CIVIL COURT JURISDICTION WHETHER BARRED UNDER SEC. 64(3) OF CENTRAL CHIT FUND ACT 1982 = if the chit was registered/commenced prior to the commencement of the Central Act, the Civil Court would have jurisdiction to entertain a suit. In the instant case, the chit commenced as could be seen from the byelaws on 28.06.2004, but the Central Act came into force on 15.09.2008.; DECREE HOLDER CAN EXECUTE THE DECREE AGAINST ALL JDRS AT ONE AND SAME TIME = It is required to be mentioned that if the decree could not be satisfied by the mere attachment of the salary of JDr No.1, the executing Court, at the instance of the Decree Holder, can proceed against the other judgment Debtors also.

published in http://judis.nic.in/judis_andhra/filename=9906

THE HON'BLE SRI JUSTICE R.KANTHA RAO      

CIVIL REVISION PETITION No. 1477 OF 2013    

09.04.2013

J. Rama Krishna                                 .. Petitioner    
               
And

M/s Shriram Chits Pvt. Ltd., rep. by its  Manager, Gudur Branch, Nellore
District and 5 others.                          .. Respondents

Counsel for the petitioner: Sri Sreenivasa Rao Velivela

Counsel for Respondent No.1:  Sri K. Maheswara Rao
Counsel for Respondent Nos.2 to 6  :   None appeared.

<Gist :

>Head Note :

?Citations:

O R D E R :

This Civil Revision Petition is filed under Article 227 of the Constitution of
India to set aside the docket order dated 12.07.2012 passed by the Senior Civil
Judge, Gudur in E.P. No. 66 of 2012 in O.S No.54 of 2009.

2.  Heard the learned counsel appearing for the revision petitioner-JDr No.5 and
the learned counsel for the first respondent-Decree Holder.
       
3.  The first respondent/decree holder obtained a money decree for an amount of
Rs.1,51,477/- and the amount allegedly became due in respect of chit
transaction.
The plaintiff is a Chit Fund Company.  
The decree was passed
directing the defendants to pay the decretal amount.
Thereafter, the decree
holder filed E.P. No.66 of 2012 to execute the money decree on the ground that
the amount due under the decree was not paid.  
The executing Court, in
E.P.No.66 of 2012, passed the following order on 12.07.2012:
" Issue notice to JDr through Court and R.P. 
Meanwhile attach the salary of J.Dr
subject to Section 60 C.P.C."

The said order is under challenge in this revision petition.
4.  One of the contentions urged on behalf of the revision petitioner-JDr No.5
is that
in view of the amendment to the Chit Fund Act,
the execution petition
before the Civil Court is not maintainable and therefore, the order is liable to
be set aside. 
 It is also contended that JDr.No.1, who was the principal
borrower, appeared before the Court and submitted to the Court that she has no
objection to attach her salary instead of the salary of the revision
petitioner/JDr.No.5.
5.  On the other hand, the learned counsel appearing for the first respondent-
D.Hr submits that 
Section 90 of the Chit Funds Act, 1982 (herein after referred to as the "Central Act")  repealing the A.P.Chit Funds Act (A.P. Act 9/1971) provides that 
notwithstanding such repeal, the acts mentioned in sub section (1) shall continue to apply to chits in operation from the date of commencement of this Act in the same manner as they applied to such chits before such commencement.   

6.  Section 85(a) of the Central Act lays down that nothing in this Act shall apply in respect of any chit started before commencement of this Act.

7. Section 64 of the Central Act lays down that notwithstanding anything contained in any other law for the time being in force, any dispute touching the management of a chit business shall be referred by any of the parties to the dispute, to the Registrar for arbitration if each party thereto is one or the other of the following, namely :
        a).     a foreman, a prized subscriber or a non-prized subscriber, including a defaulting subscriber, past subscriber or a person claiming through a subscriber, or a deceased subscriber to a chit;
      b). a surety of a subscriber, past subscriber, or a
deceased    subscriber.

8.  Sub section 3 of Section 64 of the Central Act states that no Civil Court shall have jurisdiction to entertain any suit or other proceedings in respect of any dispute referred to in sub-section(1).
9.  Referring to the aforesaid provisions, the learned counsel appearing for the
petitioner would argue that the suit filed before the trial Court which is Civil
Court itself is not maintainable and the decree passed therein is therefore in-
executable.
10.  A combined reading of the aforesaid provisions would obviously indicate
that if the chit was registered/commenced prior to the commencement of the Central Act, the Civil Court would have jurisdiction to entertain a suit.  
In
the instant case, the chit commenced as could be seen from the byelaws on 28.06.2004, but the Central Act came into force on 15.09.2008.
11.  A perusal of the cause of action para in the plaint copy filed by the first
respondent at the hearing of the revision petition shows that the cause of
action for the suit arose on 31.01.2005, when the first defendant joined as
subscriber in chit group GNRL-5/13 and executed a chit agreement and on
14.12.2005, when the first defendant became a successful prized bidder and on
31.03.2006, when the first defendant received the amount under a cash voucher.
As such, the cause of action of the suit evidently had arisen long prior to the
commencement of the Central Act.
12.  Therefore, I see no substance in the contention urged by the learned
counsel appearing for the revision petitioner that the learned Senior Civil
Judge, Gudur, has no jurisdiction to entertain the suit and decree passed
therein is null and void.
13.  As regards the other contention that the principal borrower stated no
objection before the executing Court to attach her salary instead of the
revision petitioner/JDr No.5, there is no material available on record showing
any such undertaking.
 It is required to be mentioned that if the decree could
not be satisfied by the mere attachment of the salary of JDr No.1, the executing Court, at the instance of the Decree Holder, can proceed against the other judgment Debtors also.
14.  Therefore,  I see no illegality in the order passed by the learned
executing Court attaching the salary of JDr No.5 subject to Section 60 C.P.C.
15.  For the foregoing reasons, I do not see any merits in the revision petition
and the same is dismissed at the stage of admission.  Miscellaneous petitions,
if any, pending shall stand closed.

_________________________  
JUSTICE R. KANTHA RAO    
09/04/2013

the damages/compensation cannot be claimed against the State. ? =Whether the death of son of plaintiff was due to want of care, negligence and callousness of defendants as pleaded by plaintiffs?- Whether there is any bar in law, prohibiting award of damages, on account of the death of a soldier or seaman, if it is proved that the death occurred under mysterious circumstances? = if the negligence or want of proper care on the part of State is proved, the tortious liability to pay damages/compensation would arise and the same needs to be treated as constitutional tort. No decided case is cited as to how a State can claim immunity from the obligation to compensate the dependants of its employee, if it is proved that the death occurred on account of its negligence and lack of proper care. The point is answered accordingly.

REPORTED/ PUBLISHED http://judis.nic.in/judis_andhra/filename=9823

THE HON'BLE SRI JUSTICE L.NARASIMHA REDDY AND THE HON'BLE SRI JUSTICE K.G.SHANKAR             

Appeal Suit No.3504 of 2004
      
04.04.2013

Union of India and another.

Ashok Narayan Paldhe and others. 

Counsel for appellants:    Sri Ponnam Ashok Goud

Counsel for Respondents :  Sri Sunil Ganu

<GIST:

>HEAD NOTE:   

?Cases referred
2004 (1) ALD 19

JUDGMENT: (Per the Hon'ble Sri Justice L.Narasimha Reddy) 

        This appeal is filed against the judgment and decree, dated 12.04.2004,
passed by the Court of II Additional Senior Civil Judge, Kakinada, in  O.S.No.90
of 1997.

Respondents 1 and 2 filed the suit and the appellants figured as defendants 3
and 2 therein.  While the 3rd respondent figured as
1st defendant, respondents 4 to 8 were arrayed as defendants 4 to 8.

For the sake of convenience, the parties herein are referred to as arrayed in
the suit.

Plaintiffs are the parents of one Sri Amar Ashok Paldhe.  He was recruited as
Seaman-I, Clearance Diver No.III, and in the year 1993, he was in the Eastern
Naval Command Clearance Diving Scheme.  On 21.09.1993, Paldhe was in an   
operational exercise at Kakinada Coast.  As part of the exercise, he jumped from
the Helicopter into the sea and he was supposed to reach the shore by swimming.
However, after he jumped into the sea, he did not reach the shore and his dead
body was found two days thereafter i.e. on 23.09.1993.
The plaintiffs were given the intimation at a later point of time.  The post-
mortem was conducted on the body.  The cause of the death was not mentioned. 
The report revealed that there are anti-mortem injuries over the dead body of
the deceased.  The Board of Enquiry was conducted and a finding was given to the
effect that the cause of the death was mentioned as "due to accident".  Alleging
that the defendants did not furnish the relevant information, the plaintiffs
filed W.P.No.316 of 1995 before the Bombay High Court for certain directions.

By mentioning all the facts, referred to above, the plaintiffs filed the suit
claiming compensation of Rs.15 lakhs from the defendants.  They pleaded that the
death of the deceased occurred, on account of negligence and collusion, on the
part of the defendants, and under mysterious circumstances.

A written statement was filed by defendants 1 and 2.  According to them, Paldhe
was put on regular exercise of diving and though he surfaced soon after jumping
from the Helicopter, he did not surface thereafter.  It was pleaded that the
death might have occurred due to failure of the deceased to release the weights
fixed to the belt.
It was also pleaded that the plaintiffs were extended all the benefits, on
account of the death of their son and that there are no merits in the suit.  The
grounds of limitation and want of jurisdiction were also pleaded.

The trial Court decreed the suit for a sum of Rs.10 lakhs.  Defendants 3 and 4
filed this appeal.

Sri Ponnam Ashok Goud, learned Assistant Solicitor General, submits that though
specific plea was raised in the written statement that the suit was barred by
limitation, the trial Court did not frame any issue, nor did it record the
findings thereon.  He contends that the suit was filed after expiry of
limitation, and it ought to have been dismissed on that ground.  It is further
pleaded that the death of the deceased was not on account of any negligence on
the part of the defendants, and the job of the deceased was risky, by its very
nature.  According to him, every possible care was taken to avoid accidents.
Learned counsel further submits that though search was undertaken to recover the
body, the body could not be recovered for two days, since the accident occurred
in the sea.  He contends that once the benefits provided for under the relevant
regulations were extended, the plaintiffs are not entitled to recover any
damages.  It is also pleaded that the plaintiffs wanted to have access to
privileged information and denial of the same was treated as though certain
facts were withheld from them.  He submits that the decree passed by the trial
Court cannot be sustained in law.

Sri Sunil Ganu, learned counsel for the plaintiffs, on the other hand, submits
that there are several suspicious circumstances surrounding the death of the
deceased, and every effort was made by the defendants to conceal the
information.  He contends that the reason mentioned in the post-mortem as to the
cause of death was changed and everything was left open.  Learned counsel
submits that even though Diatom test was directed to be conducted, gross
negligence was exhibited for a period of one year, and in the meanwhile, the
Board of Enquiry conducted and concluded.  He submits that the very fact that
the anti-mortem injuries were found on the body of the deceased is sufficient to
suspect mischief on the part of the officials, who were associated with the
exercise.  Learned counsel submits that in the name of official secrecy, the
relevant information was withheld and the plaintiffs were not even permitted to
meet the other divers.

On the question of limitation, learned counsel submits that the suit was filed
only after the plaintiffs were convinced that the respondents are not furnishing
information and the limitation cannot be reckoned from the date of death of the
deceased.  It is also pleaded that there is no bar against grant of damages, in
case there was negligence on the part of the Government and its Departments.

The plaintiffs prayed for a decree for damages alleging gross negligence and
highhandedness on the part of the defendants, in relation to the death of their
son.

On the basis of the pleadings before it, the trial Court framed the following
issues for its consideration:




i) "Whether the present suit for the relief of compensation as claimed by the
plaintiff is not maintainable?

ii) Whether the death of son of plaintiff was due to want of care, negligence
and callousness of defendants as pleaded by plaintiffs?

iii) Whether the plaintiffs are entitled to suit amount with interest?

iv) To what relief?"
      
The deceased-1st plaintiff deposed as PW.1 and he filed Exs.A.1 to A.25.  On
behalf of the defendants, DWs.1 and 2 were examined and Ex.B.1-a newspaper 
cutting was filed.  No other evidence was adduced by them.  All the issues were
answered in favour of the plaintiffs.

In view of the arguments advanced before this Court, the following points arise
for consideration:

i) Whether the suit filed by the respondents is barred by limitation?

ii) Whether there existed any suspicious and mysterious circumstances
surrounding the death of Ashok Anand Paldhe?

iii) Whether there is any bar in law, prohibiting award of damages, on account
of the death of a soldier or seaman, if it is proved that the death occurred
under mysterious circumstances? 

The first point, as to limitation, needs to be discussed at the threshold.

The death of the deceased occurred on 21.09.1993. The suit was filed in the year
1997.  If it is a case of recovery of money on the basis of a cause of action,
that occurred in the year 1993, the suit filed four years thereafter, would
naturally be barred by limitation.  In the instant case, sequence of events
presents an unfortunate state of affairs.  The information as to the death of
their son was given to the plaintiffs through a telegram.  However, everything
was kept outside their reach and hardly an information as to cause of death was
furnished.  The correspondence went on till November, 1993.  They were not even
permitted to meet any official, much less the fellow divers.  On 18.11.1993, a
letter was addressed to the plaintiffs by the officials of the Indian Navy, that
a Board of Enquiry will be constituted.

In the meanwhile, though post-mortem was conducted, the cause of death was not
mentioned.  A test known as 'Diatom' was directed to be conducted. That took
more than one year, to be completed.  On 01.06.1994, the plaintiffs were
informed by the Director of Personnel Services, New Delhi, that the report of
the Board of Enquiry cannot be furnished to them.  The plaintiffs continued
their efforts till September, 1994.  It was only in September, 1994 that they
could get some information pertaining to the death of Paldhe, such as that the
Helicopter was at a considerable height and not at 15 feet from the sea level,
the opinion formed by defendant No.6 as to the cause of death was wrong and that
defendant No.6 was not even censured for his negligence.

After getting this much of information, the plaintiffs filed the suit.  The date
of death of the deceased can not at all constitute the starting point for
calculating the period.  Obviously, for this reason, a halfhearted plea was
raised in the written statement and the defendants did not insist on the framing
of any issue on the question of limitation.  Learned counsel for defendants 3
and 4 is not able to demonstrate that the suit is barred by limitation.  The
point is accordingly answered.

        Coming to the second point:  In his deposition as PW.1, the 1st plaintiff
reiterated the contents of the plaint.  He has also filed voluminous documentary
evidence, which included the copies of reports and other letters furnished by
the defendants.  The statements of some of the officials that were recorded
during the course of enquiry, such as Exs.A.4 to A.12 were also filed.  The
post-mortem certificate was filed as Ex.A.5.

        So far as the evidence of the defendants is concerned, it just comprised
of a newspaper cutting and nothing more.

        The life of a seaman entrusted with the function of diving or for that
matter, any person, who joins the armed forces, is vulnerable to risks.  If the
death occurs in the course of any armed conflict, or military operations, no
person would accuse the State or the concerned authorities, of any negligence.
Where, however, the death occurs in peace time and there are suspicious
circumstances, surrounding the incident, a close scrutiny becomes necessary.


        The record, in the instant case, discloses that Ashok Anand Paldhe was a
well trained and perfect diver.  
Officials of the Navy themselves certified him as a 'cut above the other divers'. 
 It was mentioned that he used to demonstrate
the diving from a height of 10 metres even in swimming pools. 
 From the written
statement of defendants 1 and 2, it is evident that the two divers who jumped
from helicopter before Paldhe, faltered and they had to be rescued by the team.

It was mentioned that soon after jumping from the Helicopter, Paldhe surfaced
and has shown his thumb up and thereafter went into the water, but did not
return.  
If any accident has occurred, the rescue team ought to have saved him.

The version put forward by the defendants at various points of time, was not
consistent. While at one place, it was stated that he surfaced perfectly soon
after diving, at another place, it was mentioned that it was not visible on
account of the turbulence caused by the Helicopter.

        Be that as it may, the post-mortem report revealed that the following two
anti-mortem injuries were found on the body of Paldhe:


        "i)  a lacerated injury over the left axilla measuring 10x60 mm x 3 cm
edges are irregular and bruised.  In its depth muscles, blood vessels and nerves
are exposed.  Tiny ante mortem blood clots are seen at its depth.

        ii)  A circular wound seen over the inner aspect of left angle of the
mandible measuring 1.5 cm diameter with a depth of 3 cm edges are clean out."


        No effort was made to explain these injuries.  The plaintiffs were denied
access even to the other divers. Though the Board of Enquiry suspected the role
of some of the officials connected with the exercise, no action was taken
thereon.  The final opinion in the post-mortem as to cause of death was
deferred, awaiting the result of Diatom test.  The record reveals that the
Diatom test was delayed more than one year, just on account of failure to send
the sea water from the concerned area.  Even before the Diatom test result was
obtained, the Board of Enquiry was concluded.  The cumulative effect of all
these acts and omissions is that the death of some of the plaintiffs occurred
under suspicious and mysterious circumstances.  The point is answered in favour
of the plaintiffs.

        The last point is about the defences taken by the defendants that the damages/compensation cannot be claimed against the State. 
As a matter of fact,
the first issue was framed by the trial Court is about this. 
Identical question
arose before this Court in A.V.Janaki Amma v. Union of India1.  It was
categorically held that if the negligence or want of proper care on the part of
State is proved, the tortious liability to pay damages/compensation would arise
and the same needs to be treated as constitutional tort.  No decided case is
cited as to how a State can claim immunity from the obligation to compensate the
dependants of its employee, if it is proved that the death occurred on account
of its negligence and lack of proper care.  The point is answered accordingly.

We do not find any merits in the appeal and it is accordingly dismissed.
There shall be no order as to costs.

The miscellaneous petition filed in this appeal shall also stand disposed of.
____________________ 
L.NARASIMHA REDDY, J.   
_______________ 
K.G.SHANKAR, J. 
Dated:04.04.2013

SECOND MARRIAGE NOT A BAR IN ALLOWING SET ASIDE EXPARTE DIVORCE DECREE = Order - IX Rule 13 CPC with a prayer to set aside the ex parte decree OF DIVORCE. Since there was delay of 153 days in filing it, she filed I.A No.480 of 2006.= The very fact that the proceedings are pending in the Courts at Raipur and Visakhapatnam, discloses that the relationship was not cordial and the acts resorted to by the respondent in obtaining the ex parte decree and then immediately contacting second marriage can not at all be countenanced, much less the Court can put a seal of approval upon it. Though the status of the second marriage contacted by the respondent may be at a stake, it cannot outwit the gross injustice done to the petitioner. 6. Reliance is placed upon the judgment of the Rajasthan High Court in Surendra Kumar v. Kiran Devi1. It is difficult to treat that as a precedent for the proposition that whenever one of the spouses contacts second marriage, after obtaining a decree for divorce, the decree cannot be set aside thereafter. Further, in the instant case, the trial Court did not record any finding to the effect that the notice in the O.P. was served upon the petitioner. 7. Hence, the Civil Revision Petition is allowed and the delay of 153 days in filing the application to set aside the ex parte decree is condoned. Since the reasons that weigh with the Court for condonation of delay would hold good for setting aside the ex parte decree, the I.A. filed under Order - XXXIX Rule - 13 CPC was allowed.

REPORTED/PUBLISHED IN http://judis.nic.in/judis_andhra/filename=9784

HONOURABLE SRI JUSTICE L. NARASIMHA REDDY          

CIVIL REVISION PETITION No. 6034 OF 2010    

03-04-2013

Smt. Rachokonda Parvathi W/o. Venkata Subrahmanyam    

Rachakonda Venkata Subrahmanyam S/o.late R. Venkata Ramana.      

Counsel for the Petitioners: Sri  Ravi Cheemalapati

Counsel for the Respondent: Sri G. Ram Gopal

<Gist:

>Head Note:

?Cases referred
AIR 1997 Rajasthan 63

ORDER:
Petitioner is the wife of the respondent.  Their marriage took place on 30-10-
1996 at Visakhapatnam.  The respondent filed O.P. No.123 of 2000 in the Family
Court, Visakhapatnam for divorce.  The O.P. was decreed ex parte on 09-06-2000.
She filed an application under Order - IX Rule 13 CPC with a prayer to set aside
the ex parte decree.  Since there was delay of 153 days in filing it, she filed
I.A No.480 of 2006.  In the affidavit filed in support of the I.A., she stated
that her parents are from the State of Chattisgarh and when she joined the
respondent after marriage at Visakhapatnam, she was subjected to harassment
through demand of additional dowry.  Reference was made to Crime No.193 of 1998
filed under Section 498-A IPC in the Mahila Police Station, Raipur, Chattisgarh
and MJC No.539 of 2001 in the Family Court, Raipur, filed for maintenance.

2.  According to the petitioner, the respondent appeared before the Family
Court, Raipur on 04-10-2005 and at that time he stated about the ex parte decree
obtained by him.  The petitioner stated that she was not served with the notice
in O.P. filed by the respondent and that since she came to know about the
decree, she filed the applications.  The I.A. was opposed by the respondent.
The trial Court dismissed the I.A. through order, dated 06-11-2007.  Hence, this
revision.

3.  Heard Sri Ravi Cheemalapati, learned counsel for the petitioner and Sri G.
Ram Gopal, learned counsel for the respondent.
4.  While the petitioner hails from the State of Chattisgarh, the respondent is
from the State of Andhra Pradesh.  
They got married in the year 1996 at
Visakhapatnam.  Shortly, thereafter, disputes have arisen between them and the
petitioner had to go back to the house of her parents at Raipur.  
Cases under
Sections 498-A IPC and 124 Cr.P.C., were filed in the Courts in that State.
Almost at the same point of time, the respondent filed O.P. No.123 of 2000 in
the Family Court at Visakhapatnam.  
The petitioner came to know about the ex
parte decree passed in the O.P., filed by the respondent only when he appeared
before the Court in the year 2005, and stated about it.

5.  The delay of 153 days, in filing an application by a woman spouse to set
aside the ex parte decree passed against her, deserves to be condoned by any
standard, particularly, when she pleaded that she did not receive notice in the
O.P. and when she is residing in another State.
The only reason that weighed
with the trial Court in refusing to condone the delay was that the respondent
had married another woman.
That hardly constitutes any basis to defeat the rights of the petitioner.
The very fact that the proceedings are pending in the
Courts at Raipur and Visakhapatnam, discloses that the relationship was not cordial and the acts resorted to by the respondent in obtaining the ex parte decree and then immediately contacting second marriage can not at all be countenanced, much less the Court can put a seal of approval upon it.  
Though
the status of the second marriage contacted by the respondent may be at a stake,
it cannot outwit the gross injustice done to the petitioner.
6.  Reliance is placed upon the judgment of the Rajasthan High Court in Surendra
Kumar v. Kiran Devi1. 
It is difficult to treat that as a precedent for the
proposition that 
whenever one of the spouses contacts second marriage, after
obtaining a decree for divorce, the decree cannot be set aside thereafter.
Further, in the instant case, the trial Court did not record any finding to the effect that the notice in the O.P. was served upon the petitioner.

7.  Hence, the Civil Revision Petition is allowed and the delay of 153 days in
filing the application to set aside the ex parte decree is condoned.  Since the
reasons that weigh with the Court for condonation of delay would hold good for
setting aside the ex parte decree, the I.A. filed under Order - XXXIX Rule - 13
CPC was allowed.  As a result, the ex parte decree, dated 09-06-2000, in O.P.
No.123 of 2000 in the Family Court, Visakhapatnam, is set aside.  The trial
Court shall decide the matter on merits, after giving opportunity to both the
parties.  There shall be no order as to costs.

8.  The miscellaneous petitions filed in this revision shall also stand disposed
of.
____________________  
L. NARASIMHA REDDY, J    
April 03, 2013.

DECLARATION SUIT AND INJUNCTION - ARBITRATION ACT SEC. 8 = Or.39, Rule 1 & 2 C.P.C. PRIMA FAICE IS MAINTAINABLE = It is not in dispute that the plaintiffs are in possession and enjoyment of the property. As a matter of fact, the defendants wanted them to vacate the premises. Till the question raised in the suit is decided, they are entitled to be in possession, subject however to payment of rents.As a result, the applications filed under Order 39 Rules 1 and 2 C.P.C. in the respective suits are allowed and the respective defendants are restrained from interfering with the possession of the plaintiffs or evicting them from the suit schedule premises, subject, however, to the condition that the rent shall be paid with enhancement at 10% over and above what is provided for under the lease deeds from January 2013 onwards. The difference of rent, if any in, this behalf, shall be paid within four (4) weeks from today. The payment of extra amount shall be subject to the outcome of the suits. ;WHEN REFERRING ARBITRATION AROSE & WHEN SUIT IS MAINTAINABLE = Law is also fairly well settled to the effect that if the agreement governing relationship of the parties contains a clause providing for arbitration, a suit for seeking redressal in relation to any dispute covered by the agreement cannot be maintained and it stands barred by Section 8 of the Act. However, a keen observation of the clause extracted above reveals that it is only when the dispute or question of difference arises out of, or in respect of, those presents or as to the construction, meaning or the subject matter of the lease presents or as to any act done or omitted to be done under the lease or the rights, duties and liabilities of the respective parties, referable to the agreement, that the matter shall be referred to arbitration. - no application was filed by the defendants under Order 7 Rule 11 C.P.C. for rejection of the plaint. They did not make any counter claim in the suit nor did they file any suit for reference of the matter to arbitration. Therefore, the order passed by the trial Court, referring the matter to arbitration cannot be sustained in law. The termination of the suit does not accord with the procedure prescribed under C.P.C. A decree could not have been passed outside the prayer in the suits.; ORDERS WHICH ARE dependant' in nature and the challenge thereto cannot be rejected, on the ground that the suit itself stood terminated. That was a case, in which the delay in filing of appeal was condoned and the effected party challenged the order passed by the Court condoning the delay. Even while the proceedings, in which the order condoning delay was challenged, were pending, the appeal that came to be numbered was disposed of. An objection was raised to the effect that once the appeal has been disposed of, it is not at all open to the parties to challenge the order, through which the delay was condoned. This contention was negatived and the Hon'ble Supreme Court treated such appeals as 'dependant' upon the order, condoning the delay being sustained, whenever challenged. The same situation obtains in this case.

REPORTED/PUBLISHED IN http://judis.nic.in/judis_andhra/filename=9751

THE HON'BLE SRI JUSTICE L. NARASIMHA REDDY AND   THE HON'BLE SRI JUSTICE K.G.SHANKAR                  

C.M.A.Nos.126 of 2012 and Batch

03.04.2013
     
M/s. Ashok International rep., by its Managing Director.

State of A.P. and others.

Counsel for the Appellant: Sri V.L.N.G.K.Murthy

Counsel for respondents: G.P. for Arbitration

<GIST:

>HEAD NOTE:  
? Cases referred:
1. AIR 1988 SUPREME COURT 897    

C.M.A.Nos.126, 127, 128, 207, 209 & 218 of 2012
And
C.R.P.Nos.814, 815, 816, 1174, 1296 & 1307 of 2012

COMMON JUDGMENT: (Per LNR,J)    
        In this batch of C.M.As. and C.R.Ps., common questions of fact and law are
involved.  Hence, they are disposed of through a common judgment.
        For the sake of convenience, the parties are referred to as "plaintiffs"
and "defendants".
        The Government of Andhra Pradesh has initiated various steps for the
development of Kakinada Port.
 Fairly large extent of land was identified for
construction of godowns and for creation of other facilities around the Port.
Many traders were granted long leases of about 30 years by executing lease deeds
on 26.03.1996 and incorporating conditions. 
However, the Government issued
notices, dated 15.12.2006 requiring the lessees to vacate the property by 30.06.2007, on the ground that the clause providing for revision of rent for every three years as contemplated under various G.Os. was missing and due to inadvertence, a clause providing for rent only for 30 years was included.  
After
undertaking some correspondence, the effected lessees filed O.S.No.47 of 2007
and batch in the Court of III Additional District Judge, Kakinada, for a
declaration to the effect that the respective notices issued to them are illegal and untenable and contrary to the terms of the agreements.  
They have also filed
applications under Order 39 Rules 1 and 2 C.P.C. for temporary injunction, to
restrain the defendants therein i.e., the officials of the Government, from
interfering with their possession over the property.
        The trial Court initially passed orders of ad interim temporary
injunction.
The defendants, on the other hand, filed I.A.No.3228 of 2007 and
batch with a prayer to stay the further proceedings in the suit and to refer the
dispute to arbitration in terms of the clauses in the lease deeds. 
Through
common orders, the trial Court dismissed the applications filed under Order 39 Rules 1 and 2 C.P.C. by the plaintiffs and allowed the applications filed under Section 8 of the Arbitration and Conciliation Act, 1996 (for short 'the Act') by the defendants. referring the matters to arbitration.
        The plaintiffs approached this Court, feeling aggrieved by the said
orders.
While the C.M.As. are filed against the orders passed dismissing the
applications filed under Order 39 Rules 1 and 2 C.P.C., 
the Revisions are filed
assailing the orders passed in the applications filed under Section 8 of the
Act.
        Sri V.L.N.G.K.Murthy, learned counsel for the plaintiffs submits that the
suits were filed for the relief of declaration that the notices of termination
issued by the defendants are not tenable and that such notices were totally
outside the scope of the agreements themselves.
 He contends that the occasion to
seek reference of the dispute to arbitration would have arisen, if only the
respondents have taken any steps under the terms of the agreements and that
there was no justification for the trial Court in referring the matter to
arbitration and thereby, indirectly terminating the suits.
        As regards the relief of temporary injunction, he contends that the
plaintiffs are very much in possession of the property and the application ought
to have been allowed.
He submits that the correspondence that ensued between
the parties clearly discloses that the respondents themselves admitted that a
clause for revision of rents after every three years was missing.
Learned
counsel submits that if the defendants are of the view that such a clause ought
to have been included, they should have filed a suit for this purpose or
undertaken negotiations.
        Learned Government Pleader for Arbitration, on the other hand, submits
that the lease deeds contain a clause for arbitration and Section 8 of the Act
mandates that wherever the relationship between the parties is borne out by any
contract containing a clause providing for arbitration, the filing of a suit is
barred.
He submits that the plaintiffs cannot maintain any distinction between
the actions that are referable to any specific clause in the lease deeds, or any
other external factor, as long as the matter pertains to the lease.
 He submits
that the trial Court has taken the correct view of the matter.
        As regards temporary injunction, learned counsel submits that the
plaintiffs have already been put on notice about the inadequacy of rents and
despite the same, they did not come forward to pay the demanded amount and that
they do not have the right to continue in possession.
He raised an objection as
to the maintainability of the C.M.As., on the ground that once the suits stood
terminated on account of the reference of the matter to arbitration, it is not
open for the plaintiffs to challenge the order passed in the interlocutory
applications.
        The plaintiffs are lessees of the lands that are owned by the respondents
and their relationship is governed by the lease deeds executed in the year 1996.
The clause that provided for the stipulation of rent and the revision, thereof reads:
        "The rent will be at the rate of 6% on the land value of Rs.145/- per
square yard for 5600 sq. yards and amounts to Rs.48,720/- per annum upto 30 
years payable yearly, in advance in one instalment on or before 1st April of
each year with initial EMD equal to 6 months rent to be deposited at the
commencement of the tenancy by the Lessee with the Lessor.  
        And thereafter the rent to be revised and raised at the end of every three
years at the rate calculated at 6% on the revised value of teh land as made by
the District Revenue Authorities in their basic value register or based on some
other objective criterion or guidelines laid down by the Government subject to
the condition that the increase in annual rent shall not at any stage be less
than 15% of the proceeding years rent.  
The Lessee shall not question the
valuation made by the District Revenue Authorities and shall abide by the
fixation made by the Lessor thereon and also pay to THE LESSOR on demand by in   
addition to rent, a sum equal to the amount the Lessor may pay from time to time
for insuring the demised premises under powers hereinafter provided, and also
pay unto the Lessor, in the event of and immediately upon the said term being
determined earlier by re-entry under the provision hereinafter contained, a
proportionate part of the said rent upto the delay of such re-entry, provided
that the said valuation of the land by the District Revenue Authorities shall be
final and binding on both the parties."

        From this, it is evident that the lease amount is liable to be revised on expiry of 30 years.  
However, the defendants felt that the clause providing for
revision of rent on expiry of term of every three years ought to have been incorporated. 
Reliance was placed upon G.O.Ms.No.19, dated 31.01.1994 and  G.O.Ms.No.312, dated 26.11.1994.  
Notices were issued on 15.12.2006, requiring
the plaintiffs to pay the amount calculated on the basis of G.O., and in default
to vacate the premises.
That gave rise to the cause of action for the plaintiffs to file the suits.
        It is no doubt true that the leases contained a clause providing for arbitration, which reads:
        "In the event of any dispute, question of difference at any time arising
between the parties hereto or their respective representatives or assigns
touching or arising out of or in respect of those presents or as to the
construction, meaning or the subject matter of these presents or as to any act
done or omitted to be done under these presents or as the rights, duties and
liabilities of the respective parties (except 'such matters the decision whereof
is otherwise expressly hereinbefore provided for) the same shall be referred to
the sole arbitration of the Collector, East Godavari District, Kakinada.  If he
be unable or unwilling to act as an Arbitrator, then to any one of the three
persons kept in panel that may be appointed by him, and the provisions of the
Indian Arbitration Act, 1940 or any statutory modification or re-enactment
thereof and the rules made thereunder from time to time shall apply to such
arbitration AND this DEED shall be deemed to be an submission to Arbitration
within the meaning of the said Act, the Arbitrator shall give a detailed
reasoned award and that the decision of the Arbitrator shall be final and
binding on the parties hereto, subject to the provisions of the Arbitration
Act".

        Law is also fairly well settled to the effect that if the agreement governing relationship of the parties contains a clause providing for arbitration, a suit for seeking redressal in relation to any dispute covered by the agreement cannot be maintained and it stands barred by Section 8 of the Act.

However, a keen observation of the clause extracted above reveals that it is only when the dispute or question of difference arises out of, or in respect of, those presents or as to the construction, meaning or the subject matter of the lease presents or as to any act done or omitted to be done under the lease or the rights, duties and liabilities of the respective parties, referable to the
agreement, that the matter shall be referred to arbitration.
   
  In the instant case, the plaintiffs did not seek adjudication of any
dispute, which is referable to the clause in the lease deed.  
On the other hand,
they very much wanted to abide by it. 
It is the defendants. who felt that the
agreements are somewhat defective, inasmuch as they did not provide for escalation of rents once in every three years. 

 The gist of their contention is
evident from paragraph 4 of the counter affidavit filed before this Court.
        "4. It is submitted that as per the said G.Os. the Rentals chargeable on
the Port land so allotted shall be @ 6% on the land value of Rs.145/- per square
yard per annum with an upward increase of 15% per annum for every three years as
agreed and incorporated in the lease Agreement, but however the escalation
clause is missing in the lease agreement which is clerical error."

        If the sole basis for the action of the defendants is a clause, which is
missing in the lease agreement, it is un-understandable as to how the dispute
arising out of their action can be treated as the one referable to lease deed.
        The matter can be viewed from another angle.
 If the defendants felt that
the plaintiffs were under obligation to pay any amount over and above the one
mentioned in the lease deeds or that the leases were liable to be terminated,
they ought to have initiated arbitration, if they have any respect for the
clause.
Instead, they have resorted to unilateral action.
 Once the defendants
have exhibited their disrespect to the clauses of the lease deeds, including the
one, which provides for arbitration, they cannot fall back upon the same clause
and oppose the suit filed for enforcing the lease deed. 
At any rate, these are
all the aspects, which need to be examined on merits in detail, by framing an
issue, than to be decided at the stage of interlocutory applications.
Further,
no application was filed by the defendants under Order 7 Rule 11 C.P.C. for
rejection of the plaint.  
They did not make any counter claim in the suit nor
did they file any suit for reference of the matter to arbitration.  
Therefore,
the order passed by the trial Court, referring the matter to arbitration cannot
be sustained in law.  
The termination of the suit does not accord with the
procedure prescribed under C.P.C.  
A decree could not have been passed outside the prayer in the suits.
        Now comes the question pertaining to temporary injunctions.
It is not in
dispute that the plaintiffs are in possession and enjoyment of the property.  As a matter of fact, the defendants wanted them to vacate the premises.  Till the question raised in the suit is decided, they are entitled to be in possession, subject however to payment of rents.
        The objection raised by the defendants as to the maintainability of the
C.M.As., on the ground that the suits themselves stood terminated cannot be
countenanced.  
The order passed by the trial Court dismissing the applications
filed under Order 39 Rules 1 and 2 C.P.C. on the sole ground that the suits
stood terminated, on account of reference of the matter to arbitration cannot be
accepted.  
In G.Ramegowda vs. Special Land Acquisition Officer, Banglore1,
the
Hon'ble Supreme Court held that the orders of this category are 'dependant' in nature and the challenge thereto cannot be rejected, on the ground that the suit itself stood terminated.  That was a case, in which the delay in filing of appeal was condoned and the effected party challenged the order passed by the
Court condoning the delay.  
Even while the proceedings, in which the order condoning delay was challenged, were pending, the appeal that came to be numbered was disposed of.  
An objection was raised to the effect that once the appeal has been disposed of, it is not at all open to the parties to challenge
the order, through which the delay was condoned.  
This contention was negatived and the Hon'ble Supreme Court treated such appeals as 'dependant' upon the order, condoning the delay being sustained, whenever challenged.  The same situation obtains in this case.
        Hence, the C.R.Ps. are allowed and the orders under revisions are set
aside. 
The trial Court shall decide the matter on merits, if necessary by
framing a preliminary issue as to the maintainability of the suits.
        The C.M.As. are also allowed and the orders passed by the trial Court
dismissing the applications filed under Order 39 Rules 1 and 2 C.P.C. are set
aside.  
As a result, the applications filed under Order 39 Rules 1 and 2 C.P.C.
in the respective suits are allowed and the respective defendants are restrained
from interfering with the possession of the plaintiffs or evicting them from the
suit schedule premises, subject, however, to the condition that the rent shall
be paid with enhancement at 10% over and above what is provided for under the
lease deeds from January 2013 onwards.  
The difference of rent, if any in, this
behalf, shall be paid within four (4) weeks from today. 
The payment of extra amount shall be subject to the outcome of the suits.
        The miscellaneous petitions filed in this C.M.As and C.R.Ps. shall also
stand disposed of.  There shall be no order as to costs.
_______________________  
L. NARASIMHA REDDY, J  
_______________________  
K.G.SHANKAR, J
Dt:.04.2013

DECLARATION & POSSESSION, NO RESJUDICATE = Declaration of Title & Possession = basing of payment receipt for allotment of building for suit site, earlier Mortgage deed in society and discharge receipt, no due certificate = Dismissal of previous injunction suit not operate as resjudicate = "12. As a matter of fact even such an issue was not framed. The High Court, therefore, in our opinion posed unto itself a wrong question. In a suit for permanent injunction, the Court had rightly proceeded on the basis that on the date of the institution of the suit, the first respondent was in possession of the disputed land or not. It was not required to enter into any other question. It, in fact did not. 13. It is one thing to say that a person is in possession of the land in suit and it is another thing to say that he has a right to possess." The Supreme Court held finally that in such a situation, the previous judgment in permanent injunction suit will not be a bar for declaration of title and recovery of possession. ;Simply because the plaintiff who is working in the Indian Railways at a very long distant place and allowed the defendant who is his own brother to reside in the suit property, the defendant cannot claim right or title for the suit property to himself. ;plaintiff though did not file proceedings of the Government allotting the suit house to him, the plaintiff has filed Exs.A.1 to A.4 to show that the suit house was allotted to him by the Society and that the suit house is registered in his name in municipal records and he paid taxes therefor. ;Exs.B.6 to B.8 ration card and identity cards of the defendant and his wife show the defendant's residence in the suit house. They will not clothe the defendant with any right or title to the schedule property.

REPORTED / PUBLISHED IN http://judis.nic.in/judis_andhra/filename=9737

THE HON'BLE SRI JUSTICE SAMUDRALA GOVINDARAJULU          

SECOND APPEAL No.626 of  1999  

01-04-2013

C.Ramulu.

C.Anjaneyulu.

Counsel for the Appellant: Sri Prabhakar Sripada

Counsel for Respondent: Sri J.Azad Chandra Sekhar

<Gist:

>Head Note:

?Cases referred:
1 (1994) 2 Supreme Court Cases 14
2 AIR 2008 Supreme Court 2212

JUDGMENT:
         The plaintiff is the appellant herein.  He filed the suit in the trial
court for declaration of his ownership in the plaint schedule property and for
delivery of possession of the same together with past and future mesne profits.
The plaintiff's claim was opposed by the defendant.  After trial, the trial
court decreed the suit; and on appeal by the defendant, the lower appellate
Court allowed the appeal.  Hence, the plaintiff approached this Court with this
second appeal.
        2) At the time of admission of this second appeal, the then learned Judge
of this High Court framed the following substantial question of law for
determination in this second appeal:
        "Whether the appellate Court is justified in reversing the judgment and
decree of the trial Court only on the ground that the judgment and decree in an
earlier suit filed by the plaintiff in O.S.No.163/1992 operate as res judicata,
when it is the principle of law that the decree passed in an injunction suit
does not operate as res judicata to a subsequent suit filed for declaration and
for consequential relief, more so when there was no issue as to the principle of
res judicata either before the trial court or before the appellate Court."

        3) The plaintiff and the defendant are brothers and they belong to
scheduled caste. The plaintiff filed the suit on the ground that he is owner of
the plaint schedule property.  The plaint schedule property consists of house in
weaker sections colony of Kurnool town in D.No.45/322 (old plot No.117) in an
extent of 0.21/4 cents including open appurtenant site.  It is the plaintiff's
case that the suit house and site was assigned to him by the Government in the
year 1983 and that when the plaintiff wanted to construct another room in
appurtenant open site and dug foundation pits, the defendant raised objection
and threatened the plaintiff to stop the construction and therefore the
plaintiff filed O.S.No.163/1992 in the District Munsiff Court, Kurnool.  After
it was dismissed, the plaintiff filed the present suit in a comprehensive
manner.  The defendant, on the other hand, contends that the previous suit was
dismissed as the plaintiff failed to prove his title to and possession of the
suit property and that the plaintiff is residing at Manchiryal since the past 18
years where he is working as Assistant Station Master in Railways and that the
municipality is serving notices on the defendant relating to enhancement of tax
etc.,.  From the respective contentions of both the parties, the primary
question in this case is whether the previous decision in O.S.No.163/1992
operates as res judicata herein.
        4) The previous suit O.S.No.163/1992 was a simple suit for permanent
injunction restraining the defendant from obstructing his constructions in the
appurtenant CDEF site shown in the plaint plan therein and from interfering with
his possession and enjoyment of the suit house and site.  After trial, the
previous suit O.S.No.163/1992 filed by the plaintiff against the defendant was
dismissed.  The previous suit is also relating to the self same property, which
is the subject matter herein.  Ex.B.4 is certified copy of Judgment and Ex.B.3
is certified copy of decree in O.S.No.163/1992.  It is sought to be pointed out
by the defendant that in Ex.B.1 deposition of the plaintiff as P.W.1 in the
previous suit, the plaintiff admitted that he has no document to show his title
for the suit land.  Effect of Ex.B.1 will be considered subsequently, because
the plaintiff herein filed certain documents to prove his right and title to the
suit property.  The lower appellate court held that Ex.B.4 judgment operates as
res judicata herein, placing reliance on Sulochana Amma Vs. Narayanan Nair1 of
the Supreme Court.  The question before the Supreme Court was on competency of
the Court to try the subsequent suit.  In that matter, the previous suit for
injunction was tried and decided by the District Munsif Court having limited
pecuniary jurisdiction, whereas the subsequent suit was filed for declaration of
title and possession in the Subordinate Judge's Courts having unlimited
pecuniary jurisdiction.  The Supreme Court considered explanation VIII together
with main Section 11 and came to the conclusion that the said situation is also
covered by explanation VIII, resulting in applicability of the doctrine of res
judicata contained in Section 11 CPC.  On facts, it was a case where the
District Munsif Court in the previous suit for injunction decided the issue of
title, after raising the said issue in the suit.  Therefore, it was held that
the decision as to title decided in the previous suit by the District Munsif
Court in injunction suit operates as res judicata in the subsequent suit filed
in the Subordinate Judge's Court for the reliefs of declaration and possession.
        5) It is contended by the appellant's counsel that in Ex.B.4 Judgment of
the previous suit there was neither an issue framed on title nor any finding
given by that court on title for suit property and that therefore the previous
judgment Ex.B.4 does not operate as res judicata herein.  The only issue that
was framed in Ex.B.4 Judgment is whether the plaintiff is entitled for permanent
injunction as prayed for.  After discussing the material on record, finally in
Ex.B.4 judgment, it was held as follows:
        "In the instant case, the plaintiff failed to prove that he was in
possession and enjoyment of the suit property on the date of filing of the suit.
Therefore, I find the plaintiff is not entitled for the relief of the permanent
injunction as prayed for.  I find this issue against the plaintiff."

        6) It is pointed out that there is no definite finding given by the Court
in Ex.B.4 Judgment on the question of title and that the Court only found that
the plaintiff who was not in possession of the suit property on the date of
filing of that suit, was not entitled for relief of permanent injunction. In the
previous suit covered by Ex.B.4 judgment, none of the parties filed any
documents of title for the suit property.  The entire discussion in Ex.B.4
judgment was on possession of the suit house and ultimate finding therein was
also on possession only and the said finding resulted in negativing permanent
injunction to the plaintiff therein.  While discussing evidence of the plaintiff
as PW.1 therein, it was observed in Ex.B.4 judgment:
          "PW.1 admitted in his cross examination that there are no proceedings
issued by the Government to show that the suit house was allotted to him.  He
further stated he gave an application to the Government for granting the house
to him.  But PW.1 did not choose to file the copy of his application nor sent
for his application from the Revenue Department.  Therefore, there is no
documentary evidence to show that the plaintiff schedule house was allotted to
PW.1 in the year 1983".
Thus, there was no definite finding as to the plaintiff's title to the suit
property in the previous suit covered by Ex.B.4.  There was neither an issue on
title in the previous suit nor a finding on title of the plaintiff in the
previous suit covered by Ex.B.4.  Therefore, it cannot be said that Ex.B.4
judgment operates as res judicata in the present suit filed by the plaintiff for
the reliefs of declaration of his title to the suit property and for possession
of the same.
       7) The appellant's counsel placed reliance on Williams v Lourdusamy2  of the Supreme Court wherein it was observed:

    "12. As a matter of fact even such an issue was not framed.  The High Court, therefore, in our opinion posed unto itself a wrong question.  In a suit for permanent injunction, the Court had rightly proceeded on the basis that on the date of the institution of the suit, the first respondent was in possession of
the disputed land or not.  It was not required to enter into any other question. It, in fact did not.
        13. It is one thing to say that a person is in possession of the land in suit and it is another thing to say that he has a right to possess."

The Supreme Court held finally that in such a situation, the previous judgment in permanent injunction suit will not be a bar for declaration of title and recovery of possession. 
 Therefore, I find on the substantial question of law
framed herein that the lower appellate Court is not justified in reversing the
judgment and decree of the trial Court on the ground that Ex.B.4 judgment in the
earlier suit O.S.No.163 of 1992 operates as res judicata.  I further find that
having regard to issues framed and findings given in O.S.No.163 of 1992, Ex.B.4
judgment does not operate as res judicata in the present suit.
       8) In the present suit proceedings, the plaintiff filed 
Ex.A.1 original
receipt dated 27.10.1995 issued by Kurnool District Scheduled Caste and Tribes
Co-operative House Building Society Limited (in short, the Society)
acknowledging receipt of Rs.8,534.40 ps. from the plaintiff for the suit site.
Ex.A.4 is no dues certificate of the same date issued by Deputy
Registrar/Secretary of the Society in favour of the plaintiff to the effect that
no amount is due from the plaintiff towards value of the suit property.
Subsequently, the plaintiff mortgaged the same in favour of the Society vide
Ex.A.2 registered mortgage deed.  
The plaintiff also filed Ex.A.3 receipt dated
23.09.1996 issued by Kurnool Municipal Corporation in his name for the suit
building. 
 Even though the plaintiff as PW.1 in O.S.No.163 of 1992 stated as in
Ex.B.1 to the effect that there are no proceedings issued by the Government to
show that the suit house was allotted to him, now in the present suit, the
plaintiff though did not file proceedings of the Government allotting the suit house to him, 
the plaintiff has filed Exs.A.1 to A.4 to show that the suit house
was allotted to him by the Society and that the suit house is registered in his name in municipal records and he paid taxes therefor.  

Simply because the plaintiff who is working in the Indian Railways at a very long distant place and allowed the defendant who is his own brother to reside in the suit property, the
defendant cannot claim right or title for the suit property to himself. 

Exs.B.6
to B.8 ration card and identity cards of the defendant and his wife show the defendant's residence in the suit house.  
They will not clothe the defendant with any right or title to the schedule property.  
In view of my discussion of
the material on record and my finding on the substantial question of law,
judgment of the lower appellate Court cannot stand.
       9) In the result, the second appeal is allowed with costs through out
setting aside decree and judgment passed by the lower appellate Court and
granting decree in favour of the plaintiff/appellant as prayed for in the
plaint.
_____________________________  
SAMUDRALA GOVINDARAJULU,J      
Dt.1st April, 2013