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2013 Supreme(AP) 640
HIGH COURT OF ANDHRA PRADESH
M.S. RAMACHANDRA RAO, J.
S. Narayanaswamy
Versus
Nimmala Appanna & Others
A.S. No. 833 of 1992 & Batch A.S.M.P. 1630 of 2013
Decided On : 14-08-2013
For the Appellant:V.L.N.G.K. Murthy, Advocate.
For the Respondents:R3, R5 & R6, S.D. Goud, R4, C. Ramachandra Raju, Advocates.
Headnote:
Hindu Minority and Guardianship Act, 1956 – Gaurdian – Appeal is filed challenging judgment and decree in O.S. of Additional Sub-ordinate Judge – Held, No enactment to my knowledge by name “Court Guardian Act” mentioned by trial Court – It perhaps intended to mention Hindu Minority and Guardianship Act, 1956 – D-3 is the Kartha of property in S. consisting of himself, D-1 and D-2 and D-4. Land in S.No.124 is self acquired property of D3 – Children of D-4, at the time when Ex.A-1 and A-2 or A-14 were executed , had no right, title or interest in the said properties – No question of obtaining permission of the Court for alienating them – Therefore this finding cannot be sustained – Held, Court is of view that the Court Fee is correctly paid and plaintiff cannot be compelled to pay Court Fee on the total consideration of Rs.1,40,000/- as he does not need to seek relief of specific performance for the entire extent of Ac.18.70 cents, but he is only seeking such relief for Acs.4.22 cents – This finding of the trial Court is also set aside – Appeal Allowed (Paras 115, 116, 117)
1. This appeal is filed challenging the judgment and decree dt.31-01-1992 in O.S.No.103 of 1975 of the Additional Sub-ordinate Judge, Anantapur.
2. Before I deal with the appeal and ASMP.1630/2013, it is necessary to mention certain events which took place prior to and during the hearing of this appeal.
3. On 22.7.2013, initially when this appeal and ASMP were listed before me, it was suggested by Sri S.D.Gowd, the previous counsel for respondents 3-6 that this bench may not hear the case. The reason according to counsel was that I had appeared for one of the parties in the case. This was found to be factually incorrect as I had not in fact appeared in the case. Counsel was also not able to substantiate this contention. As the appellant was 93 years old, the suit related to specific performance of agreements of sale dt.14.8.1968 and 27.1.1970, and after full trial which dragged on from 1975 to 1992, it was decided, the appeal was taken up for hearing on 23.7.2013 and 24.7.2013 and arguments of counsel for appellant, Sri V.L.N.G.K.Murthy were heard. He argued the appeal for 4 1/2 hours on 23-07-2013 and 24-07-2013 in the presence of the party in person/Advocate Sri N.Prem Raj (5th respondent in the appeal/3rd petitioner in A.S.M.P.No.1630 of 2013). At that time, neither he nor the then counsel for respondents 3-6 in the appeal, Sri S.D.Gowd raised any objection for the hearing of the appeal. After the arguments of appellants' counsel concluded on 24.7.2013, Sri Gowd sought time to argue the appeal or to advise his clients to engage another counsel. So the appeal was posted to 29.7.2013 after passing a detailed order on 24.7.2013 recording what transpired in the court and stating that no further time will be granted for arguments to respondents.
4. On 29-07-2013, Sri C.Ramachandra Raju, learned counsel, appeared for 4th respondent and stated that he had entered appearance for 4th respondent in the appeal only on the said date and sought time to argue the appeal and the ASMP.1630/2013. Therefore, to accommodate him, the case was posted to 1.8.2013 to hear his arguments in the appeal and the A.S.M.P. Even on 29-07-2013, he did not state that he would argue only A.S.M.P and not the appeal.
5. On 1.8.2013, Sri C.Ramachandra Raju, learned counsel for 4th respondent insisted that only A.S.M.P.No.1630 of 2013 be heard and decided and not the appeal. He stated that the points raised by the respondents in the appeal/petitioners in ASMP.1630/2013 are not mixed questions of law and fact and can be decided without hearing the appeal.
6. I did not agree with the said contention. In my opinion, the issue of maintainability of the appeal on the grounds raised in the said application is a mixed question of law and fact, and the said ASMP cannot be decided in isolation, without hearing the merits of the appeal.
7. The judgment of Supreme Court in Dhartipakar Madal Lal Agarwal Vs. Shri Rajiv Gandhi (AIR 1987 SC 1577), relating to Representation of Peoples' Act, 1951 was cited by the Mr.Raju, wherein it was observed that preliminary objections as to maintainability have to be considered. But in that very case in paragraph No.10, the Court approved the passage in Azhar Hussain V. Rajiv Gandhi (AIR 1986 SC 1253) which held :
“The Courts in exercise of the powers under the Code of Civil Procedure can also treat any point going to the root of the matter such as one pertaining to jurisdiction or maintainability as a preliminary point and can dismiss a suit without proceeding to record evidence and hear elaborate arguments in the context of such evidence, if the court is satisfied that the action would terminate in view of the merits of the preliminary point of objection. ...” (emphasis supplied)
8. As stated earlier, this Court was prima facie satisfied that the appeal cannot be decided on the preliminary issue sought to be raised by the respondents in the ASMP without hearing the appeal on merits. So this Court held that the A.S.M.P.No.1
