2016 Supreme(AP) 530

IN THE HIGH COURT OF JUDICATURE AT HYDERABAD FOR THE STATE OF TELANGANA AND THE STATE OF ANDHRA PRADESH
B. SIVA SANKARA RAO, J.
K. Srinivas Rao & Another – Appellants
Versus
M/s. Aasra Archiventures Pvt. Ltd. & Others – Respondents
Civil Revision Petition No. 3055 of 2015
Decided On : 04-11-2016

Headnote:

Constitution of India - Articles 226, 227 - Evidence Act - Sections 17 and 58 - Civil Law - Civil Procedure Code - Section 34 - Plaintiffs in the suit in O.S.No.on the file of District Judge District revision respondents are the defendants to the suit - suit was filed by the plaintiffs for recovery of money of - Along with interest of - which comes to - Pending suit was filed for passing of a judgment and decree in favour of the petitioners/plaintiffs for recovery of the admitted liability of by the defendants with interest on the principal amount and costs as prayed in the suit under Order XII Rule 6 CPC said I.A. was dismissed - Against the said order the petitioners preferred the present revision - registered development agreement dated with one who are the absolute owners and possessors of the land admeasuring in survey Village District for development of the same by constructing apartments and commercial spaces - As per the agreement 1st defendant is entitled for of the total built up area along with of undivided share of land - defendant offered to sell a flat admeasuring square feet residential built up area with proportionate undivided share of land for a total sale consideration of to the plaintiffs and received as advance sale consideration and executed an agreement of sale - As per the agreement out of the balance sale consideration shall be paid on the date of allotment of built up area and the remaining amount on the date of execution and registration. - But at the request of 1st defendant the plaintiffs paid on one occasion and on another occasion in addition to the advance sale consideration plaintiffs paid to the 1st defendant out of total sale consideration under agreement of sale dated 1st defendant assigned through registered agreement his rights under the development agreement dated Properties Limited as per the terms of assignment shall discharge the obligations of the 1st defendant in the development agreement supra on condition of supra is entitled to of built up area with proportionate undivided land share out of built up area and undivided share of land - Held, Court did not exercise the power vested in it by came to a wrong conclusion by ill-appreciation of fact and law to the prejudice of the rights of the plaintiffs from the said admissions of the defendants to pass the decree on admission - Court held on the scope of revision no doubt in SCC by noting the expression in Dev Roy did not lay the distinction between the Articles proceedings from the distinction between the 2 articles having clarified on substantially different foot they operate in different areas said Article can be invoked by the High Court even as a custodian of justice though frequent and improper exercise of the power will be counter productive - It was held further that this discretionary power can be exercised on equitable principles for promotion of public confidence and administration of justice and in the larger public interest as the power may be unfettered but the exercise is subject to high degree of judicial discipline to maintain efficiency and smooth and orderly functioning of machinery of justice - It was observed that the power under Article of the Constitution of India is not as a Court of first appeal over orders of subordinate Court for where alternative remedy available this power cannot be exercised and the parameters for such exercise is not to interfere merely because some other view is also possible but to interfere with orders of subordinate Courts where same is a patent perversity or gross and manifest failure of justice - Court should have been passed decree on admission for recovery of it by kept open the remaining issues regarding entitlement of interest and rate of interest on said - Revision is allowed by setting aside the dismissal order of the lower Court and by allowing the application and by passing decree on admission for rest of the suit claim to be determined on the other disputed aspects on merits from the pleadings of the parties - Ordered Accordingly.