HON'BLE AP HIGH COURT HONOURABLE SRI JUSTICE SUBBA REDDY SATTI
CIVIL REVISION PETITION No.1869 of 2022
Between:
Jillellamudi Jagadeesh, S/o late Nageswara Rao, aged about 19 years, Hindu, R/o Dr.No.23-1-32A, Atchampet Road, Sattenapalli Town, Palnadu District and another. … Petitioners.
Versus Jillellamudi Subbayamma, W/o Chandraiah, aged about 80 years, Hindu, R/o Dr.No.23-4- 12, Atchampet Road, Sattenapalli Town, Palnadu District and four others. … Respondents.
Counsel for the petitioners : Sri P.S.P.Suresh Kumar Counsel for respondents : ---
ORDER
The above revision is filed against the docket order dated 20.08.2022 in CFR No.3584 of 2022 passed by the learned Principal District Judge, Guntur, returning the plaint. 2. Plaintiffs filed the suit, CFR No.3584 of 2022, seeking the following reliefs: (a) for partition of plaint “A” schedule properties into 12 equal shares and for separate possession of 10 such 2 shares to the plaintiffs and for separate possession of one such share each to defendants 1 and 2; (b) for declaration that the exparte divorce decree dated 07.09.2016 made in HMOP No.64 of 2016 on the file of Senior Civil Judge, Narsaraopet is vitiated by playing fraud both on 2nd defendant and the Court and declare the same as void and consequently the marriage of 3rd defendant with deceased Nageswara Rao is invalid and do not confer any status on 3rd defendant; (c) for declaration that deceased Nageswararao along with 3rd defendant in collusion with each and violation of Lok Adalat award dated 08.12.2018 passed in PLC No.86 of 2018 on the file of Legal Services Authority, Sattenapalli fraudulently and deceitfully obtained loan from 5th defendant on 24.12.2018 without any necessity for the joint family and utilized the loan amount for purchase of “B” schedule property and declare that the 5th defendant is entitled to proceed personally against the 3rd defendant and “B” schedule property for realization of the loan amount without causing any loss to the plaintiffs and their properties etc. 3. In the plaint, it was contended interalia that plaintiffs’ father is late Nageswararao and mother is 2nd defendant in the suit. The marriage between Nageswararao and 2nd defendant was solemnized on 09.05.1999. Nageswararao got two brothers by name Srinivasarao and Rajendra Prasad and 3 their father’s name is Chandraiah and mother Subbayamma, 1st defendant in the suit. Nageswararao and his family members alienated the ancestral joint family properties situated at Mulakaluru. The husband of 2nd defendant and father of plaintiffs began acquiring properties, described in the plaint schedule from 2010 onwards and constructions were made in suit schedule property. Plaintiffs and their father enjoyed the schedule properties jointly. 2nd defendant’s husband fraudulently got a decree in HMOP No.64 of 2016 on the file of Senior Civil Judge, Sattenapalli against 2nd defendant, behind her back and decree for divorce was granted on 07.09.2016. In the cause title of said HMOP, the addresses of petitioner and respondent are shown as one and the same. Plaintiff’s mother, i.e. 2nd defendant was misled and hence, failed to take proper steps. The 2nd defendant filed PLC No.86 of 2018 before the Legal Services Authority, Sattenapalli and the authority passed an award dated 08.12.2018 and without complying with the terms of the award, husband of 2nd defendant and father of plaintiffs, obtained loan from 5th defendant bank by playing fraud and in violation of terms of award. The father of plaintiffs 4 executed a registered gift deed dated 23.03.2021 in favour of 3rd defendant and the said gift deed is without the consent of the plaintiffs. Plaintiffs ignored the gift deed executed by Nageswararao since the plaintiffs are also having a share. Eventually Nageswararao died due to cancer on 17.10.2021. The marriage of 3rd defendant with Nageswararao took place in the year 2017 is not valid and thus, filed the suit for the reliefs stated supra. 4. When the plaint was presented, it was returned with the following objections: (1) How the reliefs of declaration mentioned as (b) and (c) is maintainable in this suit, as both the items are still unchallenged one, as this Court has not got jurisdiction to solve the dispute in question as mentioned in (b) and (c) of prayers. (2) How the CF is paid under Section 34 (3) of APCF & SV Act instead of 34 (1) of Act. (3) Affidavit under Rule 172 of CRP to be filed as the 2nd plaintiff is being minor. (4) Form-8 valuation slip to be filed. (5) Family member certificate of plaintiffs to be filed. 5 (6) Full process to be filed. Time 7 days. 5. It was represented on 01.07.2022 as follows: (1) As per the decision reported in AIR 1994 SC 853, fraud vitiates all judicial acts. It is settled proposition of law that a judgment or decree obtained by playing fraud is a nullity and nonest in the eye of law. It can be challenged even in collateral proceedings. Relief in 2012 (5) ALD 99. No need to challenge in partition suit as per decision reported in 2008 (3) ALD 657. (2) Plaint averments alone are to be considered as per decision in AIR 1982 AP 60. (3) Affidavit under Rule172 of Civil Rules of Practice is filed. (4) Form-8 valuation slip filed. (5) Certificate filed. (6) Complied. 6. On 04.07.2022, plaint was again returned with the following objections: 6 (1) Allotment of shares in plaintiffs and defendants to be noted in the plaint and in prayer portion. (2) Genealogy of parties to be filed. (3) Brothers of deceased Nageswararao to be shown as defendants in the suit. (4) How the plaintiffs are entitled to seek the reliefs in (b) and (c) as they are not parties to the HMOP. Hence, returned. Time 7 days. 7. It was represented on 07.07.2022 as follows: (1) Shares of the plaintiffs and defendants is noted in the prayer portion. (2) Genealogy of parties is filed. (3) Brothers of deceased Nageswara Rao are not necessary parties as they have no interest in the suit schedule properties. (4) Since the parties are effected by the fraud played by deceased Nageswara Rao, even though they are not parties, they are entitled to challenge the same in the collateral proceedings. The return of plaint with different objections on number of times is improper as per the decision reported in 2006 (1) ALT 198. If the office is not satisfied with the representation, it may be called on the bench. 7 8. Later, the matter was called on bench and number of times, it was adjourned for consideration. Finally, by docket order dated 20.08.2022, plaint was returned. 9. A perusal of docket order dated 20.08.2022 would indicate that suit is filed for partition of schedule properties into 12 equal shares and to allot 10 shares to plaintiffs; that if the plaintiffs succeeds, the 2nd relief claimed by plaintiffs is not necessary in the suit. It was further observed that as long as the decree in HMOP No.64 of 2016 is in force, relief of declaration of status of 3rd defendant, qua the rights of plaintiffs cannot be decided and eventually, returned the plaint. Aggrieved by the same, the present revision is filed. 10. Heard Sri P.S.P.Suresh Kumar, learned counsel for the petitioners, Sri R.S.Manidhar Pingali, learned counsel for 3rd respondent and Sri Kambhampati Ramesh Babu, learned counsel for 4th respondent. 11. Learned counsel for the petitioners would submit that the procedure adopted by the Court below in numbering the plaint is not sustainable and the Court below returned the plaint by entering merit of the case and such course is not 8 permissible. He would also submit that at the time of numbering of plaint, Court below cannot conduct mini trial and merits and demerits of case and entitlement of plaintiffs for the reliefs must be decided after full-fledged trial and thus prayed to allow the CRP. 12. Learned counsel for respondents supported order of the Court below. 13. The point for consideration is Whether roving enquiry is necessary at the time of numbering the suit? 14. At the stage of numbering the plaint, the Courts normally shall not go into merits of the matter. If on perusal of the plaint and if plaint discloses cause of action, the Court shall number the suit. if the plaintiff fails to prove his claim/case during the trial, eventually he will be non-suited. But if the plaint discloses cause of action whether the relief, the plaintiff entitled or not, will depend upon the evidence to be let in. At the stage of numbering of the suit, court, normally, shall not go into merits of the suit and decides as to whether the plaintiff gets the relief or not. 9 15. In Syed Hadi Ali Moosavi Vs. Syeda Taquia Moosavi and Ors.1, the learned single Judge of the Telangana High Court held as follows: “16. … … it was not proper for the Court below to express any opinion thereon at the stage of numbering of the plaint, particularly, when as pointed above, it was unnecessary for the petitioner to seek its cancellation. 17. As regards the reason (d) assigned by the Court below regarding defective description of the suit schedule property that the total extent of the property is not specifically mentioned in the schedule, it is not a ground to reject the plaint and at best the Court below can ask the party to submit the extent and incorporate the same in the plaint. 18. Regarding the reason (e) given by the trial Court that petitioner did not mention which part of the property is in his possession, that may be a matter to be gone into while considering grounds of relief in the suit and it is not a ground to reject the plaint. 19. As regards reason (f) that the plaint did not disclose proper and valid cause of action is concerned, para 12 of the plaint deals with the same. It cannot, in my opinion, be said to be inadequate warranting rejection of the plaint at the stage of numbering of the suit. Eventually, Court directed the Wakf Tribunal to number the suit. 16. In Pranit Projects Pvt. Ltd. vs. Goundra Yadaiah2, while placing reliance upon Full Bench decision of this Court, in Chillakuru Chenchuram Reddy Vs. Kanupuru 1 2019 (6) ALD 292 2 2014 (6) ALD 232 10 Chenchurami Reddy (ILR 1969 AP 1042), that at the initial stage, the plaint averments and the documents in support of the plaint are only decisive and after appearance, pleadings of the defendants that also to be considered in deciding the sufficiency of Court Fee and this aspect of sufficiency of Court Fee is a mixed question of fact and law and not possible to reject the plaint straight away as sought for by the defendants and all the disputed facts raised require elaborate and roving enquiry that can be possible only by trial. 17. In R.V. Bhuvaneswari and Ors. Vs. Ponnuboina Chencu Ramaiah and Ors.3, the composite High Court observed that one of the plaint averments to the effect that alleged alienation by way of sale deed was sham and nominal and alienator had no right to sell the joint family properties, without there being any division and the question whether the possession was joint at the time of alleged alienation is to be decided after trial of the suit and not at the stage of numbering of suit by the office of the Court. 3 2004 (1) ALD 539 11 18. In the case on hand, plaintiffs pleaded that decree in HMOP is result of fraud and the fraud vitiates the solemn acts. At the stage of numbering the suit, the Court below could not have conducted roving enquiry regarding the relief sought for in the plaint. In the considered opinion of this Court, the Court below has gone into merits of the matter at the stage of numbering the suit and the same is not permissible. Hence, the docket order dated 20.08.2022 in CFR No.3584 of 2022 passed by the learned Principal District Judge, Guntur is set aside. The Court below shall number the plaint, if it is otherwise in order. The observations, if any, made above will not come in the way of the court below in deciding the suit. 19. Accordingly, the Civil Revision Petition is allowed. No costs. As a sequel, all the pending miscellaneous applications shall stand closed. _________________________ SUBBA REDDY SATTI, J 7th December, 2022 PVD
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