Sri G.vallabha Naidu

1 Spl.Judge, C.C/VSP COS 2/2018 (Old OS.No.389/2012)

IN THE HON’BLE COURT OF THE SPECIAL JUDGE FOR TRIAL AND DISPOSAL OF COMMERCIAL DISPUTES: VISAKHAPATNAM

Present: G. Vallabha Naidu

Special Judge for Trial and Disposal of

Commercial Disputes, Visakhapatnam.

Monday, this the 13th day of June, 2022

COS. No.2 /2018 (Old O.S.No.389/2012) Between: Meka Atchuta Ramarao, aged 46 years, Businessman, son of Late Satyanarayana Murthy, resident of Flat No.204, Sampath Arcade, Narasimha Nagar, Visakhapatnam 530024. …. Plaintiff And:

1. Kakarlapudi Suryanarayana Raju, aged around 68 years, Hindu, S/o. Late Sambasiva Raju, resident of Door No.54-11-66, Gazetted Officers Colony, H.B.Colony, Visakhapatnam 530022.

2. Smt.Kakarlapudi Sarojini Devi, aged around 59 years, Hindu, W/o. Suryanarayana Raju, resident of Door No.54-11-66, Gazetted Officers Colony, H.B.Colony, Visakhapatnam 530022.

3.Vytla Narayana Rao, aged around 48 years, Hindu, S/o. Janaki Ramayya, resident of Door No.50-96-8/2, Seethammadhara (North Extension), Visakhapatnam 530013.

…..Defendants

This suit has come up for arguments before me on 14-03-2022 in the presence of Sri.K.Ravi, Advocate for Plaintiff Sri.V.V.Ravi Prasad & J.V.Rama Krishna, Advocates for D1 & D2 and Sri.N.S.V.Reddy, Advocate for 3rd defendant and this matter having heard and stood over for consideration till this day, this Court delivered the following:

JUDGMENT

1.Suit for (a) mandatory injunction by directing the defendants to execute and register the open spaces etc., of approved layout No.1 of 2008 by way of

Registered Gift Settlement Deed in favour of Kapuluppada Grampanchayat,

Bheemunipatnam Mandal, Visakhapatnam represented by its Panchayat Secretary and for (b) a mandatory injunction by directing the defendants to execute necessary papers and documents so as to obtain release of plots Nos.16 to 34, 84 to 91 of 2 Spl.Judge, C.C/VSP COS 2/2018 (Old OS.No.389/2012) approved layout 1/2008 mortgaged in favour of Visakhapatnam Development

Authority, at the cost and expenses of the plaintiff and (c) to specifically enforce the Agreements dt.2-02-2007 and 27-05-2007 by directing the defendants to execute and register, at the cost and expenses of the plaintiff (or) alternatively, if the court comes to the conclusion that Specific Performance cannot be granted in such an event to award compensation of Rs. 2,72,47,320/- (Rupees Two Crores

Seventy Two Lakhs Forty Seven Thousand Three Hundred and twenty only) under

Section 21 of the Specific Relief Act, 1963 and for such other reliefs and for costs of the suit.

2.The averments of the plaint in brief are that:

The plaintiff is engaged in the business of development of layouts and construction of apartments/group housing. The 1st defendant is husband of the 2nd defendant. The 1st defendant was absolute owner of land admeasuring an extent of Ac.4.44 ¼ cents covered by Survey Nos. 85/5, 6,8,9,10,11,12,13,86/1,2,3 of

Kapuluppada village having purchased the same under registered sale deeds. The 2nd defendant was absolute owner of the land admeasuring an extent of Ac.4.93 ½ cents covered by S.Nos.29/5,30/1,86/1,3,4 of Kapuluppada Village, Kapuluppada

Panchayat, Bheemunipatnam Mandal, Visakhapatnam having purchased the same under registered sale deeds. The total extent of land owned by the defendants 1 & 2 was Ac.9.37 ¾ cents. It is further averred in the plaint that the defendants 1 & 2 jointly entered into a Development Agreement on 22-02-2007 and the said agreement contained mutual rights and reciprocal obligations. As per the terms of the said Development Agreement, the plaintiff agreed to develop the said extent into a layout of house plots at his own cost and expenses and obtain necessary approvals from Visakhapatnam Urban Development Authority (VUDA) and 3 Spl.Judge, C.C/VSP COS 2/2018 (Old OS.No.389/2012)

Greater Visakhapatnam Municipality Corporation (GVMC). As per clauses 6, 8, & 9 of the said agreement, the plaintiff shall be entitled to 26% of the plotted area while defendants 1 & 2 are entitled to the remaining 74% of the plotted area. The defendants 1 & 2 having agreed to register on completion of B.T Roads and drainages 15% out of the total 26% of the developer’s share and the remaining 11% shall be registered, after the completion of the project as per Visakhapatnam

Urban Development Authority (VUDA) norms in favour of the plaintiff or his nominees. It is further averred in the plaint that the 1st defendant was also in possession and enjoyment of land of an extent of Ac.0.49 ¾ cents under three registered sale agreements cum General Power of attorneys which was also offered for development of layout, on the same terms and conditions, though the same is not mentioned in the development agreement between the plaintiff and the defendants 1 &2. The 3rd defendant was absolute owner of land of an extent of

Ac.0.82 ½ cents covered by S.Nos. 85/5 and 30/7 of Kapuluppada Village,

Kapuluppada Panchayat, Bheemunipatnam having purchased the same under registered Sale Deed. The 3rd defendant entered into a Development Agreement in respect of the above said land on 27-05-2007 with the plaintiff. The plaintiff agreed to develop the said extent along with the extent owned and possessed by defendants 1 & 2. All the terms and conditions of the Development Agreement between the plaintiff and 3rd defendant including sharing pattern and stage of registration of plots are similar to the Development Agreement entered by the plaintiff with the Defendants 1 &2. It is further averred in the plaint that during the actual working out of the layout plans, the 1st defendant had contributed for development of layout only an extent of Ac.4.37 ½ cents out of the total extent purchased by him under registered Sale Deeds together with the extent of Ac.0.49 ¾ cents possessed by him under Registered Sale Agreement cum General Power of 4 Spl.Judge, C.C/VSP COS 2/2018 (Old OS.No.389/2012)

Attorneys. Similarly, the 2nd defendant had contributed only an extent of Ac.4.58 ¾ cents. The 3rd defendant had similarly contributed only an extent of Ac.0.72 ½ cents. It is further averred in the plaint that the plaintiff thereafter developed a layout of residential house plots in an extent of AC.10.18 ½ cents at his own cost and expenses by obtaining necessary approvals from Visakhapatnam Urban

Development Authority in the name of the defendants. The said layout was given

L.P.No.1/2008. As per the approval layout plan the total number of plots are 101 and the total plotted area is 28748.62 square yards. The share of the defendants 1 &2 works out to 26,701.79 square yards being the proportionate share for the extent of AC.9.46 cents out of the total extent of AC.10.18 ½ cents. Out of this 26,701.79 square yards, the defendants 1 & 2 are entitled to 19,759.32 square yards while the plaintiff is entitled to the remaining 6942.46 square yards. It is further averred in the plaint that the share of the 3rd defendant works out to 2046.38 square yards being the proportionate share for the extent of AC.0.72 ½ cents out of total extent of AC.10.18 ½ cents. Out of these 2,046.38 square yards the 3rd defendant is entitled to 1514.32 square yards while the plaintiff is entitled to the remaining 532.05 square yards. It is further averred in the plaint that at the request of the defendants 1 & 2, the defendants 1 to 3 being the land owners have sold and registered plot Nos. 77,79 & 80 on 17-09-2008 to the nominees of defendants 1 &2 out of the entitlement of defendant Nos. 1 & 2. Thereafter it was mutually agreed that the respective plots of each sharer should be ear-marked and for that purpose the approved layout consisting of 101 plots should first be grouped into convenient blocks and accordingly 10 blocks were identified. It was agreed that the plaintiff should take Block No.1 i.e., Plot Nos. 76,78,81 & 82 admeasuring 1061 square yards and the remaining extent of plot No.79 admeasuring 112.34 square yards. In

Block No.III, Plot Nos. 92 to 101 admeasuring 2849.28 square yards, in Block 5 Spl.Judge, C.C/VSP COS 2/2018 (Old OS.No.389/2012)

No.V Plot Nos. 64 to 73 admeasuring 2666.60 square yards. The 3rd defendant agreed to take Plot Nos. 83,85,86,87,90 and 91 admeasuring 1509.30 square yards and the plaintiff should take Plot Nos.84,88 and 89 and defendants 1 & 2 should take the remaining plots. It is further averred in the plaint that even after such ear- marking, the plaintiff will still be short of an extent of 47.47 square yards towards his share which has to be adequately compensated by defendants 1 to 3. Similarly the 3rd defendant will still be short of an extent of 5.04 square yards which has to be adjusted between defendants 1 to 3. It is further averred in the plaint that the defendants had so far registered only plot Nos.93 to 101 of Block No.III admeasuring 2399.96 square yards under seven registered Sale Deeds in the month of November, 2008 and Plot Nos. 81 and 82 of Block No.I admeasuring 533.33 square yards on 13-04-2011 making a total of 2933.29 square yards to the plaintiff’s nominees. Still there is a balance of 4541.22 square yards which is yet to be registered by the defendants i.e., plaint schedule property. It is further averred in the plaint that the plaintiff has completed the development of layout in all respects as per norms of Visakhapatnam Urban Development Authority (VUDA) by spending huge amounts. What remains to be done is only completion of legal formalities i.e., obtaining release of mortgaged plots from Visakhapatnam Urban

Development Authority (VUDA) by paying the requisite amounts, which requires the signatures of the defendants 1 to 3 as owners on the necessary papers, deeds and in the records in the office of Sub-Registrar. Visakhapatnam Urban

Development Authority, however, insists upon transfer of all open spaces, roads and drains to the Kapuluppada Gram Panchayat by a registered settlement deed

before releasing the mortgaged plots. These conditions also become the implied

terms of the contract between the plaintiff and defendants. It is further averred in the plaint that the plaintiff is and has always been ready and willing to perform his 6 Spl.Judge, C.C/VSP COS 2/2018 (Old OS.No.389/2012) part of the contract by spending the requisite amount and co-ordinate the same, since it requires the signatures of defendants as owners on the Gift Settlement

Deed and they are not forthcoming to perform their part of the contract. Unless the

Gift Deed is registered in favour of Kapuluppada Gram Panchayat Visakhapatnam

Urban Development Authority will not release the mortgaged plots even though the plaintiff is ready to meet the expenditure. The defendants are not cooperating to execute the documents in spite of several requests made by him. It is further averred in the plaint that the plaintiff has been repeatedly requesting the defendants to register the Gift Settlement Deed in favour of the Kapuluppada Gram Panchayat and obtain release of mortgaged plots and he is ready to meet the requisite expenditure but the defendants have been postponing the same on one pretext or the other. Until and unless both these requirements are met, the layout will not become complete or final because of the procrastination and dilatory tactics of the defendants he was compelled to renew the layout permission up to 5-1-2012 by paying necessary amounts twice. The plaintiff once again applied to VUDA on behalf of defendants 1 to 3, for renewal of layout permission on 19-01-2012 by paying necessary amount and the said application is pending. It is further averred in the plaint that the plaintiff came to know that as per the rules in force VUDA will renew the layout twice for six months each and that thereafter the layout would be cancelled but a further extension/renewal on one time basis, will be given for a period of one year only. So far the VUDA has not cancelled the layout. By way of abundant caution he applied for renewal. If the legal formalities are not completed the layout would become unauthorised. The plaintiff got issued a legal notice dated 18-08-2011 to the defendants stating that if the permission of the layout is not renewed he shall not be held responsible. The defendants who had obtained approval of the layout from VUDA agreeing to abide by and to 7 Spl.Judge, C.C/VSP COS 2/2018 (Old OS.No.389/2012) implement the terms and conditions imposed by it while sanctioninglayout are duty bound to comply with them. If the defendants do not register the Gift

Settlement Deed in favour of the Kapuluppada Grampanchayat and do not obtain release of mortgaged plots from VUDA and allow the layout permission to lapse, the layout becomes unauthorised and illegal layout. As per condition No.12 of the layout approval the local authority will not approve or release any building permission until and unless the developmental works are complete and the mortgaged plots are released. It is further averred in the plaint that the plaintiff is seeking mandatory injunction against the defendants to comply with the terms and conditions of the layout approval in addition to seeking specific relief. In response to the notice got issued by the plaintiff, the 3rd defendant gave a reply admitting most of the contents of the notice and expressed his ready and willingness to sign on necessary documents. The defendants 1 & 2 even though received notice they did not give any reply. It is further averred in the plaint that again the plaintiff got issued another legal notice dated 18-05-2012 to all the defendants and they received the same but they did not give any reply. It is further averred in the plaint that the plaintiff spent huge amount for the development of the lay out but he is unable to realise the fruits because of the attitude of the defendants to perform their part of the obligations. The defendants registered seven sale deeds in favour of the nominees of the plaintiff in the month of November, 2008 and eighth sale deed was registered in the month of April, 2011. Had the defendants 1 to 3 promptly registered his remaining extent he would have deployed those funds elsewhere effectively and gained some reasonable profits there from. Under these circumstances, the plaintiff filed the suit praying the Court to pass a decree as prayed for with costs.

8 Spl.Judge, C.C/VSP COS 2/2018 (Old OS.No.389/2012)

3.The defendants 1 to 3 contested the suit by filing separate written statements denying all the averments made in the plaint. The defendants 1 & 2 filed separate written statements and the 3rd defendant filed separate written statement. The contention of the defendants 1 & 2 as per the written statement filed by them in brief are that:

The suit filed by the plaintiff is not maintainable either under law or on facts as the plaintiff approached this Court basing on an in-admissible document. The development agreement said to have been executed by the defendants is not admissible under law. It is further averred in the written statement of the defendants 1 & 2 that they have contributed another land of an extent of AC.9.46 cents for development purpose by them under Sale Agreement cum-General Power of Attorney. The total area plotted as per layout plan is 28,045.57 square yards.

The total area of land surrendered by them was AC.9.37 ¾ cents plus AC.0.49 ¾ cents totalling AC.9.875 cents whereas the plaintiff showing only AC.9.46 cents. It is further averred in the written statement of the defendants 1 & 2 that there is no ear-marking till today for allocation of plots either owners or developer. As per the

Development Agreement the owners will allot plots to the developer at their choice. It is further averred in the written statement of the defendants 1 & 2 that they registered 14 plots in favour of the nominees of the plaintiff and the total consideration was taken by the plaintiff only. They have contributed AC.9.87 ½ cents and hence the plaintiff is not entitled for any compensation and the plaintiff has to render account for the entire land surrendered by them for development. It is further averred in the written statement of the defendants 1 & 2 that unless the land conversion fee paid the mortgaged plots will not be released. The plaintiff did not pay the conversion charges. The layout was approved in LP No.1/2008 and according to condition No.9 of the above approval, the developmental works shall 9 Spl.Judge, C.C/VSP COS 2/2018 (Old OS.No.389/2012) be completed within one year and submit the requisition letter for releasing mortgaged plots. Due to inordinate delay in developing on the part of the plaintiff, the plaintiff has to apply for renewal of the permission by paying requisite amounts, and it is only on account of the plaintiff, but not on account of the defendants. The delay in developing the layout or for payment of the amounts for renewal of the permissions, the plaintiff is solely responsible and the defendants have not committed or violated any conditions of the agreement. It is further averred in the written statement of defendants 1 & 2, in fact all the fourteen plots were sold to the nominees of the plaintiff only. The defendants 1 & 2 never sold any plot to anyone till today. They received notice from the Revenue Divisional

Officer demanding to pay an amount of Rs. 44,35,763/- (Rupees Forty Four Lakhs

Thirty Five Thousand Seven Hundred Sixty Three only) which includes penalty also. It clearly shows that the plaintiff has not completed his part of contract in terms of the development agreement and not rendered the account for the land surrendered to him and also the share of the defendants 1 &2. It is further averred in the written statement of defendants 1 & 2 that the suit is not properly valued for the purpose of court fee. They never denied performing their part of the contract and the plaintiff himself has not satisfied the conditions of the approval accorded by the Visakhapatnam Urban Development Authority(VUDA) for development of the lay out and thereby violated his part of the contract. Due to inordinate delay of more than 4 years in developing the layout the defendants have to forgo their customers, since the layout is not fully developed. It is further averred in the written statement of the defendants 1 & 2 that they are ready and willing to execute the documents that are required if the plaintiff proves that he has fulfilled all the conditions of VUDA. The plaintiff filed the suit with a view to harass the defendants by preventing them from executing the sale deeds in respects of their 10 Spl.Judge, C.C/VSP COS 2/2018 (Old OS.No.389/2012) share of plots. Hence, the defendants 1 & 2 pray the Court to dismiss the suit with costs.

4.The contention of the 3rd defendant as per his written statement that he has always been ready and willing to perform his part of the obligations, more particularly, execution and registration of Gift Settlement Deed infavour of

Kapuluppada Gram Panchayat and signing necessary papers/deeds along with officials of the Visakhapatnam Urban Development Authority to get the mortgaged plots released as well as register the plaintiff’s ear-marked plots to him or his nominees. For the reasons best known to the defendants 1 & 2 they are not forthcoming to perform their part of the contract. It is further averred in the written statement of the 3rd defendant that without participation of the defendants 1 & 2 he cannot alone do anything. It is further averred in the written statement of the 3rd defendant that he has no objection to pass a decree in favour of the plaintiff without costs.

5.After filing of the written statement of the defendants 1 to 3 the plaintiff filed rejoinder denying all the averments made in the written statement filed by the defendants 1 & 2. The averments of the rejoinder filed by the plaintiff in brief are that the Visakhapatnam Urban Development Authority while approving the layout fixes the maximum extent of land that can be converted as plots after making provision for Roads, open spaces etc.,. As per the approved plan an extent of

AC.6.04 cents out of AC.10.18 ½ cents alone was permitted to be converted as plots earmarking the rest of extent for roads and open spaces. Therefore, the total extent of land cannot exceed 29,233.60 square yards equivalent to AC.6.04 cents.

It is further averred in the rejoinder that he developed only an extent of 28,045.57 square yards what is converted into layout of plots is an agricultural land which is 11 Spl.Judge, C.C/VSP COS 2/2018 (Old OS.No.389/2012) neither square nor rectangle in shape. At the time of approval of layout plan as per norms then prevailing, 25% of the plotted area had to mortgage to VUDA.

Accordingly, an extent of AC.1.51 ½ cents, corresponding to 25% of Ac.6.04 cents was mortgaged to VUDA under registered mortgage deed dated 28-12-2007. It is further averred in the rejoinder that the plaintiff has completed the development of layout in all physical aspects as per the norms of VUDA. What remains to be done is only completion of legal formalities though the competent authority i.e.,

Revenue Divisional Officer issued a notice dated 28-05-2009 demanding payment of an amount of Rs. 44,35,763/- (Rupees Forty Four Lakhs Thirty Five Thousand

Seven Hundred Sixty Three only) earlier the very same authority issued notice

dated 24-06-2008 where under a lesser amount of Rs. 22,92,750/- (Rupees Twenty

Two Lakhs Ninety Two Thousand Seven Hundred Fifty only) is demanded. It is further averred in the rejoinder that there is no time frame fixed by the parties and there was no delay in completion of obligations by the defendants. Hence, he prays the Court to decree the suit as prayed for.

6.Based on the pleadings of both parties to the suit the following issues were settled for trial on 15.04.2013.

1. Whether the plaintiff did develop the layout as agreed?

2.Whether there is inordinate delay in developing the layout?

3.Whether the plaintiff performed his part of contract under

Agreement?

4.Whether the plaintiff fulfilled the conditions imposed by VUDA as agreed?

5.Whether the suit is maintainable for the relief of mandatory injunction to execute gift deed, if so, is the plaintiff entitled to the relief of mandatory injunction for execution of Gift Deed by the defendants?

6.Whether the suit is maintainable for the relief of mandatory injunction to direct the defendants to obtain release of mortgaged plots and if so, 12 Spl.Judge, C.C/VSP COS 2/2018 (Old OS.No.389/2012) is the plaintiff entitled for the said relief of mandatory injunction?

7.Is this suit as framed is maintainable?

8.Whether the plaintiff is entitled to the relief of specific performance as prayed for?

9.To what relief?

7.On 01.07.2020 the following additional issues were framed.

1.Whether the plaintiff is entitled to the alternative relief of compensation of Rs. 2,72,47,320 (Rupees Two Crores Seventy Two

Lakhs Forty Seven thousand three hundred and twenty only) as prayed for?

2.Whether the suit is valued properly for the purpose of Court Fee?

8.In order to establish the case of the plaintiff, the plaintiff himself was examined as PW1 and got marked Exs. A1 to A52. On behalf of defendants no oral evidence is adduced and no documents are marked. The learned counsel for defendants 1 & 2 filed a memo stating that there is no oral evidence on behalf of the defendants 1 & 2. As seen from the record admittedly, the 3rd defendant is sailing with the plaintiff and did not cross examine PW1. Even the 3rd Defendant did not adduce any oral evidence to substantiate his contention. The respective Senior

Counsel of plaintiff and defendants 1 & 2 submitted detailed written arguments at length along with citations.

6.ISSUES 1 to 4:

1. Whether the plaintiff did develop the layout as agreed?

2.Whether there is inordinate delay in developing the layout?

3.Whether the plaintiff performed his part of contract under

Agreement?

4.Whether the plaintiff fulfilled the conditions imposed by VUDA as agreed?

To avoid the repetition of discussion all these four issues are clubbed together for the sake of convenience. The onus to prove these issues at the first instance lies 13 Spl.Judge, C.C/VSP COS 2/2018 (Old OS.No.389/2012) on the plaintiff as the plaintiff filed the suit against the defendants 1 to 3 for a mandatory injunction by directing the defendants to execute and register at the cost and expenses of the plaintiff, the open spaces etc., of approved layout No.1/2008 by way of registered Gift Settlement Deed in favour of Kapuluppda Gram Panchayat,

Bheemunipatnam Mandal, Visakhapatnam represented by its Panchayat Secretary and for a mandatory injunction directing the defendants to execute necessary papers and documents so as to obtain release of plot Nos. 16 to 34, 84 to 91 of approved layout 1/2008 mortgaged in favour of Visakhapatnam Urban Development

Authority at the cost and expenses of the plaintiff and to specifically enforce the

Agreements dated 22-02-2007 and 27-05-2007 by directing the defendants to execute and register at the cost and expenses of the plaintiff, the plaint schedule property in favour of the plaintiff or his nominees or alternatively, if any reason the

Court comes to the conclusion that Specific Performance cannot be granted, then and only in such an event to Award compensation of Rs. 2,72,47,320/- (Rupees Two

Crores Seventy Two Lakhs Forty Seven thousand Three Hundred and Twenty only) under Section 21 of the Specific Relief Act. If the plaintiff is able to establish his case by adducing oral and documentary evidence, then the burden shifts on the defendants to disbelieve the case of the plaintiff.

7.The learned Senior Counsel for plaintiff submits that the plaintiff is engaged in the business of Development of layouts and construction of Apartments and

Group Housing. The learned Senior Counsel for plaintiff submits that the

Defendants 1 & 2 are husband and wife and the 1st Defendant is the absolute owner of the land admeasuring Ac. 4.44 ¼ cents covered by Sy.Nos. 85/5, 6,8 to 13, 86/1 to 3 of Kapuluppada Village, Kapuluppada Panchayat, Bheemunipatnam Mandal,

Visakhapatnam having purchased the same under registered Sale deeds. The learned

Senior Counsel for plaintiff submits that the 2nd defendant was absolute owner of the 14 Spl.Judge, C.C/VSP COS 2/2018 (Old OS.No.389/2012) land admeasuring an extent of Ac. 4.93 ½ cents covered by Sy.Nos. 29/5, 30/1, 86/1, 3, 4 of Kapuluppada Village, Kapuluppada Panchayat, Bheemunipatnam Mandal,

Visakhapatnam having purchased the same under registered sale deeds. The learned

Senior Counsel for plaintiff further submits that the total extent of the land owned by defendants 1 & 2 was Ac.9.37 ¾ cents and the defendants 1 & 2 jointly entered into Development Agreement on 22-02-2007 with the plaintiff. The learned Senior

Counsel for plaintiff further submits that as per the said Development Agreement, the plaintiff has to develop the said extent into a layout of house plots at his own cost and expenses and to obtain necessary approvals from Visakhapatnam Urban

Development Authority and Greater Visakhapatnam Municipal Corporation. The learned Senior Counsel for plaintiff further argued that as per the terms and conditions of the Development Agreement, the plaintiff is entitled 26% of the plotted area and the defendants 1 & 2 are entitled to the remaining 74% of the plotted area and the defendants 1 & 2 have agreed to register on completion of B.T-

Roads and drainages 15% out of the total 26% of the developer’s share and the remaining 11% shall be completed after completion of the project as per the norms of Visakhapatnam Urban Development Authority in favour of the plaintiff or his nominees. The learned Senior Counsel for plaintiff further submits that the 1st

Defendant was also in possession and enjoyment of an extent of Ac.0.49 ¾ cents of land and the same was given for development to the plaintiff. The learned Senior

Counsel for plaintiff further argued that the 3rd defendant was absolute owner of land to an extent of Ac.0.82 ½ cents covered by Sy.No.85/5 and 30/7 of

Kapuluppada Village having purchased the same under registered Sale Deed and the 3rd defendant entered into Development Agreement on 27-05-2007 with the plaintiff and the plaintiff agreed to develop the said extent along with the extent owned and possessed by defendants 1 & 2 and all the terms and conditions of the Development 15 Spl.Judge, C.C/VSP COS 2/2018 (Old OS.No.389/2012)

Agreement between the plaintiff and D3 including sharing pattern is one and the same.

8.In view of the submission made by the learned Senior Counsel for plaintiff, as seen from the record, admittedly, there is no dispute that the defendants 1 to 3 have entered into Development Agreements with the plaintiff to develop the said extents into a layout of house plots at the own cost and expenses of the plaintiff and to obtain necessary approvals from Visakhapatnam Urban Development Authority and

Greater Visakhapatnam Municipal Corporation. As seen from the contents of the written statement filed by the defendants 1 & 2 they are not disputing about the execution of Development Agreement in favour of the plaintiff. Ex.A1 relied upon by the plaintiff is the original Development Agreement dated 22-02-2007 executed in between the plaintiff and the defendants 1 & 2. Ex.A2 relied upon by the plaintiff is the original Development Agreement dated 27-05-2007 executed in between the plaintiff and the 3rd defendant. As seen from the clauses 6, 8 & 9 of Ex.A1 original

Development Agreement dated 22-02-2007 and the original Development

Agreement dated 27-05-2007 under Ex.A2, the plaintiff shall be entitled to 26% of the plotted area and the defendants 1 to 3 are entitled to the remaining 74% of plotted area.

9.The learned Senior Counsel for plaintiff submits that the plaintiff and the defendants 1 to 3 have mutually agreed and ear-marked the respective plots fallen to each share after execution of registered Sale Deeds executed by the defendants 1 & 2 in favour of 3rd parties under the originals of Ex.A6 to A8. The learned Senior

Counsel for plaintiff submits that the sale of plots covered by the originals of

Exs.A6 to A8 Sale Deeds are out of entitlement of defendants 1 & 2 and the plots covered by other Sale Deeds i.e. Exs. A9 to A15 i.e., certified copies of registered

Sale deeds are out of the entitlement of the plaintiff.

16 Spl.Judge, C.C/VSP COS 2/2018 (Old OS.No.389/2012)

On the other hand, the learned Senior Counsel for defendants 1 & 2 submits that the plots have not been ear-marked and as per the Development Agreement under Ex.A1, the owners will allot plots to the Developer at their discretion. The learned Senior Counsel for defendants 1 & 2 further argued that as per the relevant terms of Ex.A1 Development Agreement, on completion of the Development the

Developer and the owners will ear-mark the plot numbers for their ownership. The learned Senior Counsel for defendants further argued that the plaintiff did not file any iota of document in support of his plea that the plots were earmarked among plaintiff and the defendants. The learned Senior Counsel for defendants 1 & 2 further argued that except the oral say of DW1 there is no documentary proof that the plots are earmarked among the plaintiff and the defendants.

10.In view of the submissions made by the respective Senior Counsel of both parties the burden of proving that the plots were earmarked among the plaintiff and the defendants squarely lies on the plaintiff. If the plaintiff is able to establish the same by adducing oral and documentary evidence then the burden shifts on the defendants that the plots have not been earmarked. The onus to prove that the plots in the layout have been earmarked among the parties to the Development

Agreement under Exs. A1 & A2 and the plots mentioned in paragraphs-III (l) & (m) of the plaint fell to the share of plaintiff and that the plots mentioned in para-III(m) of the plaint fell to the share of 1st defendant and all the remaining plots felt to the share of defends 2 & 3 lies on plaintiff.

11.In view of the submissions made by the respective Senior Counsel of both parties, the point that arises for consideration is: Whether the plots in the layout have been earmarked by the plaintiff and the defendants 1 to 3 for distribution among them towards their respective shares or not and if so whether the particular plots mentioned by the plaintiff in the plaint is falling to his share, to the share of 17 Spl.Judge, C.C/VSP COS 2/2018 (Old OS.No.389/2012) defendants 1 to 3 is true and Correct. In order to establish the case of the plaintiff, the plaintiff himself was examined as PW1. As seen from the evidence affidavit of

PW1, he categorically stated at page No.4 of his chief affidavit that he should take in Block-I i.e., plot Nos. 76,78,81,82 admeasuring 1061 square yards and the remaining extent of plot No.79 (odd bit) admeasuring 2849.28 square yards, in

Block No.5 plot Nos. 64 to 73 admeasuring 2666.60 square yards. At page No.5 of his chief affidavit, PW1 further stated that, the 3rd defendant should take in Block

No.II i.e., plot Nos. 83,85,86,87,90 & 91 admeasuring 1509.30 square yards while he should take plot Nos. 84,88 & 89 admeasuring 737.82 square yards. PW1 further stated in his evidence affidavit that the defendants 1 & 2 should take the remaining plots. According to the case of the plaintiff and as per his evidence that after execution of the originals of Exs. A6 to A8 Sale Deeds himself and the defendants 1 to 3 have mutually agreed and earmarked the respective plots falling to each share. On the other hand, the defendants 1 & 2 are disputing about the earmarking of those plots. In order to substantiate the case of the plaintiff, the plaintiff mainly relied upon Exs. A6 to A16 certified copies of registered Sale Deeds said to have been executed by the General Power of Attorney Holder of the defendants 1 to 3 in favour of 3rd parties on various dates. The learned Senior Counsel for plaintiff submits that if there was no earmarking of plots the very purpose of incorporating clause-6 under Exs. A1 & A2 would be frustrated. In view of the submission made by the learned Senior Counsel for plaintiff as seen from the contents of Exs. A1 &

A2 registered Development Agreements clause-6 reads as follows:

“The owners shall register the plots allotted to the Developer share of 15% (out of the total 26%) in favour of the Developer or his nominees/3rd parties after the completion of B.T roads and drainages and the remaining 11% of share shall be registered after the completion of the entire project as per the Visakhapatnam Urban Development norms”.

18 Spl.Judge, C.C/VSP COS 2/2018 (Old OS.No.389/2012)

12.The learned Senior Counsel for defendants 1 & 2 mainly attacked the plea of the plaintiff basing on the relevant terms i.e., clause No.9 of Ex.A1 Registered

Development Agreement dated 22-02-2007. As seen from the clause No.9 of Ex.A1 it is evident that on completion of development, the Developer and the Owners will earmark plot numbers for their ownership and the Developer shall be entitled for 26% of plots in the land and the owners shall execute and register the regular Sale

Deeds or other conveyance deeds infavour of the Developer/Nominees of the

Developer and the Developer shall have the right to enter into agreements, receive consideration, issue receipts there for, without having to account for the same, execute such deeds in favour of such 3rd parties. Admittedly, except the oral say of

PW1 who is the plaintiff in the suit there is no documentary proof in support of his plea that the plots were earmarked among him and the defendants 1 to 3. As seen from the averments of the plaint and the evidence affidavit of PW1 even though he took a specific plea that plots were ear-marked among them subsequent to sale of plots bearing Nos. 77,79 & 80 on 17-09-2008 he did not mention the time of earmarking. As seen from the cross-examination of PW1 who is plaintiff in the suit, he categorically stated that plots were earmarked among him and the defendants 1 to 3 in the month of October or November, 2008.

13.The learned Senior Counsel for defendants 1 & 2 submits that the timing of alleged fact of earmarking of plots cannot be believed for more than one reason. In order to substantiate his contention he mainly relied upon the recitals mentioned in

Ex.A1 Registered Development Agreement. As seen from the contents of Ex.A1

Registered Development Agreement dated 22-02-2007, it is clear that both parties have agreed for earmarking of plots after completion of the layout. Ex.A3 relied upon by the plaintiff is blue print original approved layout plan. Ex.A4 is true copy of the proceedings dated 05-01-2008 of Visakhapatnam Urban Development 19 Spl.Judge, C.C/VSP COS 2/2018 (Old OS.No.389/2012)

Authority giving permission for approval of layout. As seen from the contents of

Ex.A4 shows that Ex.A3 layout plan was approved in the month of January, 2008 i.e., on 05-01-2008. As seen from the cross-examination of PW1 dated 29-07-2019, he categorically admitted in March or April, 2011 he completed the layout. When the parties to Ex.A1 Development Agreement dated 22-02-2007 and

Ex.A2 Development Agreement dated 25-07-2007 decided to earmark their respective plots after completion of layout, there is no reason why plots were earmarked in the year 2008 itself as per the evidence of PW1 i.e., three years

before completion of layout that too when the layout was in a nascent stage. As

seen from the cross-examination of PW1 at page No.9 of his cross-examination, he categorically admitted that there is no document in proof of allocation and earmarking of plots. PW1 further admitted in his cross-examination at page No.9 allocation and earmarking of plots is very important and vital clause as per their understanding under Ex.A1. PW1 further admitted in his cross-examination that in

October or November, 2008 allocation and earmarking of plots were completed.

He further admitted in his cross-examination that as per Ex.A1 earmarking shall take place on completion of development. PW1 further admitted in his cross- examination that he did not file any paper containing the plots fell to his share.

When the defendants 1 & 2 specifically denying about the earmarking of plotsas alleged by the plaintiff it is for the plaintiff to establish the same by adducing legal and documentary evidence. In the present suit admittedly, the plaintiff has not taken any steps to examine the 3rd defendant who is sailing with him. As seen from the cross-examination of PW1 he categorically admitted that there is no mention in the written statement of D3 about allocation and earmarking of his plots.

14.The other doubtful circumstance to disbelieve the case of the plaintiff about the earmarking of plots is concerned as seen from the recitals of Ex.A1 20 Spl.Judge, C.C/VSP COS 2/2018 (Old OS.No.389/2012)

Development Agreement dated 22-02-2007, it is evident that both parties agreed that 15% of the plotted area out of the share of 26% of plotted area given to the plaintiff’s share shall be registered by the owners infavour of the plaintiff after completion of B.T roads and drainages and remaining 11% share of the plaintiff shall be registered by the owners of the land after completion of the layout as per

Visakhapatnam Urban Development Authority (VUDA) norms. There is absolutely no clause in the Ex.A1 Development Agreement that the owners are entitled to sell some plots of their choice even before completion of B.T roads and drainages, even before completion of layout and even before parties earmarking their respective plots in the layout. Except the sole testimony of PW1 there is no documentary proof to substantiate the plea of the plaintiff that earmarking of plots was over long back among parties to Ex.A1 Development Agreement. Hence, this

Court not inclined to accept the contention of the learned Senior Counsel for plaintiff.

15.The learned senior counsel for plaintiff submits that an adverse inference has to be drawn against the defendants 1 & 2 as the defendants 1 & 2 did not come to the witness box to say anything on oath. On the other hand, the learned Senior

Counsel for defendants 1 & 2 submits that it is for the plaintiff to establish his case and he cannot depend on the weakness of the defendants case. The learned counsel for defendants 1 & 2 further submits that in a suit filed by the plaintiff for specific performance by way of mandatory nature it is for him to establish his case irrespective of the fact whether the defendants 1 & 2 adduced their evidence or not.

16.In view of the submissions made by the respective Senior Counsel of both parties, as seen from the record, admittedly no oral evidence is adduced by the defendants 1 & 2. In a suit filed by the plaintiff for Specific performance of 21 Spl.Judge, C.C/VSP COS 2/2018 (Old OS.No.389/2012) contract by way of mandatory injunction directing the defendants to execute and register Gift Settlement Deed in favour of Kapuluppada Panchayat,

Bheemunipatnam, it is for him to establish his case and he cannot depend on the weakness of the defendants case. Admittedly, the defendants 1 & 2 did not come to the witness box to say anything on oath. In order to substantiate the case of the plaintiff, the learned Senior Counsel for plaintiff relied upon a decision of the

Hon’ble Supreme Court reported in AIR 1999 SC pg. 1341, in case between

ISWAR BHAI C. PATEL Vs. HARIHAR BEHERA AND OTHERS, wherein their Lordships of the Hon’ble Supreme Court held that:

“Having not entered into the witness box and having not presented himself for cross-examination, an adverse presumption has to be drawn against him on the basis of principles contained in illustration (g) of Section 114 of the

Evidence Act. As seen from the facts of the decision relied upon by the learned Senior counsel for plaintiff in a suit filed by

Respondent No.1 for recovery of a sum of Rs.7000/- together with damages (Rs.1400) in the trial court which was dismissed as against him, but was decreed against the 2nd Respondent who, incidentally, also in the natural father of 1st Respondent who was subsequently adopted by his maternal grandfather”. As seen from the facts of the decision relied upon by the counsel for plaintiff are different to the facts of the present suit.

17.The learned Senior Counsel for plaintiff in order to substantiate his contention also relied upon another decision of the Hon’ble High Court of

Himachal Pradesh reported in AIR 2002 HP pg. 166, in a case between

RANJANA NAGPAL ALIAS RANJANA MALIK Vs. DEVI RAM AND

OTHERS, wherein His Lordship of the Hon’ble High Court of Himachal Pradesh in para 48 of the judgment by relying upon the judgment of the Hon’ble Supreme

Court reported in AIR 1999 SC pg 1341, held that:

22 Spl.Judge, C.C/VSP COS 2/2018 (Old OS.No.389/2012) “ If a defendant does not enter the witness box to make a statement on oath in support of the pleadings set out in the written statement, an adverse inference would arise that what he had stated in the written statement was not correct”.

There is no dispute with regard to the proposition of law as laid down by the

Hon’ble Supreme Court in the above said decision reported in AIR 1999 SC pg.

1341. As seen from the record, admittedly, the defendants mainly relied upon the admissions made by PW1 in his cross-examination. In a suit filed by the plaintiff for specific performance by way of mandatory injunction, the initial burden lies upon him to establish his case and he cannot depend on the weakness of the defendants case irrespective of the fact whether the defendants adduced their evidence or not. This Court is of the opinion that merely because the defendants 1 & 2 did not adduce any oral evidence it cannot be said that the case of the plaintiff is proved.

18.The learned Senior Counsel for defendants 1 & 2 submits that there is a breach of contract on the part of the plaintiff as the plaintiff did not develop the layout within one year from the date of approval. The learned counsel for defendants 1 & 2 further argued that the plaintiff failed to adhere to the time factor committing breach of essential term of the contract. On the other hand, the learned

Senior Counsel for plaintiff submits that in the absence of specific time stipulation in Exs.A1 & A2, the concept of reasonable time comes into play upon the facts and circumstances of each case. The learned Senior Counsel for plaintiff further argued that there was no delay on the part of the plaintiff in completing the physical aspect of the development of layout and there is no breach at all.

19. In view of the submissions made by the respective Senior Counsel of both parties, as seen from the recitals of Exs. A1 & A2 original Development 23 Spl.Judge, C.C/VSP COS 2/2018 (Old OS.No.389/2012)

Agreements dated 22-02-2007 and 27-05-2007, it is evident that the layout shall be completed as per Visakhapatnam Urban Development Authority norms.

Admittedly, Ex.A1 original Development Agreement dated 22-02-2007 does not contain any time stipulation for performance of contract. Section 46 of the Indian

Contract Act stipulates that if no time is stipulated for performance of contract, it shall be completed within a reasonable time. As seen from the cross-examination of PW1 who is the plaintiff in this case he categorically admitted that fixation of one year period by the Visakhapatnam Urban Development Authority is one of the norms of Visakhapatnam Urban Development Authority. PW1 himself admitted that contract of this nature covered by Ex.A2 will have time stipulations. As per clause (1) of Ex.A1 Development Agreement dated 22-02-2007, the plaintiff agreed to develop the land of D1 & D2 into a layout of residential plots. As seen from the contents of Ex.A4 the time given is one year from the date of approval.

The main contention of the plaintiff is that after approval of the layout on 05-01-2008 the 1st defendant did not allow him to carryout development work on the ground of auspicious days for laying foundation. The learned Senior Counsel for plaintiff submits that except for laying out BT roads the plaintiff has completed all other works in the year 2009 itself. In view of the submission made by the learned Senior Counsel for plaintiff, as seen from the cross-examination of

PW1 who is the plaintiff in this suit, he categorically admitted that the development of the land means developing the land by laying roads, providing electricity, arranging open spaces, arranging avenue plantation, completing plotting work, arranging drains, water facility as per Visakhapatnam Urban

Development Authority norms. PW1 further admitted in his cross-examination that as per the time fixed by the Visakhapatnam Urban Development Authority he supposed to complete the above works within one year. PW1 further admitted in 24 Spl.Judge, C.C/VSP COS 2/2018 (Old OS.No.389/2012) his cross-examination that the defendants 1 & 2 have cooperated with him in corresponding with Visakhapatnam Urban Development Authority in the issues of the actual physical development of the land. PW1 further admitted in his cross- examination that he did not lay the BT roads till six months prior to March, 2011.

PW1 further admitted in his cross-examination that the period of one year given for development while approving plan was over by the time of Ex.A37 i.e., copy of the G.O.Ms.No. 276 dated 02-07-2010. Admittedly, the plaintiff got issued a legal notice under the original of Ex.A18 dated 18-08-2011 to the defendants 1 to 3 and the defendants 1 to 3 received the same under Exs.A19 to A21 postal acknowledgments. After receipt of the original Ex.A18, the 3rd defendant got issued a reply on 16-09-2011 under Ex.A22. There is no dispute that the plaintiff got issued final legal notice to the defendants on 18-05-2012 under the original of

Ex.A23 and the defendants 1 to 3 received the same under Exs. A24 to A26 postal acknowledgments. Subsequently, the plaintiff got issued addendum to the final legal notice under the original of Ex.A27 to the defendants 1 to 3 and the defendants 1 to 3 received the said addendum under Exs. A28 to A30 postal acknowledgments. The law is well settled that if there is no time period specified for the performance of the contract and the promisor has to perform the contract without any request by the promisee, in such a case a promisor must perform the contract within a reasonable time. The reasonableness or unreasonableness of time used or taken by a party may be the subject of judicial review in light of the nature, purpose and circumstances of each case. In considering whether there has been unreasonable delay in performance, a court may also consider other factors such as prior dealings between the parties, business routine or customs within the trade, and whether there were any objective manifestations of expectation expressed between the parties.

25 Spl.Judge, C.C/VSP COS 2/2018 (Old OS.No.389/2012)

20.As seen from the record it is evident that the defendants 1 & 2 alleges three short comings in the layout i.e., (1) approaching road (2) drains and (3) plots being below the road level. As per EX.A4 proceedings an approach road with standard road specifications shall be arranged. As per the specifications of Visakhapatnam

Urban Development Authority drains shall be of R.R masonry and they shall have a depth of three feet and the width of three feet and some of the plots in the layout are below the road level. In order to substantiate the case of the plaintiff, the learned Senior Counsel for plaintiff submits that the plaintiff had developed the layout as per the norms of the Visakhapatnam Urban Development Authority and the same is supported by the report submitted by the Advocate Commissioner. In view of the submission made by the learned Senior Counsel for plaintiff, as seen from the record admittedly an Advocate Commissioner was appointed in

I.A.2627/2015 filed by the plaintiff to carryout local inspection of the layout and to report whether or not there is violation of the approved plan. The learned Advocate

Commissioner made a local inspection of the layout and submitted his report. The main contention of the plaintiff is that as per the report submitted by the Advocate

Commissioner it is clear that the developer i.e., the plaintiff has developed the layout in accordance with the conditions of sanction and there is no breach at all.

On the other hand, the learned counsel for defendants 1 & 2 submits that the plaintiff did not arrange approach road to the layout with standard specifications so far and the drains and as per the specifications of Visakhapatnam Urban

Development Authority, drains shall be of R.R Masonry. The learned Advocate

Commissioner had deliberately given a false report that the drains of R.R Masonry were arranged. In view of the submissions made by the respective Senior Counsel of both parties, as seen from the record admittedly, the plaintiff did not examine the learned Advocate Commissioner as a witness and the report submitted by the 26 Spl.Judge, C.C/VSP COS 2/2018 (Old OS.No.389/2012) learned Advocate Commissioner was not marked as exhibit. The learned Senior

Counsel for plaintiff submits that the report submitted by the Advocate

Commissioner shall form part of the record and the said report shall be taken into consideration as per order XXVI Rule 10(2) of the Code of Civil Procedure. On the other hand, the learned counsel for defendants 1 & 2 submits that without examining the Advocate Commissioner and without marking the report submitted by the Advocate Commissioner the contents of the report cannot be taken into consideration. In view of the submissions made by the respective counsel of both parties, it is necessary to define Order XXVI Rule 10(2) of the Code of Civil

Procedure:

“The report of the Commissioner and the evidence taken by him (but not the evidence without the report) shall be evidence in the suit and shall form part of the record; but the Court or, with the permission of the Court, any of the parties to the suit may examine the Commissioner personally in open Court touching any of the matters referred to him or mentioned in his report, or as to his report, or as to the manner in which he has made the investigation”.

21.The law is well settled that the report submitted by the Advocate

Commissioner in the suit forms part of the record. The report of the Commissioner has therefore, evidentiary value and can be utilised by either of the parties as evidence in support of their case. In the present suit, admittedly, the plaintiff did not examine the Advocate Commissioner who submitted his report as a witness for the reasons best known to the plaintiff. As seen from the report submitted by the Advocate Commissioner in the Annexure attached to the Commissioner report there is absolutely no reference about the approach road. Right from the beginning the case of the defendants 1 & 2 that the drains were not arranged with R.R.

27 Spl.Judge, C.C/VSP COS 2/2018 (Old OS.No.389/2012)

Masonry and that they were arranged with fly ash bricks and that the drains are only of 1x 3 three feet. As seen from the report submitted by the Commissioner, he categorically noted that the drains of R.R Masonry were arranged. The learned counsel for defendants 1 & 2 submits that the Commissioner has deliberately given a false report that the drains were arranged. In order to substantiate his contention the learned counsel for defendants 1 & 2 mainly relied upon the admissions made by PW1 who is plaintiff in the suit in his cross-examination. As seen from the cross-examination of PW1 he categorically admitted that the drains were not made with R.R. Masonry. PW1 further stated in his cross-examination that the drains were made of fly ash bricks as R.R Masonry was not available.

22.The learned Senior Counsel for plaintiff submits that the period of one year stipulated in Ex.A4 proceedings dated 05-01-2008 was not pragmatic and was unrealistic. The learned Senior Counsel for plaintiff further argued that the

Government of Andhra Pradesh in G.O.Ms.No. 276 dated 02-07-2010 increased the time for development from one year to three years. He further argued that there was no delay on the part of the plaintiff in completing the physical aspects of the layout.

23.On the other hand, the learned counsel for defendants 1 & 2 submits that the

G.O.Ms.No. 276 relied upon by the plaintiff is prospective in nature and not retrospective in nature and cannot be made applicable to all layouts whose initial period of one year time for completion is over by the date of the said G.O. In view of the submissions made by the respective Senior Counsel of both parties, as seen from the record the plaintiff mainly relied upon Ex.A37 i.e., copy of

G.O.Ms.No.276 dated 02-07-2010. As seen from the contents of Ex.A37 the

Government of Andhra Pradesh, Municipal Administration and Establishment 28 Spl.Judge, C.C/VSP COS 2/2018 (Old OS.No.389/2012)

Development Department in G.O.Ms.No.276 dated 02-07-2010 considering the representations received from various organisations to increase the period for development of layout from one year to three years is extended the period of layout is increased from one year to three years. The plaintiff also addressed a letter under the original of Ex.A40 to the Visakhapatnam Urban Development Authority dated 12-07-2011 seeking extension of time along with payments. Ex.A41 relied upon by the plaintiff is the original receipt issued by the Visakhapatnam Urban

Development Authority dated 16-07-2011. In pursuance of the letter addressed by the 1st defendant under the original of Ex.A40 and basing upon the G.O issued by the Government of Andhra Pradesh under Ex.A37 the Visakhapatnam Urban

Development Authority issued proceedings under the original of Ex.A42 i.e., true copy of the order dated 08-11-2011 extending time upto 04-01-2012. The main contention of the learned Senior Counsel for defendants 1 & 2 that the original of

Ex.A37 G.O issued by the Government of Andhra Pradesh is prospective in nature and not retrospective in nature and cannot be made applicable to all layouts whose initial period of one year time for completion is over by the date of said G.O. In view of the submission made by the learned Senior Counsel for defendants 1 & 2 as seen from the record, the subject layout was approved in the year 2008 with a stipulation that the layout shall be completed in one year. As seen from the documents filed by the plaintiff he sought for extension of time under the original of Ex.A40 for completion of the layout. Considering the submissions made by the respective Senior Counsel of both parties and in view of the admissions made by

PW1 in his cross-examination this Court is of the opinion that the plaintiff failed to adhere to the time factor for completion of the layout.

24.The learned Senior Counsel for plaintiff submits that time is not essence of the contract as Exs. A1 & A2 did not contain any time stipulation. On the other 29 Spl.Judge, C.C/VSP COS 2/2018 (Old OS.No.389/2012) hand, the learned Senior Counsel for defendants 1 & 2 submits that generally contracts of this nature covered by EX.A1 contain a stipulation about time for performance of contract irrespective of the fact whether parties have agreed time as essence of the contract or not. The learned counsel for defendants 1 & 2 further argued that if no time is stipulated in Ex.A1 for performance of contract it shall be completed within a reasonable time.

25.In view of the submissions made by the respective Senior Counsel of both parties, as seen from the contents of Ex.A1 Development Agreement dated 22-02-2007 no time is stipulated for performance of the contract. The legal position is clear from the decision of a constitution bench of the Hon’ble Supreme

Court in CHAND RANI VS KAMAL RANI, reported in 1993(1) SCC pg.519, wherein their Lordships of the Hon’ble Supreme Court held that:

“It is a well-accepted principle that in the case of sale of immovable property, time is never regarded as the essence of the contract. In fact, there is presumption against time being the essence of the contract. This principle is not in any way different from that obtainable in England. Under the law of equity which governs the rights of the parties in the case of specific performance of contract to sell real estate, law looks not at the letter but at the substance of the agreement. It has to be ascertained whether under the terms of the contract the parties named a specific time within which completion was to take place, really and in substance it was intended that it should be completed within a reasonable time. An intention to make time the essence of the contract must be expressed in unequivocal language.

In the present case even though no time is stipulated for completion of the layout as per the terms of EX.A1, This Court may infer that it is to be performed in a reasonable time i.e., (i) from the express terms of the contract (ii) from the nature 30 Spl.Judge, C.C/VSP COS 2/2018 (Old OS.No.389/2012) of the property (iii) from surrounding circumstances, per example, the object of making the contract. The intention to treat time is the essence of the contract may however be evidenced by circumstances which are sufficiently strong to displace the normal presumption that time is not essence in contract. As seen from the cross-examination of PW1 who is the plaintiff in the suit, he categorically admitted that EXs.A1 and A2 are reciprocal agreements. PW1 further admitted in his cross- examination at page No.5 that he has taken extension of time thrice i.e., six months, six months and one year apart from the three years period that the

Government had given to every developer. PW1 further admitted in his cross- examination that the period of one year given for development while approving plan was over by the time of Ex.A37 G.O. He further admitted in his cross- examination that as per Exs.A1 & A2 Agreements he has to develop the land as per

Visakhapatnam Urban Development Authority norms.

26.The learned Senior Counsel for defendants 1 & 2 submits that the plaintiff had violated the essential conditions of the contract by transferring of the contract to Satya Construction a partnership firm without prior written permission of defendants 1 & 2. The learned Senior Counsel for defendants 1& 2 further argued that the plaintiff has committed breach of contract by transferring the contract to a partnership firm by violating clause-14 of Ex.A1 Agreement. On the other hand, the learned Senior Counsel for plaintiff submits that the assignment of contract presupposes the extinguishment of contractual relationship between the original parties to the contract and substitution of different set of parties and assumption of jural relationship by such substituted parties. The learned counsel for plaintiff further argued that there is no such extinguishment of jural relationship between the original parties to the contract. The learned Senior Counsel for plaintiff further argued that the relationship between the partners inter see is of no concern to the 31 Spl.Judge, C.C/VSP COS 2/2018 (Old OS.No.389/2012) defendants nor has it any impact on the development agreements. The learned

Senior Counsel for plaintiff further argued that there is no pleading in the written statement regarding the alleged assignment of contract under Ex.A1 to Satya

Constructions without permission of defendants 1 & 2. He further argued that the defendants 1 & 2 are estopped from contending that the alleged transfer took place without the consent of the defendants 1 & 2.

27.In view of the submissions made by the respective Senior Counsel of both parties, as seen from the contents of Ex.A1 Development Agreement dated 22-02- 2007 as per clause14 of Ex.A1 the developer shall not transfer or assign the contract to any other person without prior written permission of the owners.

Admittedly, the plaintiff had violated clause-14 of Ex.A1 Agreement by transferring of the contract to Satya Constructions a partnership firm without written permission of defendants 1 & 2. As seen from the cross-examination of

PW1 who is the plaintiff in this suit he categorically admitted at page No.6 of his cross-examination that this project which is the subject matter of the suit at the beginning was in his individual name later it became transaction of firm called

Satya Constructions. PW1 further admitted in his cross-examination at page No.6 that it is true Satya Constructions is not a party in this suit as there are four partners in Satya Constructions and it is a registered partnership firm. PW1 further admitted in his cross-examination that from 1st April, 2008 onwards the transaction under

Ex.A1 & A2 had gone from his individual name to the firm. PW1 further admitted in his cross-examination that from 1st April, 2008 onwards the firm shall bare the profit and loss if any in the transactions covered by Exs.A1 & A2. PW1 further admitted in his cross-examination that the transaction covered under Ex.A1is between him and the defendants 1 & 2. He further admitted in his cross- examination at page No.6 that there is a clause in Ex.A1 he shall not transfer or 32 Spl.Judge, C.C/VSP COS 2/2018 (Old OS.No.389/2012) assign the contract to any other person without written permission from the owners. PW1 further admitted in his cross-examination that from the beginning the contract under Ex.A1 became the contract of Satya Constructions. PW1 further admitted in his cross-examination that he did not refer about Satya Constructions either in his pleadings or in his legal notice. He further admitted in his cross- examination that the entire extent for the layout from 1st April 2008 was on the account of Satya Constructions. PW1 who is plaintiff in the suit further admitted in his cross-examination that Satya Constructions firm was established for the purpose of this layout and the firm is continuing and not dissolved. PW1 further admitted in his cross-examination that he did not obtain any written permission from the defendants 1 & 2 to transfer the contract to Satya Constructions. In view of the specific admissions made by PW1 in his cross-examination this Court safely come to a conclusion that the plaintiff has committed breach of contract by transferring the contract to a partnership firm i.e., Satya Constructions by violating clause-14 of Ex.A1 Agreement. Admittedly, the plaintiff did not institute the suit against the defendants in the name of Satya Constructions and the said Satya

Constructions is not a party to the suit. The plaintiff filed the suit in his individual capacity but not in the name of Satya Constructions which is a partnership firm.

28.The learned Senior Counsel for plaintiff submits that without pleading in the written statement the admissions made by PW1 cannot be considered. In order to substantiate his contention the learned Senior Counsel for plaintiff mainly relied upon Exs. A6 to A16 certified copies of Sale Deeds and Ex.A17 completion certificate dated 22-04-2009 issued by the Assistant Engineer operation Section

APEPDCL dated 22-04-2009. The main contention of the learned counsel for plaintiff is that in Exs. A9 to A15 sale deeds there is a clear recital that Satya

Constructions was the recipient of sale consideration as such the defendants 1 & 2 33 Spl.Judge, C.C/VSP COS 2/2018 (Old OS.No.389/2012) are estopped from contending that the alleged transfer took place without the consent of the defendants 1 & 2. In view of the submission made by the learned

Senior Counsel for plaintiff, as seen from the contents of the written statement filed by the defendants 1 & 2 admittedly there is no pleading in the written statement about the alleged assignment of the contract under Ex.A1 to Satya

Constructions. This court is of the view that even assuming for argument sake that there is no pleading in the written statement about the alleged transfer of contract to Satya Constructions covered under Ex.A1, as seen from the averments of the plaint there is no whisper about the transfer of contract to Satya Constructions which is a partnership firm. As seen from the cross-examination of PW1 who is the plaintiff in this suit he categorically admitted that he did not refer about Satya

Constructions either in his pleadings or in his legal notice got issued to the defendants. PW1 further admitted in his cross-examination that Satya Construction firm was established for the purpose of this layout only. When there is no pleading in the plaint or in the legal notice got issued by the plaintiff to the defendants under the original of Ex.A18 the question of denial of such fact in the written statement by the defendants 1 & 2 does not arise. As such the contention of the learned Senor

Counsel for plaintiff that the defendants 1 & 2 are estopped from contending that the alleged transfer of contract to Satya Construction without prior written permission of defendants 1 & 2 is not tenable. It is not the case of the plaintiff that

Satya Construction is no way concerned with regard to the transaction covered under Ex.A1. The learned Senior Counsel for plaintiff submits that mere fact that the plaintiff became the partner of Satya Construction and the developmental work was got done through the said firm does not mean that it is the extinguishment of rights and obligations of the plaintiff as well as the defendants 1 &2. In view of the submission made by the learned Senior Counsel for plaintiff, as seen from the 34 Spl.Judge, C.C/VSP COS 2/2018 (Old OS.No.389/2012) cross-examination of PW1 who is the plaintiff in this suit he categorically admitted that Satya Construction firm was established for the purpose of this layout only and the said firm is continuing and not dissolved. PW1 further admitted in his cross- examination that the firm had paid Rs. 22,92,750/- (Rupees Twenty Two Lakhs

Ninety Two thousand and Seven Hundred Fifty only) towards land conversion charges. This Court is of the opinion that when a contract covered under Ex.A1 was transferred to Satya Construction as admitted by PW1 in his cross-examination the suitor shall be Satya Constructions and it shall in force the contract and not the plaintiff in his individual capacity. In order to substantiate the case of the defendants 1 & 2, the learned Senior Counsel for defendants 1 & 2 relied upon a decision of the Hon’ble Supreme Court in a case between KAPILABEN VS

ASHOK KUMAR JAYANTILAL SHETH decided in Civil Appeal No.10683- 86/2014 dated 25-11-2019, wherein Their Lordships of the Hon’ble Supreme Court held that:

“It was the intention of the parties to any contract that any promise contained in it should be performed by the promisor himself, such promise must be performed by the promisor. In other cases, the promisor or his representative may employ a competent person to perform it.” It is clear from the above that the promisor ‘may employ a competent person’, or assign the contract to a third party as the case may be, to perform the promise only if the parties did not intend that the promisor himself must perform it. Hence in a case where the contract is of personal nature, the promisor must necessarily show that the promisee was agreeable to performance of the contract by a third person/assignee, so as to claim exemption from the condition specified in Section 40 of the Contract Act. If the promisee’s consent is not obtained, the assignee cannot seek specific performance of the contract”.

35 Spl.Judge, C.C/VSP COS 2/2018 (Old OS.No.389/2012)

In the present case it is not the case of the plaintiff that he obtained the consent of either oral or written from the defendants 1 & 2 in respect of transfer of contract covered under Ex.A1 to Satya Constructions. Hence, this Court not inclined to accept the contention of the learned Senior Counsel for plaintiff.

29.The learned Senior Counsel for plaintiff submits that evasive denial of allegation of fact is of no denial at all and that the same shall be taken as admitted.

In order to substantiate the contention of the learned counsel for plaintiff he mainly relied upon Ex.A3 original approved layout plan and Ex.A4 true copy of the proceedings dated 05-01-2008. As seen from the contents of the written statement filed by the defendants 1 & 2 they took a specific plea that they never denied perform their part of the contract and the plaintiff has not satisfied the conditions of the approval accorded by the Visakhapatnam Urban Development Authority for development of the layout, thereby violated his part of the contract. In order to substantiate the case of the plaintiff, the learned Senior Counsel for plaintiff relied upon a decision of the Hon’ble Supreme Court reported in AIR 1964 SC pg.318, in a case between BADAT AND COMPANY Vs. EAST INDIA TRADING

COMPANY, wherein their Lordships of the Hon’ble Supreme Court in para 32 of the judgment held that:

“The written statement must deal specifically with each allegation of fact in the plaint and when a defendant denies any such fact, he must not specific do so evasively, but answer the point of substance. If his denial of a fact is not specific but evasive, the said fact shall be taken to be admitted”.

In the present case as seen from the contents of the written statement filed by the defendants 1 & 2 they have specifically denied each and every pleading of the plaint.

36 Spl.Judge, C.C/VSP COS 2/2018 (Old OS.No.389/2012)

30.The learned Senior Counsel for plaintiff submits that the defendants did not perform their obligations even though the plaintiff was ready and willing to perform his part of the contract. On the other hand, the learned Senior Counsel for defendants submits that the plaintiff failed to perform his part of contract as per terms and conditions of Ex.A1 Development Agreement dated 22-02-2007 even though the defendants are ready and willing to perform their part of contract.

31.In view of the submissions made by the respective Senior Counsel of both parties, the law is well settled that in a suit for specific performance the plaintiff should plead and prove that he is always ready and willing to perform his part of contract. Mere taking a plea in the plaint is not sufficient. The plaintiff must prove with cogent evidence his readiness and willingness to perform his part of contract at all material times i.e., from the date of contract till the date of suit. The relief of specific performance is an equitable relief and it is within the discretion of the

Court.

The relief of specific performance is discretionary and it should not be granted merely because it is lawful to do so but it is governed by sound judicial principles. The grant of relief is the discretion of the Court and cannot be claimed as a matter of right. But however, the discretion shall not be arbitrary; it should be governed by rules and principles.This Court already discussed in detail and came to a conclusion that the plaintiff failed to perform his part of contract covered under Ex.A1. Hence, this Court not inclined to accept the contention of the learned

Senior Counsel for plaintiff. Accordingly, these issues 1 to 4 are decided in favour of the defendants and against the plaintiff.

37 Spl.Judge, C.C/VSP COS 2/2018 (Old OS.No.389/2012)

32.Issues 5 & 6:

Issue No. 5: Whether the suit is maintainable for the relief of mandatory injunction to execute Gift deed, if so, is the plaintiff entitled to the relief of mandatory injunction for execution of Gift deed by the defendants?

Issue No.6: Whether the suit is maintainable for the relief of mandatory injunction to direct the defendants to obtain release of mortgaged plots and if so, is the plaintiff entitled for the said relief of mandatory injunction?

So far as these two issues are concerned, the burden lies on the plaintiff as the plaintiff filed the suit for mandatory injunction against the defendants to execute and register the Gift Deed in favour of Kapuluppada Panchayat,

Bheemunipatnam Mandal represented by its Secretary in respect of open spaces etc., of approved layout No.1/2008 and to execute necessary papers and documents so as to obtain release of plots 16 to 34, 84 to 91 of approved layout 1/2008 mortgaged in favour of Visakhapatnam Urban Development Authority at the costs and expenses of the plaintiff.

33.The learned Senior Counsel for plaintiff submits that several times the plaintiff requested the defendants to register the Gift Deed in favour of

Kapuluppada Gram Panchayat and obtain release of mortgaged plots at the expenses of the plaintiff but the defendants 1 & 2 have been postponing the same on one pretext or other, even though the 3rd defendant has agreed to the terms and conditions of Ex.A4 approved plan. The learned Senior Counsel for plaintiff further submits that the plaintiff got issued a legal notice to the defendants to execute and register the Gift Settlement Deed in favour of Kapuluppada Gram

Panchayat at the costs and expenses of the plaintiff and thereafter to execute necessary documents as and when the Visakhapatnam Urban Development

Authority releases the mortgaged plots and the defendants 1 to 3 received the said notice and the 3rd defendant gave a reply stating that he is ready and willing to sign the necessary documents but the defendants 1 & 2 did not give any reply. The 38 Spl.Judge, C.C/VSP COS 2/2018 (Old OS.No.389/2012) learned Senior Counsel for plaintiff further argued that due to latches on the part of the defendants 1 & 2 to execute and register the Gift Settlement Deed infavour of

Kapuluppada Gram Panchayat the release of mortgage plots by Visakhapatnam

Urban Development Authority could not obtain. The learned Senior Counsel for plaintiff further argued that as the defendants 1 & 2 failed to execute Gift

Settlement Deed in favour of Kapuluppada Gram Panchayat the plots mortgaged to

Visakhapatnam Urban Development to ensure compliance with the conditions of approval will be released from mortgage. Hence, he prays the Court to direct the defendants to execute and register Gift Settlement Deed in favour of Kapuluppada

Grampanchayat to obtain release of plots mortgaged to Visakhapatnam Urban

Development Authority.

34.On the other hand, the learned Senior Counsel for defendants 1 & 2 submits that the execution of the Gift Settlement Deed in favour of Kapuluppada Gram

Panchayat for the mortgaged plots has not arisen because those mortgaged plots are still under mortgage and this Court would not create interest in an immovable property by way of decree when there is subsisting interest of somebody else in some of the properties. The learned Senior Counsel for defendants further argued that as the plaintiff could not comply with the legal formalities as contemplated under Ex.A4 approved layout as such the plaintiff is not entitled to seek the mandatory injunction by directing the defendants to execute a registered Gift

Settlement Deed in favour of Kapuluppada Gram Panchayat for release of plots mortgaged to the Visakhapatnam Urban Development Authority. The learned

Senior Counsel for defendants 1 & 2 further argued that the plaintiff is not entitled to seek the relief of mandatory injunction as prayed for as he did not approach the

Court with clean hands and true facts. The learned Senior Counsel for defendants further argued that the plaintiff has not so far developed the layout as per the 39 Spl.Judge, C.C/VSP COS 2/2018 (Old OS.No.389/2012) conditions and specifications of Visakhapatnam Urban Development norms and not paid the requisite amounts payable to the competent Authority and the plaintiff has not completed part of contract in terms of Development Agreement as such he is not entitled to seek the relief of mandatory injunction as prayed for. Hence, he prays the court to dismiss the suit with costs.

35.In view of the submissions made by the respective Senior Counsel of both parties, this Court is of the opinion that when the plaintiff seeks a relief of mandatory injunction the burden lies upon him to establish the same by adducing legal and documentary evidence and the plaintiff cannot depend upon the weakness of the defendants case. In order to establish the case of the plaintiff as seen from the chief evidence affidavit of PW1 he categorically stated that he has been repeatedly requesting the defendants to register the Gift Settlement Deed in favour of Kapuluppada Gram Panchayat and obtain release of mortgaged plots at his cost and expenditure but the defendants have been postponing the same on one pretext or other. PW1 further stated in his evidence that he got issued a legal notice under the original of Ex.A18 to the defendants 1 to 3 and the defendants 1 to 3 received the same under Exs.A19 to Ex.A21 postal acknowledgments and the 3rd defendant gave a reply under Ex.A22 but the defendants 1 & 2 did not give any reply. PW1 further stated in his chief evidence that again he got issued another legal notice under the original of Ex.A23 to all the defendants and all the defendants received the said notice under Ex.A24 to A26 postal acknowledgments. He further stated in his evidence that as there was an omission certain plot numbers registerable to him, he got issued an addendum under the original of Ex.A27 and the defendants 1 to 3 received the same under Exs. A28 to A30 postal acknowledgments. As seen from conditions incorporated in Ex.A4 permission for approval of layout, condition

No.6 speaks that the deed of mortgage executed by the applicant in favour of 40 Spl.Judge, C.C/VSP COS 2/2018 (Old OS.No.389/2012)

Visakhapatnam Urban Development Authority is purely a measure to ensure compliance of the conditions of Development of infrastructure by the applicant/developer and the Visakhapatnam Urban Development Authority is no way accountable to the plots registered in the event of default by the applicant/developer. As per conditions No.9 of Ex.A4 of the layout, the applicant is directed to complete the above developmental works within a period of one year and submit a requisition letter for releasing of mortgage plots/area, which is in favour of Vice Chairman, Visakhapatnam Urban Development Authority duly enclosing letter in regard to roads, open spaces taken over by the Panchayat

Secretary, Kapuluppada Gram Panchayat. As per conditions No.12 of Ex.A14 the local authority, shall not approve and release any subject permission or allow any prior permission in the area under mortgaged to the Visakhapatnam Urban

Development Authority in particular and in other plots of the layout in general until and unless the applicant has completed the developmental works and then got release the mortgaged land from the Visakhapatnam Urban Development

Authority.

36. The learned Senior Counsel for defendants submits that the plaintiff could not complete with these legal formalities as the defendants did not come forward to execute the register Gift Settlement Deed and thereafter to execute necessary papers to obtain release of mortgaged plots. On the other hand, the learned Senior

Counsel for defendants 1 & 2 submits that as the plaintiff did not comply with the terms and conditions incorporated in Ex.A4 as such the plaintiff is not entitled to seek the relief of mandatory injunction.

37.In view of the submission made by the respective Senior Counsel of both parties, as seen from the cross-examination of PW1 who is the plaintiff in this suit, 41 Spl.Judge, C.C/VSP COS 2/2018 (Old OS.No.389/2012) he categorically admitted at page No.5 of his cross-examination that as per Exs.A1 and A2 Development Agreements he has to develop the land as per the

Visakhapatnam Urban Development Authority norms. PW1 further admitted in his cross-examination that the Visakhapatnam Urban Development Authority norms include the time fixed by Visakhapatnam Urban Development Authority for completion of the project. PW1 further admitted in his cross-examination that as per the time fixed by Visakhapatnam Urban Development Authority he has supposed to complete the above works within one year. He further admitted in his cross-examination that the defendants 1 & 2 have no role at all what so ever in the above physical aspects of the layout. PW1 further admitted in his cross- examination that the defendants 1 & 2 are cooperating him in corresponding with

Visakhapatnam Urban Development in the issues of the actual physical development of the land. Under Transfer of Property Act, mortgage is one of the modes of transfer of interest in an immovable property. As seen from the conditions contemplated in Ex.A4 it is evident that the Visakhapatnam Urban

Development Authority would release mortgage only in case the layout is completed in all respects as per its specifications. Admittedly, both parties have agreed to earmark the plots only after layout is completed. As per condition No.12 of Ex.A4 the local authority will not approve or release any building permission until and unless the developmental works are completed and the mortgaged plots are released. Ex.A31 relied upon by the plaintiff is the true copy of the demand notice issued by the Revenue Divisional Officer to the defendants demanding payment of Rs. 15,28,500/- (Rupees Fifteen Lakhs Twenty Eight thousand and five hundred only) + 50% penalty dated 24-06-2008. After receipt of the original of

Ex.A31 the 1st defendant got issued a reply under the original of Ex.A32 dated 04-07-2009. Ex.A39 is the copy of the order of Thasildar, Bheemunipatnam dated 42 Spl.Judge, C.C/VSP COS 2/2018 (Old OS.No.389/2012) 06-03-2010 directing the defendants to pay Rs. 15,28,500/- (Rupees Fifteen Lakhs

Twenty Eight thousand five hundred only) + 50% penalty after receipt of the said order under Ex.A33, the 1st defendant got issued a reply dated 21-03-2010 in pursuance of the order passed by the Tahsildar. EX.A35 is the Xerox copy of the letter dated 02-11-2012 addressed by the Visakhapatnam Urban Development

Authority to 3rd party insisting upon payment of NALA before releasing the mortgaged plots. Ex.A36 is the copy of the proceedings of the Revenue Divisional

Officer dated 07-01-2013 granting permission for conversion and the same is marked after comparing with the original. Ex.A39 and A41 are the original receipts issued by the Visakhapatnam Urban Development Authority in respect of the payment of the amount. As seen from the record admittedly, the plaintiff submitted an application under the original of Ex.A43 dated 19-01-2019 to the authorities of

Visakhapatnam Urban Development Authority for renewal of layout. Subsequent to the filing of the suit the authorities of Visakhapatnam Urban Development

Authority issued a show cause notice dated 17-11-2012 to the defendants under the original of Ex.A.45. Ex.A.45 relied upon by the plaintiff is the true copy of the show cause notice dated 17-11-2012 issued by the Visakhapatnam Urban

Development Authority as to why the layout permission should not be cancelled and mortgaged plots be sold within 15 days from the date of its receipt. After receipt of the original of Ex.A45 the 1st defendant got issued a reply under Ex.A46

dated 04-12-2012. Again the Visakhapatnam Urban Development Authority got

issued a show cause notice to the 1st defendant under original of Ex.A47 dated 13-05-2013 and after receipt of the same the 1st defendant got issued a reply under the original of Ex.A48 dated 18-05-2013 along with enclosures. Ex.A49 is the letter addressed by the Visakhapatnam Urban Development Authority to the 1st defendant with a request for release of mortgaged plots by paying an amount of 43 Spl.Judge, C.C/VSP COS 2/2018 (Old OS.No.389/2012)

Rs. 1,23,655/- (Rupees One Lakh Twenty three thousand Six hundred Fifty five only) towards penalty charges. After receipt of the original of Ex.A49 the 1st defendant got issued a reply under the original of Ex.A50. Ex.A51 is the receipt issued by Visakhapatnam Urban Development Authority in respect of payment of an amount of Rs. 1,23,655/- (Rupees One Lakhs Twenty three thousand Six hundred Fifty five only) by the 1st defendant. Ex.A52 is the information given by the Visakhapatnam Urban Development Authority to the plaintiff under Right to

Information Act. Right from the beginning the case of the defendants 1 & 2 is that the plaintiff did not approach the Court with clean hands and true facts as such he is not entitled to seek the relief of mandatory injunction by directing the defendants to execute a register Gift Deed in favour of Kapuluppada Gram Panchayat for release of mortgaged plots. In view of the submission made by the learned Senior

Counsel for defendants 1 & 2, the law is well settled that a person who seeks the relief of specific performance by way of mandatory injunction must come to the

Court with clean hands and true facts since the relief itself is a discretionary relief.

This Court is of the opinion that in the present suit the plaintiff did not approach the Court seeking the relief of mandatory injunction with clean hands and true facts as such he is not entitled to seek the said relief. Accordingly these issues 5 & 6 are decided in favour of the defendants and against the plaintiff.

38.Issue No.7: Is this suit as framed is maintainable?

So far as this issue is concerned this Court already discussed in detail while answering issues 1 to 4 and came to a conclusion that the plaintiff has committed breach of contract by transferring the contract to a partnership firm i.e., Satya

Construction by violating clause-14 of Ex.A1 Agreement and PW1 also admitted the said aspect in his cross-examination. This Court is of the opinion that when 44 Spl.Judge, C.C/VSP COS 2/2018 (Old OS.No.389/2012)

Ex.A1 contract was transferred to Satya Constructions the suitor shall be Satya

Constructions and it shall enforce the contract but not the plaintiff. The plaintiff individually cannot get benefit if any in this suit. As seen from the cross- examination of PW1 who is plaintiff in the suit he categorically admitted that Satya

Construction firm was established for the purpose of this layout only. He further admitted in his cross-examination that the project which is the subject matter of the suit at the beginning was in his individual name later it became the transaction of

Firm called Satya Constructions. PW1 further admitted in his cross-examination that Satya Constructions is not a party to the suit. In view of the admissions made by PW1 in his cross-examination this Court without any hesitation come to a conclusion that the suit as framed by the plaintiff in his individual capacity is not maintainable. Accordingly, this issue is answered.

39. Issue No.8: Whether the plaintiff is entitled to the relief of specific performance as prayed for?

So far as this issue is concerned, the learned Senior Counsel for plaintiff submits that the plaintiff has performed his part of the contract and the defendants have not performed their part of contract despite several requests of the plaintiff.

The learned Senior Counsel for plaintiff further argued that the plaintiff who is the developer of the layout is entitled to the relief of Specific performance. The learned Senior Counsel for plaintiff further argued that even though the plaintiff was ready and willing to perform his part of contact, the defendants did not come forward to perform their part of contract as per the terms of Ex.A1 Development

Agreement. The learned Senior Counsel for plaintiff further argued that as the defendants 1 & 2 are refusing to register the plots in favour of the plaintiff or his nominees as such the plaintiff got issued a legal notice to the defendants demanding them for execution of Sale Deeds in favour of the plaintiff. The learned 45 Spl.Judge, C.C/VSP COS 2/2018 (Old OS.No.389/2012)

Senior Counsel for plaintiff lastly contended that the plaintiff has completed the development of the layout in all respects as such the plaintiff is entitled to seek specific performance as prayed for. Hence, he prays the Court to direct the defendants to execute a registered Sale Deed infavour of the plaintiff or his nominees in respect of the plaint schedule property.

40.On the other hand, the learned Senior Counsel for defendants 1 & 2 submits that the plaintiff has not developed the layout as per the conditions and specifications of Visakhapatnam Urban Development Authority norms as such the plaintiff is not entitled to seek the relief of specific performance as prayed for. The learned Senior Counsel for defendants 1 & 2 further argued that the plaintiff has failed to perform his part of contract and the plaintiff himself has not satisfied the conditions of the approval accorded by the VUDA for development of the lay out and thereby the plaintiff has violated his part of the contract. The learned Senior

Counsel for defendants 1 & 2 further argued that the defendants 1 & 2 are ready and willing to execute the documents in favour of the plaintiff provided the plaintiff proves that he has fulfilled all the conditions of Ex.A4. The learned Senior

Counsel for defendants 1 & 2 further argued that the plaintiff is not ready and willing to perform his part of contract as such he is not entitled to seek the relief of specific performance. The learned Senior Counsel for defendants 1 & 2 further argued that mere taking a plea in the plaint that the plaintiff was always ready and willing to perform his part of contract is not sufficient and the plaintiff must prove with cogent evidence his readiness and willingness to perform his part of the contract at all material times. The learned Senior Counsel for defendants 1 & 2 lastly contended that the relief of specific performance is an equitable relief and it is within the discretion of the court and the court is not bound to grant the relief 46 Spl.Judge, C.C/VSP COS 2/2018 (Old OS.No.389/2012) merely because there is a valid agreement. Hence, he prays the court to dismiss the suit with costs.

41.In view of the submissions made by the respective Senior Counsel of both parties the law is well settled that in a suit for specific performance, the plaintiff should plead and prove that he was always ready and willing to perform his part of contract. Mere taking a plea in the pliant is not sufficient. The plaintiff must prove with cogent evidence his readiness and willingness to perform his part of contract all material times i.e., from the date of the contract till the date of the suit. The relief of specific performance is an equitable relief and it is within the discretion of the Court.

42.In the present case in order to establish the case of the plaintiff as seen from the evidence affidavit of PW1 who is the plaintiff in the suit he categorically stated that he is always ready and willing to perform his part of contract but the defendants did not come forward to perform their part of contract. PW1 further stated in his evidence affidavit there was no delay in completion of obligations on his part. PW1 further stated in his evidence affidavit that he has been always ready and willing to perform his part of contractual obligations and he did not delay the development of the layout and the layout is developed to the satisfaction of

Visakhapatnam Urban Development Authority. PW1 further stated in his evidence that despite several requests made by him the defendants 1 & 2 did not come forward to perform their part of contract.

43.In view of the specific peal taken by the plaintiff the burden to establish that he has been always ready and willing to perform his part of the contract is on the plaintiff in a suit for specific performance. The aspect of readiness and willingness is to be decided taking into consideration the entirety of facts and circumstances relevant to the intention and the conduct of the parties. The plaintiff has to cover 47 Spl.Judge, C.C/VSP COS 2/2018 (Old OS.No.389/2012) and also to prove his readiness and willingness to perform his part of the contract in a suit for specific performance. Right from the beginning the case of the defendants 1 & 2 is that the plaintiff has committed breach of contract and there was no earmarking of plots and the plaintiff also approached this Court with unclean hands as such he is not entitled to seek the relief of specific performance as prayed for. In view of the specific plea taken by the defendants 1 & 2 it is no doubt true that as per Section 16(c) of the specific relief Act, 1963 readiness and willingness on the part of the plaintiff is a condition precedent for obtaining relief of grant of specific performance. It is also clear that in a suit for specific performance, the plaintiff must allege and prove continues readiness and willingness to perform the contract on his part from the date of the contract. The onus is on the plaintiff.

44.It is settled law that even in the absence of specific plea by the opposite party, it is the mandate of the statute that the plaintiff has to comply with Section 16(c) of the Specific Relief Act and when there is non-compliance with this statutory mandate, the court is not bound to grant specific performance and is left with no other alternative but to dismiss the suit. It is also clear that readiness to perform must be established throughout the relevant points of time. “Readiness and willingness to perform the part of the contract has to be determined/ascertained from the conduct of the parties.

45.The factum of readiness and willingness to perform the plaintiff’s part of the contract is to be adjudged with reference to the conduct of the party and the attending circumstances. The court may infer from the facts and circumstances whether the plaintiff was ready and was always ready and willing to perform his part of the contract. In the present case as seen from the terms and conditions of

Ex.A1 Development Agreement it is clear that the parties have agreed to earmark 48 Spl.Judge, C.C/VSP COS 2/2018 (Old OS.No.389/2012) the plots only after layout is completed. As seen from the averments of the plaint there is no whisper that after the entire layout is completed in all respects, he got the extent of plotted area in the layout. When the plaintiff sought for specific performance he shall necessarily establish the actual plotted area covered by the suit schedule plots and the plots which have been already sold to his nominees. As seen from the cross-examination of PW1 who is the plaintiff in the suit he categorically admitted as per terms and conditions of Exs A1 & A2 Development

Agreements he has to develop the land as per Visakhapatnam Urban Development

Authority norms. There is no dispute in between the parties with regard to execution of Exs. A1 & A2 Development Agreements. As seen from the contents of Ex.A1 Development Agreement dated 22-02-2007 as per condition No.6 the “owners shall register the plots allotted to the developer share of 15%(within the total 26%) in favour of the developer or his nominees/3rd parties after the completion of B.T Roads and drainages and the remaining 11% of share shall be registered after the completion of the entire project as per Visakhapatnam Urban

Development Authority norms. As per condition No.9 of Ex.A1 Development

Agreement dated 22-02-2007 after completion of development, the developer of the owners will earmark plot numbers in their ownership and the developer shall be entitled for 26% of plots and the land owners shall execute and register the regular

Sale Deed/deeds or other conveyance deed in favour of the developer/nominees of the developer and the developer shall have the right to enter into agreements, receive consideration, issue receipts there for, without having to account for the same, execute such deeds infavour of such 3rd parties. In the present case right from the beginning the case of the defendants that as the plaintiff failed to fulfil the conditions of Ex.A1 within stipulated time and did not approach the court with clean hands and true facts as such the plaintiff is not entitled to seek the relief of 49 Spl.Judge, C.C/VSP COS 2/2018 (Old OS.No.389/2012) specific performance. In view of the specific plea taken by the defendants, as seen from the cross-examination of PW1 who is the plaintiff in the suit, he categorically admitted that as per the time fixed by the Visakhapatnam Urban Development

Authority he was supposed to complete the above works within one year. PW1 further admitted in his cross-examination that as per Exs.A1 & A2 Development

Agreements he has to develop the lands as per Visakhapatnam Urban Development

Authority norms. Admittedly, the defendants 1 & 2 did not come to the witness box to say anything on oath. This Court is of the opinion that merely because the defendants 1 & 2 did not adduce any evidence to substantiate their contention, the

Court is not supposed to grant the relief of specific performance as sought by the plaintiff unless and until the plaintiff establishes his readiness and willingness to perform his part of contract.

46.It is well settled that remedy for specific performance is an equitable remedy. The court while granting decree of specific performance exercises its discretionary jurisdiction. Section 20 of the Specific Relief Act specifically provides that the court’s discretion to grant decree of specific performance is discretionary but not arbitrary. Discretion must be exercised in accordance with sound and reasonable judicial principles.

47.The relief of specific performance is discretionary and it is not given merely because it is lawful to do so, but it is governed by sound judicial principles. The grant of the relief is the discretion of the court and cannot be claimed as a matter of right. But, however, the discretion shall not be arbitrary; it should be governed by

Rules and Principles. A person who seeks the relief of specific performance must come to the court with clean hands since the relief itself is a discretionary relief. In the present case as seen from the record it is clear that the plaintiff did not approach this Court seeking the relief of specific performance with clean hands 50 Spl.Judge, C.C/VSP COS 2/2018 (Old OS.No.389/2012) and true facts as such this Court not inclined to accept the contention of the learned

Senior Counsel for plaintiff. Accordingly this issue is answered in favour of the defendants and against the plaintiff.

48.Additional Issue No.1: Whether the plaintiff is entitled to the alternative relief of compensation of Rs. 2,72,47,320/- (Rupees Two Crores Seventy Two Lakhs Forty Seven Thousand Three hundred and twenty only)as prayed for?

So far as this issue is concerned, the learned Senior Counsel for plaintiff submits that as per Section 21 of the Specific Relief Act, 1963 the plaintiff is entitled to claim compensation as an alternative to specific performance. The learned Senior Counsel for plaintiff further argued that when there is no standard measure to ascertain the exact damages the plaintiff is entitled to claim compensation as an alternative relief basing on the market value of the property.

The learned Senior Counsel for plaintiff further argued that in the absence of standards measure of ascertainment of damages, compensation can be awarded basing on the market value of the property. The learned Senior Counsel for plaintiff further argued that if the court comes to a conclusion that the plaintiff is not entitled for the relief of specific performance the court has got discretion to award compensation to the plaintiff as an alternative relief as prayed by the plaintiff.

49.On the other hand, the learned Senior Counsel for defendants 1 & 2 submits that the plaintiff has committed breach of contract as such he is not entitled for alternative relief of compensation. The learned Senior Counsel for defendants 1 & 2 further argued that the plaintiff claiming the value of the property and not compensation. The learned Senior Counsel for defendants 1 & 2 further argued that the plaintiff is not entitled to seek the alternative relief of compensation as prayed for.

51 Spl.Judge, C.C/VSP COS 2/2018 (Old OS.No.389/2012)

50.In view of the submissions made by the respective Senior Counsel of both parties it is necessary to define Section 21 of the Specific Relief Act, 1963.

21. Power to award compensation in certain cases.— (1) In a suit for specific performance of a contract, the plaintiff may also claim compensation for its breach, either in addition to, or in substitution of, such performance.

(2) If, in any such suit, the court decided that specific performance ought not to be granted, but that there is a contract between the parties which has been broken by the defendant, and that the plaintiff is entitled to compensation for that breach, it shall award him such compensation accordingly.

(3) If, in any such suit, the court decides that specific performance ought to be granted, but that it is not sufficient to satisfy the justice of the case, and that some compensation for breach of the contract should also be made to the plaintiff, it shall award him such compensation accordingly.

(4) In determining the amount of any compensation awarded under this section, the court shall be guided by the principles specified in section 73 of the Indian Contract Act, 1872.

(5) No compensation shall be awarded under this section unless the plaintiff has claimed such compensation in his plaint: Provided that where the plaintiff has not claimed any such compensation in the plaint, the court shall, at any stage of the proceeding, allow him to amend the plaint on such terms as may be just, for including a claim for such compensation. Explanation.— The circumstance that the contract has become incapable of specific performance does not preclude the court from exercising the jurisdiction conferred by this section.

Provided that where the plaintiff has not claimed any such compensation in the plaint, the court shall, at any stage of the proceeding, allow him to amend the plaint on such terms as may be just, for including a claim for such compensation.

As seen from the provision of Section 21 of the Specific Relief Act, it is clear that the plaintiff is entitled to seek compensation as an alternative relief if the contract was broken by the defendant. In the present case this court already discussed in detail while answering issues 1 to 4 and came to a conclusion that the plaintiff himself has committed breach of contract by transferring the contract to a partnership firm by violating clause 14 of Ex.A1 Development Agreement as such 52 Spl.Judge, C.C/VSP COS 2/2018 (Old OS.No.389/2012) the plaintiff is not entitled to seek compensation under Section 21 of the Specific

Relief Act, 1963 as prayed for.

51.In order to substantiate the case of the plaintiff, the learned Senior Counsel for plaintiff relied upon a decision of the Hon’ble High Court of Andhra Pradesh reported in 2012(4)ALD Pg.183, in a case between CHINTAKAYALA

SIVARAMAKRISHNA Vs. NADIMPALLI VENKATA RAMA RAJU AND

OTHERS, wherein their Lordships of the Hon’ble High Court of Andhra Pradesh in para 68 of the judgment held that:

“According to clause (i) of the explanation to Section 10 of the 1963 Act there is a rebuttable presumption which operates in favour of purchasers that in the case of breach of a contract to sell immovable property the same cannot be adequately relieved by compensation in money. The appellant failed to plead any circumstances to show how this presumption could be rebutted, even before the trial Court. As seen from the facts of the decision relied upon by the learned Senior

Counsel for plaintiff are different to the present case”.

52.The law is well settled that having regard to Section 21 of the Specific Relief

Act when the contract becomes impossible with no fault of the plaintiff, Section 21 of the Specific Relief Act enables the Court to award compensation in lieu and substitution of the specific performance. The plaintiff is entitled to claim the amount of compensation as an alternative relief in a suit for specific performance if there was no fault on the part of the plaintiff. Section 21 of the Specific Relief Act specifically says that where the contract for no fault of the plaintiff becomes impossible enable the award of compensation in lieu and substitution of the specific performance. In the present case this Court already discussed in detail and came to a conclusion that the plaintiff has committed breach of contract and failed to perform his part of contract within the stipulated period of time and did not 53 Spl.Judge, C.C/VSP COS 2/2018 (Old OS.No.389/2012) approach the Court with clean hands and true facts as such he is not entitled to seek the alternative relief of compensation as prayed for. Accordingly, this issue is answered.

53.Additional Issue No.2: Whether the suit is valued properly for the purpose of Court fee?

So far as this issue is concerned, except taking a plea in the written statement by the defendants 1 & 2 that the suit is not valued properly for the purpose of Court fee nothing was placed before this Court. As seen from the averments of the plaint, the plaintiff valued the suit for the purpose of Court fee under Section 39(e) of the

Andhra Pradesh Court fee and suits valuation Act, and paid an amount of

Rs. 2,75,148/- (Rupees Two Lakhs Seventy Five thousand One Hundred Forty

Eight only) towards Court fee. As seen from the cross-examination of PW1 who is the plaintiff in this suit even no suggestion was made by the counsel for defendants 1 & 2 that the suit is not properly valued for the purpose of Court fee. Hence, in the absence of any material it cannot be said that the suit is not valued properly for the purpose of court fee. Accordingly, this issue is answered.

54.Issue No.9: To what relief?

By virtue of above discussion and by virtue of various contentions urged by the respective Senior Counsel of both parties this Court is of the opinion that the plaintiff failed to perform his part of contract and he has committed breach of contract by transferring the Contract to a partnership firm by violating clause 14 of

Ex.A1 Agreement and did not approach the Court with clean hands and true facts as such the plaintiff is not entitled to seek the reliefs as prayed for and the suit filed by the plaintiff deserves to be dismissed.

54 Spl.Judge, C.C/VSP COS 2/2018 (Old OS.No.389/2012)

55.In the result the suit filed by the plaintiff is dismissed. There shall be no order as to costs.

Dictated to the Personal Assistant, transcribed by her, corrected and pronounced by

me in the open court this the 13th day of June, 2022.

Sd/-XXX

Special Judge for trial and Disposal of

Commercial Disputes, Visakhapatnam.

APPENDIX OF EVIDENCE

WITNESS EXAMINED

Plaintiffs: Defendant PW1: Meka Atchuta Rama Rao NIL

No. of exhibits marked for

Plaintiff:

Ex.A1: Original Development Agreement dated 22-02-2007 between the plaintiff and defendants 1 & 2. Ex.A2: Original Development Agreement dated 27-05-2007 between the plaintiff and 3rd defendant. Ex.A3: Blue print original approved layout plan. Ex.A4: True Copy of proceedings No.RC.No.4188/07/L2, dated 05-01-2008 of the 4th Defendant approving the layout. Ex.A5: Certified copy of registered mortgage deed dated 28-12-2007 executed by the defendants in favour of VUDA. EX.A6: Certified copy of Sale deed executed by the defendants in favour of 3rd party dt.17.09.2008 bearing document No.3491/2008. EX.A7: Certified copy of Sale deed executed the defendants in favour of 3rd party

dt. 17.09.2008 bearing document No. 3492/2008.

Ex.A8: Certified copy of the Sale deed executed by the defendants in favour of 3rd party dt.17.09.2008 bearing document No.3493/2008. Ex.A9: Certified copy of the Sale deed executed by the defendants in favour of 3rd party dt. 10.11.2008 bearing document NO.3957/2008. Ex.A10: Certified copy of the Sale Deed executed by the defendants in favour of 3rd party dt.10.11.2008 bearing document No.3958/2008. Ex.A11: Certified copy of the Sale deed executed by the defendants in favour of 3rd party dt. 10.11.2008 bearing document No.3959/2008. EX.A12: Certified copy of the Sale deed executed by the defendants in favour of 3rd party dt. 10.11.2008 bearing document No.4045/2008. Ex.A13: Certified copy of the Sale deed executed by the defendants in favour of 3rd party dt.19.11.2008 bearing document NO.4045/2008. Ex.A14: Certified copy of the Sale deed executed by the defendants in favour of 3rd party dt.19.11.2008 bearing document No.4046/2008. Ex.A15: Certified copy of the Sale deed executed by the defendants in favour of 3rd party dt.19.11.2008, bearing document No.4047/2008. Ex.A16: Certified copy of the Sale Deed executed by the defendants in favour of 3rd party dt.13.04.2011 bearing document No.1113/2011. Ex.A17: Completion certificate dt.22.04.2009 issued by Assistant Engineer Operation section APEPDCL. Ex.A18: Office copy of Legal Notice dt.18.08.2011got issued by the plaintiff. Ex.A19: Postal acknowledgment of D1. Ex.A20: Postal acknowledgment of D2.

55 Spl.Judge, C.C/VSP COS 2/2018 (Old OS.No.389/2012)

Ex.A21: Postal acknowledgment of D3. Ex.A22: Reply notice got issued by D3 dt. 16.09.2011. Ex.A23: Office copy of final legal notice got issued by the plaintiff dt.18.05.2012. Ex.A24: Postal Acknowledgment of D1. Ex.A25: Postal Acknowledgment of D2. Ex.A26: Postal Acknowledgment of D3. Ex.A27: Office copy of addendum to the final notice got issued by the plaintiff dt.02.06.2012. Ex.A28: Postal Acknowledgment of D1. Ex.A29: Postal Acknowledgment of D2. Ex.A30: Postal Acknowledgment of D3. Ex.A31: True copy of the notice issued by R.D.O to the defendants demanding payment of Rs. 15,28,500/-+50% penalty dt.24.06.2008. Ex.A32: Office copy of reply dt.04.07.2009 given by the 1st defendant in pursuance of the notice received from the R.D.O. Ex.A33: Original order of Thasildar dated 06-03-2010 directing the defendants to pay Rs. 15,28,500/- (Rupees Fifteen Lakhs Twenty Eight thousand five hundred only) +50% penalty dt.06.03.2010. Ex.A34: Office copy of the reply given by the 1st Defedant dated 27.03.2010 in pursuance of the Order passed by the Thasildar. Ex.A35: Xerox True copy of the letter dated 02.11.2012 addressed by VUDA to 3rd party insisting upon payment of NALA before releasing the mortgaged plots. Ex.A36: Photostat copy of the proceedings of the R.D.O dated 07.01.2013 granting permission for conversion (copy compared with the original then only it is marked as Ex.A36). Ex.A37: Copy of the G.O.Ms.No.276 dated 02.07.2010. Ex.A38: Office copy of the letter dated 26.05.2011 addressed by the plaintiff to VUDA seeking extension of time along with payment. Ex.A39: Original receipt dated 30.05.2011 issued by VUDA. Ex.A40: Office copy of letter dated.12.07.2011 addressed by the 1st defendant to VUDA seeking extension of time along with payment. Ex.A41: Original receipt issued by VUDA dt. 16.07.2011. Ex.A42: True copy of order dated 08.11.2011 from VUDA extending time up to 04.01.2012. Ex.A43: Office copy of application dt.19.01.2012 submitted by the 1st defendant to VUDA for renewal of layout. Ex.A44: Receipt issued by VUDA dt. 30.01.2012. Ex.A45: True copy of show cause notice dated 17.11.2012 issued by VUDA. EX.A46: Office copy of reply dated 04-12-2012 given by the 1st defendant. Ex.A47: Copy of notice issued by VUDA dr.13.05.2013. Ex.A48: Office copy of reply dated 18.05.2013 got issued by the 1st defendant along with enclosures. Ex.A49: True copy of the letter issued VUDA dated 03.09.2013. Ex.A50: Office copy of reply dated 15.09.2013 got issued by the 1st defendant along with enclosures. Ex.A51: Receipt issued by VUDA dated 25.09.2013. Ex.A52; Letter issued by VUDA dt.03-10-2015 along with enclosures under Right to Information Act. DEFENDANTS: NIL Sd/-XXX Spl.Judge Commercial Court/VSP 56 Spl.Judge, C.C/VSP COS 2/2018 (Old OS.No.389/2012)

Date of presentation:31.07.2012 Date of filing : 07.09.2012

IN THE HON’BLE COURT OF THE SPECIAL JUDGE FOR TRIAL AND DISPOSAL OF COMMERCIAL DISPUTES: VISAKHAPATNAM

Present: G. Vallabha Naidu

Special Judge for Trial and Disposal of

Commercial Disputes, Visakhapatnam. Monday, this the 13th day of June, 2022 COS. No.2 /2018 (Old O.S.No.389/2012) Between: Meka Atchuta Ramarao, aged 46 years, Businessman, son of Late Satyanarayana Murthy, resident of Flat No.204, Sampath Arcade, Narasimha Nagar, Visakhapatnam 530024. …. Plaintiff And:

1. Kakarlapudi Suryanarayana Raju, aged around 68 years, Hindu, S/o. Late Sambasiva Raju, resident of Door No.54-11-66, Gazetted Officers Colony, H.B.Colony, Visakhapatnam 530022.

2. Smt.Kakarlapudi Sarojini Devi, aged around 59 years, Hindu, W/o. Suryanarayana Raju, resident of Door No.54-11-66, Gazetted Officers Colony, H.B.Colony, Visakhapatnam 530022.

3.Vytla Narayana Rao, aged around 48 years, Hindu, S/o. Janaki Ramayya, resident of Door No.50-96-8/2, Seethammadhara (North Extension), Visakhapatnam 530013.

…..Defendants

Suit for (a) mandatory injunction by directing the defendants to execute and register the open spaces etc., of approved layout No.1 of 2008 by way of Registered Gift Settlement Deed in favour of Kapuluppada Grampanchayat, Bheemunipatnam Mandal, Visakhapatnam represented by its Panchayat Secretary and for (b) a mandatory injunction by directing the defendants to execute necessary papers and documents so as to obtain release of plots Nos.16 to 34, 84 to 91 of approved layout 1/2008 mortgaged in favour of Visakhapatnam Development Authority, at the cost and expenses of the plaintiff and (c) to specifically enforce the Agreements dt.2-02-2007 and 27-05-2007 by directing the defendants to execute and register, at the cost and expenses of the plaintiff (or) alternatively, if the court comes to the conclusion that Specific Performance cannot be granted in such an event to award compensation of Rs. 2,72,47,320/- (Rupees Two Crores Seventy Two Lakhs Forty Seven Thousand Three Hundred and twenty only) under Section 21 of the Specific Relief Act, 1963 and for such other reliefs and for costs of the suit.

The value of the suit for the purpose of Court fee and jurisdiction is Rs.2,72,47,320/- (Rupees Two Crores Seventy Two Lakhs Forty Seven Thousand Three Hundred and Twenty only) and a Court fee of Rs. 2,74,926/- (Rupees Two Lakhs Seventy Four thousand Nine Hundred Twenty Six only) is paid under Sec.39(e) of APCF and S.V.Act.

…..Defendants

This suit has come up for arguments before me on 14-03-2022 in the presence of Sri.K.Ravi, Advocate for Plaintiff Sri.V.V.Ravi Prasad & J.V.Rama Krishna, Advocates for D1 & D2 57 Spl.Judge, C.C/VSP COS 2/2018 (Old OS.No.389/2012) and Sri.N.S.V.Reddy, Advocate for 3rd defendant and this matter having heard and stood over for consideration till this day, this Court doth judgment: and

DECREE

1.that the suit be and the same is hereby dismissed; and

2.that there shall be no order as to costs.

Given under my hand and seal of the Court, this the 13 th day of June, 2022.

Sd/-XXX

Special Judge for trial and Disposal of

Commercial Disputes, Visakhapatnam

MEMORANDUM OF COSTS.

No cost memo is filed on either sides.

Sd/-XXX

Spl.Judge Commercial Court/VSP * The copy of schedule is herewith attached.

IN THE COURT OF THE PRINCIPAL SENIOR CIVIL JUDGE-CUM-APPELLATE

COURT OF RENT CONTROL CASES AT VISAKHAPATNAM

PRESENT: SRI G.VALLBHA NAIDU,

PRINCIPAL SENIOR CIVIL JUDGE

VISAKHAPATNAM

Wednesday, this the 17th day of February, 2016

R.C.A.11/2012

Between:

Yerrabolu Muralikrishna, S/o.Late Pakiru, Hindu, aged 40 years, Business, D.No.28-11-30, Suryabagh, Visakhapatnam.

..Appellant

And: Relangi Sriramulu, S/o.Late Narayana, Hindu, aged 75 years, D.No.28-11- 13/1, Retired Employee, Suryabagh, Visakhapatnam.

..Respondent

MEMORANDUM OF APPEAL FILED UNDER SECTION 20 OF A.P. BUILDINGS [LEASE, RENT AND EVICTION] CONTROL ACT 1960 AGAISNT THE JUDGMENT PASSED IN R.C.C.8/2008, DT.25.09.2012 ON THE FILE OF RENT

CONTROLLER-CUM- IV ADDITIONAL JUNIOR CIVIL JUDGE AT

VISAKHAPATNAM.

Between:

Relangi Sriramulu, S/o.Late Narayana, Hindu, aged 75 years, D.No.28-11- 13/1, Retired Employee, Suryabagh, Visakhapatnam.

..Petitioner

And:

Yerrabolu Muralikrishna, S/o.Late Pakiru, Hindu, aged 40 years, Business, D.No.28-11-30, Suryabagh, Visakhapatnam.

..Respondent

This appeal coming on 12.02.2016 for final hearing before me in the presence of Sri M.Satyanarayana, Advocate for Appellant and of Sri A.Kameswara Rao, Advocate for respondent, and this court having stood over for consideration till this day, the court delivered the following:

ORDER

The tenant filed the appeal under Section 20 (1) of A.P Buildings (Lease, Rent, Eviction) Control Act, 1960, hereinafter referred to as 'the Act' against the order of eviction passed in R.C.C.8/2008 dated 25.09.2012 on the file of Rent Controller-cum-IV Additional Junior Civil Judge, Visakhapatnam.

2.For the sake of convenience, the array of parties as arraigned

before the learned Rent Controller will be referred hereinafter i.e., the

appellant herein is referred to 'as respondent' and the respondent herein is referred to 'as the petitioner'.

3.The brief case of the petitioner is that: He is the owner of the petition schedule property and the respondent took the schedule property on lease on 24.11.1995 on monthly rent of Rs.1100/- and paid an amount of

Rs.25,000/- as advance and a lease agreement was executed in between both parties. As seen from the terms of the lease agreement after expiry of the lease period of three years the respondent should vacate the premises and hand over the same to the petitioner without any damage. When the respondent did not vacate the schedule property, the petitioner approached the respondent and demanded to vacate the schedule premises and hand over the same to him. The respondent requested the petitioner to grant one year time to enable him to vacate the same after getting the accommodation in the meanwhile. The respondent did not keep his promise and did not vacate the schedule premises and gave adamant reply to the petitioner that he would vacate the premises after accommodation is available. In the month of

February 2003 the petitioner and his son and a middle man questioned the respondent about his highhandedness from not vacating the premises and the respondent in the presence of the mediators promised to vacate and hand over the same to the petitioner and also agreed to pay rent at Rs.1,900/- per month. When the petitioner insisted for written commitment, the respondent did not agree. It is further averred in the petition that at the intervention of the elders, the petitioner agreed to extend one year time and also agreed to receive rent at Rs.1900/- per month. Even after one year the respondent did not vacate and hand over the petition schedule property to the petitioner and has been postponing the same on one pretext or other. It is further averred in the petition that the respondent has been paying rent at Rs.1900/- per month from February 2003 and the respondent made construction of structure without permission of the petitioner and using the same. The respondent has been occupation of the schedule premises since February 2003 and the rent in the schedule premises is at Rs.5,000/- per month as per the present prevailing rate. The respondent is not having any leasehold right and cannot be a statutory tenant. It is further averred in the petition that the petitioner is a old man, aged about 75 years and had four sons out of them one is employee and the other three persons have no employment and he is one unmarried daughter and wife and he is getting Rs.4,000/- per month as pension and residing in rented house. The petitioner intends to construct a house for residence and shop room for opening business to his sons and the petitioner requires the schedule premises for his personal occupation. The petitioner repeatedly requested the respondent to vacate and hand over the schedule premises but the respondent has been postponing the same on one pretext or the other and also threatened the petitioner and his family members with dire consequences. The respondent filed a suit i.e., O.S.508/2007 for permanent injunction against the petitioner and obtained an exparte injunction in

I.A.598/2007 against the petitioner by filing suit on the file of Principal Junior

Civil Judge, Visakhapatnam. It is further averred in the petition that the

schedule premises was constructed about 15 years back and the rent is

Rs.900/- per month, as such, this Court has got jurisdiction. Under these circumstances, the petitioner filed the present petition praying the Court to evict the respondent from the schedule premises on the ground of personal occupation of the petitioner and for such other reliefs and for costs of the petition.

4

4.The respondent/tenant contested this petition by filing

counter denying all the allegations made in the petition. The

contention of the respondent/tenant as per the counter that: The petition filed by the petitioner is not maintainable either under law or on facts.

It is further averred in the counter of the respondent/tenant that the petition schedule premises is let out by the petitioner to him on 24.11.1995 on monthly rent of Rs.1100/- and he paid an amount of Rs.25,000/- as goodwill and the said amount is to be refunded at the time of vacation of the premises without interest. As per the terms of the lease the term of lease is only for a period of three years and original lease deed is lying with the petitioner. It is further averred in the counter of the respondent/tenant that he has been regularly paying monthly rent at Rs.1100/- per month up to date and there is no arrear in payment of monthly rent. In the year 2003 the petitioner approached the respondent and requested for enhancement of the rent and also further advance of goodwill amount. The respondent is running Sree Satya Sai Printing

Press in the petition schedule premises by engaging employees, as such this

Court has no jurisdiction to try the RCC. It is further averred in the counter of the respondent/tenant that at the time of occupation of the premises he invested a sum of Rs.30,000/- for renovation and invested a sum of Rs.5,000/- for the purpose of Electrical Service Connection and he agreed to enhance the rent from Rs.1100/- to Rs.1900/- as per the demand of the petitioner in the year 2003 onwards and paid an amount of Rs.39,000/- as goodwill to the petitioner in addition to Rs.25,000/-. The term of lease agreed between the parties is 1st September 2003 as 8 years and the petitioner agreed to refund the goodwill amount of Rs.99,000/-including the amount spent for renovation.

Electrical Service Connection is lying with the petitioner and the petitioner is liable to be refunded the said amount at the time of vacation of the said premises without interest. The petition filed by the petitioner is premature and it is liable to be dismissed. It is further averred in the counter that he filed a suit for injunction i.e., O.S.508/2007 on the file of Principal Junior Civil Judge's

Court, Visakhapatnam and the same is pending. Except the petition schedule 5 premises there is no other premises to him for running his business and he invested huge amount for the purpose of printing press and there are number of customers, who are arrears of payment of bills, if it is vacated he will sustain huge and irreparable loss and there is no other livelihood to him except the petition schedule premises. Himself and his family members relying on the business. The petitioner filed the petition with a mala-fide intention with a view to evict him from the schedule premises. There is no cause of action to file the petition. Hence, the respondent prays the Court to dismiss the petition with costs.

5.Before the learned Rent Controller, the petitioner was examined as P.W.1 and Exs.P-1 to P-4 were marked.

6.On behalf of the respondent, R.Ws.1 and 2 were examined and no documents were marked.

7.The learned Rent Controller after considering oral and documentary evidence adduced by both parties passed the impugned order

dated 25.09.2012 in R.C.C.8/2008 by directing the tenant to vacate the

petition schedule premises within one month from the date of the order, if the respondent fails to vacate the said premises, the petitioner can evict the respondent from the said petition schedule premises by way of executing the order under due process of law.

8.Aggrieved by the order passed passed by the learned Rent

Controller in R.C.C.8/2008 dated 25.09.2012 the appellant filed the appeal contending that (a). The order passed by the learned Rent Controller is contrary to law, weight of evidence and probabilities of the case; (b). The learned Rent Controller ought to have dismissed the RCC in view of the admission made by P.W.1 that he is unaware about the contents of the chief affidavit; (c). The learned Rent Controller ought to have dismissed the RCC in view of findings in Issue No.1; (d). The learned Rent Control Court committed a grave error in deciding the issue without verifying the deposition of P.W.1 during the course of cross-examination with regard to his residence and failure of business; (e). The learned Rent Controller ought to have dismissed the RCC 6 that the schedule mentioned premises is not at all required for his personal use and occupation as he let out the road facing shop room to others for higher rent and the learned Rent Control Court ought to have dismissed the RCC in view of non production of the Lease Deed; (f). The learned Rent Controller committed grave error in holding there is no bona-fide material placed by the appellant/respondent with regard to investment of the amount is contrary to that of admission made by P.W.1 during the cross-examination; (g). The learned Rent Controller did not appreciate the evidence in proper manner and decided the third issue without evidence or proof; (h). the learned Rent

Controller ordered in allowing the RCC without framing an issue with regard to jurisdiction; (i). The findings of the learned Rent Controller with regard to bona-fide requirement of the premises is erroneous and against the law; (j).

The learned Rent Controller passed eviction order without deposit of the amount before the Court by the appellant/respondent.

9.Heard on both sides.

10.The following points that arises for consideration are:

(1).Whether the petitioner is entitled to seek eviction of tenant on the ground of his own use and occupation?

(2). Whether the petitioner is entitled to evict the respondent from the petition schedule premises?

(3). Whether the Rent Controller has jurisdiction to entertain the petition filed by the petitioner?

(4). Whether there are any legal and valid grounds to interfere with the impugned order dated 25.09.2012 passed by the learned Rent Controller in R.C.C.8/2008?

(5). To what relief?

11.The learned counsel for appellant submits that the petitioner/landlord has not established his bona-fide requirement. He further argued that the finding of the learned Rent Controller is erroneous and against law and those findings are liable to be set aside by the appellate authority.

The learned counsel for respondent/appellant further argued that the admissions of P.W.1 during the cross-examination are sufficient to dismiss the petition filed by the petitioner. The learned counsel for respondent/appellant 7 further argued that the petition schedule premises is non residential premises and it is not useful for residential purpose and there is no legal evidence adduced by the petitioner that the schedule premises is required for his personal use and occupation or even for his sons business. The learned counsel

for respondent/appellant further argued that the bona-fide requirement of the

schedule premises is only a mala-fide intention with a view to evict the tenant from the petition schedule premises. The learned counsel for respondent/appellant further argued that the petition schedule premises is not useful for residential purpose and the said premises is useful for commercial purpose only. The learned counsel for appellant further argued that the Rent

Control Court has no jurisdiction to try the matter as the schedule premises is being used as manufacturing industry. Hence, he prays the Court to allow the appeal filed by the respondent/appellant by setting aside the order passed by the learned Rent Controller in R.C.C.8/2008.

12.On the other hand, the learned counsel for petitioner submits that the petitioner is an old man aged about 75 years and the petitioner requires the petition schedule premises for his personal occupation. The learned counsel

for petitioner further argued that the petitioner had four sons out of them one

is employed and other three sons have no employment and the petitioner had one unmarried daughter and wife and he is getting Rs.4,000/- per month as pension, which is not sufficient for their maintenance. The learned counsel for petitioner further argued that the petitioner intends to construct a house for his residence and also shop room for opening business to his sons. The learned counsel for the petitioner further argued that the petitioner requested the respondent to vacate the petition schedule premises but the respondent/appellant did not vacate the same and postponing the same on one pretext or the other. The learned counsel for petitioner further argued that except the schedule premises, the petitioner has no other house for his personal occupation and the petitioner is intending to make construction in the schedule premises after removing the present structure for his residence and also for business purpose to their unemployed sons to eakout their livelihood.

8

The learned counsel for petitioner further argued that the learned Rent

Controller has rightly come to conclusion and ordered eviction of the respondent from the petition schedule premises and there is no illegality and irregularity in the reasoned order passed by the learned Rent Controller in

R.C.C.8/2008 dated 25.09.2012. Hence, he prays the Court to dismiss the appeal with costs.

13.In order to substantiate the case of both parties the respective counsel of both parties filed detailed written arguments.

14.POINT NO.3:-

Whether the Rent Controller has jurisdiction to entertain the petition filed by the petitioner?

The onus to prove this point lies on appellant/respondent. The learned counsel for appellant/respondent submits that the Rent Control Court has no jurisdiction to try the matter, as the schedule premises is being used as manufacturing industry and the appellant/respondent is mainly relying on the business as source of income. In view of the submission made by the counsel

for the appellant/respondent as seen from the contents of the counter filed by

the appellant, he took a specific plea that the learned Rent Control Court has no jurisdiction to try the petition filed by the petitioner under Section 10 of

Andhra Pradesh Buildings (Lease, Rent and Eviction) Control Act, 1960. The main contention of the counsel for the appellant/respondent that the respondent is running Sree Satya Sai Printing Press in the schedule mentioned premises by engaging employees. Hence, the Rent Control Court has no jurisdiction to try the petition filed by the petitioner. In order to substantiate the contention of the counsel for the respondent/appellant, as seen from the cross-examination of P.W.1, the counsel put a specific suggestion that the Rent

Control Court has no jurisdiction to entertain the petition filed by him but

P.W.1 denied the said suggestion. In order to substantiate the contention of the counsel for the appellant he also filed some photographs. As seen from the cross-examination of P.W.1, he categorically stated that the appellant is using the schedule mentioned premises for Manufacturing of Books and Printing 9

Press. This Court is of the view that when the petitioner/landlord seeks the petition schedule premises for his personal occupation, even assuming for argument sake that the appellant running a Printing Press in the schedule premises it cannot be said that the Rent Control Court has no jurisdiction to entertain the petition filed by the Petitioner/Landlord. As seen from the cross- examination of R.W.1, he categorically admitted that there is specific mention in the agreement that he shall hand over the possession after completion of three years. Except taking a plea there is no iota of legal evidence to establish the case of the appellant that the Rent Control Court has no jurisdiction to entertain the petition filed by the landlord. Hence, this Court is not inclined to accept the contention of the counsel for appellant.

15.POINT No.1:

Whether the petitioner is entitled to seek eviction of tenant on the ground of his own use and occupation?

Sofar as this point is concerned, the burden is on the petitioner/landlord to prove that the schedule premises is required for his own use and occupation, if the petitioner/landlord is able to establish the same by adducing satisfactory evidence, then the burden shifts on the appellant/respondent to prove that the petitioner with a view to evict him filed the petition on the ground of his own use and occupation. The learned counsel

for petitioner/landlord submits that the petitioner required the petition

schedule premises for his personal occupation, as the petitioner had four sons, out of them one son is employed and other three sons have no employment and petitioner had unmarried daughter and wife and they are residing in rented house. The learned counsel for petitioner further argued that the petitioner intends to construct house for residence and shop room for opening business to his sons, as such, he required the schedule premises for personal occupation.

16.On the other hand, the learned counsel for appellant/respondent submits that the appellant/respondent invested huge amount for the purpose of Printing Press. He further argued that except the schedule mentioned 10 premises there is no other premises to respondent/appellant for running his business. The learned counsel for respondent/appellant further argued that the petitioner/landlord filed the present petition with a view to evict the respondent.

17.In view of the submission made by the respective counsel of both parties, the initial burden is on the petitioner/landlord to prove that the petition schedule premises is required for his own use and occupation. In the present case, in order to establish the case of the petitioner P.W.1 was examined

before the learned Rent Control Court and Exs.P.1 to P.4 were marked.

18.It is an undisputed fact that the petitioner is a landlord and the respondent is tenant in respect of the petition schedule premises. Admittedly, there is no dispute with regard to payment of rent. It is not the case of the petitioner/landlord that the respondent committed default in payment of rent.

As seen from the cross-examination of P.W.1, he categorically admitted that the respondent did not commit default in payment of rent. As seen from the order passed by the learned Rent Controller in R.C.C.8/2008 in Para 12 at Page 4 of the order of the learned Rent Controller, he came to conclusion that there is no willful default in payment of rent on the part of the appellant/respondent.

The main contention of the petitioner that he required the petition schedule premises for his personal occupation. In order to substantiate the case of the petitioner, as seen from the evidence affidavit of P.W.1, he categorically reiterated all the contents of the petition filed by him. As seen from the cross- examination of P.W.1, he categorically stated that he required the schedule mentioned premises for his personal use and occupation. On the other hand, in order to substantiate the case of the appellant/respondent R.Ws.1 and 2 were examined. As seen from the evidence affidavit of R.W.1, who is the appellant, he categorically reiterated all the contents of the counter. As seen from the cross-examination of R.W.1, he categorically stated that he does not know whether the petitioner is residing in a rented house. The landlord has every right to seek eviction of a tenant on the ground that the landlord bona-fidely required the premises for his own use and occupation. In the present case, 11 admittedly, the petitioner had three unemployed sons and he requires the petition schedule premises for his personal occupation and for establishing business of his unemployed sons and for construction of the building. As seen from the evidence of P.W.1, he categorically stated that he is residing in rented house along with his family. The landlord has every right to reside in his own property. Whenever he required for his personal occupation he has got right to evict the tenant under due process of law. In the present case, there is no iota of evidence to show that the petitioner has got alternative premises. The learned counsel for appellant submits that the admissions made by P.W.1 itself is sufficient to brush aside his case. In view of the submission made by the counsel for the appellant, as seen from the cross-examination of P.W.1, he categorically stated that he does not know the contents of his chief affidavit and he does not know, who prepared his chief affidavit. Admittedly, the petitioner is an old man aged about 75 years. As seen from the cross- examination of P.W.1, he categorically stated that he is aged about 75 years and he is not in position to do any work or business due to old age and ill- health. The appellant/respondent in order to establish his contention also examined R.W.2. As seen from the evidence of R.W.2, his evidence is noway helpful to substantiate the case of the appellant/respondent. As seen from the cross-examination of R.W.2, he categorically admitted that the petitioner had three unemployed sons and the petitioner is a retired railway employee and getting Rs.4,000/- pension and he has no other source of income. R.W.2 further admitted in his cross-examination that the petitioner is residing in a rented house. In view of specific admissions made by R.Ws.1 and 2 in their cross-examination it can be safely come to conclusion that the petitioner has established his bona-fide requirement of petition schedule premises for his personal use and occupation. Hence, this Court is not inclined to accept the contention of the counsel for appellant.

19.The learned counsel for respondent/appellant further argued that the schedule mentioned premises is not at all useful for personal use and occupation of the petitioner/landlord and filed the petition with a view to evict 12 the respondent. The further contention of the counsel for the appellant that the plea of bona-fide requirement of the schedule premises is only a mala-fide intention without any truth. In order to substantiate his contention, the counsel

for the appellant relied upon a decision reported in Syed Abdul Wahab Vs.

Dr.Wilfred D'Souza, [2011(1) ALD 93], wherein his Lordship of the

Honourable High Court of Judicature at Hyderabad held that “the requirement

of the landlord should not be a mere desire. Requirement must be higher than a mere desire, that means the landlord must require the premises and it must be for his business or it must be an additional requirement for his business”.

20.In the present case, the petitioner/landlord required the premises for the purpose of his own use and occupation as he had three unemployed sons and he is residing in a rented house and he intends to construct a house for residence and shop room for opening business to his sons.

19.The learned counsel for appellant/respondent submitted that the learned Rent Controller erroneously framed Point No.3 i.e., whether the petitioner is entitled for the benefit under Section 10(c) of the act without pleading and answered the issue in favour of the petitioner/landlord without evidence. In view of the submission made by the counsel for the appellant, as seen from the record, the learned Rent Controller has framed Point No.3 and discussed the said point in detail and gave a finding in favour of the petitioner in respect of the said point. As seen from the contents of the petition filed by the petitioner in Page No.3 in Para (c), the petitioner specifically stated that the petitioner is an old man aged about 75 years. Basing on the said pleading the learned Rent Controller has framed the Point No.3 in his order. The contention of the learned counsel for petitioner/landlord that the petitioner is a old man aged about 80 years and he is entitled for the benefit under section 10(c) of the Act. In view of the submission made by the respective counsel of both parties, as seen from the evidence adduced by the petitioner as P.W.1, he categorically stated that he is aged about 80 years. Admittedly, the petitioner is a retired employee. As seen from the cross-examination of R.W.2, he categorically admitted that the petitioner is retired railway employee. It is not 13 the case of the appellant that the petitioner is not entitled the benefits as provided under Section 10(c) of the Act. More over, the appellant/respondent did not deny the age of the petitioner. Section 10(c) of the A.P.Buildings (Lease, Rent and Eviction) Control Act, 1960 says “a person who is the age of 65 years or more and the premises left out by him, is required for use by him or for his family or for anyone originally living with him as the case may be for use he may apply to the Court for recovery of immediate possession of such premises”. Sub Section 1(c) of the Act specifies that “the person, who is aged 65 years or more is entitled to recover the possession of such premises if he requires”.

21.In the present case, there is no dispute that the petitioner is aged about 75 years as on the date of petition and also retired railway employee, as such the petitioner is entitled the benefit as provided under the said provision.

22.The learned counsel for appellant/respondent in order to substantiate his contention also relied upon a decision reported in Duggi

Veera Venkata Gopala Satyanarayana Vs. Sakala Veera Raghavaiah

and another [AIR 1987 Supreme Court 406], wherein their Lordships of the Honourable Supreme Court held that “Any amount of proof offered without appropriate pleading is generally of no relevancy”. But in the present case, the petitioner specifically mentioned in his petition that he is retired employee and aged about 75 years by the date of filing of the petition. Basing on the said pleading only the learned Rent Controller has framed the Point No.3 and gave a clear finding with regard to the said point. As seen from the facts of the decision relied upon by the counsel for the appellant are different to the facts of the present case. Hence, this Court is not inclined to accept the contention of the counsel for appellant/respondent.

23.In the light of the pleadings and also the evidence let in by the parties, this Court is of the view that the petitioner has established his bona- fide requirement of the petition schedule property for his personal occupation and use by adducing satisfactory evidence. Accordingly, this point is answered in favour of the petitioner/landlord and against the appellant/respondent.

14

24.POINT No.2:

Whether the petitioner is entitled to evict the respondent from the petition schedule premises?

So far as this point is concerned, this Court already discussed in detail with regard to Point Nos.1 and 2 and came to conclusion that the petitioner/landlord has established his bona-fide requirement of the petition schedule property for himself and his family members for personal occupation and also entitled for the benefit provided under Section 10(c) of the Act. As seen from the cross-examination of P.W.1 except putting suggestions nothing was elicited to disbelieve his testimony. Considering the evidence of P.W.1 and coupled with the documents relied upon by the petitioner, this Court is of the view that the petitioner is entitled to evict the respondent from the petition schedule premises. Accordingly, this point is answered in favour of the petitioner/landlord and against the appellant/respondent.

25.POINT No.4:-

Whether there are any legal and valid grounds to interfere with the impugned order dated 25.09.2012 passed by the learned Rent Controller in R.C.C.8/2008?

I have gone through the impugned order passed by the learned

Rent Controller in R.C.C.8/2008 dated 25.09.2012. The learned Rent Controller has rightly come to conclusion and ordered eviction of the tenant by directing him to vacate the petition schedule premises within one month from the date of order, if he fails to vacate the said premises the petitioner can evict the respondent from the petition schedule premises by way of executing the order under due process of law. As seen from the order passed by the learned Rent

Controller in R.C.C.8/2008 dated 25.09.2012, the learned Rent Controller has rightly come to conclusion and ordered eviction. This Court is of the view that there are no legal and valid grounds to interfere with the reasoned order passed by the learned Rent Controller and there are no infirmities in the impugned order calling inference. The point is answered accordingly.

26.POINT No.5:-

To what relief?

15

In view of my findings above, and in the result,

(a). the appeal is dismissed with costs confirming the eviction order dated 25.09.2012 passed by the learned Rent Controller-cum-IV Additional Junior

Civil Judge, Visakhapatnam in R.C.C.8/2008; and

(b). the respondent/tenant shall vacate and deliver vacant possession of schedule property to the petitioner/landlord within one month from today.

Dictated to the Stenographer Grade-III, transcribed by him, corrected and pronounced

by me in open court, this the 17th day of February, 2015.

PRINCIPAL SENIOR CIVIL JUDGE

VISAKHAPATNAM

APPENDIX OF EVIDENCE

No oral or documentary evidence is adduced on either side.

PRINCIPAL SENIOR CIVIL JUDGE

VISAKHAPATNAM

1 II ACMM COURT, VSP

CC.No.93/2011

MCALENDER & JUDGMENT

IN THE COURT OF THE II ADDL. CHIEF METROPOLITAN MAGISTRATE :

VISAKHAPATNAM

CC No. 93/2011

Date of offence :13.09.2010/22.10.2010

Date of Report/Complaint:05.01.2011

Date of Apprehension:--

Date of Release on bail:--

Date of Commencement of Trial:15.12.2014.

Date of closure of Trial:20.04.2015.

Date of Sentence or order:15.10.2015

Explanation for delay:Delay due to non-appearance of complainant and accused.

Calendar Case No.:CC No.93/2011

Name of the Complainant:Yarabala Simhachalam, S/o. Late Nagayya, Hindu, aged 45 years, R/o.D.No.15-205,F-Block, Lakshminagar,Gopalapatnam, Visakhapatanm-27.

Name of the Accused:NagisettiGovindaraju,S/o. Suryanarayana, Hindu, aged 35 years, r/o.D.No.12-166,FB,O-13, Gopalapatnam Power office Quarters, RR Puram Post, Visakhapatnam.

Offence U/Sec.:under section 138 & 142 of NI Act

Finding of the court:Accused found guilty.

Sentence or Order of the Court :

In the result, I find the accused guilty of the offence punishable U/s.138 of NI Act. U/s.255 (2) Cr.PC. The Accused is convicted for the offence U/s.138 of NI Act and sentenced to undergo Simple Imprisonment for a period of two years and to pay a fine of Rs.10,000/- (Rupees ten thousand only) for the offence punishable U/s.138 of NI Act in default of payment of fine, the accused shall undergo Simple Imprisonment for a period of two months. The accused is informed about his right of appeal and right to receive a free copy of the judgment which is to be furnished to him now. The conviction and sentence of the accused is suspended as per the Orders in

Crl.M.P.No.3553/2015 dt. 15.10.2015 till 14.11.2015.

Sd/- G.Vallabha Naidu

II Addl .Chief Metropolitan

Magistrate Visakhapatnam.

2 II ACMM COURT, VSP

CC.No.93/2011

IN THE COURT OF THE II ADDITIONAL CHIEF METROPOLITAN MAGISTRATE

AT VISAKHAPATNAM

Present: SRI G.Vallabha Naidu

II Addl. Chief Metropolitan Magistrate Visakhapatnam

Thursday, this the 15th Day of October, 2015.

C.C.No.93/2011

a)The serial number of the case:C.C.No.93/2011.

b)Date of commission of offence:22.10.2010

c) Name of the Complainant, if any:Yarabala Simhachalam, S/o. Late Nagayya, Hindu, aged 45 years, R/o.D.No.15-205,F-Block, Lakshminagar,Gopalapatnam, Visakhapatanm-27.

d)Name of the accused person,:NagisettiGovindaraju,S/o. his parentage and resident,if anySuryanarayana, Hindu, aged 35 years, r/o.D.No.12-166, FB, O-13, GopalapatnamPoweroffice Quarters,RRPuramPost, Visakhapatnam.

e)Offence complained of or proved:U/s.138 & 142 of NI Act

f) Plea of the accused and his :Accused pleaded not guilty examination, if any

This case has come up on 31.08.2015 for final hearing before me in the Presence of Sri KSS Narayana, KA Naidu, B.Bala Subrahmanyam, Advocates

for Complainant and of Sri C.A,.Naidu, Advocate for Accused and having stood

over for consideration till this day, this Court delivered the following:

J U D G M E N T

1.This is a complaint filed by the complainant against the accused for the offences U/s. 138 and 142 of the Negotiable Instrument Act.

2.In brief, the case of the complainant as set out in the complaint is thus:

The accused borrowed an amount of Rs.5,00,000/- (Rupees five lakhs only) from the complainant for his family expenses and to discharge his sundry debts, agreeing to repay the same with interest at 24%p.a., and executed a demand promissory note on 08.03.2009 in favour of the 3 II ACMM COURT, VSP

CC.No.93/2011

complainant. It is further averred in the complaint that inspite of repeated demands made by the complainant, the accused issued post-dated cheque for

Rs.4,00,000/-(Rupees four lakhs only) in favour of the complainant towards discharge of part payment of the due amount covered under promissory note and the complainant deposited the said cheque day for collection but the same was dishonoured with an endorsement 'FUNDS INSUFFICIENT' and the

Bank Authorities issued a Cheque Return memo. After receiving the cheque return memo from the Bank, the complainant intimated the said fact to the accused and the accused requested the complainant to represent the said cheque once again and promised to arrange funds in his account. At the request of the accused, again the complainant deposited the same cheque on 21.10.2010 for collection, but to his utter surprise, the said cheque was again dishonoured with an endorsement 'FUNDS INSUFFICIENT” and the same was intimated to the complaint by his banker under cheque return memo. It is further averred in the complaint that after receipt of the cheque return memo, the complainant got issued registered lawyer's notice to the accused and the accused received the same, as confirmed by the postal authorities by way of letter dt.29.12.2010. Even after receipt of the said notice, the accused did not give any reply and did not pay any amount due under the cheque.

It is further averred in the complaint that the accused with dishonest invention knowing fully well that there are no funds in his account issued a cheque in favour of the complaint with a view to deceive the complainant.

Under these circumstances, the complainant filed the present complaint against the accused for the offences u/s.138 and 142 of NI Act. Hence, the complaint.

3.After filing of the complaint, cognizance was taken against the accused for the offence under section 138 NI Act and issued summons to the accused.

The accused appeared before this Court on receipt of summons and copies of 4 II ACMM COURT, VSP

CC.No.93/2011

documents are supplied to him as required under section 207 Cr.P.C. The accused is examined U/s.251 Cr.P.C. and he denied all the allegations and pleaded not guilty and claimed to be tried.

4.In order to establish the case of the complainant, PWs-1 to 4 were examined and Exs.P1 to P12 were marked. After completion of the evidence of the complainant, the accused was examined U/s.313 Cr.P.C., explaining the incriminating evidence appeared against him as deposed by PWs-1 to 4..

The accused denied the said incriminating evidence as deposed by

PWs-1 to 4. The accused did not adduce any evidence even though his petition filed U/s.315 Cr.P.C., is allowed. Sufficient time is already given to the accused to adduce his evidence but the accused did not adduce any evidence. Hence, it is deemed that there is no evidence on behalf of the accused.

5.Heard arguments on both sides.

6.In the light of the contentions, the points that germane for determination are:

1. Whether there is subsisting debt in between the complainant

and the accused on the date of issuance of cheque?

2. Whether the cheque was issued in discharge of legally enforceable debt?

3. Whether the complainant has established the case against accused beyond reasonable doubt for the offence u/sec.138 of NI Act?

7.The onus to establish that there is a subsisting debt in between the complainant and the accused on the date of issuance of the cheque is on the complainant at the first instance. If the complainant is able to establish the same by adducing satisfactory evidence that there was subsisting debt in between the complainant and the accused on the date of issuance of cheque and the said cheque was issued by the accused in discharge of legally enforceable debt, then the burden shifts to the accused under what circumstances he constrained to issue cheque in favour of the complainant.

5 II ACMM COURT, VSP

CC.No.93/2011

8.The learned counsel for complainant submits that the accused borrowed an amount of Rs.5,00,000/- from the complainant for his family necessities, agreeing to repay the same with interest at 24% p.a., and executed a demand promissory note on 08.03.2009 in favour of the complainant. The learned Counsel for the complainant further argued that inspite of repeated demands made by the complainant, the accused issued a cheque for

Rs.4,00,000/- in favour of the complainant towards discharge of part payment of the debt covered under the promissory note and the complainant presented the said cheque for collection but the same was dishonoured with an endorsement 'FUNDS INSUFFICIENT' and the bank authorities issued a cheque return memo. The learned counsel for the complainant further argued that after receipt of the cheque return memo from the Bank the complainant intimated the said fact to the accused and the accused requested the complainant to represent the said cheque once again and promised to arrange funds in his account. The learned counsel for the complainant further argued that as per the assurance given by the accused, the complainant again represented the said cheque for collection but to his utter surprise, again the said cheque was dishonoured with an endorsement 'INSUFFICIENT FUNDS' and the Bank authorities issued cheque return memo.

The learned counsel for complainant further argued that after receipt of the cheque return memo, the complainant got issued a registered lawyer's notice to the accused and the accused received the same as confirmed by the Postal authorities by way of letter but the accused did not give any reply or did not pay the cheque amount. The learned counsel for complainant lastly contended that the accused with dishonest intention knowing fully well that there were no funds in his account, issued the cheque in question in favour of the complainant with a view to deceive the complainant. Hence, he prays the 6 II ACMM COURT, VSP

CC.No.93/2011

Court to convict the accused for the offence U/s.138 NI Act and to award compensation as contemplated U/s.357 Cr.P.C.

10.On the other hand, it is the case of the accused that there is no subsisting debt in between him and the complainant at any point of time and he has not issued any cheque in favour of the complainant in discharge of legally enforceable debt. The further case of the accused that there is no necessity to borrow such a huge amount from the complainant and taking advantage of blank cheque obtained from third party, containing his signature, the complainant got foisted this false case with a view extract amount from him illegally. The further case of the accused that there is no legally enforceable debt in between him and the complainant. Hence, he prays the Court to acquit the accused for the offence U/s.138 NI Act.

11.In view of the submission made by the respective counsel of both parties and before going to the merits of the case, it is for the complainant to establish the guilt of the accused beyond reasonable doubt for the offence u/sec.138 of NI Act. In order to constitute an offence u/sec.138 of NI Act the complainant has to establish the following ingredients:

1. That there is legally enforceable debt.

2. That a cheque was drawn from the account of the bank for discharge in whole or in part of any debt or other liability which presupposes the legally enforceable debt.

3. That the cheque so issued had been returned due to “Insufficiency of Funds”.

12.Point No.1: Whether there is any subsisting debt in between the complainant and the accused on the date of issuance of the cheque?

The onus to establish that there is a subsisting debt in between the complainant and the accused on the date of issuance of the cheque is on the complainant at the first instance. In order to establish the case of the complainant, the complainant filed his evidence affidavit as PW-1 and got 7 II ACMM COURT, VSP

CC.No.93/2011

marked Exs.P-1 to P-5 through him. As seen from the evidence affidavit of

PW-1, who is the complainant in this case, he categorically reiterated all the contents of the complaint. According to the case of the complainant and as per the evidence of PW-1 that the accused borrowed an amount of

Rs.5,00,000/- from him for his family necessities and to discharge his sundry debts, agreeing to repay the same with interest at 24%p.a., and executed demand promissory note under the original of Ex.P1 on 08.03.2009. PW-1 further stated in his evidence in spite of repeated demands made by him, the accused issued cheque under Ex.P1 for Rs.4,00,000/- in his favour towards discharge of part payment of the debt amount and he presented the said cheque for collection but the same was dishonoured under Ex.P2 cheque return memo with an endorsement 'FUNDS INSUFFICIENT'. PW-1 further stated in his evidence that after receipt of Ex.P2 cheque return memo from the bank, he intimated the said fact to the accused and the accused requested to represent the same cheque once again and promised to arrange funds in his account. PW-1 further stated in his evidence that as per the assurance given by the accused, again he represented the same cheque for collection but to his utter surprise, again the said cheque was dishonoured under Ex.P3 cheque return memo with an endorsement 'FUNDS INSUFFICIENT'. PW-1 further stated in his evidence that after receipt of Exs.P2 and P3, cheque return memos from the bank, he got issued registered lawyer's notice to the accused under the original of Ex.P4 and the accused received the same as confirmed by the postal authorities by way of letter under Ex.P5. PW-1 further stated in his evidence that the accused with dishonest intention knowing fully well that there were no funds in his account issued Ex.P1 cheque with a view to deceive him.

13.The complainant in order to establish its case also examined PW-2, who is the scribe of promissory note. As seen from the evidence of PW-2, he 8 II ACMM COURT, VSP

CC.No.93/2011

categorically stated that the accused borrowed an amount of Rs.5,00,000/- from the complainant for his family expenses and to discharge his sundry debts, agreeing to repay the same with interest at 24%p.a., and executed a demand promissory note in favour of the complainant on 08.03.2009. PW-2 further stated in his evidence that inspite of repeated demands made by the complainant, the accused did not pay the said amount. As seen from the cross-examination of PW-2, he categorically admitted that himself and the complainant are residing in one block at Laxminagar. This Court is of the view that simply because the complainant and PW-2 are residing in one block at Laxminagar, it cannot be said his evidence cannot be taken into consideration to determine the case of the complainant. As seen from the cross-examination of PW-2, he categorically stated that the entire transaction took place at the house of the complainant in between 6.30 p.m., to 7.00 p.m., PW-2 further stated in his cross-examination that one Jagannadham and SV Ramana, were present at the time of passing of consideration and the accused brought those two persons. As seen from the cross-examination of

PW-2, the counsel for the accused put specific suggestion that PW-2 depositing false evidence to help the complainant but he denied the said suggestion.

14.The complainant in order to establish its case also examined, the Asst.

Accountant in Visakhapatnam Co-operative Bank, Gopalapatnam branch as

PW-3. As seen from the evidence of PW-3, he categorically deposed that he gave evidence in pursuance of the authorization given to him under Ex.P6.

PW-3 further deposed in his evidence that one Govindaraju i.e., accused, is having Saving Bank A/c.in their branch. Ex.P7 relied upon by the complainant is true extract of the statement of account pertaining to the accused. PW-3 further deposed in his evidence that Ex.P1 cheque leaf pertaining to their branch and the same was dishonoured with an endorsement 'insufficient funds'. Ex.P8 relied upon by the complainant through PW-3 is true extract 9 II ACMM COURT, VSP

CC.No.93/2011

of the statement pertaining to bouncing of Ex.P1 cheque. PW-3 further deposed in his evidence that Ex.P1 cheque was presented for collection but the same was dishonoured with an endorsement 'Insufficient funds'. Ex.P9 is the true extract of the dishonour of Ex.P1 cheque particulars. As seen from the cross-examination of PW-3, he categorically admitted that the bank authorities did not issue any written intimation to the accused about insufficient funds in his account.

15.The complainant in order to establish his case also examined, the

Deputy Manager, State Bank of India, Gopalapatnam Brnach as PW-4. As seen from the evidence of PW-4, he categorically deposed that one Yerabala

Simhachalam i.e., complainant, and his father had joint account in their branch. Ex.P10 is the true extract of the statement of the account pertaining to them. Ex.P11 is the attested copy of the xerox copy of the pass book of front page. PW-4 further deposed in his evidence that he attended before this

Court to give evidence in pursuance of Ex.P12 authorization letter dt.

10.06.2015. PW-4 further deposed in his evidence that the cheque presented by the complainant for collection was dishonoured with an endorsement 'funds insufficient'. As seen from the cross-examination of PW-4, he categorically stated that the account statement filed by him under Ex.P10 is in the name of

Y. Haribabu. He further stated in his cross-examination in respect of joint account either or survivor can be maintained the cheque.

16.As seen from the cross-examination of PW-1 to 4 nothing was elicited to disbelieve their testimony. As seen from the cross-examination of PW-1 except putting suggestions nothing was elicited to disbelieve his testimony.

PW-1 in his cross-examination categorically stated that the entire transaction was took place at his residence and the consideration was passed to the accused by him during evening hours. The learned counsel for accused put specific suggestion that taking advantage of the blank cheque obtained from 10 II ACMM COURT, VSP

CC.No.93/2011

third party, this case was falsely foisted against the accused but PW-1 denied the said suggestion. As seen from the evidence of PWs-1 to 4 and coupled with Exs.P1 to P12 relied upon by the complainant, it is clear that there is subsisting debt in between the complainant and the accused on the date of issuance of Ex.P1 cheque.

17.It is well settled that when once the complainant is able to prove that the accused had issued Ex.P1 cheque in his favour, the presumption available

U/s.118 and 139 of NI Act, are to be drawn in favour of the complainant.

One is that the cheque is issued for a valid consideration and the other is that it is issued towards discharge of legally enforceable debt either in full or in part. It is for the accused to rebut the said presumption.

18. On the other hand, it is the case of the accused, that there is no subsisting debt in between him and the complainant at any point of time and he has not issued Ex.P1 cheque in favour of the complainant in discharge of legally enforceable debt.

19.In view of the submissions made by the learned counsel for accused, it is no doubt true that when once the accused takes a plea that the cheque was not issued for discharging of legally enforceable debt or liability, then the complainant is bound to prove the circumstances under which the cheque was given in his favour and that the same is issued in discharge of legally enforceable debt. Unless, this initial burden is discharged by the complainant, the presumption available U/s.139 NI Act cannot be made use against the accused.

20.In the present case, in order to establish the case of the complainant that there is subsisting debt in between him and the accused on the date of issuance of Ex.P1 cheque, the complainant examined the scribe of promissory note as PW-2 and also examined the concerned bank officials of the accused 11 II ACMM COURT, VSP

CC.No.93/2011

banker and the complainant-banker. As seen from the evidence of PWs-1 to 4 their evidence is consistent and trustworthy with regard to bouncing of Ex.P1 cheque with an endorsement 'funds insufficient' and issuance of cheque return memo.

21.Under section 118 of Negotiable Instrument Act, unless the contrary was proved, it is to be presumed that the Negotiable Instrument including a cheque had been made or drawn for consideration. U/sec.139 of the Act the

Court has to presume, unless the contrary was proved that the holder of the cheque received the cheque for discharge in whole or in part of a debt or liability. Thus, in complaints u/sec.138 of NI Act, the Court has to presume that the cheque had been issued for a debt or liability. This presumption is rebuttable. However the burden of proving that a cheque had not been issued for a debt or liability is on the accused.

22. In the present case, as seen from the cross-examination of PW-1,it is clear that the accused did not dispute his signature found on Ex.P1 cheque. It is not the case of the accused that his signature on Ex.P1 cheque is rank forgery. As the signature on Ex.P1 cheque is admitted to be that of accused, the presumption envisaged U/s.118 of the Act can legally be inferred that the cheque was made or drawn for consideration on the date of which the cheque bears. Section 139 of the Act enjoins on the Court to presume that the holder of the cheque received the same for discharge of any debt or other liability.

The burden was on the accused to rebut the aforesaid presumption.

23.It is also well settled that when once the cheque relates to the account of the accused and he accepts and admits his signature on the said cheque, then the initial presumption as contemplated u/sec.139 of NI Act has to be raised by the Court in favour of the complainant. In the present case, admittedly, the complainant presented Ex.P1 cheque for collection but the same was dishonoured under Ex.P2 cheque return memo with an 12 II ACMM COURT, VSP

CC.No.93/2011

endorsement 'funds insufficient'. This Court is of the view that simply when once the signature on Ex.P1 cheque is not disputed by the accused, the burden is on the accused under what circumstances, he constrained to sign on the document i.e., Ex.P1 cheque and under what circumstances, he gave

Ex.P1 cheque and how Ex.P1 cheque came into possession of PW-1 and what was the necessity to PW-1 to file the present case when there was no passing of money from PW-1 to the accused. In the present case, as seen from the cross-examination of PWs-1 to 4, except putting suggestions nothing was elicited to disbelieve their testimony.

24.It is also well settled that the Criminal Court while appreciating the evidence brought on record may have to weigh the entire pros-and-cons of the matter which would include the circumstances which have been brought on record by the parties. As seen from the evidence of PWs-1 to 4 coupled with Exs.P1 to P12 relied upon by the complainant, this Court can safely come to a conclusion that there is subsisting debt in between the complainant and accused on the date of issuance of Ex.P1 cheque. Accordingly, this point is answered in favour of complaint and against the accused.

25.Point No.2: Whether the cheque was issued in discharge of legally enforceable debt?

So far as this point is concerned, it is for the complainant to prove that the accused had issued Ex.P1 cheque in his favour in discharge of legally enforceable debt. The presumption U/sec.139 of NI Act that the payee or the holder of the cheque received it in discharge in whole or in part of legally enforceable debt. There is a presumption u/s.139 of NI Act that the cheque is issued in discharge of legally enforceable debt. When once that presumption is available it is for the accused to rebut the same by adducing satisfactory evidence to show the circumstances under which the cheque went into the hands of the complainant.

13 II ACMM COURT, VSP

CC.No.93/2011

26.In the present case no substantial explanation whatsoever is forthcoming from the accused as to under what circumstances he constrained to issue Ex.P1 cheque in favour of the complainant. Hence, in the absence of any evidence, it cannot said that there is no legally enforceable debt in between the complainant and the accused. Accordingly this point is answered in favour of the complainant and against the accused.

27.Point No.3:Whether the complainant has established the guilt of the accused beyond all reasonable doubt for the offence U/s.138 of NI Act?

So far as this point is concerned this Court has already discussed in detail with regard to Point Nos.1 and 2 and came to conclusion that there is subsisting debt in between the complainant and the accused on the date of issuance of Ex.P1 cheque and the accused has issued Exs.P1 cheque in favour of the complainant in discharge of legally enforceable debt. As seen from the evidence of PWs-1 to 4 and coupled with Exs.P1 to P12 relied upon by the complainant, this Court is of the view that the complainant has established his case against accused beyond all reasonable doubt for the offence U/sec.138 of

NI Act. Accordingly this point is answered.

28.In the result, I find the accused is guilty of the offence U/s.138 of

NI Act. U/s.255 (2) Cr.PC., the accused is convicted for the offence punishable U/s.138 of NI Act.

Dictated to the Stenographer Gr-II, transcribed by him, corrected and pronounced by me in

open Court on this the 15th day of October, 2015.

Sd/-Sri G.Vallabha Naidu/-

II ADDL. CHIEF METROPOLITAN

MAGISTRATE, VISAKHAPATNAM.

Heard. When questioned the accused about the quantum of sentence to be imposed upon him, the accused has stated that he pleaded that his family members are depneding upon him. The accused further pleaded that if he is put in jail, his family members will be subjected to great starvation.

14 II ACMM COURT, VSP

CC.No.93/2011

He further pleaded that except himself there are no other male persons to lookafter the welfare of his family members. Hence, he prays the Court to take a lenient view. The Learned counsel for accused also pleaded that lenient view may be taken. Considering the circumstances of the case and in view of the plea of the accused and in view of the submission made by the counsel for the accused this Court is of the view that this is not a fit case to release the accused on Probation of Offenders Act. Considering the gravity of the offence committed by the accused, he is convicted U/s.255 (2) Cr.PC for the offence U/s.138 of NI Act and sentenced to

undergo Simple Imprisonment for a period of two years and to pay a fine of

Rs.10,000/- (Rupees ten thousand only) for the offence punishable U/s.138

of NI Act in default of payment of fine, the accused shall undergo Simple

Imprisonment for a period of two months. The accused is informed about his right of appeal and right to receive a free copy of the judgment which is to be furnished to him now.

Dictated to Stenographer Gr-II, transcribed by him, corrected and

pronounced by me in open Court, this the 15th day of October, 2015.

Sd/-Sri G.Vallabha Naidu/-

II ADDL. CHIEF METROPOLITAN

MAGISTRATE, VISAKHAPATNAM.

APPENDIX OF EVIDENCE:

WITNESSES EXAMINED:

FOR COMPLAINANT: FOR DEFENCE:

PW-1: Yarabala Simhachalam (Complainant); - NIL - PW-2: M.Chinthalu (Scribe of pronote); PW-3: P.Subbarao, (Accused-banker) PW-4: M.Rajendra Prasad (Complainant-banker)

EXHIBITS MARKED

FOR COMPLAINANT:

Ex.P1 : Original Cheque No.400735 dt. 02.09.2010 for Rs.4,00,000/-; Ex.P2 : Original cheque return memo dt. 13.09.2010; Ex.P3 : Original cheque return memo dt. 22.10.2010; Ex.P4 : office copy of the legal notice dt.20.11.2010 issued to accused; Ex.P5: letter of Sr. Superintendent of Post office dt. 2.12.2010 regarding delivery of regd. Letter dt. 24.11.2010; Ex.P6 : Authorization letter of PW-3; Ex.P7 : True extract of the statement of account of accused; Ex.P8 : True extract of statement pertaining to bouncing of Ex.P1 Cheque; Ex.P9 : True extract of the dishonour of Ex.p1 cheque particulars; Ex.P10: True extract of statement of account pertaining to complainant; Ex.P11: Attested copy of the xerox copy of pass book of front page; Ex.P12: Authorization letter dt. 1.06.2015 of PW-4; FOR DEFENCE : - NIL-

Sd/-Sri G.Vallabha Naidu/-

II ACMM/VSP . Copy to:

1. The Hon'ble Metropolitan Sessions Judge, Visakhapatnam.

2. The accused. //TRUE COPY//

II ADDL.CHIEF METROPOLITAN

15 II ACMM COURT, VSP

CC.No.93/2011

CC No.93/2011

Dt: 04.09.2015: Accused present.

I find accused of you, guilty of the offence punishable u/s.138 IPC. Do you wish to say anything with regard to the quantum of sentence to be imposed against you.

IN THE COURT OF THE PRINCIPAL SENIOR CIVIL JUDGE-CUM-APPELLATE

COURT OF RENT CONTROL CASES AT VISAKHAPATNAM

PRESENT: SRI G.VALLBHA NAIDU,

PRINCIPAL SENIOR CIVIL JUDGE

VISAKHAPATNAM

Friday, this the 19th day of February, 2016

R.C.A.7/2013

Between:

Sri Vaddakk Porinchu Siman, S/o.Porinchu, Hindu, aged 55 years, residing at D.No.45-02-27/9, Muslim, Thatichetlapalem, Visakhapatnam.

..Appellant/Respondent

And:

Smt.Ommi Satyavathi, W/o.Appa Rao, Hindu, aged 57 years, residing at D.No.49-39-19/A, N.G.O's Colony, Akkayuapalem, Kancharapalem, Visakhapatnam.

..Respondent/Petitioner

MEMORANDUM OF APPEAL FILED UNDER SECTION 20 OF A.P. BUILDINGS [LEASE, RENT AND EVICTION] CONTROL ACT 1960 AGAISNT THE JUDGMENT PASSED IN R.C.C.37/2009, DT.03.01.2013 ON THE FILE OF RENT

CONTROLLER-CUM- IV ADDITIONAL JUNIOR CIVIL JUDGE AT

VISAKHAPATNAM.

Between:

Smt.Ommi Satyavathi, W/o.Appa Rao, Hindu, aged 57 years, residing at D.No.49-39-19/A, N.G.O's Colony, Akkayuapalem, Kancharapalem, Visakhapatnam.

..Petitioner

And:

Sri Vaddakk Porinchu Siman, S/o.Porinchu, Hindu, aged 55 years, residing at D.No.45-02-27/9, Muslim, Thatichetlapalem, Visakhapatnam.

..Respondent

This appeal coming on 12.02.2016 and 16.02.2016 for final hearing before me in the presence of Sri S.Joga Rao, Advocate for Appellant and of Sri Sontyana Mohan Rao, Advocate for respondent, and this court having stood over for consideration till this day, the court delivered the following:

JUDGMENT

The tenant filed the appeal under Section 20 (1) of A.P Buildings (Lease, Rent, Eviction) Control Act, 1960, hereinafter referred to as 'the Act' against the order of eviction passed in R.C.C.37/2009 dated 03.01.2013 on the file of Rent Controller-cum-IV Additional Junior Civil Judge, Visakhapatnam.

2.For the sake of convenience, the array of parties as arraigned

before the learned Rent Controller will be referred hereinafter i.e., the

appellant herein is referred to 'as respondent' and the respondent herein are referred to 'as the petitioner'.

2

3.The brief case of the petitioner is that: She is absolute owner in respect of the petition schedule property and she leased out the same to the tenant initially on 14.09.1996 for 11 months at Rs.1,000/- per month and the lease was extended for two more terms on increasing the rent of Rs.100/- per year and as on 18.07.2004 the rent was Rs.1,700/-. The respondent stopped paying rent when asked to vacate the premises for the purpose of selling the property to third parties. The respondent in spite of vacating the premises filed a suit i.e., O.S.2209/2005 for injunction and also obtained interim orders by filing I.A.No.486/2005 on the file of II Additional Junior Civil Judge,

Visakhapatnam. It is further averred in the petition that initially the premises was taken for rent for running mechanical shed on lease nearly 117 Sq.Yards for repairing cars on 14.09.1996 at the rate of Rs.1,000/- per month and respondent paid an amount of Rs.10,000/- as advance and the initial lease period was only for 11 months and the lease deed was executed and the lease was extended orally for two more terms of increasing the rent of Rs.100/- per year. It is further averred in the petition that in the year 1998 the extended lease period was over. The car decor shop owner has requested her to give the schedule premises on lease and agreed to pay Rs.5,000/- per month towards rent and also agreed to give Rs.50,000/- as advance but as the premises is required by her and early eviction is necessary without extending further time and the respondent was asked to continue and not caring for the higher rent and the respondent/tenant also consented the same. It is further averred in the petition that in the year 2000 one G.V.S.N Water Servicing Center offered

Rs.80,000/- rent for the entire year and Rs.90,000/- for the 2nd year and

Rs.1,00,000/- for the third year but she rejected the offer. During February 2000 the respondent/tenant has inducted one third person by name Pinter

Raju for sub lease of the vacant premises and the respondent/tenant collected rent from the Pinter Raju, which is against the understanding between her and respondent. The said Raju has laid a temporary shed and AC sheeted roof and she opposed such construction. Subsequently, disputes arose between the respondent/tenant and the said Raju and the rent paid by that time was 3

Rs.1,400/- per month and she intimated that the premises is required for sale and the respondent/tenant has stated that he has no objection for such sale and promised to vacate the premises within two months. It is further averred in the petition that with the knowledge of the respondent on 15.07.2004, the pettioner entered into an agreement of sale with one Malla Nooka Raju as he agreed to purchase the same for Rs.30,00,000/- and the respondent promised to vacate the premises by October 2004 and the respondent reported no objection for entering into an agreement with the said Nooka Raju. When she asked the respondent/tenant, he has not vacated the premises during October 2004, he requested time till December 2004. Subsequently, the respondent stopped paying rent stating that there is an advance amount of Rs.30,000/- and the rent can be deducted from the advance amount and the remaining amount of the advance can be returned after deducting the due rent. It is further averred in the petition that during December 2004, the respondent did not vacate the premises in spite of repeated requests made by him. The respondent/tenant demanded Rs.50,000/- including advance for vacating the schedule premises, as the respondent/tenant has not vacated the premises he has given a Cheque for Rs.90,000/- to the respondent/tenant on assurance that the premises could be vacating by 01.07.2005. It is further averred in the petition that the respondent/tenant in spite of vacated the premises filed a suit for injunction i.e.,O.S.2209/2005 and obtained temporary injunction by filing

I.A.486/2005 on the file of II Additional Junior Civil Judge, Visakhapatnam.

There is no subsisting lease in between her and the respondent/tenant. The respondent/tenant is bound to vacate the premises as the notice was already given by her to the respondent to vacate the premises. Under these circumstances, the petitioner filed the petition before the learned Rent

Controller for eviction of the respondent from the petition schedule premises.

Hence, the petition.

4.The respondent contested the petition by filing counter denying all the allegations made in the petition. The contention of the respondent as per the counter that he let out the petition schedule property from Ommi Apparao 4 on 14.09.1996 on monthly rent of Rs.1,000/- by paying advance of

Rs.10,000/- and he is in peaceful possession and enjoyment of the petition schedule property. At the time of taking the premises on rent it is vacant site and he spent an amount of Rs.80,000/- for developing the same and constructed AC sheeted shed for running automobile workshop and he is paying rent regularly to the said Ommi Apparao and the said Ommi Apparao is the absolute owner of the said site. It is further averred in the counter of respondent that subsequently the said Ommi Apparao enhanced the rent from

Rs.1,000/- to Rs.1,100/- and also additional advance of rs.50,000/- and he paid the same. On 30.07.2005 the said Ommi Apparao came to the premises and demanded him to vacate the premises and also demanded for enhancement of the rent to Rs.1,100/- per month and additional advance of

Rs.50,000/-, then he filed a suit i.e., O.S.2209/2005 on the file of II Additional

Junior Civil Judge, Visakhapatnam for permanent injunction. It is further averred in the counter of the respondent that the said Ommi Apparao never informed him when the schedule property was sold to third party and the legal notice issued on 15.09.2005 by the said Ommi Apparao is not valid as it does not come under the purview of the quit notice. There is no landlord and tenant relationship between her and the petitioner, as such, the petition is not maintainable. The petitioner is not the owner of the petition schedule property and she filed petition with a view to harass him and he did not commit default in paying rents. Hence, the respondent prays the Court to dismiss the petition.

5.Before the learned Rent Controller on behalf of the petitioner,

P.Ws.1 to 3 were examined and Exs.P-1 to P-7 were marked. On behalf of the respondent R.Ws.1 and 2 were examined and no documents were marked.

6.The learned Rent Controller after considering the oral and documentary evidence adduced by both parties passed the impugned order

dated 03.01.2013 in R.C.C.37/2009 by directing the respondent/tenant to

vacate the schedule premises within one month from the date of order, if the respondent fails to vacate the said premises, the petitioner can evict the respondent by way of executing order under due process of law.

5

7.Aggrieved by the order passed by the learned Rent Controller- cum-IV Additional Junior Civil Judge, Visakhapatnam in R.C.C.37/2009 dated 03.01.2013, the present appeal is field by the tenant contending that the learned Rent Controller failed to appreciate the oral and documentary evidence properly in answering the points and the finding of the learned Rent Controller is on the basis of assumptions, conjectures and imagination and the learned

Rent Controller has not properly considered the scope of Section 10 of the Act and the learned Rent Controller failed to observe that there is no landlord and tenant relationship in between the parties and the Rent Control Court has no jurisdiction to entertain the matter.

8.Heard on both sides.

9.Now the points that arise for consideration are:

(1).Whether the denial of the title of the petitioner by the respondent is bona-fide and if so, whether the respondent is to be evicted on that ground?

(2). Whether the plea taken by the tenant that there is no jural relationship in between respondent and petitioner is true and correct?

(3). Whether the respondent committed willful default in payment of rents?

(4). Whether the petitioner is entitled to vacate the respondent from the petition schedule premises?

(5). Whether there are any legal and valid grounds to interfere with the impugned order dated 03.01.2013 passed by the learned Rent Controller in R.C.C.37/2009?

(6). To what relief?

10.To avoid the repetition of discussion both the points are clubbed together.

11.POINTS 1 & 2:-

Whether the denial of the title of the petitioner by the respondent is bona-fide and if so, whether the respondent is to be evicted on that ground?

Whether the plea taken by the tenant that there is no jural relationship in between respondent and petitioner is true and correct?

6

The learned counsel for respondent/appellant submits that the petitioner has no title over the petition schedule property and he took the petition schedule property from one Ommi Apparao on monthly rent of

Rs.1,000/- and by paying advance of Rs.10,000/-. The learned counsel for respondent/appellant further argued that there is no landlord and tenant relationship in between the appellant and the petitioner and the petitioner did not let out the petition schedule property at any point of time and she is not absolute owner in respect of the petition schedule property. The learned counsel for respondent/appellant further argued that the petition filed by the petitioner is not maintainable as there is no landlord and tenant relationship in between him and the petitioner.

12.On the other hand, the learned counsel for petitioner/landlord submits that the petitioner is no other than the wife of Ommi Apparao and she is the absolute owner of the petition schedule property. The learned counsel for petitioner/landlord further argued that there is a jural relationship in between the petitioner and respondent and the tenant took the petition schedule property on monthly rent of Rs.1,000/- and subsequently the lease period was extended from time to time. The learned counsel for petitioner/landlord further argued that the respondent/tenant took a false plea that there is no jural relationship of landlord and tenant in between them. Hence, he prays the Court to allow the appeal by setting aside the order passed by the learned Rent

Controller-cum-IV Additional Junior Civil Judge, Visakhapatnam in

R.C.C.37/2009 dated 03.01.2013.

13.In view of the submission made by the respective counsel of both parties, the initial burden is on the appellant/tenant to prove that the petitioner has no title over the petition schedule property and there is no jural relationship as landlord and tenant in between them. If the tenant is able to establish the same by adducing satisfactory evidence, then then burden shifts on the petitioner/landlord.

14.In the present case, in order to establish the case of the petitioner

P.Ws.1 to 3 were examined and Exs.P-1 to P-7 were marked. P.W.1 is no other 7 than the husband of the petitioner. As seen from the evidence affidavit of

P.W.1, he categorically reiterated all the contents of the petition. Ex.P-1 relied upon by the petitioner is the General Power of Attorney executed by his wife in his favour. The petitioner in order to prove her title over the petition schedule property also relied upon Ex.P-2 original Gift Settlement Deed dated 27.05.2005. As seen from the recitals of Ex.P-2, it is evident that the petitioner is absolute owner in respect of the petition schedule property. As seen from the recitals of Ex.P-1, it is evident that the petitioner is authorized P.W.1 to give evidence and prosecute the case on her behalf of. Admittedly, P.W.1 is no other than the husband of the petitioner and he is a competent witness to give evidence on behalf of the petitioner as contemplated under Section 120 of

Indian Evidence Act. As seen from the contents of the counter filed by the respondent/appellant, he took a specific plea that he took the schedule premises from P.W.1 on monthly rent. As seen from the cross-examination of

P.W.1, the learned counsel for respondent/tenant put specific suggestion that there is no landlord and tenant relationship in between him and the petitioner, but P.W.1 denied the said suggestion. The learned counsel for respondent/tenant while cross-examining P.W.1 put specific suggestion that either the petitioner or P.W.1 have no right, title and interest over the petition schedule property, but P.W.1 denied the said suggestion.

15.The petitioner/landlord in order to substantiate her case also examined P.Ws.2 and 3, who are third party witnesses. As seen from the evidence of P.Ws.2 and 3 they categorically stated that the schedule property was leased out to the respondent by the husband of the petitioner and the said lease was extended from time to time. P.Ws.2 and 3 further stated in their evidence that the respondent/tenant illegally filed a suit i.e., O.S.2209/2005 on the file of II Additional Junior Civil Judge's Court, Visakhapatnam for injunction and the same was dismissed. As seen from the cross-examination of

P.Ws.2 and 3, the counsel for the respondent/tenant put specific suggestion that there is no landlord and tenant relationship between the appellant/tenant and respondent/landlord, but P.Ws.2 and 3 denied the same. Admittedly, the 8 respondent took the schedule property on monthly rent from the husband of petitioner i.e., P.W.1. In the present case, the respondent/tenant disputing the right and title of the petitioner over the petition schedule property. In order to substantiate the case of the respondent except the oral say there is no iota of document filed by the respondent.

16.In order to substantiate the case of the respondent/tenant, the counsel for the respondent/tenant filed the evidence affidavit of R.Ws.1 and 2.

R.W.1 is the tenant. R.W.2 is a third party witness. As seen from the evidence affidavit of R.W.1, he categorically denied all the allegations made in the affidavit of P.W.1. The entire chief-examination affidavit of R.W.1 is only denial of the evidence of P.W.1. As seen from the evidence affidavit of R.W.1, he categorically admitted that he took the schedule property on monthly rent from

P.W.1, who is husband of the petitioner. Admittedly, the respondent did not disputing the tenancy in respect of the schedule property. The main contention of the respondent/tenant that the petitioner has no locus-standi to file the petition and she did not let out the petition schedule property to him at any point of time. In view of the specific plea taken by the respondent in his evidence, as seen from his cross-examination he categorically admitted that in the year 1996 he entered into agreement with the husband of the petitioner.

He further admitted in his cross-examination that in the month of December 2004, the husband of the petitioner i.e., P.W.1 asked him to vacate the premises. Admittedly, the respondent/tenant filed a suit i.e., O.S.2209/2005 on the file of VI Additional Junior Civil Judge, Visakhapatnam for permanent injunction against the P.W.1 and the same was dismissed on merits as per

Judgment and Decree dated 30.03.2009. Ex.A-7 relied upon by the petitioner is the Certified Copy of the Judgment and Decree passed in O.S.2209/2005

dated 30.03.2009 on the file of VI Additional Junior Civil Judge's Court,

Visakhapatnam. Ex.A-5 relied upon by the petitioner is the order copy of status-quo passed in I.A.No.486/2005 in O.S.2209/2005. The respondent in order to substantiate his case also examined R.W.2, who is third party witness.

As seen from the evidence affidavit of R.W.2, he categorically stated that 9

P.W.1 let out the petition schedule property to the respondent. He further stated in his evidence affidavit that subsequently the respondent came to know that the petition schedule property is a government land and the petitioner is not owner of the schedule property. As seen from the cross-examination of

R.W.2, he categorically admitted that the property is in possession of P.W.1 till 2005. He further admitted in his cross-examination that in the year 2005 he learnt that the petitioner and her husband are the owners of the property. In the present case, the respondent took two inconsistent pleas. At one breath the respondent is contending that he took the petition schedule property from the husband of the petitioner on monthly rent and at another breath he is contending that the petitioner has no right over petition schedule property and it is the absolute property of the government. Admittedly, the respondent did not file any iota of document to substantiate his contention to prove part of the petition schedule property is government land. As seen from the cross- examination of R.W.1, he categorically admitted that he did not pay any rent to the government. Mere denial of title is not sufficient without adducing any documentary evidence. In the present case, even though, the respondent is denying the right and title of the petitioner in respect of the petition schedule property, he did not adduce any evidence to substantiate his contention. Under these circumstances, this Court is of the view that the denial of title of petitioner by the respondent is not bona-fide and it is also one of the ground for eviction of the respondent from the petition schedule premises. The respondent took a specific plea that he took the schedule mentioned premises from Ommi Apparao, who is no other than the husband of the petitioner. The wife and husband are presumed is one union and presumed to be true owners.

As seen from the finding given by the learned Rent Controller in respect of the

Point No.2 became to right conclusion by observing that the landlord and tenant relationship with P.W.1 is presumed to be same relationship with the petitioner, as P.W.1 is the husband of the petitioner. Hence, this Court not inclined to accept the contention of the counsel for appellant. Accordingly, the 10 points 1 and 2 are decided against the appellant and in favour of the petitioner/landlord.

17.POINT No.3:-

Whether the respondent committed willful default ink payment of rents?

So far as this point is concerned, it is the contention of the petitioner that the respondent stopped payment of rents from the July 2004 onwards and committed willful default in payment of rents. The learned counsel for petitioner submits that as the respondent committed default in payment of rent, as such the respondent is liable to be evicted from the petition schedule premises. In order to substantiate the case of the petitioner, as seen from the evidence affidavit of P.W.1, who is the husband of the petitioner, he categorically reiterated all the contents of the petition. In order to prove the case of the petitioner that the respondent committed default in payment of rents also examined P.Ws.2 and 3, who are third party witnesses.

As seen from the evidence of P.Ws.2 and 3 their evidence is consistent and trustworthy with regard to default of rents committed by the respondent. As seen from the cross-examination of P.Ws.1 to 3 nothing was elicited to disbelieve their testimony.

18.On the other hand, in order to substantiate the case of the respondent as seen from the evidence of R.W.1, he categorically reiterated all the contents of the counter filed by him. As seen from the cross-examination of

R.W.1, he categorically admitted that he stopped the payment of rents from the month of January 2004 onwards as he came to know that the petition schedule property is a Poramboke land. R.W.1 further admitted in his cross- examination that he is not paying rent to the government. Except the oral say there is no iota of document filed by the respondent to substantiate his contention that the petition schedule property is government land. In a recent decision reported a case in between Ameda Nityanandam and another Vs.

Gettu Babu and another [2015(1) Law Summary 19], His Lordship referring all the earlier judgments of our High Court on the subject held that 11 “In view of the clear language in Section 11 of the Act, the appeal under

Section 20 against any order made by the Controller on the application filed by the landlord is not maintainable, unless the tenant has paid to landlord or deposits with the Controller or the Appellate Authority all arrears of rent due in respect of the building up to the date of payment or deposit and continuous to pay or deposit any rent which may subsequently become due in respect of the building, until the termination of the proceedings before the Controller or the

Appellate Authority, as the case may be”.

19.Admittedly, in the present case at the time of filing of the appeal aggrieved by the order passed by the learned Rent Controller in R.C.C.37/2009

dated 03.01.2013 the respondent/tenant filed a petition before this Court

under Section 20(2) of A.P.Buildings (Lease, Rent and Eviction) Control Act, 1960 for grant of stay of the operation of the decree dated 03.01.2013 passed in R.C.C.37/2009 pending disposal of the appeal and this Court granted stay subject to condition of deposit of arrears of rent at the rate of Rs.1700/- per month from July 2004 to till the date of order i.e., 23.02.2013 and continue to deposit rent at the same rate. It is also fact that the respondent/tenant did not comply the said order passed by this Court in I.A.123/2013 in R.C.A.No.7/2013 and did not prefer any revision, even he did not file any petition before the learned Rent Controller as contemplated under Section 9 of the Act for deposit of arrears of rent. It is not the case of the respondent/tenant that the petitioner/landlord is refusing to receive the rent. The respondent/tenant without taking any steps for depositing of arrears of rent simply stopped payment of rent to the Petitioner/landlord and enjoying the property and it can be safely presumed that there is willful negligence on the part of the respondent/tenant in payment of rent. Accordingly, this point is answered against the respondent/tenant and in favour of the petitioner/landlord.

20.POINT No.4:

Whether the petitioner is entitled to vacate the respondent from the petition schedule premises?

12

So far as this point is concerned, this Court already discussed in detailed with regard to points 1 to 3 and came to conclusion that there is a jural relationship in between the petitioner and the respondent and the denial of title by the respondent is not bona-fide and committed willful default in payment of rents to the petitioner. Thus, the respondent is liable for eviction from the petition schedule premises. There are no legal and valid grounds to allow the appeal filed by the appellant. Accordingly, this point is answered.

21.POINT No.5:-

Whether there are any legal and valid grounds to interfere with the impugned order dated 03.01.2013 passed by the learned Rent Controller in R.C.C.37/2009?

So far as this point is concerned, I have gone through the impugned order passed by the learned Rent Controller-cum-IV Additional

Junior Civil Judge, Visakhapatnam in R.C.C.No.37/2009 dated 03.01.2013. On perusal of the order passed by the learned Rent Controller he has rightly come to conclusion and ordered eviction of the respondent from the petition schedule property. This Court is of the view that there are no legal and valid grounds to interfere with the impugned order passed by the learned Rent Controller and there are no infirmities in the impugned order calling for interference. The point is answered accordingly.

22.POINT No.6:-

To what relief?

In the result, the appeal is dismissed with costs confirming the eviction order dt.03.01.2013 passed by the learned Rent Controller–cum-IV

Additional Junior Civil Judge, Visakhapatnam in RCC.37/2009. The

respondent/tenant shall vacate and deliver vacant possession of the schedule premises to the Petitioner/Landlord within one month from today.

Dictated to the Stenographer Grade-III, transcribed by him, corrected and pronounced

by me in open court, this the 19th day of February, 2016.

PRINCIPAL SENIOR CIVIL JUDGE

VISAKHAPATNAM

APPENDIX OF EVIDENCE

No oral or documentary evidence is adduced on either side.

PRINCIPAL SENIOR CIVIL JUDGE

VISAKHAPATNAM

IN THE COURT OF THE PRINCIPAL SENIOR CIVIL JUDGE-CUM-APPELLATE

COURT OF RENT CONTROL CASES AT VISAKHAPATNAM

PRESENT: SRI G.VALLBHA NAIDU,

PRINCIPAL SENIOR CIVIL JUDGE

VISAKHAPATNAM

Monday, this the 15th day of February, 2016

R.C.A.12/2012

Between:

Smt.Udanda Prameela, W/o.Murali Mohana Rao, Hindu, aged 55 years, residing at D.No.38-30-72, Sainagar, Marripalem, Visakhapatnam.

..Appellant/Petitioner

And:

Smt.B.Bharathi, W/o.Sri Hari, Hindu, aged 65 years, residing at D.No.5-9/3, Santosh Nagar, Kothapalem, Gopalpatnam, Visakhapatnam.

..Respondent/Respondent

MEMORANDUM OF APPEAL FILED UNDER SECTION 20 OF A.P. BUILDINGS [LEASE, RENT AND EVICTION] CONTROL ACT 1960 AGAISNT THE JUDGMENT PASSED IN I.A.No.158/2007 IN R.C.C.65/2007, DT.02.08.2012 ON THE FILE OF RENT CONTROLLER-CUM- IV ADDITIONAL JUNIOR CIVIL JUDGE

AT VISAKHAPATNAM.

Between:

Smt.Udanda Prameela, W/o.Murali Mohana Rao, Hindu, aged 55 years, residing at D.No.38-30-72, Sainagar, Marripalem, Visakhapatnam.

..Petitioner

And:

Smt.B.Bharathi, W/o.Sri Hari, Hindu, aged 65 years, residing at D.No.5-9/3, Santosh Nagar, Kothapalem, Gopalpatnam, Visakhapatnam.

..Respondent

This appeal coming on 05.02.2016 for final hearing before me in the presence of Sri B.Srinivasa Rao, Advocate for Appellant and of Sri Gorle Prasad, Advocate for respondent, and this court having stood over for consideration till this day, the court delivered the following:

ORDER

This appeal filed by the Appellant/Landlord under Section 20 (1) of A.P Buildings (Lease, Rent, Eviction) Control Act, 1960, hereinafter referred to as 'the Act' against the order of deposit of rent under Section 11(4) of the

Act passed in I.A.158/2007 in R.C.C.65/2007 dated 02.08.2012 on the file of

Rent Cotnroller-cum-IV Additional Junior Civil Judge, Visakhapatnam.

2.The appellant herein is the Petitioner and the respondent herein is the respondent before the Rent Controller. For the sake of convenience and 2 more clarity I hereinafter referred the parties as arraigned before the learned

Rent Controller-cum-IV Additional Junior Civil Judge, Visakhapatnam.

3.The brief case of the petitioner is that: The petitioner is the absolute owner in respect of the schedule premises having purchased the same under a Registered Sale Deed dated 13.12.1990, since then she has been in peaceful possession and enjoyment of the same. Subsequently, she inducted the respondent as tenant in the month of June 2005 on monthly rent of

Rs.1,000/- per month and the said lease is an oral lease and no advance is paid by the respondent. It is further averred in the affidavit of the petitioner that the respondent is very irregular in payment of monthly rents from inception of tenancy. The respondent committed default in payment of rent from January 2007 at the rate of Rs.1,000/- per month to the petitioner for the reasons best known to her, in spite of repeated requests and demands made by the petitioner, the respondent did not pay the monthly rents. Under these circumstances, the petitioner filed the petition under Section 11(4) of

A.P.Buildings (Lease, Rent and Eviction) Control Act, 1960 prays the Court to direct the respondent to deposit the monthly rents in respect of schedule premises from January 2007 till pending disposal of main RCC at the rate of

Rs.1,000/- per month. Hence, the petition.

4.The respondent contested this petition by filing counter denying all the allegations made in the affidavit of the petitioner. The contention of the respondent as per the counter that the petition filed by the petitioner is not maintainable either under law or on facts. Originally, the petitioner purchased the schedule property under a Registered Sale Deed dated 13.12.1990 from one G.Mutyalu and she constructed a tiled house and during the time of constructing the said house, objection was taken by one J.Sanyasamma and due to the interference of the elders the said matter was settled and an unregistered Sale Deed was executed by the said J.Sanyasamma in favour of the petitioner and thereafter the petitioner has completed the construction of the tiled house.

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5.It is further averred in the counter of the respondent that the husband of the petitioner used to work in the same department and due to the acquaintance with the husband of the petitioner offered to sell the schedule property for need of money for his daughter's marriage and the respondent has accepted to purchase the schedule property for sale consideration of

Rs.1,50,000/- and as per the terms the respondent paid the said amount of

Rs.1,50,000/- to the petitioner on the date of execution of unregistered Sale

Deed in favour of the respondent and immediately the possession of the schedule property was handed over to the respondent by the petitioner on the same day on the date of execution of the unregistered sale deed dated 25.01.2000. It is further averred in the counter of the respondent that the petitioner handed over all the original documents pertaining to the schedule property and the respondent came into possession of the schedule property and made arrangements to construct a RCC slabbed building and completed the construction of the building with her own funds and she has been in peaceful possession and enjoyment of the schedule property without any interruption from anybody including third parties. It is further averred in the counter of the respondent that she is paying property tax to the Municipal

Corporation and obtained a gas connection in her name and also paying electricity charges to the concerned department. At the time of execution of un-registered sale deed by the petitioner she has promised to execute a regular Sale Deed in favour of the respondent at a later stage but the petitioner has postponing the same on one pretext or other and willfully avoiding to execute the Registered Sale Deed in favour of the respondent and try to alienate the schedule property to third parties and after coming to know the respondent has given a public notice by way of publication in Eenadu

Telugu Daily Newspaper alerting the public not to enter into any kind of deeds with the petitioner with respect to the schedule property. It is further averred in the counter of respondent that she is never a tenant under the petitioner and she has no obligatory duty to pay any rent to the petitioner. The petitioner to have a wrongful gain filed this petition with a view to harass her. She is not 4 a tenant under the petitioner as such the question of falling due to rents to the petitioner will not arise. Hence, the respondent prays this Court to dismiss the petition with costs.

6.Before the Rent Controller, on behalf of the petitioner P.Ws.1 and 2 were examined and Exs.P-1 to P-10 were marked. On behalf of the respondent, even though the counsel for the respondent filed chief evidence affidavit of respondent as R.W.1, she did not turn up for cross-examination.

Hence, the chief affidavit of R.W.1 filed before the Rent Controller cannot be taken into consideration.

7.After considering the oral and documentary evidence adduced by both parties the learned Rent Controller passed the impugned order dated 02.08.2012 in I.A.No.158/2007 in R.C.C.65/2007 holding that the burden lies on the petitioner to establish the landlord and tenant relationship between herself and the respondent and willful default of the respondent, but there is no material on record to establish the said relevant facts. It can be decided in the main petition after full enquiry. Hence, the petition is liable to be dismissed without prejudice to the rights of both parties in main RCC and the petition filed by the petitioner is dismissed without costs.

8.Aggrieved by the order of the learned Rent Controller-cum-IV

Additional Junior Civil Judge, Visakhapatnam passed in I.A.158/2007 in

R.C.C.65/2007, the present appeal is filed by the petitioner by contending that the learned Rent Controller failed to appreciate the oral and documentary evidence properly in answering the issue on point for consideration and the finding of the learned Rent Controller is on the basis of assumptions, conjectures and imagination and the learned Rent Controller did not properly considered the scope of the petition and the learned Rent Controller failed to observe that the respondent did not turn up the Court to give evidence, even after filing the evidence affidavit and the respondent did not file any documents along with the counter and the learned Rent Controller did not consider the documents and the evidence filed by the petitioner.

9.Heard the counsel for the petitioner and the respondent.

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10.Now the points for consideration are:

(1).Whether the learned Rent Controller can pass an order in I.A.158/2007 in R.C.C.65/2007 without enquiring the jural relationship of landlord and tenant?

(2). Whether there are any legal and valid grounds to interfere with the impugned order dated 02.08.2012 passed by the learned Rent Controller-cum-IV Additional Junior Civil Judge, Visakhapatnam in I.A.158/2007 in R.C.C.65/2007?

(3). To what relief?

11.POINT NO.1:-

Whether the learned Rent Controller can pass an order in I.A.158/2007 in R.C.C.65/2007 without enquiring the jural relationship of landlord and tenant?

The learned counsel for petitioner submits that the petitioner is absolute owner of the petition schedule premises having purchased the same under a

Registered Sale Deed dated 13.12.1990. Subsequently, the petitioner inducted the respondent as tenant in the month of June 2004 on monthly rent of

Rs.1,000/- per month. The learned counsel for petitioner further argued that since beginning the respondent is irregular in payment of monthly rents and in spite of repeated requests and demands made by the petitioner, the respondent did not pay the monthly rents from January 2007 and committed default in payment of rents. The learned counsel for petitioner further argued that the learned Rent Controller without considering the evidence adduced by the petitioner and coupled with the documents filed by the petitioner dismissed the petition filed by the petitioner under Section 11(4) of A.P.Buildings (Lease,

Rent and Eviction) Control Act, 1960.

12.On the other hand, the learned counsel for respondent submits that the respondent is not at all tenant in respect of petition schedule premises. The learned counsel for respondent further argued that the respondent purchased the schedule property for total sale consideration of

Rs.1,50,000/- from the petitioner and the petitioner executed unregistered sale deed in favour of the respondent on 25.01.2000. The learned counsel for petitioner further argued that since the date of purchase under an unregistered sale deed the respondent has been in peaceful possession and enjoyment of 6 the schedule property by constructing RCC slabbed building and she is paying necessary taxes to the concerned authorities. The learned counsel for respondent further argued that the respondent is not a tenant under the petitioner at any point of time and there is no need to pay the rent to the petitioner and the question of committing default of payment of rent does not arise. The learned counsel for respondent lastly contended that the learned

Rent Controller rightly dismissed the petition by observing that the petitioner failed to prove that she was inducted the respondent as a tenant in respect of the schedule premises.

13.In view of the submission made by the respective counsel of both parties, as seen from the evidence adduced by the petitioner through P.Ws.1 and 2 and coupled with Exs.A-1 to A-10 relied upon by the petitioner and in view of the specific plea taken by the respondent, it is clear that there is a title dispute in between the petitioner and the respondent in respect of the schedule premises. The scope of appeal is very limited to ascertain whether there is a landlord and tenant relationship between the petitioner and the respondent.

The petitioner contents that she let out the schedule premises in the month of

June 2005 to the respondent on monthly rent of Rs.1,000/- and the said lease is oral lease and the respondent committed default in payment of rent since

January 2007.

14.In order to substantiate the case of the petitioner. P.Ws.1 and 2 were examined before the learned Rent Controller-cum-IV Additional Junior

Civil Judge, Visakhapatnam and Exs.A-1 to A-10 were marked. As seen from

the evidence affidavit of P.W.1, who is the petitioner, she categorically reiterated the contents of the petition. Right from the beginning the case of the petitioner that she purchased the petition schedule premises under the original of Ex.A-1 dated 13.12.1990 from her vendor, since then she has been in peaceful possession and enjoyment of the same. Ex.A-1 relied upon by the petitioner is the certified copy of the Registered Sale Deed dated 13.12.1990.

Admittedly, the petitioner got issued a legal notice under original of Ex.A-2

dated 25.09.2007 and the respondent received the same under Ex.A-4 Postal

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Acknowledgement and gave a reply under Ex.A-3 dated 03.10.2007. The petitioner in order to prove possession and title over the schedule property also relied upon Ex.A-5 House Tax Passbook and Ex.A-6 Gas Voucher dated 30.01.1996 and Exs.A-7 and A-9 are the Electricity Bills dated 25.03.1996, 24.12.1995 and 28.07.1998 and Ex.A-10 is the Tax Receipt dated 22.11.2009.

The petitioner also relied upon Ex.A-11 Photo Copy of the Police Complaint

dated 09.06.2009 and Ex.A-12 is the Receipt of the Police dated 09.06.2009.

15.In order to substantiate the case of the petitioner, the petitioner also filed the evidence affidavit of P.W.2, who said to be a third party. As seen from the evidence affidavit of P.W.2, he categorically stated that in the month of June 2009, the petitioner informed him that the respondent did not pay monthly rents when the petitioner demanded for payment of the rent. He further stated in his evidence affidavit that the petitioner is the absolute owner in respect of the petition schedule property and the respondent is only a tenant for the petition schedule property.

16.On the other hand, in order to substantiate the case of the respondent, the counsel for the respondent filed the evidence affidavit of the respondent as R.W.1 on 14.06.2011. But subsequently the respondent did not turn up for cross-examination. Hence, his evidence affidavit cannot be looked into for consideration. The present appeal filed by the petitioner is confined with regard to order passed by the learned Rent Controller in I.A.158/2007 in

R.C.C.65/2007. Right from the beginning the contention of the respondent that she is not at all tenant in respect of petition schedule property and she purchased the same from the petitioner under unregistered sale deed for total sale consideration of Rs.1,50,000/-, since then she has been in possession and enjoyment of the schedule property by constructing a slabbed house and by paying necessary taxes to the government. This Court is of the view that when the respondent took a specific plea that she is not at all tenant in respect of the schedule property, the burden is heavy on the petitioner to prove that she was inducted the respondent as tenant in respect of petition schedule property on monthly rent of Rs.1,0000/- and the respondent committed default since 8 2007 in payment of monthly rents. If the petitioner is able to establish the same by adducing satisfactory evidence, then the burden shifts on the respondent to prove that she is not at all tenant in respect of the schedule property as alleged by the petitioner. In the present case, except the oral say of P.Ws.1 and 2 there is no iota of documentary proof filed by the petitioner to prove that she was inducted the respondent as tenant in respect of the schedule premises on monthly rent of Rs.1,000/-. As seen from the cross- examination of P.W.1, she categorically stated that she let out the premises to the respondent in the year 2005, but she did not file any iota of document to that effect. As seen from the cross-examination of P.W.2, who is the third party, it is clear that he came to know through P.W.1 that the respondent is tenant in respect of the schedule premises. As seen from the cross- examination of P.W.2, he categorically admitted that the petitioner informed him that she let out the premises to the respondent on monthly rent of

Rs.1,000/- in the year 2005. As seen from the evidence of P.W.2 his evidence is only a hearsay. This Court is of the view that the petitioner cannot depend on the weakness of the respondent's case. It is for the petitioner to prove that there is landlord and tenant relationship in between the petitioner and the respondent by adducing satisfactory evidence. If the petitioner is able to establish the same, then the burden shifts on the respondent to prove that she is not at all tenant in respect of the schedule premises.

17.When the alleged tenant denies not only the title of the alleged landlord but sets up a title with him in such case, the jurisdiction of the Rent

Controller is very limited confining to decide whether grounds pleaded by the petitioner therein are proved. Disputes if any raised by the tenant as to the title of the landlord, the learned Rent Controller has to examine whether such denial is bona-fide or not. The learned Rent Controller can proceed further only on arriving a conclusion that denial is bona-fide. In other words, if the Rent

Controller comes to conclusion that there is a bona-fide dispute as to title, he has to terminate the proceedings and leave it to parties to work out their 9 remedies in a Civil Court. Therefore, in either way Rent Controller cannot dwell into question of title, much less decided it.

18.In the present case, as seen from the pleadings of the respondent, she categorically denied the title of the petitioner and sets up title in her favour by contending that she is the owner of the schedule property and there is no relationship of landlord and tenant between them. In such case, the

Court has to appreciate the evidence of both parties to come to conclusion whether the denial of title of the petitioner by the respondent is bona-fide or not. In the present case, admittedly there is no written Lease Deed between the petitioner and respondent. As seen from the evidence of P.W.1 that she inducted the respondent as tenant in the schedule premises in the month of

June 2005 on monthly rent of Rs.1,000/- per month and the respondent committed default in payment of rent from January 2007. Admittedly, the petitioner did not file any scrap of paper or receipt with regard to payment of rent by the respondent to the petitioner from June 2005 to January 2007.

Admittedly, there are no rent receipts in between the parties. There is no evidence to show that the petitioner received rent from the respondent at any point of time. To appreciate the fact that a person is a tenant or not the first aspect the Court will consider the payment of rent. The said aspect was not proved by the petitioner. Therefore, this Court has no hesitation to hold that the petitioner had failed to prove the jural relationship of landlord and tenant between them at any point of time. This Court is of the view that simply because the respondent did not come to the witness box to say on oath even though, she filed her chief affidavit it cannot be said that the respondent is tenant in respect of the petition schedule property and she committed default in payment of monthly rent. As seen from the order passed by the learned

Rent Controller in I.A.158/2007 in R.C.C.65/2007 dated 02.08.2012 at Para-12 in Page-4, the learned Rent Controller categorically observed that the burden lies on the petitioner to establish the landlord and tenant relationship between her and the respondent and willful default of the respondent. But, there is no material on record to establish the said relevant facts to determine the petition 10 on hand, at this stage. He further observed that it can be decided in the main petition after full enquiry. Hence, the petition is liable to be dismissed without prejudice to the rights of both parties in main RCC and accordingly petition is dismissed without costs. Therefore, from the evidence on record, this Court is of the view that the denial of title of petitioner by the respondent is bona-fide and that the Rent Controller cannot decide title and the parties have workout their remedies in a Civil Court. This Court did not find any infirmity or irregularity in the order passed by the learned Rent Controller in I.A.158/2007 in R.C.C.65/2007 dated 02.08.2012 dismissing the application of deposit of rents on the ground that the jural relationship of landlord and tenant cannot be decided in summary proceedings. Therefore, this Court is of the view that the order passed by the learned Rent Controller-cum-IV Additional Junior Civil

Judge, Visakhapatnam in I.A.158/2007 in R.C.C.65/2007 dated 02.08.2012

cannot be interfered. The point is answered accordingly.

19.POINT No.2:

Whether there are any legal and valid grounds to interfere with the impugned order dated 02.08.2012 passed by the learned Rent Controller-cum-IV Additional Junior Civil Judge, Visakhapatnam in I.A.158/2007 in R.C.C.65/2007?

So far as this point is concerned, as seen from the order passed by the learned Rent Controller dated 02.08.2012, the learned Rent Controller has rightly come to conclusion by dismissing the application of the petitioner with regard to deposit of rent into Court. I do not find any infirmity or irregularity in the order passed by the learned Rent Controller in I.A.158/2007 in R.C.C.65/2007 dated 02.08.2012. Therefore, this Court is of the view that there are no legal and valid grounds to interfere with the reasoned order passed by the learned Rent Controller-cum-IV Additional Junior Civil Judge,

Visakhapatnam in I.A.158/207 in R.C.C.65/2007 dated 02.08.2012. The point is answered accordingly.

20. POINT No.3:

To what relief?

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In view of my findings above, and in the result, the appeal is dismissed with costs confirming the order dated 02.08.2012 passed by the learned Rent Controller-cum-IV Additional Junior Civil Judge, Visakhapatnam in

I.A.158/2007 in R.C.C.65/2007.

Dictated to the Stenographer Grade-III, transcribed by him, corrected and pronounced

by me in open court, this the 15th day of February, 2016.

PRINCIPAL SENIOR CIVIL JUDGE

VISAKHAPATNAM

APPENDIX OF EVIDENCE

No oral or documentary evidence is adduced on either side.

PRINCIPAL SENIOR CIVIL JUDGE

VISAKHAPATNAM