Whether appeals from decrees passed under Sections 9, 10, 11 and 13 of the Hindu Marriage Act (XXV of 1955) should be registered as civil miscellaneous appeals or first appeals.-A citation

 

Andhra High Court

Kalakota Varalakshmi And Anr. vs Kalakota Veeraddi And Anr. on 13 November, 1959

Equivalent citations: AIR1961AP359, AIR 1961 ANDHRA PRADESH 359, (1960) 1 ANDH WR 270, 1960 ANDHLT 735, ILR (1960) 1 ANDH PRA 132

JUDGMENT
 

 P. Chandra Reddy, C.J. 
 

1. The question raised in this reference is whether appeals from decrees passed under Sections 9, 10, 11 and 13 of the Hindu Marriage Act (XXV of 1955) should be registered as civil miscellaneous appeals or first appeals.

2. The practice in this court was to register them as civil miscellaneous appeals till a decision was rendered by Umamaheswaram J. in S. R. No. 6720 of 1959". There, the learned Judge held that having regard to the language of these sections which describe the decision of the court as a decree, regular appeals lie from these adjudications and that it is not correct to register them as civil miscellaneous appeals.

The lerned Judge drew a distinction between these sections and Sections 24 to 26 which relate to the granting of maintenance, expenses of proceeding and custody of children, the decisions under which are regarded as orders. In the opinion of the learned Judge, appeals from orders arising under the latter group of sections alone could be registered as civil miscellaneous appeals while those under Sections 9, 10, 11 and 13 should be registered as regular appeals. He thought that this consequence flows from a reading of Section 28 of the Hindu Marriage Act read with Section 96 of the Civil Procedure Code.

3. Section 9 deals with restitution of conjugal rights, Section 10 with judicial separation, Section 11 with void marriages and Section 13 with divorce. In all these matters the concerned civil court is empowered to grant decrees giving the reliefs asked for. But the question for consideration is whether the description of the adjudication as a 'decree' is decisive of the matter, namely, whether appeals arising therefrom should be regarded as first appeals. The answer to this turns upon Section 90 C.P.C. which confers a right of appeal upon litigants against the decrees passed in the exercise of original jurisdiction. That section, in so far as it is material for our enquiry, reads:

"Save where otherwise expressly provided in the body of this Code or by any other law for the time being in force, an appeal shall lie from every decree passed by any Court exercising original jurisdiction to the Court authorised to hear appeals from the decisions of such Court".

4. It is immediately clear that an appeal is competent under that section only from a decree passed by a Court in the exercise of its original jurisdiction. In other words, it should be a decree within the connotation of Section 2(2) of the Code. Decree as defined in that section is:

"'decree' means the formal expression of an adjudication which, so far as regards the Court expressing it, conclusively determines the rights of the parties with regard to all or any of the matters in controversy in the suit and may be either preliminary or final. It shall be deemed to include the rejection of a plaint and the determination of any question within Section 47 or Section 144, but shall not include -

(a) any adjudication from which an appeal lies as an appeal from an order, or

(b) any order of dismissal for default."

*** *** Thus, the pro-requisite of a decree is that the proceeding which results in an adjudication should start in a suit.

5. 'Suit' is not defined in the Civil Procedure Code, but some help could be derived from Section 29 of the Code which says :

"Every suit shall be instituted by the presentation of a plaint or in such other manner as may be prescribed.' This section gives a clue to the problem as to what a suit is, namely, that it is a proceeding which is initiated by the filing of a plaint.

6. A reference to some of the statutes would establish that a proceeding though not started by a plaint could be regarded as a suit, provided that a specific provision is made in that behalf, as in the case of Section 20(2) of the Arbitration Act, 1940 (X of 1940) which recites:

"The application shall be in writing and shall 'be numbered and registered as a suit between one or more of the parties interested or claiming to be interested as plaintiff or plaintiffs and the remainder as defendant or defendants, if the application has been presented by all the parties, or if otherwise, between the applicant as plaintiff and the other parties as defendants."

This shows that though some proceedings might be started in applications, they could still be regarded as suits for purposes of those enactments, provided it is specially provided for therein. In the absence of such provision, any proceeding except the one started by presentation of a plaint and an adjudication given therein will not be a decree for purposes of Section 96.

This position is incontrovertible, especially in view of the decision of the High Court of Madras in Rajagopala Chettiar v. H. R. E. Board, ILR 57 Mad 271 : (AIR 1934 Mad 103(2)). It was there laid down by a Full Bench that an order under Section 84 of the Madras Hindu Religious Endowments Act (II of 1927) was not appealable as it was not a 'decree' within the purview of Section 2 (2) C. I. C. notwithstanding that it had most of the postulates of a decree in that it finally determined the rights of parties.

7. Following this, a Bench of this Court consisting of one of us in Venkatanarapu v. Pedda Reddamma, 1958-2 Andh WR 316, has ruled that an order in an application for setting aside an ex par to order passed by the Insolvency Court, does not fulfil the definition of 'decree' notwithstanding the fact that such an application is permissibly by reason of Order IX, R. 13 read with Sections 141, Civil Procedure Code and 5 of the Provincial Insolvency Act.

The adjudications under Sections 9, 10, 11 and 13 of the Act are regarded as decrees only for the purpose of those sections and they cannot be treated as decrees within the meaning of Section 2 (2). C. P. C. We have already stated that Section 96, C. P. C. is applicable only to decrees coming under Section 2(2). So, decrees passed under the above-mentioned sections of the Act are outside the purview of Section 96. C. P. C. Appeals filed under Section 96, C. P. C. alone can (all within the category of regular appeals and should be registered as such,

8. Umamaheswaram, J. thought that decrees passed under Sections 9, 10, 11 and 13 of the Hindu. Marriage Act have the same force as those made under Section 295 of the Indian Succession Act (XXXIX of 1925). Section 295 of that Act can have no analogy here for the reason that whenever the grant of probate is contested and the proceeding thus becomes contentious, it Jakes the form of a regular suit. Section 295 enacts :

"In any case before the District Judge in which there is contention, the proceedings shall take, as nearly as may be, the form of a regular suit, according to the provisions of the Code ot Civil Procedure. 1908 (V of 1908) in which the petitioner for probate or Letters of Administration, as the case may be, Shall be the plaintiff, and the person who has appeared to oppose the grant shaii be the defendant."

Thus, although the probate proceeding is started in the form of an Order 1 it takes the shape of a suit when once there is a contest. Therefore, that does not render us any help in deciding the question whether a decree granted under the Hindu Marriage Act could give rise to a regular appeal.

9. We may here usefully refer to the provisions of the Land Acquisition Act (I of 1894) under which a regular appeal lies against an order passed by a competent civil court on a reference made by a Collector under Section 18 of that Act. Section 54 of that Act which clothes the affected party with a right of appeal, is as under :

"Subject to the provisions of the Code of Civil Procedure, 1908, applicable to appeals from original decrees, and notwithstanding anything to the contrary in any enactment for the time being in force, an appeal shall only lie in any proceedings under this Act, to the High Court from the award, or from any part of the award, of the Court, and from any decree of the High Court passed on such appeal as aforesaid an appeal shall lie to the Supreme Court subject to the provisions contained in S. HO of the Code of Civil Procedure, 1908, and in Order XLV thereof."

Section 26 (2) reads :

"Every such award shall be deemed to be a decree and the statement of the grounds of every award a judgment within the meaning or Section 2. Clause (2) and Section 2, Clause (9), respectively of the Code of Civil Procedure, 1908."

These provisions reveal that the legislature was conscious of the distinction, between 'decrees' mentioned in the enactments and the decrees envisaged by Section 2(2), C. P. C. If a decree is not one passed in a suit, an appeal that is competent from such a decree could only be registered as a civil miscellaneous appeal and not as a first appeal.

10. For these reasons, we feel that the practice that was being followed by the office is correct and the decision of our learned brother Umamahe-swararn, J. in S. R. No. 6720 of 1959 and that of Sanjeeva Row Nayudu, J. in C. M. A. No. 101 of 1957 following S. R. No. 6720 of 1959, are not correct. All the appeals which have been registered as first appeals consequent upon the decisions in S. R. No. 6720 of 1959 and C. M. A. No. l of 1957 will be registered as civil miscellaneous appeals. They will be posted before a Division Bench having regard to Rule 17(1) of the rules framed under the Hindu Marriage Act by this Co

JURISDICTION OF EXECUITNG COURT - AN ANALYTICAL NOTES BY HON'BLE VSR AVADHANI GARU - FORMERLY SECRETARY GENERAL, SUPREME COURT OF INDIA

Whether a Court which has jurisdiction to try the suit if instituted at the time of filing the E.P., has jurisdiction to execute the decree passed by other Court having jurisdiction to pass decree, when one area is shifted from territorial jurisdiction of later ourt to former Court

 

Andhra High Court

Pasala Suryachandra Rao vs Vatti Venkata Ranga Pardhasaradhi on 4 August, 1997

Equivalent citations: 1999(2)ALD179, 1999(2)ALT88

Author: V. Bhaskara Rao

Bench: V. Bhaskara Rao

1. An interesting question is raised in this Civil Revision Petition which arises out of an order in E.P. No.45 of 1989 in OS No.27 of 1976 on the file of Subordinate Judge, Tadepalligudem, dated 15-7-1996. The question is "whether the Court of Subordinate Judge at Tadepalligudem which has jurisdiction to try the suit if instituted at the time of filing the E.P., has jurisdiction to execute the decree in OS No.27 of 1976 passed by the Subordinate Judge at Kovvuru".

2. A few facts which are necessary for the disposal of the Civil Revision Petition are;

The revision petitioner filed a suit for specific performance in the Court of Sub-

Judge at Eluru and it was numbered as OS No.16 of 1972. Tadepalligudem Town was within the jurisdiction of Sub-Court Eluru at that time and the said suit was instituted in that Court. Subsequently it was transferred, on administrative grounds, to Sub-Court, Kovvuru, and renumbered as OS No.27 of 1976. The parties entered into a compromise and a compromise decree was accordingly passed on 20-12-1986 by the Sub-Court, Kowuru.

3. The Sub-Court at Tadepalligudem was constituted subsequent to the passing of the compromise decree. Tadepalligudem town which was within the teritorial jurisdiction of Sub-Court, Eluru, now falls within the teritorial jurisdiction of Sub-Court, Tadepatligudem.

4. The revision petitioner filed E.P. in Sub-Court, Kovvuru, but the same was returned to the revision petitioner for presentation in proper Court. Thereupon he presented the E.P. No.49 of 1989 in the Court of Subordinate Judge at Tadepalligudem.

5. The E.P. has been resisted by the respondent-judgment debtor by filing a counter. It is stated that the E.P. is barred by limitation. It is further averred that the execution of the sale-deed is conditional on the decree holder discharging all the debts of the judgment debtor, but the creditors filed suits against the judgment debtor and his firm and obtained decrees and they have not been discharged so far. It is also averred that the Sub-Court at Tadepalligudem has no jurisdiction to entertain the E.P.

6. The learned Subordinate Judge formulated the following question: "whether this Court has got jurisdiction to entertain the execution petition."

7. On a consideration of the rival contentions and perusing Sections 38 and 39 of Code of Civil Procedure (in short 'C.P.C.') it is held that the Court has no jurisdiction to entertain the execution petition. Hence this Civil Revision Petition.

8. A plain reading of the provisions in Part-II, Sections 36 to 42 C.P.C. would disclose that there have been several amendments to the relevant provisions by Amendment Act, 1976. The E.P. was presented on 13-12-1998 before the Court of Sub-Judge at Kowur and it was returned and thereafter it was represented. As on the date of presentation of E.P. the amendment has already come into force. Be it noted that the Amendment Act 1976 came into force on 1-2-1976. Learned Counsel for the revision petitioner contended that the learned Sub Judge has not noticed the amendment to Section 37 of C.P.C. whereunder an explanation has been added and there is no doubt that the learned Sub-Judge at Tadepalligudem has jurisdiction to entertain the E.P.

9. On the other hand learned Counsel for the respondent, Ms. Mamit Vam contended that the decree can be executed either by the original Court or by the Court to which the decree is transferred for execution and since the Sub-Court at Tadepalligudem does not fall under any one of the above category it has rightly rejected the execution petition on the ground of want of jurisdiction.

10. It would be convenient to extract Section 37 C.P.C. together with explanation which is added by the Amendment Act, 1976 for proper appreciation of the above contentions.

"37. The expression "Court which passed a decree", or words to that effect, shall, in relation to the execution of decrees, unless there is anything repugnant in the subject or context, be deemed to include-

(a) where the decree to be executed has been passed in the exercise of appellate jurisdiction, the Court of first instance, and

(b) where the Court of first instance has ceased to exist or to have jurisdiction to execute it, the Court which, if the suit wherein the decree was passed was instituted at the time of making the application for the execution of the decree, would have jurisdiction to try such suit.

Explanation:--The Court of first instance does not cease to have jurisdiction to execute a decree merely on ihe ground that after the institution of the suit wherein the decree was passed or after the passing of the decree, any area has been transferred from the jurisdiction of that Court to the jurisdiction of any other Court, but in every such case, such other Court shall also have jurisdiction to execute the decree, if at the time of making the application for execution of the decree it would have jurisdiction to try the said suit."

11. The two Courts that fall within the ambit of the explanation are Sub-Judge's Court at Kowuru which is otherwise known as Court of first instance, namely, the Court which passed the decree and the other Court is a Court which has teritorial jurisdiction over the area as on the dale of filing of the execution petition. Smt. Mamu Vani tried to interpret this explanation and referred the Court of first instance as the Subordinate Judge's Court at Eluru which originally had teritorial jurisdiction over Tadepalligudem. 1 am unable to agree with her for the simple reason that it is immaterial that the area has been transferred to the Court of Subordinate Judge at Tadepalligudem. There is no dispute that the property which is the subject matter of OS No.27 of 1976 is situated at Tadepalligudem and it is the Subordinate Judge's Court at Tadepalligudem that has territorial jurisdiction over that area. If the second limb of the explanation commencing from "but in every such case" is construed in the above manner, the criterion for territorial jurisdiction is whether the Sub-Court at Tadepalligudem has jurisdiction at the time of making the execution petition. The stress is on the words "at the time of making the application for execution". In my view the Sub-Court at Eluru is not at all in the picture Tor the purpose of explanation. Only two Courts are contemplated and they are Sub-Court at Kovvuru which passed the decree and the Sub-Court at Tadepalligudem which has territorial jurisdiction over the subject matter of the suit. It is amply clear from the explanation that the execution petition can be filed in either of the two Courts. The revision petitioner has rightly filed E.P. in the Court of Subordinate Judge at Kovvuru in the first instance and when that Court returned it for presentation to the proper Court, he filed before the Sub-Court at Tadepailigudem. A reading of the impugned order shows that the learned Sub-Judge did not notice Section 37 C.P.C. at all. On the contrary he considered the scope of Sections 38 and 39 C.P.C. which are not relevant for the purpose of deciding the above question. Therefore, the learned Subordinate Judge appears to have fallen into error in holding that the Court has no jurisdiction. The case law that is cited before him relates to pre-amended position and not subsequent to the amendment of C.P.C. Viewing from any angle I am satisfied that the order under revision is not sustainable. I am of the considered view that the Sub-Court at Tadepalligudem has jurisdiction to entertain the execution petition in addition to the Sub-Court at Kovvuru, which passed the decree.

12. For these reasons I hold that the Sub-Court at Tadepalligudem has jurisdiction to entertain the E.P. The civil revision petition is therefore allowed and the impugned order is set aside and the learned Subordinate Judge at Tadepalligudem is directed to take up E.P. No.45 of 1989 from the stage where it was dismissed by the impugned order and to dispose of the same in accordance with law. The parties will bear their own costs.

Insistence by the trial Court as to compliance with Section 80 CPC is superfluous and unnecessary, when no relief whatsoever is claimed against Government.

 

Andhra High Court

Smt. Achanta Chaya Devi vs State Of Telangana Represented By Its ...                              on 10 August, 2018

Equivalent citations: AIR 2018 HYDERABAD 148, (2018) 6 ANDHLD 6 (2018) 3 CURCC 291, (2018) 3 CURCC 291, AIRONLINE 2018 HYD 174

THE HONBLE SRI JUSTICE SANJAY KUMAR         

CIVIL REVISION PETITION No.4319 OF 2018     

10-08-2018 

Smt. Achanta Chaya Devi  Petitioner... Petitioner

State of Telangana represented by its  The Inspector General, Stamaps &  Registration, Hyderabad and others  Respondents 


Counsel for petitioners: Sri V.Narasimha Goud
                                                
Counsel for respondents: --

 The plaintiff in OS(SR).No.3276 of 2018 on the file of the learned II Additional Junior Civil Judge-cum-XVIII Metropolitan Magistrate at Malkajgiri, Ranga Reddy District, filed this revision petition under Article 227 of the Constitution aggrieved by the return of her plaint on the ground of non-compliance with Section 80 CPC.

OS(SR).No.3276 of 2018 was filed by the petitioner-plaintiff seeking a declaration that the sale deed bearing Document No.2221 of 2002 dated 29.04.2002 executed in favour of defendant 9 in respect of the suit schedule property was null and void. She also sought a permanent injunction restraining defendants 8 and 9 from interfering with her peaceful possession and enjoyment of the suit schedule property. Plot No.7, admeasuring 300 square yards in Sy.Nos.404 and 405, Srinivas Nagar Colony, Rampally Village and Gram Panchayat, Keesara Mandal, Medchal-Malkajgiri District (Ranga Reddy Judicial District), is the suit schedule property.

For reasons best known to her, the petitioner-plaintiff added the State of Telangana represented by its Inspector General, Stamps and Registration, Hyderabad; the District Registrar, Medchal-Malkajgiri District; the Sub-Registrar, Shamirpet, Medchal-Malkajgiri District; and the Sub-Registrar, Keesara, Medchal-Malkajgiri District, as defendants 1 to 4 in the suit, though she sought no relief against them.

The suit papers were returned on 08.05.2018 with certain objections and were re-submitted on 04.06.2018. The suit papers were again returned by the trial Court with objections on 07.06.2018. One of the objections was that a Section 80 CPC petition was not filed. The suit papers were re-submitted on 13.06.2018 and as to the objection raised in connection with Section 80 CPC, it was stated that legal notice dated 03.02.2018 was issued to the officials prompting a reply on 26.02.2018 from defendant 1 and hence notice, as required under Section 80 CPC, was complied with. It was further stated that it was not necessary in any event as the suit claim was against the other defendants and that the issue was covered by the decision in KOLANATI SATYANARAYANA V/s. NIZAMPATNAM MASTAN . The suit papers were however returned again on the very same day i.e., 13.06.2018, with the following endorsement:

All objections are complied but a petition is not filed under Section 80 CPC which is required as defendants 1 to 4 are Government bodies.

Hence returned to comply the same within 7 days.

Aggrieved thereby, the petitioner-plaintiff is before this Court. Heard Sri V.Narasimha Goud, her learned counsel. As the suit is yet to be registered, this Court does not deem it necessary to put respondents 1 to 8 herein, the defendants in the suit, on notice or afford them an opportunity of hearing at this stage.

Section 80 CPC reads as under:

80. Notice:-

(1) Save as otherwise provided in sub-section (2) no suit shall be instituted against the Government including the Government of the State of Jammu and Kashmir or against a public officer in respect of any act purporting to be done by such public officer in his official capacity, until the expiration of two months next after notice in writing has been delivered to, or left at the office of--

(a) in the case of a suit against the Central Government, except where it relates to a railway, a Secretary to that Government;

(b) in the case of a suit against the Central Government where it relates to a railway, the General Manager of that railway;

(bb) in the case of a suit against the Government of the State of Jammu and Kashmir, the Chief Secretary to that Government or any other officer authorized by that Government in this behalf;

(c) in the case of a suit against any other State Government, a Secretary to that Government or the Collector of the district;

and, in the case of a public officer, delivered to him or left at his office, stating the cause of action, the name, description and place of residence of the plaintiff and the relief which he claims; and the plaint shall contain a statement that such notice has been so delivered or left. (2) A suit to obtain an urgent or immediate relief against the Government (including the Government of the State of Jammu and Kashmir) or any public officer in respect of any act purporting to be done by such public officer in his official capacity, may be instituted, with the leave of the Court, without serving any notice as required by sub-section (1); but the Court shall not grant relief in the suit whether interim or otherwise, except after giving to the Government or public officer as the case may be, a reasonable opportunity of showing cause in respect of the relief prayed for in the suit:

Provided that the Court shall, if it is satisfied, after hearing the parties that no urgent or immediate relief need be granted in the suit, return the plaint for presentation to it after complying with the requirements of sub-section (1). (3) No suit instituted against the Government or against a public officer in respect of any act purporting to be done by such public officer in his official capacity shall be dismissed merely by reason of any error or defect in the notice referred to in sub-section (1), if in such notice -

(a) the name, description and the residence of the plaintiff had been so given as to enable the appropriate authority or the public officer to identify the person serving the notice and such notice had been delivered or left at the office of the appropriate authority specified in sub-section (1), and

(b) the cause of action and the relief claimed by the plaintiff had been substantially indicated.

In effect, Section 80(1) CPC states that no suit shall be instituted against the Government or against a public officer in respect of any act purported to be done by such public officer in his official capacity. Section 80(2) provides that in the event of urgent or immediate relief being sought against the Government or any public officer in respect of any act purported to be done by such public officer in his official capacity, a suit may be instituted with the leave of the Court without service of notice as stipulated in Section 80(1) CPC. Section 80(3) CPC provides that a defective notice issued under Section 80(1) would not be reason enough to dismiss the suit if the name, description and residence of the plaintiff has been given correctly so as to enable the appropriate authority or the public officer to identify the person serving the notice and such notice has been delivered at the office of the appropriate authority or public officer and the cause of action and relief claimed are substantially indicated.

Overall, it is manifest that a notice under Section 80 CPC is a condition precedent when the suit instituted seeks relief against the Government or against a public officer in respect of any act purported to be done by him in his official capacity. In the present case, no relief whatsoever is claimed against defendants 1 to 4, the officials of the State. It appears that they have been impleaded only because the petitioner-plaintiff is seeking cancellation of a registered sale deed.

Trite to state, Section 31(2) of the Specific Relief Act, 1963, provides that when the Court cancels a registered instrument, it shall also send a copy of its decree to the officer in whose office the said instrument had been registered and such officer shall note on the copy of the instrument contained in his books the fact of its cancellation. Therefore, a direction from the Court need not be sought by the petitioner-plaintiff to the registration authorities in this regard. In fact, the plaint does not contain any such prayer.

In such circumstances, insistence by the trial Court as to compliance with Section 80 CPC is superfluous and unnecessary. It may be noted that this Court had occasion to consider this very issue in KOLANATI SATYANARAYANA1. That was a case where a suit was filed for a declaration that the plaintiffs were entitled to remove clay from the suit schedule property and for a consequential injunction to protect their right. Dealing with the objection as to non-issuance of a notice under Section 80 CPC, this Court held that the same was untenable as the plaintiffs therein did not claim any relief against the Government or its officials. This Court further observed that the necessity to issue a notice under Section 80 CPC arises only if any action of the Government is challenged. Despite this decision being brought to its notice, it appears that the trial Court is still insisting upon compliance with Section 80 CPC without application of mind.

On the above analysis, this Court holds that the return of the plaint, on the ground of non-compliance with Section 80 CPC and that a petition is to be filed thereunder, is unsustainable in law.

The civil revision petition is accordingly allowed. The trial Court shall entertain and register the suit if it is otherwise found to be in order and proceed in accordance with law.

The Registry is directed to return the original plaint to the learned counsel for the petitioner-plaintiff.

Pending miscellaneous petitions, if any, shall stand closed in the light of this final order. No order as to costs.

Final Decree Proceedings in Partition Suit

 

Any order passed by the Junior Civil Judge is either appelalble or he can file revision agains the said order- Malafide to the Judicial Officer cannot be attributed when there is no evidence.

 THE HON’BLE SMT JUSTICE K. SUJANA 

TR.C.M.P.NO.501 OF 2023 Dt: 02.05.2024 

 A.Ushi Reddy & others …..Petitioners Vs The Hon’ble Prl. District & Sessions Judge, Ranga Reddy District at L.B.Nagar, Hyderabad and others …..Respondents ! 

Counsel for the petitioners : Sri A. Ushi Reddy (Party-in-person) 

Counsel for respondents : Sri Vivek Jain for respondents 1 and 2 

 Sri Vinod Kumar Kothapally For respondent No.3 

 HIGH COURT FOR THE STATE OF TELANGANA HYDERABAD

ORDER : This transfer petition is filed by the petitioners seeking transfer of O.S.No.324 of 2022 from the Court of learned Junior Civil Judge, Chevella to the Court Building of L.B.Nagar, Ranga Reddy District at L.B.Nagar and also to initiate disciplinary proceedings against respondent No.1 for suppressing the directions of the order of the High Court and committed serious mis-conduct and dereliction of duty and the learned Junior Civil Judge, Ranga Reddy District at Chevella should be placed under suspension forthwith and to conduct detail enquiry. 

2. This transfer petition is filed by the petitioners stating that they are the defendants in O.S.No.324 of 2022 on the file of Junior Civil Judge, Ranga Reddy District at Chevella. Plaintiff filed the suit for permanent injunction against the defendants and also filed I.A.No.958 of 2022 seeking temporary injunction. In the said I.A., notice was issued to the respondents. On receipt of notice, the respondents filed I.A.No.1430 of 2022 and 1431 of 2022 for production of original Gift Settlement deed, but the Court below dismissed the said I.As. Therefore, they filed recall petition as per the observations made by the Court below and the said petitions 4 are also rejected at the time of scrutiny itself. They also filed petitions for recalling the orders passed in I.A.Nos.1430 and 1431 of 2022 and the said petitions are also rejected by the scrutiny officer. The petitioners also filed petition for determining the issue of maintainability of I.A.No.958 of 2022 filed by the petitioners seeking temporary injunction under Order XXXIX Rules 1 and 2 r/w.Section 151 CPC in view of the directions issued by the Hon’ble Supreme Court, but the scrutiny officer without registering the I.A., rejected the petition by violating the Civil Rules of Practice. According to him, the learned Civil Judge, Chevella is showing personal interest and instead of referring the suit to Principal District Judge, the Junior Civil Judge, Chevella sent letter dated 06.09.2023 seeking instructions on the petition filed by them. The learned Principal District Judge, Ranga Reddy District, on receipt of the said letter and the representation of Sri Vinod Kethepally, Advocate for the plaintiff in O.S.No.324 of 2022, who is the 4th respondent herein, stated that in view of the directions issued by the High Court for the State of Telangana, the case cannot be transferred. Therefore, the learned Junior Civil Judge, Chevella is required to dispose of the case as per law.

3. It proves that the 4th respondent played fraud on the Court of learned District & Sessions Judge, Ranga Reddy District at 5 L.B.Nagar for obtaining fraudulent order. As per Section 35 of the Advocate Act, 1961, fraud is a serious mis-conduct and amounts to contempt of the Court. As such, prayed the Court to transfer O.S.No.324 of 2022 to any other Court in L.B. Nagar. 

4. Heard Sri A. Ushi Reddy, party-in-person/petitioner No.1 who has also filed vakalath for revision petitioners 2 and 3, Sri Vivek Jain, learned counsel appearing for respondents 1 and 2 and Sri Vinod Kumar Kothapally, learned counsel appearing for the respondent No.3. 

5. Learned counsel for the petitioners would submit that the petitions filed by the petitioners herein are rejected at the time of scrutiny itself. Though he mentioned the same, it is a separate petition, it was not numbered and without submitting bundle to the Principal District Judge, the concerned officer addressed letter to the Principal District & Sessions Judge, Ranga Reddy District at L.B.Nagar and the learned Principal District & Sessions Judge, without authority of Rules and judgment of this Court, directed the Junior Civil Judge, Chevella to conduct trial in the case as per law, which shows that the concerned advocate played fraud on the Court and the Junior Civil Judge is showing interest in favour of the plaintiff. Therefore, he prayed the Court to transfer O.S.No.324 of 2022 to any other Court in L.B. Nagar. 

6. The learned counsel appearing for respondents 1 and 2, submits that petitioners have to withdraw the case against respondent Nos.1 and 2; they are the judicial officers discharging their functions. He relied on the judgment of the Hon’ble Supreme Court in Savitri Devi Vs District Judge, Gorakhpur and others1 wherein it was held as under : 

“14. Before parting with this case, it is necessary for us to point out one aspect of the matter which is rather disturbing. In the writ petition filed in the High Court as well as the special leave petition filed in this Court, the District Judge, Gorakhpur and the 4th Additional Civil Judge (Junior Division), Gorakhpur are shown as respondents and in the special leave petition, they are shown as contesting respondents. There was no necessity for impleading the judicial officers who disposed of the matter in a civil proceeding when the writ petition was filed in the High Court; nor is there any justification for impleading them as parties in the special leave petition and describing them as contesting respondents. We do not approve of the course adopted by the petitioner which would cause unnecessary disturbance to the functions of the judicial officers concerned. They cannot be in any way equated to the officials of the Government. It is high time that the practice of impleading judicial officers disposing of civil proceedings as parties to writ petitions under Article 226 of the Constitution of India or special leave petitions under Article 136 of the Constitution of India was stopped. We are strongly deprecating such a practice.” 

7. Learned counsel for respondents 1 and 2 also relied on the judgment in M/s.Chetak Construction Ltd. Vs Om Prakash and others2, wherein the Apex Court in para 16 observed as under : 

    “16. Indeed, no lawyer or litigant can be permitted to brow beat the court or malign the presiding officer with a view to get a 1 (1999) 2 Supreme Court Cases 577 2 AIR 1998 Supreme Court 1855 7 favourable order. Judges shall not be able to perform their duties freely and fairly if such activities were permitted and in the result administration of justice would become a casualty and rule of law would receive a setback. The Judges are obliged to decide cases impartially and without any fear or favour. Lawyers and litigants cannot be allowed to “terrorize” or “intimidate” Judges with a view to “secure” orders which they want. This is basic and fundamental and no civilised system of administration of justice can permit it. We certainly, cannot approve of any attempt on the part of any litigant to go “forumshopping”. A litigant cannot be permitted “choice” of the “forum” and every attempt at “forum-shopping” must be crushed with a heavy hand.” 

8. In view of the observations made in the above judgments, learned counsel for respondents 1 and 2 requested the Court to dismiss this petition and also to issue contempt proceedings against the revision petitioners. 

9. Learned counsel for respondent No.2 submits that he only made a representation to the District Court to take decision on the letter submitted by the Junior Civil Judge. He never attended before the Principal District Judge with regard to the suit and because of the said letter, he made a representation to the Principal District Judge. Unnecessarily, the revision petitioners are attributing malafides without there being any merit and without there being any evidence. Therefore, he prayed the Court to dismiss this transfer petition and also punish the revision petitioners. 

10. Having regard to the submissions made by the party-inperson and learned counsel for respondents 1 and 2, the revision petitioner No.1 who is the party-in-person, filed this petition attributing malafides to the judicial officers, without any basis. Any order passed by the Junior Civil Judge is either appealable or he can file a revision against the said order. Without resorting to the procedure laid down by law, the revision petitioners unnecessarily filed complaints against the judicial officers and there is no evidence to attribute malafides to the judicial officers. The Junior Civil Judge, Chevella addressed letter for getting instructions from the Principal District Judge, in the matter and the Principal District Judge, has directed the Junior Civil Judge, Chevella to try the case as there is an order of this Court to dispose of the matter. In C.R.P.No.1416 of 2020, this Court directed to dispose of I.A.No.958 of 2022 in O.S.No.324 of 2022 within a reasonable period of time, preferably within a period of six months. Therefore, there is no illegality in the order of the learned Principal District Judge, Ranga Reddy District at L.B.Nagar. It is not necessary to call for the advocates on record or the parties to decide the said representation. There is no evidence on record to show that the Principal District Judge, called learned counsel for the plaintiff to the chambers. It is mentioned in the order that the 9 Junior Civil Judge, Chevella sent a letter and also referred the representation made by the learned counsel for the plaintiff. 

11. In view of the above discussion, I find no illegality in the order passed by the Principal District Judge and also the action taken by the learned Junior Civil Judge. Therefore, this transfer petition is devoid of merits and the same is liable to be dismissed. 

12. Accordingly, the Transfer Civil Miscellaneous Petition is dismissed. However, at the time of arguments, learned counsel for respondents 1 and 2 submitted before this Court that either the petitioners have to withdraw this petition against the judicial officers or the Court has to issue contempt proceedings for which the party-in-person submitted in the open Court that he will not withdraw the same and the Court may take any action against him.

13. In addition the Hon’ble Supreme Court in Savitri Devi’s case observed that it is high time that the practice of impleading judicial officers disposing of civil proceedings as parties to writ petitions under Article 226 of the Constitution of India or special leave petitions under Article 136 of the Constitution of India was stopped. We are strongly deprecating such a practice. Further, in Chetak Construction Ltd’s case, also the Hon’ble Supreme Court 10 observed that we certainly, cannot approve of any attempt on the part of any litigant to go “forum-shopping”. A litigant cannot be permitted “choice” of the “forum” and every attempt at “forumshopping” must be crushed with a heavy hand. 

14. In view of the observations made above, the Registry is directed to place the papers before the Hon’ble the Chief Justice for initiating further action against the revision petitioner No.1 who has appeared before this Court as party-in-person. There shall be no order as to costs. Miscellaneous applications, if any, pending shall stand closed. __________________ 

 K. SUJANA, J Date : 02.05.2024 Rds Note : L.R.Copy to be marked Yes/No

Court in its power cannot certify a Photostat copy of an unmarked document

 IN THE HIGH COURT FOR THE STATE OF TELANGANA

           CIVIL REVISION PETITON No.1720 of 2022

Between:

Smt Haneefa Bee,
W/o Late Maqbool Hussan
                                                      ... Petitioner
And


Mr. Mohd. Nizam,
S/o Mohd. Ismail
                                                     ... Respondent

JUDGMENT PRONOUNCED ON 03.04.2024

This Civil Revision Petition is filed aggrieved by order dated 13.06.2022 passed by the   I Additional Junior Civil Judge-cum-IX Additional Metropolitan Magistrate, Ranga  Reddy District at Kukatpally, in unnumbered I.A.of 2022 in O.S.No.521 of 2008, whereby    the petition filed by the petitioner under Rule 203-A of Civil Rules of Practice r/w Rule 151 of the Code of Civil Procedure to issue certified copy of the unmarked Agreement of sale dated       18.01.1997, vide CA.No.1447 of 2022 filed in the suit was dismissed.

2. The revision petitioner is the defendant and the respondent is the plaintiff in the suit.

3. The petitioner stated that she filed LGOP.No.821 of 2003 against the respondent seeking to declare him as a land grabber and to evict him from the scheduled property and the said    case is pending. Subsequent to filing of the said LGOP, the respondent filed suit in OS.No.285 of 2004 for permanent injunction before the Additional Junior Civil Judge, Cyberabad,  Kukatpally at LNA, J Prasanthnagar and later, the suit was transferred to the Additional        Junior Civil Judge, Ranga Reddy District at Kukatpally and renumbered as OS.No.521 of 2008, and eventually, the suit was dismissed for default on 03.04.2010.

3.1. Thereafter, the respondent filed an application IA.No.453 of 2010 for the return of the  unmarked certified copy of the agreement and the trial Court allowed the said application    by ordering substitution of the same with photostat copy of the said document and returned the original unmarked document to the respondent.

3.2. Subsequent thereto, the petitioner approached the trial Court to direct the office to issue certified copy of the unmarked Agreement of Sale dated 18.01.1997, which was permitted   to be substituted by the respondent by photostat copy of the said document. The trial Court on hearing both sides and on perusal of the entire material, found that only xerox copy/       photostat copy of agreement of sale was on record and therefore, it does not have any                 power to certify Xerox copies/photocopies and accordingly, dismissed the petition.

4. Heard Sri Ali Farooq, learned counsel for the petitioner and Sri K.Jamali, learned counsel for the respondent. Perused the entire material available on record.

5. Learned counsel for the petitioner contended that the trial court failed to consider the          provisions of Rule 203(A) of the Civil Rules of Practice and erred in dismissing the           application without assigning any proper reason. Hence, prayed to allow this Revision        Petition.

6. In support of his contention, learned counsel for the petitioner relied upon the judgment   of the combined High Court for the States of Telangana and High Court in G. Suverna Bai v. M. Ramesh Chander 1 and the judgment of the Hon'ble Supeme Court in K. Nagarajan v. K.S. Ramasamy 2,

7. In G. Suverna Bai's case (1st cited supra), the High Court held that the lower court erred   in rejecting the application- I.A.No.59 of 2013 filed for obtaining a certified copy of a       Certificate issued under Section 50-B of the Andhra Pradesh (Telangana Area) Tenancy and Agricultural Lands Act, 1950, which is crucial for the case of the petitioner and is available in 2016(161) AIC 275 2004(1) CivilLJ 344 LNA, J another court proceeding (O.S.No.9 of 1992), on technical grounds and accordingly, allowed the Civil Revision Petition.

8. In K.Nagarajan's case (2nd cited supra), the Hon'ble Supreme Court allowed the              petitioner therein to take certified copy of the unmarked document filed in a suit for             effective inspection.

9. In the instant case, the petitioner sought for issuance of certified copy of photostat copy   of unmarked Agreement of sale produced by the respondent in the suit. Therefore, the        citations relied upon by the learned counsel for the petitioner are no way helpful to the        petitioner as the facts of the above judgment and the present case are completely different    and the trial Court did not dismiss the application on technical grounds.

10. Here, it is apposite to reproduce Section 204(A) of the Civil Rules of Practice which       reads as under:-
"(1) On an application by the party, the court may grant copy of a proceeding or          document filed in or in the custody, of the court by getting it reproduced mechanically on payment of Rs. (2-00)1 per page by means of affixture of court fee labels to the application for copy or in cash through lodgment Schedule with in such time as the court may grant.
LNA, J (2) The same Rules as are applicable to certified copies to be taken out on copy       stamp papers will also apply mutatis mutandis to copies taken by mechanical                                    reproduction".

11. A conjoint reading of the above Section and the Evidence Act makes it clear that            certified copies are admissible as evidence in court. They carry the same weight and legal   significance as the original documents they represent. The Courts recognize certified           copies as official reproductions that have undergone verification, making them acceptable    and reliable evidence in the case. This helps establish the authenticity and validity of the    evidence.

12. Further, certified copies provide a means to verify the authenticity of documents.          During the certification process, an authorized individual examines the original document   and compares it to the copy. This verification ensures that the certified copy accurately       represents the original, confirming its authenticity and credibility.

13. In the instant case, it appears that after dismissal of the suit, the plaintiff filed an            application for return of the unmarked certified copy of the Agreement of sale and the same was allowed, permitting it to be substituted by a photostat copy of the said document.                 Thereafter, the petitioner herein, who is the defendant, filed an application for issuance              of certified copy of the photostat copy of the said unmarked document.

14. As already stated supra, when the legal sanctity and weight attached to the certified        copies of the documents, be it marked or unmarked, issued by the Court is that of the              original document, the Court in its power cannot certify a Photostat copy of an unmarked document, thereby confirming its authenticity and credibility.

15. In view of the aforesaid reasons, facts and circumstances of the case and the legal                 position, this Court is of the considered view that the impugned order passed by the trial Court does not suffer from any illegality or infirmity warranting interference by this Court.

16. Accordingly, this Civil Revision Petition is dismissed. No costs.

17. Pending miscellaneous applications, if any, shall stand closed.
__________________________________ JUSTICE LAXMI NARAYANA ALISHETTY Date:03.04.2024 Note: