Allowed

Smt.Mahmooda Begum v. Kassireddy Pandu Ranga Reddy

Telangana HC27 Sept 2012CRP/2137/2012

Case brief

AI extract

What is this about?

Six connected civil revision petitions filed by plaintiffs against orders setting aside ex parte decrees in suits for declaration of legal heirship. The High Court allowed revisions, setting aside the lower court orders, and remanded the matter for fresh consideration including jurisdiction and court fee issues.

What did the court decide?

The civil revision petitions were allowed; the impugned orders setting aside ex parte decrees were set aside; applications remitted for fresh consideration.

Smt.Mahmooda Begum Vs Kassireddy Pandu Ranga… — Succession and Inheritance | Telangana HC (2012)

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HONOURABLE SRI JUSTICE VILAS V.AFZULPURKAR CIVIL REVISION PETITION Nos.2137 to 2142 OF 2012

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Dt:- 27.09.2012

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Between:-

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Kasireddy Pandu Ranga Reddy

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… Petitioner

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and

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Smt.Mahmooda Begum and another

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… Respondents

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This Court made the following:-

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HONOURABLE SRI JUSTICE VILAS V.AFZULPURKAR

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CIVIL REVISION PETITION Nos.2137 to 2142 OF 2012

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COMMON ORDER: -

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These six revision petitions arise out of same suit and are connected. They have also been heard together and are being disposed of by this common order.

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2. The first three civil revision petitions relate to one contesting respondent, whereas other three civil revision petitions relate to another contesting respondent. All the six revision petitions are filed by the plaintiffs before the trial court.

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3. In view of the order proposed to be made, it is not necessary to notice facts in detail, but suffice it to note that plaintiff Nos.1 and 2, who claim to be wife and son of Late Hussain Bin Mohsin filed a suit for declaration of legal status as legal heirs of Late Syed Mustafa Hussain and Late Hussain Bin Mohsin. Late Hussain Bin Mohsin was the husband and son of plaintiff Nos.1 and 2, whereas Late Syed Mustafa Hussain is said to be father of plaintiff No.1. The said suit seeking declaration as aforesaid was filed on the allegations that Late Syed Mustafa Hussain was owner of Ac.200-00 of land in Survey No.96/6

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(old) (new 154 to 159) and 1171 situated at Ameenpur Village, Patancheru Mandal, Medak District. He is alleged to have expired on 09.09.1965 leaving plaintiff No.1 as the only daughter and legal heir. It is also stated that the husband of plaintiff No.1 also died on 08.12.2005, who was also original owner to an extent of Ac.42-26 guntas in Ameenpur village. It is alleged that plaintiffs are advised to get succession certificate by the Tahsildar, Patancheru Mandal, Medak District. Hence, the suit is filed. The said suit was filed without impleading any of the respondents by describing the defendants as ‘all concerned’ and obviously on account of that the suit got decreed uncontested on 31.07.2008. The judgment passed by the trial court while decreeing the suit is as follows:

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“ The plaintiff No.2 is present and he is examined as P.W.1. Exs.A1 to A4 are marked. Perused the affidavit and Exs.A1 to A4. Suit claim is proved. In the result, the suit is decreed declaring the plaintiff Nos.1 and 2 as Legal Heirs of Late Hussain Bin Mohsin, who died on 08.12.2005. No costs.

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Written and pronounced by me in the open court on this the 31^st day of July, 08.”

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4. Based on the said decree plaintiffs and persons representing the plaintiffs said to have obstructed the third parties, who have later come to know about the aforesaid suit and the decree and filed three sets of applications before the trial court (I.A.No.305, 306 and 307 of 2011 are the applications filed by K.Panduranga Reddy. The other I.A.Nos.822, 823 and 824 of 2011 are three sets of applications filed by M/s.IOU Projects (India) Private Limited). Each of the three sets of applications are seeking condonation of delay in making application to set aside the ex parte decree, application to set aside the ex parte decree and an application to implead the said third party as a party defendant in the suit. It appears that summons in each of the six applications aforesaid were issued by the trial court, notifying the date of hearing as 12.12.2011 and as per the bailiff’s report the said summons were served on the petitioners herein on 08.12.2011. On the said date

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of hearing viz., 12.12.2011, however, petitioners have not appeared before the Court and, therefore, were called absent, set ex parte as there was no representation and consequently the court below allowed all the three applications of each of the proposed parties respectively as above as they were not contested. Present revision petitions are filed against the aforesaid orders.

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5. Heard Mr.A.Bhaskara Chari, learned counsel appearing for the petitioners/plaintiffs; Mr.M.Achutha Reddy, learned counsel appearing for the respondent in C.R.P.Nos.2137, 2138 and 2139 of 2012; and Mr.O.Manohar Reddy, learned counsel appearing for the respondent in C.R.P.No.2140, 2141 and 2142 of 2012.

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6. After hearing learned counsel on either side and after examining the records of this case, I am surprised to find that a suit for declaration of status relating to a vast extent of land said to belong to the deceased, is filed before the court of the Junior Civil Judge by notionally valuing the suit at Rs.5,000/- and on payment of court fee of Rs.411/-. Further, the properties of the deceased are apparently situated in Medak District, but the suit is filed before the learned Junior Civil Judge, Kukatpally, Ranga Reddy district. As mentioned above, no person is shown as defendant and by describing the defendants as “all concerned”, the suit obviously got decreed within six months of filing, because there was no contest. It is to be remembered that judgment and decree in a suit for declaration of status being a judgment in rem, the decree binds the whole world, though nobody is impleaded as defendant. Since there was no contest, the judgment was passed by the court below decreeing the suit, as already extracted above, and there is nothing to indicate any application of mind by the court below as is expected of in a judgment, as held by the Supreme Court in Balraj

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Taneja v. Sunil Madan^[1] .

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7. Be that as it may, the decree was passed as early as on 31.07.2008 and the present two third party/respondents are seeking to set aside the said decree and have made applications for condonation

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of delay for that purpose, primarily contending that they were not aware of the decree nor they were parties. Petitioners though served with the summons, four days before the date of hearing, did not appear before the court below when the said three sets of applications of each proposed party were taken by the Junior Civil Judge and thereby as there was no contest, all the three sets of applications of both the proposed parties were allowed under the impugned orders.

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8. Learned counsel for the petitioners states that there was no due and sufficient opportunity to the petitioners to contest the applications as they could not appear before the lower court within the short time of four days intervening the service of summons and the date of hearing. Learned counsel, therefore, is primarily aggrieved by the order passed by the court below, impugned herein, on the contention that without giving sufficient opportunity to the petitioners, impugned orders are passed.

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9. I do not think that there is any such failure of want of opportunity inasmuch as notice of these applications were served four days in advance on the petitioners/plaintiffs and they could have atleast made arrangements to have themselves represented before the Court below and sought for time. However, keeping in view the substantial cause of justice, I deem it approrpaite to accept the said prayer of the petitioners and give them opportunity to contest the applications filed by the respective proposed parties before the lower court on all grounds available to them in accordance with law. The impugned orders are, therefore, set aside remitting the respective applications to the court below for fresh consideration and adjudication on the merits of these applications apart from the following aspects:-

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1. The trial court shall examine whether a suit of this nature relating to property situated in Medak District could have been entertained by the Court below.

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2. Whether a judgment in rem could have been issued by the Court below in the manner in which it has

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entertained the suit and decreed the same?

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3. The Court below shall also consider whether the valuation of the suit and the court fees paid is in accordance with the A.P. Court Fees and Suits Valuation Act?

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4. The Court below shall also examine the legal questions involved in the light of the decision of the Supreme Court in Razia Begum v. Sahebzadi Anwar Begum and others^[2] and answer the questions posed above apart from adjudicating on the applications mentioned hereunder after hearing learned counsel on either side and giving them opportunity to make all their submissions in accordance with law.

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10. Though the scope of the revision petition is limited and revisions are allowed, the additional directions, referred to above, are also warranted on the facts and circumstances of the case under power of superintendence of this Court under Article 227 of the Constitution of India. Hence, the trial court shall answer the questions and send a report to the Registrar (Judicial) within three months from today.

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11. With the above directions, the Civil Revision Petitions are allowed. The miscellaneous applications, if any, stand dismissed. There shall be no order as to costs.

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____________________________ VILAS V. AFZULPURKAR, J

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25.06.2012 lmv

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HONOURABLE SRI JUSTICE VILAS V.AFZULPURKAR

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CIVIL REVISION PETITION Nos.2137 to 2142 OF 2012

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27.09.2012

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lmv