Chernam Chinna Balmasiah vs State Teachers Union Telangana ...
2021 Latest Caselaw 2229 Tel

     THE HON' BLE SRI JUSTICE CHALLA KODANDA RAM

            CIVIL REVISION PETITION No. 1234 OF 2020

ORDER:

This Revision is directed against the judgment dated

16.06.2020 in C.M.A.No. 15 of 2018 on the file of the IV Additional

District & Sessions Judge at Nagarkurnool which was filed against

the order dated 07.03.2018 in I.A.No. 2 of 2018 in O.S.No. 2 of

2018 on the file of the Senior Civil Judge at Nagarkurnool.

Petitioners herein are the plaintiffs in the suit. They filed

I.A.No. 2 of 2018 seeking temporary injunction restraining the

respondent, his men, agents, servants, benchmen and other

claiming through him from interfering with their peaceful

possession of the petition schedule property. The said Application

was dismissed and the Appeal filed thereagainst was also

dismissed with costs vide judgment under Revision.

One of the grounds raised in the Revision by the petitioners

is that notwithstanding the fact that a large number of documents

were referred to in the order in I.A.No. 2 of 2018, strangely, in the

"appendix of evidence" and in the order under the caption "exhibits

marked", both for plaintiffs as well as the defendant, they have

been shown as 'NIL'. The appellate Court also while adverting to

various documents had recorded 'no documents were marked'

which is contrary to the facts on record, thereby the order stands

vitiated.

Learned counsel for the appellants particularly referred to

para 3 of the judgment under Revision, wherein it was recorded

that the plaintiffs had not filed any documents to show the

possession, without, in fact, referring to any of the documents and

discussing about the same. The learned counsel had relied on the

judgments of the Division Bench of this Court in T. Bhopal Reddy

v. K.R. Lakshmi Bai1, A.P. Mineral Development Corporation

Ltd., Hyderabad v. Trimex Minerals Pvt. Ltd., Chennai2 and of

the Single Judge in Aruna Chowhan v. M/s ARKS Cold Storage

(P) Limited3, to support his contention that the documents ought

to have been marked.

On the other hand, learned counsel for the respondent had

relied on the judgment of the learned Single Judge in C.M.A.No.

416 of 2015 to submit that even in the absence of marking of

documents, this Court is entitled to refuse injunction.

This Court, having given conscious thought, had observed

that there is some ambiguity arising on account of the

observations of the Division Bench in Bhupal Reddy's case,

wherein it is not categorically held that it is mandatory for the

documents to be marked. On further examination, it was found

that there is yet another judgment of the Division Bench of this

Court in C.M.A.Nos. 527,564 and 607 of 2017, dated 21.07.2017,

which, while holding that the Rule regarding marking of

documents in terms of the Civil Rules of Practice be adhered to,

directed the Registry to issue a Circular to the subordinate courts

to mark the documents filed by the parties to the Interlocutory

Applications before deciding such Applications. In this context,

Rules 51, 60 and 115 of the Civil Rules of Practice may be noted.

While Rule 115 deals with marking of documents admitted in

1998(1) ALD 770 (DB)

1998 (1) ALT 182 (DB)

2008(5) ALT 227

evidence, which can be done only at the time of trial, Rule 51 read

with Rule 60 caters to the need of the marking of documents for

the purpose of disposal of the Interlocutory Applications. Rules 51

and 60, which are more relevant for the purpose of dealing with

the issue in the present Revision, are extracted as under:

" 51. Documents referred to in affidavit:-

Document referred to by affidavit shall be referred to as exhibits and shall be marked in the same manner as exhibits admitted by the court and shall bear the certificate in Form No. 16 which shall be signed by the officer before whom the affidavit is taken.

60. Proof of facts by affidavit:-

Any fact required to be proved upon an interlocutory proceeding shall unless otherwise provided by these, rules, or ordered by the court, be provided by affidavit but the Judge may, in any case, direct evidence to be given orally, and thereupon the evidence shall be recorded, and exhibits marked, in the same manner as in a suit and lists of the witnesses and exhibits shall be prepared and annexed to the judgment."

In the light of the above and considering the directions

issued by the Division Bench of this Court to issue a Circular if the

same is not complied with, as on date, the Registry shall take

necessary steps to do the needful clearly directing all the

subordinate officers for strict adherence to Rules 51 and 60, while

disposing of the Interlocutory Applications. As a matter of fact,

this Court had observed in a large number of cases that there is

compliance wherein reference was made to the documents filed as

'P' series and 'B' series which is in conformity with Rule 51.

In the facts of the present case, admittedly, since no

documents were marked which amounts to failure to comply with

Rule 51, the Civil Revision Petition is allowed, setting aside the

order 07.03.2018 in I.A.No. 2 of 2018 and the judgment dated

16.06.2020 in C.M.A.No. 15 of 2018 and remanding the matter to

the learned Senior Civil Judge at Nakarkunrool to decide the

I.A.No. 2 of 2018 afresh. No costs.

In the present case, the pleadings disclose that the

respondent / defendant had earlier filed O.S.No. 299 of 1997 along

with I.A.No. 668 of 2017 before the Junior Civil Judge's Court at

Nagarkurnool seeking injunction against the appellants / plaintiffs

in the present case. To avoid conflicting orders and considering

that the parties to the suit being one and the same, this Court

deems it appropriate to direct O.S.No. 299 of 2017 be transferred

and tried along with O.S.No. 2 of 2018 in Senior Civil Judge's

Court at Nagarkurnool. The learned Senior Civil Judge shall pass

necessary orders after giving opportunity to the parties concerned.

Miscellaneous petitions, if any pending, shall stand closed.

____________________________ CHALLA KODANDA RAM, J 28th July 2021

ksld

I.A.Nos. 1 and 5 of 2020 have been filed to implead M/s

Bajaj Heavy Engineering Limited, rep. by its whole time director Sri

Mohammed Bande Ali Akbar and M/s Speed Housing Ventures

Private Limited as party respondents to the Company Application,

to the limited extent of allowing the petitioners to make an offer

with respect to the property. The petitioners are permitted to

through their counsel make an offer without prejudice to this

Court to accept or reject their offer in the light of the Application of

the successful bidder pending consideration for conformation of

sale.

I.A.No. 7 of 2020: is filed to implead Sri Y. Sreedhar, who is

the successful bidder as party respondent to the Company

Application. The Application is ordered and the petitioner /

applicant being the highest bidder and in the light of the

applications made by the applicant in I.A.Nos. 1 and 5 of 2020

being considered, the Application is ordered.

I.A.No. 8 of 2020 is filed to conform the sale conducted in

e-auction dated 11.09.2019 through service provider M/s Shriram

Automall India Limited in favour of the petitioner as being the

highest bidder in the e-auction for the subject land. This

Application is allowed.