IN THE HIGH COURT OF JUDICATURE AT HYDERABAD FOR THE STATE OF TELANGANA & THE STATE OF ANDHRA PRADESH (Special Original Jurisdiction) MONDAY, THE FIFTEENTH DAY OF SEPTEMBER TWO THOUSAND AND FOURTEEN PRESENT THE HON'BLE SRI JUSTICE VILAS V. AFZULPURKAR WRIT PETITION No.37178 of 2013 BETWEEN Padi Papayya and 14 others.
AND ... PETITIONERS The Special Officer cum Junior Civil Judge, Palasa, Srikakulam District and four others.
...RESPONDENTS Counsel for the Petitioners: MR. K. MANIK PRABHU Counsel for the Respondents: GP FOR REVENUE A(P) MR. S. SRINIVASA RAO The Court made the following:
ORDER:
Petitioners in this writ petition question 16 identical but separate interlocutory orders, all dated 19.06.2013, passed by the Special Officer cum Junior Civil Judge, Palasa, Srikakulam District clubbing ATC.Nos.2 to 14 of 2010 along with ATC.No.1 of 2010 for common trial. The affidavit of the petitioners states in para 3 that though all the orders are verbatim same except for change of name of parties and the numbers of the case, this single writ petition is filed by paying separate Court fees with respect to each impugned order in each ATC.
2. The facts, in brief, necessary for adjudication of this writ petition, are as follows:
a) Respondents 2 to 5 herein are separate landlords with respect to each ATC and they have filed the aforesaid separate eviction cases against tenants, who are collectively the petitioners 1 to 15 herein, before the Special Officer cum Junior Civil Judge, Palasa seeking their eviction. Petitioners state in the affidavit that second respondent filed five cases viz. ATC.No.1 of 2010 against one Padi Bharathi; ATC.No.6 of 2010 against petitioner No.6; ATC.No.11 of 2010 against petitioner No.10; ATC.No.12 of 2010 against petitioner No.11 and ATC.No.14 of 2010 against petitioners 13 to 15.
(b) Third respondent herein filed five ATC’s viz. ATC.No.3 of 2010 against petitioner No.2; ATC.No.5 of 2010 against petitioners 4 and 5; ATC.No.7 of 2010 against petitioner No.7; ATC.No.8 of 2010 against petitioner No.8 and ATC.No.10 of 2010 against petitioner No.9.
(c) Fourth respondent herein filed two ATC’s viz. ATC.No.4 of 2010 against petitioner No.3 and ATC.No.13 of 2010 against petitioner No.12.
(d) Fifth respondent herein filed two ATC’s viz. ATC.No.2 of 2010 against petitioner No.1 and ATC.No.9 of 2010 against petitioner No.9.
(e) It is stated that the extents of land and tenancy of respective tenants in each of the aforesaid eviction petitions are separate and distinct and all the petitioners/tenants are said to be contesting each of the eviction petitions separately by filing counters on behalf of each of the tenant. While so, the respondents/landlords 2 to 5 herein filed the interlocutory applications viz. I.A.No.1 to 2012 in ATC.No.2 of 2010 to I.A.No.13 of 2012 in ATC.No.14 of 2010 requesting the Special Officer cum Junior Officer to club ATC.Nos.2 to 14 of 2010 with ATC.No.1 of 2010 for common trial and disposal.
The said interlocutory applications were opposed by the tenants/petitioners herein by filing counter. However, under the impugned order, the Special Officer has allowed the applications by ordering clubbing of the matters together. Questioning the said orders, this writ petition was filed.
3. On 19.12.2013, this Court issued notice to the respondents and pending further orders, granted stay of all further proceedings in ATC.Nos.2 to 14 of 2010. The writ petition has been coming up, thereafter, on several occasions and the learned counsel for respondents has filed a counter affidavit together with a vacate stay petition being WVMP.No.1301 of 2014 and thereafter, both the learned counsel have been heard and orders were reserved on 26.08.2014.
4. Learned counsel for the petitioners questions the orders impugned, primarily, on the admitted fact that each petition schedule property is separate with reference to the respective tenant and that the defence available to each tenant cannot be said to be a common defence from the nature of the eviction petitions filed separately against each tenant. Learned counsel, further, submitted that clubbing of these eviction petitions would lead to multiplicity of proceedings and recording of distinct evidence with reference to particular eviction petition would be defeated if common evidence is lead, particularly, as one landlord cannot lead evidence with reference to tenancy relating to other landlords nor the respective tenants can raise their defence in common.
5. Learned counsel for the respondents, primarily, contends that the petitioners have not availed alternate remedy of appeal, as provided under Section 16(2) of the A.P. (Andhra Area) Tenancy Act, 1956 (for short ‘the Act’). According to learned counsel, Section 16(2) of the Act provides for an appeal before the District Judge against any order passed by the Special Officer under Section 6 of the Act. Learned counsel, therefore, contends that bypassing the said appellate remedy, the petitioners have approached this Court and as such, questions the maintainability of the writ petition.
6. So far as merits are concerned, learned counsel for respondents submits that prior to the filing of these eviction petitions under ATC.Nos.1 to 14 of 2010, the respondents/landlords and the petitioners/tenants had fought out a long drawn litigation up to the Supreme Court in PINNINTI KISTAMMA
[1]
v. DUVVADA PARASURAM CHOWDARY . Learned counsel submits that the said previous litigation right up to the Supreme Court arose out of common proceedings and common adjudication between the parties and since the case of the petitioners and the respondents herein is common, the order impugned, passed by the Special Officer clubbing of ATC’s for common trial is sustainable. Learned counsel also submits that some of the respondents herein are advanced in age and it is difficult for them to depose in each individual case as that will considerably delay the hearing and disposal of the eviction petitions unless common trial is held.
7. In the order impugned, the Special Officer found that previous litigation between the parties was tried and disposed of commonly and the petition schedule property in each eviction petition is part and parcel of the schedule property in other eviction petitions.
Thus, the Special Officer found that though the petition schedule properties are different, since all the eviction petitions are on the ground of default of payment of Rajabagam (equivalent to rent), the cause of action is one and the clubbing of ATC’s is justified.
8. I have considered the aforesaid submissions. So far as the objection as to alternate remedy raised by the learned counsel for respondents is concerned, I am not inclined to entertain the same inasmuch as there is no bar for this Court to exercise jurisdiction, under Article 226 of the Constitution of India, if it is satisfied that the order impugned would lead to miscarriage of justice. The said contention also cannot be upheld in view of the fact that this Court had already entertained the writ petition, while issuing notice before admission and had already granted stay of all further proceedings, which is operating from 19.12.2013. At this distance of time and at the final hearing of the writ petition, it may not be just and proper to reject the writ petition on the said ground of availability of alternate remedy. The said contention is, therefore, negatived.
9. So far as merits of the respective contentions are concerned, it is not in dispute that each ATC concerns a particular landlord and his tenant and the petition schedule property in each ATC is different and distinct, as is evident from the opening paras of this order viz. second respondent filed five ATC’s against five different tenants, similarly, third respondent filed five ATC’s and respondents 4 and 5 had filed two ATC’s each. Thus, respondents 2 to 5 may be landlords collectively with reference to separate eviction petitions filed by them, but admittedly, each eviction case between the concerned landlord and concerned tenant is required to be adjudicated independently.
The clubbing of all these cases for recording of common evidence, in my view, would lead to absurd mixing of causes of action as well as evidence and would result to prejudice and miscarriage of justice so far as petitioners are concerned, who are all tenants facing eviction proceedings.
10. The Special Officer cum Junior Civil Judge appears to have been swayed by the commonality of cases in the previous litigation and on that count appears to have clubbed all the ATC’s for common trial.
It is, however, to be appreciated that the previous litigation ended with the decision of the Supreme Court in PINNINTI KISTAMMA’s case (1 supra). It is evident from the facts of the previous litigation that tenants had filed seven different suits claiming tenancy rights in respect of 19.80 acres of land in Kambirigam village and for permanent injunction restraining the landlords from interfering with their possession. Similarly, the landlords also filed 13 cross-suits viz. O.S.No.75 of 1980 and batch praying for injunction restraining the tenants from interfering with an extent of land admeasuring 181 acres, which include the aforesaid 19.80 acres of land. Thus, in the said suits seeking permanent injunctions, filed by both the parties, common question arose and as such, were tried together and disposed of under common judgment and decree and ultimately, by order of the Supreme Court, permanent injunction was granted in favour of the tenants to the extent of 19.80 acres of land, which was found to be under their tenancy.
11. Subsequent thereto, each landlord has filed separate eviction petitions, referred to above and as such, it cannot be said that the present separate eviction petitions also involve common cause, as was with reference to the relief of permanent injunction in the previous litigation. This Court, therefore, cannot appreciate the approach the Special Officer cum Junior Civil Judge in clubbing the separate eviction petitions for common trial when the landlords and tenants in each eviction petition are distinct apart from the suit schedule property and the pleadings of the landlords and the defence of the respective tenant are bound to be different in each case.
12. The further contention of the learned counsel for the respondents, that some of the landlords are advanced in age and expeditious disposal of the eviction petitions is warranted, cannot lead to miscarriage of justice by mixing of different causes of action.
In order to achieve expeditious disposal, however, appropriate directions can be issued and the Special Officer cum Junior Civil Judge shall ensure that the evidence of the landlords, who are stated to be advanced in age, can as well be recorded by appointing an Advocate Commissioner, as provided under Order 18 Rule 4 of the Code of Civil Procedure, 1908.
The writ petition is accordingly allowed setting aside the impugned order. The parties are at liberty to make appropriate application to the Special Officer cum Junior Civil Judge for expeditious disposal of the eviction petitions including making a request for recording of evidence on behalf of the landlords by resorting to provisions analogous to Order 18 Rule 4 CPC. If any such application is made, the Special Officer cum Junior Civil Judge shall consider the said request on its own merits, expeditiously, by issuing appropriate directions necessary for early disposal of the eviction petitions.
As a sequel, miscellaneous applications, if any, shall stand closed. There shall be no order as to costs.
VILAS V. AFZULPURKAR, J September 15, 2014 DSK
[1] (2010) 2 SCC 452