Sri. B B Nagendra Rao

1

FAIR

In the Court of X Additional District and Sessions Judge,

Visakhapatnam at Anakapalle.

Present: Sri B.B. Nagendra Rao

X Addl. District and Sessions Judge, Anakapalle

Wednesday, the 25 th day of July 2018

A.S.26/2018

(O.S.26/2007 on the file of Principal Junior Civil Judge, Anakapalle)

Between :

Konathala Janardhan, S/o. Ramunaidu, Hindu, aged 55 years, care of Himasekhar College, Laxminarayana Nagar, Anakapalle, Visakhapatnam Dist.

........Appellant/Plaintiff

And :

Greater Visakhapatnam Municipal Corporation, represented by its Zonal Manager, Anakapalle Zone, Anakapalle.

.... Respondent/Defendant

Appeal filed u/Order 41, Rule 1 and Sec.96 of C.P.C. against the

Judgment and Decree passed in O.S.26/2007 dated 23-10-2017 on

the file of Principal Junior Civil Judge's Court, Anakapalle.

Between :

Konathala Janardhan, S/o. Ramunaidu......Plaintiff.

And :

Greater Visakhapatnam Municipal Corporation, represented by its Zonal Manager, Anakapalle Zone, Anakapalle.

....Defendant.

This appeal coming before me on 16-07-2018 for final hearing in the presence of Sri M. Jayaram & Sri B.S.V. Rajagopal, Advocates for Appellant/Plaintiff and Sri M.J.V.N. Kumar, Advocatefor the Respondent/ Defendant and having stood over for consideration till this day, this court delivered the following: -

J U D G M E N T

1)This appeal is preferred under Or.41, R.1 C.P.C. by unsuccessful plaintiff against the defendant in the Lower Court proceedings being aggrieved with the decree and judgment passed in O.S.26/2007 dated 23-10-2017 on the file of Principal Junior Civil Judge's Court, Anakapalle.

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2)The Appellant is the plaintiff in O.S.26/2007 on the file of Principal

Junior Civil Judge's Court, Anakapalle, who filed this appeal against the decree and judgment in O.S.26/2007 dated 23-10-2017.

3)For the purpose of reference and understanding in this appeal, the appellant is referred to as the plaintiff while the respondent is referred to as the defendant.

4) The Grounds of Appeal are as follows:-

1. The decree and judgment of the Trial Court is contrary to law, weight of evidence and probabilities of the case; Lower Court should have seen that the documents filed by the appellant/plaintiff shows plaintiff is having prima facie case as well as documents filed by the respondent/ defendant clearly shows that the respondent is not having any case as alleged in the written statement and the documents i.e. Ex.B.1 to B.3 does not support the case of the respondent;

2. The Lower Court should have seen that according to building plan, the plaintiff/appellant constructed plaint schedule building, later defendant municipality issued special notice by making new assessment to the building proposing to levy the house tax, by aggrieving, the plaintiff preferred revision, but till filing of the suit, the respondent has not disposed off the said revision, and no order was communicated to the appellant as such he could not file appeal under Act 1965, but not willfully, the revision petition under Ex.A.3 against the order of respondent vide Ex.A.4 and the oral and documentary evidence of the appellant/plaintiff, the Lower Court did not considered the same;

3. The Lower Court should have seen that even the other documents except the Gazette i.e. Ex.B.2 filed by the respondent and there is no explanation from the D.W.1, who is not at all competent witness to the respondent, due to which also it should have decreed instead of dismissing the same; Lower Court failed to see that the evidence of respondent denying the filing of the revision petition i.e. Ex.A.3 in the cross examination of defendants witnesses without looking into the said 3 aspect basing on some hypothetical grounds dismissed the suit instead of decreeing the same;

4. The Lower Court should have seen that, the plaintiff have failed to prove the contents of Ex.B.2 and Ex.B.3; it is a settled proposition of law that, no finding should be given in respect an issue which was not framed, but the Lower Court without there being any such issue, while rejecting the evidence of appellant/plaintiff erroneously dismissed the suit instead of decreeing the same;

5. The Lower Court went on dismissed the suit erroneously despite all the above factual and legal infirmities and hence the Judgment of Lower Court is erroneous and justifiable for the said reasons.

Therefore, the appeal may be allowed by setting aside the decree and judgment in O.S.26/2007 dated 23-10-2017 and “decreed” the same with costs throughout.

5)The respondent on receipt of summons appeared before this court and contested the appeal through the counsel.

6)The Pleadings of the plaintiff in the plaint is as follows:-

The Plaintiff submits that he is the co-owner of plaint schedule property; he along with other co-owners let out plaint schedule property to

M/s. Hima Sekhar Educational Society under Regd. Lease Deed dated 07-03- 2003; as per building approved plan, the plaint schedule building was constructed; later the defendant municipality issued special notice by making new assessment to the building proposing to levy the house tax; aggrieving with, the plaintiff preferred revision petition, but till date it was not disposed off; without disposing revision petition, the defendant municipality issued demand notice by levying tax, the same is arbitrary, capricious and invalid according to Law; the defendant has not assigned any reasons basing on which it arrived at the annual rental value of the premises that warranted it to 4 levy the suit impugned tax; way back in the year 1993, the Municipality following the procedure under Sec.87 of A.P. Municipalities Act; at the time of assessment, plaint schedule area was not totally developed; the defendant municipality shall compute the annual rental value basing upon the plinth area and has to compute the tax for individual assessment as per Sec.87(4) of the

Act, 1965; hence prays the Court to declare the special notice demanding the tax is arbitrary, illegal and capricious and for consequential permanent injunction.

7)Defendant /GVMC resisted the claim of plaintiff by filing written statement denying all the material averments made in the plaint in para-wise by contending that, the defendant followed and complied mandatory procedure prescribed under Act 1965, and guidelines of the Government, and levied property tax; later special notice was served on the defendant, but the defendant has not raised any tenable objections; the suit schedule property is let out for commercial purpose, and the land rate in plaint schedule locality is very high, it is posh locality of Anakapalle Municipality area; since the defendant followed prescribed provisions of the Act and Rules and levied the property tax as per directions of Government, the plaintiff cannot question levying the tax; the claim of plaintiff is frivolous; as the plaintiff is seeking equitable relief of injunction orders, he shall come to the Court with clean hands, but he has not deposited 50% of tax levied by violating mandatory procedure under Sec.376(4) of the Act 1965, hence the defendant municipality prays the Court to dismiss the suit.

8)Basing on the above pleadings, the following issues are settled for trial in the trial court:-

1. Whether the plaintiff is entitled for declaration as prayed for ?

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2. Whether the plaintiff is entitled for consequential relief of permanent injunction as prayed for ?

3. Whether the plaintiff has failed to comply the mandatory

provisions under Sec.376(4) of A.P. Municipalities Act ?

4. To what relief ?

9)During the course of trial, the plaintiff himself examined as P.W.1 and

Ex.A.1 to Ex.A.4 are marked. On behalf of defendant, D.W.1 is examined and

Ex.B.1 to Ex.B.3 are marked on its behalf.

10)After hearing the arguments of both the counsel on record, the learned

Principal Junior Civil Judge, Anakapalle “dismissed” the suit, on that Plaintiff

preferred the appeal against the decree and judgment of Lower Court.

11)Heard the counsel for the Appellant/Plaintiff.

12)Heard the counsel for the Respondent/Defendant.

13)Perused the case records.

14)Now the Point for consideration is :-

“Whether the Appeal is to be allowed with costs throughout to

“set aside” the Decree and Judgment of Principal Junior Civil

Judge, Anakapalle and to decree the suit filed by the

appellant/plaintiff as prayed for ? “

15) Point :-

The Plaint Schedule Property reads as under :- All that piece or parcel of 1st floor plinth area measuring an extent of 1048 sq. yards = 943.001 sq. meters site with ground floor plaint area 50000 sq. feet Ground Floor and 1st Floor with similar Extewnt of 50000 Sq. Ft.- RCC Building with proportionate undivided unspecified share in site iup house bearing the New D.No.9-20-81/A- Ast.No.1087015718, House property that was situated in Zeroyathi Wet land T.S.No.486/1 in R.S. Ward- Ward No.9- Anakapalle Town Proper in Anakapalle Municipal Limits in the Registration Sub-District, Anakapalle of Visakhapatnam District- within the following measurements and boundaries :- 6

Direction BoundariesMeasurements Feet = Meters EastHouse of Viluri Srinivasa Rao80 = 24.38 SouthVacant site Immidisetti Butchi Krisha118 = 35.96 WestProperty of Konathala Govindu80 = 24.38 North100 feet wide road118 = 35.96

16)The Appellant/Plaintiff filed the suit in O.S.26/2007 for the relief of declaration regarding assessment of property tax by the respondent/ defendant and for consequential permanent injunction restraining the respondent/defendant from collecting the property tax.

17)Upon due consideration of the material placed by both parties coupled with documentary evidence, the Learned Principal Junior Civil Judge,

Anakapalle “dismissed” the suit in O.S.26/2007 on 23-10-2017.

18)The main plea of the Plaintiff/Appellant and the evidence of P.W.1 is that, the plaint schedule property belongs to him; the issuing of “Special

Notice” despite petition for the revision of the assessment is “illegal” and hence for the relief of declaration, so also consequential relief of permanent injunction against the respondent/defendant/GVMC, represented by Zonal

Manager, Anakapalle Zone.

19)The main contention of the respondent/defendant/GVMC, Anakapalle is that, being competent authority levied the property tax and issue “Special

Notice” to the Plaintiff as per the norms of Municipalities Act; and they calculated property tax as per the Gazette rates; even after receipt of special notice, the plaintiff “not” filed any “Revision” petition, except dropping of a letter with a request to verify the matter and to take necessary action; there 7 are “no” irregularities committed by the defendant and as such the suit is “not” maintainable, accordingly liable to be dismissed.

20)P.W.1 examined for Appellant; Ex.A.1 to Ex.A.4 are marked; D.W.1 examined for respondent/defendant, Ex.B.1 to Ex.B.3 are marked.

21)The first and foremost aspect for consideration is that, the respondent/ defendant in the capacity of Greater Visakhapatnam Municipal Corporation, represented by its Commissioner, Anakapalle Zone is competent to levy the tax within the property of its jurisdiction. It is “not” the claim (or) question of the Appellant/Plaintiff/P.W.1 that the respondent/defendant has “no” jurisdiction to entertain any tax (or) to levy tax with regard to property concerned to the Greater Visakhapatnam Municipal Corporation. Considering

Ex.B.1 and Ex.B.2 the respondent/defendant/GVMC, represented by its

Commissioner has not only authorized, but it is the exclusive burden of the

Municipalities to comply and follow the Gazette Notification with Unit Rates and to levy the tax including the Plaintiff/P.W.1's property.

22)It is admission of Appellant/P.W.1 that the Government prescribed “procedure” to levy the property tax as per the Government Orders. So, the appellant/plaintiff/PW.1 “cannot” question the very functioning of the GVMC, represented by its Commissioner, Anakapalle.

23)The issuing of “Special Notice” by the respondent/defendant/GVMC is “not” in dispute. The questioning of the functioning of respondent/defendant by the appellant/plaintiff is that, there were “no” orders passed for their revision petition. The reply and resistance of the respondent/defendant and the evidence of D.W.1 is that, the appellant/plaintiff did “not” file any revision 8 petition except dropping of a letter to the defendant with a request to verify and to take necessary action in that regard. Just filing a representation styling itself as “revision petition” is “not” at all maintainable and the Learned counsel

for the respondent/defendant “rightly” put forth his arguments that there

should be ground for considering the revision, but “not” by way of request.

The said representation cannot be called as “revision” to exercise the provisos of Municipalities Act by the respondent/defendant/GVMC, represented by its

Commissioner, Anakapalle. Even at the stage of trial proceedings before the

Lower Court, the Plaintiff/Appellant/P.W.1 did “not” choose to the ground for revision and what made the respondent/defendant/GVMC to “deviate” from the Municipalities Act. Once the respondent/defendant/GVMC represented by its Commissioner, Anakapalle Zone is authorized and entrusted to his duties, “no” one can question its functioning as part of discharge their duties, much less on the ground of illegal discharging of their duties. The definition under illegal discharging of duties require substantial, cogent material to question the very functioning of the respondent/defendant/GVMC, but “not” in a formal and routine manner. In the instant case, what was intended by the appellant/ plaintiff/P.W.1 is “nothing but” to evade his liability “not” to pay the levied tax and to cause litigation somehow (or) the other as the respondent/defendant/

GVMC in discharging their lawful duties.

24)The learned Principal Junior Civil Judge, Anakapalle while dismissing the suit in O.S.26/2007 dated 23-10-2017 hold and consider that Act, 1965 mandate the Appellant/Plaintiff to file an “appeal” on “revision” and there is no short cut procedure under the Act, 1965; to file the suit “without” exhausting remedies provided under the Act, 1965; the aggrieved party has to approach proper forum, but “not” filing of the suit for “declaration”; the appeal is “not” filed under Act, 1965 and accordingly the same is prohibits for 9 filing of the suit; the suit is “not” maintainable for non-compliance of the mandatory procedure under Act, 1965; the Court “cannot” take cognizance of this suit under Sec.9 of the CPC and hence “dismissed” the suit against the appellant/plaintiff/P.W.1. At the stage of appeal also, the learned counsel for the appellant/plaintiff/P.W.1 “fails” to establish and clarify the Court, what prevented the appellant/plaintiff to invoke the mandatory provisions under

Act, 1965, which prohibits the filing of the suit. Just saying that the functioning of the respondent/defendant/ GVMC, Anakapalle Zone is “not” proper. As already discussed that the respondent/defendant/GVMC is competent and entrusted with the duties of levying of the tax to the property, for which it is concerned. No reasonable or proper explanation forthcoming from the Appellant/Plaintiff/P.W.1 to consider the appeal, where the Lower

Court categorically hold that the filing of the suit is “not” maintainable under law and “negitived” the relief sought for by the Appellant/Plaintiff/P.W.1.

25)The main appeal filed by the appellant/plaintiff/P.W.1 are “not” at all fit for consideration, except to cause the litigation with the respondent/defendant /GVMC, Anakapalle Zone, just to postpone the payment of levied tax and to cause litigation with the respondent/defendant somehow (or) the other.

26)The Court do “not” find any justified reasons to consider the Grounds of

Appeal; the Learned Principal Junior Civil Judge, Anakapalle “rightly” discussed all the aspects and answer the Issues thereunder and categorically hold that the relief sought for by the Appellant/Plaintiff/P.W.1 is “not” maintainable, resulting the dismissal of the suit.

27)The Court do “not” find any justified reasons to interfere with the decree and judgment of Learned Principal Junior Civil Judge, Anakapalle in

O.S.26/2007, and the same is “entitled” for “confirmation”.

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28)In the result, the Appeal is “dismissed”; by “confirming” the

Judgment and Decree of Learned Principal Junior Civil Judge,

Anakapalle in O.S.26/2007 dated 23.10.2017; with costs throughout.

Dictated to Stenographer, transcribed by him, corrected and

pronounced by me in open Court, this the 25 th day of July 2018.

Sd/- x x x x x

X Addl. District & Sessions Judge Visakhapatnam at Anakapalle.

No oral or documentary evidence is adduced on either side.

Sd/- x x x x x

X Addl. District & Sessions Judge Visakhapatnam at Anakapalle.

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1

FAIR

In the Court of X Additional District and Sessions Judge,

Visakhapatnam at Anakapalle.

Present: Sri B.B. Nagendra Rao

X Addl. District and Sessions Judge, Anakapalle

Wednesday, the 25 th day of July 2018

A.S.28/2018

(O.S.28/2007 on the file of Principal Junior Civil Judge, Anakapalle)

Between :

Konathala Chinni Krishna, S/o. Ramunaidu, Hindu, aged 51 years, care of Himasekhar College, Laxminarayana Nagar, Anakapalle, Visakhapatnam Dist.

........Appellant/Plaintiff

And :

Greater Visakhapatnam Municipal Corporation, represented by its Zonal Manager, Anakapalle Zone, Anakapalle.

.... Respondent/Defendant

Appeal filed u/Order 41, Rule 1 and Sec.96 of C.P.C. against the

Judgment and Decree passed in O.S.28/2007 dated 23-10-2017 on

the file of Principal Junior Civil Judge's Court, Anakapalle.

Between :

Konathala Chinni Krishna, S/o. Ramunaidu......Plaintiff.

And :

Greater Visakhapatnam Municipal Corporation, represented by its Zonal Manager, Anakapalle Zone, Anakapalle.

....Defendant.

This appeal coming before me on 16-07-2018 for final hearing in the presence of Sri M. Jayaram & Sri B.S.V. Rajagopal, Advocates for Appellant/Plaintiff and Sri M.J.V.N. Kumar, Advocatefor the Respondent/ Defendant and having stood over for consideration till this day, this court delivered the following: -

J U D G M E N T

1)This appeal is preferred under Or.41, R.1 C.P.C. by unsuccessful plaintiff against the defendant in the Lower Court proceedings being aggrieved with the decree and judgment passed in O.S.28/2007 dated 23-10-2017 on the file of Principal Junior Civil Judge's Court, Anakapalle.

2

2)The Appellant is the plaintiff in O.S.28/2007 on the file of Principal

Junior Civil Judge's Court, Anakapalle, who filed this appeal against the decree and judgment in O.S.28/2007 dated 23-10-2017.

3)For the purpose of reference and understanding in this appeal, the appellant is referred to as the plaintiff while the respondent is referred to as the defendant.

4) The Grounds of Appeal are as follows:-

1. The decree and judgment of the Trial Court is contrary to law, weight of evidence and probabilities of the case; Lower Court should have seen that the documents filed by the appellant/plaintiff shows plaintiff is having prima facie case as well as documents filed by the respondent/ defendant clearly shows that the respondent is not having any case as alleged in the written statement and the documents i.e. Ex.B.1 to B.3 does not support the case of the respondent;

2. The Lower Court should have seen that according to building plan, the plaintiff/appellant constructed plaint schedule building, later defendant municipality issued special notice by making new assessment to the building proposing to levy the house tax, by aggrieving, the plaintiff preferred revision, but till filing of the suit, the respondent has not disposed off the said revision, and no order was communicated to the appellant as such he could not file appeal under Act 1965, but not willfully, the revision petitions under Ex.A.5 & A.6 against the order of respondent and the oral and documentary evidence of the appellant/plaintiff, the Lower Court did not considered the same;

3. The Lower Court should have seen that even the other documents except the Gazette i.e. Ex.B.2 filed by the respondent and there is no explanation from the D.W.1, who is not at all competent witness to the respondent, due to which also it should have decreed instead of dismissing the same; Lower Court failed to see that the evidence of respondent denying the filing of the revision petitions i.e. Ex.A.5 & Ex.A>6 in the cross examination of defendants witnesses without 3 looking into the said aspect basing on some hypothetical grounds dismissed the suit instead of decreeing the same;

4. The Lower Court should have seen that, the plaintiff have failed to prove the contents of Ex.B.2 and Ex.B.3; it is a settled proposition of law that, no finding should be given in respect an issue which was not framed, but the Lower Court without there being any such issue, while rejecting the evidence of appellant/plaintiff erroneously dismissed the suit instead of decreeing the same;

5. The Lower Court went on dismissed the suit erroneously despite all the above factual and legal infirmities and hence the Judgment of Lower Court is erroneous and justifiable for the said reasons.

Therefore, the appeal may be allowed by setting aside the decree and judgment in O.S.28/2007 dated 23-10-2017 and “decreed” the same with costs throughout.

5)The respondent on receipt of summons appeared before this court and contested the appeal through the counsel.

6)The Pleadings of the plaintiff in the plaint is as follows:-

The Plaintiff submits that he is the co-owner of plaint schedule property; he along with other co-owners let out plaint schedule property to

M/s. Hima Sekhar Educational Society under Regd. Lease Deed dated 07-02- 2002; as per building approved plan, the plaint schedule building was constructed; later the defendant municipality issued special notice by making new assessment to the building proposing to levy the house tax; aggrieving with, the plaintiff preferred revision petition, but till date it was not disposed off; without disposing revision petition, the defendant municipality issued demand notice by levying tax, the same is arbitrary, capricious and invalid according to Law; the defendant has not assigned any reasons basing on which it arrived at the annual rental value of the premises that warranted it to 4 levy the suit impugned tax; way back in the year 1993, the Municipality following the procedure under Sec.87 of A.P. Municipalities Act; at the time of assessment, plaint schedule area was not totally developed; the defendant municipality shall compute the annual rental value basing upon the plinth area and has to compute the tax for individual assessment as per Sec.87(4) of the

Act, 1965; hence prays the Court to declare the special notice demanding the tax is arbitrary, illegal and capricious and for consequential permanent injunction.

7)Defendant /GVMC resisted the claim of plaintiff by filing written statement denying all the material averments made in the plaint in para-wise by contending that, the defendant followed and complied mandatory procedure prescribed under Act 1965, and guidelines of the Government, and levied property tax; later special notice was served on the defendant, but the defendant has not raised any tenable objections; the suit schedule property is let out for commercial purpose, and the land rate in plaint schedule locality is very high, it is posh locality of Anakapalle Municipality area; since the defendant followed prescribed provisions of the Act and Rules and levied the property tax as per directions of Government, the plaintiff cannot question levying the tax; the claim of plaintiff is frivolous; as the plaintiff is seeking equitable relief of injunction orders, he shall come to the Court with clean hands, but he has not deposited 50% of tax levied by violating mandatory procedure under Sec.376(4) of the Act 1965, hence the defendant municipality prays the Court to dismiss the suit.

8)Basing on the above pleadings, the following issues are settled for trial in the trial court:-

1. Whether the plaintiff is entitled for declaration as prayed for ?

5

2. Whether the plaintiff is entitled for consequential relief of permanent injunction as prayed for ?

3. Whether the plaintiff has failed to comply the mandatory

provisions under Sec.376(4) of A.P. Municipalities Act ?

4. To what relief ?

9)During the course of trial, the plaintiff himself examined as P.W.1 and

Ex.A.1 to Ex.A.6 are marked. On behalf of defendant, D.W.1 is examined and

Ex.B.1 to Ex.B.3 are marked on its behalf.

10)After hearing the arguments of both the counsel on record, the learned

Principal Junior Civil Judge, Anakapalle “dismissed” the suit, on that Plaintiff

preferred the appeal against the decree and judgment of Lower Court.

11)Heard the counsel for the Appellant/Plaintiff.

12)Heard the counsel for the Respondent/Defendant.

13)Perused the case records.

14)Now the Point for consideration is :-

“Whether the Appeal is to be allowed with costs throughout to

“set aside” the Decree and Judgment of Principal Junior Civil

Judge, Anakapalle and to decree the suit filed by the

appellant/plaintiff as prayed for ? “

15) Point :-

The Plaint Schedule Property reads as under :-

All that piece or parcel of 1st floor plinth area measuring an extent of 600 sq. yards = 599.116 sq. meters site with ground floor plaint area 600 sq. yards = 599.116 sq. meters RCC built up house bearing the New D.No.0- Asst.No.1087015424, House property that was situated in Zeroyathi Wet land S.No.486/1 Municipal Road in Ward No.9- Anakapalle Town Proper in Anakapalle Municipal Limits in the Registration Sub-District, Anakapalle of Visakhapatnam District- within the following measurements and boundaries :- 6

Direction BoundariesMeasurements Feet = Meters EastProperty of K. Nooka Rajendra Prasad90 = 27.43 3.8 SouthProperty of Malla Ramulu60 = 18.28 WestProperty of Malla Ramulu90 = 27.43 NorthProperty of Konathala Appayyamma60 = 18.28

16)The Appellant/Plaintiff filed the suit in O.S.28/2007 for the relief of declaration regarding assessment of property tax by the respondent/ defendant and for consequential permanent injunction restraining the respondent/defendant from collecting the property tax.

17)Upon due consideration of the material placed by both parties coupled with documentary evidence, the Learned Principal Junior Civil Judge,

Anakapalle “dismissed” the suit in O.S.28/2007 on 23-10-2017.

18)The main plea of the Plaintiff/Appellant and the evidence of P.W.1 is that, the plaint schedule property belongs to him; the issuing of “Special

Notice” despite petition for the revision of the assessment is illegal and hence for the relief of declaration, so also consequential relief of permanent injunction against the respondent/defendant/GVMC, represented by Zonal

Manager, Anakapalle Zone.

19)The main contention of the respondent/defendant/GVMC, Anakapalle is that, being competent authority levied the property tax and issue “Special

Notice” to the Plaintiff as per the norms of Municipalities Act; and they calculated property tax as per the Gazette rates; even after receipt of special notice, the plaintiff “not” filed any “Revision” petition except dropping of a letter with a request to verify the matter and to take necessary action; there are “no” irregularities committed by the defendant and as such the suit is “not” maintainable, accordingly liable to be dismissed.

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20)P.W.1 examined for Appellant; Ex.A.1 to Ex.A.6 are marked; D.W.1 examined for respondent/defendant, Ex.B.1 to Ex.B.3 are marked.

21)The first and foremost aspect for consideration is that, the respondent/ defendant in the capacity of Greater Visakhapatnam Municipal Corporation, represented by its Commissioner, Anakapalle Zone is competent to levy the tax within the property of its jurisdiction. It is “not” the claim (or) question of the Appellant/Plaintiff/P.W.1 that the respondent/defendant has “no” jurisdiction to entertain any tax (or) to levy tax with regard to property concerned to the Greater Visakhapatnam Municipal Corporation. Considering

Ex.B.1 and Ex.B.2 the respondent/defendant/GVMC, represented by its

Commissioner has not only authorized, but it is the exclusive burden of the

Municipalities to comply and follow the Gazette Notification with Unit Rates and to levy the tax including the Plaintiff/P.W.1's property.

22)It is admission of Appellant/P.W.1 that the Government prescribed “procedure” to levy the property tax as per the Government Orders. So, the appellant/plaintiff/PW.1 “cannot” question the very functioning of the GVMC, represented by its Commissioner, Anakapalle.

23)The issuing of “Special Notice” by the respondent/defendant/GVMC is “not” in dispute. The questioning of the functioning of respondent/defendant by the appellant/plaintiff is that, there were “no” orders passed for their revision petition. The reply and resistance of the respondent/defendant and the evidence of D.W.1 is that, the appellant/plaintiff did “not” file any revision petition except dropping of a letter to the defendant with a request to verify and to take necessary action in that regard. Just filing a representation styling 8 itself as “revision petition” is “not” at all maintainable and the Learned counsel

for the respondent/defendant “rightly” put forth his arguments that there

should be ground for considering the revision, but “not” by way of request.

The said representation cannot be called as “revision” to exercise the provisos of Municipalities Act by the respondent/defendant/GVMC, represented by its

Commissioner, Anakapalle. Even at the stage of trial proceedings before the

Lower Court, the Plaintiff/Appellant/P.W.1 did “not” choose to the ground for revision and what made the respondent/defendant/GVMC to “deviate” from the Municipalities Act. Once the respondent/defendant/GVMC represented by its Commissioner, Anakapalle Zone is authorized and entrusted to his duties, “no” one can question its functioning as part of discharge their duties, much less on the ground of illegal discharging of their duties. The definition under illegal discharging of duties require substantial, cogent material to question the very functioning of the respondent/defendant/GVMC, but “not” in a formal and routine manner. In the instant case, what was intended by the appellant/ plaintiff/P.W.1 is “nothing but” to evade his liability “not” to pay the levied tax and to cause litigation somehow (or) the other as the respondent/defendant/

GVMC in discharging their lawful duties.

24)The learned Principal Junior Civil Judge, Anakapalle while dismissing the suit in O.S.28/2007 dated 23-10-2017 hold and consider that Act, 1965 mandate the Appellant/Plaintiff to file an “appeal” on “revision” and there is no short cut procedure under the Act, 1965 to file the suit “without” exhausting remedies provided under the Act, 1965; the aggrieved party has to approach proper forum, but “not” filing of the suit for “declaration”; the appeal is “not” filed under Act, 1965 and accordingly the same is prohibits for filing of the suit; the suit is “not” maintainable for non-compliance of the mandatory procedure under Act, 1965; the Court “cannot” take cognizance of 9 this suit under Sec.9 of the CPC and hence “dismissed” the suit against the appellant/plaintiff/P.W.1. At the stage of appeal also, the learned counsel for the appellant/plaintiff/P.W.1 “fails” to establish and clarify the Court, what prevented the appellant/plaintiff to invoke the mandatory provisions under

Act, 1965, which prohibits the filing of the suit. Just saying that the functioning of the respondent/defendant/ GVMC, Anakapalle Zone is “not” proper. As already discussed that the respondent/defendant/GVMC is competent and entrusted with the duties of levying of the tax to the property, for which it is concerned. No reasonable or proper explanation forthcoming from the Appellant/Plaintiff/P.W.1 to consider the appeal, where the Lower

Court categorically hold that the filing of the suit is “not” maintainable under law and “negitived” the relief sought for by the Appellant/Plaintiff/P.W.1.

25)The main appeal filed by the appellant/plaintiff/P.W.1 are “not” at all fit for consideration, except to cause the litigation with the respondent/defendant /GVMC, Anakapalle Zone. Just to postpone the payment of levied tax and to cause litigation with the respondent/defendant somehow (or) the other.

26)The Court do “not” find any justified reasons to consider the Grounds of

Appeal; the Learned Principal Junior Civil Judge, Anakapalle “rightly” discussed all the aspects and answer the Issues thereunder and categorically hold that the relief sought for by the Appellant/Plaintiff/P.W.1 is “not” maintainable, resulting the dismissal of the suit.

27)The Court do “not” find any justified reasons to interfere with the decree and judgment of Learned Principal Junior Civil Judge, Anakapalle in

O.S.28/2007, and the same is “entitled” for “confirmation”.

10

28)In the result, the Appeal is “dismissed”; by “confirming” the

Judgment and Decree of Learned Principal Junior Civil Judge,

Anakapalle in O.S.28/2007 dated 23.10.2017; with costs throughout.

Dictated to Stenographer, transcribed by him, corrected and

pronounced by me in open Court, this the 25 th day of July 2018.

Sd/- x x x x x

X Addl. District & Sessions Judge Visakhapatnam at Anakapalle.

No oral or documentary evidence is adduced on either side.

Sd/- x x x x x

X Addl. District & Sessions Judge Visakhapatnam at Anakapalle.

11

1

FAIR

In the Court of X Additional District and Sessions Judge,

Visakhapatnam at Anakapalle.

Present: Sri B.B. Nagendra Rao

X Addl. District and Sessions Judge, Anakapalle

Wednesday, the 25 th day of July 2018

A.S.27/2018

(O.S.27/2007 on the file of Principal Junior Civil Judge, Anakapalle)

Between :

Konathala Janardhan, S/o. Ramunaidu, Hindu, aged 55 years, care of Himasekhar College, Laxminarayana Nagar, Anakapalle, Visakhapatnam Dist.

........Appellant/Plaintiff

And :

Greater Visakhapatnam Municipal Corporation, represented by its Zonal Manager, Anakapalle Zone, Anakapalle.

.... Respondent/Defendant

Appeal filed u/Order 41, Rule 1 and Sec.96 of C.P.C. against the

Judgment and Decree passed in O.S.27/2007 dated 23-10-2017 on

the file of Principal Junior Civil Judge's Court, Anakapalle.

Between :

Konathala Janardhan, S/o. Ramunaidu......Plaintiff.

And :

Greater Visakhapatnam Municipal Corporation, represented by its Zonal Manager, Anakapalle Zone, Anakapalle.

....Defendant.

This appeal coming before me on 16-07-2018 for final hearing in the presence of Sri M. Jayaram & Sri B.S.V. Rajagopal, Advocates for Appellant/Plaintiff and Sri M.J.V.N. Kumar, Advocatefor the Respondent/ Defendant and having stood over for consideration till this day, this court delivered the following: -

J U D G M E N T

1)This appeal is preferred under Or.41, R.1 C.P.C. by unsuccessful plaintiff against the defendant in the Lower Court proceedings being aggrieved with the decree and judgment passed in O.S.27/2007 dated 23-10-2017 on the file of Principal Junior Civil Judge's Court, Anakapalle.

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2)The Appellant is the plaintiff in O.S.27/2007 on the file of Principal

Junior Civil Judge's Court, Anakapalle, who filed this appeal against the decree and judgment in O.S.27/2007 dated 23-10-2017.

3)For the purpose of reference and understanding in this appeal, the appellant is referred to as the plaintiff while the respondent is referred to as the defendant.

4) The Grounds of Appeal are as follows:-

1. The decree and judgment of the Trial Court is contrary to law, weight of evidence and probabilities of the case; Lower Court should have seen that the documents filed by the appellant/plaintiff shows plaintiff is having prima facie case as well as documents filed by the respondent/ defendant clearly shows that the respondent is not having any case as alleged in the written statement and the documents i.e. Ex.B.1 to B.3 does not support the case of the respondent;

2. The Lower Court should have seen that according to building plan, the plaintiff/appellant constructed plaint schedule building, later defendant municipality issued special notice by making new assessment to the building proposing to levy the house tax, by aggrieving, the plaintiff preferred revision, but till filing of the suit, the respondent has not disposed off the said revision, and no order was communicated to the appellant as such he could not file appeal under Act 1965, but not willfully, the revision petition under Ex.A.3 against the order of respondent and the oral and documentary evidence of the appellant/plaintiff, the Lower Court did not considered the same;

3. The Lower Court should have seen that even the other documents except the Gazette i.e. Ex.B.2 filed by the respondent and there is no explanation from the D.W.1, who is not at all competent witness to the respondent, due to which also it should have decreed instead of dismissing the same; Lower Court failed to see that the evidence of respondent denying the filing of the revision petition i.e. Ex.A.3 in the cross examination of defendants witnesses without looking into the said 3 aspect basing on some hypothetical grounds dismissed the suit instead of decreeing the same;

4. The Lower Court should have seen that, the plaintiff have failed to prove the contents of Ex.B.2 and Ex.B.3; it is a settled proposition of law that, no finding should be given in respect an issue which was not framed, but the Lower Court without there being any such issue, while rejecting the evidence of appellant/plaintiff erroneously dismissed the suit instead of decreeing the same;

5. The Lower Court went on dismissed the suit erroneously despite all the above factual and legal infirmities and hence the Judgment of Lower Court is erroneous and justifiable for the said reasons.

Therefore, the appeal may be allowed by setting aside the decree and judgment in O.S.27/2007 dated 23-10-2017 and “decreed” the same with costs throughout.

5)The respondent on receipt of summons appeared before this court and contested the appeal through the counsel.

6)The Pleadings of the plaintiff in the plaint is as follows:-

The Plaintiff submits that he is the co-owner of plaint schedule property; he along with other co-owners let out plaint schedule property to

M/s. Hima Sekhar Educational Society under Regd. Lease Deed dated 28-09- 2005; as per building approved plan, the plaint schedule building was constructed; later the defendant municipality issued special notice by making new assessment to the building proposing to levy the house tax; aggrieving with, the plaintiff preferred revision petition, but till date it was not disposed off; without disposing revision petition, the defendant municipality issued demand notice by levying tax, the same is arbitrary, capricious and invalid according to Law; the defendant has not assigned any reasons basing on which it arrived at the annual rental value of the premises that warranted it to 4 levy the suit impugned tax; way back in the year 1993, the Municipality following the procedure under Sec.87 of A.P. Municipalities Act; at the time of assessment, plaint schedule area was not totally developed; the defendant municipality shall compute the annual rental value basing upon the plinth area and has to compute the tax for individual assessment as per Sec.87(4) of the

Act, 1965; hence prays the Court to declare the special notice demanding the tax is arbitrary, illegal and capricious and for consequential permanent injunction.

7)Defendant /GVMC resisted the claim of plaintiff by filing written statement denying all the material averments made in the plaint in para-wise by contending that, the defendant followed and complied mandatory procedure prescribed under Act 1965, and guidelines of the Government, and levied property tax; later special notice was served on the defendant, but the defendant has not raised any tenable objections; the suit schedule property is let out for commercial purpose, and the land rate in plaint schedule locality is very high, it is posh locality of Anakapalle Municipality area; since the defendant followed prescribed provisions of the Act and Rules and levied the property tax as per directions of Government, the plaintiff cannot question levying the tax; the claim of plaintiff is frivolous; as the plaintiff is seeking equitable relief of injunction orders, he shall come to the Court with clean hands, but he has not deposited 50% of tax levied by violating mandatory procedure under Sec.376(4) of the Act 1965, hence the defendant municipality prays the Court to dismiss the suit.

8)Basing on the above pleadings, the following issues are settled for trial in the trial court:-

1. Whether the plaintiff is entitled for declaration as prayed for ?

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2. Whether the plaintiff is entitled for consequential relief of permanent injunction as prayed for ?

3. Whether the plaintiff has failed to comply the mandatory

provisions under Sec.376(4) of A.P. Municipalities Act ?

4. To what relief ?

9)During the course of trial, the plaintiff himself examined as P.W.1 and

Ex.A.1 to Ex.A.3 are marked. On behalf of defendant, D.W.1 is examined and

Ex.B.1 to Ex.B.3 are marked on its behalf.

10)After hearing the arguments of both the counsel on record, the learned

Principal Junior Civil Judge, Anakapalle “dismissed” the suit, on that Plaintiff

preferred the appeal against the decree and judgment of Lower Court.

11)Heard the counsel for the Appellant/Plaintiff.

12)Heard the counsel for the Respondent/Defendant.

13)Perused the case records.

14)Now the Point for consideration is :-

“Whether the Appeal is to be allowed with costs throughout to

“set aside” the Decree and Judgment of Principal Junior Civil

Judge, Anakapalle and to decree the suit filed by the

appellant/plaintiff as prayed for ? “

15) Point :-

The Plaint Schedule Property reads as under :- All that piece or parcel of 1st floor plinth area measuring an extent of 452.22 sq. yards = 378.114 sq. meters site with ground floor plaint area 450 sq. feet of RCC Building and 1st floor area 450 sq. ft. up house bearing the New D.No.10-1-1- Ast.No.1087015717, House property that was situated in Zeroyathi Wet land S.No.494 in R.S. Ward- Ward No.9- Anakapalle Town Proper in Anakapalle Municipal Limits in the Registration Sub-District, Anakapalle of Visakhapatnam District- within the following measurements and boundaries :- 6

Direction BoundariesMeasurements Feet = Meters EastProperty of Buddha Satyavathi90 = 27.43 South40 feet wide road45 = 13.86 WestProperty of Karri Anand Kumar88 = 26.81 NorthThe property Srinivasa Builders45 = 13.86

16)The Appellant/Plaintiff filed the suit in O.S.27/2007 for the relief of declaration regarding assessment of property tax by the respondent/ defendant and for consequential permanent injunction restraining the respondent/defendant from collecting the property tax.

17)Upon due consideration of the material placed by both parties coupled with documentary evidence, the Learned Principal Junior Civil Judge,

Anakapalle “dismissed” the suit in O.S.27/2007 on 23-10-2017.

18)The main plea of the Plaintiff/Appellant and the evidence of P.W.1 is that, the plaint schedule property belongs to him; the issuing of “Special

Notice” despite petition for the revision of the assessment is “illegal” and hence for the relief of declaration, so also consequential relief of permanent injunction against the respondent/defendant/GVMC, represented by Zonal

Manager, Anakapalle Zone.

19)The main contention of the respondent/defendant/GVMC, Anakapalle is that, being competent authority levied the property tax and issue “Special

Notice” to the Plaintiff as per the norms of Municipalities Act; and they calculated property tax as per the Gazette rates; even after receipt of special notice, the plaintiff “not” filed any “Revision” petition, except dropping of a letter with a request to verify the matter and to take necessary action; there 7 are “no” irregularities committed by the defendant and as such the suit is “not” maintainable, accordingly liable to be dismissed.

20)P.W.1 examined for Appellant; Ex.A.1 to Ex.A.3 are marked; D.W.1 examined for respondent/defendant, Ex.B.1 to Ex.B.3 are marked.

21)The first and foremost aspect for consideration is that, the respondent/ defendant in the capacity of Greater Visakhapatnam Municipal Corporation, represented by its Commissioner, Anakapalle Zone is competent to levy the tax within the property of its jurisdiction. It is “not” the claim (or) question of the Appellant/Plaintiff/P.W.1 that the respondent/defendant has “no” jurisdiction to entertain any tax (or) to levy tax with regard to property concerned to the Greater Visakhapatnam Municipal Corporation. Considering

Ex.B.1 and Ex.B.2 the respondent/defendant/GVMC, represented by its

Commissioner has not only authorized, but it is the exclusive burden of the

Municipalities to comply and follow the Gazette Notification with Unit Rates and to levy the tax including the Plaintiff/P.W.1's property.

22)It is admission of Appellant/P.W.1 that the Government prescribed “procedure” to levy the property tax as per the Government Orders. So, the appellant/plaintiff/PW.1 “cannot” question the very functioning of the GVMC, represented by its Commissioner, Anakapalle.

23)The issuing of “Special Notice” by the respondent/defendant/GVMC is “not” in dispute. The questioning of the functioning of respondent/defendant by the appellant/plaintiff is that, there were “no” orders passed for their “revision” petition. The reply and resistance of the respondent/defendant and the evidence of D.W.1 is that, the appellant/plaintiff did “not” file any revision 8 petition except dropping of a letter to the defendant with a request to verify and to take necessary action in that regard. Just filing a representation styling itself as “revision petition” is “not” at all maintainable and the Learned counsel

for the respondent/defendant “rightly” put forth his arguments that there

should be ground for considering the revision, but “not” by way of request.

The said representation cannot be called as “revision” to exercise the provisos of Municipalities Act by the respondent/defendant/GVMC, represented by its

Commissioner, Anakapalle. Even at the stage of trial proceedings before the

Lower Court, the Plaintiff/Appellant/P.W.1 did “not” choose to the ground for revision and what made the respondent/defendant/GVMC to “deviate” from the Municipalities Act. Once the respondent/defendant/GVMC represented by its Commissioner, Anakapalle Zone is authorized and entrusted to his duties, “no” one can question its functioning as part of discharge their duties, much less on the ground of illegal discharging of their duties. The definition under illegal discharging of duties require substantial, cogent material to question the very functioning of the respondent/defendant/GVMC, but “not” in a formal and routine manner. In the instant case, what was intended by the appellant/ plaintiff/P.W.1 is “nothing but” to evade his liability “not” to pay the levied tax and to cause litigation somehow (or) the other as the respondent/defendant/

GVMC in discharging their lawful duties.

24)The learned Principal Junior Civil Judge, Anakapalle while dismissing the suit in O.S.27/2007 dated 23-10-2017 hold and consider that Act, 1965 mandate the Appellant/Plaintiff to file an “appeal” on “revision” and there is no short cut procedure under the Act, 1965; to file the suit “without” exhausting remedies provided under the Act, 1965; the aggrieved party has to approach proper forum, but “not” filing of the suit for “declaration”; the appeal is “not” filed under Act, 1965 and accordingly the same is prohibits for 9 filing of the suit; the suit is “not” maintainable for non-compliance of the mandatory procedure under Act, 1965; the Court “cannot” take cognizance of this suit under Sec.9 of the CPC and hence “dismissed” the suit against the appellant/plaintiff/P.W.1. At the stage of appeal also, the learned counsel for the appellant/plaintiff/P.W.1 “fails” to establish and clarify the Court, what prevented the appellant/plaintiff to invoke the mandatory provisions under

Act, 1965, which prohibits the filing of the suit. Just saying that the functioning of the respondent/defendant/ GVMC, Anakapalle Zone is “not” proper. As already discussed that the respondent/defendant/GVMC is competent and entrusted with the duties of levying of the tax to the property, for which it is concerned. No reasonable or proper explanation forthcoming from the Appellant/Plaintiff/P.W.1 to consider the appeal, where the Lower

Court categorically hold that the filing of the suit is “not” maintainable under law and “negitived” the relief sought for by the Appellant/Plaintiff/P.W.1.

25)The main appeal filed by the appellant/plaintiff/P.W.1 are “not” at all fit for consideration, except to cause the litigation with the respondent/defendant /GVMC, Anakapalle Zone. Just to postpone the payment of levied tax and to cause litigation with the respondent/defendant somehow (or) the other.

26)The Court do “not” find any justified reasons to consider the Grounds of

Appeal; the Learned Principal Junior Civil Judge, Anakapalle “rightly” discussed all the aspects and answer the Issues thereunder and categorically hold that the relief sought for by the Appellant/Plaintiff/P.W.1 is “not” maintainable, resulting the dismissal of the suit.

27)The Court do “not” find any justified reasons to interfere with the decree and judgment of Learned Principal Junior Civil Judge, Anakapalle in

O.S.26/2007, and the same is “entitled” for “confirmation”.

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28)In the result, the Appeal is “dismissed”; by “confirming” the

Judgment and Decree of Learned Principal Junior Civil Judge,

Anakapalle in O.S.27/2007 dated 23.10.2017; with costs throughout.

Dictated to Stenographer, transcribed by him, corrected and

pronounced by me in open Court, this the 25 th day of July 2018.

Sd/- x x x x x

X Addl. District & Sessions Judge Visakhapatnam at Anakapalle.

No oral or documentary evidence is adduced on either side.

Sd/- x x x x x

X Addl. District & Sessions Judge Visakhapatnam at Anakapalle.

11

1

FAIR

In the Court of X Additional District and Sessions Judge,

Visakhapatnam at Anakapalle.

Present: Sri B.B. Nagendra Rao

X Addl. District and Sessions Judge, Anakapalle

Friday, the 27 th day of July 2018

A.S.14/2018

(O.S. 177/2014 on the file of Additional Senior Civil Judge,

Anakapalle)

Between :

Nettam Ravi Shankar, S/o. late Baburao, Hindu, aged 41 years, P.H. Worker, Public Health Department, Anakapalle Municipality, residing at D.No.14-1- 23/1, Kaspa Street, Anakapalle, Visakhapatnam District.

........Appellant/D.2

And :

1) State Bank of India, represented by its Chief Manager, Main Branch, Anakapalle. (Plaintiff)

2) Kundu Pothuraju, S/o. Venkata Ramana, Hindu, aged 54 years, P.H. Maistry, Anakapalle Municipality, resident of D.No.14-9-34, Nidanamdoddi, Anakapalle, Visakhapatnam District. (R.2 is shown as proforma party and hence no notice is necessary to be served on him.) (D.1)

.... Respondents

Appeal filed u/Order 43, Rule 1 and Sec.96 of C.P.C. against the

Judgment and Decree passed in O.S. 177/2014 dated 06-10-2017 on

the file of Additional Senior Civil Judge's Court, Anakapalle.

Between :

State Bank of India, rep. by its Chief Manager, Main Branch, Anakapalle.

.....Plaintiff.

And :

1) Kundu Pothuraju

2) Netham Ravi Shankar

... Defendants.

This appeal coming before me on 20-07-2018 for final hearing in the presence of Sri K. Chandra Sekhar, Advocate for Appellant/D.2 and R.1 remained exparte and Appeal against R.2 is not pressed and having stood over for consideration till this day, this court delivered the following: - 2

J U D G M E N T

1)This appeal is preferred under Or.43, R.1 C.P.C. by unsuccessful 2nd defendant against the Plaintiff in the Lower Court proceedings being aggrieved with the decree and judgment passed in O.S. 177/2014 dated 06-10-2017 on the file of Additional Senior Civil Judge's Court, Anakapalle.

2)The Appellant is the 2nd defendant in O.S.177/2014 on the file of

Additional Senior Civil Judge's Court, Anakapalle, who filed this appeal against

the decree and judgment in O.S. 177/2014 dated 06-10-2017.

3)For the purpose of reference and understanding in this appeal, the appellant is referred to as the 2nd defendant while the 1st respondent is referred to as the plaintiff and 2nd respondent is the D.2/Proforma party.

4) The Grounds of Appeal are as follows:-

1. The decree and judgment of the Trial Court are contrary to law, weight of evidence and probabilities of the case; Lower Court failed to appreciate the evidence in correct direction; erroneously decreed the suit in favour of R.1/Plaintiff without glance through the Ex.A.1 to A.3; Lower Court never any glance with regard to the material alterations and interpolations in the loan agreement; ought to have dismiss the suit as the plaintiff failed to comply the terms of agreement by issuing prior notice to the principal borrower of the guarantee though admittedly it is a mandatory provision;

2.The Lower Court ought to have believed the Ex.B.1 document and disbelieved Ex.A.1 to Ex.A.5 documents; ought to have come to have conclusion that how the bank authorities could obtain no objection certificate from the employer of the principal borrower even prior to the date of loan application, it is evident that 1st respondent had played fraud in fabricating and manipulating the documents within the custody; 3

3. The Lower Court failed to take into account that R.1 bank failed to file scrap of paper to show the last payment by the principal borrower to show the suit is within time and valuation of the suit; Lower Court erred in discarding the Ex.B.1 and the evidence of D.W.1 and failed to appreciate the D.W.1 in filing the Ex.B.1; Lower Court failed to take into consideration of the admission made by the P.W.1 that prior notice is mandatory.

Therefore, the appeal may be allowed by setting aside the decree and judgment in O.S. 177/2014 dated 06-10-2017 and “dismissed” the same with costs throughout.

5)The respondent on receipt of summons appeared before this court and contested the appeal through the counsel.

6)The Pleadings of the plaintiff in the plaint is as follows:-

The Plaintiff-Bank submits that D.1 approached the Plaintiff Bank seeking financial assistance; on 09-11-2010 the 1st defendant has been sanctioned personal loan for Rs.2,50,000/- by the plaintiff bank, and that D.1 executed personal loan agreement etc.. on the even date with the conditions stipulated therein, and that D.2 stood as guarantor by executing deed of guarnatee in favour of plaintiff bank and that both defendants became liable to pay the due under account, when the defendants failed to discharge the said loan due in spite of repeated demands, reminder and subsequently

Plaintiff Bank filed the above suit for recovery of suit amount.

7)Defendant No.2 filed written statement denying all the material averments made in the plaint in para-wise by contending that, he availed personal loan of Rs.2,00,000/- from the Plaintiff Bank in the month of

November 2010, and that D.1 stood as guarantor to the said loan, and that he is paying installments regularly without fail, and the said loan is cleared off; he has no knowledge of availing loan by D.1 and he never stood as guarantor 4 to D.1, so also never executed any deed of guarantee to the plaintiff bank for the debt of D.1; D.1 might have colluded with the plaintiff bank and got availed loan and the said debt of D.1 is not known to him; the plaintiff bank with a view to recover the debt of D.1 might have created deed of guarantee as if this defendant executed; the plaintiff bank personnel had created the same and got filed the suit; there is no cause of action to file the suit; the suit is frivolous and vexatious one and liable to be dismissed in limini. Hence prays the Court to dismiss the suit.

8)Basing on the above pleadings, the following issues are settled for trial in the trial court:-

1. Whether the plaintiff is entitled to recover the suit amount as prayed for ?

2. Whether the D.2 is not stood as guarantor for D.1 ?

3. To what relief ?

9)During the course of trial, the plaintiff examined P.W.1 and Ex.A.1 to

Ex.A.5 are marked. On behalf of defendant, D.W.1 is examined and Ex.B.1 is marked on their behalf.

10)After hearing the arguments of both the counsel on record, the learned

Additional Senior Civil Judge, Anakapalle “decreed” the suit, on that defendant

no.2 preferred the appeal against the decree and judgment of Lower Court.

11)Heard the counsel for the Appellant/D.2.

12)R.1/State Bank of India, represented by its Chief Manager, Main Branch,

Anakapalle remained “exparte” on 26-04-2018.

13)The appeal against D.1 /Kundu Pothuraju/R.2 is “not pressed” by filing memo on 09-07-2018.

14)Perused the case records.

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15)Now the Point for consideration is :-

“Whether the Appeal is to be “allowed” to set aside the decree

and judgment of Additional Senior Civil Judge, Anakapalle in

O.S.177/2014 dated 06-08-2017 with costs throughout as

prayed for ?”

16)Answer :-

Respondent No.1/Plaintiff filed the suit against the Appellant/D.2 along with R.2/1st defendant for the recovery of suit amount of Rs.2,14,127/- on the file of Additional Senior Civil Judge's Court, Anakapalle in O.S.177/2014.

17)The Learned Additional Senior Civil Judge, Anakapalle “decreed” the suit against the Appellant/D.2, so also R.2/1st defendant.

18)The 1st respondent/Plaintiff, who got decree in O.S.177/2014 remained “exparte”. The reasons best known to the Plaintiff/R.1. The Appeal against

R.2/1st defendant was “dismissed” by the Appellant.

19)The learned counsel for the Appellant/D.2 argued with regard to passing of decree by the Learned Additional Senior Civil Judge, Anakapalle in

O.S.177/2014 dated 06-10-2017 and hence considering the grounds of appeal

to set aside the Decree and Judgment of the Lower Court.

20)Since the R.1/Plaintiff remained exparte; the Appeal against R.2/D.1 is “not pressed” and considering the Grounds of Appeal and upon hearing the

Learned counsel for the Appellant/D.2, the Court is of the considered opinion that the grounds sought for by the appellant/D.2 are fit for consideration to allow the appeal filed by the Appellant/D.2.

21)For the reasons stated in the Grounds of Appeal and since R.1/Plaintiff remained exparte, the Court inclined to allow the Appeal to set aside the 6 decree and judgment of Learned Additional Senior Civil Judge, Anakapalle in

O.S.177/2014 to the extent of Appellant/D.2 alone with costs throughout.

22)In the result, the Appeal is “Allowed” to “set aside” the Decree

and Judgment of Learned Additional Senior Civil Judge, Anakapalle in

O.S.177/2014 dated 06-10-2017 with costs throughout, against R.1

only.

Dictated to Stenographer, transcribed by him, corrected and

pronounced by me in open Court, this the 27 th day of July 2018.

Sd/- x x x x x

X Addl. District & Sessions Judge Visakhapatnam at Anakapalle.

No oral or documentary evidence is adduced on either side.

Sd/- x x x x x

X Addl. District & Sessions Judge Visakhapatnam at Anakapalle.

7

1

FAIR

IN THE COURT OF THE X ADITIONAL DISTRICT AND SESSIONS JUDGE,

VISAKHAPATNAM AT ANAKAPALLE.

Present: Sri B.B. NAGENDRA RAO

X Addl. District and Sessions Judge, Anakapalle.

Tuesday, this the 24 th day of July 2018

ORIGINAL SUIT No. 21/2017

Between:

Pulavarthi Sanyasi Raju, S/o. Bapanna Setti, Hindu, aged 58 yeaers, r/at D.No.14-25-13, KVR Naidu Street, near JVL Hospital, Nidanamdoddi, Gavarapalem, Anakapalle, Visakhapatnam District. (Aadhar No. 4069 3608 0675).

.... Plaintiff.

And:

1) Yelamanchili Venkata Ramana, S/o. (late) Ramunaidu, Hindu, aged about 52 years, r/at D.No.12-5-1, Beside Sindhu Travels, Baruvari Veedhi, Anakapalle, Visakhapatnam District.

2) Yelamanchili Lakshmana Rao, S/o.-do-, Hindu, aged 50 years, r/at D.No.12-5-24, Opp. Astalakshmi Temple, New Colony, Anakapalle, Visakhapatnam District. …Defendants.

This suit coming before me on 18-07-2018 for exparte hearing before me in the presence of Sri K. Chandra Sekhar & Sri TVN Setty, Advocates for Plaintiff and that defendants remained exparte and having stood over till this day for consideration, this Court doth the following:-

J U D G M E N T

1)The suit is filed by the plaintiff against the defendants for grant of preliminary decree; directing the defendants to pay an amount of

Rs.24,05,333/- together with interest; in default of payment, further directed that the plaint schedule property be sold and the sale proceeds applied in payment of the amount due to the plaintiff under the decree; and for costs of the suit.

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2)The brief averments of the plaint are that :

The plaintiff submits that on 03-08-2011 the defendants borrowed a sum of Rs.10,00,000/- from the plaintiff for the purpose of discharging their sundry debts and executed a registered simple mortgage in favour of plaintiff by mortgaging plaint schedule property and subsequently defendants failed to pay anything in spite of demands and written reminders and final issued legal notice dated 15-04-2017, and that defendants received the notice and acknowledged the same, but the defendants failed to repay the same in spite of plaintiff's demand. Hence the suit.

3)Heard the counsel for the Petitioner.

4)D.1, D.2 remained “exparte” on 22-09-2017.

5)Perused the case records.

6)Now the Point for consideration is :-

“Whether the Plaintiff/P.W.1 is entitled for relief of directing

the defendant to pay the suit amount of Rs.24,05,333/- with

interest as claimed for ?”

7)Answer :-

The Plaintiff is examined as P.W.1, the 2nd attestor examined as P.W.2 for Ex.A.1. Ex.A.2 to Ex.A.4 are marked through P.W.1/Plaintiff to substantiate his claim.

8)The evidence of P.W.1 goes to show that the defendants are the absolute owners, under which they borrowed Rs.10,00,000/- on 03-08-2011 and executed simple mortgage deed under Ex.A.1, when the defendants are became defaulters, he got issued Ex.A.2 Notice, and the same was served on defendants 1 & 2 under Ex.A.3 and Ex.A.4 respectively and hence to pass decree and judgment in his favour against the defendants.

9)The evidence of P.W.2 goes to show that the defendants have absolute owners, executed Ex.A.1 dated 03-08-2011, for which he is one of the 3 attestor and the defendant never paid any single amount towards principle in spite of demands and duly supported the claim of the Plaintiff/P.W.1.

10)The documentary evidence under Ex.A.1 to Ex.A.4 “duly” and “rightly” substantiate the relief sought for by the Plaintiff/P.W.1.

11)The evidence of P.W.1, P.W.2 coupled with Ex.A.1 to Ex.A.4 are left “unchallenged”. The Plaintiff/P.W.1 proved his claim, accordingly entitled for suit amount as prayed for against the defendants

12)In the result, the suit is “preliminarily decreed” in favour of

Plaintiff and against the defendants; directing the defendants to pay

an amount of Rs.24,05,333/- (Rupees Twenty four Lakhs, Five

thousand, Three hundred and Thirty three only) with costs; together

with future interest @6% p.a. from the date of suit till the date of

realisation on Rs.10,00,000/-.

The time for redemption is six (6) months.

Dictated to Stenographer, transcribed by him, corrected and

pronounced by me in open Court, this the 24 th day of July 2018.

Sd/- x x x x x

X Addl. District & Sessions Judge

Visakhapatnam at Anakapalle.

Appendix of Evidence

Witnesses examined for For Plaintiff :- P.W.1/17-10-2017 : Pulavarthi Sanyasi Raju (Plaintiff) P.W.2/18-07-2018 : S. Ravi Kumar (3rd Party)

No witness examined on behalf of defendant as the defendant remained exparte.

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Documents marked

For Plaintiff :-

Ex.A.1/13-08-2011: Registered Simple Mortgage Deed Ex.A.2/15-04-2017: Office copy of Registered Lawyer's Notice Ex.A.3/: Original Postal Acknowledgment from D.1. Ex.A.4/: Original Postal Acknowledgment from D.2.

For Defendants : -NIL-

Sd/- x x x x x

X Addl. District & Sessions Judge Visakhapatnam at Anakapalle.

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