THE HON'BLE SRI JUSTICE L. NARASIMHA REDDY CIVIL REVISION PETITION No. 1070 OF 2011 Dated:11-07-2014
Between:
Smt. T. Ushasri and another ... PETITIONERS AND Smt. R.J. Lakshmi Devi and six others .. RESPONDENTS THE HON'BLE SRI JUSTICE L. NARASIMHA REDDY CIVIL REVISION PETITION No. 1070 OF 2011
ORDER:
Respondent Nos.1 and 2 filed O.S No. 202 of 2005 in the Court of the III Additional Chief Judge, City Civil Court, Hyderabad against their daughter, the 1st petitioner;
son-in-law, the 2nd petitioner and the Jubilee Hills Cooperative Society, the 3rd respondent herein for the relief of declaration that they are the owners of the suit schedule property and to cancel the sale deed dated 15-09-1987 executed in favour of the 1st petitioner, by declaring it as void. The 4th respondent herein, the son of respondent Nos.1 and 2 filed O.S No. 130 of 2006 against his parents, his sisters i.e., the 1st petitioner and respondent Nos.5, 6 and 7 for partition and separate possession of that very item of the property. Both the suits were clubbed. The evidence of respondent Nos.1 and 2 was recorded in O.S No. 202 of 2005. When the necessity has arisen for recording of further evidence, the trial Court passed an order dated 04-03-2011 directing that the evidence of plaintiff in O.S No. 130 of 2006 i.e., the 4th respondent shall be recorded and for that purpose, the suits were adjourned to 14-03-2011. However, on 16-03-2011, the trial Court modified order dated 04-03-2011 and directed that the defendants in O.S No. 202 of 2005 i.e, the petitioners herein shall commence their evidence. The said order is challenged in this revision.
Sri M.V. Durga Prasad, learned counsel for the petitioners submits that the 4th respondent i.e., the plaintiff in O.S No. 130 of 2006 is sailing with his parents-respondent Nos.1 and 2 who filed O.S No. 202 of 2005 and realising that there is commonality not only in the parties, but also the schedule property, both the suits were clubbed; and it is but natural that the parties having common interest, irrespective of their place in the cause title of the respective suits, must be required to depose on one side; and as a matter of fact, the trial Court took such a view in its order dated 04-03-2011. He contends that the order dated 16-03-2011 passed by the trial Court, modifying its earlier order dated 04-03-2011, cannot be sustained either on substantive or procedural basics. He submits that the course of action indicated by the trial Court through the order under revision would enable the 4th respondent to fill the lacunae, if any, in the evidence of his parents-respondent Nos.1 and 2 or to otherwise weaken the case of the petitioners.
Sri K. Rajanna and Sri T. Narayana, learned counsel for the respondents on the other hand submit that though the suits are clubbed together, the reliefs claimed in the suits are totally different and independent of each other and in that view of the matter, it is essential that the recording of evidence is also separate. They submit that the trial Court has corrected the mistake committed by it on 04-03-2011.
The brief purport of two suits has been furnished in the preceding paragraphs. While respondent Nos.1 and 2 filed the suit for declaration of their right in respect of the entire suit schedule property and for cancellation of the sale deed executed in favour of the 1st respondent, their son-the 4th respondent filed the suit for partition. There is indeed overlapping of claims in both the suits and obviously, for that reason, they were clubbed.
Once the suits are clubbed, it is essential that such of the parties in the suits, so clubbed, as are pursuing one line, must be directed to depose at one instance whether or not they figure in the same fashion in the suits as parties. Keeping this in view that the trial Court passed the order on 04-03-2011 as under:
“Since the plaintiff in OS 130 of 2006 evidence not recorded to record the evident of Plaintiff in OS. 130 of 2006. Call on 14-03-2011.”
If any of the respondents are aggrieved by this course of action, they ought to have pursued the remedies vis-à-vis the order. Nothing of that sort has taken place. However, on its own accord, the trial Court passed an order on 16-03-2011 as under:
“The earlier order dated: 4-3-2011 is modified with direction to the defendant in OS 202 of 2005 to let in evidence by 21-03-2011.”
For all practical purposes, the trial Court reviewed its order dated 04-03-2011 without there being an application. It is only typographical and clerical mistakes, that can be corrected by the Courts, on their own accord. When a written order, brief or long, is passed with a definite purport, the Court cannot review, it in the absence of the application by the aggrieved party.
Even on merits, the order under revision cannot be sustained. The record discloses that the 4th respondent is supporting the case of his parents-respondent Nos.1 and 2. The 1st petitioner figured as defendant in both the suits. Therefore, it is essential and mandatory that the evidence on the side of the plaintiffs in both the suits must be recorded at a stretch and only thereafter the evidence on behalf of the petitioners must be recorded. The course of action adopted by the trial Court runs contrary to the letter and spirit of Order 18 CPC.
The C.R.P accordingly allowed and the order under revision is set aside. It is directed that the trial Court shall record the evidence of the plaintiffs in O.S No. 202 of 2005, the plaintiff in O.S No.130 of 2006 and such of the defendants in that suit as are supporting the case of the plaintiff at one stretch and thereafter record the evidence of the petitioners.
The miscellaneous petitions filed in this revision shall also stand disposed of. There shall be no order as to costs.
L. NARASIMHA REDDY, J
11h July, 2014 ks Note: LR copy to be marked.
B/O ks