designated as ex-officio Joint Collectors and Additional Agents to Government in scheduled areas. Now by reason of the impugned G.O., these Project Officers in Agency Areas are designated as Additional Agents to the Government for the purpose of Regulation I of 1959. This does not in any manner violate law.” The Division Bench of the composite High Court of Andhra Pradesh in the aforesaid case further held as follows: “47. Summary of the findings: 1. …………………………………………. 2. …………………………………………. 3. There is no illegality or infirmity in Government of Andhra Pradesh designating Project Officers of Integrated Tribal Development Agencies as Additional Agent to Government in Scheduled Areas for the purpose of Regulation I of 1959, and exercise powers of Agents under the said Regulation. 4. …………………………………………” 10. It is also relevant to say that an objection to territorial and pecuniary jurisdiction has to be taken at the earliest point of time in the first appeal. Undoubtedly, this objection has not taken by the respondent herein before the first appellate Authority, therefore, it cannot be allowed to be taken at a subsequent stage in second appeal proceedings that the first appellate Authority has no jurisdiction to decide the first appeal. It is relevant to say that on hearing both sides, the learned first appellate Authority passed the order. The jurisdiction aspect has not at all raised by the respondent herein before the first appellate Authority and she invited order from the first appellate Authority on merits. Therefore, now the respondent herein is not permitted to take objection in the second appeal stage for the first time that the first appellate Authority has no jurisdiction to decide the first appeal. 11. Therefore, now the respondent herein is not permitted to take objection in the second appeal stage for the first time that the first appellate Authority has no jurisdiction to decide the first appeal. 11. The legal position in this regard is no more res integra and the same has been well settled by the Apex Court in the case of Harshad Chiman Lal Modi v. DLF Universal Ltd., [ (2005) 7 SCC 791 ] , as follows: “30. The jurisdiction of a court may be classified into several categories. The important categories are (i) territorial or local jurisdiction; (ii) pecuniary jurisdiction; and (iii) jurisdiction over the subject-matter. So far as territorial and pecuniary jurisdictions are concerned, objection to such jurisdiction has to be taken at the earliest possible opportunity and in any case at or before settlement of issues. The law is well settled on the point that if such objection is not taken at the earliest, it cannot be allowed to be taken at a subsequent stage. Jurisdiction as to subject-matter, however, is totally distinct and stands on a different footing. Where a court has no jurisdiction over the subject- matter of the suit by reason of any limitation imposed by statute, charter or commission, it cannot take up the cause or matter. An order passed by a court having no jurisdiction is a nullity.” The ratio laid down in the aforesaid case law is squarely applicable to the present case on hand. Therefore, the preliminary objection taken by the learned counsel for respondent herein is unsustainable under law and there is no merit in the aforesaid objection taken by the respondent herein in the second appeal. 12. I have perused the order passed by the first appellate Authority i.e., Additional Agent to Government cum Joint Collector. The order passed by the first appellate Authority is as follows: “The respondent side advocate submitted the following original documents, which were clear-cut evidences as the respondent is wife of the appellant: (c) Marriage Certificate duly attested by village elders (d) Letters which were written by the appellant to the respondent. Hence, the first appellate Court opined that there are no sufficient grounds to set aside the lower Court order.” 13. Order XLI, Rule 31 of the Code of Civil Procedure reads as follows: “ 31. Contents, date and signature of judgment. Hence, the first appellate Court opined that there are no sufficient grounds to set aside the lower Court order.” 13. Order XLI, Rule 31 of the Code of Civil Procedure reads as follows: “ 31. Contents, date and signature of judgment. —The judgment of the Appellate Court shall be in writing and shall state— (a) the points for determination; (b) the decision thereon; (c) the reasons for the decision; and (d) where the decree appealed from is reversed or varied, the relief to which the appellant is entitled, and shall at the time that it is pronounced be signed and dated by the Judge or by the Judges concurring therein.” 14. Unfortunately, the first appellate Authority has not at all touched the present case on hand on the above aspects. No reasons are assigned by the first appellate Authority for confirming the order passed by the Agency Sub Judge, Paderu. By ignoring law, the first appellate Authority passed a two-line cryptic order without assigning any reasons. Therefore, the order passed by the aforesaid Additional District Magistrate and Additional Agent to Government cum Project Officer, ITDA, Paderu, is not sustainable under law. Unfortunately, no oral evidence was adduced either before the Agency Sub Judge, Paderu or before the first appellate Authority and none of the documents are marked on either side either before the Agency Sub Judge, Paderu or before the first appellate Authority. For the foregoing reasons, the order passed by the first appellate Authority is not legally sustainable since it is not in accordance with the provisions of Order XLI, Rule 31 of C.P.C. Since the first appellate Authority has not framed relevant points for consideration viz., (1) Whether the alleged 2 nd marriage in between the petitioner and respondent has proved in accordance with law ? (2) Whether the order passed by the Agency Sub Judge, Paderu, without assigning reasons for granting maintenance of 30% in gross salary of the respondent as maintenance is sustainable under law ? and (3) Whether the trial Court ought to have seen that the respondent/appellant herein has able to maintain his wife and three children while granting 30% of gross salary as maintenance to the petitioner ? On conspectus of pleadings and law, the order passed by the first appellate Authority is unsustainable and liable to be set aside. and (3) Whether the trial Court ought to have seen that the respondent/appellant herein has able to maintain his wife and three children while granting 30% of gross salary as maintenance to the petitioner ? On conspectus of pleadings and law, the order passed by the first appellate Authority is unsustainable and liable to be set aside. Therefore, the interest of justice requires that the matter has to be remanded back to the first appellate Authority i.e., the Additional District Magistrate and Additional Agent to Government cum Project Officer, ITDA, Paderu, with a direction to frame relevant points for determination and give an opportunity to both the parties to submit hearing on the points to be framed in accordance with law and dispose of the first appeal on merits. 15. For this purpose, this Court has set up the following points for determination in the first appeal to be decided by the first appellate Authority: (1) Whether the alleged 2 nd marriage in between the petitioner and respondent has proved in accordance with law ? (2) Whether the order passed by the Agency Sub Judge, Paderu, without assigning reasons for granting maintenance of 30% in gross salary of the respondent as maintenance is sustainable under law ? and (3) Whether the Agency Sub Judge, Paderu, ought to have seen that the respondent/appellant herein has able to maintain his wife and three children while granting 30% of gross salary as maintenance to the petitioner ? 16. Accordingly, the second appeal is allowed and the order dated 28-10-2022 in A.A.S.No.1/2022 passed by the Additional District Magistrate and Additional Agent to Government cum Project Officer, Integrated Tribal Development Agency (ITDA), Paderu, is liable to be set aside and the matter is remanded back to the first appellate Authority with a direction to afford an opportunity to both the parties to submit hearing on the points set up supra by this Court and after hearing arguments, pass judgment on merits without being influenced by any of the findings in the earlier order dated 28-10-2022. The entire exercise shall be completed within 4 (four) months from the date of receipt of a copy of this judgment. Registry is hereby instructed to transmit the entire record forthwith to the first appellate Authority i.e., the Additional District Magistrate and Additional Agent to Government cum Project Officer, Integrated Tribal Development Agency (ITDA), Paderu. The entire exercise shall be completed within 4 (four) months from the date of receipt of a copy of this judgment. Registry is hereby instructed to transmit the entire record forthwith to the first appellate Authority i.e., the Additional District Magistrate and Additional Agent to Government cum Project Officer, Integrated Tribal Development Agency (ITDA), Paderu. Pending applications, if any, shall stand closed. There shall be no order as to costs.