Dismissed

A. Satish Kumar Goud, v. a. Anand Rao

Telangana HC14 Mar 2013CRP/1054/2013

Case brief

AI extract

What is this about?

In this Civil Revision Petition, the High Court disposed of the matter at the admission stage. The petitioners challenged the trial court's refusal to send disputed receipts to a handwriting expert, as the documents pertained to a separate pending litigation between other parties and were found non-germane to the current title suit. The revision was dismissed.

What did the court decide?

The civil revision petition dismissed; no costs. The trial court's finding justified; Section 73 application noted as open for future consideration.

A. Satish Kumar Goud, Vs a. Anand Rao — Partition | Telangana HC (2013)

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HON’BLE SRI JUSTICE K.G. SHANKAR

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C.R.P.No.1054 of 2013

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Date: 14.03.2013

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Between:

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A. Satish Kumar Goud and 2 others … Petitioners/ Defendants 2 to 4

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AND

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A. Anand Rao and another ... Respondents/ Plaintiff & D-1

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HON’BLE SRI JUSTICE K.G. SHANKAR

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C.R.P.No.1054 of 2013

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ORDER:

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This Civil Revision Petition is disposed of at the admission stage, as Sri Vedula Srinivas, learned counsel for the plaintiff/first respondent herein is also represent.

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2. The defendants 2 to 4 assailed the order of the Special Judge for trial of offences under Scheduled Castes/Scheduled Tribes (Prevention of Atrocities) Act, 1989-cum-V Additional District and Sessions Judge, Medak at Sangareddy, dated 25.02.2013 in I.A.No.1183 of 2012 in O.S.No.115 of 2011. The defendants 2 to 4 filed a petition under Section 45 of the Indian Evidence

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Act requesting the trial Court to send Exs.A.9 to A.11 to handwriting expert to determine whether Exs.A.9 to A.11 bear the signatures of the second defendant. The trial Court dismissed the application on the ground that Exs.A.9 to A.11 are not germane to the suit, that they relate to another suit in O.S.No.192 of 2005 and that there is no need to send the documents to handwriting expert when they are not concerned with the suit in question.

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3. By and large, the facts are admitted by both sides. The second defendant filed O.S.No.192 of 2005 on the file of the Senior Civil Judge, Sangareddy seeking for specific performance of an agreement of sale executed by the first defendant on 17.02.2003. The first defendant remained ex parte. Consequently, the suit was decreed by the learned Senior Civil Judge, Sangareddy.

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The second defendant executed the ex parte decree by way of obtaining a sale deed duly executed by the execution Court when the first defendant failed to honour the decree. The second defendant subsequently sold the property to defendants 3 & 4. Defendants 3 & 4 thus claimed title to the plaint schedule property.

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4. While so, in 2005, the first defendant sold the plaint schedule property to one Sailaja Reddy and one Sandhya Reddy, through separate sale deeds. The plaintiff claimed that he entered into an agreement of sale with the vendees of the first defendant, through an

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Agreement of Sale-cum-General Power of Attorney (GPA) on 07.10.2005 and had obtained the sale deed on 09.12.2011. The plaintiff laid the suit in O.S.No.115 of 2011 before the V Additional District Judge, Medak at Sangareddy alleging that the defendants 3 & 4 have been interfering with the possession of the plaintiff over the plaint schedule property.

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5. The learned counsel for the plaintiff/first respondent herein pointed out that the first defendant filed a petition under Order IX Rule 13 of the Civil Procedure Code (CPC) in O.S.No.192 of 2005 seeking for setting aside of the ex parte decree and that the ex parte decree was set aside by the learned Senior Civil Judge, Sangareddy. O.S.No.192 of 2005 thus stood restored. It is his further case that O.S.No.192 of 2005 was subsequently dismissed for non-prosecution and that the second defendant subsequently filed a petition under Order IX Rule 9 CPC for restoration of the same.

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6. It is the case of Smt. G. Jyothi Kiran, learned counsel for the defendants 2 to 4 that not only O.S.No.192 of 2005 was restored to file, the second defendant herein as the plaintiff and the first defendant herein as the sole defendant in fact filed a petition under Order XXIII Rule 3 CPC before the learned Senior Civil Judge, Sangareddy to record a compromise. Her case is that for one reason

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or the other, compromise has not been recorded so far by the learned Senior Civil Judge, Sangareddy.

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7. Be that as it is, it is the case of the learned counsel for the plaintiff that the present suit is for declaration of the title of the plaintiff and for setting aside of the sale deed in favour of the second defendant and consequently, to cancel the sale deed in favour of the defendants 3 & 4 as well. Admittedly, the plaintiff obtained a temporary injunction against the defendants. The defendants 3 & 4 preferred an appeal before a Division Bench of this Court in C.M.A.No.445 of 2012. While dismissing the said CMA, through orders dated 17.07.2012, the Division Bench directed the trial Court to dispose of the suit in six months. This is the background of the case.

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8. The plaintiff was examined as PW.1. Later, the first defendant would appear to have been examined as DW.1. The second defendant examined himself as DW.2. While the second defendant was cross-examined by the first defendant, the second defendant was confronted with Exs.A.9 to A.11. As already pointed out, they are alleged to be receipts passed by the second defendant. The case of the first defendant is that the first defendant borrowed monies from the second defendant and executed a conditional agreement of sale. The condition was that the agreement of sale shall stand

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cancelled if the first defendant discharged the sums borrowed by him from the second defendant. It would appear to be the case of the first defendant that he discharged the loans, so much so, the agreement of sale between the first defendant and the second defendant stood cancelled.

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The first defendant claimed that Exs.A.9 to A.11 were the receipts signed by the second defendant when he received monies from the first defendant in discharge of the monies due from the first defendant to the second defendant. The first defendant consequently contends that the very agreement between the first defendant and the second defendant stood cancelled. The second defendant, however, disputes the same and claims that he could have executed Exs.A.9 to A.11-receipts.

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9. The learned counsel for the plaintiff contended that Exs.A.9 to A.11 have no bearing in the present case and that the truth and validity of the same cannot be considered in the present suit. On the other hand, it is the contention of the learned counsel for contesting defendants in defendants 2 to 4 that the admitted agreement of sale between the first defendant and the second defendant was on 17.02.2003 whereas the agreement of sale-cum-GPA in favour of the plaintiff is dated 07.10.2005. She further pointed out that neither the agreement of sale-cum-GPA nor the ultimate sale deed

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obtained by the plaintiff on 09.12.2011 referred to how the vendors of the plaintiff acquired title to the plaint schedule property. The learned counsel for the defendants 2 to 4 contended that Exs.A.9 to A.11, therefore, have direct bearing upon the present case.

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10. I consider that the contention of the learned counsel for the plaintiff in this regard that Exs.A.9 to A.11 have nothing to do with the present suit deserves to be accepted. Exs.A.9 to A.11 are the matter between the first defendant and the second defendant. Both of them are locked up in litigation in O.S.No.192 of 2005.

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The second defendant is trying to mix up the lis in O.S.No.192 of 2005 with the present case, which is a suit for declaration of the title of the plaintiff together with a direction to set aside the sale deed in favour of the second defendant by the Court and in favour of defendants 3 & 4 by the second defendant. The question whether the agreement of sale between the first defendant and the second defendant stood cancelled or not is not germane for the adjudication of the present case. Indeed, it is curious that the plaintiff chose to exhibit Exs.A.9 to A.11. Be that as it is, I am satisfied that Exs.A.9 to A.11 do not have any bearing with the cause of action in the present lis.

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11. The learned counsel for the defendants contended that the plaintiff in fact ought to have come on

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record in O.S.No.192 of 2005 instead of filing the present suit by way of multiplicity of proceedings. I respectfully disagree with this contention of the learned counsel for the defendants 2 to 4, since the cause of action of the plaintiff in this suit and the cause of action of the second defendant in O.S.No.192 of 2005 are not one and the same, albeit the subject matter of both the cases is the same property. I, therefore, see no merits in this revision petition. The finding of the trial Court is justified. It is indeed open for the defendants to request the trial Court to compare the admitted and disputed signatures of the second defendant under Section 73 of the Indian Evidence Act.

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12. The Civil Revision Petition accordingly is dismissed. No costs.

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_______________ K.G. Shankar, J

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Date: 14.03.013 Isn

A. Satish Kumar Goud, v. a. Anand Rao

Case brief

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A. Satish Kumar Goud, v. a. Anand Rao

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