Bodduna Sathaiah vs Mateti Satyamma

This Civil Revision Petition is filed under Article 227 of the Constitution of India by the petitioner/defendant assailing the legality and validity of the order dated 10.06.2022 in IA No.138 of 2019 in OS No.21 of 2016 on the file of the Principal Junior Civil Judge at Mancherial.

Notice served on the respondent/plaintiff and she remained absent without any representation.

Heard the learned counsel for the revision petitioner/ defendant. Perused the material available on record. The submissions made by the learned counsel for the revision petitioner have received due consideration of this Court.

For the sake of convenience, the parties are hereinafter referred to as plaintiff and defendant as arrayed in the original suit.

The defendant has filed this revision petition assailing the order dated 10.06.2022 in IA No.138 of 2019 which was filed by the respondent/plaintiff under Order XIV, Rule 5 read with Section 151 of the Civil Procedure Code, 1908 (for short ‘CPC’) to strike out the following additional issues:

1) Whether the plaintiff is ready and willing to perform her obligation covered under the agreements of sale dated 19.02.1991 and 10.05.1993? and

2). Whether the non-issuance of notice as required under the law is fatal to the case of the plaintiff?

The learned Principal Junior Civil Judge, Mancherial having heard on both sides allowed the application striking out additional issue No.1 holding that non-issuance of notice is fatal to the suit in which case the Court is of the opinion that the question of non-issuance of notice is a dispute between the parties and it is to be formulated as an issue.

Feeling aggrieved by the said order dated 10.06.2022, the present revision petition is filed alleging that the order impugned is contrary to law, facts and weight of evidence; the trial Court has erred in allowing IA No.138 of 2019 striking out the issues which were added as per the order dated 03.01.2019 in IA No.791 of 2017; the trial Court has failed to appreciate the passing of such order would amount to be in reviewing the order of that Court, dated 03.01.2019; and before leading evidence, there was no necessity to strike out the issues and prayed to set aside the order dated 10.06.2022 in IA No.138 of 2019 in OS No.21 of 2016.

The plaintiff has filed the original suit for specific performance of agreement of sale dated 19.02.1991 in respect of house plot admeasuring Ac.0.02 guntas in Survey No.430 of Garmilla Shivar and agreement of sale dated 10.05.1993 in respect of house plot admeasuring Ac.0.01 guntas in Survey No.430 situated at Garmilla Shivar. In the original suit, the defendant has filed the written statement, issues were settled, thereafter the defendant has filed an application, vide IA No.791 of 2017 under Order XIV Rule 1 read with Section 151 of CPC for recasting the issues. The trial Court, as per the order dated 0301.2019 has allowed the said IA and the following additional issues were framed:

1) Whether the plaintiff is ready and willing to perform her obligation covered under the agreements of sale dated 19.02.1991 and 10.05.1993?

2). Whether the non-issuance of notice as required under the law is fatal to the case of the plaintiff?

Thereafter, the suit was adjourned for trial. While things stood thus, instead of proceeding with the trial, the plaintiff has filed another application in I.A.No.138 of 2019 under Order XIV Rule 5 read with Section 151of CPC to strike out the above said additional issues which were formulated pursuant to the order dated 03.01.2019 in IA No.791 of 2017. The trial Court has partly allowed the said application and struck off the additional issue No.1. Feeling aggrieved by the said orders dated 10.06.2022, the present revision is filed.

Be it stated that the trial Court has discussed its earlier order dated 03.01.2019 in IA No.791 of 2017 and arrived at a conclusion that as per the pleadings it is evident that both the parties are accepting the payment of 25,500/- towards total consideration under two agreements of sales. However, the defendant has averred that he has paid back the said amount to the plaintiff and both the agreements of sales were cancelled, which is disputed by the plaintiff. Accordingly, the issues already framed are sufficient, the parties are aware of dispute between them, there is no need to frame additional issue No.1, hence, it was struck off, whereas second issue was retained.

Order XIV of CPC deal with settlement of issues and determination of suit on issues of law or on issues agreed upon. Rule-5 of Order-XIV deals with the power of the Court to amend and strike out issues. It may be stated that earlier on the request of the defendant as per the order dated 03.01.2019 in IA No.791 of 2017, the trial Court has framed the additional issues. But again as per the orders in IA No.138 of 2019, dated 10.06.2022, the additional issue No.1 was struck off. The reason assigned by the trial Court is that both the parties are accepted as to the payment of entire sale consideration. However, it is the case of the defendant that he has repaid the sale consideration to the plaintiff and both the agreements of sale were cancelled, which is disputed by the plaintiff. Thus, the existing issues are sufficient for the purpose to lead evidence on their respective sides and additional issue No.1 is not required, accordingly, it was struck off.

On a perusal of the averments of the counter filed by the plaintiff in IA No.791 of 2017 and the petition averments in IA No.138 of 2019, there is no change in the circumstances. On the very same allegations earlier the trial Court has formulated two additional issues at the instance of defendant. However, again at the instance of plaintiff, the additional issue No.1 was struck off, which amounts to review of its own order by the trial Court. It is not the case of the plaintiff that there are subsequent developments after passing the order dated 03.01.2019 in IA No.791 of 2017 and that the plaintiff has paid the remaining sale consideration. Be it stated that, the trial Court has clearly observed that as per the pleadings, the total sale consideration is paid, but the defendant has been contending that he has returned the money received from the plaintiff and the agreements of sale were cancelled. Therefore, in the above fact situation, the trial Court has erred in allowing the application in IA No.138 of 2019 striking out the additional issue No.1.

The only ground for striking out the additional issue No.1 appears to be is the change of the Presiding Officer, which is not permissible under law. Once the Court has taken a view for framing the additional issues as per the orders dated 03.01.2019, without there being any developments subsequent thereto, passing of such orders dated 10.06.2022 is absolutely unwarranted. That too, when the order dated 03.01.2019 in IA No.791 of 2017 was not challenged by the aggrieved party before the appropriate forum, it would amount the trial Court indirectly reviewing its own order without there being any mistake apparent on the face of the record and without there being any changes in the circumstances, as such the order impugned is liable to be set aside by restoring the earlier order dated 03.01.2019.

In the result, the Civil Revision Petition is allowed and the impugned order dated 10.06.2022 in IA No.138 of 2019 in OS No.21 of 2016 on the file of the Principal Junior Civil Judge, Mancherial, is hereby set aside. Consequently, the order dated 03.01.2019 in IA No.791 of 2017 in OS No.21 of 2016 is restored.

The original suit is filed in the year 2016, pleadings were completed by June, 2016 itself and issues were settled long back, therefore, the trial Court is hereby directed to expedite the disposal of the original suit itself and shall make every endeavour to dispose of the same within six months from the date of receipt of copy of this order. Both the parties shall cooperate with the trial Court for expeditious disposal of the original suit as directed. However, in the facts and circumstances of the case, there shall be no order as to costs.

As a sequel, interlocutory applications, if any pending in this revision petition, shall stand closed.