Between vs Sri Uppaluru Mohammad Yusuf
2023 Latest Caselaw 3941 AP

     HIGH COURT OF ANDHRA PRADESH AT AMARAVATI

                           ****

APPEAL SUIT No.111 OF 2023

Between:

Smt. S. Ghousia, W/o Inayathullah, Aged about 59 years, R/o Eguvapeta, Sidhout Mandal, YSR Kadapa District. .... Appellant.

Versus

Sri Uppaluru Mohammad Yusuf, S/o Uppaluru Fakruddin, aged about 49 years, resident of D.No.8/152, Maseed Street, Kamalapuram Village and Mandal, YSR Kadapa District and others. ... Respondents.

DATE OF JUDGMENT PRONOUNCED : 31.08.2023

SUBMITTED FOR APPROVAL:

HON'BLE SRI JUSTICE A.V.RAVINDRA BABU

1. Whether Reporters of Local Newspapers may be allowed to see the Judgment? Yes/No

2. Whether the copy of Judgment may be marked to Law Reporters/Journals? Yes/No

3. Whether His Lordship wish to see the Fair copy of the Judgment? Yes/No

______________________ A.V.RAVINDRA BABU, J

* HON'BLE SRI JUSTICE A.V.RAVINDRA BABU + APPEAL SUIT No.111 OF 2023

% 31.08.2023

# Between:

Smt. S. Ghousia, W/o Inayathullah, Aged about 59 years, R/o Eguvapeta, Sidhout Mandal, YSR Kadapa District. .... Appellant.

Versus

Sri Uppaluru Mohammad Yusuf, S/o Uppaluru Fakruddin, aged about 49 years, resident of D.No.8/152, Maseed Street,Kamalapuram Village and Mandal, YSR Kadapa District and others. ... Respondents.

! Counsel for the Appellant : Sri G. Ramesh Babu.

^ Counsel for the Respondent        : ---

< Gist:

> Head Note:

? Cases referred:




This Court made the following:

THE HON'BLE SRI JUSTICE A.V. RAVINDRA BABU

Appeal Suit No.111 OF 2023

JUDGMENT:-

Challenging the order, dated 05.11.2022 in I.A.No.1003

of 2022 in O.S.No.26 of 2013, on the file of II Additional

District Judge, Kadapa at Proddatur, the appellant, who is the

plaintiff in the said suit, filed the present appeal.

2) The parties to this appeal will hereinafter be

referred to as described before the trial Court for the sake of

convenience.

3) As evident from the grounds of appeal as well as

the enclosures thereof, it is pertinent to refer here the

circumstances in which the respondent/plaintiff is compelled

to file the present appeal.

4) Originally, the respondent/plaintiff viz., Smt. S.

Ghousia filed O.S.No.145 of 2004, on the file of Senior Civil

Judge Court, Proddatur, against the defendants viz., (1)

Uppulur Fakruddin, (2) Mahammad Yusuf, (3) M.

Chandraleela, (4) B. Obulamma and (5) Syed Jalekha Bee,

seeking partition of the suit schedule property into two

portions and allot one half share to plaintiff by taking good

and bad qualities and for grant of mesne profits during the

pendency of the suit. While so, during the pendency of the

suit, the said plaintiff filed I.A.No.807 of 2009 in O.S.No.145

of 2004, seeking permission to withdraw the suit and to file a

fresh suit. The learned Senior Civil Judge at Proddatur,

allowed I.A.No.807 of 2009 permitting the plaintiff to

withdraw the suit and to file a fresh suit subject to condition

of payment of suit costs to the first defendant. Further the

order discloses that a memo filed by the plaintiff withdrawing

the suit is recorded and the suit shall be dismissed with costs

to the first defendant as withdrawn. Subsequently, Smt.S.

Ghousia filed a suit in O.S.No.26 of 2013, on the file of II

Additional District Judge, Kadapa at Proddatur against the

defendants viz., (1) Uppaluri Mohammad Yousaf, (2) M.

Chandraleela, (3) B. Obulamma and (4) Syed Jaleka Bee,

with a prayer to partition the suit schedule properties into

three equal shares and to allot one such share to the plaintiff

by taking good and bad qualities and put the plaintiff into a

separate possession and to direct the defendants to pay the

mesne profits and to declare that the registered sale deed

bearing No.209/2004, dated 08.01.2004, registered sale

deed bearing No.927/2004, dated 30.04.2004 and registered

sale deed bearing No.848/2004, dated 12.04.2004 as null

and void. During the pendency of O.S.No.26 of 2013, the first

defendant filed a petition under Order 7 Rule 10(1) of C.P.C.

with a prayer to reject the plaint on the ground that the

plaint does not disclose cause of action. Though it appears

that the first defendant did not quote the proper provision of

law, but undoubtedly, the above said application was filed to

reject the plaint which is regulated by Order 7 Rule 11 of

C.P.C. So, mere quoting of wrong provision of law in the

Interlocutory Application has no significance.

5) The case of the first defendant in I.A.No.1003 of

2022 in O.S.No.26 of 2013 is as follows:

The plaintiff filed suit against him and others for

partition and separate possession of the suit schedule

properties. Earlier, she filed O.S.No.145 of 2004 seeking

partition and separate possession and to overcome the chief

examination of R.W.1 and her witness, she filed I.A.No.807 of

2009 seeking permission to withdraw the suit and to institute

a fresh suit on the same cause of action. The petition was

allowed on condition to pay the suit costs to the petitioner.

O.S.No.145 of 2004 was dismissed as withdrawn. Without

complying the order in the above said Interlocutory

Application to pay the suit costs, the present suit is filed. The

plaintiff has no right to institute the present suit. No cause of

action arose against the petitioner and others to file the suit

and to proceed in the trial.

6) As against the above Interlocutory Application,

the plaintiff filed a counter denying the allegations and

contending that he filed the present suit against the

petitioner and others for partition and separate possession.

He pleaded cause of action clearly in para No.9 of the plaint,

as such, the contention of the petitioner is untenable. The

cause of action is a bundle of facts and the court cannot

reject the plaint basing on the averments in the written

statement. Unless and until full pledged trial takes place,

plaint cannot be rejected at threshold. Hence, the petition is

liable to be dismissed.

7) The learned II Additional District Judge, Kadapa

at Proddatur, on hearing both sides in I.A.No.1003 of 2022

passed an order rejecting the plaint on the ground that the

plaintiff did not pay the suit costs as ordered in O.S.No.145 of

2004, as such, the suit in O.S.No.26 of 2013 is not

maintainable. It is that order which is now under challenge in

the present appeal.

8) The first respondent having received notice did

not make any appearance. Respondent Nos.2 to 4 are not

necessary parties to this appeal.

9) Now, in deciding this appeal, the points that arise

for consideration are as follows:

(1) Whether the order, dated 05.11.2022 in I.A.No.1003 of 2022 in O.S.No.26 of 2013, in rejecting the plaint is sustainable under law and facts?

(2) To what relief?

Point No.1:

10) Sri G. Ramesh Babu, learned counsel for the

appellant, would contend that the rejection of the plaint is

regulated by Order 7 Rule 11 of C.P.C. The first defendant

failed to bring his case under the purview of Order 7 Rule 11

of C.P.C. He filed I.A.No.1003 of 2022 alleging that there is

no cause of action. In para No.9 of the plaint in O.S.No.26 of

2013, there is a clear whisper about the bundle of facts

relating to cause of action. Though the suit in O.S.No.145 of

2004 was dismissed on payment of costs to the first

defendant, but the learned Senior Civil Judge at Proddatur did

not make any further condition putting any date for

compliance of the condition. On the other hand, the judgment

was delivered dismissing the suit as withdrawn. So, even if

the costs are not paid, the remedy open to the defendants

was to execute the decree so as to recover the suit costs.

The intention of the learned Senior Civil Judge at Proddatur in

imposing the costs while permitting the plaintiff to withdraw

the suit was only to allow the costs in favour of the first

defendant, as the plaintiff sought to withdraw the suit. If the

intention of the learned Senior Civil Judge at Proddatur was

to dismiss the suit in O.S.No.145 of 2004 for non- payment of

costs, he would have put up another date for complying the

condition. When that is so, the learned II Additional District

Judge, Kadapa at Proddatur is not at all justified in rejecting

the plaint on the ground that the plaintiff in O.S.No.145 of

2004 did not pay costs to the first defendant. Para No.9 of

the plaint discloses the bundle of facts as to the cause of

action. The suit in O.S.No.26 of 2013 is absolutely

maintainable. The plaintiff clearly pleaded bundle of facts in

para No.9 of the plaint about the cause of action. The learned

II Additional District Judge, Kadapa at Proddatur, did not

understand the purport of the order in O.S.No.145 of 2004

and erroneously rejected the plaint driving the appellant to

approach this Court. O.S.No.26 of 2013 was an old suit. It

was unnecessarily rejected on 05.11.2022 erroneously

without looking into the Order 7 Rule 11 of C.P.C., as such,

the appeal is liable to be allowed.

11) Firstly, this Court would like to refer here the

circumstances in which the plaint can be rejected. Order 7

Rule 11 of C.P.C. runs as follows:

11. Rejection of plaint.

The plaint shall be rejected in the following cases-

(a) where it does not disclose a cause of action;

(b) where the relief claimed is undervalued, and the plaintiff, on being required by the Court to correct the valuation within a time to be fixed by the Court, fails to do so;

(c) where the relief claimed is properly valued, but the plaint is returned upon paper insufficiently stamped, and the plaintiff, on being required by the Court to supply the requisite stamp-paper within a time to be fixed by the Court, fails to do so;

(d) where the suit appears from the statement in the plaint to be barred by any law;

(e) where it is not filed in duplicate;]

(f) where the plaintiff fails to comply with the provisions of rule 9;]

[Provided that the time fixed by the Court for the correction of the valuation or supplying of the requisite stamp-paper shall not be extended unless the Court, for reasons to be recorded, is satisfied that the plaintiff was prevented by any cause of an exceptional nature for correcting the valuation or supplying the requisite stamp-

paper, as the case may be, within the time fixed by the Court and that refusal to extend such time would cause grave injustice to the plaintiff.]

12) Now, as evident from I.A.No.1003 of 2022 in

O.S.No.26 of 2013, the first respondent filed the same to

reject the plaint on the ground that the plaintiff has no cause

of action to file the suit as she did not comply the condition of

payment of suit costs in O.S.No.145 of 2004 to the first

defendant.

13) A perusal of the copy of judgment on O.S.No.145

of 2004 reads that I.A.No.807 of 2009 was allowed

permitting the plaintiff to withdraw the suit and to file a fresh

suit subject to condition of payment of suit costs to the first

defendant. Accordingly, a memo filed by the plaintiff was

recorded and the suit was dismissed as withdrawn.

Therefore, it is not the intention of the learned Senior Civil

Judge at Proddatur to put a date to comply the payment of

suit costs as a condition precedent to withdraw O.S.No.145 of

2004. On the other hand, the memo filed by the plaintiff was

recorded withdrawing the suit, as such, the suit was

dismissed as withdrawn with costs to the first defendant.

Admittedly, the grievance of the first defendant in

I.A.No.1003 of 2022 is that the suit in O.S.No.26 of 2013 is

not maintainable for non-payment of suit costs in O.S.No.145

of 2004, as such, the plaint is to be rejected.

14) As seen from the copy of plaint in O.S.No.26 of

2013, plaintiff categorically pleaded in para No.9 of the plaint

cause of action. It is pertinent to extract here para No.9 of

the plaint in O.S.No.26 of 2013:

"9.The cause of action for the suit arose on 20.10.1989 when the mother of the plaintiff orally gifted the suit schedule items in favour of plaintiff and first defendant herein out of love and affection towards them in the

presence of two respectable persons and subsequently on 10.03.2000 when she executed confirmation of oral gift and subsequently died on 15.04.2000 leaving behind her, her husband U. Fakruddin, plaintiff and first defendant as her legal heirs and first defendant and the plaintiff are in joint possession and the first defendant cultivating the lands on behalf of the plaintiff and subsequently first defendant and U. Fakruddin did not show love and affection towards the plaintiff and U. Fakruddin part of fist item of suit schedule property in favour of 2 to 4 defendants and subsequently when the plaintiff filed the suit in O.S.No.145 of 2004 on the file of Senior Civil Judge's Court, Proddatur, and subsequently withdraw the suit with the permission of the Court to file fresh suit and subsequently U. Fakruddin died and the plaintiff demanded first defendant for partition and as he refused and trying to alienate the property depriving the share of the plaintiff and as the first defendant has not come forward for division and hence the plaintiff obliged to file the suit for partition and separate possession and the suit schedule property are situated at Kamalapuram within the territorial limits of this Hon'ble Court and this Hon'ble Court has got jurisdiction to entertain the suit."

15) As evident from the above cause of action, the

plaintiff pleaded bundle of facts to constitute the cause of

action. What is one of the things for rejection of plaint under

Order 7 Rule 11 of CPC is as to whether the plaint discloses

the cause of action or not. Undoubtedly, para No.9 of the

plaint discloses the cause of action. The dismissal of the suit

in O.S.No.145 of 2004 is one aspect in the bundle of facts

constituting the cause of action. In fact, the learned Senior

Civil Judge at Proddatur permitted the plaintiff to institute the

fresh suit and the suit in O.S.No.145 of 2004 was withdrawn.

If positive interpretation is made about the contents of the

judgment, it means that the plaintiff in O.S.No.145 of 2004 is

liable to pay the suit costs to the first defendant. Therefore,

if the plaintiff fails to pay the suit costs to the first defendant,

his remedies are elsewhere. He can as well execute the

decree in O.S.No.145 of 2004 by filing an Execution Petition.

Even the learned Senior Civil Judge at Proddatur, proceeded

to dismiss the suit as withdrawn by awarding costs in favour

of the first defendant. The word "condition" appears to have

been put in the judgment as usual without any further

condition. The word "condition" used in the judgment in

O.S.No.145 of 2004 cannot be taken as a condition precedent

to withdraw the suit. If the intention of the learned Senior

Civil Judge at Proddatur is as such he would not have

recorded the memo granting permission to withdraw the suit.

16) A look at order in I.A.No.1003 of 2022 i.e., the

impugned order means that as the plaintiff did not pay the

suit costs to the first defendant, the suit is not maintainable.

As seen from the above, the learned II Additional District

Judge, Kadapa at Proddatur did not look into the purport of

judgment in O.S.No.245 of 2004 properly. It appears that

the learned II Additional District Judge, Kadapa at Proddatur

even did not look into the essential ingredients of Order 7

Rule 11 of C.P.C. and the contents of para No.9 of the plaint

constituting the cause of action. The quoting of wrong

provision of law is not a ground to reject the prayer, if the

petitioner is otherwise entitled to the prayer. However, the

learned II Additional District Judge, Kadapa at Proddatur did

not understand that I.A.No.1003 of 2022 is filed under wrong

provision of law. In my considered view, the mechanical

rejection of the plaint only on the ground that the plaintiff in

O.S.No.145 of 2004 did not pay the suit costs to the first

defendant is absolutely not in accordance with law. Instead

of looking into as to whether the case of the petitioner in

I.A.No.1003 of 2022 would come under the purview of Order

7 Rule 11 of C.P.C., the learned II Additional District Judge,

Kadapa at Proddatur, simply allowed application only on the

ground that the plaintiff did not deposit the suit costs in

O.S.No.145 of 2004. The findings of the learned II Additional

District Judge, Kadapa at Proddatur that the suit filed by the

plaintiff in O.S.No.26 of 2013 is not maintainable without

payment of suit costs in O.S.No.145 of 2004 absolutely

erroneous. The learned II Additional District Judge, Kadapa at

Proddatur did not think over into the aspect that the

petitioner in I.A.No.1003 of 2022 has every right to execute

the decree in O.S.No.145 of 2004 with regard to the costs

awarded in his favour. The failure on the part of the plaintiff

to comply the payment of costs would not nullify the bundle

of facts pleaded in para No.9 of the plaint constituting the

cause of action.

17) In the light of the above, I am of the considered

view that the impugned order is wholly unsustainable under

law and it is liable to be set aside. Already the plaintiff

instituted the suit way back in the year 2013 and the plaint

was rejected on 05.11.2022.

18) Having regard to the above, I am of the

considered view that as the suit in O.S.No.26 of 2013 is an

old one, appropriate directions are to be given to the trial

Court to dispose the suit expeditiously while setting aside the

order in I.A.No.1003 of 2022.

19) In the result, the appeal is allowed with costs,

setting aside the order, dated 05.11.2022 in I.A.No.1003 of

2022 in O.S.No.26 of 2013 thereby restoring the plaint on its

file. The learned II Additional District Judge, Kadapa at

Proddatur, is directed to dispose O.S.No.26 of 2013 in

accordance with law, as expeditiously as possible, preferably

not later than six months from the date of receipt of this

judgment.

20) The Registry is directed to forward the copy of

the judgment to the trial Court as above without fail on or

before 06.09.2023.

Consequently, miscellaneous applications pending, if

any, shall stand closed.

________________________ JUSTICE A.V. RAVINDRA BABU Dt.31.08.2023.

Note:

Issue C.C. today.

B/o PGR

THE HON'BLE SRI JUSTICE A.V. RAVINDRA BABU

Appeal Suit No.111 of 2023

The Registry is directed to forward the copy of the judgment to the trial Court as above without fail on or before 06.09.2023.

Date: 31.08.2023

L.R. copy be marked.

PGR