APHC010127492025 IN THE HIGH COURT OF ANDHRA PRADESH AT AMARAVATI (Special Original Jurisdiction) [3329] THURSDAY,THE TWENTIETH DAY OF NOVEMBER TWO THOUSAND AND TWENTY FIVE PRESENT THE HONOURABLE SRI JUSTICE VENKATESWARLU NIMMAGADDA CIVIL MISCELLANEOUS APPEAL NO: 126/2025 Between: 1. VALLABHANENI VENKATA RAJU,, S/O. VENKATA POORNA BHASKARA RAO, AGED ABOUT 60 YEARS, OCC AGRICULTURE, R/O. PORANKI VILLAGE, PENAMULURU MANDAL NTR DISTRICT, ANDHRA PRADESH. ...APPELLANT AND 1. YARLAGADDA SUBHASHINI, W/O. LATE BHARGAVA MOHAN RAO, AGED ABOUT 81 YEARS, OCC AGRICULTURE, R/O. DOKIPARRU VILLAGE, GUDLAVALLERU MANDAL, KRISHNA DISTRICT. 2. VALLABHANENI POORNA BHASKARA RAO, S/O. LATE GAJENDRUDU, AGED ABOUT 87 YEARS, OCCAGRICULTURE, R/O. DOKIPARRU VILLAGE, GUDLAVALLERU MANDAL, KRISHNA DISTRICT. 3. VALLABHANENI VENKATESWARA RAO DIED, A 4. VALLABHANENI SESHARATHNAM, W/O. LATE POORNA BHASKAR RAO, AGED ABOUT 84 YEARS, R/O. D.NO. C-135, SVN COLONY, GUNTUR CITY, GUNTUR DISTRICT. 5. V PADMA SRI, W/O. VATTIKUTI POORNA CHANDRA RAO, D/O. LATE POORNA BHASKAR RAO, AGED ABOUT 60 YEARS, R/O. D.NO. C-135, SVN COLONY, GUNTUR CITY, GUNTUR DISTRICT. 6. VALLABHANENI PREMILA RANI, W/O. LATE VALLABHANENI VENKATESWARA RAO, AGED ABOUT 62 YEARS,R/O. D.NO.5- 2 208,KARMIKANAGAR KATTA, TADIGADAPA, VIJAYAWADA, NTR DISTRICT- 521137 7. VALLABHANENI GOWTHAMI, D/O. LATE VALLABHANENI VENKATESWARA RAO, AGED ABOUT 34 YEARS, R/O. 301- SREE RAMJI APARTMENTS, SANTHI NAGAR, GUDIVADA- 521301, KRISHNA DISTRICT. ...RESPONDENT(S): Appeal Under Section_____against orderspleased to set aside the order dated 02.12.2024 in I.A.No.855 of 2018 in A.S.No.38 of 2013 on the file of the XI Additional District Judge Krishna at Gudivada and to restore A.S. No.38 of 2013 on the file of the XI Additional District Judge Krishna at Gudivada IA NO: 1 OF 2025 Petition under Section 151 CPC praying that in the circumstances stated in the affidavit filed in support of the petition, the High Court may be pleased Pleased to implead the proposed respondents no.4 and 5 as respondents no.4 and 5 in C.M.A.No.126 of 2025 on the file of this Hon’ble Court as LRS of deceased Respondent no 2 and pass IA NO: 2 OF 2025 Petition under Section 151 CPC praying that in the circumstances stated in the affidavit filed in support of the petition, the High Court may be pleased pleased to to permit the petitioner to bring the proposed respondents no.6 &7 as the Legal Representatives of deceased respondent no.3 in C.M.A.No.126 of 2025 on file Of this Hon’ble Court. IA NO: 3 OF 2025 Petition under Section 151 CPC praying that in the circumstances stated in the affidavit filed in support of the petition, the High Court may be pleased may be pleased to permit the petitioner to affect the service of notice on proposed respondent no.6 through substituted service by publication in a local daily newspaper in place of her residence and pass IA NO: 4 OF 2025 Petition under Section 151 CPC praying that in the circumstances stated in the affidavit filed in support of the petition, the High Court may be pleased may be pleased to permit the petitioner to bring the proposed respondents 3 no. 8 and 9 as the Legal Representatives of the deceased respondent no.1 in C.M.A.No.126 of 2025 on the file of this Hon’ble Court and pass IA NO: 5 OF 2025 Petition under Section 151 CPC praying that in the circumstances stated in the affidavit filed in support of the petition, the High Court may be pleased may be pleased to permit the petitioner to affect the service of notice on proposed respondent no.9 through substituted service by publication in a local daily newspaper in place of her residence and pass Counsel for the Appellant: 1. BOPPUDI ALEKHYA Counsel for the Respondent(S): 1. 2. M SRI ATCHYUT The Court made the following: 4 THE HONOURABLE SRI JUSTICE VENKATESWARLU NIMMAGADDA CIVIL MISCELLANEOUS APPEAL NO: 126 OF 2025 ORDER: The present CMA is filed challenging order and decree dated 02.12.2024 in I.A.No.855 of 2018 in A.S.No.38 of 2013 on the file of the XI Additional District Judge, Gudivada, Krishna District. 2. The case of the appellant herein is that appellant herein and the respondent No.3 are the sons of the respondent No.2 herein and they are the coparceners of the Hindu Joint Family and owned the suit schedule property i.e., land admeasuring to an extent of Ac.1.52 cents out of Ac.2.02 cents in R.S.No.439/1 situated at Dokiparru Village, Guldavalleru Mandal, Krishna District. The subject property is their joint family property and an oral partition was also took place in respect of the suit schedule property on 15.06.2001 and the same was registered on 13.04.2005. Accordingly, the suit schedule property was fell to their respective shares. 3. The further case of the appellant herein is that a collusive suit was filed by his father/ 2nd respondent, who colluded with the defendants and obtained a judgment and decree in O.S.No.97 of 2001 on the file of the Court of Junior Civil Judge, Gudivada. Thereafter, the 1st respondent herein filed E.P.No.57 of 2005 for the sale of the suit schedule property and she obtained the delivery order vide sale of the suit schedule property dated 15.02.2007. Against which, the appellant and respondent No.3 herein filed O.S.No.336 of 5 2002 on the file of the Additional Senior Civil Judge (FTC), Gudivada. But the trial court, after hearing at length, dismissed the suit on 05.06.2013 without considering the oral and documentary evidence produced before the Court. More so, during pendency of the suit proceedings, respondent No.3 herein sold away his share in the suit schedule property for a valid sale consideration in favour of the appellant’s wife. As such, the appellant’s wife has been in peaceful possession and enjoyment of the suit schedule property. 4. Aggrieved by the judgment and decree dated 05.06.2013 in O.S.No.336 of 2007, the appellant and respondent No.3 herein filed Appeal Suit vide A.S.No.38 of 2013 on the file of XI Additional District and Sessions Judge, Krishna District at Gudivada. To the utter surprise, the Appeal Suit was dismissed as not pressed as their counsel filed a memo seeking withdrawal by obtaining their signatures in a fraudulent manner. Basing on the said memo, the first appellate Court dismissed the appeal vide its judgment dated 06.11.2017. Subsequently, the appellant and respondent No.3 herein filed Second Appeal in S.A.No.19 of 2018 seeking to set aside the judgment of the first appellate court. But the S.A.No.19 of 2018 was dismissed granting liberty to file restoration petition in the first appeal before the first appellate court. Accordingly, the appellant and respondent No.3 herein filed an application i.e., I.A.No.855 of 2018 under Order 41 Rule 19 read with Section 151 of CPC seeking for restoration of Appeal in A.S.N.38 of 2013 on the file of the XI Additional District Judge, Krishna at Gudivada. But the restoration application was kept pending for a period of five years. As such the civil revision petition 6 vide C.R.P.No.2621 of 2024 is filed seeking expedite disposal of the restoration application and the said revision was disposed of on 08.11.2024 with a direction to the first appellate court to decide the restoration application within a period of two months from the date of receipt of a copy of the order. But the first appellate court erroneously dismissed the application vide order dated 02.12.2024 without due consideration of the facts and contentions made. The memo of withdrawal in A.S.No.38 of 2018 was filed on their behalf by the previous counsel without their knowledge and consent, as such fraud was played upon by their counsel. Aggrieved by the order dated 02.12.2024, the appellant herein filed the present civil miscellaneous appeal. 5. Heard learned counsel for the appellant and learned counsel for the respondent Nos. 4 and 5. None appears for the other respondents even though notice is served upon respondent Nos. 1, 6 to 9 through RPAD as well as by way of substitute service of notice. 6. Learned counsel for the appellant submits that the first appellate court erroneously dismissed the I.A.No.855 of 2018 in A.S.No.38 of 2018 dated 02.12.2024 contrary to the settled principles of law as well as the provisions made under the Code of Civil Procedure, 1908. He further submits that every judicial order/ administrative order should be supported by cogent reasons, without there being so, any order would be treated as nullity in eye of law. In case in hand, the first appellate court dismissed the I.A. without assigning any sound reasons to arrive such conclusion. Once the appellant categorically pleaded before the first appellate Court that fraud was taken place by the 7 counsel representing the appellant at the first appellate Court, the first appellate court without looking into the matter cannot proceed further. He further submits that, even though the appellant had raised a complaint regarding the fraud allegedly committed by the counsels, the first appellate court dismissed the I.A. without conducting a proper enquiry with the plaintiff and the defendant. Such dismissal, ignoring the illegal acts of the learned counsel, amounts to a denial of the appellant’s rights. 7. Learned counsel for the appellant further submits that filing the Second Appeal and remanding the same to the First Appellate Court for filing the application under Order 41 Rule 19 of CPC cannot be seen as fault on part of the first appellate Court. Moreover, the first appellate Court without appreciating factual matrix, decided the application summarily even in case of fraud, as complained, is unsustainable and the interim order is liable to be set aside. 8. Learned counsel for the appellant further submits that the first appellate Court ought to have conducted an enquiry with the learned counsel for the appellant before the court below when a memo was filed seeking withdrawal of the Appeal Suit by stating it as ‘not pressed.’ It is contended that the Court should have ascertained the reasons and circumstances for praying such withdrawal at the last hour, particularly, when the matter was posted for hearing, as the said procedure is contrary to the Civil Rules of Practice. Hence, it is prayed that the impugned order dismissing the I.A. for restoration of the First Appeal is liable to be set aside and the matter be remanded for fresh consideration on merits. 8 9. On the other hand, learned counsel for respondent Nos. 4 and 5 filed counter affidavit, wherein, it is stated that an application under Order 41 Rule 19 of CPC was filed and the same was dismissed. Against the said order, the present appeal is filed. It is further stated that the respondent Nos. 4 and 5 does not have any interest to contest the present appeal and requested to pass appropriate orders based on merits. 10. Learned counsel for respondent Nos. 4 and 5 further submits that in view of the above stated facts, the present CMA should be considered and to determine the rights after having conducted detailed enquiry, if necessary, trial since the appeal proceedings are continuous proceedings of the suit. 11. Having considered the submissions made by the learned counsel for the appellant and the learned counsel for respondent Nos. 4 and 5, and on perusal of the impugned order dated 02.12.2024 passed in I.A. No. 855 of 2018 in A.S. No. 38 of 2013, it appears that the first appellate Court has heavily relied upon the contention of the learned counsel for the 1st respondent that the appellant was fully aware of, and had knowledge about, the filing of the memo for withdrawal, since he had filed a petition seeking advancement of the appeal along with the memo for withdrawal. Therefore, the appellate Court concluded that the appellant cannot contend that the learned counsel should have been filed the withdrawal memo without his knowledge and consent, or that the same was done by playing fraud. 9 12. On perusal of the memo of withdrawal said to have been filed by the learned counsel for the appellant without assigning any cause or reason, and merely stating that the appellants are not interested in prosecuting the appeal, it is evident that such a memo runs contrary to the conduct of the appellants, who had contested the matter before the trial Court, pursued the matter before the lower appellate Court, filed the present appeal, and prosecuted it diligently at every stage through their counsel. In such circumstances, the sudden filing of a memo of withdrawal, to the detriment of the appellants’ rights, certainly be called for an enquiry, or at least for the appearance of the appellants, to ascertain whether the said memo was indeed filed with their permission or not However, once the appellant complained about the fraud, the first appellate court should not have any hesitation to restore the same and to proceed further afresh. If necessary, first appellate court while ordering the restoration, the court may conduct an enquiry whether such memo was filed with the consent of the appellant or by make use of blank papers which were handover to the learned counsel for the appellant at the court below. It is settled law that once fraud was complained by any of the parties to the proceedings, the entire proceedings which were provided basing upon that fraud shall be declared as void. Therefore, the first appellate court proceeding further to substantiate its order by relying upon the judgment and answer the questions of burden of proof on part of the appellants is nothing but, the first appellant court is trying to substantiate its order without looking into the ground realities even after prayed fraud was taken place. In day and day out, the parties have been complaining 10 against the mis-behaviour of the advocates at the detrimental of the interest of the parties through bar council as well as with the judicial authorities for appropriate action. Since, it is an admitted fact that fraud was complained by the appellant and the same cannot be brush aside without conducting proper enquiry and the first appellate court cannot be put them in a helpless situation at the cost of their rights in respect of the schedule property. 13. In view of the reasons stated above, this Court is inclined to uphold the impugned order passed by first appellate court and the order of the first appellate court warrants interference and liable to be set aside. 14. Accordingly, the order dated 02.12.2024 passed in I.A.No.855 of 2018 in A.S.No.38 of 2013 on the file of the XI Additional District Judge, Gudivada, Krishna District is hereby set aside, remanding the matter for fresh consideration and restore the same on the file of First Appellate Court. Further, the first appellate court is directed to proceed further on merits, in accordance with law. 15. With the above observations, the present Civil Miscellaneous Appeal is allowed. No order as to costs. As a sequel, miscellaneous applications if any, pending shall stand closed. __________________________________ VENKATESWARLU NIMMAGADDA, J 20.11.2025 BSP 11 148 THE HON’BLE SRI JUSTICE VENKATESWARLU NIMMAGADDA CIVIL MISCELLANEOUS APPEAL NO:126 of 2025 20.11.2025 BSP