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MIR SARDAR ALI KHAN & OTHERS V/S SPECIAL DEPUTY COLLECTOR LAND ACQUISITION (INDUSTRIES) HYDERABAD & OTHERS, decided on Wednesday, September 6, 1972.
[ In the High Court of Andhra Pradesh, Civil Misc. Petn. Nos. 8288 & 8289 of 1972. ] 06/09/1972
Judge(s) : KONDAIAH & LAKSHMAIAH
Advocate(s) : C. Sitaramayya. A. Satyanarayana, D. Venkateswara Rao, Upendralal Waghray, A. Raghuvir.
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  "1973 AIR (AP) 298"  ==   "1973 (2) ALT 155"  ==   ""  







    Kondaiah J.1. Two applications viz. C. M. P. No. 8289/72 praying to condone the delay of 104 days in filing the application to set aside the judgment and decree in C. C. C. A. No. 156/68 dated 19-4-1972 and C. M. P. No. 8288/72 praying to add the petitioners therein as party respondents in C. C. C. A. No. 156/68 are preferred under Section 151 Civil Procedure Code and Order 1 Rule 10 read with Section 151 Civil Procedure Code respectively. The main application i.e. C. M. P. No. 8288/72 would arise for decision only if the delay of 104 days in filing the set aside application is condoned. We shall therefore first advert to the question whether sufficient cause within the meaning of Section 5 of the Limitation Act has been shown by the petitioner for condonation of the delay.2. The appeal preferred by the Special Deputy Collector Land Acquisition Industries Hyderabad questioning the enhancement of the market value of the acquired property from Rs. 944/- to Rs. 1 500/- per acre was dismissed by us on 19-4-1972. That appeal arose out of the judgment of the Lower Court in O. P. No. 362/65. The petitioners were admittedly not parties to the appeal as well as to the O. P. No. 362/65. The contention of Mr. C. Seetharamayya counsel for the petitioners is that his clients were parties to the proceedings before the Special Deputy Collector before whom they claimed to be the owners of 341 acres of land now acquired but the Special Deputy Collector did not accept their claim and the subject-matter of the award was referred to Civil Court in four O. Ps. viz. O. P. Nos. 240 248 362 and 234 of 1965. The petitioners herein were parties to the O. P. Nos. 240 and 248/65. As they were not made parties to O. P. No. 362/65 and another they were not aware of the proceedings in the lower Court as well as in this Court. They came to know only recently about the dismissal of the appeal and have filed this application.3. It is well settled that the party who seeks to have the delay in filing an appeal or application beyond the period of limitation has to satisfactorily explain every day's delay. See Ramlal v. Rewa Coalfields Ltd. AIR 1962 Supreme Court 361. The affidavit filed by the petitioners in support of their claim for condonation of the delay does not disclose any valid or justifiable grounds. The only ground stated by the counsel is the award being split up into four O. Ps. According to the petitioners they claimed to be owners of 341 acres now acquired and in respect of which a compensation of nearly 6 lakhs rupees has been awarded. The conduct of the petitioners in sleeping over for a period of 7 years is really unexplainable. A party who is interested in his property or his rights has to be diligent and careful in protecting and safeguarding the same by taking appropriate proceedings as and when required. If the petitioners were really interested in getting themselves added as parties to C. C. C. A. No. 156/68 or O. P. No. 362/65 they should have taken prompt steps. On the facts and in the circumstances we have no hesitation to hold that they were negligent in not taking diligent and proper steps in the matter. Mr. Seetharamayya admits that this is an exceptional case and normally no Court will condone the delay in the circumstances of this case. We do not feel that the petitioners are entitled to have the inordinate delay of 104 days condoned in this application. We may add that the real delay in this case is not 104 days but seven years as the grievances of the petitioners is not in respect of our decision in C. C. C. A. No. 156/68 but against the splitting up of the award passed by the Special Deputy Collector in the year 1965 and referring the same to the Civil Court in 4 O. Ps. We are unable to accede to the submission of Mr. Seetharamayya which has been very vehemently made that his clients did not know about the filing of O. P. No. 362/65 and its disposal and also the preferring of appeal by the Special Deputy Collector which was dismissed by us on 19-4-1972 till recently. It is stated in paragraph 7 of the affidavit filed in C. M. P. No. 8288/72 that the petitioners and eight others are parties in respect of title and enhancement in O. P. Nos. 240 and 248/1965. The petitioners as well as their counsel must be fully aware of the scope and application of O. P. Nos. 240 and 248/65 to which they are admittedly parties. If those O. Ps. are not comprehensive enough the petitioners and their counsel could have easily known the present controversy in respect of which they feel so much aggrieved. The petitioners alleged that their counsel never informed the stage of the O. Ps. in the Civil Court till notices were served on them in O. S. No. 97/71 filed by one Smt. Khulsumunnisa Begum claiming her share in the Matruka property of late Shamohamud Doula. In paragraph 7 it is further stated that :-In the said suit a reference was made to the above O. Ps. and as we instructed our lawyer to look into the matter we thought the matter would be looked into and care would be taken. In 1972 January we suspected something in the proceedings pending in the Civil Court in respect of O. Ps. 240 and 248 of 1965 and we requested another advocate to peruse the said files and to our surprise we found that we were set ex parte and the amount that was awarded would have been given to some others had we not taken immediate steps. We engaged another lawyer and requested the Hon'ble Court to give us permission so that matter could be contested.4. Mr. Seetharamayya states that the mentioning of O. P. Nos. 240 and 248/65 is a mistake for O. P. Nos. 362 and 234 of 1965. There appears to be considerable force in that submission as otherwise that sentence does not make any sense. Mr. Seetharamayya has realised that mistake only now and has brought it to our notice. As pointed out earlier the petitioners if they were diligent and had taken sufficient care and interest to protect their interests would have certainly discovered their mistake if any even in the year 1965 and taken appropriate steps to safeguard their interests. If their counsel did not intimate the stage of the O. Ps. and if they suspected something in the proceedings obviously referring to the counsel nothing prevented them from taking appropriate steps in that regard. The conduct of the petitioners in sleeping over for a period of seven years would clearly show that they are not only not diligent and careful but negligent and that they never bothered to know what happened to their cases. The petitioners do not deserve any sympathy as no ordinary prudent and reasonable man would have conducted himself in such a manner and alleged against their own counsel that he did not inform them. It is the duty of the party who has engaged a counsel to go to the counsel and even to the Court and find out at what stage his case is and he cannot blame the counsel without any proper justification for any adverse result in the case. In the circumstances we are satisfied that there is absolutely no justification for the petitioners to approach this Court at this stage with a request to condone the delay in filing the application to set aside the judgment and decree passed by us on 19-4-1972 in the appeal. C. M. P. No. 8289/72 is therefore dismissed with costs.5. In view of the dismissal of the application C. M. P. No. 8289/72 C. M. P. No. 8288/72 also has to be dismissed. That apart we may add that even on merits assuming that the delay is condoned there is no valid or justifiable ground to add the petitioners herein as party respondents to C. C. C. A. No. 156/68 disposed of by us on 19-4-1972. The application is filed under Order 1 Rule 10 read with Section 151 Civil Procedure Code. The scope and application of Order 1 Rule 10 Civil Procedure Code is very well settled. The very intendment and purpose of Order 1 Rule 10 (2) Civil Procedure Code is to add parties necessary or proper to enable the Court to effectually and completely adjudicate all the questions that are involved in a case. The use of the words at any stage of the proceedings in sub-rule (2) of Rule 10 in Order 1 manifests that the power vested in the Court under that provision can be exercised only when the proceedings before it are alive and still pending. In other words the application of Order 1 Rule 10 (2) should be confined only to cases where any proceedings are pending before the Court. The very purpose and object of this provision being to make any party a defendant or respondent or plaintiff or appellant in a proceeding in order to enable the Court to make an effective and complete adjudication of the questions involved in the case when once the adjudication itself of all the disputes in the case is over this provision cannot be made use of by any party. This view of ours gains support from a decision of the Madras High Court in Lingammal v. China Venkatammal (1883) ILR 6 Mad 227 at page 228 relied upon by the petitioner's counsel in support of his plea. Therein the junior widow of a Hindu was added as a party in execution of a decree obtained by the senior widow against a third party debtor of her husband. Turner C. J. speaking for the Court observed thus even at the outset :-It is unusual and inconvenient to allow a person who might have applied before decree to be joined as co-plaintiff after decree even if it be lawful to do so where no interest has devolved and no interest has been created since the institution of proceedings. The only section of the Code on which the learned counsel for the respondent can rely is the 32nd which points to the joinder of parties whose presence may be necessary for the adjudication of questions raised in the suit. Here the period of adjudication has passed. Nevertheless we are not prepared to say that the Subordinate Judge had not a discretionary power under Section 32 at any stage of the suit and although the widows are still engaged in litigation prima facie they have an equal right to collect the debts.6. Therein the junior widow who was a party was equally entitled along with the senior widow to have the fruits of the decree obtained against the judgment-debtor of their husband. Further the E. P. was pending before the Court which added the junior widow as party to the proceedings. The other decision relied upon by Mr. Seetharamayya is that of the Judicial Committee in Raghunath Das v. Sunder Das Khetri AIR 1914 PC 129 at p. 131. The point in controversy was not decided by the Privy Council in that case but it was only observed thus :-It was suggested in argument that he might have been made a party to the proceedings either under Section 32 or under Section 372 of the Code (Civil Procedure Code 1882) but even if these sections are applicable after final decree as to which there is considerable doubt......no proceedings seem to have been taken thereunder.7. The above observations of the Judicial Committee are on the other hand against the view canvassed by the petitioners herein. In the case on hand the appeal was already disposed of by us on 19-4-1972. Admittedly there is no proceeding now pending before us. It is only in cases or proceedings before us that the question of adding any party would arise apart from the desirability or propriety of doing the same. In this case we must hold that the provisions of Order 1 Rule 10 (2) Civil Procedure Code do not come to the aid of the petitioners to maintain this application in view of the admitted fact that no appeal or proceedings is pending now before us. This application therefore must be dismissed even on merits.8. The only other provision of law under which this application can be filed is Section 151 of the Code of Civil Procedure 1908. It is well settled that the inherent powers of the Court cannot be exercised in any case if there is a specific provision in the Code providing for the remedy. Even otherwise Section 151 Civil Procedure Code can be invoked only in cases where there is abuse of process of the Court or to secure the ends of justice. We do not find any justification in this application to invoke our inherent jurisdiction for the relief sought to be granted to the petitioners. Judged from any angle this application (C. M. P. No. 8288/72) must be and is hereby dismissed with costs.9. Before we part with this case we may add that any observations made by us in this order should not be construed as our expressing any opinion on the merits relating to the rights if any of the petitioners herein. It is open to them to agitate for their rights and safeguard the same in an appropriate proceeding.Order accordingly.