Telangana High Court
B. Venkat Reddy Died Per Lrs 2 To 6 vs Akula Vijaya Laxmi on 10 April, 2025
Author: G.Radha Rani
Bench: G.Radha Rani
THE HONOURABLE Dr. JUSTICE G.RADHA RANI
CIVIL REVISION PETITION No.1381 of 2021
ORDER:
This Civil Revision Petition is filed by the petitioner - appellant
aggrieved by the order dated 26.07.2021 passed in I.A.No.134 of 2016 in
A.S.No.161 of 2012 by the learned III Additional District & Sessions Judge,
Rangareddy District at L.B.Nagar, Hyderabad.
2. The revision petitioner is the appellant - defendant in O.S.No.3 of 2002.
During the pendency of the revision, the revision petitioner died and his legal
representatives were brought on record as petitioners 2 to 6.
3. The facts of the case in brief are that O.S.No.3 of 2002 was filed by the
respondent - plaintiff seeking specific performance of agreement of sale dated
23.06.1995 and for recovery of possession in respect of the suit schedule
property. The trial court after full-fledged trial decreed the suit by its judgment
dated 16.04.2012. Against the said judgment and decree, the petitioner herein
preferred an appeal vide A.S.No.161 of 2012 on the file of the learned III
Additional District & Sessions Judge, Rangareddy District at L.B.Nagar,
Hyderabad. During the pendency of the said appeal, the respondent filed a
petition under Order XXIII Rule (4a) read with Section 151 of CPC to permit
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her to abandon her claim in respect of the suit sub-survey No.391/a of the suit
schedule property situated at Managalpally Village, Ibrahimpatnam Mandal,
Rangareddy District. The lower Appellate Court allowed the said application.
Aggrieved by which, this revision is preferred by the petitioner - respondent -
appellant.
4. Heard Sri Avancha H.Chakravarthy, learned counsel for the petitioner
and Sri K.Krishna Shrawan, learned counsel for the respondent.
5. Learned counsel for the petitioner submitted that the suit was decreed by
the trial court in the year 2012. When the respondent - plaintiff was
abandoning the relief in respect of a portion of the suit survey number, it would
amount to amending the decree, which could not be permitted under law. The
respondent had not given any reasons for filing the petition abandoning part of
the suit claim. The respondent filed the said application at a belated stage after
a lapse of 14 years. As such, the lower Appellate Court ought to have dismissed
the application. The respondent - plaintiff had given common boundaries for
two separate survey numbers, even though the same were subdivided.
Therefore, the boundaries given were not correct. In Ex.A1 agreement of sale,
there were no sub-survey numbers for suit schedule survey numbers and prayed
to set aside the order passed by the lower Appellate Court.
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6. Learned counsel for the respondent on the other hand contended that only
to set right the record, the petitions were filed. Appeal was continuation of the
suit, no prejudice would be caused to the revision petitioner in allowing the
application and prayed to dismiss the Civil Revision Petition.
7. Perused the record.
8. As seen from the affidavit filed by the respondent - plaintiff in
I.A.No.134 of 2015, she stated that she filed the suit for specific performance of
agreement of sale in respect of Survey No.319 to an extent of Ac.3-00 guntas or
its sub-survey Nos.319/a, 319/e, 319/ee, 319/u and 319/ru and ghut Survey
No.335 to an extent of Ac.2-00 guntas or its sub-survey No.335/e to an extent of
Ac.2-00 guntas, total admeasuring 5-00 guntas as described in the schedule of
land annexed to the plaint situated at Mangalpally Village, Ibrahimpatnam
Mandal, Rangareddy District. On contest, the said suit was decreed on
16.04.2012. She further submitted that the respondent - appellant preferred an
appeal and while her counsel was preparing for arguments in the appeal, the
petitioner - respondent noticed that at the time of filing the original suit
O.S.No.3 of 2002 on the file of the learned Junior Civil Judge, Ibrahimpatnam,
due to oversight i.e. typographical error, one of the suit sub-survey No.391/a
along with other sub-survey numbers is shown against ghut Survey No.319.
The petitioner never intended to file the suit against the respondent - appellant
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in respect of Survey No.319/a. Actually, the suit schedule land bearing ghut
survey No.319 to an extent of Ac.3-00 guntas was covered by sub-survey
Nos.319/e, 319/ee, 319/u, 319/uu, 319/ru only in total to an extent of Ac.3-00
guntas situated at Mangalpally Village, Ibrahimpatnam Mandal, Rangareddy
District. To avoid further complications, the petitioner was abandoning her
claim against sub-survey No.319/a, which was shown as one of the sub-survey
Nos. against the ghut survey No.319.
9. The contention of the respondents was that after abandoning the sub-
survey No.319/a, the boundaries of the entire suit schedule property would be
changed and that in the agreement of sale, there was no whisper about the sub-
survey numbers, there was no explanation as to how the said sub-survey
numbers came into existence and if such abandonment was allowed, the decree
passed by the court below would stand modified and the same would lead to
multiplicity of litigation and that the application was filed after a lapse of 14
years, as such, not maintainable.
10. The lower Appellate Court on considering the contentions of both the
learned counsel and considering the provision of Order XXIII Rule 1, observed
that, the plaintiff being the dominus litis could withdraw the suit or give up part
or whole of the claim and the delay could not be a ground to reject the claim.
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However, considering the delay in filing the application, imposed cost of
Rs.2,000/- on the plaintiff payable to the respondent - defendant (appellant).
11. This Court does not find any merit in the contention of the learned
counsel for the revision petitioner that the boundaries of the suit schedule
property would be changed by abandoning the claim by the respondent -
plaintiff. The contention of the respondent - plaintiff was that the suit schedule
property to an extent of Ac.3-00 guntas in Survey No.319 was only covered by
sub-survey Nos.319/e, 319/ee, 319/u, 319/uu and 319/ru, but not by 319/a and
the same was mentioned by mistake. The contention of the revision petitioner
also was that no sub-survey number was mentioned in the agreement of sale.
As such, the same would not alter the boundaries or the judgment and decree in
any manner.
12. As Order XXIII Rule1 CPC provides that the plaintiff could abandon the
suit or part of the claim at any time after institution of the suit and the appeal is
also nothing but an extension of the suit, this Court considers that the order
passed by the lower Appellate Court is within its jurisdiction and no error was
committed by the lower Appellate Court in passing the impugned order.
13. In the result, the Civil Revision Petition is dismissed confirming the order
passed by the learned III Additional District & Sessions Judge, Rangareddy
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District at L.B.Nagar, Hyderabad in I.A.No.134 of 2016 in A.S.No.161 of 2012
dated 26.07.2021. No order as to costs.
As a sequel, miscellaneous applications pending in this petition, if any,
shall stand closed.
____________________
Dr. G.RADHA RANI, J
Date: 10th April, 2025
Nsk
