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ANDHRA PRADESH HIGH COURT
V. Ramasubramanian and Mrs. Anis, JJ.
Guduru Veera Nishitha —Appellant
versus
G.V. Sambashiva Rao and Ors. —Respondents
Appeal Suit No.573 of 2016
Decided on 26.10.2016
Counsel for the Parties:
For the Appellant:Dr. Venkat Reddy Donthireddy, Advocate
For the Respondent No.1:Sri C.Ramesh Sagar, Advocate
For the Respondents Nos.2 to 5:Sri Alladi Ravinder, Advocate
For the Respondent No.6: None appeared
IMPORTANT POINT
Wherever an order passed by Court below is not appealable under any provision, same is revisable by High Court under Section 115 of CPC.
Headnote:(A) Civil Procedure Code, 1908—Order 20, Rule 18 read with Order 15, Rules 1 and 2 and Section 151—Partition suit—Dismissal of application seeking preliminary decree for partition in respect of few items of plaint schedule properties—Dismissal of application was solely on ground that entitlement of appellant to a decree can be adjudicated only after full trial—Court did not conclusively determine rights of parties by order under appeal with regard to all or any of matters in controversy in suit—Hence, order under appeal will not fall within meaning of expression decree under Section 2 (2) of CPC—If order under appeal does not amount to a decree, no appeal under Section 96 (1) shall lie as against the same—Wherever an order passed by Court below is not appealable under any provision, same is revisable by High Court under Section 115 of CPC—High Court can always treat present appeal as a revision. (Paras 11, 12 and 13)
(B) Civil Procedure Code, 1908—Order 14, Rule 1 read with Order 15, Rule 1—Framing of issue—Question as to whether parties are at issue on a question of law or fact, can be decided only after stage prescribed in Order 14 of Code is crossed—Question of framing issues under Order 14, Rule 1 would arise either after defendants file a written statement or after defendants are set ex parte—Court can come to conclusion in terms of Order 14, Rule 1 that parties are not at issues on a question of law or fact, only if pleadings are complete—Even in cases where defendants are set ex parte, Court cannot invoke Order 15, Rule 1, but has to ask plaintiff to prove his case to enable him to get a decree as prayed for. (Para 19)
Result: Appeal dismissed with costs.
V. Ramasubramanian, J.—This appeal is filed purportedly under Section 96 read with Order XLI Rule 1 of the Code of Civil Procedure, questioning the dismissal of an application filed under Order XX, Rule 18 read with Order XV, Rules 1 and 2 and Section 151 CPC seeking a preliminary decree for partition in respect of a few items of the plaint schedule properties.
2. We have heard Dr. Venkat Reddy Donthireddy, learned counsel for the appellant, Mr. C. Ramesh Sagar, learned counsel for the 1st respondent and Sri Alladi Ravinder, learned counsel appearing for the respondents 2 to 5.
3. The appellant herein filed a suit in O.S.No.43 of 2009 on the file of I Additional District Court, Karimnagar, seeking partition and separate possession of her share in suit Schedules A to H properties. In the suit as it was originally instituted, the appellant impleaded (1) her own father G.V. Sambasiva Rao as the 1st defendant; (2) her sister as the 10th defendant; (3) her paternal uncles as defendants 2 to 4; (4) her paternal grandmother as the 5th defendant and her paternal aunts as defendants 6 to 8.
4. The claim of the appellant/plaintiff in the suit was that the suit properties described in Schedules A to J belonged to her paternal grandfather G.V. Sadasiva Rao (father of defendants 1 to 4) and that he died intestate on 01-11-2007 leaving behind him surviving, the defendants 1 to 8 as his legal heirs to inherit the properties described in Schedules A to J. According to the appellant/plaintiff, the properties described in Schedules A to C were ancestral properties of G.V. Sadasiva Rao and that he got them in a partition among his brothers.
5. In so far as suit D schedule is concerned, the appellant/ plaintiff claimed that the same belonged to one Chakunta Kishan Rao and that after him, the said properties were divided among his three daughters, one of whom married the 1st defendant. Similar averments were made by the appellant/plaintiff in respect of the other items of suit properties. Since we are not concerned now with the manner in which the devolution of property was pleaded by the plaintiff, we are not elaborating on the same for the present.
6. During the pendency of the suit, the appellants father, who was the 1st defendant in the suit, got transposed as the 2nd plaintiff by an order dated 21-07-2011 in I.A.No.53 of 2011. Thereafter, the appellant herein as well as her father who is the 1st respondent herein jointly took out an application in I.A.No.449 of 2014 purportedly under Section 151 read with Order XX Rule 18 and Order XV Rules 1 and 2 of the Code seeking a preliminary decree in respect of the properties described in suit Schedules E, F and G alone. This application was taken out by the appellant and her father on the ground, interalia, that the suit was first posted on 02-02-2010 for the appearance of the defendants; that one advocate filed vakalat for defendants 2 to 4 and 9 on the said date; that as per the amended provisions of Order VIII Rule 1 of the Code, the defendants 2 to 4 and 9 had a time limit of 90 days to file a written statement; that the said period expired on 02-05-2010; that since the defendants did not file a written statement within 90 days as stipulated in Order VIII Rule 1, they forfeited their right to file a written statement; that therefore, the appellant/1st plaintiff filed an application in I.A.No.53 of 2010 for a declaration that the defendants 2 to 4 and 9 forfeited their right to file a written statement; that the said application was allowed by an order dated 25-11-2011; that despite the same, the 4th defendant filed a written statement, which cannot be taken into account in view of the order passed in I.A.No.53 of 2010; that in para-16 of the written statement, the 4th defendant pleaded very vaguely that the suit properties are not joint family properties; that defendants 2 and 3 filed a memo adopting the written statement of defendant No.22, who was only a purchaser of one item of suit B
