NEKKALAPUDI KOTESWARA RAO Vs. RAVIPATI HANUMANTHA RAO

JUDGEMENT

(1.) The plaintiffs 1 and 2 in O.S.No.159 of 1981on the file of Principal Subordinate Judge, Narasaraopet had preferred A.S.No.1485 of 1991. The second appellant in the said appeal died and the legal representatives were brought on record by virtue of an order made in CMP No.9945 of 2000 dated 23.6.2000. Likewise, R1 died, and the legal representatives were brought on record by order dated 08.01.2004 in CMP No.1006 of 2004. Plaintiffs 3 and 4 in the said suit O.S.No.159 of 1981 originally filed an appeal on the file of District Judge, Guntur, and the same was transferred to this Court as Transferred A.S.No.2349 of 2002. Since parties are the same, and questions involved in both these appeals also being the same, and in view of the fact that, two appeals had been preferred by the respective plaintiffs 1 and 2 and plaintiffs 3 and 4 respectively, one on the file of this Court, and, another on the file of District Court, Guntur which had been subsequently transferred to this Court. Both these appeals are being disposed of by this common judgment.

(2.) Contentions of Sri M.Chandra sekhara Rao: Sri M.Chandrasekhara Rao, the learned counsel representing appellants- plaintiffs had taken this Court through the respective pleadings of the parties, the issues originally settled and the additional issue which had been settled subsequent thereto by virtue of the amendment of the written statement and would maintain that the learned Principal Subordinate Judge, Narasaraopet having examined P.W.1 in part could have proceeded further recording of the further evidence and could have decided all the issues instead of answering only the additional issue, in the light of the provisions of the Benami Transactions (Prohibition) Act (45 of 1988) (hereinafter in short referred 'for the act') for the purpose of convenience. The learned counsel also would further maintain that even if the provisions of the Act to be taken into consideration, the learned Judge, in the light of the decision of the Apex Court in MITHILESH KUMARI AND ANOTHER v PREM BEHARI KHARE had decided the said additional issue and the said view is no longer good law especially in view of the fact that, three Judge Bench of the Apex Court in R.RAJAGOPAL REDDY (DEAD) BY LEGAL REPRESENTATIVES AND OTHERS v PADMINI CHANDRASEKHARAN (DEAD) BY LEGAL REPRESENTATIVES. had overruled the said decision. The learned counsel also would maintain that the said view is being consistently followed even in the subsequent decisions and in view of the same, the decree and judgment are liable to be set aside, and, the matter to be remanded to the learned Subordinate Judge, Narasaraopet, so, that the matter may be decided on merits on all issues, after recording the evidence of both the parties.

(3.) Contentions of G.Ramarao: Sri G.Ramarao, the learned counsel representing the respondents, however, would maintain that in the decisions in (one) supra, and in OM PRAKASH v JAI PRAKASH specifically the question of the applicability of the Act to the pending litigation had been answered and hence the view expressed by the learned Judge in this regard cannot be found fault.