Crl.M.P. in M.C. filed by the petitioner to set aside the ex parte order dated 16.7.2011.- Trial court dismissed the application = Their Lordships held that The trial Court is directed to set aside the impugned ex parte order on payment of Rs.10,000/- towards costs to the respondents 1 to 3 herein and to restore the M.C., hear both the parties and pass appropriate orders. Till such time, the petitioner is directed to pay Rs.3,000/- per month each to the respondent Nos.1 and 3 towards maintenance.

CRLRC 325 / 2016 CRLRCSR 22959 / 2015 CASE IS:DISPOSED PETITIONER RESPONDENT BOLLIMUNTHA MOHANA VENKATESWARA RAO VS BOLLIMUNTHA LAKSHMI & … Continue reading Crl.M.P. in M.C. filed by the petitioner to set aside the ex parte order dated 16.7.2011.- Trial court dismissed the application = Their Lordships held that The trial Court is directed to set aside the impugned ex parte order on payment of Rs.10,000/- towards costs to the respondents 1 to 3 herein and to restore the M.C., hear both the parties and pass appropriate orders. Till such time, the petitioner is directed to pay Rs.3,000/- per month each to the respondent Nos.1 and 3 towards maintenance.

Sections 451 and 457 of the Code of Criminal Procedure before the Court below seeking to give interim custody of the case property i.e., goods carrier vehicle bearing No.AP29 TB 6900 = even though the vehicle is liable to be confiscated, no prejudice would caused for investigation if the vehicle is released for interim custody. Therefore, it is directed that the goods carrier vehicle bearing No.AP29 TB 6900, shall be released for interim custody of the petitioner, subject to final orders to be passed in the main case, on petitioner executing a personal bond for Rs.1,00,000/- (Rupees one lakh only) with one surety for the like sum to the satisfaction of the XX Metropolitan Magistrate, Cyberabad at Malkajgiri and also on production of original R.C. book. It is further directed that the petitioner shall not alienate the vehicle, shall not change the physical features of the same till the disposal of the criminal case and further the petitioner shall undertake to produce the vehicle as and when required by the Court. However, it is made clear that the present order will not stand in the way of any confiscation proceedings. If already confiscation orders are passed, the order need not be given effect to.

CRLRC 277 / 2016 CRLRCSR 3188 / 2016 CASE IS:DISPOSED PETITIONER RESPONDENT BHANOTHU BHUKYA, NALGONDA DT., VS THE STATE OF … Continue reading Sections 451 and 457 of the Code of Criminal Procedure before the Court below seeking to give interim custody of the case property i.e., goods carrier vehicle bearing No.AP29 TB 6900 = even though the vehicle is liable to be confiscated, no prejudice would caused for investigation if the vehicle is released for interim custody. Therefore, it is directed that the goods carrier vehicle bearing No.AP29 TB 6900, shall be released for interim custody of the petitioner, subject to final orders to be passed in the main case, on petitioner executing a personal bond for Rs.1,00,000/- (Rupees one lakh only) with one surety for the like sum to the satisfaction of the XX Metropolitan Magistrate, Cyberabad at Malkajgiri and also on production of original R.C. book. It is further directed that the petitioner shall not alienate the vehicle, shall not change the physical features of the same till the disposal of the criminal case and further the petitioner shall undertake to produce the vehicle as and when required by the Court. However, it is made clear that the present order will not stand in the way of any confiscation proceedings. If already confiscation orders are passed, the order need not be given effect to.

non-disposal of I.A.No.1083 of 2015 in O.S.No.197 of 2011 amounts to inaction = On 14.10.2015, the suit was dismissed for default, as there was no representation. Immediately, the petitioner filed I.A.No.1083 of 2015 on 15.10.2015 itself under Order IX Rule 9 C.P.C. to restore the suit setting aside the order of dismissal for default. It is the contention of the petitioner that on account of dismissal of the suit for injunction, the respondents herein are trying to dispossess him from the schedule property, which may lead to multiplicity of proceedings. The trial Court, despite reporting readiness by the petitioner to proceed with the hearing of the said I.A., is not taking up the matter. Under Article 227 of the Constitution of India, this Court can exercise its power to keep the subordinate Courts within the limits.

THE HON’BLE SRI JUSTICE M.SATYANARAYANA MURTHY CIVIL REVISION PETITION No.440 OF 2016 ORDER: This revision is filed under Article 227 … Continue reading non-disposal of I.A.No.1083 of 2015 in O.S.No.197 of 2011 amounts to inaction = On 14.10.2015, the suit was dismissed for default, as there was no representation. Immediately, the petitioner filed I.A.No.1083 of 2015 on 15.10.2015 itself under Order IX Rule 9 C.P.C. to restore the suit setting aside the order of dismissal for default. It is the contention of the petitioner that on account of dismissal of the suit for injunction, the respondents herein are trying to dispossess him from the schedule property, which may lead to multiplicity of proceedings. The trial Court, despite reporting readiness by the petitioner to proceed with the hearing of the said I.A., is not taking up the matter. Under Article 227 of the Constitution of India, this Court can exercise its power to keep the subordinate Courts within the limits.

C.M.A. was dismissed – No appeal nor revision – these petitions again on the same grounds not maintainable = Even after filing of the suit belatedly, the petitioner failed to evince proper interest in pursuing the same, resulting in dismissal of the suit for default. He has also filed I.A. No.556 of 2008 for restoration of the said suit. Even the said I.A. was also dismissed for default. The petitioner has failed to show diligence in pursuing the subsequent I.A., i.e. I.A. No.777 of 2010 filed for restoration of I.A. No.556 of 2008, by not paying batta. Another interesting aspect is that the petitioner has filed a civil miscellaneous appeal, i.e., C.M.A. No.33 of 2013 before the III Additional District Judge, Guntur, purportedly questioning the order in I.A. No.1156 of 2011, instead of the order in I.A. No.1155 of 2011. The said appeal was dismissed by the learned District Judge, holding that appeal does not lie against an order dismissing the application filed for condonation of delay under Section 5 of the Limitation Act, 1963. Thus, as on today, no appeal against the order in I.A.No.1155 of 2011, is filed by the petitioner. Even if the present revision petition is allowed in favour of the petitioner, the same will not enure to his benefit, as the order in I.A. No.1155 of 2011 remained unchallenged

THE HON’BLE SRI JUSTICE C.V. NAGARJUNA REDDY CIVIL REVISION PETITION NO.168 OF 2016 DATED:22-01-2016 Between: Tatineni Vijaya Bhaskar Rao … … Continue reading C.M.A. was dismissed – No appeal nor revision – these petitions again on the same grounds not maintainable = Even after filing of the suit belatedly, the petitioner failed to evince proper interest in pursuing the same, resulting in dismissal of the suit for default. He has also filed I.A. No.556 of 2008 for restoration of the said suit. Even the said I.A. was also dismissed for default. The petitioner has failed to show diligence in pursuing the subsequent I.A., i.e. I.A. No.777 of 2010 filed for restoration of I.A. No.556 of 2008, by not paying batta. Another interesting aspect is that the petitioner has filed a civil miscellaneous appeal, i.e., C.M.A. No.33 of 2013 before the III Additional District Judge, Guntur, purportedly questioning the order in I.A. No.1156 of 2011, instead of the order in I.A. No.1155 of 2011. The said appeal was dismissed by the learned District Judge, holding that appeal does not lie against an order dismissing the application filed for condonation of delay under Section 5 of the Limitation Act, 1963. Thus, as on today, no appeal against the order in I.A.No.1155 of 2011, is filed by the petitioner. Even if the present revision petition is allowed in favour of the petitioner, the same will not enure to his benefit, as the order in I.A. No.1155 of 2011 remained unchallenged

Order XXIII Rule 1 applies to the interlocutory applications also.= Order XXIII Rule 1 applies to suit, but I feel that the principle underlying the same is based on public policy, as such, I do not see any reason for not applying the said principle to the interlocutory applications also. = petitioner filed petition under Order 1 Rule 10 and Section 151 CPC to implead him as 7th respondent/7th defendant in the place of 1st respondent/1st defendant to contest the proceedings as a legatee under the Will.= The 1st defendant died on 05.11.2011 due to old age and on her death, the Will dated 29.09.2010 came into operation and he became the legatee of the will and became absolute owner of his mother estate i.e., half share of the suit schedule property. The 1st respondent/plaintiff knowing fully well, have filed a memo stating that she is only legal heir and already succeeded to the half share of his mother. The 1st respondent/plaintiff has no manner of right, title and interest against the property and sought to implead him as 7th respondent/7th defendant to contest the proceedings as a legatee.= But at the same, in the instant case, petitioner cannot maintain the present application for the same cause of action after withdrawal of I.A.No.1 of 2012 filed by him, that too, without obtaining permission to institute the present application. Though the present application is not hit by the principles of res judicata, but whoever waives, abandons or disclaims a right will forego the same. In order to prevent a litigant from abusing the process of the court by instituting suits again and again on the same cause of action without any good reason, the Code insists that he should obtain the permission of the Court to file a fresh suit after establishing either of the two grounds mentioned in Rule 1(3) of the Order XXIII. The principle underlying the above rule is founded on public policy as held by the Hon’ble Supreme Court in Sarguja Transport Service v. State Transport Appellate Tribunal, M.P.Gwalior (supra). Though the above said decision was rendered in the context of suit proceedings, but the said principle was made applicable to writ proceedings also, since the same is founded on public policy. Though Order XXIII Rule 1 applies to suit, but I feel that the principle underlying the same is based on public policy, as such, I do not see any reason for not applying the said principle to the interlocutory applications also. In the instant case, the trial Court was right in holding that a fresh interlocutory application is not maintainable before it, in respect of the same subject matter since the earlier interlocutory application had been withdrawn without permission to file a fresh application.

THE HON’BLE SRI JUSTICE A.RAJASHEKER REDDY Civil Revision Petition No.27 of 2016 Dated 02-06-2016 B.Venkata Laxmamma, Died by LR B.Koteswara … Continue reading Order XXIII Rule 1 applies to the interlocutory applications also.= Order XXIII Rule 1 applies to suit, but I feel that the principle underlying the same is based on public policy, as such, I do not see any reason for not applying the said principle to the interlocutory applications also. = petitioner filed petition under Order 1 Rule 10 and Section 151 CPC to implead him as 7th respondent/7th defendant in the place of 1st respondent/1st defendant to contest the proceedings as a legatee under the Will.= The 1st defendant died on 05.11.2011 due to old age and on her death, the Will dated 29.09.2010 came into operation and he became the legatee of the will and became absolute owner of his mother estate i.e., half share of the suit schedule property. The 1st respondent/plaintiff knowing fully well, have filed a memo stating that she is only legal heir and already succeeded to the half share of his mother. The 1st respondent/plaintiff has no manner of right, title and interest against the property and sought to implead him as 7th respondent/7th defendant to contest the proceedings as a legatee.= But at the same, in the instant case, petitioner cannot maintain the present application for the same cause of action after withdrawal of I.A.No.1 of 2012 filed by him, that too, without obtaining permission to institute the present application. Though the present application is not hit by the principles of res judicata, but whoever waives, abandons or disclaims a right will forego the same. In order to prevent a litigant from abusing the process of the court by instituting suits again and again on the same cause of action without any good reason, the Code insists that he should obtain the permission of the Court to file a fresh suit after establishing either of the two grounds mentioned in Rule 1(3) of the Order XXIII. The principle underlying the above rule is founded on public policy as held by the Hon’ble Supreme Court in Sarguja Transport Service v. State Transport Appellate Tribunal, M.P.Gwalior (supra). Though the above said decision was rendered in the context of suit proceedings, but the said principle was made applicable to writ proceedings also, since the same is founded on public policy. Though Order XXIII Rule 1 applies to suit, but I feel that the principle underlying the same is based on public policy, as such, I do not see any reason for not applying the said principle to the interlocutory applications also. In the instant case, the trial Court was right in holding that a fresh interlocutory application is not maintainable before it, in respect of the same subject matter since the earlier interlocutory application had been withdrawn without permission to file a fresh application.

Order 19 Rule 2 of CPC to direct the 1st respondent/1st defendant to appear before the court to cross-examine – not maintainable – Order XIX Rule 2 CPC, which reads as under: Power to order attendance of deponent for cross-examination: (1) Upon any application evidence may be given by affidavit, but the Court may, at the instance of either party, order the attendance for cross-examination of the deponent. (2) Such attendance shall be in Court, unless the deponent is exempted from personal appearance in Court or the Court otherwise directs.=The Court below by relying on the judgment reported in Shetty Chandra Shekar and others v. Neeti Ramulu and others (supra) dismissed the application filed by the petitioner on the ground that the deponents of third party affidavits filed in support of plaintiff or defendant can be called for cross-examination but not the affidavit filed by either the plaintiff or the defendant to the proceedings. The Court below also relied on the judgment reported in the case of Smt. Sudha and another v. Manmohan and others , wherein it is held that the request for cross examination of the defendant cannot be allowed if such request could be to protract and delay the proceedings under the main suit. The Court below has rightly relied on the judgment in Shetty Chandra Shekers case and came to the conclusion that the application under Order XIX Rule 2 CPC is not maintainable in respect of the affidavits filed by parties to proceedings and it will apply to the affidavits filed by third parties. In view of above facts and circumstances, I do not see any reason to interfere with the order of the Court below.

HONOURABLE SRI JUSTICE A.RAJASHEKER REDDY C.R.P.No.2046 OF 2016 03-06-2016 Pathange Mohan Krishna Rao .Petitioner/Defendant no.4 Smt Navale Sreevani and others … Continue reading Order 19 Rule 2 of CPC to direct the 1st respondent/1st defendant to appear before the court to cross-examine – not maintainable – Order XIX Rule 2 CPC, which reads as under: Power to order attendance of deponent for cross-examination: (1) Upon any application evidence may be given by affidavit, but the Court may, at the instance of either party, order the attendance for cross-examination of the deponent. (2) Such attendance shall be in Court, unless the deponent is exempted from personal appearance in Court or the Court otherwise directs.=The Court below by relying on the judgment reported in Shetty Chandra Shekar and others v. Neeti Ramulu and others (supra) dismissed the application filed by the petitioner on the ground that the deponents of third party affidavits filed in support of plaintiff or defendant can be called for cross-examination but not the affidavit filed by either the plaintiff or the defendant to the proceedings. The Court below also relied on the judgment reported in the case of Smt. Sudha and another v. Manmohan and others , wherein it is held that the request for cross examination of the defendant cannot be allowed if such request could be to protract and delay the proceedings under the main suit. The Court below has rightly relied on the judgment in Shetty Chandra Shekers case and came to the conclusion that the application under Order XIX Rule 2 CPC is not maintainable in respect of the affidavits filed by parties to proceedings and it will apply to the affidavits filed by third parties. In view of above facts and circumstances, I do not see any reason to interfere with the order of the Court below.

Order XXVI Rule 9 of the Code of Civil Procedure = suit for declaration of title and recovery of possession of the plaint schedule property from the respondents.for appointment of an Advocate Commissioner to localize the survey numbers 52, 53 and 54 on land along with sub- divisions therein as shown in the plaint plan, and also to localize the extent of Acs.3.50 cents in Sy. No.52/1-B1 on land, with the assistance of District Surveyor and total station instrument, and with the help of municipal survey records and other documents produced by them into the Court and the documents produced by the defendants, and also to arrange for taking necessary photographs and videos.= Under Order XXVI Rule 9 of the Code of Civil Procedure, 1908, the main purpose of appointing an Advocate Commissioner is to elucidate any matter in dispute. It does not appear from the pleadings of the parties that the identity of the property is in dispute and therefore the question of localizing the property does not arise. It is therefore wholly unnecessary for the petitioner to seek appointment of an Advocate Commissioner. Being the plaintiff, the burden is on him to prove his case by producing required evidence and he cannot seek to rely upon the help of an Advocate Commissioner for this purpose. Unless he has material in his possession to show that he has title over the suit schedule property, he should not have filed the suit at all. If, for any reason, the petitioner wants to establish the identity of the property with reference to the boundaries mentioned in the documents on ground, he is always entitled to seek survey of the property by approaching the survey officials on his own, and produce the survey reports and examine the surveyor concerned as his witness. Instead of following this procedure, the petitioner appeared to have devised a shortcut method of filing the application for appointment of an Advocate Commissioner. This, in my opinion, surely is not the purpose for which the Advocate Commissioner is appointed. In the light of the above discussion, I do not find any reason to interfere with the order of the lower Court and the civil revision petition is accordingly dismissed.

THE HONOURABLE SRI JUSTICE C.V. NAGARJUNA REDDY Civil Revision Petition No.2651 of 2016 10-06-2016 K.Sambasiva Reddy Petitioner Challa Rama Rao … Continue reading Order XXVI Rule 9 of the Code of Civil Procedure = suit for declaration of title and recovery of possession of the plaint schedule property from the respondents.for appointment of an Advocate Commissioner to localize the survey numbers 52, 53 and 54 on land along with sub- divisions therein as shown in the plaint plan, and also to localize the extent of Acs.3.50 cents in Sy. No.52/1-B1 on land, with the assistance of District Surveyor and total station instrument, and with the help of municipal survey records and other documents produced by them into the Court and the documents produced by the defendants, and also to arrange for taking necessary photographs and videos.= Under Order XXVI Rule 9 of the Code of Civil Procedure, 1908, the main purpose of appointing an Advocate Commissioner is to elucidate any matter in dispute. It does not appear from the pleadings of the parties that the identity of the property is in dispute and therefore the question of localizing the property does not arise. It is therefore wholly unnecessary for the petitioner to seek appointment of an Advocate Commissioner. Being the plaintiff, the burden is on him to prove his case by producing required evidence and he cannot seek to rely upon the help of an Advocate Commissioner for this purpose. Unless he has material in his possession to show that he has title over the suit schedule property, he should not have filed the suit at all. If, for any reason, the petitioner wants to establish the identity of the property with reference to the boundaries mentioned in the documents on ground, he is always entitled to seek survey of the property by approaching the survey officials on his own, and produce the survey reports and examine the surveyor concerned as his witness. Instead of following this procedure, the petitioner appeared to have devised a shortcut method of filing the application for appointment of an Advocate Commissioner. This, in my opinion, surely is not the purpose for which the Advocate Commissioner is appointed. In the light of the above discussion, I do not find any reason to interfere with the order of the lower Court and the civil revision petition is accordingly dismissed.