PATTA APPALANARASAMMA Vs. PRINCIPAL SUB JUDGE

JUDGEMENT

(1.) This is a Revision Petition under Article 227 of the Constitution of India at the instance of the second defendant in O.S. No.253 of 1997 on the file of the Principal Subordinate Judge, Visakhapatnam (hereafter called 'the trial Court').. The petitioner is aggrieved by the orders passed by the trial Court in LA. No.325 of 1997 in O.S. No.253 of 1997 dated 10-4-1997. By the said order, the trial Court directed the petitioner and the third respondent herein to furnish third party security to the money claimed in the suit by the second respondent within 15 days from the date of the order failing which the petitioner and the third respondent were restrained from contesting the suit and filing the written statements.

(2.) Briefly the facts leading to filing of this Revision Petition are as follows. The parties are called by their status in the suit in O.S. No.253 of 1997. The plaintiff (second respondent herein) filed a suit for recovery of money with interest and for permanent injunction restraining the defendants (petitioner and the third respondent herein) from lifting 200 tons of material from the mining site and for mandatory injunction directing the defendants to supply the material as per the agreement dated 15-4-1994. The agreement dated 15-4-1994 is executed between the plaintiff and the first defendant. As per the agreement, the plaintiff allegedly agreed to supply 3,600 tons of dressed China Clay Lumps of export quality per annum commencing from 1st July, 1994 at the rate of Rs.460.00 per ton at the mining site. After entering into the agreement, the plaintiff procured supply orders from Germany and New Zealand. On 6-10-1996, the plaintiff placed orders with the first defendant for supply of 200 tons of the above-said material and paid an amount of Rs.92,000.00 in addition to the amount of Rs.2-00 lakhs allegedly paid by the plaintiff as advance. The material was kept ready at the mining site. However, the plaintiff could not lift the material as the defendnats objected to the same. The plaintiff's efforts to settle the matter with the defendants amicably proved futile and after waiting for 4 months, he filed the suit. Along with the main suit, an Interlocutory Application under Order XXXIX Rules 1 and 2 of the Civil Procedure Code, 1908 (CPC) being LA. No.325 of 1997 was filed praying the trial Court for an ad interim injunction restraining the defendants from interfering with the lifting of 200 tons of material from the mining site. The Court below, by an order dated 100-4-1997, ordered status quo by way of an ad interim ex parte measure.

(3.) The second defendant filed counter affidavit inter alia denying any agreement between the plaintiff and the first defendant and also demurring the jurisdiction of the trial Court to entertain the suit. She denied receipt of Rs.2-00 lakhs as repayable advance as well as receipt of Rs.92,000.00- when the plaintiff allegedly placed orders in October, 1996.