Andhra Pradesh High Court - Amravati

K.J. Pattabhi vs The Government Of Andhra Pradesh on 2 May, 2023

Bench: Ravi Nath Tilhari

          lN THE HIGH COURT OF ANDHRA PRADESH AT AMARAVATl

                      TUESDAY ,THE SECOND DAY OF MAY

                      TWO THOUSAND AND TWENTY THREE

                              :PRESENT:
              THE HONOURABLE SRI JUSTICE RAVI NATH TILHARI

                    CIVIL REVISION PETITION NO: 1O64 OF 2023

Between:
    1. K.J. Pattabhi, s/o.R.Jayaram Goud, aged about 49 years.
   2, K.J.Mahadeva, s/o.R.Jayaram Goud, aged about 47 years.
   3. A.Manjula, w/o.A.Rajanee, aged about 31 years.
   4. A.Subramani Gowdu, s/o.late Doraswamy, aged 67 years.
   5. A.Thavamani, s/o.late Govinda Gowdu, aged about 53 years.
   6. M.Pawanu, w/o.M.Ramamoorthy, aged about 43 years.
   7. A.Bharathil w/o.Manigandan, aged 23 years.
   8. A.Swaminatham, s/o.Late Krishna Gowdu, aged 73 years.
   9. R.Yasodamma, w/o.R.Chinnaswamy Gowdu, aged about 73 years.
   10. Pachappamani, s/o.Late P.Doraswamy, aged about 60 years.
   (All are Hindus, Cultivations, R/o.Pachappavooru village, 56-Patrapalle Revenue
   Village, Yadamari mandal, Chittoor District.)

                                                  Petitioners/Petitioners/PIaintiffs
                                       AND
   1. The Government of Andhra Pradesh, Rep., by its District Collector, Chittoor
      Town and District.

   2. The MandaI Revenue Officer, Yadamari Village, Post and Mandal, Chittoor
      District.


                                          Respondents/Respondents/Defendants

      Petition under Article 227 of the Constitution of India, praying that in the
circumstances stated in the grounds filed herein, beg to present this Memorandum of
Civil Revision Petition to this Hon'ble Court against the order and decree passed in
IA.no.221/2O22 in IA.no.311/2020 in OS.no.748/2019 dated 29-12-2022 on the file of
the court the ll Additional Junior Civil Judge, Chittoor.

lA NO: +'yOF 2023

       Petition under Section 151 CPC praying that in the circumstances stated in
the memorandum of grounds filed in support of the petition, the High Court may be
pleased to grant stay of all further proceedings in lA.no.311/2020 in OS.no.748/2019
 on the file of the court the lI Additional Junior Civil Judge, Chittoor, pending CRP in
this Hon'ble court, Pending disposal of CRP 1064 of 2023, on the file of the High
Court.

      The petition coming on for hearing, upon perusing the Petition and the
memorandum of grounds filed in support thereof and upon hearing the arguments of
Sri S LAKSHMINARAYANA REDDY Advocate for the Petitioners and the Court
made the following.

ORDER

lt1. Heard Sri S. Lakshminarayana Reddy, learned counsel for the

petitioners.

2. The plaintiffs-petitioners filed O.S.No.748 of 2019 on the file of ll Additional Junior civil Judge, Chittoor against the defendants-respondents for permanent injunction which was decreed exparte on 22.01.2020. For setting aside the exparte decree the defendants-respondents filed I.A.No. nil of 2020 under Order lX Rule 13 read with Section 151 CPC, along with I.A.No.311 of 2020 under Section 5 of the Limitation Act. The plaintiffs-petitioners filed I.A.No.221 of 2022 under Order XIX Rules 1 and 2 CPC, for permission to crossexamine the deponent of the affidavit filed along with I.A.No.311 of 2020. I.A.No.221 of 2022 has been rejected by the learned ll Additional Junior Civil Judge, Chittoor by order dated 29.12.2022, against which the present civil revision petition has been filed.

3. Learned counsel for the petitioners submitted that the defendants/respondents have filed the affidavit in support of I.A.No.311 of 2020 to prove the fact in support of condonation of delay and setting aside the exparte decree. The plaintiff petitioners under order XIX Rules 1 and 2 CPC have the right to cross examine the deponent of the affidavit to elicit the truth, that there was no sufficient cause for condonation of delay nor for their non appearance for setting aside the exparte decree. He has placed reliance in the following cases:

1. Bai Zabu Khima v Amardas Balakdas(AIR 1967 Gujarat 214)

2.Sripathi Rajyalakshmi and another vs. Sripathi Seeta Mahalakshmi(1974(1) ALT 30 (S.B))

3. Veesam Mohan Reddy vs. Rebba Pedda Agaiah(2008(2) ALT 329 (S.B))

4. K.V. Subba Rao vs The State of A.P(AIR 1967 AP 202). to contend that order xlx Rule 2 CPC appl'leS tO aPPl-lCat'lOnS and Once the affidavit -ln evidence was f-lled upon appI'lcatiOn the Petitioners Should have been g|lven the opportun|lty to cross exam'lne the deponent of the affidavit.

4. Distingu-lShing the judgments (1) Sakalabaktula Vykunta Rao and another vs. Made AppalaSWamy( AIR 1978 AP 103) and (2) Jammu alnd Kashmir v. Bakshi Gulam Mohammad(AIR 1967 Supreme Cout 122) upon Which the leamed " Add'ltiOnal Junior Civ" Judge, ChittoOr Placed rel|lanCe, Sri S. Lakshm'lnarayana Reddy Subm'ltted that the f-lrSt Case related tO Order XXXIX Rule 1 CPC with respect tO Which CPC speC'lf'lCally Provides for d'lSPOSal Of such applicat'lon on affidavits and the second case did not relate to the applications under order lx Rule 13 CPC or/and Sect'lon 5 of the Limitation Act- 5. Learned COunSel for the Petitioners next Subm'ltted that .Instead Of

confining to I.A.No.221 of 2022, 'ln the light Of Order 19 Rules 1 and 2 CPC, the learned Junior Civ'll Judge, also Observed that it iS necessary tO ||__1enqu'lre ..I :+ '|ainto e^ contest. Further, that, 'lf 'lt 'lS SO the L[lt= matter lllaLLtFl and

-I--`-to-- d'lspose

--~r of the case on perm'ltted no prejud'lce would be caused to the petitioners. ln his submiss'lon, such observations, would prejudice the disposal Of l|A.No.311 of 2020 and I.A.No. nil Of 2020 on mer-Its.

6. Matter requires COnSideratiOn at depth , inter alia on the fOIlow'lng

points: a) The apPliCability Of Order 19 Rule 1 and 2 CPC upon application under order 9 Rule 13 CPC with application under Sect-lan 5 of Limitation Act.

b) Right of the Pla-lntiffS Of Cross examination Of the dePOnent Of the affidavit Of the applications under Order 9 Rule 13 CPC -In the I-lght Of Order 19 Rules 1 and 2 and Order 18 Rule 4 CPC in particular.

7. Admit.

8l Issue notice tO the respondents. The Petit|lOnerS Sha" Serve the respondents by taking out personal notice through Reg-lstered Post With acknowledgment due and file proof Of Serv-lee Personally, in add-lt-Ion tO the regul'ar mode of service.

9. Order XIX Rule 2 cpc provides that upon any application, ev-ldence sect'IOn 141 CPC makes applicable the Procedural may be g-lven by affidavit. Section l4'l uru lllahg--rr.._____

provisions of cpc in regard to su-lt, to be followed, as far as it can be made applicable, -ln a" proceedings 'ln any court of C'lV" jurisdiction. As per the explanation lfproceedings includes proceedings under order lx cpc". orde,I XVIII Rule 4 CPC provides for examination in chief on affidavit. wEvidence" in Section 3 of the Evidence Act though does not include MaffidaVit" but the

Provision Of CPC permit evidence, examination in chief in suit on affl'davit and upon application also on affidavI't.

10. Prima facie, being of the vl-ew that there is right of cross examination and further that the observations made in the I'mPugned Order Shall affect the decision on the merits of the appll-cations pending before Junior Civil Judge, the proceedings in I.A.No.311 of 2020 in OIS.No.748 of 2019, on the file of ll Additional Junior Civil Judge, Chittoor, shall remain stayed, tl'Il the next date of listing-ll. List in 07-07-2023''' #

Sd/- K.TATA RAO DEPUTY REgiSTRAR

/of-/ //TRUE COPY// SECTIOfu OFFICER Fa _____ To,

1. The ll Additional Junior Civil Judge, Chittoor.

2. The District Collector, Chittoor Town and District, Government Of Andhra Pradesh.

3. The MandaI Revenue Officer, Yadamari VI'Ilage, Post and Mandal, Chl'ttoor District. (Addressess 2 to 3 by RPAD)

4. One CC to SRl. S LAKSHMINARAYANA REDDYAdvocate [OPUC]

5. One spare copy.

psk HIGH COURT

RNTJ

DATED:O2/05/2023

LIST ON 07.07.2023

ORDER