VIKRASIMHA REDDY Vs. CHAIRMAN ANDHRA PRADESH HOUSING BOARD

JUDGEMENT

(1.) In this case there is no trial on merits and the suit was dismissed for default of non-production of evidence by the trial Court under the following circumstances.

(2.) The facts which are not in dispute are that the plaintiff in O.S.No. 464/75 is the appellant in this Second Appeal. He filed a suit for declaration that the tenancy of the suit house standing in the name of the third defendant, is really for the plaintiff, and the second defendant, and for consequential relief. It is the case of the plaintiff that the 3rd defendant who is only an agent, has secured the tenancy falsely in his name, instead of in the name of plaintiff, and the 2nd defendant. The suit was filed on the file of the 9th Assistant Judge, City Civil Court, Hyderabad. The 3rd defendant in his turn filed a counter suit i. e. 0. S. No. 2377/78 on the file of the 3rd Asst. Judge, City Civil Court Hyderabad, for an identical relief impleading the plaintiff in 0. S. No. 464/75, and his brother who is the 2nd defendant, in 0. S. No. 464/75. and also the Housing Board, who is the first Defendant, in 0. S. No. 464/75. He sought a declaration that he is the real owner, that the allotment in his favour is valid and the plaintiff and his brother have no right in it. That suit was decreed exparte on 24-7-1980. The present appellant who is the plaintiff in O. S. No. 464/75 filed an application to set aside the exparte decree passed against him in O. S. No. 2377/78. It is apprehended that decree operates as Res Judicata against him in 0. S. No. 464/75, and so he was seeking adjournments of the trial of his suit hoping, that his application to set a side the exparte decree will be allowed. But on the fateful day i. e., on 20-4-81 the trial court refused an adjournment and the suit was dismissed for non- production of the evidence. It has to be noticed that the application filed by the plaintiff to set aside the exparte decree against him in 0. S. No. 2377/78, was allowed on 29-4-81. The appeal filed by the plaintiff against the judgment and decree in 0. S. No. 464/75 was dismissed by the appellate court on the ground that court has no option except to dismiss the suit under Order 17 Rule 3 C. P. C. and consequently affirmed the judgment and decree dismissing the suit of the plaintiff for default of npn- production of evidence. Against the judgment of the Appellate Court dt. 22-1-81, the present appeal is filed.

(3.) Now it is represented that the suit filed by the 3rd defendant in 0. S. No. 2377/78 ripe for trial, and is now on the file of the 9th Asst. Judge, City Civil Court, Hyderabad after it is transferred at the instance of the plaintiff in 0. S. No. 2377/78.