V. Vijay Bhasker Reddy vs S. Ravinder Singh And 4 Others

This Civil Revision Petition is filed under Article 227 of the Constitution of India assailing the order dated 29.01.2019 in IA No.3130 of 2018 in OS No.669 of 2012 on the file of the III Additional Chief Judge, City Civil Court, Hyderabad.

The application in IA No.3130 of 2018 was filed under Order-1, Rule-10 (2) read with Section 151 of the Civil Procedure Code (for short ‘CPC’) and also consequential amendment under Rule 28 of the Civil Rules of Practice. The Court below is allowed the said IA and directed for transposing the petitioners/defendants 1 and 3 to 5 as plaintiffs in OS No.669 of 2012.

Assailing the said orders, this Civil Revision Petition is filed by the revision petitioner/second defendant on the following grounds:

a) that the Court below erred in allowing the application under Order-1, Rule-10 (2) CPC transposing them as plaintiffs in view of the death of the first defendant.

b) The Court below has failed to appreciate that the plaintiff, who filed the suit, has already filed a Memo dated 11.08.2015 for withdrawal of the suit. Accordingly, the Court below ought not to have allowed the application for transposing the respondents 1 and 3 to 5 as plaintiffs, then the original plaintiff/first respondent has already withdrawn the suit;

c) that the Court below ought not to have entertained the application of the legal representatives forcing the first respondent to contest the suit when he has not interested for such continuation of the suit filed by him;

d) that the Court below has miserably failed to appreciate that the injunction petition filed by S. Gurvinder Singh has already dismissed and the CMA and CRPs were also dismissed with a clear observation that S. Gurvinder and respondents 3 to 5 cannot seek any relief, that too in a partition suit filed by first respondent; and

e) that the docket proceedings of the Court below clearly demonstrates that the suit was dismissed on 12.10.2018 and without any application it cannot be restored on the same day, posting the matter to 25.10.2018. In fact, if the suit is dismissed on 12.10.2018 as per the orders pronounced in the open court, there is no scope for the Court below to observe in the proceedings that the suit was dismissed on 25.10.2018, if no steps taken by the defendants and accordingly, prayed to set aside the order dated 29.01.2019 passed in IA No.3130 of 2018 in OS No.669 of 2012 on the file of the learned III Additional Chief Judge, City Civil Court, Hyderabad.

Heard learned counsel for the petitioner and the respondents. Perused the material placed on record. For the sake of convenience, the parties hereinafter referred to as plaintiff and defendants as arrayed in the original suit.

The plaintiff has filed the original suit No.669 of 2012 for partition of suit schedule property - premises bearing No.8-2-120/76/10/RG (Ground Floor) and premises No.8-2-120/76/10/RG/A (First Floor), total admeasuring 795 square yards situated at Road No.2, Banjara Hills, Hyderabad with precise boundaries as mentioned in the schedule of property.

Thus, the original suit is filed by the plaintiff against S. Gurvinder Singh, the husband of defendant No.3 and the father of defendants 4 & 5. Late Gurvinder Singh has also filed a detailed written statement in the original suit. After the death of late Gurvinder Singh (defendant No.1), the defendants 3 to 5 were brought on record as legal representatives, being the wife and sons.

It appears that during pendency of the suit in OS No.669 of 2012, the plaintiff S. Ravinder Singh has sold the suit schedule property in favour of the second defendant, V. Vijay Bhaskar Reddy, as per the sale deed document No.282 of 2014, dated 14.07.2014. When the legal heirs of late Gurvinder Singh, the first defendant have come to know about the sale deed and when the second defendant started interference with the possession of defendants 1 and 3 to 5, they have filed a suit OS No.1578 of 2014 against the second defendant herein for perpetual injunction.

In the meanwhile, the defendants 1 and 3 to 5 also filed their transfer OP No.2545 of 2017 before the learned Chief Judge, City Civil Court, Hyderabad and it was allowed transferring OS No.1578 of 2014 and OS No.2870 of 2004, which were renumbered as OS No.500 of 2016 and OS No.502 of 2016 for conducting joint trial along with comprehensive partition suit OS No.669 of 2012. At that stage, the first defendant- S. Gurvinder Singh died on 09.03.2017. The plaintiff did not come forward to lead his evidence in the comprehensive partition suit OS No.669 of 2012. From the averments made in the counter filed before the Court below, on behalf of defendant No.2, clearly shows that the plaintiff has filed a Memo seeking withdrawal of the original suit and as per the proceedings dated 12.10.2018 there was no representation on behalf of plaintiff, chief affidavit of the plaintiff is not filed and the suit will be dismissed on 25.10.2018 if no steps are taken by the defendant and accordingly the matter was adjourned to 25.10.2018. It appears, there are typographical mistakes in the proceedings dated 12.10.2018 and conditional order was passed to the effect that in the event of plaintiff not taking any steps, such as filing of evidence affidavit, on 25.10.2018 the suit stands dismissed.

In the meanwhile, the defendants 3 to 5 have filed the present application seeking transposition from the defendants 1 (died) and 3 to 5 to plaintiffs as the sole plaintiff is not evincing any interest having sold the suit schedule property to the second defendant, vide registered sale document No.282 of 2014. Whereas, the specific contention of the second defendant/revision petitioner is that when once the plaintiff has filed an application for withdrawal of the original suit on 11.08.2015 itself after execution of the registered sale deed in his favour, the question of reopening the suit on record does not arise, the defendant No.1 (died) represented by defendants 3 to 5 are not entitled for transposition as plaintiffs as they do not have any interest in respect of the suit schedule property, the injunction petition filed by them is dismissed, CMA and CRP were also dismissed. The Court below without looking into the merits of the case, simply mentioned as no representation for the respondents 1 & 2, counter not filed and accordingly allowed the application with an observation that respondents 1 & 2 have no objection at all, which is erroneous and such order impugned is liable to be set aside.

It is true that the Court below has passed a cryptic order without assigning any reasons, but OS No.669 of 2012 is a comprehensive suit for partition filed by the plaintiff against the first defendant. During pendency of the suit, the plaintiff has sold the suit schedule property in favour of the defendant No.2 under a registered sale deed document No.282 of 2014, accordingly he was brought on record as defendant No.2. While the things stood thus, the plaintiff failed to adduce any evidence, first defendant, Gurvinder Singh died on 09.03.2017, his wife and sons being the defendants 3 to 5 were brought on record as his legal representatives.

The law is well-settled that in a suit for partition every party has a right to contest the suit as plaintiff in respect of their undivided share in the suit schedule property. It is the plaintiff-Ravinder Singh, who made Gurvinder Singh as defendant and filed a suit for partition. During pendency of the suit on 09.07.2017 the said Gurvinder Singh (defendant No.1) died. During the life time of first defendant, Gurvinder Singh itself, it appears, the plaintiff has sold the suit schedule property to the second defendant and he was brought on record. Accordingly, the first defendant has filed OS No.1578 of 2014 for perpetual injunction against the second defendant herein. It appears, the Transfer OP has also filed for transfer of OS No.1578 of 2014 to be tried along with the comprehensive suit OS No.669 of 2012 and that application was allowed and the suit OS No.1578 of 2014 was transferred to the Court of III Additional Chief Judge, City Civil Court, Hyderabad and renumbered as OS No.500 of 2016. There was another suit OS No.2870 of 2014 was also renumbered as OS No.502 of 2016. Both the suits were directed to be tried along with OS No.669 of 2012, which is a suit for partition. As the plaintiff in OS No.669 of 2012 failed to pursue the matter and failed to adduce evidence, the defendant No.1 (died) and 3 to 5 have sought for transposition as plaintiffs.

In this civil revision petition, the first respondent, who is the plaintiff in OS No.669 of 2012, has filed a detailed counter making various allegations stating that he has already withdrawn OS No.669 of 2012 by filing an application under Order-23, Rule-1 CPC and he cannot be forced to contest the suit. Similarly, the defendants 3 to 5, who are the wife and sons of deceased-Gurvinder Singh (defendant No.1), have filed a detailed counter asserting their claim in respect of 100 square yards of land in the suit schedule property as per the memorandum of understanding between the parties.

Be that as it may, OS No.669 of 2012 is a comprehensive suit for partition. Undisputedly, during pendency of the said suit, the plaintiff therein has sold the suit schedule property in favour of the second defendant, vide registered sale deed document No.282 of 2014, dated 14.07.2014, thereafter late Gurvinder Singh (defendant No.1) has filed OS No.1578 of 2014 on the file of the learned IV Additional Senior Civil Judge, subsequently, the same was transferred to the Court of III Additional Chief Judge, City Civil Court, Hyderabad and renumbered as OS No.502 of 2016. When the sole plaintiff in OS No.669 of 2012 intentionally failed to adduce evidence, the defendants 3 to 5 being the legal representatives of the first defendant have filed an application seeking transposition of their status as plaintiffs in the original suit No.669 of 2012, which is a partition suit and the Court below as per the orders dated 29.01.2019 transposed them as plaintiffs.

In a suit for partition, as stated above, every party has a right to continue the proceedings, in view of the fact that the plaintiff has sold the suit schedule property in favour of the second defendant, he was not coming forward to adduce evidence as per the proceedings dated 12.10.2018, the suit was conditionally adjourned to 25.10.2018 with a direction that if the plaintiff fails to adduce evidence on 25.10.2018, the suit stands dismissed. Accordingly, on that day the present application is filed by the defendants 1 and 3 to 5 being the legal representatives of first defendant for transposition and accordingly, it was ordered.

It is pertinent to mention that the defendants 3 to 5 have also filed OS No.1578 of 2014 and it was transferred to III Additional Chief Judge, City Civil Court, Hyderabad and renumbered as OS No.502 of 2016 to be tried along with OS No.669 of 2012, a suit for partition. Therefore, I do not find any irregularity in the order impugned, though no such reasons are assigned, the Court below has arrived at a right conclusion and transposed the defendants 3 to 5 being the legal representatives of first defendant as plaintiffs, since the sole plaintiff having sold the suit schedule property to the second defendant failed to pursue the comprehensive partition suit. Therefore, I do not find any irregularity in the order impugned and it is sustainable.

In the result, the Civil Revision Petition is dismissed confirming the order impugned dated 29.01.2019 in IA No.3130 of 2018 in OS No.669 of 2012 on the file of the III Additional Chief Judge, City Civil Court, Hyderabad. In the circumstances of the case, there shall be no order as to costs. However, considering the fact that the original suit is filed in the year 2012 for partition, and another suit is filed by the defendants 3 to 5 for perpetual injunction, it was renumbered as OS No.502 of 2016, the Court below shall expedite the disposal of both the suits at the earliest possible and shall make every endeavour for disposal of these suits within eight months from the date of receipt of a copy of this order. Both the parties to the suit shall cooperate with the trial Court for expeditious disposal of both the suits, as directed.

As a sequel, miscellaneous applications, if any pending, shall stand closed.