Smt J Maithreeyi

IN THE COURT OF THE XXI JUNIOR CIVIL JUDGE:

CITY CIVIL COURT: HYDERABAD

Dated: This the 27 th day of April, 2015

PRESENT: Smt. J.MAITHREYI., LL.M.,

XXI JUNIOR CIVIL JUDGE

O.S.No. 958 OF 2009

Between:

Smt. Mohini Devnani, W/o. Late Sri S.Kotumal, aged : 69 years, Occ : Household, resident of

H.No. 3-5-694/1, Himayathnagar, Hyderabad.

...Plaintiff

AND

M/s. BK Thati & Associates, represented by its, proprietor Sri Balakrishna, T R/o. 4-1-938/22/A/1,

II Floor, New Marketing Complex, Tilak Road, Abids.

Hyderabad - 500001.

…..Defendant

This suit is coming for final hearing before me in the presence of Sri Vishnu Grover, Advocate for the plaintiff and of Sri P.S.Sai

Baba, Advocate for the Defendant and the matter having stood over for consideration till this day this Court delivered the following:-

J U D G M E N T

This suit is filed under order VII Rule 1 to 6 R/w. Sec. 26 of Civil Procedure Code, with a prayer to pass a decree directing the defendant to vacate and hand over the peaceful possession of the suit schedule property and direct the defendant to future damages @

Rs.10,000/- per month from 1.1.2009 till the date of delivery of possession.

2. The brief averments of the case as per plaint is that the plaintiff is the absolute owner and land lord of premises bearing

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municipal no.4-1-938/22/A/1, Second Floor, new marketing

Complex, Tilak Road, Abids, Hyderabad and the same was let out to the defendant. After expiry of the period of lease the lease was renewed on 1.3.2007 on monthly basis and the rent fixed at

Rs.4000/- per month exclusive of water and electricity consumption charges and the payment of municipal taxes. The rent is to be increased by 10% for every completed period of two years. The tenancy is commencing from 1st of month to the end of the month and the rent is payable by 5th of each month in advance. At the time of said renewal of lease it was agreed that the defendant shall keep a refundable deposit of Rs.50,000/- with the plaintiff for due performance of terms and conditions, the same was to be refunded at the time of vacating the premises subject to adjustment of arrears of rent and damages if any but the defendant has deposited only a sum of Rs.50,000/- and agreed deposit the balance by June 2008 but did not do so. Under the terms of lease the defendant agreed not to make any alterations in the existing structures or amenities of the building as well as the fittings and also not to use any space in the building other than the tenant premises. The plaintiff is an old lady and her son Mr.Vasudev K Dev Rani has been looking and maintaining the affairs of suit schedule property.

3.The defendant had unauthorizedly got fixed an additional tap connection from the over head tank to the balcony of the tenanted premises and started keeping the material of the defendant on the terrace of the said premises causing inconvenience to other to go

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through the stair case. The son of the plaintiff Mr.Vasudev

K.Devarani has been in occupation of the first floor of the same building and the acts of the defendant have been causing inconvenience to the son of the defendant. The defendant has deposited the balance amount of Rs.25000/- in spite of repeated demands. Further the defendant has not been producing the receipt for payment of electricity consumption charges and payment of municipal taxes. Further the son of the plaintiff herein who is in occupation of the first floor of the same building intends to shift his accommodation into the second floor now in occupation of the defendant which is convenient for the business of the son of the plaintiff.

4.The Defendant has not deposited the balance amount of

Rs. 25,000/- inspite of repeated demands. Further, the Defendant has not been producing the receipt for payment of electricity consumption charges and payment of municipal taxes. Further, the son of Plaintiff who is in occupation of 1st floor of the same building intends to shift his accommodation into the 2nd floor now which is in occupation of Defendant. The Defendant has changed the structures unauthorizedly so that the Plaintiff got issued a notice dt.1-12-2008 terminating the lease by end of the month of

December, 2008 and directed the Defendant to handover vacant possession of Suit Schedule Property by paying all arrears, charges, and taxes due in respect of Suit Schedule Property. The Defendant had received the said notice on 3-12-2008 but gave a reply with

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untenable facts and grounds. The allegation in reply notice that the Defendant has spend about Rs. 3 lakhs for his necessary interiors and that he has spent about Rs. 17,000/- for repairs to the sanitary pipes is denied by the Plaintiff. The Defendant has taken a wrong plea that the Plaintiff is not in the habit of issuing receipts for the rent paid. There is no written lease deed and the claim of the Defendant about the existence of a written lease is equally not true and in any case there is no lease deed with proper stamp duty and registration ., hence the lease deed is not admissible in law. The lease has been terminated u/s 106 of T.P. Act. The

Defendant has received the same so the Defendant has no right to continue his possession in the suit property.

5.If the premises let out to any other person, it would easily fetch a rent of Rs. 10,000/- p.m. The Defendant is in illegal occupation of suit property so he is liable to pay damages @ Rs. 10,000/- per month with effect from 1-1-2009. Hence, he prays the court to direct the Defendant to deliver the possession and to pay future damages.

6. On the other hand, the Defendant has filed his written statement for the facts as follows:

7.The Defendant denied all the averments made in the plaint and submits that the Plaintiff is the owner of suit premises and he let out the premises on 1-12-1994, the lease deed was executed on 18- 11-1994. The lease was renewed on 1-3-2007 in writing and the rent amount payable for the month is Rs. 4,000/- exclusive of water and

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electricity consumption charges and the payment of municipal tax.

In the lease deed it is mentioned that the deposit amount will be refunded after deducting any arrears of rent, maintenance charges, and municipal taxes etc., but no where it is mentioned that the

Plaintiff is entitled to deduct any amount towards the damages.

8.It was agreed that the Defendant shall keep a refundable deposit of Rs. 50,000/- with the Plaintiff for due performance of terms and conditions of lease and the same was to be refunded at the time of vacating the premises subject to adjustment of arrears of rent, damages, etc., if any. But the Defendant has deposited only a sum of Rs. 50,000/- and agreed to deposit the balance amount is denied. As per the terms of lease deed, a sum of Rs. 10,000/- was paid at the time of execution of a earlier lease deed ie., on 18-11- 1994 and the Defendant had paid a further sum of Rs. 15,000/- on the date of executing the subsequent lease deed on 1-3-2007. In total the Plaintiff herein had received a sum of Rs. 25,000/- out of the agreed amount of Rs. 50,000/-. The Defendant has agreed to pay the balance amount within a period of 2 years from the date of execution of lease deed. The lease deed was executed on 1-3-2007 so the balance amount should be paid on or before 1-3-2009, due to typographical mistake it is wrongly mentioned as June, 2008.

9.Originally, Manasa Associates had obtained the 2nd floor of the premises bearing No. 4-1-938/22/A/1, New Marketing Complex,

Tilak Road, Hyderabad on 18-11-1994 on lease and to that effect a rental Agreement was executed in between the parties.

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Subsequently, the said lease was renewed on 1-3-2007d in favour of

B.K. Thapi and Associates, which is the changed name of Manasa

Associates. At the time of renewing the tenancy period on 1-3-2007, it is mutually agreed that after payment of deposit amount of Rs.

15,000/-, the Plaintiff had agreed to provide three phase current supply to the said property. As the Plaintiff failed to provide three phase supply so the Defendant could not pay the balance amount deposit of Rs. 25,000/-. The allegations that the Defendant had unauthorizedly got fixed additional tap connection and using that terrace area and causing inconvenience to others are denied by the

Defendant. After taking permission from the Plaintiff the Defendant has arranged a tap in the balcony of the premises. The Plaintiff's son keeps open the office in the 1st floor only once in a week ie., on

Monday and the office working hours are free from 11.30 A.M. to 1

P.M. , and on the remaining days , the office will be closed. The

Defendant has handed over the municipal tax receipts to the

Plaintiff immediately after making the payment of municipal taxes.

the Plaintiff has taken a false plea that his son is intended to shift the office to the suit premises .

10.The Plaintiff is not in the need of premises for his personal use.

The Plaintiff has no right to terminate the tenancy. The Defendant has not committed any default in paying the monthly rent amounts.

The Defendant has paid the rent amount up to December, 2008 thereafter, his sent the rent amount through Money Order as the

Plaintiff refused to take the amount. Even though, the Plaintiff

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refused to receive the amount. The Defendant has sent the rent amounts for 3 months ie., August to October, 2008 by money order but the Plaintiff refused to receive the same. Thereafter, he accepted the rents for the dd5 months ie., from August to December, 2008 through two cheques. The Plaintiff is not in the habit of issuing receipts. After renewal of lease Agreement the Defendant has spent amount of Rs. 3 lakhs for office interiors and after seeing the interiors , the Plaintiff is asking the Defendant to vacate the premises only with a view to compel the Defendant to enhance the rent amount. The Plaintiff never bothered to maintain the premises so the defendants spent an amount of Rs. 17,000/- for the repairs of sanitary pipes. The Defendant also attended the flooring work at the entrance of the ground floor to the office by spending his amounts.

The Defendant regularly paying the rent amounts without committing any default, but whereas the Plaintiff is not at all cooperating to receive the rent amounts from the Defendant. As per clause d20 of lease deed, the lessor shall give 3 months prior notice to lessee to vacate the premises. The Plaintiff has issued only one month notice so it is not in accordance with the lease deed. The

Plaintiff is not entitled to claim Rs. 10,000/- per month as damages as the rent does not fetch to Rs. 10,000/-. The Defendant is in possession of premises under lease deed so there is no question of demanding the payment of Rs. 10,000/- per month and asking him to vacate and handover the premises to the Plaintiff, does not arise.

There is no cause of action . Hence, prays the court to dismiss this

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suit.

11.Basing on the above pleadings , this court has framed the following Issues.

Issues

1) Whether the Plaintiff is entitled to get evicted the Defendant and to recover the possession of Suit Schedule Property ?

2)Whether Quit Notice u/s 106 of T.P. Act issued by Plaintiff is valid ?

3)Whether the Plaintiff is entitled to damages at the rate of Rs.

10,000/- per month from 1-1-2009 till handing over vacant possession by Defendant ?

4) To what relief is Plaintiff entitled to the facts and circumstances of the case

12.At the time of Trial, the Plaintiff examined her self as pw1 and

Ex.A1 to A4 are got marked. PW2 also examined on behalf of

Plaintiff. On the other hand, the Defendant examined himself as

DW1. No documents are marked.

13.After Hearing the arguments of both sides today the matter stood for Judgment.

14. Issue No.1 and 2:

Admittedly, the Plaintiff is the owner and land lady of the premises bearing M.No. 4-1-938/22/A/1, 2 nd Floor, New Marketing complex, Tilak Road, Abids, Hyderabad. The premises was let out to

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the Defendant on 1-12-1994, a lease deed was executed on 18-11- 1994. Subsequently, the lease was renewed on 1-3-2007 in writing and the rent amount payable per month is of Rs. 4,000/- exclusive of water and electricity consumption charges and the payment of municipal taxes. There is no dispute with regard to jural relationship of land lord and tenant and the quantum of rent. It appears that the dispute is with regard to payment of advance amount, the Plaintiff contended that the Defendant is under obligation to keep a refundable deposit of Rs. 50,000/- with the

Plaintiff and it should be adjusted towards arrears of rent, damages, etc., but the Defendant has deposited a sum of Rs. 15,000/- and failed to deposit the balance amount. The contention of the

Defendant is that as per the lease deed he had already paid a sum of

Rs. 10,000/- on 18-11-1994 further he paid a sum of Rs. 15,000/- on the date of executing subsequent lease deed ie., on 1-3-2007 in total he paid an amount of Rs. 25,000/- out of the agreed advance amount of Rs. 50,000/-. The contention of defendant is that , it is mutually agreed if the Defendant deposits an amount of 15,000/- the Plaintiff had agreed to provide three phase current supply to the property. As the Plaintiff failed to provide three phase supply so that the Defendant could not pay the balance amount. The plaintiff has denied the same.

15.The Defendant has not filed the lease deed before this court.

No doubt, the Defendant has entered into the suit premises under lease deed and both parties are relying on the terms and conditions

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mentioned in the lease deed but the lease deed is not duly stamped and it is not registered, the Defendant failed to pay requisite stamp duty though the document was sent to the Registrar for collection of

Stamp Duty, the lease deed is not marked before the court. When the parties alleges that the Agreement is oral the matter would be different but in the instant case, the parties are stating that there is a written document but they have not chosen to get mark the document therefore, the parties are not supposed to rely on the terms and conditions mentioned in the document this court cannot consider the terms and conditions of lease deed. There may be an

Agreement to deposit advance amount of Rs. 50,000/- but there is no single document to show that the Defendant has deposited Rs.

25,000/- with the Plaintiff. However, in cross examination of PW1, she agreed that the Defendant has deposited a sum of Rs.10,000/- and of Rs. 15,000/- so the presumption is that the Defendant has deposited an amount of Rs. 25,000/-. As the plaintiff admitted the receiving of advance amount of Rs.25000/- so this advance amount can be adjusted in arrears of rent and any damages to the suit property due to the activities of defendant.

16.The Plaintiff contention is that the Defendant is under obligation to not to change the structures in the suit premises and he cannot utilize the remaining portion except the lease premises.

The Defendant has a erected a tap connection in the balcony of the premises and he started to utilize the balcony area and the terrace area which is against the terms and conditions of lease deed . The

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contention of Defendant he had taken the tap connection with the permission of the Plaintiff and he had every right to use the open place of balcony. In the cross examination of DW1 he deposed that he is utilizing the open place of balcony as well as the stair case and denied that he is utilizing the terrace area. There is no lease deed

before the court to say that whether the Defendant has breached the

terms of conditions or not ?. However, the Plaintiff has not issued any Notice to the Defendant when he had taken the tap connection and he is utilizing the other area other than the suit premises.

Therefore, this court is of view that the Defendant might have obtained the Tap connection with the consent of land lord only. The stair case and terrace area comes under common area as per section 9 of AP. Apartment Act. So the tenant cannot be restrained from utilizing the common area however, the Plaintiff failed to place any such material before the court to show that obtaining of Tap connection and using of the other area would have caused any damage to the property or diminished the value of the property. The

Tap connection will increase the value of the property and it is useful for the subsequent residents also it cannot be said that it caused inconvenience to the Plaintiff. Further it appears that the balcony is entirely separated from the rented portion. It appears that his balcony area is very much attached to the rented portion so the defendant cannot be restrained from utilizing this area. In the cross examination of PW1 she deposed that she is not aware of the affairs of the premises , her son used to look after the matter so she

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cannot say whether she received the rents for 5 months period from

August, to December, 2008. She is also deposing that she is not aware whether they are issuing any receipts or not , acknowledging monthly rent amounts to the Defendants. Further, she pleaded ignorance that whether her son attended the repairs of sanitary pipes. It clearly shows that the original plaintiff is not aware of the transactions and she is not able to say whether the Defendant paid the rent or not ?. The son of Plaintiff was examined as PW 2 , he reiterated the averments of the plaint. In the cross examination he deposed that the Defendant has deposited the advance amount of

Rs. 25,000/-. He denied the suggestion that there is an Agreement to receive the amount of Rs. 25,000/- if the Plaintiff provides three phase power supply to the premises as she failed to provide it so the

Defendant has not paid the remaining amount. He denied the suggestion that he is not in the need of suit premises. The Evidence of PW2 shows that the Defendant has paid an advance amount of

Rs. 25,000/-. The PW2 in the cross deposed that the Defendant has to pay the property tax but he had not paid his property tax and he verified the records in the municipality. The Defendant denied it but he failed to produce any tax receipt before the court to show that he had paid the property tax as per the Agreement. Further, the PW2 had denied the suggestion that he is not having the habit of maintaining the premises so that the Defendant has spent the amount for sanitary repairs. In the cross examination of DW1 he admitted that as per the agreement the lesee shall attend all such

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electrical fittings and repairing that may be required at his own cost.

It indicates that whatever the repairs attended by the defendant, is attended by him as per his requirement on his own cost for which the plaintiff is not responsible to pay any of it.

17.In the light of above discussion this court is of view that though there is a dispute with regard to payment of advance amount of Rs.50,000/- but as admitted by both parties the defendant has paid the advance amount of Rs.25,000/- so it is refundable advance amount, the defendant can claim of it at the time of vacating the premises, at the same time if there is any arrears of rent or damage to the property the plaintiff can adjust the amount from this advance amount. Further the plaintiff has taken the plea that the defendant is a willful defaulter and not paying the rents regularly but in the cross examination of PW1 and PW2 they admitted that the defendant send the rent amount twice by money order but the plaintiff refuse to take the rent. Further the defendant has given a specific suggestion that he send the rents for 5 months through chits and the PW2 has received the cheques. It shows that the defendant is not intended to avoid the payment of rents moreover in the cross examination of DW1 there is no suggestion that the defendant is due of rents for any particular period simply they have given suggestion that as per the agreement the rent should be paid in advance and the defendant has not paid the rent for the month of

April 2015, it is a running month so it cannot be say that the defendant is due of rents. It is not a material that the defendant is

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regularly paying the rents and he had not damaged the properties and not breached the terms of agreement. When the lease is for month to month as per the Transfer of Property Act the landlord is having every right to terminate the tenancy by issuing legal notice u/s. 106 of T.P.Act.

18. The defendant counsel contended that as per the lease agreement the plaintiff has to issue 3 months notice but in the present suit he had issued only 15 days prior notice therefore the notice is not valid. Further the defendant counsel relied on a provision 106 of T.P.Act in which it mentioned that “in the absence of the contract or local law, usage to the contract, a lease of immovable property.....”, he contended that when there is an agreement then the lease should be terminated as per the agreement when there is no such agreement then section 106 T.P.Act should be followed and 15 days notice is enough. In the instant case, as per agreement 3 months prior notice should be given.

19.As already stated above, the lease agreement is not marked due to insufficiency of stamp duty so there is no terms and conditions before the court. Though in the legal notice the defendant was directed to vacate the premises within 30 days and in the lease agreement there is a stipulatin for 3 months this court is of view that the parties entered into lease agreement only for 11 months in the year 1994 after completion of lease period they have entered into fresh agreement in the year 2007 i.e., only for 11 months subsequently they have not entered into any lease agreement

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therefore the lease period should be treated as month to month then as per section 106 of T.P.Act 15 days prior notice is enough for seeking the relief of eviction. In the instant case, the plaintiff has legally issued the notice directing the defendant to vacate the premises within 30 days due to the lapse of lease period mention in the lease deed, the defendant cannot insist the plaintiff to issue 3 months prior notice.

20. The transfer of property Act provides the subject of lease from

Sec. 105 to Sec.114 A when we read over the provision of Sec.105 to

Sec.114 A it seems that only Sec.106, Sec.111 of T.P Act are relevant which deals with termination of lease. Under Section 111 of T.P Act.

A lease of immovable property determines a) by efflux of time limited thereby—-....--Section 106 of T.P Act provides—--

a) where such time is limited conditionally on the happening of some event by the happening of such even:

b) Where the interest of the lessor in the property terminate on or his power to dispose of the same extends only to, the happening of any event by the happening of such even;

c) in case the interest of the lessee and the lessor in the whole of the property becomes vested at the same time in one person in the same right;

d) by express surrender, that is to say, in case the lessee yields up his interest under the lease to the lessor by mutual agreement between them .

e) by implied surrender.

f) by forfeiture, that is to say, (1) in case the lessee breaks an express condition which provides that, on breach thereof, the

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lessor may re-enter (XXX) or (2) in case the lessee renounces his character as such be setting up a title in a third person or by claiming title in himself (3) the lessee is adjudicated an insolvent and the lease provides that the lessor may re-enter on the happening of such event): and in (any of these cases) the lessor or his transferee (gives notice in writing to the lessee of his intention to determine the lease;

g) on the expiration of the notice, to determine the lease, or to quit, of intention to quit, the property leased, duly given by one party to the other.

"In the absence of a contract or local law or usage to the contrary, a lease of immovable property for agricultural or manufacturing purposes shall be deemed to be a lease from year to year, terminable , on the party of either lesser or lessee, by six months notice expiring with the end of a year of the tenancy, and a lease of immovable property for any other purpose shall be deemed to be a lease from month to month, terminable on the part of either lesser or lessee, by 15 days notice expiring with the end of a month of a tenancy.

21.Every notice under this section must be in writing signed by or on behalf of the person giving it, and either be sent by post to the party who is intended to be bound by it or be tendered or delivered personally to such party, or to one of his family or servants at his residence or if such tender or delivery is not practicable affixed to a conspicuous part of the property".

22.The above provisions reads together it is clear that when there is a relation of landlord and tenant and the tenancy is subsisting, then the landlord can determine the tenancy for any of the grounds mentioned in Sec.111. Apart from Sec.111, the landlord can determine the tenancy by issuing notice under Section 106 of T.P

Act. A notice to quit is necessary under this section before a suit for

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ejectment can be brought only where the defendant is a tenant of plaintiff. The contents of legal notice shows that plaintiff has clearly expressed an intention that he did not wish the tenant to continue in possession of premises after the expiry of period of one month or on the date of which according to defendant , the tenancy month ends. The language which has been used does unmistakeably evince an intention on the part of landlord not to continue the tenancy of defendant. Further the notice does specifically mentioned the specific date when the tenant would vacate the premises. Once the lease is terminated under Ex.A1 the plaintiff is entitled to the recovery of possession of suit premises. So the plaintiff is entitled to the relief of eviction as the lease is terminated under Ex.A1.

Accordingly issue no.1 and 2 are answered.

23. Issue no.3

The plaintiff has asked this court to direct the defendant to pay the damages @ Rs.10,000/- per month from 1.1.2009 till handing over vacant possession. The record shows the rent for the premises is of Rs.4000/- as on the date of filing of the suit. But now the plaintiff is asking this court to award the damages @

Rs.10,000/- per month and plaintiff has taken a specific plea that in that particular area the rent fetch an amount of Rs.10,000/-. No material produced before the court to show that in that area the rent fetch to Rs.10,000/- therefore proper enquiry should be conducted hence this court has not awarded any damages and the plaintiff is directed to file separate application under order 20 rule 12 CPC for

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past and future damages. Accordingly issue no.3 is answered.

24. Issue no.4

In the result, this suit is decreed with cost and the defendant is directed to vacate and hand over the premises to the plaintiff with in three months from the date of this order. Further this Court is hereby directs the plaintiff to file separate application Under Order 20 Rule 12 C.P.C for past and future damages.

Typed to my dictation, corrected and pronounced by me in the open Court this the 27th day of April, 2015.

sd/-

Smt. J.Maithreyi

XXI JUNIOR CIVIL JUDGE

CITY CIVIL COURT: HYDERABAD.

APPENDIX OF EVIDENCE

WITNESSES EXAMINED

FOR PLAINTIFF: FOR DEFENDANT:

PW1 : Smt. Mohini DevnaniDW1 : T.Balakrishna

PW2 : Vasudev K Devnani

DOCUMENTS MARKED FOR PLAINTIFF

Ex A1 : Copy of legal notice dt.1.12.2008

Ex.A2 : Original postal receipt dt.1.12.2008

Ex.A3 : Postal acknowledgment dt.3.12.2008

Ex.A4 : Reply notice dt.29.12.2008

DOCUMENTS MARKED FOR DEFENDANT : Nil

sd/-

Smt. J.Maithreyi

XXI JUNIOR CIVIL JUDGE

CITY CIVIL COURT: HYDERABAD.

IN THE COURT OF THE XXI JUNIOR CIVIL JUDGE

CITY CIVIL COURT: HYDERABAD.

Dated: The this 8 th day of May, 2015

PRESENT: Smt. J. MAITHREYI., LL.M.,

XXI JUNIOR CIVILJUDGE,

O.S. NO.33 OF 2014

BETWEEN:

1. Mrs. Jannu Bhagyamma @ Bhagya,

W/o. Jannu Adam, aged : 38 years,

Occ : Labour, R/o. Lid Cap, 5/77/27,

Darga Hussain Shawali, Golkonda, (P.O)

Hyderabad and also at D.No. 22/3/208,

Desaipeta, Warangal Town, Block no.3, Warangal

2. Jannu Praveen, S/o. Jannu Adam aged : 23 years, Occ : service,

3. Jannu Bhavani, D/o. Jannu Adam, aged : 20 years, Occ : Student,

All r/o. Lidcap, 5/77/27, Darga Hussain Shawali,

Golkonda, (P.O) Hyderabad and also at D.No.22/3/208,

Desaipet, Warangal Town, Block no.3, Warangal.

(Plaintiffs no.2 and 3 are added as per order dt.30.7.14 in I.A.No.214/14) . . . Plaintiffs.

A N D

The Senior Manager, LIC of India,

City 3-6-140, 1st and II Floors, Netaji Bhavan,

Branch XV : - Himayathnagar, Hyderabad - 29.

… Defendants

This suit is coming on this day before me for final hearing in the presence of Sri.Aditya Kumar Jaiswal, Counsel for the Plaintiffs and of Sri S.Sravan Kumar counsel for the defendant and the matter having stood over for consideration till this day, this court delivered the following.

J U D G M E N T

This is a suit filed Under Order VII Rule 1 R/W Section 26 C.P.C with a prayer to pass a decree in favour of the plaintiff to declare that

2 OS.NO.33/14

the plaintiffs are the legal heirs of late Jannu Adam for receiving the benefits under the Insurance Policy bearing No.680314545 and consequently the suit may be decreed amounting to Rs.63,127/- along with interest @ 24% per annum accrued thereof with cost.

2. The brief averments of the plaint are as follows:

The averments made in the plaint shows that the plaintiff no.1 is wife of Jannu Adam, plaintiff no.2 and 3 are children of plaintiff no.1 and Jannu

Adam. At about 18 years back the plaintiff no.1 got into marriage with

Jannu Adam who was working as skilled worker, LID CAP limited,

Hyderabad. He wa transferred to S.C., S.T Corporation, Cuddapah so he left

Hyderabad for reporting the duty at Kadapa. Afterwards her husband found missing. On enquirty with S.C and S.T office, the plaintiff no.1 came to know that whereabout her husband is not known. She reported the matter to the officials of said office then they informed they would enquiry inform whereabout of her husband. Thereafter she has not received any information from them. She lodged a complaint before S.I of Police Kadapa.

The Police registered a case in crime no.177/10 for man missing and investigated the matter.

3.During the course of investigation the Police examined the plaintiff and other two witnesses. The seen of offense was inspected and prepared rough sketch. The publicity was given by editing look out notice over internet the A.P.Police Messanging System, Radio message has been given to all the C.Is of state requesting to inform the clues of movements of the missing man. The details of missing man published in daily Telugu

Newspaper with his photos and cell phone of the Sub-Inspector and

Inspector of Police requesting for whereabouts of him, but no useful

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information came to light. About 1000 pamplets have been printed and they have been distributed in all busy places at all towns in Kadapa district beside Warangal, Chittor, Ananthapur and Nellore districts. The Police had closed the case as undetectable. They submitted the report to the Sub divisional Police Officer, who issued the proceedings to refer the case as undetectable under RC No.211/SDPO-KDP/2011, dt.20.6.2011. The

Mandal executive Magistrate is also passed orders that further action is not necessary in this case as the man is missing since 22.9.2003.

4.The husband of plaintiff is missing since 22.9.2003 and his whereabouts are not known irrespective of taking all the steps for tracing therefore presumption can be taken under section 108 of Indian Evidence

Act that the person is died. In view of the above legal proposition it is clear that if the policy is inorder the plaintiff is entitled to receive the payments under the policy being the widow of missing person as he is not heard for a period of 7 years since 22.9.03 till 22.9.2010. The LIC policy of Jannu Adam lying with the defendant for the policy no.680314545, the plaintiffs are entitled to receive the benefits from the defendant Rs.41,346/-. The defendant herein having received the entire policy claim papers in the month of May 2012 and also again 24.9.2012 but they said that after receiving the order from the court they will proceed further hence the present suit is filed.

5. On the other hand the defendant has filed a written statement for the facts as follows :

The defendant is not aware that the plaintiff is also called as @

Bhagya. The plaintiff failed to mention when her husband was transferred when her husband was reported on duty at Kadapa and when he found

4 OS.NO.33/14

missing and when she reported the officials. Further she failed to mention the date when she reported the matter to the Police.

6.As per the decisions of Hon'ble Supreme Court in order to successful maintain the claim for the benefit under the Insurance Policy, it is necessary for the policy to kept alive by punctual payment of premium under the claim was made. The policy is issued for sum assured for Rs.50,000/- under T and T 88-25. Date of commencement is 28.12.1992. The policy should be kept in force till the court gives the decree for presumption of death. In case, if premium payment under the policy is discontinued the policy will lapse and paid up value only, if eligible, payable. In this case, premiums under the policy bearing no.680314545 received only upto March 2004 under salary savings scheme from employer. Hence the policy is in lapsed condition.

7.The claimant Smt.J.Bhagyamma submitted claim paper to City

Branch -15, Hyderabad in the month of May 2012 and again on 24.9.2012 for payment of claim proceeds. The branch officer replied to the claimant vide their letter dt.26.9.2012 asking for submission of decree of the court for settlement of claim proceeds.

8.The defendant once again reiterates that the employer of the policy holder paid premium upto March 2004 only under salary saving scheme, thereafter the employer did not deduct any premium from the salary of the policy holder as such the policy is in lapsed condition. It is the duty of policy holder to keep the policy in force by paying the premium regularly incase the employer fails to deduct the premium from his salary. Since the policy is in lapsed condition only paid up value is payable under the policy. If at all, the plaintiff is entitle for any amount under the policy she is entitled for

5 OS.NO.33/14

paid up value of Rs.22660/- and bonus thereof Rs.40467/- totalling to

Rs.63127. The plaintiff has no cause of action hence prays the court to dismiss this suit.

9. Basing on the above pleadings, this court has framed the following issues.

1. whether the plaintiff is entitled to the relief of declaration as prayed for ?

2. to what relief ?

10.At the time of trial the plaintiff examined himself as PW1 and got marked the documents Ex.A1 to Ex.A7. PW2 also examined. The defendant has not adduced any evidence so the defendant evidence is closed.

11.After hearing the arguments of both sides, today the matter stood for judgment.

12.Issue no.1

In this suit the plaintiffs are seeking to declare their legal character i.e. they are the legal heirs of Jannu Adam so the provisions mentioned under section 34 of specific relief act applies to present case. It reads as follows.

“Section 34 discretion of court as to declaration of status of right: any person entitled to any legal character, or to any right as to any property ,may institute a suit against any person denying or interested to deny, his title to such character or right , and the court may in its discretion , make there in a declaration that he is so entitled and the plaintiff need not in such suit asked for any further relief".

6 OS.NO.33/14

Provided that no court shall make any such declaration where plaintiff, being able to seek further relief than a mere declaration of title, omits to do so.

Explanation: a trustee of property is a person interested to deny , a title adverse to the title of some one who is not in existence and from whom , if in existence , he would be a trustee”.

13. From the above provision it is clear that the requisites for grant of declaratory relief can be summed up as under .

The plaintiff is at the time of suit, entitle to any legal character or to any right as to any property, the defendant has denied or is interested in denying the character or title of the plaintiff and the relief of declaration asked for is a declaration that the plaintiff is entitled to a legal character or right to property and the plaintiff is not in a position to claim further relief than the bare declaration of his title.

Further it is pertinent to note that it is completely a discretionary power of court to grant declaratory relief.

14 In the instant case the plaintiffs sought the relief of declaration of their status their contention is that they are the legal heirs of Jannu Adam.

He was working as skilled worker in Lid Cap Limited, Hyderabad, during 2003 he was transferred to S.C., S.T Corporation, Kadapa so he left

Hyderabad reported for duty at Kadapa. Afterwards he found missing. The plaintiff no.1 approached S.C., S.T Corporation as well as the Police and lodged a complaint. The police investigated the matter but they could not found whereabout of her husband.

15.The husband of plaintiff no.1 was missing from 2003 onwards so he is not been heard of several years therefore under section 108 of Indian

7 OS.NO.33/14

Evidence Act a presumption can be taken he is dead. The plaintiffs contention is that as the presumption is prevails under section 108 of

Indian Evidence Act so the presumption can be taken and declare the plaintiffs as legal heirs and to pass a decree for an amount of Rs.63,127/- from the defendant herein. No doubt, the presumption is there under section 108 of Evidence Act but the burden squarely rests upon the plaintiffs to establish this fact.

16.The plaintiff no.1 examined herself as PW1 and got marked the documents Ex.A1 to Ex.A7. Ex.A1 is FIR in crime no.177/10. Ex.A2 is copy of complaint to Mandal Executive Magistrate both documents shows that the plaintiff no.1 herein lodged a complaint stating that her husband is missing so the Police has registered a case. Ex.A3 is the proceedings of

S.D.P.O Kadapa, Ex.A4 is proceedings of Mandal Executive Magistrate,

Kadapa both documents shows inspite of investigation of Police they could not trace out said Jannu Adam so the Inspector of Police requested the

S.D.P.O to issue to publish the names and other particulars of the missing men in crime no.177/10 in A.P.Gazette notiification as the above case is being referred as undetectable. Ex.A4 is the proceedings of Mandal

Executive Magistrate, Kadapa. It is also shows that inspite of investigation they could not trace out the particulars of missing man so in the remarks column stated that further action is not necessary in this case.

17.The documents Ex.A1 to ex.A4 clearly shows that the husband of plaintiff no.1 is missing and inspite of investigation they could not trace out his particulars. Though the complaint was registered in the year 2010 but the contents of complaint shows since 2003 he is whereabouts are not known.

8 OS.NO.33/14

18.Thereafter the PW2 was also examined to prove that Jannu Adam was missing. The PW2 in the chief examination deposed that he was working in the unit of Lid Cap Company Limited. At that time he is having acquaintance with the husband of plaintiff no.1 who was also working as skilled worker in the said company. Thereafter he was transferred to Kadapa and he was found missing. A Police enquiry was conducted but his whereabouts are not known.

19.The evidence of PW1 and PW2 both shows that Jannu Adam is missing from 2003. The defendant counsel has cross examined the witness

PW1 and stated that her husband is still in service and she has filed a false case for claiming Insurance. The witness has denied the suggestion. Pw2 was also cross examined, in the cross examination he deposed that he worked for 30 years in Lid Cap Company and he denied the suggestion the husband of plaintiff was not missing, till today he is working in S.C., S.T

Corporation, the witness denied this suggestion.

20.The plaintiff counsel contended that the plaintiff by adducing oral and documentary evidence established that her husband is missing from last 7 years so the presumption can be taken under section 108 of Evidence Act.

He relied on the judgment of Hon'ble Supreme Court reported in LIC of India

Vs. Anuradha in which the Hon'ble Court held that you would agree that death is one of the starke realities of life. It is the ultimate everything in life is uncertain after birth, death is an exemption and is certain to happen in ones life. But there may be situations where the exact time and manner of death of a person cannot be ascertained or known. Say for example a person suddenly disappears and his where abouts are not known thereafter, despite reasonable efforts of his near and dear relatives or people who ought

9 OS.NO.33/14

to known about his existence in the normal course had he been alive. In sucha situation the question arises as to when the nominees of the missing insured can lay a claim to the benefits of the policies and what their obligations are. Are they bound to continue to pay premium ? if so how long are they bound to make payment and when does the law presume the death of such an insured these were the points adjudicated by Hon'ble Supreme

Court in the above case.

21.Burden of proving that the person is alive who has not been heard for 7 years; provided that the question is whether a man is alive or dead and is proved that he is not been heard of for 7 years, the burden of proving that he is alive shifted to the person who affirms it. section 108 lays down a general rule as to presumption of existence of a person this is regard to only death of the person that to after the lapse of 7 years and if time lapsed is only 6 years and 364 days the presumption cannot be applied. More particularly the presumption is not available as to the death of the subject person. This fact has to be proved by direct or circumstantial evidence. In the instant referred case, one Sham Prakash Sharma husband of Mrs.

Anuradha had taken a life insurance policy the policy was commenced with effect from February 1986. The premium was payable very six months and was paid for two years. The respondents husband suddenly disappeared from Bombay on 17th July 1988 and thereafter he was not trace up and his whereabouts were not known. The respondent lodged a FIR with the police.

On 11.7.1988 the LIC send a communication address to Mr.Sham Prakash

Sharma delivered at his residence informing that the Insurance Policy had lapsed for non payment of premium. On June 29, 1996 the respondent approached the LIC for release of benefits under the policy proceedings on an assumption that Mr.Sham Prakash was dead as he had not been seen

10 OS.NO.33/14

and heard for 7 years. The LIC turned down the claim of the respondent relying on rule 14 of Insurance manual which reads as under “where a person is reported missing, it is to be advised to the claimant that the life insured will be presummed to be dead after 7 years of production of decree from the court of law and in the meantime the policy is to be kept in force by making the payment regularly”. The respondent has approached state

Consumer Disputes Redressal Commission, the State Commission accepted the respondent claim and held that the rule 14 relied on by the petitioner had no relevancy in view of statutory presumption arising under section 108 of Indian Evidence Act. The LIC preferred an appeal before Hon'ble High

Court but it was dismissed, subsequently appeal was preferred before

Hon'ble Supreme Court, the Hon'ble Supreme Court held that after the

lapse of 7 years when the matter came before the court, not only death can be presummed but also time of death could be assumed, which would be the time when the fact of missing was first noticed. Further the Hon'ble

Court held that inorder to successful maintain the claim for the benefit under the Insurance policy, it is necessary for the policy to kept alive by puntual payment of premium under the claim was made. The LIC was justified in turning down the claims by pleading that policy had lapsed and all that could be paid to the claimants was the paid up value of the policy.

22.In the instant case, at first the plaintiffs have to prove that Jannu

Adam was missing and not heard for a period of 7 years. They have filed

Ex.A1 FIR, Ex.A2 copy of complaint to Mandal Executive Magistrate, Ex.A3 is proceedings of S.D.P.O, Ex.A4 proceedings of Mandal Executive

Magistrate which shows that the plaintiff no.1 lodged a complaint that since

2003 her husband was missing, the Pw2 who was working along with

Jannu Adam also deposed that since 2003 Jannu Adam was missing. The

11 OS.NO.33/14

plaintiffs by adducing oral and documentary evidence established that

Jannu Adam was missing from 2003 so 7 years have been already lapsed and there is no evidence to show that any body had heard of him during this period. The defendant in his written statement clearly mentioned that

Jannu Adam paid the policy amount from 28.12.1992. They have received the premium upto March 2004 under salary savings scheme thereafter they have not received any amount. The contention plaintiffs are that in the month of September 2003 onwards said Jannu Adam is missing but the defendant is stating that till March 2004 they have received the premiums.

The policy amount will be paid for every six months so the amount paid

before his missing might have covered the period till March 2004.

23.However, the court has to look into the fact that whether there is any cause of action for filing this suit. The plaintiffs are claiming insurance amount the defendants have asked to produce legal heir certificate and in the cross of PW1 and PW2 also the defendant no.1 had taken a plea that

Jannu Adam is still alive and working some where, the cases where a person claims to be take presumption under section 108 of Evidence Act, the cause of action arose when the other person contends that said person is alive therefore this court feels that the cause of action is there for filing this suit. Further Ex.A7 was issued by Tahasildhar Warangal it indicates that the plaintiffs herein are the legal heirs of Jannu Adam so this court feels that they are only entitled to receive the benefits under the policy.

Hence this suit is decreed and the plaintiffs herein are declared as legal heirs of Jannu Adam and consequently directs the defendant no.1 to pay the amount of Rs.63,157/- covered under the policy bearing no.680314545.

The plaintiffs asked this court to grant interest @ 24% per annum on the amount of Rs.63,157/- but this court feels that the defendant no.1 has not

12 OS.NO.33/14

intentionally with hold the amount, it is for the plaintiffs to claim the amount within the time and there are legal impediments in releasing the amounts for which the defendant no.1 is not responsible hence the interest is not awarded.

In the result, this suit is decreed without cost and this court is hereby declares that the plaintiffs herein are the legal heirs of Jannu Adam and consequently directs the defendant no.1 to pay the amount of Rs.63,157/- covered under the policy bearing no.680314545 to the plaintiffs herein.

Typed to my dictation, corrected and pronounced by me in open court on this the 8th day of May, 2015.

sd/-

Smt. J.Maithreyi

XXI JUNIOR CIVIL JUDGE

CITY CIVIL COURT: HYDERABAD.

APPENDIX OF EVIDENCE

WITNESS EXAMINED

FOR PLAINTIFFS: FOR DEFENDANTS:

PW1: J.Bhagya

PW2 : T.Veeriah

DOCUMENTS MARKEDFOR PLAINTIFF:

Ex.A1 :C.C of FIR in crime number 177/10

Ex.A2 : C.C of complaint to Mandal Executive Magistrate, Kadapa

Ex.A3 : C.C of Proceedings of SDPO, Kadapa

Ex.A4 : C.C of Proceedings of Mandal Executive Magistrate, Kadapa

Ex.A5 : Surrender value quotation of policy number 680314545

Ex.A6 : Letter addressed by the defendant to the plaintiff.

Ex.A7 : Original Family member certificate dt.20.6.2012

FOR DEFENDANST: NIL

sd/-

Smt. J.Maithreyi

XXI JUNIOR CIVIL JUDGE

CITY CIVIL COURT: HYDERABAD.

IN THE COURT OF XXII JUNIOR CIVIL JUDGE,

CITY CIVIL COURT, AT: HYDERABAD

DATED: THE THIS 1st DAY OF APRIL, 2015 PRESENT: SMT. J .MAITHREYI, LL.M

XXI JUNIOR CIVIL JUDGE

FAC XXII JUNIOR CIVIL JUDGE

O.S.NO. 2057 OF 2013

BETWEEN:

1. Smt. Pakalapati Kashamma, W/o. late C.Shankariah, Aged : 33 years, Occ: Housewife.

2. Smt. C.Lalitha, W/o. late C.Shankariah, Aged : 33 years, Occ: Housewife.

3. C.Pruthivi Raju, S/o. late C.Shankariah, Aged : 17 years, Occ: Student, Rep. by his mother P.Kashamma.

4. C.Goutham Raju, S/o. late C.Shankariah, Aged : 17 years, Occ: Student, Rep. by his mother P.Kashamma.

5. C. Shivaranjaji, D/o. late C.Shankariah, Aged : 16 years, Occ: Student, Rep. by her mother C.Lalitha,

6. C. Shivani, D/o. late C.Shankariah, Aged : 13 years, Occ: Student, Rep. by her mother C.Lalitha,

7. C. Shivar Sai Vignesh, D/o. late C.Shankariah, Aged : 8 years, Occ: Student, Rep. by his mother C.Lalitha,

All the above Plaintiffs are R/o. 9-1-33/A/1/25, Prashanth Nagar, Langer House, Hyderabad – 500 008.

. . . Plaintiffs

A N D

1. The Commissioner of Prohibition and Excise, Andhra Pradesh, Nampally, Hyderabad -1.

2. The Tehsildar, Golconda Mandal, Hyderabad

3. To All Concerned.

. . . Defendants

This suit is coming before me for final hearing in the presence of

Sri. G.Sanjay Kumar, Advocate for Plaintiffs and Mumtaz Sultana, learned

AGP for Defendant no. 1 and 2 and Defendant no. 3 remained exparte and 2 OS.2057 OF 2013 the matter having stood over to this day for consideration, this Court delivered following:-

J U D G M E N T

This Suit is filed under Order VII Rule 1 of CPC read with section 26 of CPC, with a prayer to pass a Decree for Declaration in favour of Plaintiffs that the Plaintiffs are the Legal Heirs of Late C.Shankariah, and to grant a

Succession Certificate in favour of Plaintiff no.1 for compassionate appointment in Defendant no. 1 Office as a Junior Assistant, with costs.

The brief averments of the case as per Plaint are as follows:

1. The Plaintiff no.1 is the first wife of the deceased C.Shankariah,

Plaintiff no. 2 is the second wife of the deceased C.Shankariah, the Plaintiff no. 3 is the son of Plaintiff no. 1 and the deceased C.Shankariah, Plaintiff no. 4 is the son of Plaintiff no. 1 and late C.Shankariah, Plaintiff no. 5 is the daughter of Plaintiff no. 2 and the deceased C.Shankariah , Plaintiff no. 6 is the daughter of Plaintiff no. 2 and the deceased C.Shankariah and Plaintiff no. 7 is the son of the Plaintiff no. 2 and deceased C.Shankariah. Sri.

C.Shankariah, S/o. C.Agamaiah, died on 17-01-2012, in Yashoda Super

Specialty Hospital, Hyderabad , while is service in the Defendant no. 1 office as a Prohibition and Excise Constable. The Plaintiff’s are the only legal heirs of the deceased and there are no other legal heirs of the deceased.

The Plaintiff’s approached the Tehsildar, Golconda Mandal the 2nd

Defendant here in to issue Family Member Certificate and after thorough enquiry Tehsildar, Golconda Mandal, Hyderabad issued in favour of the

Plaintiffs a Family Member Certificate vide Application No. FAMC

D10042452, dt.5-11-2012 herein. The Plaintiff no. 1 approached the

Defendant no.1 for appointment on compassionate ground in which the 3 OS.2057 OF 2013

Defendant no.1 advised to get Succession Certificate to that effect. The

Plaintiff no.1 name before marriage is Pakalapati Kashamma and after marriage is C. Kashamma. The Plaintiff no. 1 is using her maiden name

Pakalapati Kashamma as mentioned in her SSC certificate and Decree

Certificate, for all practical purposes, in applications for job purpose. The

Defendant no.1 herein gave a letter to Plaintiff no.1 to obtain Succession

Certificate from Hon’ble Civil Court, Hyderabad vide letter no. CR.NO.

1333/2013/CPC/13, Dt. 28-08-2013 such the Plaintiff’s have no other option except to approach the Hon’ble Civil Court for seeking relief to declare the Plaintiffs are legal heirs of late C.Shankaraiah and Plaintiff no. 1 to succeed for getting compassionate appointment by issue of succession certificate for as the Defendant no. 1 has asked the Plaintiff no.1 to submit

Succession Certificate, for appointment her as Junior Assistant in the

Defendant no. 1 on compassionate grounds.

2.On the other hand the Defendant no.1 has filed the written statement and the Defendant no. 2 filed a Memo adopting the written statement of Defendant no. 1. The Defendant no. 3 is set exparte. The contents of written statement run as follows:-

3.The Suit is not maintainable either in law or facts of the case. The

Plaintiff no. 1 has filed an application stating that her husband Sri.

C.Shankariah, P & E Constable expired on 7-1-2012 while in service of

Assistant Commissioner of Prohibition and Excise, Hyderabad and requested to appoint her as Junior Assistant on the compassionate ground.

4.The Plaintiffs no. 1 and 2 have submitted a joint application to the

Prohibition and Excise Superintendent, Hyderabad submitting an Order 4 OS.2057 OF 2013 copy of Hon’ble APAT, Hyderabad in OA.No.7081/2012, dt. 5-9-2012 and declaration cum Compromise Deed, in which the Hon’ble APAT, Hyderabad while disposing of OA.No.7081/2012, dt. 5-9-2012 directed the Defendants to examine the case of applicants with reference to the Declaration cum

Compromise Deed entered between the applicants on 14-2-2012 regarding their request for release of Pension, Pensionary Benefits and appointment on Compassionate grounds and pass appropriate orders within the period of 4 weeks from the date of receipt of these Orders.

5.The Declaration cum Compromise Deed dt. 14-2-2012 entered by the

Plaintiff no. 1 and 2 is found to be against public policy and cannot be legally enforceable because as per a Government Circular Memo no. 11027-

B/26/PEN-1/87, dt. 20-08-1991, all the Government servants irrespective of the religion shall not marry a second wife without the prior permission of the Government as per rule 25 of AP Civil Services ( Conduct ) Rules, 1964 and such a second wife shall not be eligible for pensionary benefits viz., family pension, retirement gratuity and pension sanction authorities have to ignore such widows for purpose of family pension and retirement gratuity and no family pension and retirement gratuity be divided between the two widows.

6.The Plaintiff no. 1 submitted a letter dt. 17-7-2013 stating that she is the first legal wedded wife and that she was having all the rights and the second marriage of the deceased to Plaintiff no. 2 is void in terms of Hindu

Marriage Act, 1955 and Rule 25 of APCS (Conduct) Rule 1969.

7.In view of the claim of first wife this Defendant has directed the Plaintiff no.1 to produce Succession Certificate vide 5 OS.2057 OF 2013

CRNo.1333/2013/CPE/13, Dt.28-8-2013. So that her case for compassionate appointment can be taken up. After due enquiry the office directed the Plaintiff to bring Succession Certificate from the competent court. This Defendant is not aware of the relationship of Plaintiffs with the deceased. The Plaintiff submitted Family Member Certificate vide application no. FAMC10042452 and this Office asked the Plaintiff to bring

Succession Certificate. The Defendant no. 1 issued a letter to the Plaintiff for getting Succession Certificate. Hence, prays the Court to dismiss the suit with costs.

8.Basing on the above pleadings this court has framed the following

Issues.

Issue No. 1 : Whether the Plaintiffs no. 1 to 7 are entitled to be declared as legal heirs of late C.Shankariah.

Issue No. 2: If so , to what relief.

9.At the time of trial, the Plaintiff no.1 examined herself as PW1 and got marked documents Ex.A1 to A6.

10.On the other hand, the Officer of the Defendant no. 1 examined as

DW1 and got marked the documents Ex.B1 to B3.

11.After hearing the arguments of both sides. Today the matter stood for

Judgment.

Issue No.1: In this suit the plaintiffs are seeking to declare their legal character i.e. they are the legal heirs of Sri. Late C.Shankariah, so the 6 OS.2057 OF 2013 provisions mentioned under section 34 of specific relief act applies to present case. It reads as follows.

“Section 34 discretion of court as to declaration of status of right: any person entitled to any legal character, or to any right as to any property, may institute a suit against any person denying or interested to deny, his title to such character or right, and the court may in its discretion, make there in a declaration that he is so entitled and the plaintiff need not in such suit asked for any further relief.

Provided that no court shall make any such declaration where plaintiff, being able to seek further relief than a mere declaration of title, omits to so.

Explanation: a trustee of property is a person interested to deny a title adverse to the title of some one who is not in existence and from whom, if in existence, he would be a trustee”.

From the above provision it is clear that the requisites for grant of declaratory relief can be summed up as under.

The plaintiff is at the time of suit, entitle to any legal character or to any right as to any property, the defendant has denied or is interested in denying the character or title of the plaintiff and the relief of declaration asked for is a declaration that the plaintiff is entitled to a legal character or right to property and the plaintiff is not in a position to claim further relief than the bare declaration of her title. Further it is pertinent to note that it is completely a discretionary power of court to grant declaratory relief.

11.In the instant case the plaintiffs sought the relief of declaration of their status; their contention is that they are the legal heirs of Sri. Late 7 OS.2057 OF 2013

C.Shankariah, as the Plaintiff no.1 is entitled to the job on compassionate appointment in the office of the Defendant no.1, but they are asked to produce Succession Certificate so it is nothing but denial of their status hence, they have filed present suit for Declaration. It is for the Plaintiffs to establish that they are the legal heirs of Deceased C.Shankariah. The

Plaintiff no.1 examined her self as PW1 and got marked the documents

Ex.A1 to A6.

12.Ex.A1 is the original death certificate of late Sri.C.Shankariah. This document shows that Sri. C. Shankariah died on 7-1-2012. Ex.A2 is the original Family Member ship Certificate issued by the revenue officer, it shows the Plaintiff no.1 is the first wife , the Plaintiff no. 2 is the second wife of deceased Sri.C. Shankariah. The Plaintiff no. 3 and the Plaintiff no.

4 are sons of Plaintiff no.1 and Sri.C. Shankariah, the Plaintiff no. 5 to 7 are children of the Plaintiff no. 2 and Sri.C. Shankariah. Ex.A3 is copy of letter from the Defendant no. 1 Office, it shows that they have asked the Plaintiffs to submit Succession Certificate. Ex.A4 is the copy of Aadhar Card of

Plaintiff no.1 in which her husband name is mentioned as Sri.C.

Shankariah, Ex.A5 is copy of SSC Certificate of Plaintiff no.1. Ex.A6 is the copy of Provisional Certificate of consolidated marks memorandum of

Plaintiff. It seems that the above documents are filed to prove that the

Plaintiffs are legal heirs of deceased Sri.C. Shankariah. Ex.A2 is the crucial document which is issued by the Revenue Officials after due enquiry, establishes that the Plaintiffs are legal heirs of deceased Sri.C. Shankariah.

13.Though the Ex.A2 shows all the Plaintiffs are legal heirs but this

Court cannot declare all the Plaintiffs as legal heirs of deceased because as 8 OS.2057 OF 2013 rightly contended by the Defendants the Plaintiff no. 2 is second wife of deceased Sri.C.Shankariah. There is no such averment that the deceased got into second marriage with the Plaintiff no. 2 after getting divorce legally from the Plaintiff no. 1. Admittedly, the deceased Sri.C. Shankariah was a

Government employee. As per a Government Circular Memo no. 11027-

B/26/PEN-1/87, dt. 20-08-1991, all the Government servants irrespective of the religion shall not marry a second wife without the prior permission of the Government as per rule 25 of AP Civil Services ( Conduct ) Rules, 1964 and such a second wife shall not be eligible for pensionary benefits viz., family pension, retirement gratuity and pension sanction authorities have to ignore such widows for purpose of family pension and retirement gratuity and no family pension and retirement gratuity be divided between the two widows. Therefore, this court cannot declare the Plaintiff no.2 as legal heir deceased C.Shankariah, moreover the children borned to Plaintiff no. 2 through the deceased shall be deemed to be legal heirs of deceased

C.Shankariah.

14.The Defendant no. 1 adduced the evidence of DW1/ P.Venkateshwar

Reddy, he reiterated the same , stated in the written statement and got marked the documents Ex.B1 to B3. Ex.B1 is the attested copy of Order in

OA.No.7081 of 2012. Ex.B2 is attested copy of letter no. A2/579/2013,

Ex.B3 is attested copy of letter in CR.NO. 1333/2013/CPE/13, dt.20-8- 2013. The perusal of document Ex.B1 shows the Plaintiff no. 1 and

Plaintiff no.2 have filed a Declaration cum compromise before the Office of

Defendant no.1.,they entered into compromise for the terms that the

Plaintiff no.1 will get job on compassionate appointment, the Plaintiff no. 2 is entitled for pensionary benefits. Further, all other service benefits shall 9 OS.2057 OF 2013 be shared equally between both the parties and they will get equal share in immovable properties of the deceased. The parties shall not file any complaints, cases against each other in any court by virtue of this settlement. They will take care of their mother in law, further both parties shall cooperate and coordinate in the departmental procedures. They entered into this compromise for submission to the Excise Authority.

15.This document shows both Plaintiff no. 1 and 2 have entered into compromise for the facts stated above, thereafter they approached the

Hon’ble AP Administration Tribunal with a prayer to pass an Order

declaring that in action on part of Defendants herein inconsidering the case of Plaintiff no. 1 herein for appointment on compassionate ground and for payment of pensionary benefits to the Plaintiff no. 2 in terms of declaration cum compromise entered in between the parties as being Arbitrary and illegal and direct the Defendants herein to consider the case Plaintiffs herein. The Hon’ble Court passed an Order directing the Defendants herein to examine the case of Plaintiffs herein with reference to the Declaration – cum- Compromise Deed entered between the Plaintiffs herein on 14-2-2012 within a period of 4 days. Ex. B2 are proceedings of Dy. Commissioner of

Prohibition and Excise Department , it shows that the Plaintiffs have approached the Defendant no. 1 for which the Defendant no.1 stated that the deceased a Government employee and there is no compromise decree passed by any court of law in favour of both the applicants of the deceased individual. The compromise has no validity in existing rules as the same is not passed by any court of law. As per Treasury rule 16 , sub rule 89, the pension disbursing officer shall have to insist on a Succession Certificate 10 OS.2057 OF 2013 issued by a court of law, hence even if Mandal Revenue Officer gives a legal heir certificate in a case where there is a dispute, it is not valid and action should be taken. So the representations of Plaintiffs herein cannot be granted based on the declaration cum compromise deed. The Plaintiff no. 1 will be appointed on compassionate ground on submission of Succession

Certificate. Ex.B3 is the proceedings issued by Commissioner of Prohibition and Excise in which they directed to produce Succession Certificate to the

Plaintiff no.1.

16.The documents Ex.B1 to B3 shows that the Plaintiffs have entered into compromise and asked the Defendant no. 1 to give job to the Plaintiff no.1 and to pensionary benefits to the Plaintiff no. 2 as they are the widows of deceased C.Shankariah but deceased was a Government employee so they refused to divide the pensionary benefits in between two wives as per the Government circular memo no. 11027/B/26/PEN. I87 Dt.20-8-1991.

Thereafter in Ex.B2 it is also mentioned when two widows entered into compromise in a court of law and get a compromise decree, action for sanction of Family pension shall have to be taken strictly in accordance with the direction contained in the Judgment of the court to avoid further litigation. In the instant case, the parties have not entered into compromise

in the court and no compromise decree was passed. The parties entered

into compromise out side of court so the Defendants have rightly asked the

Plaintiffs to produce the certificate from the Court. It gives a cause of action to the Plaintiffs for filing this suit. However, as already stated above this

Court cannot declare the Plaintiff no. 2 as legal heir as she is second wife of deceased and there is no legal validity to her marriage. Further, the 11 OS.2057 OF 2013 compromise was not entered before any court of law, no decree is passed on it, even in the present suit also they have not mentioned about the compromise the Defendants have filed the documents Ex.B1 to B3 so this

Court cannot consider the compromise filed under Ex.B1.

17.The document Ex.A2 shows the Plaintiff no. 1 is 1st wife of deceased, the Plaintiff no. 3 to 7 are children of deceased so in view of Ex.A2 and other documents the Plaintiff no.1, 3 to 7 are declared as Legal Heirs of deceased.

18.The Plaintiff have sought the relief of issue of Succession Certificate but this court is not having jurisdiction to issue Succession Certificate. The

Hon’ble Ist Senior Civil Judge is designated court for issue of Succession

Certificate so this court has not issued any Succession Certificate.

Moreover, the Plaintiffs asked this court to direct the Defendant no.1 to appoint the Plaintiff no.1 as Junior Assistant on compassionate grounds.

This court feels that it is an administrative matter and this court cannot direct the def no.1 to appoint the Plaintiff no. 1 in the post of Junior

Assistant in the office of Defendant no.1., Moreover, the Defendant no.1 stated after getting legal heir certificate from Court, they will appoint

Plaintiff no.1 on compassionate ground, so there is no need of specific direction.

19.In the light of above discussion, this court is of view that the Plaintiff no.1, 3 to 7 are legal heirs of deceased but this court is not issuing any

Succession Certificate for lack of jurisdiction. This court has not given 12 OS.2057 OF 2013 any specific direction to the Defendant no. 1 to appoint the Plaintiff no.1 on compassionate ground in the office of Defendant no.1.

20.Issue No.2: In the result, this suit is decreed partly by declaring the

Plaintiff no.1, 3 to 7 as legal heirs of deceased but this court is not issuing any Succession Certificate for lack of jurisdiction. . This court has not given any specific direction to the Defendant no. 1 to appoint the Plaintiff no.1 on compassionate ground in the office of Defendant no.1 as it is administrative matter.

Typed to my dictation, corrected and pronounced by me in the open Court this the 1st day of April, 2015.

XXI JUNIOR CIVIL JUDGE

FAC XXII JUNIOR CIVIL JUDGE

CITY CIVIL COURT, HYDERABAD.

APPENDIX OF EVIDENCE

WITNESSES EXAMINED

FOR PLAINTIFFS: FOR DEFENDANTS

PW1: Smt. Pakalapati Kashamma DW1: P.Venkateshwar Reddy

DOCUMENTS MARKED FOR PLAINTIFFS

1) Ex.A1 is the original death certificate of late Sri.C.Shankariah

2) Ex.A2 is the original Family Member ship Certificate issued by the revenue officer

3) Ex.A3 is copy of letter from the Defendant no. 1 Office.

4) Ex.A4 is the copy of Aadhar Card of Plaintiff no.1

5) Ex.A5 is copy of SSC Certificate of Plaintiff no.1.

6) Ex.A6 is the copy of Provisional Certificate of consolidated marks memorandum of Plaintiff.

13 OS.2057 OF 2013

DOCUMENTS MARKED FOR DEFENDANTS :

1) Ex.B1 is the attested copy of Order in OA.No.7081 of 2012.

2) Ex.B2 is attested copy of letter no. A2/579/2013,

3) Ex.B3 is attested copy of letter in CR.NO. 1333/2013/CPE/13, dt.20- 8-2013.

XXI JUNIOR CIVIL JUDGE

FAC.XXII JUNIOR CIVIL JUDGE

CITY CIVIL COURT, HYDERABAD.

IN THE COURT OF THE XXI JUNIOR CIVIL JUDGE:

CITY CIVIL COURT: HYDERABAD

Dated: This the 24 th day of April, 2015

PRESENT: Smt. J.MAITHREYI., LL.M.,

XXI JUNIOR CIVIL JUDGE

O.S.No.383 OF 2015

Between:

Mr.Manchala Praveen Kumar, S/o. Sri M.Ashok Kumar, aged : 39 years, Occ : Business, R/o. H.No. 7-1-209/1/A/1, Ameerpet, Hyderabad - 500016.

...Plaintiff

AND

Mr.Shreyans Jain, S/o. Mahaveer Jain, C/o. I'O Jewels Shop at 7-1-524, Vittal Chamber, Opp : Gurudwara, Satyam Theatre Road, Ameerpet, Hyderabad - 500016.

…..Defendant

This suit is coming for final hearing before me in the presence of Sri

T.Ravindra, Advocate for the plaintiff and defendant called absent and set exparte and the matter having stood over for consideration till this day this Court delivered the following:-

J U D G M E N T

This suit is filed under Order VII Rule 1 to 6 R/w. Sec. 26 of

Civil Procedure Code, with a prayer to pass a decree directing the defendant to vacate and hand over the peaceful possession of the suit schedule property and direct the defendant to pay arrears of rents a sum of Rs.1,14,000/- and to grant future mense profits from the date of suit @

Rs.30,000/- per month for unauthorized occupation of suit property till the defendant vacate the suit schedule property.

2. The brief averments of the case as per plaint is that the plaintiff is the absolute owner of the property shop bearing no.7-1-524 admeasuring 350 sft situated at Vittal chamber, opposite Gurudawar, Satyam Threater

Road, Ameerpet, Hyderabad having acquired the same under a registered

2 O.S.NO.383/15

gift settlement deed dt.27.8.2001.

3.The defendant approached the plaintiff's predecessor in title, in the month of March 1999, requesting the plaintiff's father to let out the suit schedule property on oral lease for conducting his business thereon. the plaintiff's father agreed to let out the suit premises on lease on a monthly rent of Rs,5,750/-payable on or before 5th of every calender month.

Thereafter the rent was enhanced from time to time and presently the monthly rent is of rs.9000/- which was lastly paid by the defendant for the month of December 2013. At the time of inception of lease, it was also agreed between the plaintiff's father and the defendant that if the defendant fails to pay the rent consequently for 3 months the tenancy between the parties shall stand terminated and the defendant shall be liable to be evicted from suit property.

4.The defendant was inducted as a tenant with the above condition, thereafter the property was transferred infavour of plaintiff, the same was informed to the defendant herein, the defendant came forward and attorney the tenancy with the plaintiff and agreed to continue the tenancy in the suit property. since from the date of inception of lease the defendant was irregular in payment of rents, electricity charges etc., so the plaintiff and his father several times repeatedly demanded him to vacate the suit property but the defendant continued his possession with the same conduct and behavior by paying the rents irregular.

5.The defendant inorder to harass the plaintiff, stopped to pay the rents from January 2004 onwards and he withhold the rents for past 12 months, the defendant is intentionally avoiding to pay the rents so the plaintiff got issued a legal notice dt.8.10.2014 and terminated the tenancy

3 O.S.NO.383/15

by granting a time for one month for vacating the premises. The defendant received the legal notice but he failed to vacate the premises.

Hence the present suit is filed for eviction and the defendant is due of rents from January 2014 so he is liable to pay arrears of rent of

Rs.1,14,000/-.

6.After registering the suit summons were issued to the defendants even after receiving the summons the defendant failed to appear before the court so he is set exparte.

7.At the time of trial the plaintiff examined himself as PW1 and got marked the documents Ex.A1 to Ex.A4.

8.After hearing the arguments of plaintiffs counsel, today the matter stood for Judgment.

9.Now the point for consideration whether the plaintiff is entitled to the relief of perpetual injunction as prayed for ?

10. Point :

According to the plaintiff, he is the owner and landlord of shop bearing No. 7-1-524, admeasuring 350 sft situated at Vittal Chamber,

Ameerpet, Hyderabad having acquired the same under Registered gift settlement deed vide document No.1747 of 2001, dt.27.8.2001. The plaintiff is the tenant of suit premises, he has obtained the suit premises on rent from the father of plaintiff, who was the original owner of suit property. The father of plaintiff let out the suit schedule property on oral lease for conducting his business thereon. the plaintiff's father agreed to let out the suit premises on lease on a monthly rent of Rs,5,750/-payable on or before 5th of every calender month. Thereafter the rent was

4 O.S.NO.383/15

enhanced from time to time and presently the monthly rent is of rs.9000/- which was lastly paid by the defendant for the month of

December 2013. The plaintiffs father gifted the suit property to the plaintiff and attorned the tenancy infavour of plaintiff, the defendant is well aware of it and accepted for it. The defendant is irregular in payment of rents subsequently he failed to pay rents from January 2014 onwards.

so the plaintiff terminated the tenancy by issuing legal notice dt.8.10.2014.

11.The Pw1 inorder to substantiate his case has filed the documents

Exs.A1 to Ex.A4. Ex.A1 is office copy of legal notice. Ex.A2 is postal receipt, Ex.A3 acknowledgment card and Ex.A4 is C.C of gift settlement deed.

12.Ex.A4 clearly shows that the father of PW1 gifted the suit property along with other property to the plaintiff herein. In Ex.A4 it is clearly mentioned that the suit property and other property originally belongs to grand father of PW1 and he executed a will deed infavour of father of

PW1, after the death of grand father of PW1, the father of PW1 inherited the property under will deed so that he has executed gift deed infavour of plaintiff herein so the plaintiff has become the absolute owner.

13.Ex.A1 is the copy of legal notice in which it clearly mentioned that the defendant is not regularly paying the rents so he is asking to vacate the premises within 3 months. Notice was issued on 8.10.2014 by giving time for 3 months so the time will be lapsed in the month of January 2015. The contention of plaintiff is that the 3 months period was already lapsed even though the defendant has not vacated the suit premises so the present suit is filed in the month of February 2015. It clearly shows

5 O.S.NO.383/15

that the plaintiff has taken steps for eviction after lapse of 3 months which was given under Ex.A1. Ex.A3 clearly shows that the defendant has received the legal notice Ex.A1. The notice issued under section 106 of

T.P.Act is properly served on defendant under Ex.A3, further the 3 months period is not such a short time, the plaintiff has given reasonable time to the defendant for vacating the premises even though the defendant has not vacated the suit premises.

14. The transfer of property Act provides the subject of lease from Sec.

105 to Sec.114 A when we read over the provision of Sec.105 to Sec.114 A it seems that only Sec.106, Sec.111 of T.P Act are relevant which deals with termination of lease. Under Section 111 of T.P Act. A lease of immovable property determines a) by efflux of time limited thereby—-....--

Section 106 of T.P Act provides—--

a) where such time is limited conditionally on the happening of some event by the happening of such even:

b) Where the interest of the lessor in the property terminate on or his power to dispose of the same extends only to, the happening of any event by the happening of such even;

c) in case the interest of the lessee and the lessor in the whole of the property becomes vested at the same time in one person in the same right;

d) by express surrender, that is to say, in case the lessee yields up his interest under the lease to the lessor by mutual agreement between them .

e) by implied surrender.

f)by forfeiture, that is to say, (1) in case the lessee breaks an express condition which provides that, on breach thereof, the lessor may re- enter (XXX) or (2) in case the lessee renounces his character as such be setting up a title in a third person or by claiming title in

6 O.S.NO.383/15

himself (3) the lessee is adjudicated an insolvent and the lease provides that the lessor may re-enter on the happening of such event): and in (any of these cases) the lessor or his transferee (gives notice in writing to the lessee of his intention to determine the lease;

g) on the expiration of the notice, to determine the lease, or to quit, of intention to quit, the property leased, duly given by one party to the other.

"In the absence of a contract or local law or usage to the contrary, a lease of immovable property for agricultural or manufacturing purposes shall be deemed to be a lease from year to year, terminable , on the party of either lesser or lessee, by six months notice expiring with the end of a year of the tenancy, and a lease of immovable property for any other purpose shall be deemed to be a lease from month to month, terminable on the part of either lesser or lessee, by 15 days notice expiring with the end of a month of a tenancy.

15.Every notice under this section must be in writing signed by or on behalf of the person giving it, and either be sent by post to the party who is intended to be bound by it or be tendered or delivered personally to such party, or to one of his family or servants at his residence or if such tender or delivery is not practicable affixed to a conspicuous part of the property".

16.The above provisions reads together it is clear that when there is a relation of landlord and tenant and the tenancy is subsisting, then the landlord can determine the tenancy for any of the grounds mentioned in

Sec.111. Apart from Sec.111, the landlord can determine the tenancy by issuing notice under Section 106 of T.P Act. A notice to quit is necessary under this section before a suit for ejectment can be brought only where the defendant is a tenant of plaintiff. The contents of legal notice shows that plaintiff has clearly expressed an intention that he did not wish the tenant to continue in possession of premises after the expiry of period of

7 O.S.NO.383/15

one month or on the date of which according to defendant , the tenancy month ends. The language which has been used does unmistakebly evince an intention on the part of landlord not to continue the tenancy of defendant. Further the notice does specifically mentioned the specific date when the tenant would vacate the premises. Once the lease is terminated under Ex.A1 the plaintiff is entitled to the recovery of possession of suit premises. So the plaintiff is entitled to the relief of eviction as the lease is terminated under Ex.A1.

17.The plaintiff has asked this court to direct the defendant to pay the arrears of rent sum of Rs.1,14,000/- due for the period January 2014 to

December 2014. The plaintiff claimed the rent of Rs.9000/- per month.

Though the plaintiff has not filed any document to show that the defendant had paid the rent of Rs.9000/- for the suit premises before the month of January 2014 and the area fetch to Rs.9000/- per month. But the contents of legal notice clearly shows that the plaintiff claimed the rent of Rs.9000/- even though the defendant has not given any reply for it though the summons are served in the present suit, the defendant had not appeared before the court so an adverse inference can be drawn ought against the defendant, so this court is of view that the rent for the premises is of Rs.9000/- only and the defendant is due of rents from

January 2014. So, this court directs the defendant to pay arrears of rent of Rs.1,14,000/- to the plaintiff.

18.The plaintiff asked this court to grant future mense profits from the date of suit @ Rs.30,000/- p.m as damages for illegal occupation but this court feels that a separate enquiry should be conducted for future mense profits under order 20 rule 12 CPC so no order is passed for future mense

8 O.S.NO.383/15

profits and the plaintiff is directed to file separate application for future mense profits.

19.In the result, this suit is decreed with cost with a direction to the defendant to vacate and handover the physical possession of suit premises to the plaintiff within 3 months from the date of this decree and the defendant is directed to pay arrears of rent of Rs.1,14,000/- to the plaintiff. The plaintiff is directed to file a separate application under order 20 rule 12 CPC for future mense profits.

Typed to my dictation, corrected and pronounced by me in the open

Court this the 24th day of April, 2015.

sd/-

Smt. J.Maithreyi

XXI JUNIOR CIVIL JUDGE

CITY CIVIL COURT: HYDERABAD.

APPENDIX OF EVIDENCE

WITNESSES EXAMINED

FOR PLAINTIFF: FOR DEFENDANT:

Pw1 : M.Praveen KumarNone

DOCUMENTS MARKED FOR PLAINTIFF

Ex.A1 : Office copy of legal notice.

Ex.A2 : Postal receipt,

Ex.A3 : Acknowledgment card

Ex.A4 : C.C of gift settlement deed.

DOCUMENTS MARKED FOR DEFENDANT : Nil

sd/-

Smt. J.Maithreyi

XXI JUNIOR CIVIL JUDGE

CITY CIVIL COURT: HYDERABAD.

IN THE COURT OF XXI JUNIOR CIVIL JUDGE,

CITY CIVIL COURT, AT: HYDERABAD

DATED: THE THIS 27 th DAY OF APRIL, 2015

PRESENT: SMT. J .MAITHREYI, LL.M

XXI JUNIOR CIVIL JUDGE

O.S.NO. 2118 OF 2014

BETWEEN:

K.Sai Sharan, S/o. N.Narasimha Rao,

Aged : 24 years, Occ : Student, R/o. Flat NO.305,

J.R.Residency, Opp : Axis Bank,

Srinagar Colony, Hyderabad … Plaintiff

A N D

The Regional Passport Officer,

Indian Passport Office,

Ministry of Foreign Affairs,

Office at Station Road, Secunderabad .

… Defendant

This suit is coming before this court for final disposal in the presence of Sri C.M.Rao, Advocate for the plaintiff and the defendant is called absent and remained set exparte and the matter having stood over till this date for consideration, this court delivered the following:-

J U D G M E N T

This suit is filed for declaration, declaring the date of birth of the plaintiff as 14-06-1992 as per S.S.C certificate and other documents and direct the defendant to correct the date of birth of the Plaintiff in her Passport bearing No. G 2556083 as 14-06-1992 instead of 14-06-1991 and award cost of the suit.

2.The brief averments of the plaint are that the plaintiff is the resident of Hyderabad, the plaintiff was born on 14-06-1992 the same has been reflected in S.S.C certificate & other documents.

The plaintiff had obtained the passport bearing No. G 2556083 from the defendant office at Hyderabad. The passport was issued when he was a minor and he had never travelled abroad using the passport as such plaintiff was not having any knowledge that his date of birth is wrongly mentioned in the passport. The plaintiff has now completed degree in Engineering with date of birth as 14.6.1992. The plaintiff wanted to appear for the GMAT exam wherein it is necessary to furnish particulars of the passport then he came to know that his date of birth is wrongly mentioned in the passport, it may be a typographical mistake.

The plaintiff approached the defendant and requested him to make correction of date of birth but the defendant refused to do it and asked him to approach the civil court for declaration hence the present suit is filed.

3. Summon served on defendant. Defendant called absent and set exparte.

4. Heard arguments on behalf of the plaintiff and perused the material on record.

5. In order to prove the suit claim Pw-1 was examined and got marked Ex.A1 to A8.

6. "Now the point for determination is whether the plaintiff is entitled for declaration as prayed for ?"

7. The case of the plaintiff is that he obtained the passport when he was a minor, now he is pursuing GMAT exam then he came to know to that his date of birth is wrongly mentioned as 14.6.1991 instead of 14.6.1992.

8. Plaintiff himself got examined as Pw1 and marked EX.A1 i.e original passport Ex A2 is PAN Card, Ex A3 is Community,

Nativity and Date of Birth Certificate, ExA4 is Hall Ticket of S.S.C,

ExA5 is Memorandum of Marks in Intermediate, ExA6 Provisional

Certificate in B.E., ExA7 is notice addressed to the defendant for correction of date of birth and Ex.A8 is acknowledgment.

9.The document Ex A3 is crucial document to prove the date of birth of plaintiff which show the date of birth of plaintiff is 14-06- 1992. This document is authenticated document which establish the date of birth of plaintiff as 14-06-1992, thereafter Ex.A5

Memorandum of Marks in Intermediate shows that this document was issued in year 2007 and his date of birth is mentioned as 14.6.1992. Ex.A7 is the letter addressed to the defendant requesting the defendant to make correction of date of birth.

10. It is pertinent to note here that as it is a suit for declaration of date of birth it is necessary to refer to the ratio in a recent decision of our Hon’ble High Court in the case of Mohd. Ashan

Khan Vs Regional Pass Port Officer (2010 (6) ALD 27) in this case the Hon’ble High Court first referred to the relevant clause (a) of the circular dt.1804-2001 which reads as follows.

a) Where an applicant is seeking rectification or correction of mistake in the entry on date of birth/place of birth in pass port, pass port issuing authority may after verifying/satisfying himself, effect the correction treating the same as technical correction there is no need for a declaratory order in such cases.

The Hon’ble High Court then referred to the clauses in the latter circular no.VI/401/2/5/2001 dt.29-10-2007 which had brought about a change in the scenario obtaining in clause (a) of the earlier circular instructions dt.18-04-2001. the relevant clauses in the circular no. VI/401/2/5/2001 dt.29-10-2007 are as follows:

a)Where an applicant claims clerical or technical mistake in the entry relating to birth/place of birth in the passport and asks for rectification/correction .: in all such cases the documents produced earlier as proof of date of birth/place of birth at the time of issue of passport may be perused (if not already destroyed) PIA. In case, it is a clerical mistake either by the applicant or the PIA, date/place of birth correction may be allowed by issue of fresh pass port booklet, in the former case by charging fee for fresh pass port and in the latter gratis, there is no need for declaratory court order in such cases.

b) Where a competent authority which issued a birth certificate or education certificate issues any correction or amendment in date/place of birth, PIA may effect the necessary amend,metn in the pass port without insisting on a court order provided the same document was produced earlier with a pass port application. Fresh fees will be charged.

c) Where the files have been destroyed, PIAs could use their discretion in correction of date of birth without a court order, where such correction is only in months (not more than two years) and applicant provide satisfactory explaination that the same document was provided at the time of initial pass port application. Fresh fees will be charged.

d) Where the initial entry has been made on the basis of a supportive document issued by one competent authority i.e.

School/Educational Authority and the applicant subsequently requests for a change on the basis of a certificate issued by another competent authority i.e. Municpal Authorities etc., resulting in conflicting documents for valid proof, the PIA should direct the applicant to procure an order from a first class

magistrate, to effect the change as per pass port manual 2001 (in

some states, this function is discharged by Civil Magistrate)

The Hon’ble High Court referred the above circular and held as follows: in the light of clause © aforesaid if the applicant seeks correction of date of birth in excess of two years from the existing entry, the pass port authority is entitled to insist upon a court order. In the present case the plaintiff is seeking the correction of date of birth where the difference is only of one year from the existing entry. Infact, as per the above decision the passport authority has to insist the party to produce the declaratory order when there is a difference of two years but the defendant herein had not taken any steps to make correction of date of birth though the plaintiff has approached them. So there is no other way to the plaintiff except to approach the court for declaratory order. It is duty of the court to see that whether he had produced sufficient material to prove his correct date of birth. In the instant case the documents Ex.A2, Ex A3, Ex.A5 are crucial documents which establish the date of birth of the plaintiff as 14-06-1992.

The document Ex.A1 is issued in the year 2007, as correctly stated by the plaintiff it was issued when he was a minor so he could not take any steps at that time. There is no such material

before the court to say that the plaintiff is lying before the court

for correction of date of birth. so it cannot be say that it is a fabricated document So it proved that in the pass port the date of birth is wrongly mentioned. So the plaintiff established his case, if the date of birth is not corrected it will create so many problems to the plaintiff because in his educational certificates there will be a different date of birth and in the passport there will be a different date of birth so it will create so many problems to the plaintiff more particularly he is pursuing the Engineering job, for the mistake of defendant the plaintiff cannot be suffered.

Hence this suit is decreed as prayed for. Accordingly point is answered.

In the result, this suit is decreed without costs, declaring that the plaintiff’s correct date of birth is 14-06-1992 and not 14- 06-1991 and granting a consequential direction, directing the defendant to issue a fresh pass port to the plaintiff by correcting the date of birth as 14-06-1992 according to the procedure established by law and the extant guidelines.

Typed to my dictation, corrected and pronounced by me in the open Court this the 27th day of April, 2015.

sd/-

Smt. J.Maithreyi

XXI JUNIOR CIVIL JUDGE

CITY CIVIL COURT: HYDERABAD.

APPENDIX OF EVIDENCE

WITNESSES EXAMINED

FOR PLAINTIFF: FOR DEFENDANT:

PW-1: K.Sai Sharan-None-

DOCUMENTS MARKED FOR PLAINTIFF

Ex A1 : Original passport

Ex.A2 : PAN Card

Ex.A3 : Community, Nativity, Date of birth certificate

Ex.A4 : Hall ticket of S.S.C

Ex.A5 : Memorandum of marks in Intermediate

Ex.A6 : Provisional certificate in B.E

Ex.A7 : A notice addressed to the defendant for correction of D.O.B

Ex.A8 : Acknowledgment Card

DOCUMENTS MARKED FOR DEFENDANT -NIL –

sd/-

Smt. J.Maithreyi

XXI JUNIOR CIVIL JUDGE

CITY CIVIL COURT: HYDERABAD.