Revision against dismissal of an application under Order XXVI Rule 13 CPC for final decree in a partition suit. The High Court held the second application barred by res judicata since an earlier identical application was dismissed for default; remedy was restoration or revision of that order.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
IN THE HIGH COURTFOR THESTATEOF TELANGANA
AT HYDERABAD
WEDNESDAY,THESECONDDAY OF JULY
TWO THOUSANDAND TWENTYFIVE
PRESENT
THE HONOURABLESRI JUSTICE NAGESHBHEEMAPAKA
CIVIL REVISIO NPETITIONNO: 918OF 2019
petition under Section 1 15 o?C.P.C. the Constitutionof lndia, aggrieved by the oro'"irnO decreeDt. 14111t2o18passed in 1.A.No.366/2014in O.S.No.'17 of 1985 on tn" tit. ofthe Additional Motor Accidentclaims Tribunal-cum- | Additional District Judge,Adilabad.
Between:
Koppula Laxmi village, TalukaKelapur, District Yavathmal Bai,Wo.Bapu, Age - 63 (MS)years, Occ - Agriculture, R/ o. Chanaka
...PETITIONER
AND
...RESPONDENTS
Counsel for thePetitioner
:SRI. NAZEERKHAN
Counsel for theResPondents: SRI S GANESHRAO
The Court made thefollowing: ORDER
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HON'BLE SRI JUSTICE NAGESH BHEEMAPAKA CIVIL REVISION PETITON No. 918 0F 2019
ORDER:
Petitioner herein is plaintitf u,ho filed O.S.No. 17 of 1985 on lhc lllr. ol rhe Addirional Disrricr Judgc. .Adilabad lor partition and scparate possession of plainl schedule property i.c. land in Survey No. 75/A to the cxtent of Acs.7.Og guntas and the land in an exlent of Acs.6.O5 guntas in Survey No. 76/.4 in Gimma Village, K Taluq, Adilabad District, ctaiming half share. The learned Additional Disrrict Judge passccl a preliminary decree for partition granting half share to plaintiff. Aggrieved thereby, respondents - defendants carried the matter in Appeal belorc this Court i.e. A.S. No. 799 of l9aa. 2. This Court b,v judgmer-rt dated 21.0g.20(12 modifiecl thc decree of the trial Court and direc[ed that plaintiff is entitiecl to only 1/4d, share in all the plaint schedulc properties instead of 1/2 share ri,hich was granted by the trial Courr. plaintilf had taken out I.A.No. lS lg of 2OO3 before the Court below for passing final decrec, hou,evcr the said Application was dismissed for default on 24.Og.2006. Thereafter, she had taken out I.A.No. 366 of 2014 under Order XXVI Rule 13 CpC. for passing hnal decree by appointing an Advoca[e commissioner. This Application q.as dismisscd by thc learned I Additional
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District&Sessions Judge' Adilabad uide order dated 14.11.2018,impugned in this Revision' observing that this Applicationis barredby principlesof res judicata asplaintiff cannotmaintainsimilar petition again'Aggrieved thercbY, plaintiftis beforeLhis Court in this Revisron'
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partltion as mandated in the commission rvarrant returncd the warrant r.vith his report stating that only in Survey No. 75, dcfendants are in possession and cultivating to the extent of Acs.8.10 guntas and on enquiry and information given by both the partics, defendants are not in possession in Suney No. 76/A at the spot and this observation of the AdvocateCommissioner is totally unu,arranted since his 1ob is only to effect parrition and Lo allot respective shares h-rslead of confining l-lmself to thc job AS i ndicated, Advocate Commissioner rvithout executir-tg the i.l,arrant returnccl the same, hencc, it cannot bc said the Commissioner executcd the warrant as per the scope. This court does not find any fault in the observation made by the Iearned Judgc for, it plaintiff is aggrievcd, thc remedy available to her is to seck restoratron of LA. No. 1 5 18 of 2O03 or to preler revision againsr, the default order datcd 24.Oa.2006, but not by filing another Application for the self same relief. Admittedly, as could be seen from the material on record, I.A.No. l5lg of 2OO3 underwent as many as tu,enty adjournments as such, it cannot, by an1, stretch of imagination, be said that the said Application is dismissccl for delault.
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6 A plain reading of Order IX Rule 9 CpC makes rt abundantly clear that petitioner cannot maintain similar
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petition inrespect of same cause of actionand she can only Order IXRule9 takestepsto set aside the dismissalorder appliesto Interlocutory Applicalion with equal force in viewof Section141 whichpostulates that theprocedure Provided in this Codein regardto suit shall be foilowed' as far as it can be in anYCourt of civil mad.eapplicable, in allproceedings jurisdiction
7 Furtfcr,as iscvident from lheorder under Reviston, petilionerhard takcn aground that duringthe of I.A.No.15i8 of 2003' asel-tlement was held pendencY between herselfand defendantsinrcspectof sharing the property outof the Court' as such' on the adviceof elders [o maintaingood relationship'she kept quiet and failed to pursue the matter'It clearly shours lhal petititrtreris in theknorl ' of the defaultordcr dated24 'O8 '2006 and kept quiet to negotiate settlement.When it failed' she took her ou'ntime and cameup tn 2Ol4i.e after lapse of eightyears with thisAPPlication decree.She did not even make an neariY,to Passfinal endeavourtoexplainthesaicldelay.Inthelightofthesameand inviewoftheprovisionstatedsupra,itCansafelybeheldthat I.A.No.366of2o|4isbarredbytheprincipleofresjudicataas petitionercannot maintain similar petltion again'as has already been observedby the learned Judge' ThisCor-rrt doesnot find
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any e rror in the order u nder Re vision, hence, ther same rs liable to disrnissed
8 The Civil Revision petition is accordingly, dismissed No costs. 9. Consequently, Miscellaneous Applications, if any shall s tar-r cl closed,
//TRUE COPY//
SD/.M.NAGAMANI A TANT REGISTRAR {secrou orrl
To, Additional district 1 The Additionall/otoor Accident Claims Tibunal -cum- Judge, Adilabad 2. One-CC to SRINAZEER KHAN Advocate[OPUC] One CC to SRl.S.GANESHRAO,Advocate [OPUC] 4. Two CD CoPies tI/PSL
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HIGH COURT
DATED:02t0tt2O2S
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10 SEP zffi :,
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OFS PAT i: ,i t<br>
ORDER
CRP.No.91B ot 2019
DISMISSING THE C.R.P.
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1 issue framed by the court
Whether a second application for passing final decree in partition is barred by res judicata after the earlier application was dismissed for default.
4 provisions across 1 enactments
Koppula Laxmi Bai
Neelam Laxmi
Parvathi
Raviytha
Anitha
Gangu
Nagesh Bheemapaka
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
