Allowed

Smt. Khaja Begum , Khaja Bhee v. Pasham Gangaiah

Telangana HC8 Sept 2011CRP/3790/2011

Case brief

AI extract

What is this about?

This civil revision petition challenged an order refusing to issue summons to a fourth defendant in a specific performance suit after transfer. The High Court held that service of notice to the fourth defendant's previous counsel was insufficient after transfer and set aside the impugned order.

What did the court decide?

The order of the Senior Civil Judge, Nizamabad in I.A.No. 360 of 2011 in O.S.No. 113 of 2008 was set aside and the petitioner was directed to issue notice to the fourth defendant.

Smt. Khaja Begum , Khaja Bhee Vs Pasham Gangaiah — Specific Performance | Telangana HC (2011)

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IN THE HIGH COURT OF JUDICATURE ANDHRA PRADESH AT HYDERABAD

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WEDNESDAY THE EIGHTH DAY OF SEPTEMBER TWO THOUSAND AND ELEVEN

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PRESENT

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THE HONOURABLE SRI JUSTICE R. KANTHA RAO

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CIVIL REVISION PETITION NO. 3790 OF 2011

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Between:

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Smt. Khaja Begum @ Khaja Bee … Petitioner-Plaintiff V/s. Pasham Gangaiah & 3-Ors. … Respondents-Defendants]

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Counsel for the Revision Petitioner : Mr. Laxman Batchu

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Counsel for the Respondents : None appeared

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The Court made the following : (Order follows next page).

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THE HONOURABLE SRI JUSTICE R. KANTHA RAO

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CIVIL REVISION PETITION NO. 3790 OF 2011

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O R D E R :

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This Civil Revision Petition is filed against the docket order dated 13-6-2011 passed in I.A.No. 360 of 2011 in O.S.No. 113 of 2008 by the Senior Civil Judge, Nizamabad.

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2. The Revision Petitioner is the plaintiff. She filed OS.No. 13 of 2006 on the file of the Court of Senior Civil Judge, Kamareddy against the defendants 1 to 3 for specific performance of an agreement of sale. Subsequently on coming to know that the fourth defendant (respondent) purchased part of the schedule property, she filed a petition to implead him as fourth defendant and the same was allowed.

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3. For his non-appearance on a given date, the fourth

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defendant (respondent) was set ex-parte.

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4. Subsequently a petition to transfer the suit was filed by the Revision Petitioner in OP.No. 162 of 2007 before the District Judge, Kamareddy and the same was allowed and the suit was transferred

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to the Court of Senior Civil Judge, Nizamabad and was numbered as O.S.No.113 of 2008. After receiving the suit by transfer, the Senior Civil Judge, Nizamabad, issued notice to the counsel for the defendants. According to the Revision Petitioner, the counsel who represented the fourth defendant (respondent) in the implead petition did not file any vakalath in the transferee court on behalf of the fourth defendant. However, notices were only served on the counsel for the parties after transfer of the suit and no notice was sent to the parties. The Senior Civil Judge, Nizamabad again set the respondent-fourth defendant exparte on the ground that the counsel for fourth defendant did not file appearance. On coming to know that fourth defendant (respondent) was set exparte on 11-6-2009 without any service of notice on him personally, the plaintiff filed again I.A.No. 316 of 2011 in OS.No. 115 of 2011 before the learned trial Court to issue notice to the fourth defendant-respondent in the main suit, OS.No. 113 of 2009.

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5. The learned trial court on hearing both sides passed an order dismissing the petition on the ground that the service of notice on fourth defendant’s counsel is sufficient and also on the ground that the plaintiff has knowledge of the exparte order dated 11-6-2009. The said order is impugned in the present civil revision petition.

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6. The grievance of the petitioner is that since the fourth

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defendant is the subsequent purchase of the part of the schedule property, if her suit is allowed he has to execute a registered sale deed in favour of the Revision Petitioner along with Defendants 1 to 3. and that the learned trial court erroneously held that service of notice on the counsel who represented the fourth defendant (respondent) in the implead petition is sufficient. Therefore, the learned counsel argued that the said order passed by the trial court is liable to be set aside and summons have to be issued.

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7. Now the point for consideration is whether there are any

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valid grounds to interfere with the order passed by the trial court in refusing to issue summons to the fourth defendant ?

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8. Merely because the counsel represented fourth defendant

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in the implead petition, the learned trial court cannot take it for granted that the same counsel will appear on behalf of fourth defendant in the transferee court after the case was transferred. Moreover, where a suit is transferred to the other court the transferee court has to necessarily issue notice to the parties informing them the date of their appearance before the said court. In the instant case, after transfer of the suit to the Court of Senior Civil Judge, Nizamabad, no body was representing the fourth defendant though notice was served on the counsel who represented the fourth

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defendant-respondent in the implead petition. The said counsel is not obliged to appear before the transferee court in the suit unless he is specifically instructed by fourth defendant. Absolutely there was no material before the learned trial court that fourth defendant instructed the said counsel to appear on his behalf after the suit is transferred to the Court of Senior Civil Judge, Nizamabad. Thus, it is obvious that the procedure adopted by the learned Senior Civil Judge, Nizamabad in issuing notice to the counsel who had appeared on behalf of the respondent in the implead petition is erroneous. The learned Senior Civil Judge, Nizamabad is under duty to issue notice to the fourth defendant and without issuing notice, the fourth defendant cannot be set exparte. The order passed by the learned trial court is erroneous and the prayer by the revision petitioner in I.A.No. 360 of 2011 in OS.No. 113 of 2008 to issue summons to the fourth defendant ought to have been granted by the learned trial Court.

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9. For the foregoing reasons, the order passed by the Senior Civil Judge, Nizamabad in I.A.No. 360 of 2011 in OS.No.113 of 2008 is set aside. The learned Senior Civil Judge, Nizamabad is directed to issue notice to the fourth defendant in O.S.No. 113 of 2008.

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10. The Civil Revision Petition is accordingly disposed of at the stage of admission. However, there shall be no order as to costs.

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_______________________

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JUSTICE R. KANTHA RAO.

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08-09-2011 I s L

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THE HONOURABLE SRI JUSTICE R. KANTHA RAO

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CIVIL REVISION PETITION NO. 3790 OF 2011

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Circulation No. 44 Date:08-09-2011 Court Master : I s L Computer No. 43

Smt. Khaja Begum , Khaja Bhee v. Pasham Gangaiah

Case brief

What is this about?

What did the court decide?

Smt. Khaja Begum , Khaja Bhee v. Pasham Gangaiah

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

Parties & counsel

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