HON’BLE SRI JUSTICE A. GOPAL REDDY C.R.P. No.4790 OF 2009 DATE:13-11-2009 BETWEEN: Yarramsetti Sathiraju …Petitioner AND Voruganti Venkata Chakram …Respondent THIS COURT MADE THE FOLLOWING: HON’BLE SRI JUSTICE A. GOPAL REDDY C.R.P. No.4790 OF 2009 ORDER: Petitioner-defendant filed this revision under Article 227 of Constitution of India assailing the correctness of the order passed by IV Additional District Judge, Kakinada, dated 17.4.2009 whereby and whereunder the learned Additional District Judge dismissed I.A.No.833 of 2009 in O.S.No.90 of 2007 filed by the petitioner under Order XIV Rule 5 r/w Section 151 C.P.C. for recasting of additional issues. By the impugned common order, another application filed by the petitioner in I.A.No.834 of 2009 to decide the issue regarding maintainability of the suit as preliminary issue as a bar to the suit by law was also dismissed. The facts of the case are that the plaintiff-respondent herein instituted the above suit for declaration of his title and for recovery of possession of plaint schedule property basing on a registered will said to have been executed by late Chakram on 10.8.1990. The suit appears to be instituted in the year 2003 or 2004 in which an application in I.A.Sr.No.1805 of 2004 was filed on 27.4.2004 before the II Additional District Judge, Rajahmundry seeking to decide the issue as to the maintainability of the suit as a preliminary issue. The said I.A.Sr. was returned with an objection about the maintainability of the petition even before framing the issues. The petitioner who is the defendant in the suit filed the written statement resisting the claim of the plaintiff-respondent herein stating that late Chakram during his life time executed a registered sale deed in respect of the suit schedule property in his favour on 18.9.2001 for a valuable consideration. Basing on the said pleadings, the following issues were settled for trial: “1. Whether late Yerramsetti Chakram executed registered will, dated 10.8.1990 in a sound and disposing state of mind bequeathing plaint A and B schedule properties in favour of plaintiff? 2. Whether late Chakram sold plaint A schedule to D1 under registered sale deed, dated 18.9.2001 and bequeathed plaint B schedule to D-1 under registered will, dated 27.9.2001 and they are binding on plaintiff? 3. Whether plaintiff is entitled for declaration of his right and title over plaint A and B schedule property? 4. Whether plaintiff is entitled for possession of plaint A schedule property? 5. Whether the plaintiff is entitled for consequential injunction over plaint B schedule property? 6. Whether plaintiff is entitled for past and future profits and if so to what amount?” When the plaintiff filed his affidavit in lieu of chief- examination as P.W.1 on 24.6.2009, the revision petitioner sought time for cross-examination of P.W.1 and later filed the impugned I.A. for recasting the issues and for framing the following additional issues: “1. Whether the suit as framed is not maintainable under law? 2. Whether the suit is hit by Order II Rule 2 C.P.C.? 3. Whether the suit is bad for mis-joinder and non-joinder of necessary parties?” Along with the impugned I.A., the revision petitioner also filed I.A.No.834 of 2009 to decide the issue with regard to the maintainability of the suit as a preliminary issue stating that in the earlier suit filed by the respondent-plaintiff in O.S.No.18 of 2002 on the file of Junior Civil Judge, Prathipadu for permanent injunction, he filed a written statement alleging that late Chakram executed a registered sale deed, dated 18.9.2001 etc., and that late Chakram died on 30.1.2002 as a consequence, the petitioner became the owner of all the properties held by late Chakram etc. He had specifically averred in the written statement filed therein that he is in possession of the property by virtue of registered sale deed, dated 18.9.2001, and that the plaintiff has no legal right to seek declaration, and that the suit as framed is not maintainable under law, and that the suit is hit by Order II Rule 2 C.P.C. etc. It is relevant to notice that against the return of I.A.Sr.No.1805 of 2004 by II Additional District Judge, Rajahmundry, the revision petitioner carried the matter in revision before this Court and on dismissal of the same, the suit was transferred to the Court of IV Additional District Judge, Kakinada where, Exs.A.1 to A.4 were marked on 3.4.2009 and the suit was posted for cross-examination of P.W.1 and during that course, he traced the I.A.Sr.No.1805 of 2004 and filed the present petition after lapse of two years. The lower Court by the impugned order rightly dismissed the I.A. holding that provision under Order II Rule 2 C.P.C. does not come into picture, and that it is not explained by the revision petitioner as to who are the proper and necessary parties in whose absence the lis cannot be adjudicated in its finality. It was further observed that though there are directions by this Court in C.M.A.No.385 of 2005, dated 19.9.2005 directing for disposal of the suit expeditiously followed by another order in C.R.P.No.5369 of 2004 with a similar direction to dispose of the suit within a period of four months from the date of receipt of copy of the order, which was received on 11.4.2009, the suit could not be disposed of as the parties are taking one objection or the other. In the affidavit filed by the revision petitioner along with the impugned I.A., nowhere it is stated that in the suit in O.S.No.18 of 2002 filed for permanent injunction by the plaintiff whether any finding was recorded with respect to the rights of the parties under the registered will or under the alleged sale deed. In the absence of the same, the impugned I.A. filed by the revision petitioner, as rightly observed by the lower court, is only to protract the litigation to defy the orders passed by this Court. In view of the same, the discretion exercised by the lower Court in dismissing the impugned I.A. does not suffer from any manifest illegality warranting interference by this Court. The revision fails and is accordingly dismissed. No order as to costs. _______________ A. GOPAL REDDY, J. NOVEMBER 13, 2009 Tsr.