KOTHALANKA DURGA VARA PRASADA RAO Vs. DATLA CHANDRAIAH

JUDGEMENT

(1.) The petitioner herein, who is the plaintiff, seeks to assail by way of revision under Article 227 of the Constitution of India, the proceedings of the Court below dated 3-9-2003 in O.S.No.52 of 1982 on the file of the Senior Civil Judge, Bhimavaram, West Godavari District, ordering for issuance of summons to the defendant No.15.

(2.) Heard Sri T.S. Anand, the learned counsel appearing for the petitioner and Sri S. Suryaprakash Rao, the learned Counsel appearing for the respondents herein, who took notice on filing a caveat. At their request, the main revision itself is taken up for disposal at the stage of admission.

(3.) The case of the petitioner is that the suit has been filed comprehensively for declaration, partition and for possession in respect of Schedule-A and B properties, which after regular trial was decreed partly to the extent of Schedule-A property and dismissing in respect of Schedule-B properties. As against the said decree, the appeal was filed by the respondents to this Court in A.S.No.174 of 1990 and the same was allowed as per the judgment and decree dated 3-7-2002 and remanded for fresh disposal on merits after impleading the legal representatives of the deceased 1st defendant viz., Kalidindi Venkata Subbamma. Therefore, according to the petitioner he filed the present application in I.A.No.185 of 2003 on 22-1-2003 for impleading Smt. Kalidindi Venkata Subbamma as 15th defendant and consequently the necessary amendments. The complaint of the petitioner is that though the proposed party was appearing in the final decree proceedings through a counsel, when the notice was sought to be served in respect of the said application, the same was refused and therefore the notice was ordered to be served by substituted service. Accordingly, a paper publication was made on 17-4-2003. In response, the same counsel was engaged and filed a counter on 7-7-2003. Ultimately, the said application was allowed after hearing, as per the orders dated 5-8-2003 and the matter was posted on 20-8-2003 for carrying out the amendment. In pursuance thereof, the petitioner has carried out the amendment on 20-8-2003 in the plaint and neat copy of the plaint was filed on 27-8-2003. However, on 3-9-2003 when the matter was taken up, the counsel appearing for the proposed party submitted that the notice be sent to the party. On which, it was represented on behalf of the petitioner that since the proposed party is already represented by the counsel, there is no necessity for sending notice to the newly added defendant No.15. Whereupon, the Court below directed for issuance of summons to the said party. It is against these proceedings, the petitioner now raised serious objection that such procedure is totally unwarranted, more so when the party was represented by the counsel and there is absolutely no justification for the counsel to refuse to receive the notice. It was also pointed out that though the suit has been filed as long back as in the year 1982, the same is still pending and being delayed at every stage due to the tactics adopted by the respondents which is quite apparent from the record. Even in the present application, the petitioner had to take recourse to effect the service of summons through substituted service by way of paper publication. Thereafter the proposed party had appeared through the same counsel and now once again insistence for a summons to be sent directly to the party is nothing but a ruse for adding to the delay and putting the petitioner to a greater loss and inconvenience. The case of the respondents is that no doubt suit had been filed by the petitioner seeking partition and possession in respect of suit schedule property and the same is being contested, inter alia, on various grounds, including that the properties are not liable for partition. After a trial and in spite of the specific issue raised on the non-joinder of necessary parties, no steps were taken by the petitioner to implead, and the suit was decreed in part and on appeal the matter was remanded to the Court below after accepting the objections on the absence of the necessary and proper parties. A review filed against the said judgment and decree was dismissed. Thereafter the petitioner had filed I.A.Nos.1992 and 1993 of 1999 for passing of final decree and the petitioner sought to serve the copies of the same on the counsel appearing for the defendant, whereupon the said counsel submitted a memo stating that the final decree proceedings are totally independent and therefore, notice has to go to the party. In the present application in I.A.No.185 of 2003 to implead, the petitioner attempted to serve the copies of the application on the counsel, who declined to receive the same stating that he did not take the vakalat for the present respondents and an endorsement was made on behalf of the petitioner on the application that the proposed defendant's counsel is not interested in receiving the notice. Thereupon, the Court directed notice returnable by 10th March 2003. However, the petitioner without depositing the process therefor, filed another application seeking for issuance of notice by substituted service, which has been ordered by the Court below by taking into consideration the plea on behalf on the petitioner that he did not know the address of the proposed party. The case of the respondents is that in fact the said Advocate had furnished the particulars of address at Visakhapatnam earlier in the execution stage. On 17-4-2003, the petitioner filed the proof publication. It is only to avoid any ex parte orders, the same counsel offered to file vakalat and ultimately the said application was ordered. Thereafter, once again when the petitioner tried to serve the amended plaint, though it was received by the counsel by mistake, it was submitted that as contemplated under the sub-rule (4) of Rule 10 of Order 1 of Code of Civil Procedure, the notice has to be sent and served on the party, rather than the counsel representing the party, since it involves many incidence, as to the commencement of the limitation from the date of receipt of summons. Therefore, accepting the said contention, the lower Court has rightlv directed issuance of summons to the party.