Dismissed

D.R. Leelavathi, v. Ch. Rajeshwaramma

Telangana HC3 Nov 2023SA/314/2005

Case brief

AI extract

What is this about?

In this second appeal under Section 100 of CPC, the High Court examined whether concurrent findings of subordinate courts dismissing a suit for permanent injunction and mandatory injunction can be disturbed. The Court held that the appellant failed to raise the objection to the Advocate Commissioner report earlier and thus the appeal is devoid of merits.

What did the court decide?

Second appeal dismissed confirming the concurrent findings of both the Courts. No order as to costs.

D.R. Leelavathi, Vs Ch. Rajeshwaramma — Execution and Attachment | Telangana HC (2023)

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IN THE HIGH COURT FOR THE^{STATE OF TELANGANAAT HYDERABAD}

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FRIDAY, THE THIRD DAY OF NOVEMBER

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TWO THOUSAND AND TWENW THREE

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PRESENT

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THE HONOURABLE SMT JUSTICE P.SREE^SUDHA

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SECOND APPEAL NO: 314 OF 2005

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Appeal under Section 100 of CPC against the Judgment and^{Decree dated} O7.09.2OO4 in AS No.60/01 on the file of the^{Courtof the lV Addl.District Judge,} Warangal prefened against the Judgment and^{Decree dated 27.02.2001in OS No.} 874196 on the file of the of the Court of the ll Addl. Junior^{Civil Judge, Warangal.}

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Between:

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D.R. Leelavathi, Wo D.R. Gopala Swamy, Household, R/o. H.No. 25-10-148, Bapuji Nagar, Kazipet,

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,AppellanUAppellanUPlaintiff

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AND

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Ch. Rajeshwaramma,, Wio. Late Narasaiah, Household,

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Ch. Raj Kumar @ Raju,, S/o. Narsaiah, Business,

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Ch. Srinivas, S/o. Late Narsaiah, Rly Employee

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Ch. Sai Kumar, S/o. Late Narsaiah, Pvt. Clerk,

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(All are Ri/o H.No.25-10-249, Bapuji Nagar, Kazipet, Warangal)

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...Respondents/ Respondents/Defendants

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COUNSEL FORTHE APPELLANT : SRI N. ASHOK KUMAR COUNSEL FOR THE RESPONDENTS : SRI V RAGHU

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THE COURT MADE THE FOLLOWING ORDER:

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PSS, J. :;.4.No.314 of2005

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HONOURABLE SMT. WSTICE P. SRTE SUDIIA

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SEICOND APPEAL No.314 OF 200s

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JUDGMENT:

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This Second Appeal is hled against the Judgment and decree passed in A.S.No.60 of 2O01 dated O7.09.12O04 on the hle of IV Additional District Judge, Waralgal, in which the Judgment and decree dated 27.02.200 1 in O.li.No.874 of L996 by the learned II Additional Junior Civil Judge, Waralgal was confirmed.

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The appellant/plaintiff hled a suir vide O.[].No.876 of i 1996 against the respondents/defendants seeking direction to the defendants to close the door and window in their wall of H.No.25- LO-249, facing in the open land of the appellant/plaintiff by way of mandatory injunction and restrain the respondents/defendants, their: agents, successors and followers from trespassing and interfering in the peaceful possession of the appellant/plaintiff over the vacant land and lane of suit house by way of permanent injunction and also to award the costs of the suit. The trial

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PSS, J. S-A.No.3 t4 of 2m5

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Court examined pWs. 1 to 3 and marked Exs.Al to A3 on behalf of plaintiff and DWl and DW2 were examined and marked Exs.Bl to 83 on behalf of defendalts. The trial Court after considering the arguments of both sides dismissed the suit. Aggrieved by the said Judgment plaintiff therein preferred an appeal before the first appellate court in A.S.No.60 of 200 1 and the sarne was also dismissed conhrming Judgment and decree passed by the trial Court. Aggrieved by the sarne, she preferred the present Second Appeal.

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The learned counsel for the appellant herein mainly contended that both the courts ought to have rejected the report of the Advocate Commissioner, when a serious objection was raised by the appellant that the Advocate Commissioner was not examined and his report was not marked, but it was considered for arriving to the conclusion. It is further contended that the trial court has no right to shift the burden on the appellant saying that the appellant has not taken steps to examine the Advocate commissioner,

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PSS, J. S.A.No.3l4 of2OO5

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but the burden is on the respondent/defendants to prove the Commissioner report since the Commissioner was appointed at their instance. It is further contended that the Commissioner was appointed on the reqLtest of the respondents/defendants even before filing of ttre written Statement shows that the respondents delibereLtely created an evidence to prove their illegal action through Advocate Commissioner and requested this Court to se:t aside the concurrent findings of both the Courts.

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Heard the arguments of the learned counsel for the appellant. As there is no representation for the r.espondents on two subsequent dates, it is treated that ttrere are no arguments on beharf of the respondents and reserved for Judgment.

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The parties herein are referred as plaintiff and defendants as arrayed in the tria_l court for the sake of convenlence.

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The main contention of the plaintiff is that the Advocate Commissioner was appointed at the instrrrce of the

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l I I I :

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PSS. J, S.A.No.3I4 of 2OOs

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defendants before hling of the written statement, in fact he was the Junior of the counsel for the defendants. Though she filed several objections regarding tJle report, tJ.e Advocate Commissioner was not examined by both the Courts and the report was not marked, but it was considered while arriving to the conclusion. As per the report of the Advocate Commissioner, he gave notices to both the Advocates on 2g.03. lgg|, 01.O4.1gg1, 04.O4.IggZ and finally on the date of inspection. At the time of inspection, both the counsel and both tl"e parties were a_lso present. The Advocate Commissioner visited the suit schedule propergr and got the photographs of the same. He hled the report along with photographs and a sketch map ard the report was filed on 07.05. I99T andobjections were hled on 28.Og. 1997, but the objections raised by the plaintiff counsel were not considered by the trial Court. The trial court observed that it is for the plaintifps counsel to examine the Advocate Commissioner and put forth his objections by way of cross_examining the Advocate Commissioner, but he failed to do so. Later, after disposal of the suit, she came

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-4=4 \

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PSS, J. S.A.No.3l4 of2OO5

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with the same objection before the first appellate court. Even the frrst appelrate court observed that Advocate commissioner was very-well av-ailable for cross-examination and he was practicing at Warangal only, but the plaintiff did not choose to examine him as her witness or at least as a Court Witness to elicit facts regarding location of the propert5r and lailed to take necessa_ry steps. ,Ihough she stated that the Advocate commissioner u/as nont: other tha, the junior attached to the counsel of the defendants, she could have raised the said objection at the time of appointing him as Advocate commissioner itsetf, but they kept quiet, therefore they cannot raise the objection regarding the report at the appeal stage ancl thus the contention of the appellant herein was already aoswered by the hrst appellate court ald also considering the other evidence on record confirmed the Jud.gment by dismissing the appeal.

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Again with the same contention appeilant/plaintiff preferred the present second appeal. It cannot be considered

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PSS, J. S-A.No.314 of2OO5

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r-,

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as substzrntive question of law. This second appeal is frled against the concurrent f,rndings of both the Courts. Unless there is some substantive question of law, this Court need not interfere with the said hndings, as such the present appeal is liable to be dismissed.

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In the result, the second appeal is devoid of merits and is dismissed conhrming the concurrent findings of both the Courts. There shall be no order as to costs_

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As a sequel, miscellaneous applications pending, if any, shall stand closed.

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SD/. T. JAYASREE ASSISTANT REGISTRAR

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//TRUE COPYII

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To,

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1.The lV Addl. District Judge, Waranqal.(with records) 2.The ll Addl. Junior Civit Judge, Waiangat. 3.One CC to SRt N. ASHOK KUMAR Advocate tOpUCl 4.One CC to SRt V. RAGHU Advocate tOpual ' S.Two CD Copies.

SECTION OFFICER

HA \I-'

HIGH COURT

DATED: 03.11.2023

JUDGMENT

SA.No.314 of 2005

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?

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SECOND APPEAL IS TXSMISSED

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IN THE HIGH COURT FOR THE STATE OF TELANGANA AT HYDERABAD

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FRIDAY, THE THIRD DAY OF NOVEMBER

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TWO THOUSAND AND TWENTY THREE

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. .ii. -.!i::. .:.t, .t!
;;t
':',:r

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.. ':',:r

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PRESENT

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THE HONOURABLE SMT JUSTICE P.SREE SUDHA

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SECOND APPEAL NO: 314 OF 20Os

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Between:

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D.R. Leelavathi, W/o D.R. Gopala Swamy, Household, Rl/o. H.No. 25-10-148, Bapuji Nagar, Kazipet,

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...AppellanVAppellanVPlaintiff

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AND

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1.Ch. Rajeshwaramma,, Wo. Late Narasaiah, Household, 2.Ch. Raj Kumar @ Raju,, S/o. Narsaiah, Business, 3.Ch. Srinivas,, S/o. Late Narsaiah, Rly Employee

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4.Ch. Sai Kumar, S/o. Late Narsaiah, Pvt. Clerk,

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(All are Rl/o H.No. 25-10-249, Bapuji Nagar, Kazipet, Warangal)

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...Respondents/ Respondents/Defendants

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Appeal under Section 100 of CPC against the Judgrnent and Decree dated 07.09.2004 in AS No.60/01 on the file of the Court of the lV Addl. District Judge, Warangal preferred against the Judgment and Decree dated 27.02.2001 in OS No. ,. -. 874/96 on the file of the of the Court of the ll Addl. Junior Civil Judge, Warangal. :i

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This Appeal coming on for hearing upon perusing the petition and the grounds filed herein and upon hearing the arguments of Sri N- Ashok Kumar, Advocate for the Appellant and of Sri V. Raghu, Advocate for the Respondents.

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THIS COURT DOTH OROERED AS FOLLOWS:

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1 That the second appeal is devoid of merits and is dismissed confirming the concurrent findings of both the Courts. 2 That there shall be no order as to costs. SD/- T. JAYASREE ASSISTANT REGISTRAR

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//TRUE COPY// sEcrloN oFFlcERtt' ,*,

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1.The lV Addl, District Judge, Warangal.(with records) 2.The ll Addl. Junior Civil Judge, warangal. 3.One CC to SRI N. ASHOK KUMAR Advocate [OPUC] 4.One CC to SRI V. RAGHU Advocate [OPUC] S.Two CD Copies. HA .-k-

1, ',9, '')

HIGH COURT

DATED: 03.11.2023

DECREE

SA.No.314 of 2005

SECOND APPEAL IS DISMISSED

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. .i., r- !; i..1 '.:*, -' ,'i

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::l ;{ :l

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IN THE HIGH COURT FORTHE STATE OFTELANGANAAT^HYDERABAD

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FRIDAY, THE THIRD DAY OF NOVEMBER TWO THOUSAND AND TWENry^THREE

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PRESENT

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THE HONOURABLE SMT JUSTICE P.SREE SUDHA

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SECOND APPEAL NO: 314 OF²⁰⁰⁵

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Between:

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D.R. Leelavathi, W/o D.R. Gopala Swamy,^Household, Ri/o. H.No. 25-10-148, Bapuji Nagar, Kazipet,

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...AppellanUAppellanUPlaintiff

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AND

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1.Ch . Rajeshwaramma,, W/o. Late Narasaiah,^Household, 2.Ch . Raj Kumar @ Raju,, S/o. Narsaiah, Business, 3.Ch . Srinivas,, S/o. Late Narsaiah, Rly Employee 4.Ch . Sai Kumar, S/o. Late Narsaiah, Pvt. Clerk, (Allare Rl/o H.No.25-10-249, Bapuji Nagar, Kazipet,^Warangal)

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...Respondents/ Respondents/Defendants

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Appeal under Section 100 of CPC against the Judgment^{and Decreedated} O7.O9.2OO4 in AS No.60/01 on the file of the Court of the lV^{Addl.District Judge,} Warangal prefened against the Judgment and Decree dahed27.02.2001ⁱⁿ OS^No. .-fi 874/96 on the file of the of the Court of the ll Addl. Junior Civil^{Judge, Warangal.} This Appeal coming on for hearing upon^perusing the^petition and^{the grounds} filed herein and upon hearing the arguments of Sri N. Ashok Kumar,^{Advocate for} the Appellant and of Sri V. Raghu, Advocate for the Respondents.

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THIS COURT DOTH ORDERED AS FOLLOWS:

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1 That the second appeal is devoid of merits and is dismissed confirming the concurrent findings of both the Courts. 2 That there shall be no order as to costs.

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SD/- T. JAYASREE ASSISTANT REGISTRAR //TRUE COPYII .:1 sEcrloN oFFlcER '''-4^rr 'i To 1.The lV Addl. District Judge, Warangal.(with records) 2.The ll Addl. Junior Civil Judge, warangal. 3.One CC to SRI N. ASHOK KUMAR Advocate [OPUC] 4.One CC to SRI V. RAGHU Advocate IOPUC] S.Two CD Copies. HA .-P

HIGH COURT

DATED: 03.11.2023

DECREE

SA.No.314 of 2005

SECONO APPEAL IS DISMISSED

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D.R. Leelavathi, v. Ch. Rajeshwaramma

Case brief

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What did the court decide?

D.R. Leelavathi, v. Ch. Rajeshwaramma

Case brief

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