NOOTHALAPATI CHINA VENKAYYA Vs. PERLA SURYANARAYANA

JUDGEMENT

(1.) This is a petition presented against an order made by the learned District Munsif of Guntur in I.A. No. 2920 of 1936 in O.S. No. 552 of 1935 on the file of his Court. The application before the lower Court was for review of the judgment and decree passed by it in the suit mentioned above on 31 July 1936. The application has been granted by the Court below and this petition is presented on behalf of defendant 3 in the suit. The facts are briefly as follows : In the suit that was disposed of by the lower Court there was an issue framed in the following terms: Whether the plea of defendant 3 regarding his sale is barred by res judicata by the decision in O.S. No. 370 of 1931 on the file of the District Munsif's Court, Guntur and A.S. No. 46 of 1934 on the file of the Sub-Court, Guntur.

(2.) In the judgment pronounced by the lower Court it was mentioned that this issue was not pressed at the time arguments were advanced by the learned advocates. The petition for review of the judgment and the decree alleged that this was an incorrect statement contained in the judgment because the issue was not really given up by the learned pleader who appeared in the suit on behalf of the plaintiff. The records show that arguments were addressed to the learned District Munsif on 30 July 1936 and on the very next day, namely, on 31 July 1936 the judgment was pronounced which contained this disputed statement. It is thus clear that the facts must have been fresh in the mind of the learned District Munsif when he pronounced judgment. In the order granting the petition for review the learned District Munsif states that the judgment does not contain any incorrect statement. He is quite positive that no arguments were advanced by the plaintiff's pleader on the issue in question. He also mentions the fact that this issue was raised as an additional issue at the time of the trial and he says that normally the plaintiff or his pleader would not have given up in this manner such an issue that was raised at the instance of the plaintiff. But what he states is that the plaintiff's pleader must have taken an erroneous view of the facts and that it was because of this erroneous view that the issue was not pressed at the trial. The error referred to is with regard to a mortgage of the northern portion of the suit property to an outsider. This was the portion allotted to the share of the plaintiff and what was contended before the lower Court was that if the plaintiff and his pleader were aware of the fact that the mortgage was only of the northern portion of the property and not of the entire property, they would certainly not have relinquished the point raised in the additional issue which was framed at their instance because the result of doing so would be highly prejudicial to the interest of the plaintiff.

(3.) On behalf of the petitioner before this Court, who was the respondent in the Court below, it is pointed out that there was express reference made in the written statements filed by defendants 1 and 2 in the lower Court to the fact that the suit property was subject to a mortgage in favour of a third party and that therefore there was no excuse for the plaintiff or his pleader saying that they were not aware of the existence of this mortgage. The learned advocate for respondent 1 here contends that the Court below has not stated in its order that the plaintiff's pleader had expressly given up the point involved in issue 2 but that on a perusal of the order made by the lower Court all that can be said is that no arguments were specifically addressed on this issue and that consequently the lower Court presumed that that issue was not pressed. I am not able to accept this contention as well founded. It is nowhere stated in the order that it was a mistake committed by the lower Court as the result of the plaintiff's pleader not addressing arguments on the issue in question. On the other hand, the following sentence that appears towards the end of the order seems to me to indicate clearly that the issue was not pressed by the learned advocate as the result of a mistake. The sentence is worded as follows: The issue was specifically prayed for by the plaintiff and was got framed on the date of trial, and the judgment and decree copies necessary for the decision on that issue were all got exhibited, and it is not conceivable that the plaintiff would have given it up immediately but for the erroneous view of the vakil.