LAWS(APH)-2004-2-34

B DAS S O RANGAIAH Vs. D GUNNAMMA

Decided On February 20, 2004
B.DAS Appellant
V/S
D.GUNNAMMA Respondents

JUDGEMENT

(1.) On 28-4-2003 this Court framed the following substantial questions of law under Section 100(4) of the Code of Civil Procedure. 1. The finding of the first appellate Court, that the Civil Court has jurisdiction to entertain the suit in the face of the statutory provision, contained in Section 20 of the A.P. Buildings (Lease, Rent & Eviction) Control Act, 1960, is illegal and unsustainable and hence, has to be interfered and set-aside as such ? 2. Whether the findings recorded by the first appellate Court, on the basis of res judicata and maintainability of the suit, are illegal and unsustainable at Law and hence, warrant interference in the S.A. ? 3. Whether the first appellate Court misappreciated the material on record and recorded illegal findings, and thereby, lead to miscarriage of substantial justice and misadjudication of substantial questions of law involved in the case ? 4. To what reliefs ?

(2.) Sri Bhaskar Reddy representing Sri Dayakar Reddy, the Counsel representing the appellant in the Second Appeal, Sri B.Dass, had maintained that the Court of first instance on the material available on record had arrived at a correct conclusion by dismissing the suit and the appellate Court had totally erred in granting the said relief. The learned Counsel also had distinguished the decision K.NARSAMMA Vs. K.MALLAMMA on the ground that definitely the present suit is not a comprehensive suit. The Counsel also would maintain that a suit for declaration of this nature cannot be maintained especially in view of the remedy available to respondents under the provisions of the A.P. Buildings (Lease, Rent & Eviction) Control Act 1960. The learned Counsel also submitted that whenever the ground of fraud is raised, particulars are to be clearly pleaded and for want of particulars also, the respondents/plaintiffs are liable to be non-suited. The learned Counsel also made elaborate submissions on the aspect of applicability of doctrine of res judicata in such a case. The Counsel also pointed out that there was some delay in approaching the Court and this also would show that the respondents/plaintiffs had not prosecuted the litigation diligently. The learned Counsel also made an attempt to show that no proper opportunity had been afforded in the Court of first instance to the appellant/defendant and despite the same, no doubt on appreciation of the material available on record, the suit was rightly dismissed and hence at any rate it is a fit case where the matter may have to be remitted for the purpose of affording further opportunity to the appellant/defendant to contest the matter.

(3.) On the contrary, Sri Rajasekhar Reddy, Counsel representing the respondents/plaintiffs had submitted that in para 7 of the plaint particulars relating to fraud had been specifically pleaded and inasmuch as the title is not in dispute on the strength of the material available on record, the appellate Court had arrived at the correct conclusion. The learned Counsel also would maintain that fraud would vitiate everything and in such a case, where fraud is alleged and proved, there is no question of applying the doctrine of res judicata. The learned Counsel also had contended that the appellant/defendant cannot take advantage of his own wrong and having practiced fraud, to avoid decree at the hands of a Civil Court, the contention that a remedy by way of Appeal is available under the A.P. Buildings (Lease, Rent & Eviction) Control Act, 1960 cannot be permitted to be raised. The Counsel also submitted that under Section 9 of the Code of Civil Procedure, definitely a suit of this nature is maintainable. The Counsel also had placed reliance the decision referred (1) supra and the decisions in S.P.CHENGALVARAYA NAIDU (DEAD) BY L.RS. Vs. JAGANNATH (DEAD) BY L.RS. AND OTHERS and MAHBOOB SAHAB Vs. SYED ISMAIL AND OTHERS. Heard both the Counsel.