Partly allowed

Suthapalli Lakshmi Narayana Rao v. Yeluripati Surya Kumari

Andhra Pradesh HC18 Feb 2024CRP/2712/2023

Case brief

AI extract

What is this about?

In a civil revision, the High Court quashed the trial court's common order rejecting four applications (SCA/SSR). The HC held the order was erroneous as it failed to consider the applications separately and was too technical regarding the array of parties. The HC remanded for fresh orders after giving an opportunity to correct the party array.

What did the court decide?

The impugned common order is quashed; all CRPs allowed; trial court directed to pass fresh separate orders on applications after granting opportunity to correct party array.

Suthapalli Lakshmi Narayana Rao Vs… — Civil Procedure and Limitation | Andhra Pradesh HC (2024)

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APHC010524232023

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IN THE HIGH COURT OF ANDHRA PRADESH :: AMARAVATI (Special Original Jurisdiction)

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[3299]

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MONDAY ,THE NINETEENTH DAY OF FEBRUARY TWO THOUSAND AND TWENTY FOUR

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PRESENT

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THE HONOURABLE SRI JUSTICE RAVI NATH TILHARI

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CIVIL REVISION PETITION NOS: 2710, 2711, 2712 & 2722 OF 2023

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Between:

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SUTHAPALLI LAKSHMI NARAYANA RAO AND OTHERS

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...PETITIONER(S)

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AND

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YELURIPATI SURYA KUMARI AND OTHERS

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...RESPONDENT(S)

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Counsel for the Petitioner(s):SRI. T LAKSHMI NARAYANA

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Counsel for the Respondents: T V JAGGI REDDY

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The Court made the following:

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COMMON ORDER

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Heard learned counsel for the petitioners and Sri T.V.Jaggi Reddy, learned counsel appearing for respondent Nos.1 to 3.

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The plaintiffs/respondents filed O.S.No.32 of 2019 on the file of II Additional District Judge, Amalapuram for declaration of title to the plaint schedule property in favour of the petitioners herein as well as defendant No.11 in the said suit.

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The present petitioners/ defendants 1 to 4 in the suit filed I.A.No.953 of 2023 under order 7 Rule 11(a) and (d) of CPC for rejection of plaint. They also filed I.A.No.954 of 2023 under Section 11 of CPC. Another application i.e., I.A.No.955 of 2023 was filed under Section 10 of Code of Civil Procedure (in short CPC) for stay of suit and another application i.e., I.A.No.956 of

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2023 was filed under section 12 of CPC, taking plea that the plaintiff was precluded from instituting the present O.S.No.32 of 2019.

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During pendency of the suit, Ch.Nirmala - defendant No.6 in the suit died. The legal representatives were already on record as defendant Nos.7 to 9 (respondent Nos.6 to 8 herein). On 21.04.2023, the plaintiff filed a memo to that effect, to which the petitioners had no objection. On the said memo no order was passed till filing of the applications on 08.08.2023. The memo was entertained after recognizing the legal representatives on record on 17.08.2023. The matter was posted for carrying out amendment & amended plaint copy on 31.08.2023. After the amendment in the plaint, the petitioners did not amend/correct their applications i.e., I.A.Nos.953, 954, 955 & 956 of 2023 in the array of the parties.

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All the application Nos.953, 954, 955, 956 of 2023 have been decided by the common order dated 08.09.2023 impugned in this petition.

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The learned Trial Court considered the question whether or not the applications filed by the present petitioners deserved entertaining and allowing? On this point, the learned Trial Court in substance making the observations in para Nos.50 to 53 held that all the said applications were required to be negated at the threshold.

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Para Nos.50 to 53 of the Trial Court common order dated 08.09.2023 read as under:

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50. This Court feels very un-fortunation in making a mention that even after conscious of the fact of death of 6th defendant Ch.Nirmala, the petitioners by filing the present applications on 8-8-2023 which is much prior to permitting the plaintiff for carrying out amendment and for filing neat copy of the plaint after recognizing defendants 7 to 9 as legal

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representatives of deceased 6th defendant Nirmala, filed the applications by showing the deceased 6th defendant Chavali Nirmala as 5th respondent in all the applications without showing her to be died but by impliedly showing her to be alive.

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51. In other words it can be said that even after conscious about the death of 6th defendant Nirmala and not taking L.R. steps by the plaintiff against the said dead 6th defendant, the petitioners / defendants 1 to 4 filed the present set of applications by showing died 6th defendant Chavali Nirmala to be alive by showing her as 5th respondent in all the applications.

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52. As referred to supra, the petitioners filed and continued four set of applications covered by the present order against dead person Chavali Nirmala.

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53. It is an un-condemnable fact that law does not permit for passing order in favour of or against a dead person without bringing legal representatives of such dead person on to the pending legal proceedings in as much as passing of such an order is not only impermissible but also prohibited under Law. Except in a situation covered by Order 22 Rule 6 under which the present matter does not fall.

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Learned counsel for the petitioners submits that the legal representatives are already on record. Rejection of the petitioners’ applications on the ground as in para Nos.50 to 53 is not justified. In any case learned Trial Court ought to have granted opportunity to correct the array of parties so as to make it in conformity of the plaint, by giving atleast one opportunity.

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On considering the impugned common order of the Trial Court, this Court is of the view that because the petitioners’ applications, filed prior to the amendment in the plaint with respect to the deceased defendant No.6, were not in order as per the plaint, after the amendment was carried in the plaint, those applications should not have been rejected. Instead of rejecting the applications on that ground, the Trial Court ought to have granted one

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opportunity to the petitioners to rectify the errors. The procedural law is handmade of justice. A liberal view to advance justice ought to have been taken. Rejection on such ground, particularly when all the parties including the legal representatives of the deceased defendant No.6 were already on record and no prejudice was going to be caused if opportunity was granted to correct the array of parties by writing ‘dead’ or ‘deceased’ against the defendant No.6, represented by legal representatives on record, for which order had already been passed and the plaint was amended, is too technical a view which does not advance the cause of justice.

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This Court is of the further considered view that the four applications were filed under different provisions of the Code of Civil Procedure. The Trial Court, erred in deciding all the applications by common order. It ought to have considered each application on its own merits separately taking into consideration the pre-requisites of the legal provisions under which the applications were filed. The order has to be clear and specific, deciding separately the issues raised in each application.

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Learned counsel for the Respondents also fairly submits that it is difficult to submit from the Judgment that the merit of each application was considered in proper perspective while rejecting the same.

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In view of the above, the impugned common order is quashed. All the CRPs are allowed. The direction is issued to the trial Court to pass fresh orders on each of the applications separately after granting opportunity to the petitioners to correct the array of parties in their applications so as to bring those applications in conformity with the amended plaint.

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No order as to costs.

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As a sequel thereto, miscellaneous petitions, if any pending, shall also

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stand closed.

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RAVI NATH TILHARI,J

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19.02.2024 AG

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348

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THE HONOURABLE SRI JUSTICE RAVI NATH TILHARI

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CIVIL REVISION PETITION NOS: 2710, 2711, 2712 & 2722 OF 2023

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19.02.2024 AG

Suthapalli Lakshmi Narayana Rao v. Yeluripati Surya Kumari

Case brief

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Suthapalli Lakshmi Narayana Rao v. Yeluripati Surya Kumari

Case brief

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