AYIPALA VENKATARAYA CHETTY Vs. AYIPALA RAMACHANDRIAH CHETTY
LAWS(APH)-1969-4-17
HIGH COURT OF ANDHRA PRADESH
Decided on April 25,1969

AYIPALA VENKATARAYA CHETTY Appellant
VERSUS
AYIPALA RAMACHANDRIAH CHETTY Respondents


Referred Judgements :-

MYTHILI AMMAL V. MAHADEVA AYYAR [REFERRED TO]
PONUSWAMI V. ALAMELAMMAL [REFERRED TO]
ANGANNA V. ANGAMMUTHU [REFERRED TO]
VENATASUBBAIAH V. THIRUPATHAIAH [REFERRED TO]
IN RE,K. ANNAMALAI CHETTIAR [REFERRED TO]
VIJAI PRATAP SINGH AND RAMJIWAN MISIR VS. DUKH HARAN NATH SINGH AND IN BOTH THE APPEALS [REFERRED TO]
ANJANEYA DASU ASHRAMAM VS. KOMMALA SOMASUNDARAMMA [REFERRED TO]
MOHAMMAD SALAMATULLA VS. MOHAMMAD FAZLUR RAHAM [REFERRED TO]



Cited Judgements :-

HARI KISHAN GUPTA VS. CIVIL JUDGE KANNAUJ [LAWS(ALL)-1999-9-113] [REFERRED TO]
DEVIREDDY SULOCHANAMMA VS. REBALA PATTABHIRAMIREDDY CHARITIES [LAWS(APH)-2004-8-95] [REFERRED TO]
MERCANTILE CREDIT CORPORATION LIMITED VS. K SATHYAN [LAWS(KER)-1997-1-29] [REFERRED TO]
MECHANTILE CREDIT CORPORATION VS. SATHYAN [LAWS(KER)-1997-1-26] [REFERRED TO]


JUDGEMENT

Krishnarao, J. - (1.)This appeal involves the determination of the scope and interpretation of O. 33, R 5 (d-1) and R. 6 Civil P. C. as amended in Madras and adopted in Andhra Pradesh. Though the question raised was directly decided by a Division Bench of the Andhra High Court in Venkatasubbaiah v. Thirapathaiah, 1955 Andh WR 261 == (AIR 1955 Andhra 155) and followed in a subsequent Division Bench decision of the Andhra Pradesh High Court, Sri Mnaohar, learned counsel appearing for one of the respondents in this appeal, challenged the correctness of the view taken by this Court and contended that the view taken by this Court requires reconsideration by a Full Bench in view of the decision of the Madras High Court dissenting from the view taken by the Andhra High Court. It has therefore, become necessary to consider whether the view of this Court requires reconsideration.
(2.)The facts out of which the above Civil Miscellaneous Appeal arises are as follows: The appellant filed a suit O. P. No. 76 of 1960 in the Court of the Subordinate Judge, Chittoor for partition of the suit properties and for recovery of a share therein, with a prayer to permit him to sue as a pauper under O. 33, R. 1 Civil P. C. The plaint contains various allegations according to which the plaintiff claims a share in the suit properties. It was alleged inter alia in the plaint that there were attempts at partition which according to the plaintiff were either abortive or incomplete. The suit was contested by the various respondents stating that the suit was barred by limitation, that there was an actual registered deed of partition and that some of the defendants acquired title by adverse possession. the learned subordinate Judge framed tow points for consideration; (i) whether the petitioner is a pauper; and (ii) whether the petition is barred in law and if so, whether the petition is liable to be rejected. On the first point it was found that the plaintiff was a pauper and the said finding is not questioned before us. but on the second point, it was held that in view of a previous partition which was proved by the respondents, the plaintiffs suit should be dismissed. It was further held that the first respondent who was the manger of the plaintiffs branch was debarred form enforcing the partition and that the plaintiff was also precluded form claiming partition. In coming to the finding on the second point, the lower appellate court permitted the respondents to adduce documentary evidence to substantiate their allegations in defence, namely, that their was a prior completed partition, that the first respondent was the manger of the plaintiffs branch and that he lost his right to claim a partition. On behalf of the plaintiff he filed into court an extract shown is date of birth and another document. in addition to thus documentary evidence, oral evidence was also received on the question whether the plaintiff is entitled to any relief in the suit for partition. In view of the finding on the second question , the O. P. was rejected by the trial Court. Against the said order of rejection, which amounts to a rejection of the plaint, the plaintiff filed the above C. m. A. in this court, As the value of he suit is Rs. 84,000.00 this appeal is posted before us for disposal.
(3.)The learned counsel for the appellant Sri W. V. V. Sundara Rao challenged the correctness of the order of the trial court on the ground that the enquiry conducted with respect to the second point for determination by the court below was beyond the scope of O. 33, R. 6 and that the said enquiry should be confined merely to the prohibitions set out in Rule 5 (d) or (d-1) which are founded only on the allegations contained in the plaint. In other words, his argument is that de hors the allegations in the plaint, the Court should not permit the defendant s to adduce evidence in support of their allegations which raise disputed questions of fact on the determination of which depends the plaintiffs right to obtain a decree in the suit. According to the earned counsel, the scope of the enquiry and the right of the defendants to let in evidence at this stage should be confined only to the matters disclosed form the allegations in the plaint and not otherwise.
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