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Tuesday, April 22, 2014

OR.21, RULE 37 C.P.C - BOTH ARE BROTHERS - ARE IN ADVANCED AGE - HIGH COURT DIRECTED TO PAY MONTHLY EQUAL INSTALLMENTS - FAILING WHICH EXECUTION OF DECREE AS PER LAW = PETITIONER RESPONDENT PANTA SRINIVASULA REDDY VS PANTA GOPALA REDDY =2014 (March . Part ) http://hc.ap.nic.in/csis/MainInfo.jsp?mtype=CRP&mno=644&year=2014

OR.21, RULE 37 C.P.C - ARREST E.P. - BOTH ARE BROTHERS - ARE IN ADVANCED AGE - HIGH COURT DIRECTED TO PAY MONTHLY EQUAL INSTALLMENTS - FAILING WHICH EXECUTION OF DECREE AS PER LAW =
In the circumstances and having regard to the relationship between the parties and their ages, the petitioner herein is directed to pay or deposit the decretal amount at the rate of Rs.20,000/- in equal monthly installments, on or before 5th of every succeeding month, commencing from the month of March, 2014, and the remaining amount in the last month, of course this shall be subject to the amounts, if any, already paid/deposited by the petitioner herein.  If the petitioner fails to deposit any one of the installments, the Court below may pass appropriate orders.
2014 (March . Part ) http://hc.ap.nic.in/csis/MainInfo.jsp?mtype=CRP&mno=644&year=2014
CRP 644 / 2014
CRPSR 6055 / 2010
PETITIONERRESPONDENT
PANTA SRINIVASULA REDDY  VSPANTA GOPALA REDDY
PET.ADV. : SURESH KUMAR POTTURIRESP.ADV. : LAKSHMINARAYANA REDDY
SUBJECT: C.P.C.DISTRICT:  NELLORE

THE HON’BLE SRI JUSTICE B.CHANDRA KUMAR

CIVIL REVISION PETITION No.644 of 2014
ORDER:                              
This Civil Revision Petition is directed against the order, dated 16.11.2009, in E.P.No.42 of 2009 in O.S.No.895 of 2004 on the file of the Court of the Principal Junior Civil Judge, Nellore.

It is not in dispute that the petitioner and the respondent are the brothers.  The respondent filed O.S.No.895 of 2004 and obtained a money decree against the petitioner on 04.05.2006.  Aggrieved by the same, the petitioner preferred A.S.No.171 of 2006 and the same was dismissed on 04.04.2008.  Since no further grievance raised therefrom, the judgment and decree passed in the suit against the petitioner became final and accordingly, the respondent herein filed E.P.No.42 of 2009 seeking to arrest and detain the petitioner in a civil prison.  There is no need to consider the other aspects. 

The petitioner herein was examined as R.W.1.  In the cross examination, he has admitted that he got 12.72 cents of wet land to his share in the family partition and it gives crop and yield.  The respondent herein, who is the decree holder, was examined as P.W.1 and in the cross examination, he admitted that he got attached the house and land property of the petitioner herein.  Admittedly, the respondent obtained a decree on 04.05.2006 in the suit and till this date, the petitioner has not paid any amount to him.

In the circumstances and having regard to the relationship between the parties and their ages, the petitioner herein is directed to pay or deposit the decretal amount at the rate of Rs.20,000/- in equal monthly installments, on or before 5th of every succeeding month, commencing from the month of March, 2014, and the remaining amount in the last month, of course this shall be subject to the amounts, if any, already paid/deposited by the petitioner herein.  If the petitioner fails to deposit any one of the installments, the Court below may pass appropriate orders.

Subject to the directions made supra, the Civil Revision Petition is disposed of. There shall be no order as to costs. As a sequel, miscellaneous petitions pending, if any, in this civil revision petition shall stand closed.
_______________________

         (B.CHANDRA KUMAR, J)

24th February, 2014
GHN



302 I.P.C. - Circumstantial evidence - not established - trial court rightly acquit the accused - their lordship of High court dismissed the state appeal = PETITIONER RESPONDENT THE STATE OF A.P. VS NATTA YESUPADAM AND 2 OTHERS=2014(Feb.Part ) http://hc.ap.nic.in/csis/MainInfo.jsp?mtype=CRLA&mno=109&year=2014

302 I.P.C. - Circumstantial evidence - not established - trial court rightly acquit the accused - their lordship of High court dismissed the state appeal =
When appellant court disturb the lower court judgement =
SIDHARTHA VASHISHT @ MANU SHARMA VS. STATE (NCT OF DELHI)[1], the following principles have to be kept in mind by the Appellate Court while dealing with the appeals, particularly, against the order of acquittal:
(i) There is no limitation on the part of the Appellate Court to review the evidence upon which the order of acquittal is found.
(ii) The Appellate Court in an appeal against acquittal can review the entire evidence and come to its own conclusions.
(iii) The Appellate Court can also review the Trial Court’s conclusion with respect to both facts and law.
(iv) While dealing with the appeal preferred by the State, it is the duty of the Appellate Court to marshal the entire evidence on record and by giving cogent and adequate reasons set aside the judgment of acquittal.
(v) An order of acquittal is to be interfered only when there are “compelling and substantial reasons” for doing so. If the order is “clearly unreasonable”, it is a compelling reason for interference.
(vi) While sitting in judgment over an acquittal the Appellate Court is first required to seek an answer to the question whether finding of the Trial Court are palpably wrong, manifestly, erroneous or demonstrably unsustainable. If the Appellate Court answers the above question in the negative the order of acquittal is not to be disturbed. Conversely, if the Appellate Court holds, for reasons to be recorded, that the order of acquittal cannot at all be sustained in view of any of the above infirmities, it can reappraise the evidence to arrive at its own conclusion.
(vii) When the Trial Court has ignored the evidence or misread the material evidence or has ignored material documents like dying declaration/report of Ballistic Experts etc., the Appellate Court is competent to reverse the decision of the Trial Court depending on the materials placed.
Circumstantial evidence =
There is no direct evidence to show that the accused are the assailants of the deceased.  The entire case rests upon circumstantial evidence. When a case rests upon circumstantial evidence, law is well settled that all the circumstances must firmly and unerringly point out the guilt towards the accused; that all the circumstances if taken cumulatively, should form a chain so complete that there is no escape from the conclusion that within all human probability, the crime was committed by the accused and none else.
If accused too of that same blood group ?
As seen from Ex.P17, which is the Forensic Science Laboratory report the clothes of the deceased were also sent to the same laboratory and ‘B’ group of blood was found on the clothes. But there is no evidence to show that the blood group of A2 and A3 is also same blood group. If the blood group of A2 and A3 is also same, it cannot be incriminating against the accused. Therefore, it is a neutral circumstance and it cannot be taken as an incriminating circumstance against the accused.
Scene of offence not visible 
but on their own admission it is clear that it is not possible for them to see any person coming down from the rooftop of the church from the place where they were sleeping; that there was a delay of seven hours in lodging the report to the police though Police Station is located at a distance of 2 Kms., from the scene of occurrence; that Ex.P1 was brought into existence after due deliberations and if the evidence of PWs.1 and 2 is disbelieved, there is no other evidence to show that A2 and A3 are the assailants of the deceased and that after giving cogent and substantial reasons the trial Court rightly acquitted them and that order of acquittal needs no interference by this Court.


2014(Feb.Part ) http://hc.ap.nic.in/csis/MainInfo.jsp?mtype=CRLA&mno=109&year=2014

CRLA 109 / 2014
CRLASR 31093 / 2008
PETITIONERRESPONDENT
THE STATE OF A.P.  VSNATTA YESUPADAM AND 2 OTHERS
PET.ADV. : PUBLIC PROSECUTORRESP.ADV. : 
SUBJECT: U/s.302 I.P.C AcquittalDISTRICT:  PRAKASAM


HON'BLE SRI JUSTICE K.C. BHANU

AND
HON’BLE MRS JUSTICE ANIS
                                              

CRIMINAL APPEAL No.109 OF 2014


JUDGMENT:- (per Hon’ble Sri Justice K.C. Bhanu)

                             
This Criminal Appeal, under Section 378 (3) & (1) of the Code of Criminal Procedure, 1973 (for short, "Cr.P.C."), is directed by the State against the judgment, dated
05-02-2008, in Sessions Case No.241 of 2006 on the file of the VII Addl. Sessions Judge, Prakasam division, Ongole, whereunder and whereby, the respondents/A2 and A3 were acquitted of the charges leveled against them.

2.      The brief facts that are necessary for the disposal of the present appeal may be stated as follows:
Natta Veera Kumar (hereafter referred to as ‘the deceased’) is no other than the husband of PW1. PW2 is the mother, PW3 is the neighbourer and PWs.4 and 5 are closely related to the deceased. The accused and the deceased belonged to Peda Maddali Village of Pamarru mandal of Krishna District. All of them settled at Jaya Prakash Colony in Ongole. A1 and A2 constructed a church, which is named as Navajeevana Sahavasa Prardhana Mandiram and they were preaching to the disciples. To the east of the said church the deceased purchased a house site. A1 was having a site on the east of the site of the deceased. On mutual understanding they exchanged the sites. A1 constructed a house to the east of the Church, whereas the deceased constructed a house with sheets roof to the east of the house of A1. The church was facing towards east, whereas the house of A1 and the house of the deceased were facing towards north. Due to indecent behaviour of A1, the devotees removed him as pastor and so A2 was managing the church. The image of A1 was decreased and the image of the deceased was increased in that locality. So, it became eyesore to A1. A1 and A2 were suspecting that the deceased might capture the church due to his popularity and so they developed grudge against the deceased and were waiting for an opportunity. All the accused conspired together to do away the life of the deceased. In pursuance of their conspiracy A3 took the deceased to the rooftop of the church on the night of 04-06-2004 at about 10:30 PM for the purpose of sleeping. On 05-06-2004 at about 5:00 AM, A1 to A3 went to the top of the church, where the deceased was sleeping and attacked the deceased. The deceased made hue and cry and then died in a pool of blood at the place where he was sleeping. On hearing the cries of the deceased, PWs.1 to 3 and others rushed to the scene of occurrence and saw A1 to A3 coming down from the church. At that time, A1 was armed with an axe. When PWs.1 to 3 went to the scene of occurrence, they found the deceased lying in a pool of blood. On the next day, at about
12:00 noon, PW1 went to the Police Station and lodged a report. The police registered a case in Crime No.203 of 2004 for the offence punishable under Section 302 r/w.109 IPC.
The Inspector of Police visited the scene of occurrence and observed the scene in the presence of mediators. During the course of investigation, he seized the blood stained slab portion, controlled slab portion, pieces of bed sheet, pillow cover etc.,. He prepared rough sketch of scene of occurrence and got photographed the scene of occurrence. Thereafter he held inquest on the dead body of the deceased in the presence of mediators. After inquest the dead body of the deceased was subjected to post mortem examination. On 15-06-2004 at about 4:45 PM the Inspector of Police arrested the accused and in pursuance of their confessional statements the bloodstained clothes were seized from the bushes near V.V. & M College, Ongole under a cover of panchanama. The material objects were sent to the chemical examination. After completion of investigation the police filed charge sheet.
In view of the fact that A1 was absconding the case against A1 was split up and separated.

3.      The trial Court framed the charges under Sections
120-B, 302 r/w.120-B or 302 r/w.109 IPC against the accused. When the said charges were read over and explained to A2 and A3 in Telugu, they pleaded not guilty and claimed to be tried.

4.      To substantiate the charges, the prosecution examined P.Ws.1 to 12 and got marked Exs.P-1 to P-17, besides case properties M.Os.1 to 15.
5.      After closure of prosecution evidence, A2 and A3 were examined under Section 313 Cr.P.C. to explain the incriminating circumstances appearing against them in the evidence of prosecution witnesses. They denied the same and reported no oral evidence on their behalf. But, Ex.D1 was got marked on behalf of the defence.

6.      The trial Court upon considering the evidence on record, found that the prosecution failed to establish the guilt of A2 and A3 beyond all reasonable doubt and it has not placed any reliance on the evidence of PWs.1 and 2, and accordingly, acquitted A2 and A3. Challenging the same, the present appeal is preferred by the State.

7.      The points for determination are:
Whether the prosecution proved its case beyond all reasonable doubt with regard to the charges leveled against A2 and A3 and whether the judgment of the trial Court is correct, legal and proper or not?

8.      POINTS:-   The learned Additional Public Prosecutor contended that PWs.1 and 2 are the natural witnesses who rushed to the scene of occurrence immediately after the incident and their evidence is clear that they saw A1 to A3 coming down from the rooftop of the church in the early hours of the date of incident and at that time A1 was armed with an axe and they hurriedly left the scene of occurrence, and therefore, this circumstances would conclusively establish that it is the accused who committed the murder of the deceased; that without properly appreciating the evidence on record the trial Court acquitted A2 and A3; that the death of the deceased is established as homicidal in nature and the Doctor who conducted autopsy has categorically stated that the death of the deceased was due to injuries on the neck.

9.      On the other hand, learned counsel for the second respondent/A2 contended that the entire case rests upon solitary circumstance of PWs.1 and 2 seeing A1 to A3 coming down from the rooftop of the church in the early hours on the date of incident, but on their own admission it is clear that it is not possible for them to see any person coming down from the rooftop of the church from the place where they were sleeping; that there was a delay of seven hours in lodging the report to the police though Police Station is located at a distance of 2 Kms., from the scene of occurrence; that Ex.P1 was brought into existence after due deliberations and if the evidence of PWs.1 and 2 is disbelieved, there is no other evidence to show that A2 and A3 are the assailants of the deceased and that after giving cogent and substantial reasons the trial Court rightly acquitted them and that order of acquittal needs no interference by this Court.

10.    There cannot be any dispute that in dealing with the Criminal Appeal against the order of acquittal, though Appellate Court has got full power to re-appreciate the evidence available on record, still it will be slow in interfering with the findings in view of the fact that there is a presumption under law that the accused is presumed to be innocent unless contrary is proved by the prosecution beyond all reasonable doubt and that presumption of innocence is further strengthened by an order of acquittal.  Unless there are compelling or substantial reasons viz., the findings are perverse, or not based upon any evidence, or admissible evidence has not been taken into consideration, or inadmissible evidence was taken into consideration, ordinarily this Court would not interfere with the same. In short, there must be compelling or substantial reasons for interfering with the order of acquittal.  In view of the decision reported in SIDHARTHA VASHISHT @ MANU SHARMA VS. STATE (NCT OF DELHI)[1], the following principles have to be kept in mind by the Appellate Court while dealing with the appeals, particularly, against the order of acquittal:
(i) There is no limitation on the part of the Appellate Court to review the evidence upon which the order of acquittal is found.
(ii) The Appellate Court in an appeal against acquittal can review the entire evidence and come to its own conclusions.
(iii) The Appellate Court can also review the Trial Court’s conclusion with respect to both facts and law.
(iv) While dealing with the appeal preferred by the State, it is the duty of the Appellate Court to marshal the entire evidence on record and by giving cogent and adequate reasons set aside the judgment of acquittal.
(v) An order of acquittal is to be interfered only when there are “compelling and substantial reasons” for doing so. If the order is “clearly unreasonable”, it is a compelling reason for interference.
(vi) While sitting in judgment over an acquittal the Appellate Court is first required to seek an answer to the question whether finding of the Trial Court are palpably wrong, manifestly, erroneous or demonstrably unsustainable. If the Appellate Court answers the above question in the negative the order of acquittal is not to be disturbed. Conversely, if the Appellate Court holds, for reasons to be recorded, that the order of acquittal cannot at all be sustained in view of any of the above infirmities, it can reappraise the evidence to arrive at its own conclusion.
(vii) When the Trial Court has ignored the evidence or misread the material evidence or has ignored material documents like dying declaration/report of Ballistic Experts etc., the Appellate Court is competent to reverse the decision of the Trial Court depending on the materials placed.

Keeping the above principles in mind, it is to be seen whether there are any compelling or substantial reasons to interfere with the judgment of the trial Court. 

11.    PW12 is the Inspector of Police who conducted inquest on the dead body of the deceased in the presence of mediators under Ex.P4. The inquest mediators opined that the deceased died as a result of injuries on the neck. PW10 is the Doctor who conducted autopsy on the dead body of the deceased found two cut injuries on the right side of the neck and three abrasions on the other parts of the body. The Doctor opined that the deceased died due to shock and hemorrhage as a result of ante-mortem injuries on the neck. Ex.P13 is the post mortem examination report. The opinion expressed by the Doctor remained unchallenged. From the evidence of PWs.10 and 12 and the recitals in Exs.P4 and P13, the homicidal nature of the death of the deceased is established.

12.    There is no direct evidence to show that the accused are the assailants of the deceased.  The entire case rests upon circumstantial evidence. When a case rests upon circumstantial evidence, law is well settled that all the circumstances must firmly and unerringly point out the guilt towards the accused; that all the circumstances if taken cumulatively, should form a chain so complete that there is no escape from the conclusion that within all human probability, the crime was committed by the accused and none else. All the circumstances should not only consistent with the case of prosecution but also should be inconsistent with the hypothesis of the guilt of the accused. On this aspect, it is pertinent to refer to a decision reported in Sharad Birdhichand Sarda Vs. State of Maharashtra[2] wherein it is held at para No.153 as under:
         “A close analysis of this decision would show that the following conditions must be fulfilled before a case against an accused can be said to be fully established :

(1) the circumstances from which the conclusion of guilt is to be drawn should be fully established.

      It may be noted here that this Court indicated that the circumstances concerned 'must or should' and not 'may be' established. There is not only a grammatical but a legal distinction between 'may be proved' and 'must be or should be proved' as was held by this Court in Shivaji Sahebrao Bobade v. State of Maharashtra, (1973) 2 SCC 793 : (AIR 1973 SC 2622) where the following observations were made :
      "certainly, it is a primary principle that the accused must be and not merely may be guilty before a Court can convict and the mental distance between 'may be' and 'must be' is long and divides vague conjectures from sure conclusions."

(2) the facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty.

(3) the circumstances should be of a conclusive nature and tendency.

(4) they should exclude every possible hypothesis except the one to be proved, and

(5) there   must  be a chain of evidence so complete as not to leave
     any  reasonable  ground for the conclusion consistent with the    
     innocence  of  the  accused  and  must show that in all human   
     probability the act must have been done by the accused.


13.    Three circumstances relied upon by the prosecution are namely 1) The accused were last seen alive were coming down from the rooftop of the church and the dead body of the deceased was found in the pool of blood on the rooftop of the church.
2) The blood-stained clothes of the deceased were seized at their instance which contained same blood group of the deceased.
3) The homicidal nature of the death of the deceased. 

14.    The homicidal nature of the death of the deceased is established. In pursuance of the disclosure statement made by the accused, bloodstained clothes have been seized. They were sent to the Forensic Science Laboratory and the report of Forensic Science Laboratory shows that it contains ‘B’ group blood. As seen from Ex.P17, which is the Forensic Science Laboratory report the clothes of the deceased were also sent to the same laboratory and ‘B’ group of blood was found on the clothes. But there is no evidence to show that the blood group of A2 and A3 is also same blood group. If the blood group of A2 and A3 is also same, it cannot be incriminating against the accused. Therefore, it is a neutral circumstance and it cannot be taken as an incriminating circumstance against the accused.
15.    The only circumstance remained on record is PWs.1 and 2 saw A1 to A3 coming down from the rooftop of the church. They saw them at about 5:00 AM on 05-06-2004. PWs.1, 2, 4 and 5 are closely related to the deceased. PW1 is the wife, PW2 is the mother, PW4 is the brother and PW5 is the brother-in-law, of the deceased respectively. They did not speak anything with regard to the motive for A1 to A3 to commit the murder of the deceased. On the other hand, their evidence would clearly go to show that A2 and A3 were in cordial terms with the deceased prior to the incident. Therefore, the prosecution has failed to establish the motive. No doubt, motive is not an integral part of the crime but at the same time motive plays an important role when a case rests upon circumstantial evidence.

16.    PW3 who is a neighbourer and who saw A1 to A3 coming down from the rooftop of the church building did not support the case of the prosecution. Except marking his statement as in Ex.P2 nothing has been elicited in his cross-examination to connect A2 and A3 with the crime. Therefore, the evidence of PW3 is not at all relevant for the purpose of proving the charge leveled against the accused.

17.    The trial Court has not placed any reliance on the evidence of PWs.1 and 2 because it is not possible for them to see the place through which A1 to A3 were coming down from rooftop, from the place where they were sleeping. The scene of occurrence is not in dispute. PW6, one of the panch witnesses who was present at the time of observing the scene of occurrence, has categorically stated that the dead body of the deceased was found lying in a pool of blood on the roof of the church building. It is not in dispute that the church is facing towards east, whereas the house of PWs.1 and 2 is facing towards north. It is admitted by PWs.1 and 2 that it is not possible for them to see any person coming down from the church from the place where they were sleeping. Therefore, on their own admission, it is clear that it is not possible for them to see A2 and A3 coming down from the rooftop of the church building. So, that is the reason why the trial Court has not placed an implicit reliance on the evidence of PWs.1 and 2. If really, they had seen A2 and A3 coming down from the church, either one of them must have gone to the Police Station, which is situated at a distance of 2 Kms. from the scene of occurrence. No explanation is forthcoming as to why PW1 did not go to Police Station for lodging the report immediately after the incident. The delay in lodging the report by itself is not a ground to over throw the case of the prosecution. But, at the same time, it can be taken as one of the circumstances to doubt the case of the prosecution. After the relations came to the scene of occurrence PW1 went to Police Station and lodged report. Therefore, till 12:00 noon on the date of the incident, PW1 might not have known as to the assailants of the deceased and perhaps that is the reason why the delay of 7 hours had taken place.

18.    If the evidence of PWs.1 and 2 is disbelieved, there is no other evidence to show that A2 and A3 are the assailants of the deceased. The trial Court after recording the reasons disbelieved the evidence of PWs.1 and 2 and there are no compelling or substantial reasons to interfere with the same. None of the finding is shown to be perverse or contrary to the weight of evidence. Therefore, in the absence of any perverse findings, the well reasoned judgment of the trial Court needs no interference by this Court and the appeal is devoid of merits.

19.    Accordingly, the Criminal Appeal is dismissed confirming the judgment, dated 05-02-2008, in Sessions Case No.241 of 2006 on the file of the VII Addl. Sessions Judge, Prakasam division, Ongole.

20.    Miscellaneous petitions, if any, pending in this appeal shall stand closed.

                     ______________________

JUSTICE K.C. BHANU


____________­­­___

                                                           JUSTICE ANIS

January 22, 2014
PN

 

 

HON'BLE SRI JUSTICE K.C. BHANU

AND
HON’BLE MRS JUSTICE ANIS
































CRIMINAL APPEAL No.109 OF 2014



January 22, 2014



PN


[1] 2010 (6) SCC 1
[2] AIR 1984 SC 1622

Order 41 Rule 22 C.P.C - Cross Appeal /Cross Objections - when to be filed - Second appeal - when a party failed to file cross objection/cross appeal against the adverse finding against him can not file second appeal - their Lordships of High court dismissed the second appeal on technical/legal point = SMT. JAYAM LEELAVATHAMMA VS NAMA JANARDHANA SETTY AND 8 OTHERS,= 2014 (March. part ) http://hc.ap.nic.in/csis/MainInfo.jsp?mtype=SA&mno=67&year=2014

   Order 41 Rule 22 C.P.C - Cross Appeal /Cross Objections - when to be filed - Second appeal - when a party failed to file cross objection/cross appeal against the adverse findings against him can not file second appeal - their Lordships of High court dismissed the second appeal on technical/legal point = 
Against the said judgment and decree, the unsuccessful plaintiff filed the appeal insofar as declaration that defendant Nos.8 and 9 are the absolute owners of item No.4 by virtue of Ex.B-8 sale deed.  The appellant herein, who is defendant No.6 in the suit, has not challenged that finding.  Without filing an appeal against the judgment and decree of the trial Court, the appellant cannot file Second Appeal.

13.     Learned counsel for appellant placed reliance on a decision reported in Hardevinder Singh v. Paramjit Singh and others[1]wherein it is held at para No.21 as under:

          “After the 1976 Amendment of Order 41 Rule 22, the insertion made in sub-rule (1) makes it permissible to file a                 cross-objection against a finding.  The difference is basically that a respondent may defend himself without taking recourse to file a cross-objection to the extent the decree stands in his favour, but if he intends to assail any part of the decree, it is obligatory on his part to file the cross-objection.  In Banarsi v. Ram Phal [(2003)9 SCC 606], it has been observed that the amendment inserted in 1976 is clarificatory and three situations have been adverted to therein.  Category 1 deals with the impugned decree which is partly in favour of the appellant and partly in favour of the respondent.  Dealing with such a situation, the Bench observed that in such a case, it is necessary for the respondent to file an appeal or take cross-objection against that part of the decree which is against him if he seeks to get rid of the same though he is entitled to support that part of the decree which is in his favour without taking any cross-objection.  In respect of two other categories which deal with a decree entirely in favour of the respondent though an issue had been decided against him or a decree entirely in favour of the respondent where all the issues had been answered in his favour but there is a finding in the judgment which goes against him, in the pre-amendment stage, he could not take any cross-objection as he was not a person aggrieved by the decree.  But post-amendment, read in the light of the Explanation to sub-rule (1), though it is still not necessary for the respondent to take any cross-objection laying challenge to any finding adverse to him as the decree is entirely in his favour, yet he may support the decree without cross-objection.  It gives him the right to take      cross-objection to a finding recorded against him either while answering an issue or while dealing with an issue.  It is apt to note that after the amendment in the Code, if the appeal stands withdrawn or dismissed for default, the cross-objection taken to a finding by the respondent would still be adjudicated upon on merits which remedy was not available to the respondent under the unamended Code.”

Even as per the ratio laid down in the above decision, the appellant herein has to file an appeal or cross objections against the part of decree, which is against him, before the first appellate Court.  But he did not do so.

14.     In view of the fact that the issue recorded by the trial Court against the appellant/defendant No.6 has not been challenged by him by filing an appeal or cross objections when the plaintiff filed the appeal before the first appellate Court, she is debarred from filing the Second Appeal, as she has not availed her right to file an appeal or cross objections in the first instance.  Therefore, the appeal is not maintainable and hence, it is liable to be dismissed.

2014 (March. part ) 

http://hc.ap.nic.in/csis/MainInfo.jsp?mtype=SA&mno=67&year=2014
http://164.100.12.10/hcorders/orders/2014/sa/sa_67_2014.html

SA 67 / 2014

SASR 41049 / 2004

PETITIONERRESPONDENT
SMT. JAYAM LEELAVATHAMMA  VSNAMA JANARDHANA SETTY AND 8 OTHERS,
PET.ADV. : PRAMODRESP.ADV. : VENKATESWARA RAO GUDAPATI
SUBJECT: CONCURRENTDISTRICT:  CHITTOOR


 THE HON’BLE SRI JUSTICE K.C.BHANU


SECOND APPEAL No.67 OF 2014



JUDGMENT:
         

This Second Appeal, under Section 100 of the Code of Civil Procedure, 1908, (for short, “C.P.C.”) is directed against the judgment and decree, dated 4.2.2004, in A.S.No.25 of 2000 on the file of VII Additional District Judge, Madanapalle, whereunder and whereby, the judgment and decree, dated 21.3.2000, in O.S.No.102 of 1996 on the file of the Senior Civil Judge, Piler were confirmed.
2.       For better appreciation of facts, the parties hereinafter are referred to as they are arrayed in the trial Court.
3.       The plaintiff filed the suit against defendant Nos.1 to 8 originally seeking division of the plaint schedule properties into 24 equal shares and allotment of 9 such shares in his favour by separate metes and bounds and for the other usual reliefs.  Defendant No.9 was subsequently added as per the order, dated 20.1.1988, in I.A.No.682 of 1987.  The brief facts in the plaint are as follows:
The suit schedule properties are the ancestral properties of the plaintiff, defendant No.3 and their father Srinivasulu Setty, each of them had 1/3rd share in the property.  Srinivasulu Setty got five daughters, who are defendant Nos.2 and 4 to 7.  All the daughters of Srinivasulu Setty were married.  After the death of Srinivasulu Setty, who died intestate, his 1/3rd share devolved upon his five daughters and two sons and each of them became entitled to 1/24th share.  Defendant No.1 is the wife of Srinivasulu Setty.  Plaintiff, who was originally entitled to 1/3rd share in the suit property, on the death of his father, became entitled to 1/24th share and thus, entitled to 9/24th share in the suit property.
          After the death of Srinivasulu Setty, defendant No.3 became greedy and intended to take away the income from the share of the plaintiff also for which he did not agree.  The plaintiff got issued a notice on 14.9.1986 calling upon defendant No.3 to divide the property and to allot his share separately.  Defendant No.3 got issued a reply notice with incorrect facts and figures.  Defendant No.3 is trying to sell away the joint family property to defendant No.8 without any manner of right in spite of the protest by the plaintiff. Defendant No.9 is the brother of defendant No.8.  Defendant Nos.8 and 9 had taken the sale deed from defendant No.3 in respect of some portion of the plaint schedule properties.  Hence, the suit.
4.       Defendant Nos.2, 4 and 5 remained ex parte.
5.       Defendant No.6 filed a written statement, which was adopted by defendant Nos.1, 5 and 7, contending that except the relationship between the parties as mentioned in the plaint, the other averments are not true and correct.  He contended that plaint schedule properties excluding few items are the self acquired and separate properties of late Srinivasulu Setty.  Srinivasulu Setty executed two registered wills, dated 27.8.1987, in favour of defendant Nos.2 and 4 to 7 and another registered will, dated 5.9.1982, in favour of defendant No.1 to the knowledge of the plaintiff and all the defendants in a sound and disposing state of mind.  The wills came into effect after the death of Srinivasulu Setty.  Defendant No.6 contended that herself, defendant Nos.1, 5 and 7 were not aware of exchange of notices between the plaintiff and defendant No.3.  He also contended that they also came to know of the alienations made by defendant No.3 in respect of some of the items of plaint schedule properties detrimental to their interest and contended that the alienations are illegal and not valid and binding on them.  Srinivasulu Setty had a little ancestral property, which he got in a partition with his brothers, which took place around 1940.  However, the registered partition deed was executed among the brothers of Srinivasulu Setty only in the year 1972.  There was practically no income from the said property, as it was not cultivable due to drought conditions.  In the partition, Srinivasulu Setty was allotted several debts to his share.  He had a large family to maintain and so, in such strained economic circumstances, he discharged his liabilities, educated his children and performed their marriages with his hard earnings and also acquired properties.  Defendant No.1’s parents’ native place is Medikurthi.  She got some property.  It was also utilised for the acquisitions made by Sreenivasulu Setty.  The family suffered a great deal due to the fraud committed by the first wife of defendant No.3.  The ancestral property owned by Srinivasulu Setty was covered by item Nos.1 to 3 of the plaint schedule. Item Nos.1 and 2 of the plaint schedule are in fact dry lands and the extents mentioned are incorrect.  Item Nos.4 to 19 are all self acquired and separate properties of Srinivasulu Setty wherein neither the plaintiff nor defendant Nos.1 to 7 have any right in view of the Wills executed by Srinivasulu Setty.  Neither the plaintiff nor defendant No.3 has any right in the suit property.  On the death of Srinivasulu Setty, the plaintiff and defendant Nos.2 to 7 became entitled to 1/8th share each in item Nos.4, 5 and 14 to 19, which were the separate and self acquired properties of Srinivasulu Setty.  In item Nos.1 to 3, which are ancestral properties, Sreenivasulu Setty, plaintiff and defendant No.3 became entitled to 1/3rd share each and after the death of Srinivasulu Setty, plaintiff and defendant No.3 became entitled to 9/24th share while defendant Nos.1, 2 and 4 to 7 are entitled to 9/24th share.  The defendant appears to have executed a sale deed in respect of item No.4 in favour of defendant Nos.8 and 9 and item Nos.14 and 16, which are not binding on her and others. The plaintiff brought on record the persons, who purchased the property from defendant No.3, being aware of the same.  He suspects collusion between the plaintiff and defendant No.3 and hence, prayed to dismiss the suit.
6.       Defendant No.8 filed a written statement contending that defendant No.3 purchased some properties covered by survey number 250 with his self earnings on 6.2.1965 for Rs.1500/- under a registered sale deed, which is item No.4 of the plaint schedule property. He has been in possession and enjoyment of the same.  The Revenue authorities have also issued the passbook in the name of defendant No.3.  He purchased item No.4 of the suit property from defendant No.3 under a registered sale deed, dated 29.12.1986 for a consideration of Rs.12,000/- and came into possession of the same.  Item No.4 of the plaint schedule property never belonged to the joint family of the plaintiff and hence, prayed to dismiss the suit.
7.       Defendant No.3 did not choose to file a written statement. 
8.       Basing on the above pleadings, the following issues were framed for trial:
“1. Whether the plaint schedule properties are the ancestral properties of the plaintiff and defendants?
2. Whether the plaintiff is entitled for an share if so, to what share?
                     3. Whether the plaintiff is entitled for
                     partition and separate possession?
                    
                    4.  To what relief?”

9.       Later, the following additional issues were framed:
                      1.Whether item No.4 of the plaint schedule            
                         is the absolute property of D-8 and D-9
                         and whether they are in absolute
                         possession of the said item of property?

                     2. Whether in the plaint schedule, item       
                         No.4 was the separate and self
                         acquired property of third defendant?”

10.     During trial, P.Ws.1 to 3 were examined and Exs.A-1 to A-3 were got marked on behalf of the plaintiff.  On behalf of the defendants, D.Ws.1 to 10 were examined and Exs.B-1 to B-12 were got marked. On behalf of defendant Nos.8 and 9, defendant No.3 was examined as C.W.1 and Exs.C-1 and C-2 were got marked.
11.     The trial Court, after considering the evidence on record, passed a preliminary decree holding as under:-
“1) Plaintiff and the 3rd defendant are entitled to 9/24th share each and defendants 1, 2 and 4 to 7 are each entitled to 1/24th share in the plaint schedule items 1 to 3, 15 and 20 which are held to be the ancestral and the joint family properties of the plaintiff and defendants 1 to 7.
2) Defendants 1, 2 and 4 to 7 are exclusively entitled to the plaint schedule items 6 to 13 by virtue of the registered wills Exs.B3 and B4 executed by Nama Sreenivasulu Setty which are held to be his self acquired properties according to their respective allotments under the said two Wills.
3) The plaintiff and defendants 1 to 7 are equally entitled to 1/8th share each in the plaint schedule items 5, 14, 16 to 19, 21 and 22 as they are held to be the self acquired properties of Nama Sreenivasulu Setty.
4) D8 and D9 are declared to be the absolute owners of the plaint schedule item No.4 by virtue of Ex.B-8 sale deed.” 

12.     Against the said judgment and decree, the unsuccessful plaintiff filed the appeal insofar as declaration that defendant Nos.8 and 9 are the absolute owners of item No.4 by virtue of Ex.B-8 sale deed.  The appellant herein, who is defendant No.6 in the suit, has not challenged that finding.  Without filing an appeal against the judgment and decree of the trial Court, the appellant cannot file Second Appeal.

13.     Learned counsel for appellant placed reliance on a decision reported in Hardevinder Singh v. Paramjit Singh and others[1]wherein it is held at para No.21 as under:

          “After the 1976 Amendment of Order 41 Rule 22, the insertion made in sub-rule (1) makes it permissible to file a                 cross-objection against a finding.  The difference is basically that a respondent may defend himself without taking recourse to file a cross-objection to the extent the decree stands in his favour, but if he intends to assail any part of the decree, it is obligatory on his part to file the cross-objection.  In Banarsi v. Ram Phal [(2003)9 SCC 606], it has been observed that the amendment inserted in 1976 is clarificatory and three situations have been adverted to therein.  Category 1 deals with the impugned decree which is partly in favour of the appellant and partly in favour of the respondent.  Dealing with such a situation, the Bench observed that in such a case, it is necessary for the respondent to file an appeal or take cross-objection against that part of the decree which is against him if he seeks to get rid of the same though he is entitled to support that part of the decree which is in his favour without taking any cross-objection.  In respect of two other categories which deal with a decree entirely in favour of the respondent though an issue had been decided against him or a decree entirely in favour of the respondent where all the issues had been answered in his favour but there is a finding in the judgment which goes against him, in the pre-amendment stage, he could not take any cross-objection as he was not a person aggrieved by the decree.  But post-amendment, read in the light of the Explanation to sub-rule (1), though it is still not necessary for the respondent to take any cross-objection laying challenge to any finding adverse to him as the decree is entirely in his favour, yet he may support the decree without cross-objection.  It gives him the right to take      cross-objection to a finding recorded against him either while answering an issue or while dealing with an issue.  It is apt to note that after the amendment in the Code, if the appeal stands withdrawn or dismissed for default, the cross-objection taken to a finding by the respondent would still be adjudicated upon on merits which remedy was not available to the respondent under the unamended Code.”

Even as per the ratio laid down in the above decision, the appellant herein has to file an appeal or cross objections against the part of decree, which is against him, before the first appellate Court.  But he did not do so.

14.     In view of the fact that the issue recorded by the trial Court against the appellant/defendant No.6 has not been challenged by him by filing an appeal or cross objections when the plaintiff filed the appeal before the first appellate Court, she is debarred from filing the Second Appeal, as she has not availed her right to file an appeal or cross objections in the first instance.  Therefore, the appeal is not maintainable and hence, it is liable to be dismissed.

15.     Accordingly, the Second Appeal is dismissed at the stage of admission.  There shall be no order as to costs.  Miscellaneous petitions, if any, pending in this Second Appeal shall stand closed.

______________________
JUSTICE K.C.BHANU

Date: 21.3.2014
AMD                                                                            

 

 THE HON’BLE SRI JUSTICE K.C.BHANU

 


 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 











 

 

 


SECOND APPEAL No.67 OF 2014




DATE : 21.3.2014





AMD



[1] (2013) 9 Supreme Court Cases 261