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2007 Supreme(AP) 1229

Andhra Pradesh High Court
GOPALA KRISHNA TAMADA, J.
Mothukuri Ranga Rao and another - Appellant
Vs.
Royyala Laxminarayana and others - Respondent
Rev. CRP MP No.1904 of 2008 in CRP No.6929 of 2005
Decided on: Eleventh Day of December, 2007

Advocates appeared:Y. Rama Rao, Counsel for the Petitioners; Hari Sridhar, Counsel for the Respondents.

Headnote:(A) Civil Procedure Code, 1908-Section 11- Principle of res judicata cannot be pressed in service to bar maintainability of second revision petition, when earlier revision petition was dismissed for default and Court did not pass order after hearing and deciding question either of fact or law, involved in it. [Para 10]

       (B) A.P. (T.A.) Tenancy and Agricultural Lands Act, 1950-Sections - 32, 89 to 92. Though revision is filed under section 91 of the Act, provision of CPC can squarely be made applicable to provisions of the Act. There is no prohibition for maintaining a second revision application. [Para 10]

       (C) Civil Procedure Code, 1908- There is a clear distinction between Rule 4 and Rule 9 of Order IX CPC. Because there are lapses on the part of the defendant also in not appearing before the Court along with the plaintiff, the Legislature thought it to provide provision for maintaining a second suit by the plaintiff. If the lapse is not only on the part of the plaintiff but also on the part of the defendant, then only, the plaintiff can maintain a second suit. That is the purport of Order IX Rule 4, but when it comes to Order IX Rule 9, the position is different. [Para 10]

       (D) Civil Procedure Code 1908-Sections-141- Expression Proceedings includes proceedings under Order 21, but does not include any proceedings under Article 226 of Constitution. Procedure contemplated in CPC with regard to suit shall be followed in all proceedings in any Court of civil jurisdiction not only in original proceedings but also in other proceedings. Proceedings before a Court whether it be a suit, appeal, revision or review petition are included in said provision of law and CPC has application to those proceedings.[Para 9]

       (E) A.P. (T.A.) Tenancy and Agricultural Lands Act 1950-Sections 89(2) and 92- Power exercisable on appeal/revision. Appellate authority can exercise power conferred under Code of Civil Procedure. Civil Procedure Code applied to procedure under Act - Appellate authorities are concerned with all powers conferred on original authority by sub-section 89(2). [Para 11, 12]

       1968 AWR 246 (FB)- Followed.

ORDER :- This review petition is filed under Section 114 C.P.C. to review the order, dated 23.12.2005 passed by this Court in CRP No.6929 of 2005.

2. Before going into the issue whether the order passed by this Court can be reviewed or not and the legal position thereof, it is necessary to refer to the facts involved in this revision. For the sake of convenience, the parties will be referred to as they are arrayed in CRP No.6929 of2005.

3. The petitioner, Royyala Laxmi Narayana, filed an application under Section 32 of the Andhra Pradesh (Telangana Area) Tenancy and Agricultural Lands Act, 1950 (for brevity "the Tenancy Act") for declaration that he is in undisputed possession of the petition schedule property and also for restoration of possession of the lands in question. The Mandal Revenue Officer, before whom the application was filed, conducted a detailed enquiry, and by his order dated 30.3.1998, dismissed the application. Aggrieved thereby, the petitioner filed an appeal before the Joint Collector, Warangal, under Section 90 of the Tenancy Act, along with an application under Section 5 of the Limitation Act, 1963, to condone the delay of about 153 days in filing the appeal. The Joint Collector dismissed the application on the ground that the delay was not properly explained. Questioning the order, dated 7.6.1999, the petitioner filed CRP No.6929 of 2005 along with an application under Section 5 of the Limitation Act to condone the delay of 2081 days in filing the revision. When the petition to condone the delay came up for hearing, this Court ordered notice to the respondents, and the respondents I, 2, 5 and 6, though received notices, did not put in their appearance either in person or through an advocate. So far as respondent Nos.3 and 4 are concerned they refused to receive the notice. Then, this Court heard Sri Hari Sreedhar, learned Counsel for the petitioner.

4. According to the learned Counsel for the revision petitioner, his client i.e., the revision petitioner was informed by the Counsel, who appeared for him in the trial Court that he had made necessary arrangement for filing revision before the High Court and sent the papers to an Advocate at Hyderabad, and thus, his client was under bona fide impression that a revision was filed and the same is pending. But, after lapse of several years when his client contacted the Counsel, he was informed that though the papers for filing revision were sent by him to the Counsel in the High Court he did not have any communication with him, as such, the Counsel expressed his inability to infom1 the petitioner about the developments in the matter. Immediately thereafter, the petitioner contacted the present Counsel, Sri Hari Sreedhar, who on verification, stated that no revision is filed, and thus, he has filed the present civil revision petition. For this reason, there occurred a delay of about 2081 days. As there was no assistance from the respondents because of their non-appearance in the Court, though the delay is unduly long, as the petitioner shall not suffer for the lapses on the part of the Counsel, this Court, by its order dated 23.12.2005, condoned the delay, entertained the present CRP filed under Section 91 of the Tenancy Act, and allowed it setting aside the order dated 7.6.1999, and directed the Joint Collector to decide both the petition for condoning the delay and the appeal filed under Section 90 of the A.P.

Tenancy Act.

5. As stated above, the respondents have filed the present Review Application under Section 114 CPC to review the order, dated 23.12.2005. As there is a delay of 506 days in filing the Review Application, the respondent Nos.l and 2 filed a petition to condone the delay. In the affidavit filed in support of this petition, it is admitted that the Joint Collector, by his order, dated 7.6.1999, dismissed the Appeal as well as the petition to condone the delay. Questioning the order dated 7.6.1999, the petitioner filed C.RP. No.5704 of 1999 under Sect


































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