Telangana High Court

Kagne Pandari vs The State Of Telangana on 19 April, 2023

Bench: J Sreenivas Rao

        HIGH COURT FOR THE STATE OF TELANGANA

              WRIT PETITION No.10055 OF 2021

Between:
       Kagne Pandari, S/o. Dondiram
       Age : 63 years, Occ : Agriculture
       R/o. Chinthalbori Village, Boath Mandal,
       Adilabad District and 3 others.

                                                  ..   Petitioners

                               Vs.

       The State of Telangana rep. by its
       Rep. by its Principal Secretary,
       Social Welfare Department, Secretariat,
       Hyderabad & 6 others


                                                   .. Respondents


DATE OF THE ORDER PRONOUNCED:                    19.04.2023




1.   Whether Reporters of Local newspapers                 No
     may be allowed to see the judgment?


2.   Whether the copies of judgment may be                 Yes
     marked to Law Reporters/Journals


3.   Whether his Lordship wishes to                        Yes
     see the fair copy of the judgment?
                                      2




           * HON'BLE SRI JUSTICE J. SREENIVAS RAO

                  + WRIT PETITION No.10055 OF 2021

                      % DATED 19TH APRIL, 2023

# Kagne Pandari, S/o. Dondiram
  Age : 63 years, Occ : Agriculture
  R/o. Chinthalbori Village, Boath Mandal,
  Adilabad District and 3 others.

                                                       .. Petitioners
                                    Vs.

$ The State of Telangana rep. by its
  Rep. by its Principal Secretary,
  Social Welfare Department, Secretariat,
  Hyderabad & 6 others


                                                     .. Respondents

<Gist:

>Head Note:
! Counsel for the Petitioner:       Sri S. Surender Reddy

^Counsel for Respondents        : Govt. Pleader for Social Welfare
                                  for respondent Nos.1 to 4
                                  Deputy Solicitor General of India
                                  for respondent Nos.5 & 6
                                  Sri G. Chandra Mohan,
                                  for respondent No.7.

? CASES REFERRED                :

1. 1977 (2) SCC 435
2. AIR 1954 SC 340
3. AIR 1984 AP HC
4. (1981) 3 SCC 589
5. (2015) 5 SCC 423
                                  3




         HON'BLE SRI JUSTICE J. SREENIVAS RAO

              WRIT PETITION No.10055 OF 2021

ORDER:

This writ petition is filed seeking Writ of Certiorari calling

for the records relating to the orders passed by the respondent

No.2 in Original Suit No.A4/CPC/138/2018, dated 01.04.2021

in holding that the respondent No.7 is the legally married wife

of the deceased Kagne Santhosh and she is his legal heir and

further holding that she is eligible for claiming the death

benefits of the deceased, without giving any opportunity to the

petitioners and without conducting the trial or enquiry as per

the provisions of C.P.C., without considering the provisions of

Agency Rules and without having jurisdiction and set aside the

orders passed by the respondent No.2 in O.S.No.A4/CPC/138/

2018, dated 01.04.2021 by declaring the same as illegal,

arbitrary, abuse of process of law, violation of principles of

natural justice and contrary to the rules.

2. Heard Sri S. Surender Reddy, learned counsel for the

petitioners, learned Assistant Government Pleader for Social

Welfare appearing for respondent Nos.1 to 4, learned Deputy

Solicitor General of India, appearing for respondent Nos.5 & 6,

and Sri G. Chandra Mohan, learned counsel appearing for

respondent No.7.

3. Learned counsel for the petitioners submits that

petitioner Nos. 1 and 2 are parents of Kagne Santhosh,

petitioner Nos.3 and 4 are his brothers. He further submits

that respondent No.7 forcibly married Kagne Santhosh on

06.05.2013 and due to her harassment, their son has taken

divorce on 05.06.2013 from her in the presence of caste elders

and they returned the household articles and other amounts

and also paid an amount of Rs.1,00,000/- (Rupees One Lakh

only) towards her permanent alimony, and he died on

12.06.2013 due to electrocution.

3.1 He further submits that respondent No.7 filed a suit O.S.

No.6 of 2013 on the file of Junior Civil Judge at Boath, seeking

declaration to declare her as the wife and Class-I legal heir of

her deceased husband. In the said suit the petitioners filed

written statement contending that respondent No.7 is not

entitled to the relief sought, on the ground that she has already

taken divorce from her husband. The said suit was transferred

to the Court of respondent No.2.

3.2 He also contended that as per the provisions of Rule 7 of

"Telangana State Agency Rules, 1924" (hereinafter referred to as

'Rules' for brevity) the respondent No.2 is not having

jurisdiction to adjudicate the matter as the value of the suit is

below Rs.5,000/- but the respondent No.2 without considering

the contentions raised by the petitioners, without giving

opportunity, and without following due procedure as

contemplated under the provisions of Code of Civil Procedure,

1908, (hereinafter called as 'C.P.C.') passed the impugned order

and the same is contrary to the law and liable to be set aside.

3.3. In support of his contentions, he relied upon the

judgment in State of Madhya Pradesh Vs. Babu Lal and

others1.

4. Per contra, Sri G. Chandra Mohan, learned counsel

appearing for respondent No.7, vehemently contended that the

respondent No.7 filed a suit O.S. No.6 of 2013 on the file of

Junior Civil Judge at Boath, seeking declaration declaring her

as legally wedded wife and Class-I legal heir of her deceased

husband Kagne Santhosh and the same was transferred to the

Court of respondent No.2. The respondent No.2 after following

1977 (2) SCC 435

the due procedure as contemplated under the provisions of the

'Rules', & 'C.P.C' passed the impugned order and there is no

illegality, irregularity or error to interfere with the said order.

He further submits that as per the provisions of the Rule 49 of

the 'Rules' against the impugned order passed by the

respondent No.2, the petitioners ought to have filed Appeal and

the writ petition filed by them invoking the extraordinary

jurisdiction of this Court under Article 226 of Constitution of

India is not maintainable and the same is liable to be dismissed.

4.1. He further submits that the allegations made by the

petitioners that respondent No.7 had already obtained divorce

during the lifetime of her husband and she received an amount

of Rs.1,00,000/- (Rupees One Lakh only) towards permanent

alimony, is not true and correct. He also submits that till date

the respondent No.7 has not contracted second marriage after

the death of her husband and she is eking out her livelihood by

depending upon her parents and she is legally entitled to claim

the death benefits of her deceased husband in respect of her

share.

5. The learned Asst. Government Pleader also contended

that the petitioners have contested the matter before respondent

No.2 and he passed the impugned order on merits. The

petitioners without availing the statutory remedy of appeal filed

the writ petition and the same is not maintainable under law.

6. Having considered the rival submissions made by the

respective parties, and upon perusal of the record, the following

points would arise for consideration:

(i) Whether the impugned order dated 01.04.2021 passed by the respondent No.2, declaring the respondent No.7 as legally wedded wife and Class-I legal heir of deceased Kagne Santhosh and she is eligible to claim the death benefits of her late husband, is sustainable under law?

(ii) Whether the writ petition filed by the petitioners questioning the impugned order passed by the respondent No.2 dated 01-04-2021 is maintainable, especially when the statutory remedy of Appeal is provided under Rule 49 of Agency Rules, 1924?

(iii) Whether the petitioners are entitled for any relief in the writ petition?

POINT NOS.i to iii

7. According to the pleadings and material evidence on

record, it reveals that the marriage of respondent No.7 was

performed with Kagne Santhosh, who is none other than the

son of petitioner Nos.1 and 2 on 06.05.2013 and he died on

12.06.2013. After his death, respondent No.7 filed a suit O.S.

No.6 of 2013 on the file of Junior Civil Judge at Boath, against

the petitioner Nos.1 to 4 as well as respondent Nos.5 and 6

seeking declaration declaring her as legally wedded wife and

Class-I legal heir of her deceased husband. She specifically

averred in the suit that the petitioner Nos.1 to 4 are necked out

her from their house after the death of her husband when she

approached the petitioners to provide shelter in their house and

to give her share in the death benefits of her late husband to

lead her life, the petitioners refused to accept the same and she

further averred that she being legally wedded wife, entitled to

claim death benefits of her late husband from respondent Nos.5

and 6. The petitioners filed written statement on 17.11.2013

denying the allegations made in the suit contending that

respondent No.7 has obtained divorce on 05.06.2013 from her

husband and they paid amounts including permanent alimony

of Rs.1,00,000/- and she is not entitled to claim any relief's as

sought in the suit. The said suit was transferred to the Court

of respondent No.2 and the same was renumbered as O.S. No.

A4/CPC/138/2018.

8. It further reveals from the record, that the petitioners

have filed their objections before respondent No.2 dated Nil-10-

2020. The respondent No.2 after considering the contentions,

material documents i.e., Family Member Certificate, FIR report,

Marriage Certificate, passed the impugned order on 01.04.2021

by giving specific findings holding that as per the provisions of

the Hindu Succession Act, 1956 the respondent No.7 is legally

wedded wife of late Kagne Santhosh, who worked as B.S.F.

Constable, and she is eligible to claim death benefits of her

deceased husband. It is also held that though the petitioners

pleaded that respondent No.7 has already taken divorce from

her deceased husband during his lifetime, but they failed to

produce any iota of evidence to that effect.

9. Insofar as the contention raised by the learned counsel for

the petitioners that, the respondent No.7 sought relief in the

suit only seeking declaration declaring her as legally wedded

wife, whereas the respondent No.2 passed the impugned order

not only granting decree, declaring her as legally wedded wife,

but also held that the respondent No.7 is eligible to claim the

death benefits of her deceased husband, though there is no

such relief sought by the respondent No.7 and the respondent

No.2 is not entitled to grant the said relief.

10. Admittedly, respondent No.7 filed a suit against the

petitioner Nos.1 to 4 and also respondent Nos.5 & 6, who are

the employers of her deceased husband, seeking declaration,

declaring her as legally wedded wife and Class-I legal heir of her

deceased husband, wherein she specifically pleaded that for the

purpose of claiming death benefits of her late husband, she filed

the said suit. It is very much relevant to extract the relief

sought by the respondent No.7 in the suit as under:

"(i) Declaring the plaintiff as the wife and Class-I Legal heir of the deceased Santhosh.

(ii) Any other relief or reliefs to which the plaintiff is entitle in the facts and circumstances of the case".

11. It is needless to mention here that the respondent No.2

after considering the pleadings of the respective parties and

material evidence on record rightly passed the impugned order

dated 01.04.2021 declaring the respondent No.7 as legally

wedded wife and further held that she is also entitled to claim

death benefits of her deceased husband. Hence, the contention

raised by the learned counsel for the petitioners that the Court

below passed the impugned order exceeding the jurisdiction in

the absence of relief claimed by the petitioners, is not tenable

under law.

12. In respect of other ground raised by the learned counsel

for petitioners' that the respondent No.2 is not having pecuniary

jurisdiction to adjudicate the suit and pass the impugned order,

the respondent No.7 filed suit before the Junior Civil Judge, at

Boath and the same was transferred to the Court of respondent

No.2 and the petitioners have filed their objections on Nil-10-

2020 before respondent No.2 and contested the matter. The

petitioners have not raised any objections before the respondent

No.2 either in the written objections or during the pendency of

the proceedings, on the other hand they have proceeded with

the matter and invited the orders on merits. Now the

petitioners are estopped to contend that respondent No.2 is not

having pecuniary jurisdiction to pass the impugned order.

13. In Kiran Singh Vs. Chaman Paswan2 the Hon'ble

Supreme Court in Para No.7 held as under:

7. ......... "The policy underlying Sections 21 and 99 of the Civil Procedure Code and Section 11 of the Suits Valuation Act is the same, namely, that when a case had been tried by a court on the merits and judgment rendered, it should not be liable to be reversed purely on technical grounds, unless it had resulted in failure of justice, and the policy of the legislature has been to treat objections to jurisdiction both territorial and pecuniary as technical and not open to consideration by an appellate court, unless there has been a prejudice on the merits"........

14. In Special Secretary to the Government of Rajasthan

(Finance), Jaipur, Rajasthan Vs. Vedakantara

Venkataramana Seshaiyer3 the Division Bench of this Court

in Para No.22 held that:-

AIR 1954 SC 340

AIR 1984 AP HC

"In view of the authoritative pronouncement of the Supreme Court that all the three "conditions must co- exist" we are of the opinion that the appellants have not made any attempt to prove how there is any failure of justice within the meaning of the said expression in Section 21 of Civil Procedure Code. On this ground alone the objection relating to jurisdiction is liable to be rejected."

15. In Koopilan Unseen's Daughter Pathnumma V. Koopilan Unseen's son Kuntalan Kutty died by L.Rs4 the Hon'ble Apex Court held that:-

"in order that an objection to the place of suing may be entertained by an appellate or revisional Court, the following three conditions are essential; (i) the objection was taken in the court of the first instance; (ii) it was taken at the earliest possible opportunity and in cases where the issues are settled, at or before such settlement of the issues; and (iii) there has been a consequent failure of justice. All these three conditions must co-exist".......

16. It is already stated supra that in the instant case also the

petitioners have not raised any objections in the suit about the

jurisdiction before the respondent No.2. In view of the

authoritative pronouncement of the Hon'ble Apex Court as well

as Division Bench of this Court, the objection relating to

Jurisdiction is liable to rejected.

17. With regard to the maintainability of the writ petition is

concerned, as per the provisions of Rule 49 of Telangana State

Agency Rules, 1924, against the impugned order passed by the

respondent No.2, a regular appeal is lies. The petitioner without

(1981) 3 SCC 589

availing the remedy of appeal as provided under statute filed the

writ petition invoking the jurisdiction of this Court under Article

226 of Constitution of India and the same is not maintainable

under law.

18. The judgment relied upon by the learned counsel for the

petitioners in State of Madhya Pradesh (supra) wherein the

Hon'ble Supreme Court held as under:

"5. One of the principles on which Certiorari is issued is where the Court Acts illegally and there is error on the face of record. If the Court usurps the jurisdiction, the record is corrected by Certiorari. This case is a glaring instance of such violation of law. The High Court was in error in not issuing Writ of Certiorari".

19. The principle laid down by the Hon'ble Supreme Court in

the above said judgment is not applicable to the facts and

circumstances of the case on hand on the ground that the

respondent No.2 after following the procedure, considering the

contentions, documentary evidence on record, and also after

hearing both the parties, had passed the impugned order.

20. It is very much relevant to mention hereunder that the

Hon'ble Apex Court in the case of Radhey Shyam v. Chhabi

Nath5, after analyzing the previous decisions held that Writ

(2015) 5 SCC 423

Petitions under Article 226 of Constitution of India, challenging

the Judicial Orders are not maintainable.