Smt.B.Manjari

BEFORE THE II ADDITIONAL DISTRICT JUDGE,

AT L B NAGAR, RANGA REDDY DISTRICT

PRESENT: Smt.B. MANJARI II Addl.District Judge

Thursday the 28th day of April, 2022

C.M.A.No.33 of 2016

Between:

1. S. Purushotham, S/o. Mallaiah, aged about 50yrs, Occ: Business, R/o. Plot no. 121, Indira Reddy Allwyn Colony, Miyapur, R. R. District.

2. Merugu Gopal, S/o. M. Malkaiah, Aged about 36yrs, Occ:Business,R/o.Bhoodhan Pochampally, Nalgonda District. Appellants

AND

1. Gangala Chandrashekar, S/o. Muthyalu, Aged about Major, Occ: Business, R/o. H.no. 12-21/1, Khanamet, Serilingampally Village and Mandal, Ranga Reddy district.

2. Boddam Kittu Yadav, S/o. Sathaiah, Aged about 43yrs, Occ: Business, R/o. 1-52, Madhapur, Hi- Tech City, Serilingampally Mandal, Hyderabad – 500 084.

3. Smt. S. Mamatha, W/o. Krishna, Aged about 45yrs, Occ: Household, R/ol. 2-16/1, Guttala Begumpet, Madhapur, Hi-Tech City, Serilingampally Mandal, Hyderabad – 500 084. … Respondents

Appeal against the orders dated 18.01.2016 passed by the learned VII Additional Senior Civil Judge, Ranga Reddy District at L. B. Nagar, in;

I.A.No.1117 of 2015

in

O.S.No.1624 of 2015

Between:

1. S. Purushotham, S/o. Mallaiah, aged about 50yrs, Occ: Business, R/o. Plot no. 121, Indira Reddy Allwyn Colony, Miyapur, R. R. District.

2. Merugu Gopal, S/o. M. Malkaiah, Aged about 36yrs, Occ:Business,R/o.Bhoodhan Pochampally, Nalgonda District.

… Petitioners/Plaintiffs

AND

CMA 33 of 2016 Page No.2 of 11

1. Gangala Chandrashekar, S/o. Muthyalu, Aged about Major, Occ: Business, R/o. H.no. 12-21/1, Khanamet, Serilingampally Village and Mandal, Ranga Reddy district.

2. Boddam Kittu Yadav, S/o. Sathaiah, Aged about 43yrs, Occ: Business, R/o. 1-52, Madhapur, Hi-Tech City, Serilingampally Mandal, Hyderabad – 500 084.

3. Smt. S. Mamatha, W/o. Krishna, Aged about 45yrs, Occ: Household, R/ol. 2-16/1, Guttala Begumpet, Madhapur, Hi-Tech City, Serilingampally Mandal, Hyderabad – 500 084.

… Respondents/Defendants

This appeal coming before me on 21.03.2022 for final hearing in the presence of Sri N. Ranga Rao, counsel for appellants, Respondents no.1 and 2 set exparte, appeal against respondent no.3 dismissed and upon hearing both sides, perusal of the material on record and the matter having stood over for consideration till this day, this court made the following:-

JUDGMENT

1.The Respondents/defendants filed the appeal against the order in I.A.No.1117/2015 in O.S.No.1624 of 2015 filed under Order 39 Rule 1 & 2 C.P.C, which was dismissed the VII Additional Senior Civil Judge,

R.R.District at L. B. Nagar vide Decreetal Order dated 18.01.2016.

2. The brief averments of I.A.No.401/2021 are that, One E.

Ramaiah was the absolute owner and pattedar and possessor of land bearing

Sy.no. 60 admeasuring Ac.12-38gts situated at Guttla Begumpet village,

Serilingampally Mandal, R. R. District who died leaving behind his son E.

Nagesh and others as his legal heirs and successors in interest; that during his life time he sold certain extent of land to third parties and after his death his legal heris have affected oral partition of the remaining extent of land in

Sy.no. 60 with metes and bounds; in the said partition the suit schedule property i.e., land bearing sy.no. 60 (part) admeasuring Ac.2-10gts out of its total area of Ac.2-38gts situated at Guttla Begumpet village, Serilingampally

Mandal, R. R. District fell to the share of E. Nagesh and thereby he became the absolute owner and possessor of the said land;

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It is the further case of the plaintiffs that E. Nagesh son of E.

Ramaiah has executed a General Power of Attorney bearing Registered

Doc.no. 2489/Bk-IV of 1991 dt. 16.12.1991 on the file of District Registrar of

Ranga Reddy in favour of Sri. P. S. Mallesh S/o. P. Somaiah empowering him to do all acts and deeds as mentioned in the Registered GPA including alienating powers in respect of the entire property i.e., sold and remaining and partitioned property including open land; that the GPA holder with the knowledge and consent of the principal of has offered to sell away the land admeasuring Ac.2-10gts in Sy.no.60 Part of Guttanla Begumpet Village,

Serilingampally Mandal, R. R.District in favour of petitioners herein for a total sale consideration of Rs. 40,50,000/- and the petitioners have purchased the same by paying the said agreed sale consideration vide un-registered sale deed dt. 12.01.2001 and having received the consideration amount, the vendor has put the petitioners in actual physical possession of the said purchased land by way of delivery of possession of the suit schedule property.

It is the further case of the plaintiffs that the sale deed of the petitioners is not registered and as such to avoid future complications they have validated the said sale document by paying deficit stamp duty of Rs.

2,83,500/- together with a penalty of Rs. 8,50,500/- under section 42 of

Indian Stamp Act on the file of District Registrar of Ranga Reddy District vide file No. 4495/AR/2015 dt. 06.08.2015. That the suit schedule property was under peripheral limits of urban Agglomeration and whereas the extent of the land by the vendor of the plaintiff is less than Ac.5-00gts as such they were exempted from the provisions of Urban Land Ceiling Act 1976 in view of GO

Ms.No. 733 dt. October 1988; that earlier to purchase the vendor of the petitioners was in possession of the suit schedule property and after purchase the petitioners/plaintiffs are in continuous un-interrupted peaceful

CMA 33 of 2016 Page No.4 of 11

possession and enjoyment of the suit property as absolute owners right from the date of purchase i.e., from 12.01.2001 onwards. That the respondents/defendants without any interest over the suit schedule property are trying to cause interference in the lawful possession and enjoyment of the petitioners over the suit schedule property and trying to dispossess them.

That on 15.01.2015 and on 18.11.2015 the respondents/defendants along with un-social elements came to the suit schedule property and tried to dispossess the appellants/plaintiffs from the suit schedule property, but the petitioners/plaintiffs resisted the illegal acts of the respondents/defendants and approached the concerned police to lodge a case against the respondents/defendants but the police advised to approach concerned civil court;thattheappellants/plaintiffsapprehendsthatthe respondents/defendants may once again cause interference and may dispossess them from the suit schedule property hence the petition for grant of interim injunction.

3. Inspite of receipt of notices the respondents were called absent and were set exparte.

4. Before the Court below Exs.P1 to P11 were marked for the petitioners/plaintiffs.

5. Having heard the learned counsel for the petitioners/plaintiffs the Court below dismissed the petition.

6. Aggrieved by the same, the present appeal is filed with the following grounds:-

1.The order of the Court below is arbitrary, contrary to law, and suffers illegalities on all aspects determined it.

CMA 33 of 2016 Page No.5 of 11

2.The Court below failed to grasp the aspect arising for determination as such, misdirected itself in law and thereby misapplied the law.

3.The Court below failed to appreciate the fact that land is owned by E. Ramaiah and his children partitioned the property after his death and suit schedule property fell to the share of his son i.e., E. Nagesh in a partition executed under Ex.A2 Registered

GPA in favour of Mallesh who sold the suit schedule property to the petitioners/plaintiffs under unregistered sale deed which was validated subsequently by paying requisite stamp duty.

4.The Court below gave undue importance to the non-registration of the sale deed and ought to have seen that the title is only incidentally concerned and not decided in a simple suit for perpetual injunction.

5.The court below passed the order by overlooking that the respondents/defendants have failed to contest the suit and were set exparte and ought to have seen that the photographs filed by the petitioners/plaintiffs in respect of suit schedule property describes the possession and extents mentioned in the Adangal.

6.That the court below ought to have appointed an Advocate

Commissioner in the event of doubt about the availability of land and possession by the appellants in the suit schedule property.

7.That the appellants are still in possession of the suit schedule property which is the fundamental point of law under Order

XXXIX Rule 1 and 2 CPC and as such the order under appeal is liable to be set aside, otherwise the respondents taking advantage of the order under appeal will dispossess the appellants from the suit land.

7. With these grounds that others that will be urged at the time of arguments, prayed to allow the appeal by setting aside the order of the lower Court.

CMA 33 of 2016 Page No.6 of 11

8. Nobody is examined and no document is marked in the appeal.

9. Now, the point for determination is “Whether the order passed in IA no. 1117 of 2015 in OS no. 1624 of 2015 dt. 18.01.2016 passed by the VII Addl. Senior Civil Judge, Ranga Reddy District at L. B. Nagar is to be set aside?

10.The parties in this appeal have been arrayed as that of their status before the trial court.

11.It is the case of the petitioners that through the GPA of the absolute owner and possessor of the petition schedule property that is E.

Nagesh S/o. E. Ramaiah that executed GPA in favour of P. S. Mallesh S/o. P.

Somaiah the property was purchased for a total sale consideration of

Rs.40,50,000/- and delivery of possession was also obtained by petitioner, that the sale deed of the petitioners is not a registered one and to avoid future complications they got validated the sale document by paying the deficit stamp duty together with penalty of Rs. 8,50,000/- and that they have been in continuous uninterrupted peaceful possession and enjoyment of the petition schedule against which the respondents are causing the illegal and unlawful acts of interference and are posing threat against their possession and enjoyment thereby they sought for grant of temporary injunction in the petition in IA no. 117 of 2015 in which orders are passed dismissing the said petition.

12.It is significant to note that the unregistered document of sale obtained by the petitioners has no recognition in the eye of law as to the purchase of the property by them. As rightly discussed by the trial judge conveyance of property more particularly immovable property by the value of more than Rs. 100/- is compulsorily registrable as per Sec. 17 of Transfer of

CMA 33 of 2016 Page No.7 of 11

Property Act. Without valid document the rights of the property would not be transferred in favour of the petitioners to claim rights of ownership and title over the said immovable property. As such a cloud is cast as to the rights of the ownership and title over the petition schedule property in favour of the petitioners herein.

13.Coming to the point as to the possession for the grant of relief and injunction possession is considered as nine points in law. The petitioners herein claim that they were delivered possession of the petition schedule property and that they have been in continuous possession of the petition schedule property to substantiate their case the petitioners herein have marked Ex.P1 General Power of Attorney, Ex.P2 ordinary sale deed,

Ex.P3 and P4 receipts, Ex.P5 to P10 are the certified copies of pahanies and

Ex.P11 are the photographs. Barring Ex.P1 to P4 the petitioners relied on the documents marked as Ex.P5 to P11 as the documents for possession. A perusal of the documents Ex.P5 to P10 do not reveal that the name of their vendor E. Nagesh S/o. Ramaiah is found recorded as possessor of the petition schedule property. Considering the nature of the petition schedule property which is landed property a photograph filed and marked as Ex.P11 is not considered as a reliable document in proof of possession of the property.

14.It is significant to note that In a decision reported in 2021 (1) ALD 600 (TS)(DB) at paragraph no.20 between Kopalle Venu Gopal and another Vs. P. Subrahmanya Prasad and others wherein it was held as follows:

Plaintiff has to establish his possession of suit property on the date of filing of suit prima facie, if he seeks injunction in suit restraining defendants and others to interfere with his possession of said property.

CMA 33 of 2016 Page No.8 of 11

15.In another reported decision reported in 2019 (3) ALD 302 between Uppara Anjinappa (died) and others Vs. T. Khasim Sab (died) per Lrs wherein it was held as follows:

Burden squarely upon plaintiffs to prove that they have title over suit property and also possession on date of suit – It is only if plaintiffs proved their possession, they will be entitled to injunction.

16.In another reported decision reported in AIR 2010 Supreme

Court 296 between Kashi Math Samsthan and Anr. Vs. Srimad Sudhindra

Thirtha Swamy and Anr wherein it was held as follows:

In order to obtain an order of injunction, the party who seeks for grant of such injunction has to prove that he has made out a prima facie case to go for trial, the balance of convenience is also in his favour and he will suffer irreparable loss and injury if injunction is not granted. But it is equally well settled that when a party fails to prove prima facie case to go for trial, question of considering the balance of convenience or irreparable loss and injury to the party concerned would not be material at all, that is to say, if that party fails to prove prima facie case to go for trial, it is not open to the court to grant injunction in his favour even if he has made out a case of balance of convenience being in his favour and would suffer irreparable loss and injury if no injunction order is granted.

17.In another reported the decision reported in 2012 (1) ALD 142 between Yerra Venkatesh Vs. Nathi Mallesh and others wherein it was held as follows:

Failure of plaintiff to establish his possession over suit property on date of filing suit, effect of – Plaintiff, if failed in proving his prima facie case based on possession to go for trial, it is not open to court to grant injunction in his favour even if he has made out a case of balance of convenience being in his favour and that he would suffer irreparable loss and injury if no injunction is granted.

To make out his case the plaintiff must first statisfy the Court that he has a prima facie case, that the balance of convenience is in his favour and that he would suffer irreparable loss or injury if injunction is not granted. To make out his prima facie case, the plaintiff must first and foremost establish his possession over the suit schedule property on the date of the suit by adducing necessary oral and documentary evidence and he cannot rely upon the weakness, if any,in the case of the defendant(s) for this purpose.

CMA 33 of 2016 Page No.9 of 11

18.In another decision reported in AIR 2012 Supreme Court 1727 Crl.Apl.no. 2968 of 2021 arising out of SLP No. 15382 of 2009 dt.

2.03.20112 between Maria Margarida Sequeria Fernandes and Others Vs.

Erasmo Jack de Sequeria (Dead) through Lrs. Wherein it was held as follows:

The person averring a right to continue in possession shall, as far as possible, give a detailed particularized specific pleadings along with documents to support his claim and details of subsequent conduct which establish his possession.

…….

It would be imperative that one who claims possession must give all such details as enumerated hereunder. They are only illustrative and not exhaustive.

(a) who is or are the owner or owners of the property;

(b) title of the property;

(c) who is in possession of the title documents

(d) identity of the claimant or claimants to possession;

(e) the date of entry into possession;

(f) how he came into possession - whether he purchased the property or inherited or got the same in gift or by any other method;

(g) in case he purchased the property, what is the consideration; if he has taken it on rent, how much is the rent, license fee or lease amount;

(h) If taken on rent, license fee or lease - then insist on rent deed, license deed or lease deed; (i) who are the persons in possession/occupation or otherwise living with him, in what capacity; as family members, friends or servants etc.;

(j) subsequent conduct, i.e., any event which might have extinguished his entitlement to possession or caused shift therein;

and

(k) basis of his claim that not to deliver possession but continue in possession.

19.By relying upon the preposition laid down in the above said decisions it can be said that the petitioners failed to prove their possession over the petition schedule property as on the date of filing of the petition as such they would not entitle for grant of equitable relief of injunction over the

CMA 33 of 2016 Page No.10 of 11

petition schedule property. It is also appropriate to make a note of the disparity with regard to prima-facie title and prima facie case in favour of the petitioner, the same is categorically explained in a decision reported in 1992 (1) SCC 719 Dalpat Kumar and Another Vs. Prahlad Singh and others so also cited and reported on the side of respondents side wherein it was held that

Prima facie case is not to be confused with prima facie title which

has to be established, on evidence at the trial. Only prima facie case

is a substantial question raised, bonafide, which needs investigation

and a decision on merits. …. The court while granting or refusing to

grant injunction should exercise sound judicial discretion to find the

amount of substantial mischief or injury which is likely to be caused

to the parties, if the injunction is refused and compare it with that

which islikely to be caused to the other side if the injunction is

granted. If on weighing competing possibilities or probabilities of

likelihood of injury and if the court considers that pending the suit,

the subject matter should be maintained in status quo, an injunction

would be issued. Thus the court has to exercise its sound judicial

discretion in granting or refusing the relief of ad-interim injunction

pending the suit.

20.Since the petitioners herein failed to make out a prima facie case with regard to their possession more so under the defective title document named as ordinary sale deed it can be said that neither there is prima-facie case nor the balance of convenience that tilts in favour of the petitioners to order this petition and to grant the relief of temporary injunction in their favour.

21.Added to the above, the petitioners suppressed material facts while seeking the relief of temporary injunction which is the equitable

CMA 33 of 2016 Page No.11 of 11

relief. It has been laid down that the person who seeks the equitable discretionary relief must approach the court with clean hands. The petitioners must make honest disclosure of the material facts both for and against them. Having paid the total sale consideration of Rs. 40,50,000/- to the vendor through his GPA holder and even paid the deficit stamp duty together with penalty of an amount of Rs. 8,50,000/- and having obtained delivery of possession with which the total transaction of purchase was complete. Had it been true, there would have been an execution of a valid document that is a registered sale deed. There is no reason or explanation stated by the petitioners for not obtaining the registered sale deed that validates the transfer of property in their favour. As such it can be said that the petitioners suppressed the material facts behind obtaining ordinary sale deed and not a registered sale deed in respect of the petition schedule property and the said suppression of material facts also dis-entitle them to grant the relief of temporary injunction in their favour. Therefore, the orders passed by the trial judge holds good and needs no interference. In other words, this appeal filed by the defendants/respondents is to be dismissed.

22.In the result, the appeal is dismissed. No costs.

Dicated to the Stenographer, transcribed by her, corrected and and pronounced by me in the open court on this the 28th day of April, 2022

II Additional District Judge,

Ranga Reddy District.

APPENDIX OF EVIDENCE

WITNESSES EXAMINED

NIL

EXHIBITS MARKED

NIL

II Additional District Judge, Ranga Reddy District.

CMA 33 of 2016 Page No.12 of 11

CMA 33 of 2016 Page No.13 of 11

CMA 33 of 2016

28.04.2022

Admittedly, the petitioner/appellant herein has purchased the property under

Ex.P2 unregistered sale deed. As rightly observed by the trial judge conveyance of property more particularly immovable property, the value of which is more than Rs. 100 is compulsorily be registered. The unregistered document i.e., sale deed obtained by the petitioner has no recognition in the eye of law as to the purchase of the property by the petitioner. Therefore, he cannot be termed as owner of the property under the defective sale deed obtained by him. So far as the possession is concerned, the documents filed and relied by the petitioner as Ex.P5 to Ex.P10 certified copies of pahanies do not disclose the possession of either the petitioner or his vendor. Since the possession is nine points in law to grant the relief of injunction in the absence of any convincing documentary evidence to establish the possession of the petitioner as on the date of filing of the petition, itself entitles him to grant the relief of interim injunction. I do not find any flaw in the orders passed by the trial judge in his orders dt. 18.01.2016 in IA no. 1117 of 2015. In other words, the appeal is liable to be dismissed.

In the result, the appeal is dismissed. No costs.

CMA 33 of 2016 Page No.14 of 11

Order pronounced (VSO)

In the result, the appeal is dismissed. No costs.

II ADJ

BEFORE THE CHAIRMAN MACT -CUM

II ADDL. DISTRICT JUDGE, RANGA REDDY DISTRICT,

AT L.B.NAGAR

PRESENT :SMT. B. MANJARI Chairman MACT-cum-II ADJ

Thursday, the 19 th day of May, 2022

M.V.O.P. No.878 of 2015

Between:

1. Athana Bugamma W/o. Late A. Komaraiah, Aged about 34yrs, Occ: Housewife,

2. Athana Ramcharan S/o. Late A. Komaraiah, Aged about 8 years, Occ: Student,

3. Athana Bhargavi D/o. Late A. Komaraiah, Aged about 5years, Occ: Student,

4. Athana Chaitanya Kumari D/o. Late A. Komaraiah, Aged about 2years, Occ: Nil

5. Athana Yadamma W/o. Late A. Narsimha, Aged about 55yrs, Occ: Housewife,

All are R/o. H.no. 2-61, Yacharam Village & Mandal, Ranga Reddy District. … Petitioners AND

1. APSRTC Represented by Regional Manager, APSRTC old Guntur, Guntur – AP, Owner of the Bus Bearing NO. AP29 Z 1203.

2. Gullenkala Satyanarayana Murthy S/o. Sarveshwar Rao, Aged about 55yrs, Occ: Driver, R/o. H.no. B1/8, PWD Colony, Andhra Pradesh. … Respondents

This petition is coming before me on 17.03.2022 in the presence of M/s. R. Venkat Ram Reddy, counsel for petitioners, Ms. V. Padma, Counsel for respondent no.1 and Sri. P. Ram Reddy, counsel for respondent no.2, and upon hearing both sides, perusing the material on record and having stood over the matter for consideration till this day, this court passed the following:

A W A R D

1.The Claim Petition is filed u/S.166 of the M.V.Act r/w Rule 475(1)(b) of A.P.M.V.Rules claiming compensation of Rs.35,00,000/- for the death of Athana Komaraiah (hereafter referred as ‘deceased’) in a motor accident that took place on 20.05.2015 at about 3PM on Sagar

MVOP 878 of 2015 Page No. 2 of 11 highway near stone cruser at Agapally, Manchal Mandal, Ranga Reddy

District, within the jurisdictional limits of P.S.Manchal.

2.The brief averments of the petition are that, petitioner no.1 is wife, Petitioners no. 2 to 4 are children and petitioner no.5 is mother of deceased Athana Komaraiah; that on 20.05.2015 at about 3PM while the deceased Athana Komaraiah was proceeding on his motorcycle bearing no. AP29 BS 2784 and reached near crusher Mill, Agapally Village, in the mean time, the driver of the APSRTC Bus bearing No. AP29 Z 1203 driven in rash and negligent manner by the driver of the said APSRTC Bus came in opposite direction dashed the motorcycle of the deceased, due to which the deceased fell on the ground and sustained grievous head injury and the deceased was shifted to global hospital at Bairamalguda and at about 5:30PM the deceased was declared as dead due to injuries.

The brother of the deceased Athana Mallesh lodged a complaint with police Manchal, who registered a case in Cr.no. 79 of 2015 for the offence u/sec. 304-A of IPC. That the deceased was hale and healthy at the time of accident and used to draw salary of Rs. 18,000/-, due to death of the deceased, the petitioners no.1 to 5 lost their only bread earning member and sustained heavy loss to their family and future educational career of children of Late Athana Komaraiah. As such all the respondents are jointly and severally liable to pay the compensation of

Rs.35,00,000/- @ 12% p.a from the date of petition till realization.

Hence, the claim petition.

3.Respondents No.1 filed counter denying the averments made in the petition and further contended that he is noway concerned with the alleged accident and the petitioners are put to strict proof of his employment at S.S.R Transport at Medchal, age, income and the dependency of the petitioners on the deceased and that PS Katangur

MVOP 878 of 2015 Page No. 3 of 11 registered a case in Cr.no. 169 of 2014 u/sec. 304-A, 337 of IPC against the driver of the APSRTC bus and the lorry driver and investigation is in progress, hence requested for dismissal of the petition with exemplary costs.

4.Respondent no.2 filed counter denying the averments made in the petition and further contended that the respondent no.2 is not liable to pay any compensation to the petitioners and it is the respondent no.1 that is liable to pay compensation if the petitioners are entitled for if any; that the petitioners failed to produce any document in respect of income of the deceased; that the compensation of Rs.

35,00,000/- claimed by the petitioners in the claim petiton against defendant heads are highly excessive, arbitrary and out of all proportions the petitioners are not entitled for any amount and the compensation amount is highly excessive and prayed to dismiss the petition with costs.

5.Basing on the pleadings of both sides, the following issues are settled for trial:

1.Whether accident occurred on 20.05.2015 at about 3PM, on Sagar highway, near stone cruser at Agapally, Manchal Mandal, Ranga Reddy District causing death of Athana Komaraiah, due to rash and negligence driving of APSRTC bus bearing no. AP29 Z 1203 driven by respondent no.2?

2.Whether the petitioners are entitled to compensation, if so, to what amount and from which respondent?

3. To what relief?

6.To prove the case, PWs.1 to 3 are examined and Exs.A1 to

A7 are marked for the petitioners. No witness is examined and no exhibits are marked for respondents. Ex.X1 is marked through PW3.

7.Heard the arguments of both sides. Written arguments filed by petitioners.

MVOP 878 of 2015 Page No. 4 of 11

ISSUE No.1:

8.As extracted by me above, it is the case of the petitioners that on 20.05.2015 while the deceased was proceeding on his motorcycle to reach Hyderabad and when he reached Agapalli village near crusher mill, the APSRTC Bus bearing no. AP29 Z 1203 which was driven in rash and negligent manner dashed the motorcycle and due to the said impact he sustained grievous head injury and other injuries and when he was shifted to the hospital, he was declared dead by the doctors, there upon a police complaint was registered at Manchal Police station in Cr.no. 79 of 2015. Thereby the petitioners claim that the deceased died due to the accident that was caused involving the bus bearing no. AP29 Z 1203.

9.The respondents no.1 and 2 that filed their respective counters stating that there was no negligence on the part of the driver of the bus and it was the deceased that was coming in high speed by overtaking the lorry on to the extreme right had hit the front side corner of the bus there by sustained injuries.

10.To substantiate their respective contentions on the petitioners side, the first petitioner examined herself as PW1 and reitered the very same contentions made by them in this petiton. In addition to her oral statement she also marked Ex.A1 First Information

Report, Ex.A2 charge sheet, Ex.A3 Rough sketch, Ex.A4 PME Report,

Ex.A5 MVI Report and Ex.A6 Inquest report.

11.PW1 is subjected to cross examination for both the respondents no.1 and 2. Except eliciting the fact that she is not an eye witness to the occurrence there is no other information found elicited as

MVOP 878 of 2015 Page No. 5 of 11 to the manner of the occurrence and as to the fault of the Respondent no.2 from the deceased.

PW2 a supportive witness said to be an eye witness to the occurrence is also examined by the petitioners that fild his chief affidavit stating that on 20.05.2015 he was traveling in the APSRTC bus bearing no. AP29 Z 1203 as a passenger to go to his village Polepally from

Hyderabad and on reaching the crusher mill at about 2:30PM the driver of the bus drove in a rash and negligent manner and went on a wrong side, thereby dashed the motorcycle bearing no. AP29 BS 2784, due to which the rider of the motorcycle fell on the ground and sustained grievous injuries, that the driver of the bus tried to flee away but with the help of the co-passengers he was stopped.

During his cross examination, PW2 deposed that there was a slight curve at the place of the accident and the bus was climbing up while the bike was getting down of the road, that the left side front portion of the bus dashed the motorcycle and that the accident took place in the accident prone area. He denied the suggestion that he did not witness any accident and that he did not travel in the bus and he is deposing false to help the claimants.

12.The oral evidence of PW1 with the support of the statements of PW2 and the documents filed and marked as Ex.A1 to A6 are convincing and clear to explain the manner in which the accident occurred. Even if it is considered that PW2 is a planted witness to strengthen the case of the petitioners, the documents Ex.A1 FIR registered against the driver of the bus bearing no. AP29 Z 1203 that belong to the respondent no.1 and driven by Respondent no.2 is found registered by the police. Under Ex.A2 charge sheet the police on due

MVOP 878 of 2015 Page No. 6 of 11 investigation laid charge sheet against the respondent no.2 driver of the bus. Likewise, Ex.A3 rough sketch depicts the scene of occurrence that took place in this case and according to Ex.A5 MVI Report there was no mechanical failure of the bus in causing accident and lastly under Ex.A4

PME report the deceased died due to the grievous injuries sustained by him in the road accident. In all probability the above said oral and documentary evidence is sufficient to consider that the deceased in this case died in the accident that took place on 20.05.2015 near stone crusher at Agapally, Manchal Mandal, R. R. District that resulted in causing the death of the deceased in this case. Accordingly this issue is decided in favour of the petitioners.

Issue no.2:

13.The petitioners herein claim that the first petitioner is the wife, petitioners no. 2 to 4 are the children and petitioner no.5 is mother of the deceased that filed this case for compensation u/sec. 166 of MV

Act and Rules. Since it is observed by me above that the deceased in this case died due to the accident that occurred on 20.05.2015 involving the bus owned by the respondent no.1 and driven by respondent no.2 the petitioners are entitled for compensation under the MV Act. On the other, the respondents no.1 and 2 are jointly and severally liable to pay the compensation to the petitioners.

14.Coming to the computation of compensation, the petitioners claim that the deceased was a lorry driver and he was 38yrs old by the time of accident that was drawing salary of Rs.18,000/- per month which he used to contribute to maintain the family and due to the unfortunate death of the deceased, the petitioners lost their support. The

MVOP 878 of 2015 Page No. 7 of 11 petitioners claimed compensation of Rs. 35,00,000/- along with interest @ 12% per annum against the respondents.

When it comes to the leading of evidence the oral statement of

PW1 that the deceased was drawing salary of Rs.18,000/- per month.

During her cross examination of PW1 pleaded ignorance as to how they arrived at the sum of compensation claimed in this petition. Apart from her oral statement through PW1, Ex.A7 salary certificate is marked to prove the earnings of the deceased.

15.PW3 a supportive witness is also examined by the petitioners. PW3 deposed that he is working as incharge in transport department of Vivala Cartons Pvt. Ltd., and under Ex.X1 he was authorized to depose, that he has been working in the said company since 2006, that the deceased Komaraiah used to get salary of

Rs.18,000/- per month and he was working as a lorry driver in their company from the year 2013 till his death, that besides salary a Batta @

Rs.500/- per working day used to be paid to the deceased. Ex.A7 is the salary certificate issued by their company and it was Mr. Buchaiah the

Manager of the Company that issued Ex.A7 in his presence.

During his cross examination PW3 deposed that about 100 employees are working in their company, he does not know whether

Provident Fund is being paid by the company for all the employees, no attendance register is being maintained for the drivers and always salary will be paid by way of cash, the signatures of the drivers were not obtained in the acquittance register evidencing the payment of cash.

He denied the suggestion that the deceased Komaraiah was not the driver in their company, that they never paid salary and Batta, that

MVOP 878 of 2015 Page No. 8 of 11 inorder to help the family members of Komaraiah by creating Ex.A7 he is deposing false.

16.It may be noted that except Ex.A7 Salary Certificate apart from the statements of PW1 and PW3 there is no other material placed forth. Even to accept and believe Ex.A7 the statements of PW3 during his cross examination leads to suspicion. If at all the company by name

Vivala Cartons Pvt. Ltd., is running with 100 employees there would have been payment of Provident Fund both by the employer and by the employee in accordance with law. The statement to the effect that no attendance register being maintained for the drivers and no signatures of the drivers obtained in the acquittance register evidencing the payment of cash also lead to suspicion as to the employment of the deceased in the said company as a driver. According to PW3 it was another person that issued Ex.A7 salary certificate. By and large both the statements of PW3 and the salary certificate marked as Ex.A7 are not convincing to make this court accept and rely upon to assess the earnings of the deceased in this case but at the same time in Ex.A4 PME

Report the age of the deceased is found noted as 38 yrs. Therefore on an assumption with reasonable criteria for the age group of the deceased, the income per month can notionally be considered for the deceased at Rs.15,000/- for arriving at compensation towards loss of dependency and future prospects. The salary or income of the deceased who was aged about 38yrs as per Ex.A6 inquest report is taken at

Rs.15,000/- per month. Since his employment being in a permanent and regular the future prospects can be taken @ 40% the number of dependents who are the petitioners herein are 1 to 5. Therefore deduction at ¼th towards personal expenses is to be taken and for the age group between 35 to 40 the multiplier applicable is 15 as per the

MVOP 878 of 2015 Page No. 9 of 11 schedule given in Sarala Verma case, thereby towards loss of dependency and future prospects the compensation is awarded accordingly. In addition the first petitioner being the widow of the deceased is entitled for loss of consortium and the petitioners are also entitled for compensation under the conventional heads of funeral expenses and loss of estate. Therefore the compensation to the petitioners is calculated under the following heads as follows:

1Towards loss of dependency and future:Rs.28,35,000=00 prospects Rs.15,000/- x 12 + 40% = 2,52,000/- Less: ¼th towards personal expenses = Rs.2,50,000 – 63,000 = 1,89,000/- 1,89,000 x 15 = 28,35,000/- 2Towards loss of consortium:Rs.40,000=00 3Towards loss of estate:Rs.15,000=00 3Towards future expenses:Rs.15,000=00

Total : 29,05,000=00

Rs.

17.Therefore the petitioners in total are entitled for compensation of Rs. 29,05,000/- against the respondents no.1 to 5 jointly and severally. Since the respondent no.1 is the owner and respondent no.2 is the driver of the vehicle, it is the respondents no.1 that is vicariously liable to pay the compensation to the petitioners.

Accordingly this point is decided.

Issue No.3:

18.Consequent to my above finding in issue no.1 wherein it is held that the accident occurred due to the rash and negligent driving of the driver of the APSRTC bus bearing no. AP29 Z 1203 and under point no.2 it is held that the petitioners are entitled for compensation against the respondents and that the respondent no.1 is vicariously liable to pay compensation at Rs. 29,05,000/-, this petition is to be allowed accordingly. This point is answered accordingly.

MVOP 878 of 2015 Page No. 10 of 11

19.In the result, petition is partly allowed awarding compensation of an amount of Rs.29,05,000/- to the petitioners.

1. The respondent no.1 is directed to deposit the said awarded compensation amount of Rs.29,05,000/- within two months from the date of this judgment.

2. On depositing of the compensation amount, the petitioner no.1 wife of the deceased is awarded an amount of Rs.12,05,000/-, petitioners no.2 to 4 being the children of the deceased are awarded Rs. 5,00,000/- each, petitioner no.5 mother of the deceased is awarded compensation of Rs.2,00,000/-.

3.The petitioner no.1 is permitted to withdraw an amount of

Rs.10,05,000/- forthwith and the balance amount of

Rs.2,00,000/- shall be kept in FD for a period of two years.

4. The petitioner no.5 is permitted to withdraw her compensation amount forthwith.

5. The petitioners no.2 to 4 being minors, the compensation amount awarded to the petitioners no.2 to 4 shall be kept in FD till their attaining the age of majority.

6. The petitioners are entitled for interest @ 7% per annum from the date of filing of the petition till the date of depositing of the amount.

7. The petitioners are also entitled for proportionate costs. The first petitioner is permitted to withdraw the costs.

8. The Advocate fee is fixed @ Rs.5,000/-

Typed to dictation by the Stenographer, corrected and pronounced by me in the open court on this the 19th day of May, 2022.

Chairman, MACT-cum- II Additional District Judge Ranga Reddy District

Appendix of Evidence

Witnesses Examined

For Petitioners:

PW1 - Athana Buggamma PW2 – K. Shekar PW3 – P. Mahipal Reddy

MVOP 878 of 2015 Page No. 11 of 11

For Respondents: NIL

Exhibits Marked

For Petitioners:

Ex.A1 : Certified copy of FIR along with complaint in Cr.no.79 of 2025 dt. 20.05.2015 Ex.A2 : Certified Copy Charge Sheet by PS Manchal dt. 30.05.2015 Ex.A3 : Certified copy of rough sketch map of scene of offence Ex.A4 : Certified copy of postmortem examination report dt. 21.05.2015 Ex.A5 : Certified copy of MVI Report dt. 21.05.2015 Ex.A6 : Certified copy of inquest of dead body Ex.A7 : Original Salary Certificate

Ex.X1 : Authorization letter issued in favour of PW3.

For Respondent No.2: Nil

Chairman, MACT-cum- II Addl. District Judge, Ranga Reddy District

MVOP 878 of 2015 Page No. 12 of 11

Order pronounced (VSO) In the result, petition is partly allowed awarding compensation of an amount of Rs.29,05,000/- to the petitioners. The respondent no.1 is directed to deposit the said awarded compensation amount of Rs.29,05,000/- within two months from the date of this judgment. On depositing of the compensation amount, the petitioner no.1 wife of the deceased is awarded an amount of Rs.12,05,000/-, petitioners no.2 to 4 being the children of the deceased are awarded Rs. 5,00,000/- each, petitioner no.5 mother of the deceased is awarded compensation of Rs.2,00,000/-.

MVOP 878 of 2015 Page No. 13 of 11

MVOP 878 of 2015 ..Contd., 19.05.2022

The petitioner no.1 is permitted to withdraw an amount of Rs. 10,05,000/- forthwith and the balance amount of Rs. 2,00,000/- shall be kept in FD for a period of two years. The petitioner no.5 is permitted to withdraw her compensation amount forthwith. The petitioners no.2 to 4 being minors, the compensation amount awarded to the petitioners no.2 to 4 shall be kept in FD till their attaining the age of majority. The petitioners are entitled for interest @ 7% per annum from the date of filing of the petition till the date of depositing of the amount. The petitioners are also entitled for proportionate costs. The first petitioner is permitted to withdraw the costs. The Advocate fee is fixed @ Rs.5,000/-.

IIADJ

IN THE COURT OF THE ADDITIONAL METROPOLITAN SESSIONS COURT,

CYBERABAD AT L.B.NAGAR, RANGAREDDY DISTRICT.

PRESENT: SMT. B. MANJARI, Addl. Metropolitan Sessions Judge, Cyberabad.

Tuesday, the 26th day of April, 2022

Crl.A.641 of 2018

Between:

Andepalli Thirumalesh S/o. A. Anjaiah, Aged about 32yrs, Occ: Nil, R/o. H.no. 7-48, Near Hanuman Temple, Kuntloor Village, Hayathnagar Mandal, Ranga Reddy District.

... Appellant/Respondent

AND

1. Smt. Andapelli Swathi, W/o. A.Thirumalesh, Aged about 23yrs, Occ: Housewife,

2. Andepalli Rahul, S/o. T. Thirumalesh, Aged about 3yrs,

3. Andapelli Vadhushree D/o. T. Thirumalesh, Aged about 2yrs,

4. Andepalli Nikhil S/o. A. Thirumalesh, Aged about 7months (Respondents no. 2 to 4 being minors, represented by respondent no.1 as natural mother

All are R/o. H.no. 16-286, Dwarakamai Colony, R. N. Reddy Nagar, Meerpet, Saroornagar Mandal, Ranga Reddy District.

… Respondents/Petitioners

Appeal against the orders dated 10.01.2018 passed in Crl.Mp.no. 215 of 2017 in DVC No. 14 of 2016 by the learned II Metropolitan Magistrate, Cyberabad at L. B. Nagar, Ranga Reddy District in;

Crl.MP.no. 215 of 2017

in

DVC no. 13 of 2016

Between:

1. Smt. Andapelli Swathi, W/o. A.Thirumalesh, Aged about 23yrs, Occ: Housewife,

2. Andepalli Rahul, S/o. T. Thirumalesh, Aged about 3yrs,

3. Andapelli Vadhushree D/o. T. Thirumalesh, Aged about 2yrs,

4. Andepalli Nikhil S/o. A. Thirumalesh, Aged about 7months (Respondents no. 2 to 4 being minors, represented by respondent no.1 as natural mother

Crl.A. 641 of 2018

Page No.2 of 8

All are R/o. H.no. 16-286, Dwarakamai Colony, R. N. Reddy Nagar, Meerpet, Saroornagar Mandal, Ranga Reddy District. … Petitioners AND

Andepalli Thirumalesh S/o. A. Anjaiah, Aged about 32yrs, Occ: Nil, R/o. H.no. 7-48, Near Hanuman Temple, Kuntloor Village, Hayathnagar Mandal, Ranga Reddy District.

... Respondent

This appeal coming before me on 01.04.2022 for final hearing in the presence of M/s. S. Ramachandra Reddy, counsel for appellant and M/s Arjun Hanumanthula, Counsel for the respondents, and upon hearing both sides, perusal of the material on record and having stood over the matter for consideration till this day, this court passed the following:

JUDGMENT

1.The appeal is filed u/Sec.29 of Protection of Women from Domestic

Violence Act 2005 against the order of II Metropolitan Magistrate, Cyberabad at L.

B. Nagar, Ranga Reddy District in Crl.Mp.no. 215 of 2017 in DVC.No.13 of 2016

dated 10.01.2018 directing the respondent to pay an amount of Rs. 5,000/- to the

petitioner no.1 and Rs. 1,000/- each to petitioners no. 2 to 4 towards interim maintenance on or before 10th of every succeeding month payable from the date of order till the date of disposal of main DVC.

2.The brief averments of the Crl.Mp. no. 215 of 2017 in DVC no. 13 of 2016 are that the marriage of the respondent no.1 was solemnized with the appellant on 01.12.2011 as per Hindu Rites and Customs in the presence of elders and at the time of marriage, on the demand of the appellant and his family members, the parents of respondent no.1 gave 11tulas of gold and jewelry ornaments, 20tulas of silver articles, Rs. 1,50,000/- cash and other household articles worth Rs. 1,00,000/- and performed the marriage by spending Rs.

2,00,000/-. That soon after the marriage the respondent no.1 joined the society of the appellant at her matrimonial house and was blessed with three children.

3.It is the further case of the respondent no.1 that since one month of the marriage, the appellant, his mother and sisters started harassing and on

Crl.A. 641 of 2018

Page No.3 of 8 04.11.2014 the appellant and his mother and sister took gold ornaments of the respondent no.1 forcibly and also demanded additional dowry of Rs. 3,00,000/- from the parents of respondent no.1 and beat her all over her body and warned her stating that “If you give additional dowry amount of Rs. 3,00,000/- from your parents, you will be here otherwise she will be killed” and closed the doors, that the mother and sister of the appellant caught hold of the legs and hands of the respondent no.1 and the appellant put cloth in her month and caucht hold of her neck very tightly to kill her and when children of respondent no.1 started crying loudly, the neighbours came and knocked the doors and appellant left her and caught hold of her daughter and threatened the respondent no.1 stating “if she tells to any one, they would kill her daughter and immediately she reached her parents house along with her.

4.It is the further case of the respondent no.1 that she left her matrimonial house on 04.11.2014 and started living with the support of her parents and she and her children have become burden to her parents; that the appellant does real estate business and is earning approximately a sum of Rs.

30,000/- per month and is also having rental income of Rs. 4,000/- from joint family house properties and is also having other properties worth lakhs of rupees and is getting rents and that the appellants are financially well off and prayed to grant maintenance. Hence petition.

5.Appellant filed counter denying the averments in the petition in

Crl.Mp.no. 215 of 2017 and further contended the respondent no.1 has filed the

case in DVC no. 13 of 2016 only to harass the appellant and respondent no.1 was not interested in marrying the appellant as she was in love with another person, and as the respondent no.1 did not come at right time, the marriage was not performed in the auspicious muhurtham fixed by the elders, that their marriage was a dowry free marriage except exchange of customary articles as per hindu rites and customs in their community; that the respondent no.1 herself left the company of the appellant even after birth of two children; that on one occasion

Crl.A. 641 of 2018

Page No.4 of 8 when the respondent no.1 left to her parent’s house and inspite of repeated requests of the appellant, the respondent no.1 failed to return and also filed a case in CC no. 29 of 2015 of PS Saroornagar u/sec. 498-A and 506 of IPC, due to which the appellant lost his livelihood and is depending on the earnings of his parents.

6.It is further contended by the appellant the respondent no.1 neglected old aged parents of appellant who are suffering from old age ailments; that the respondent no.1 failed to inform about her pregnancy to the parents of the appellant and they came to know about the birth of child only on receipt of complaint in DVC. The appellant denied doing any real estate business and is not having properties and he contended that he is depending on his parents and that the appellant I not having sufficient earnings as he is staying back at home looking after his aged parents without any avocation. Hence, the respondents are not entitled for any relief as sought by the respondents towards interim maintenance.

Hence to dismiss the petition.

7.Having heard both sides, the lower Court pronounced order stated supra.

8.Aggrieved by the order, the present appeal is filed with the following grounds.

1. The though no single authenticated paper is filed showing income of the appellant, the court bellow awarded interim maintenance at Rs.5,000/- per month to respondent no.1 and Rs.1000/- each to Respondents no. 2 to 4 which is against principles of natural justice.

2. The lower Court passed the order without going through the roots of the case and decided without considering the arguments of the appellant and observed that there is no necessity to hear the appellant as it is the responsibility of the husband to look after the welfare of his wife.

3. The lower Court ignored the fact that the respondent no.1 along with her children left the society of the appellant voluntarily and has never disclosed about the birth of their third son at any point of time in police case or in her evidence in case before XIV

Crl.A. 641 of 2018

Page No.5 of 8

Metropolitan Magistrate at L. B. Nagar and he came to know about the birth of son only on receipt of papers in DVC case.

4. The impugned order of the lower court is illegal, untenable and arbitrary and the order is liable to be set aside.

With these grounds and others that were urged at the time of arguments requested to allow the appeal by setting aside the order dt. 10.01.2018.

9.No oral or documentary evidence is adduced by either side before this appellate Court.

10.Heard the arguments of both sides.

11.Now, the points for determination are:-

1. Whether there are grounds to set aside the orders of the

trial court in Crl.Mp.no. 215 of 2017 in DVC no. 13 of

2016 dt. 10.01.2018?

12.For sake of convenience, the parties will be addressed as they arrayed in the Judgment of the lower Court.

POINTs 1 & 2:

13. It may be noted that originally the petition in Crl.Mp.no. 215 of 2017 was filed for grant of maintenance to the petitioners @ Rs.20,000/- per month till the disposal of the main DVC no. 13 of 2016 that was filed u/sec. 23 (1) of Domestic

Violence Act. It is the case of the petitioners in the said petition that the first petitioner is the wife, petitioners no.2 to 4 are the children of the respondent. The respondent did not deny the marriage with the petitioner no.1 and begetting the children. However, the respondents claimed that he was shocked to note that the third child is there for him and that he was not aware of the birth of the third child i.e., petitioner no.4 till the filing of the DVC. Since the marriage is admitted and in the limited scope of enquiry for grant of monthly maintenance, until and unless the paternity of the petitioner no.4 is challenged and proved the respondent is liable to pay maintenance to the petitioner

Crl.A. 641 of 2018

Page No.6 of 8 no.1 to 4 being the husband of the petitioner no.1 and the father of the petitioners no.

2 to 4.

14.It is the claim of the petitioners that they were harassed and driven out of the house by the respondents. On the other hand, the respondent pleads that it was the petitioners that voluntarily left his company and deserted him. Had it been true that the petitioners left the company of the respondents being his wife and children, it is not known whether any steps were initiated by the respondent to get back the company of the petitioners. Nowhere it is mentioned by the respondent that he filed petition for restitution of conjugal rights or for the custody of the children. In the absence of any pleading or proof mere statement of the respondent that the petitioners voluntarily left his company is not acceptable more so in the matters of consideration of maintenance to the wife and children.

15.Coming to the quantum of maintenance granted to the petitioners as per the orders passed in Crl.Mp.no. 215 of 2017 @ Rs.5,000/- to the first petitioner and @

Rs.1,000/- to each of the petitioners no.2 to 4, the first petitioner being the mother of three tender children that need to lookafter the day to day needs and necessities that include food, shelter, clothing and medical expenses for the three children and also for her. It is not the case of the respondent that the petitioner no.1 has got sufficient source of income of her own to maintain herself and her children. The respondent being the husband of petitioner no.1 and father of the petitioners no.2 to 4 is bound to provide maintenance to them. The respondent on the face of it is a young and able bodied person that is bound to earn and maintain the petitioners.

16.Keeping in view of the present days cost of living and the day to day needs of the petitioners granting monthly maintenance @ Rs. 5,000/- to the first petitioner and Rs. 1,000/- to each of the petitioners no.2 to 4 is neither excess nor exorbitant. On the other hand it is the minimum of the present day conditions of living to make the petitioners to meet both the ends of living and to survive.

Crl.A. 641 of 2018

Page No.7 of 8

17.Coming to the point that the orders passed behind back of the respondents/appellant and on the documents filed which are docket extracts of the proceedings before the trial court in Crl.Mp.no. 215 of 2017 in DVC no. 13 of 2016.

After going through the said docket proceedings it is understood since the said petition in Crl.mp.no. 215 of 2017 stood posted for orders and as the petition was misplaced and could not be traced there was no pronouncement of orders on the actual date that was given for passing of orders. On the subsequent dates ultimately the petition/record since was traced out pertaining to Crl.Mp.no. 215 of 2017, orders were passed. When the petition was already ripe and stood posted for orders and ultimately the orders were passed when the record was traced out, I do not find any lapses in passing the said orders in a petition which was already heard and stood for passing of orders only. It is not found in the said docket orders that the petition was reopened and was posted for further hearing of either of the parties. As the arguments were already heard, the petition was posted for orders, but for the misplacement of the petition/record when it was traced the orders were passed. As such, there is no flaw in passing of the orders and the said orders cannot be considered passed without hearing the respondent and behind his back.

18.Viewed from any angle, I do not find any merits in this appeal preferred by the respondent/appellant on the orders passed in Cr.Mp.no. 215 of 2017 dt.

10.01.2018 thereby this appeal is liable to be dismissed. Accordingly this point is answered.

19.In the result, the appeal is dismissed.

Dictated to the Stenographer, transcribed by her, corrected and pronounced by me

in open Court on this the 26th day of April, 2022

ADDL. METROPOLITAN SESSIONS JUDGE

R.R. DISTRICT

Crl.A. 641 of 2018

Page No.8 of 8

APPENDIX OF EVIDENCE

WITNESSES EXAMINED

NIL

EXHIBITS MARKED

NIL

ADDL. METROPOLITAN SESSIONS JUDGE

R.R. DISTRICT

Crl.A. 641 of 2018

Page No.9 of 8

Crl.A.641 of 2018

26.04.2022

Judgment pronounced (VSJ)

In the result, the appeal is dismissed.

AMSJ

IN THE COURT OF THE II ADDITIONAL DISTRICT JUDGE

RANGA REDDY DISTRICT AT L.B NAGAR

PRESENT : Smt. B. Manjari II Additional District Judge.

MONDAY, THE 25th DAY OF APRIL, 2022

O.S. No.243 of 2021

Between :-

1. T. Sudarshan S/o. T. Varadhaiah, Aged about 49yrs, Occ: Business, R/o. 12-1-621, Bandlaguda Village, Uppal Mandal, Ranga Reddy District.

2. T. Dinesh Singh S/o. T. Somnath Singh, Aged about 45yrs, Occ: Business, R/o. H.no. 1-33, Mohan Nagar, Kothapet, Hyderabad.

... Plaintiffs

AND

Sri. C. Jagadish, S/o. C. Nageshwar Rao, Aged about 68yrs, Occ: Business, R/o. H.no. 5-9-22/85, Sapoorwavi, Adarshnagar, Hyderabad.

... Defendant

This suit coming before me on 19.11.2019 for final hearing in the presence of Sri. V. Aravinda Rao, counsel for plaintiffs, and defendants set exparte, and upon hearing the counsel for plaintiffs, perusal of the material on record and having stood over the matter for consideration till this day, this court made the following :-

JUDGMENT

1.This suit is filed for specific performance of agreement of sale cum GPA dt. 29.04.2015 in respect of suit schedule property by receiving balance sale consideration and to restrain the defendants from alienating the suit schedule property in favourof third parties.

2.The brief averments of the plaint are that, Defendant is the owner of plot nos. 1, 2, 3, 14, 15 and 16 admeasuring 900sq.yds in Sy.no. 87/4, situated at Ward No.2, Block No.1, Haripuri Colony, Nagole Village, Uppal

Revenue Mandal under GHMC, L. B. Nagar circle, R. R. District (hereinafter referred as suit schedule property) vide registered sale deed bearing doc.no.

1650 of 2015 dt. 31.03.2015; that on 29.04.2015 the defendant executed registered agreement of sale cum GPA in respect of suit schedule property in favour of plaintiff no.1 for a consideration of Rs. 72,00,000/-; that the plaintiffs paid an amount of Rs. 28,00,000/- prior to agreement and paid an amount of

O.S 243 of 2021

Page 2 of 4

Rs.35,00,000/- on the date of Agreement of sale i.e., on 29.04.2015 and in all an amount of Rs. 63,00,000/- was paid to the defendant and the defendant acknowledged the receipt of the same on the said agreement of sale; that balance sale consideration of Rs. 9,00,000/- is to be paid at the time of registration of sale deed as per the terms of agreement.

It is the further case of the plaintiffs that the defendant delivered physical possession of the suit schedule property in favour of the plaintiffs; that when the plaintiffs requested the defendant to handover the copies of the link documents, but the defendant postponed the same on one or other pretext and requested to pay balance sale consideration; upon that the plaintiff paid an amount of Rs. 7,00,000/- on 11.08.2016 for which the defendant issued receipt on the same date. Thereby the plaintiff has paid in total an amount of

Rs.70,00,000/- and had to pay balance sale consideration of Rs.2,00,000/- only.

It is the further case of the plaintiffs that, inspite of receipt of maximum sale consideration, the defendant failed to come forward to execute the registered sale deed in favour of the plaintiffs; that when the plaintiff went to the house of defendant and requested to execute registered sale deed, the defendant abused the plaintiffs and stated that he is a business man and is having political power and police power and refused to execute the registered sale deed; that on coming to know the defendant is making efforts to alienate the suit schedule property in favour of third parties to make wrongful gain, the plaintiff on 10.01.2021 issued General public caution notice in Vaartha Telugu

Daily and Telangana Times English News Papers on 16.01.2021 cautioning the

General public and on 15.04.2021 the plaintiff issued legal notice to the defendant calling upon him to execute the registered sale deed in his favour; that inspite of receipt of said notice, the defendant failed to act. Hence this suit.

3.Inspite of receipt of suit summons, the defendant failed to appear before this court, hence he was set exparte by this court.

4.To prove their case, the plaintiff no.1 examined himself as PW1 and got marked Exs.A1 to A7.

O.S 243 of 2021

Page 3 of 5

5.Now, the points for determination are

1.Whether the plaintiff is entitled for specific performance of the suit Agreement of Sale

dt. 29.04.2015?

2.Whether the defendant is to be restrained from alienating the suit schedule property in favour of third parties?

6.POINT: It is the case of the plaintiffs that the defendant offered to sell the suit schedule property for a valid sale consideration and have entered into agreement of sale to that effect and inspite of receipt of maximum part of sale consideration of Rs.70,00,000/-, inspite of repeated requests, the defendant failed to execute the registered sale deed in favour of the plaintiffs.

Further, the defendant is trying to alienate the suit schedule property in favour of third parties. Hence the plaintiffs are constrained to file the present suit.

7.To prove their case, the plaintiff no.1 filed his chief examination affidavit as PW1 and reiterated the averments made in the plaint and got marked Ex.A1 to A7. PW1 deposed that the defendant offered to sell the suit schedule property and he and plaintiff no.2 have agreed to purchase the suit schedule property for a total sale consideration of Rs.72,00,000/- for which the defendant has executed Ex.A1 Agreement of sale deed. PW1 further deposed that the defendant has received part sale consideration vide Ex.A1 and Ex.A2 and inspite of receipt of maximum part of sale consideration, the defendant failed to execute the registered sale deed in their favour, hence they got issued legal notice under Ex.A5 Legal notice calling upon the defendant to execute the registered sale deed and inspite of receipt of said legal notice the defendant failed to do the same. PW1 further deposed that as the defendant is making efforts to alienate the suit schedule property in favour of third parties, he got issued publication under Ex.A3 and A4 cautioning the general public from purchasing the suit schedule property and the plaintiffs were constrained to file the present suit.

OS 243 of 2021

Page 4 of 4

8.On perusal of the oral and documentary evidence on record, it is clear that the defendant has executed Ex.A1 agreement of sale agreeing to sell the suit schedule property to the plaintiff by receiving part sale consideration of Rs. 63,00,000/- and Rs. 7,00,000/- which is evident from the covenants of Ex.A1 and Ex.A2. Subsequently, the defendant failed to perform his part of contract by executing the registered sale deed by receiving balance sale consideration of Rs. 2,00,000/- in spite of requests. Further, the evidence of PW1 was not rebutted by anyone inspite of receipt of suit summons.

Therefore, it can be safely held that though the defendant is liable to execute the sale deed for the suit property in favour of plaintiffs, have failed to do so.

Hence, the plaintiffs are entitled for specific performance of agreement of sale against the defendants. The point is accordingly answered in favour of the plaintiff.

9.In the result, the suit is decreed with costs as follows:

1.That the suit is decreed for specific performance of agreement of sale dt. 29.04.2015 against the defendant.

2.That the plaintiff is directed to pay/deposit the balance sale consideration of Rs. 2,00,000/- on or before 13.06.2022.

3.That on such deposit of the amount within the time stipulated the defendant is directed to execute the registered sale deed in favour of the plaintiffs no.1 and 2 within one month from the date of depositing of the balance sale consideration.

4.That the defendant is at liberty to withdraw the said amount after registration of the sale deed.

5.That in the event of the defendant failing to execute the registered sale deed within the time stipulated above, the plaintiffs are at liberty to get the same done in accordance with law.

Typed to dictation by stenographer, corrected and pronounced by me in the open Court on this the 25th day of April, 2022.

II Addl. District Judge Rangareddy District.

Appendix of Evidence (VSJ)

Witnesses Examined

For Plaintiffs: For Defendant: NIL

PW-1 : T. Sudarshan

O.S 243 of 2021

Page 5 of 5

Exhibits Marked

For Plaintiff :

Ex.A1: 29.04.2015Original Agreement of Sale Ex.A2 : 11.08.2016Original Receipt Ex.A3: 16.01.2021Public caution notice in Vaartha Telugu Daily Newspaper Ex.A4 : 16.01.2021Public Caution notice in Telangana Times English Daily newspaper Ex.A5: 15.04.2021Office copy of legal notice Ex.A6: Original Postal receipt Ex.A7: Original returned cover

For Defendants: NIL

II Addl. District Judge Ranga Reddy District

OS 243 of 2021

Page 6 of 4 a

OS no. 243 of 2021

25.04.2022

Judgment Pronounced (VSJ)

In the result, the suit is decreed with costs as follows:

1. That the suit is decreed for specific performance of agreement of sale dt. 29.04.2015 against the defendant.

2. That the plaintiff is directed to pay/deposit the balance sale consideration of Rs. 2,00,000/- on or before 13.06.2022.

3. That on such deposit of the amount within the time stipulated the defendant is directed to execute the registered sale deed in favour of the plaintiffs no.1 and 2 within one month from the date of depositingofthebalancesale consideration.

4. That the defendant is at liberty to withdraw said amount after registration of the sale deed.

5. That in the event of the defendant failing to execute the registered sale deed within the time stipulated above, the plaintiffs are at liberty to get the same done in accordance with law.

II ADJ

IN THE COURT OF THE ADDITIONAL METROPOLITAN SESSIONS COURT,

CYBERABAD AT L.B.NAGAR, RANGAREDDY DISTRICT.

PRESENT: SMT. B. MANJARI, Addl. Metropolitan Sessions Judge, Cyberabad.

Monday, the 2nd day of May, 2022

Crl.R.P.No.28 of 2021

Between:

Indian Overseas Bank, Mallapur Branch, Rep. By its Authorised Signatory Sureddi Ranga Rao, S/o. Dandasi, Aged about 39yrs, Occ: Senior Manager, # 3-4-98/54/1, Beside Noma Function Hall, Mallapur, Hyderabad – 500 076.

…Revision Petitioner/Complainant

AND

1. The State of Telangana represented by Public Prosecutor, Ranga Reddy District at L. B. Nagar … Respondent/Complainant

2. Chindam Vinay Kumar @ Manyam Sampath Kumar, S/o. Late Krishna Kumar, Aged about 34yrs, Occ: Business, Proprietor: M/s. Sri Laxmi Tours & Travels, R/o. H.no. 1-9-341/79, V. N. Reddy Nagar, Kushaiguda, Kapra, Medchal – Malkajgiri District – 500 062. … Respondent/Accused

Revision against the Order dated 08.12.2020 passed by the learned IV Addl. Metropolitan Magistrate, Cyberabad at L. B. Nagar, Ranga Reddy District in;

Crl.Mp.no. 302 of 2020

in

Scr.no. 263 of 2020

(PS Nacharam)

Between:

Indian Overseas Bank, Mallapur Branch, Rep. By its Authorized Signatory Sureddi Ranga Rao, S/o. Dandasi, Aged about 39yrs, Occ: Senior Manager, # 3-4-98/54/1, Beside Noma Function Hall, Mallapur, Hyderabad – 500 076. … Petitioner/Defacto Complainant

AND

1. Chindam Vinay Kumar @ Manyam Sampath Kumar, S/o. Late Krishna Kumar, Aged about 34yrs, Occ: Business, Proprietor: M/s. Sri Laxmi Tours & Travels, R/o. H.no. 1-9-341/79, V. N. Reddy Nagar, Kushaiguda, Kapra, Medchal – Malkajgiri District – 500 062.

Crl.R.P 28 of 2021 Page No.2 of 5 … Respondents/Accused

2. The State of Telangana represented by Public Prosecutor, Ranga Reddy District at L. B. Naga

...Respondent/Complainant

This Revision Petition is coming before me for final hearing on 27.12.2021 in the presence of Sri A. Srinivas, counsel for revision petitioner, and upon hearing both sides, perusal of the material on record and having stood over the matter for consideration till this day, this court passed the following:

O R D E R

01. The Revision Petition is filed under Section 397 R/W 402 of Cr.P.C against the orders of the learned IV Addl. Metropolitan Magistrate, Cyberabad at L. B.

Nagar, dismissing Crl.Mp.no. 302 of 2020 in Cr.no. 263 of 2020, which was filed

U/S.451 Cr.P.C, rejecting the interim custody of four wheeler car I.e, Mahindra Verito bearing No. TS11 ER 5457.

02. The brief averments of the petition in Crl.Mp.no. 302 of 2020 in Cr.no.

263 of 2020 are that he obtained loan from the complainant bank and purchased

Mahindra Verito Car, and after availing loan facility paid regular installments to a tune of Rs. 1,70,000/- and if interim custody is granted to complainant, he will suffer loss.

03. Having heard the petitioner/complainant, the Learned IV Addl.

Metropolitan Magistrate, Cyberabad at L. B. Nagar has passed order dt. 08.12.2020 dismissing the petition filed under sec. 451 of Cr.P.C seeing return of property i.e.,

Mahindra Verito Car bearing no. TS11 ER 5457. Aggrieved by the same, the present

Revision Petition is filed with the following grounds:- (1) The trial Court passed the order which is contrary to law and ought to have believed and considered the pleadings of the revision petitioner/defacto complainant bank that the respondent/accused

Crl.R.P 28 of 2021 Page No.3 of 5 has paid only 2 EMIs towards his loan account and thereafter failed to pay the subsequent EMIs and thereby committed act of cheating.

(2) The court below ought to have seen that the case property seized by the police is lying in PS Nacharam exposed to dust and rough weather conditions which may cause damage to the property and thereby diminishes its value.

(3) The court below passed the order without examining the documents filed by the revision petitioner/defacto complainant wherein a re-call notice has been issued to the respondent/accused asking to pay the entire dues amounting to Rs. 8,51,129.30/- towards his loan account.

(4) The trial court ought to have taken into consideration the guidelines framed by the Hon’ble Apex Court more particulary in (2002) 10

SCC 283 and order interim custody to the Revision petitioner/defacto complainant and passed the order contrary to the law laid down by the Hon’ble Apex Court.

With these grounds and others that will be urged at the time of hearing requested to allow the petition by setting aside the order of the trial Court.

04. Nobody is examined and no document is marked before this Revisional

Court.

05. Heard the arguments, perused the record.

06. Now, the point for determination is “Whether the order of the lower

Court is not sustainable under law?”.

07. POINT: It is significant to note that on the face of it the vehicle was purchased by the accused by availing loan from the defacto complainant. Having noticed that the accused resorted to take away the vehicle in order to defeat the

Crl.R.P 28 of 2021 Page No.4 of 5 claims of the defacto complainant and the rights against the vehicle,t he complaint was lodged and the property was seized. It might be true that the investigation is pending and charge sheet is not filed. However, the vehicle is admittedly lying in the premises of PS Nacharam. As rightly represented by the petitioners side, that the said property vehicle is prone to dust and rough weather and is likely to get damaged if the vehicle is not put to use. It is ultimately the defacto complainant that will be the looser for any depreciation of the value of the vehicle since it is the financier for the purchase of the said vehicle.

08. More over the revision petitioner and the defacto complainant is a bank that deals with public money. So long as the loan was not discharged as per the hypothication agreement it is the complainant/petitioner herein that have got right over the property and it is only temporary custody that is given to the police. Considering the nature of the offence, rights of the defacto complainant over the property and also the nature of the property that is involved and is sought for interim custody it is just and proper to allow this petition and to order for the interim custody of the said vehicle subject to final orders.

09. In the result, the Revision Petition is allowed setting aside the docket order in Crl.Mp.no. 302 of 2020 dt. 08.12.2020. Further the interim custody of the vehicle Mahendra Virito bearing No. TS11 ER 5457 is given to the petitioner subject to filing an undertaking by the authorized officer of the complainant/revision petitioner to the satisfaction of the trial judge, to the effect that the vehicle will not be disposed or meddled with by changing its nature till the disposal of the case and passing of final orders, further by giving an undertaking to cause production of the vehicle as and when required by the trial court.

Dictated to the Stenographer, transcribed by her, corrected and pronounced by me in

open Court on this the 2nd day of May, 2022.

ADDL. METROPOLITAN SESSIONS JUDGE

R.R. DISTRICT

Crl.R.P 28 of 2021 Page No.5 of 5

APPENDIX OF EVIDENCE

WITNESSES EXAMINED

NIL

EXHIBITS MARKED

NIL

ADDL. METROPOLITAN SESSIONS JUDGE

R.R. DISTRICT

Crl.R.P 28 of 2021 Page No.6 of 5

Order pronounced (VSO).

In the result, the Revision Petition is allowed setting aside the docket order in

Crl.Mp.no. 302 of 2020 dt. 08.12.2020. Further

the interim custody of the vehicle Mahindra

Verito bearing No. TS11 ER 5457 is given to the petitioner subject to filing an undertaking by theauthorizedofficerofthe complainant/revisionpetitioner to the satisfaction of the trial judge, to the effect that the vehicle will not be disposed or meddled with by changing its nature till the disposal of the case and passing of final orders, further by giving an undertaking to cause production of the vehicle as and when required by the trial court.

IIADJ