Ms.Khushboo Upadhyay

O.S. No. 1865 of 2019

IN THE COURT OF THE XXII JUNIOR CIVIL JUDGE: CITY CIVIL

COURT: HYDERABAD.

MONDAY, DATED THIS THE 23 rd DAY OF NOVEMBER, 2020

PRESENT: SMT. KHUSHBOO UPADHYAY,

IX JUNIOR CIVIL JUDGE,

FAC: XXII JUNIOR CIVIL JUDGE,

City Civil Court, Hyderabad

OS No. 1865 of 2019

Between:-

1. Radhika Vithal Shrikhande, W/o: Late Vithal Raj Shrikhande, Aged about 53 years, Occu: Household, R/o: “Sharanam”, H.No.2- 2-1130/25/b, New Nalla Kunta, Prashant Nagar, Hyd-44.

2. Deepika Vithal Shrikande, D/o: Late Vithal Raj Shrikhande, Aged about 35 years, Occu: Private Service, R/o: “Sharanam”, H.No.2-2-1130/25/b, New Nalla Kunta, Prashant Nagar, Hyd-44

3. Veeren Vithal Shrikhande, S/o: Late Vithal Raj Shrikhande, Aged about 30 years, Occu: Household, R/o: “Sharanam”, H.No.2- 2-1130/25/b, New Nalla Kunta, Prashant Nagar, Hyd-44 Presently residing at Texas, Austin, USA, Rep., by his GPA Radhika Vithal Shrikhande, W/o: Late Vithal Raj Shrikhande, Aged about 53 years, Occu: Household, R/o: “Sharanam”, H.No.2-2-1130/25/b, New Nalla Kunta, Prashant Nagar, Hyd-44 .

... Plaintiffs

A N D

1. The Mandal Revenue Officer, Amberpet Mandal, Amberpet

2. All Concerned

... Defendants

This suit is coming before me for hearing on 23-11-2020, in the presence of Sri. Ali Hassan Mirza, advocate for the plaintiffs, and defendant No.1 remained ex-parte and defendant no.2 was set ex-parte by way of paper publication and the matter having been heard and stood over for consideration till this date, this court delivered the following:-

:: J U D G M E N T ::

1. This suit is filed by the plaintiffs praying this Court to declare the plaintiffs as the legal heirs of Late Vithal Raj Shrikhande (hereinafter to be referred as the

IX JUNIOR CIVIL JUDGE,

FAC: XXII JUNIOR CIVIL JUDGE.

O.S. No. 1865 of 2019

deceased) .

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

Plaintiff no.1 got married to the deceased in the year 1981 at Hyderabad and they were blessed with plaintiff No.2 and 3. The deceased died on 04-09-2017. During his lifetime, to avoid any future disputes and difference between his sole surviving legal heirs, the deceased had executed a will deed dated 27-01-1999 in favor of the plaintiffs herein, expressing his wish, will and desire as to how his properties and assets shall be bequeathed and shares to be distributed among the plaintiffs. It is pertinent to mention here that the deceased made no other will apart from the will

dated 27-01-1999.

After the death of the deceased, in pursuance of the said will deed, a registered partition deed for one of the house property dated 09-04-2018, vide document number 3391 of 2018 was executed among the plaintiffs. Upon the partition deed, the plaintiffs applied for mutation proceedings of one of the land and the concerned department (GHMC), after due inquiry has mutated the land in the names of the plaintiffs and property tax notice was also issued to the plaintiff nos.2 and 3. It is also pertinent to mention here that the electricity, gas and telephone connections were also standing in the name of the deceased. However when the plaintiff approached the concerned authorities to mutate their names in respect of the said connections, they denied the same for want of legal heir certificate.

On 08-12-2017, the plaintiffs approached the first defendant for issuance of the legal heir certificate, but the first defendant vehemently refused to issue the same to

IX JUNIOR CIVIL JUDGE,

FAC: XXII JUNIOR CIVIL JUDGE.

O.S. No. 1865 of 2019

the plaintiffs. Hence, the present suit.

3. The first defendant was served with summons, but he remained absent and hence, was set ex-parte on 16-09-2019. Defendant No.2 was set ex-parte by way of paper publication as none appeared to contest against the claim of the plaintiffs.

4.In order to prove their claim, the plaintiff no.1 and 2 got themselves examined as PW1 and PW2 respectively and got marked Exs.A1 to A19.

5. Heard the learned counsel for the plaintiffs and perused the documents.

6.Now the points for determination is :-

1. Whether the plaintiffs are liable to be declared as legal heirs of Late Vithal Raj Shrikhande ?

2. If yes, t o what relief?

7.POINT No.1:-The plaintiffs have filed the present suit seeking declaration as surviving legal heirs of the deceased. In order to substantiate their claim, the plaintiff got herself examined as PW2 and plaintiff no. 2 as PW2 and got marked

Exs.A1 to A19. PW1 and PW2 filed their respective affidavits n lieu of chief- examination which are nothing but repetition of the plaint averments. According to

PW1, she is the wife of the deceased and the plaintiff nos.2 and 3 are her children born through the deceased. PW2 also deposed on similar lines.

9.In order to prove the marriage between plaintiff no.1 and the deceased, the plaintiffs produced Ex.A1 document. Ex.A1 is the marriage affidavit dated 26-11- 2012 executed before notary by the first plaintiff and the deceased stating that they

IX JUNIOR CIVIL JUDGE,

FAC: XXII JUNIOR CIVIL JUDGE.

O.S. No. 1865 of 2019

are wife and husband. To prove the birth of plaintiff nos.2 and 3, Ex.A2 and Ex.A3, which are birth certificates of the plaintiff nos.2 and 3 are marked. In order to prove their relationship with the deceased, the plaintiffs also got marked Ex.A11, which is the SSC marks memo of plaintiff no.2. Ex.A13, which are the voter ID cards of plaintiff nos.2 and 3, Ex.A14 being the ration card issued in the name of S.Vittal Raj and Ex.A15 which is the Xerox copy of Aadhar Cards of plaintiff nos.1 and 2.

10. In order to prove the death of the deceased, the plaintiffs got marked Ex.A18 which is the death certificate of Late Vithal Raj Shrikhande, dated 12-10-2017 issued by Registrar of Births and Deaths, Circle No.187, GHMC, which discloses that the deceased died on 04-09-2017 at Yashodha Hospital, Hyderabad.

11. Further, the case of the plaintiffs is that the deceased executed Ex.A4/will,

dated 27-01-1999, in pursuance of which they have executed Ex.A5/partition deed

bearing No.3391/2018 and got mutated their names in respect of the property vide

Ex.A6/mutation proceedings issued by GHMC and property tax notice (Ex.A7) was also issued in their favor. Plaintiffs further got marked Ex.A8 i.e. the telephone bill dated, 6-12-2018 and Ex.A9 and Ex.A10 i.e. the gas bills dated, 17-06-2013 and 16- 07-2014 to show that they stand in the name of the deceased.

12.On perusal of the evidence of PW1 and PW2 coupled with the documentary evidence, the plaintiff’s relationship with the deceased as well as the death of the deceased has been established.

13.Further the contention of the plaintiffs is that on 08-12-2017, the plaintiffs approached defendant No.1 for issuance of legal heir certificate, but he vehemently

IX JUNIOR CIVIL JUDGE,

FAC: XXII JUNIOR CIVIL JUDGE.

O.S. No. 1865 of 2019

refused to issue the same. In order to prove the same, the plaintiff got marked Ex.A19 i.e. the copy of receipt of application for issuance of family membership certificate

dated 08-12-2017. However, on reciept of summons, the defendant no.1 did not choose

to appear before this Court either personally or through A.G.P., denying the claim of the plaintiffs.

14. Despite issuance of paper publication, none come forward to object the claim of the plaintiffs.

15. The unchallenged testimony of PW1 and PW2, coupled with documentary evidence under Ex.A.1 to Ex.A.19, establishes the plea of the plaintiffs. Though the plaintiffs contended that they are in need of legal heir certificate for mutating their name in respect of electricity, gas and telephone connections, the relief prayed is that they are claiming this declaration for the purpose of legal status only. Hence, this point is answered accordingly declaring that the plaintiffs as the only legal heirs of Late

Vithal Raj Shrikhande. However, it is made clear that this declaration is for the purpose of legal status only for mutation of the names of the plaintiffs in respect of the electricity, gas and telephone connections. Accordingly this point is answered in favor of the plaintiffs and as against the respondents.

16. POINT No.2:- Since point no.1 is answered in favour of the plaintiff, the suit is liable to be decreed.

16. IN THE RESULT, the suit is decreed, however, without costs, declaring that the plaintiffs are the legal heirs of Late Vithal Raj Shrikhande for the purpose of legal status only i.e. for mutation of their names in place of the name of the

IX JUNIOR CIVIL JUDGE,

FAC: XXII JUNIOR CIVIL JUDGE.

O.S. No. 1865 of 2019

deceased with respect to the electricity, gas and telephone connections.

Typed by the Stenographer to my dictation, corrected and pronounced by me in the open Court, on this the 23 rd day of November, 2020.

IX JUNIOR CIVIL JUDGE,

FAC : XXII JUNIOR CIVIL JUDGE,

CITY CIVIL COURTS, HYDERABAD.

APPENDIX OF EVIDENCE

WITNESSES EXAMINED

For Plaintiffs: For Defendants: PW1 : Radhika Vithal Shrikhande - NONE -

PW2 : Deepika Vithal Shrikhande

DOCUMENTS MARKED FOR PLAINTIFFS

Ex.A1 is Marriage Affidavit of the plaintiff dated 26-11-2012

Ex.A2 is the Birth Certificate of plaintiff no.2 dated 8-6-1982

Ex.A3 is the Birth certificate of plaintiff no.3 dated 22-10-1987

Ex.A4 is the Will deed dated 27-01-1999

Ex.A5 is the Partition Deed bearing No.3391/2018 dated 09-04-2018

Ex.A6 is the mutation proceedings issued by GHMC vide No.1004036878

dt:18-02-2019

Ex.A7 is the Property Tax notice dated 18-02-2019

Ex.A8 is the Telephone Bill dated 6-12-2018

Ex.A9 is the Gas Bill along with receipt dated 17-06-2013

Ex.A10 is the Gas Bill dated 16-07-2014

Ex.A11 is the SSC marks memo of plaintiff no.2

Ex.A12 is the computer print out of endorsement dated 8-1-2018

Ex.A13 is the voter ID cards of plaintiff nos.2 and 3

Ex.A14 is the Ration card issued in the name of S.Vittal Raj

Ex.A15 is the xerox copy of Aadhar Cards of plaintiff nos.1 and 2 verified with originals

Ex.A16 is the General Power of Attorney dated 08-03-2018

IX JUNIOR CIVIL JUDGE,

FAC: XXII JUNIOR CIVIL JUDGE.

O.S. No. 1865 of 2019

Ex.A17 is the Certified copy of Docket order dated 22-11-2017 in I.A.No.1084 of 2017 in O.S.No.942 of 2015

Ex.A18 is the death certificate of Late S. Vithal Raj

Ex.A19 is the Xerox copy of family membership certificate receipt dated 08-12-2017

DOCUMENTS MARKED FOR DEFENDANTS: NIL.

IX JUNIOR CIVIL JUDGE,

FAC : XXII JUNIOR CIVIL JUDGE

CITY CIVIL COURT HYDERABAD.

IX JUNIOR CIVIL JUDGE,

FAC: XXII JUNIOR CIVIL JUDGE.

I.A. No.223 of 2020 in

O.S. No. 1785 of 2020

IN THE COURT OF THE IX JUNIOR CIVIL JUDGE: CITY CIVIL

COURT: HYDERABAD.

THURSDAY, DATED THIS THE 08 th DAY OF OCTOBER, 2020

PRESENT: SMT. KHUSHBOO UPADHYAY,

IX JUNIOR CIVIL JUDGE,

City Civil Court, Hyderabad

I.A.No. 223 OF 2020

in

OS No. 1785 of 2020

Between:

Sri. Satyanarayana Singh Hazari, S/o: Late Lakhan Singh Hazari & Late Smt. Neela Bai, aged about 54 years, Occu; Private Employee, R/o: H.No.13-1-575, Dilwargunj, Mangalghat, Hyderabad, Telangana state.

... Petitioner/Plaintiff

A N D

1. Sri. Ramchander Singh S/o; Sri. Ganesh Singh, Aged about 84 years, Occu: Senior Citizen, R/o: H.No.1-113, Nanakramguda, Hyderabad, Telangana State

2. Smt. K. Gouri Vijayalaxmi, W/o: Mahaveer Singh, D/o: Sri. Ramchander Singh, Aged about 49 years, Occu: Housewife, R/o: H.No.2-62/1, Indranagar, Gachi Bowli, Serlilingampally, K.V.Ranga Reddy District, Telangana State.

3. Smt. Uma Bai, W/o: Sri Gopi Singh, D/o: Ramchander Singh, occu: House Wife, R/o: H.No.13-1-514/1, Mangalaghat, Ganga Bowli, Hyderabad, Telangana State.

4. Sri. Ramdeen Natraj Singh, S/o: Ramchander Singh, Aged about 43 years, Occu: Business, R/o: H.No.1-113, Nanakramguda, Hyderabad, Telangana State.

5. Sri. Ramdeen Sudhabhi Raj, S/o; Sri. R. Mohanlal Singh, Aged about 61 years, occu: Business, R/o: H.No.2-59/2, Lodha Basthi, Nanakramguda, Hyderabad, Telangana State.

6. Sri. Ramden Shiv Kumar Singh, S/o: Sri. Ramdeen Sadhabhi Raj, Aged about 41 years, Occu: Business, R/o: H.No.2-59/2, Lodha Basthi, Nanakramguda, Hyderabad, Telangana State

... Respondents/Defendants

I.A. No. 223 of 2020 in

O.S. No. 1785 of 2020

This petition is coming before me for hearing on 08-10-2020, in the presence of Sri.M/s. Sunil Gawsane, Ashok and T. Someshwar, advocates for the petitioner/plaintiff, and the matter having been heard and stood over for consideration till this date, this court delivered the following:-

O R D E R

1.This petition is filed under Order XXIII Rule (1) Sub-Rule (3) of the Code of Civil Procedure Code (herein after to be referred as CPC) r/w Section 151 of

CPC by the petitioner/plaintiff with a prayer to permit the petitioner to withdraw the suit as there are many corrections to be made with a liberty to file a fresh suit in the interest of justice.

2.The brief averments in the affidavit filed in support of the petition are as under:--

The petitioner/plaintiff filed the main suit for the relief of declaration of registered sale deed vide document bearing No.3338/2020, dated 14-08-2020 in respect of the house bearing No.13-1-514/11 purported to be 13-1-514 situated at

Dilwar Gunj, Mangalghat, Hyderabad as null and void-ab-initio and not binding on the petitioner/plaintiff along with the consequential relief of perpetual injunction. When the matter is posted for issuance of summons to the defendants on payment of process, the petitioner wants to withdraw the suit as there are so many corrections to be made in the plaint with leave to file a fresh suit. Hence, the present petition is filed praying this Court to permit the petitioner to withdraw the suit with a liberty to file a fresh suit otherwise the petitioner/plaintiff will suffer irreparable loss and great hardship.

IX JCJ, CCC, Hyderabad

I.A. No. 223 of 2020 in

O.S. No. 1785 of 2020

3.No notice was ordered to the respondent/defendants in this petition as the suit was coming for service of summons to the defendants and the matter was pending for payment of process.

4.Heard the counsel for the petitioner/plaintiff through Cisco Webex application. Perused the record.

5.The point for consideration is ‘whether the petitioner/plaintiff is entitled

to withdraw this suit with liberty to file a fresh suit under Order XXIII, Rule

1, Sub-Rule 3, CPC?’

POINT:- Upon perusal of the record, it is manifest that the plaintiff filed the present suit for the relief of declaration along with consequential relief of perpetual injunction in respect of suit schedule property. It is the case of the plaintiff that he is the absolute owner of the suit schedule property and he got the same through a notarized gift deed dt:-19-07-1996 from his mother. That now the the defendant has forged and fabricated the sale deed vide document bearing number 3338/2020, dated 14-08-2020 in respect of the house bearing No.13-1- 514/11 purported to be 13-1-514 situated at Dilwar Gunj, Mangalghat,

Hyderabad. Hence the suit for declaration of the said sale deed as null and void with a consequential relief of perpetual injunction.

6.Now the petitioner contends that there are few corrections to be made in

IX JCJ, CCC, Hyderabad

I.A. No. 223 of 2020 in

O.S. No. 1785 of 2020

the plaint and that few essential documents are to be filed and to be mentioned in the plaint and that the petitioner intends to file a fresh suit. Before adverting to the merits of the petition, the relevant provision under Order 23 Rule 1(3)

Civil Procedure Code be looked into. It states as under:

Order 23: Withdrawal of suit or abandonment of part of claim:- (1) At any time after the institution of a suit plaintiff may as against all or any of the defendants abandon his suit or abandon a part of his claim.

Provided that where the plaintiff is a minor or other person to whom the provisions contained in rules to 14 of Order XXXII extend, neither the suit nor any part of the claim shall be abandoned Without the leave of the court.

(2) An application for leave under the proviso to sub-rule (1) shall be accompanied by an affidavit of the next friend and also, if the minor or such other person is represented by a pleader, by a certificate of the pleader to the effect that the abandonment proposed is, in his opinion, for the benefit of the minor or such other person.

(3) Where the court is satisfied,—

a) that a suit must fail by reason of some formal defect, or

(b) that there are sufficient grounds for allowing the plaintiff to institute a fresh suit for the subject matter of a suit or part of a claim, it may, on such terms as it thinks fit, grant the plaintiff permission to withdraw from such suit or such part of the claim with liberty to institute a fresh suit in respect of the subject matter of such suit or such part of the claim.

(4) Where the plaintiff,—

(a) abandons any suit or part of claim under sub-rule (1), or

(b) withdraws from a suit or part of a claim without the permission referred to in sub-rule (3) he shall be liable for such costs as the court may award and shall be precluded from instituting any fresh suit in respect of such subject matter or such part of the claim.

(5) Nothing in this rule shall be deemed to authorise the court to

IX JCJ, CCC, Hyderabad

I.A. No. 223 of 2020 in

O.S. No. 1785 of 2020

permit one of several plaintiffs to abandon a suit or part of a claim under sub-rule (1), or to withdraw, under sub-rule (3), any suit or part of a claim, without the consent of the other plaintiffs.

Hence, from the bare reading of the provision, it is clear that there shall either be a formal defect in the suit or sufficient grounds for the plaintiff to withdraw the suit and only then, permission can be accorded to the plaintiff to withdraw the suit giving liberty to file fresh suit. In the present case at hand, the learned counsel for the petitioner submitted that there are many corrections to be made in the suit and that few documents which are essential for the suit are not brought on record in the plaint which will go to the core of the suit and hence the suit is hit under the pretext of sufficient grounds.

7.Now the important point which has to be considered by this court is whether the plea of the petitioner falls within sufficient grounds as stated under Order XXIII, Rule 1, Sub-Rule 3, CPC?

Theground on which the petitioner intends the court to permit the petitioner to withdraw the present suit is corrections to be made in the plaint.

And also that few essential documents are yet to be brought on record by the plaintiff which are very much essential for proper adjudication of the matter which have not been mentioned in the plaint. Further by withdrawing the present suit, the plaintiff intends to continue the litigation without putting an end. It is settled law that the plaintiff is the king of its own case and has every right to continue or withdraw the same. Hence, in light of the above

IX JCJ, CCC, Hyderabad

I.A. No. 223 of 2020 in

O.S. No. 1785 of 2020

discussion, the petitioner is entitled for the relief as prayed for. Accordingly this point is answered in favour of the petitioner.

8. IN THE RESULT, this petition is allowed with liberty to file a fresh suit on the subject matter of the suit. No order as to costs.

Typed, and corrected by me on my personal laptop and pronounced by me in the Open Court through Cisco Webex Application on this the 08 th day of October, 2020.

IX JUNIOR CIVIL JUDGE,

CITY CIVIL COURT: HYDERABAD.

APPENDIX OF EVIDENCE:

– Nil –

IX JUNIOR CIVIL JUDGE,

CITY CIVIL COURT: HYDERABAD

IX JCJ, CCC, Hyderabad

O.S. No. 1365 of 2021

IN THE COURT OF THE XXII JUNIOR CIVIL JUDGE: CITY CIVIL COURT:

HYDERABAD.

Present: SMT. KHUSHBOO UPADHYAY,

IX Junior Civil Judge, FAC XXII Junior Civil Judge,

City Civil Court, Hyderabad

Friday, dated this the 5th day of November, 2021

Original Suit No. 1365 of 2021

Between:

1. M. Indra Goud, W/o. Late Deva Goud,

Age: 50 years, Occ. Housewife.

2. M. Swaroop Kumar, S/o. Late Deva Goud, Age: 31 years, Occ. Business.

3. M. Sowjanya, D/o. Late Deva Goud,

Age: 40 years, Occ. Doctor.

4. M. Sowmya, D/o. Late Deva Goud,

Age: 37 years, Occ. Private employee.

All are R/o. 1-6-212/8/1, Kamla Nehru Nagar, Musheerabad, Hyderabad.

… Plaintiffs

A N D

1. Mandal Revenue Officer, Musheerabad.

2. All concerned.

… Defendants

This suit is coming before me on 26.10.2021 for final hearing in the presence of

Sri.T Vinil Kumar, counsel for the plaintiff and defendants no.1 and 2 set exparte and the matter having stood over for consideration to this day, this court delivered the following.

J U D G M E N T

1.This suit is filed to declare the plaintiffs as the legal heirs of late M. Deva Goud.

2. Brief averments of the plaint:- Plaintiff no.1 is the wife and plaintiffs no.2 to 4 are the children of late M. Deva Goud, who passed away on 09.02.2017 (hereinafter ‘the deceased’) leaving behind the plaintiffs as his only legal heirs. On 23.03.2021, plaintiffs approached defendant no.1 for issuance of legal heir certificate, to which defendant no.1 refused to issue the same. The deceased is having movable and immovable properties and to transfer the assets, the concerned authorities are 2 O.S. No. 1365 of 2021 demanding legal heir certificate.

3. On receipt of the summons, defendant no.1 did not choose to appear and contest the case and though publication was issued, none appeared denying the case of the plaintiffs or claiming as legal heirs of the deceased. Hence, defendants were set ex-parte.

4.In order to prove their claim, the plaintiffs got examined plaintiff No.2 as PW1 and got marked Exs.A1 to A7 i.e., Ex.A1 is death certificate of late M.Deva Goud,

Ex.A2 is marriage photograph of plaintiff no.1 and the deceased, Ex.A3 is original election identity card, Ex.A4 is original house hold card, Ex.A5 is original birth certificate of plaintiff no.2, Ex.A6 is original aadhar card of Pw1 and Ex.A7 is original adhar card of plaintiff no.2. The plaintiffs further got Sri. Jairaj Simha Pacca examined as PW2.

5. Heard the learned counsel for the plaintiffs. Perused the documents.

6.Now the points for determination are :-

1. Whether the plaintiffs are entitled to be declared as legal heirs of Sri. M. Deva Goudas prayed?

2. To what relief?

7.Point :- It is the contention of the plaintiffs that they are the only legal heirs of the deceased. Plaintiffs approached defendant no.1 for issuance of legal heir certificate, but defendant No.1 refused to issue the same, as such the plaintiffs have approached this Court for necessary relief.

8.It implies that the plaintiffs are indirectly claiming succession to the movable and immovable properties left behind by the deceased, therefore, this Court finds some legal infirmity glaring on the face of the suit as the plaintiffs did not claim any relief ancillary or subsidiary to that of declaration.

9.In the case of State of M.P. v. Mangilal Sharma, (1998) 2 SCC 510 and also in the case of Indramani Bedbagis v. Hema Dibya, 1976 SCC OnLine Ori 86, the ratio

IX JCJ, CCC, Hyderabad. FAC XXII JCJ, CCC, Hyderabad.

3 O.S. No. 1365 of 2021 laid down is that suit for declaration of status is maintainable.

10.In Ramchandra Dagdu Sonavane v. Vithu Hira Mahar, (2009) 10 SCC 273, the Hon'ble Supreme Court held that:-

41. As regards whether there is valid adoption or not, that question pertains to the status and legal character of an individual, which falls within the purview of Section 34 of the Specific Relief Act, 1963, and a suit for declaration before a civil court is maintainable.XXXXXXX.

There is no doubt that the Civil Court has jurisdiction to declare the status or legal character of an individual within the purview of Section 34 of Specific Relief Act (hereinafter ‘the Act’). So for declaration of status also provisions of Section 34 of the

Act must be complied with.

11.Here it is pertinent to go through Section 34 of the Act which reads thus:-

Section 34. Discretion of court as to declaration of status or

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 therein a declaration that he is so entitled, and the plaintiff need not in such suit ask for any further relief: Provided that no court shall make any such declaration where the 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 someone who is not in existence, and for whom, if in existence, he would be a trustee.

12.In the light of the above Section, it appears that the suit has to be instituted against any person, who is denying or interested to deny the character or right of the plaintiffs. There is no evidence to show that the defendant denied the right and character of the plaintiffs as legal heirs of the deceased. As such, Section 34 of the

Act is not complied with.

13.In the case of V.Hanya Naik v. M.Krishna Reddy reported in 2009 (6) ALT 221 wherein Hon'ble High Court of A.P. observed that:-

7. XXXXXXX From this, it becomes clear that they prayed for a

IX JCJ, CCC, Hyderabad. FAC XXII JCJ, CCC, Hyderabad.

4 O.S. No. 1365 of 2021 mere declaratory relief. It is relevant to mention that, neither any schedule was attached to the plaint, nor any individual was cited as defendant. It was not a petition under Indian Succession Act. It is just ununderstandable as to how the trial court numbered the suit, though no defendants were shown in it. In para 5 of the plaint, the petitioners clearly stated that the necessity for them to file the suit has arisen on account of the fact that their claim was not being accepted by the Mandal Revenue Officer, Chevalla, in respect of the lands held by Rasiya. It was also mentioned that Rasiya left an estate. In this background the petitioners were under obligation to mention the particulars of the estate, as regards which, the succession was claimed, and to implead the individuals or officials, who disputed their right to succeed to the estate of late Rasiya. On both the counts, the plaint was silent XXXXXX.

14.In paragraph 9, the Hon'ble Court of Andhra Pradesh further observed that:-

9. XXXXXX From a perusal of the proviso, it becomes clear that no Court shall grant mere relief of declaration, if the plaintiff, being in a position to claim other relief; did not pray for it. Even a vague idea about this provision would have persuaded the trial Court, to refuse numbering of the suit. As pointed out at the threshold, the sky rocketing of prices of land has manifested its effect in various fields, including the approach of the Courts, in deviation of the settled norms XXXXXXX.

15.In the light of the above decision, it appears that the plaintiffs being in a position to claim other reliefs did not pray for it and nobody has denied their right as legal heirs. As such, ingredients of Sec.34 of the Act are not attracted, hence, I hold this point against the plaintiffs.

16.IN THE RESULT, the suit is dismissed, without costs.

Typed to my dictation, corrected and pronounced by me in open court on this the 5th day of October, 2021.

IX Junior Civil Judge, FAC XXII Junior Civil Judge City Civil Court, Hyderabad.

APPENDIX OF EVIDENCE

WITNESS EXAMINED

PLAINTIFFS DEFENDANTS

PW1Swaroop Kumar Goud- Nil -

PW2Jairaj Simha Pacca

IX JCJ, CCC, Hyderabad. FAC XXII JCJ, CCC, Hyderabad.

5 O.S. No. 1365 of 2021

DOCUMENTS MARKED

PLAINTIFFS DEFENDANTS

Ex.A1Death certificate of late M. Deva- Nil - Goud

Ex.A2Marriage photograph of plaintiff no.1 and the deceased

Ex.A3Original election identity card

Ex.A4Original household card

Ex.A5Original birth certificate of plaintiff no.2

Ex.A6Original adhar card of PW1

Ex.A7Original adhar card of plaintiff no.2

Sd/-

SMT. KHUSHBOO UPADHYAY,

IX Junior Civil Judge, FAC XXII Junior Civil Judge City Civil Court, Hyderabad.

IX JCJ, CCC, Hyderabad. FAC XXII JCJ, CCC, Hyderabad.

1

O.S.No.1916 of 2020

IN THE COURT OF THE XXII JUNIOR CIVIL JUDGE: CITY CIVIL COURT:

HYDERABAD.

Present: SMT. KHUSHBOO UPADHYAY,

IX Junior Civil Judge, FAC: XXII Junior Civil Judge,

City Civil Court, Hyderabad

Wednesday, dated this the 10th day of November, 2021

Original Suit No. 1916 of 2020

Between:

Canara Bank, a Nationalized Bank constituted under the Banking Companies (Acquisition and Transfer of Undertakings) Act, 1970, having its registered office at 112, Jayachamarajendra Road, Bangalore – 560002, and having various branches all over India and a branch situated at Narayanaguda branch, YMCA circle, Opp. Shanthi Theatre, Hyderabad – 500029, by its Manager and G.P.A.holder Sri Ravi Kumar Vandavasi, S/o. Sri Venkateshwarlu V. Age : 39 years, R/o. Hyderabad.

… Plaintiff

A N D

1. M/s. Suryavansh Group, represented by its Managing partner Sri Anand Kumar, Age : 50 years, Occ. Business, HIG I, Flat No.9, Block -2, Baghlingampally, Hyderabad – 500044.

2. Sri Anand Kumar, S/o. Sri Ved Prakash, Managing partner of M/s. Suryavansh Group, Age : 50 years Occ. Business, HIG I, Flat No. 9, Block -2, Baghlingampally, Hyderabad – 500044.

3. Smt. Renuka S.Chavan, W/o. Sri Santhosh Kumar, partner of M/s. Suryavansh Group, Age : 53 years, Occ : Business, HIG I, Flat No.9, Block – 2, Baghlingampally, Hyderabad – 500044.

… Defendant

This suit is coming before me on 27.10.2021 for final hearing in the presence of Sri A.V.S.S.Prasad, learned counsel for the plaintiff and the defendant set exparte and the matter having stood over for consideration to this day, this court delivered the following.

J U D G M E N T

1.This suit is filed to pass a decree in favour of the plaintiff bank against defendants no.1 to 3 jointly and severally for a sum of Rs.19,74,155.33 ps with

IX JCJ, CCC, Hyderabad FAC XXII JCJ, CCC, Hyderabad 2

O.S.No.1916 of 2020

interest at 15.40% p.a. with monthly rests from the date of suit till the date of realization with costs.

2. Brief averments of the plaint:- Plaintiff is a nationalized bank body corporate constituted under Banking companies (Acquisition and Transfer of undertakings) Act 1970, having its registered office at 112, Jayachamarajendra road, Bangalore – 560002 and having branches all over the country and one such branch is at

Narayanguda, YMCA Circle, opposite Shanthi Theatre, Hyderabad.

2.1Defendant no.1, is the firm of which defendant no.2 is the managing partner and defendant no.3 is the partner carrying on business of car servicing and maintenance.

2.3Defendant no.1 along with defendants no.2 and 3 have approached the plaintiff bank for sanction of loan for carrying on business of car servicing and maintenance as an MSME unit vide their loan application dated 13.09.2018.

2.4On their request, the plaintiff bank sanctioned term loan for limit of Rs.18.95 lakh and OCC limit of Rs.5.00 lakh on 24.10.2018 against hypothecation of machinery and tools used for car maintenance and against personal guarantee of defendants no.2 and 3. The term loan account no.0649773004669 and OCC loan account no.0649261008485 is maintained by defendant no.1 with plaintiff bank and the sanction letter dated: 24.10.2018 duly acknowledged by the defendants was given.

2.5The defendants executed deed of hypothecation Re:Machinery dated:

21.10.2018 in favour of the plaintiff bank and defendant no.1 has also addressed a letter dated: 08.04.2019, confirming the goods hypothecated to the bank.

Defendants no.2 and 3 have executed guarantee agreement along with covering letter dated: 31.10.2018 each. The defendants have fully availed the loan sanctioned by the plaintiff bank but crossed the OCC limit availed for Rs.5,00,000/- and shifted

IX JCJ, CCC, Hyderabad FAC XXII JCJ, CCC, Hyderabad 3

O.S.No.1916 of 2020

the hypothecated security and concealed the whereabouts of the same. The plaintiff bank issued the legal notice on 28.07.2020 for payment of outstanding loan. Despite receipt of the notices, the defendants failed to pay the loan amount. A sum of

Rs.19,74,155.33 ps remains due and payable by the defendants as on the date of plaint as per certified extract of statement along with certificate under section 2A (A) and 2 A (B) and 2A (c) of Bankers Book of Evidence Act, 1891.

3.On receipt of the summons, defendants no.1 to 3 did not choose to appear and contest the case and on their behalf. Hence, they were set ex-parte.

4. Heard the learned counsel for the plaintiff. Perused the documents.

5.Now the points for determination are :-

1. Whether the plaintiff is entitled for recovery Rs. 19,74,155.33 ps

with interest @ 15.40 per cent per annum with monthly rests from the

date of filing of suit to till the date of realization from the defendant as

prayed ?

2. To what relief?

6.Point :- In order to prove the claim, the G.P.A. holder of the plaintiff bank got himself examined as PW1 and got marked Exs.A1 to A12 i.e., the application form for loans, the sanction memorandum, deed of hypothecation Re:Machinery, the particulars of vehicles, guarantee covering letter, guarantee agreement, guarantee covering letter, guarantee agreement, original letter which acknowledgment receipts, track consignment, statement of account along with certificate and the certified copy of general power of attorney. His chief examination is reiteration of the averments of plaint. Since defendant did not turn up and cross-examine

PW1, the oral evidence of PW1 remains un-challenged. Plaintiff in support of its contention, relied on Ex.A1 to A12, which contains the signatures of the defendants. At present, defendants did not turn up to disprove that Exs.A1 to

A12 does not contain their signatures and they have not executed the same and further defendants did not turn up to prove that they have not availed any loan.

IX JCJ, CCC, Hyderabad FAC XXII JCJ, CCC, Hyderabad 4

O.S.No.1916 of 2020

In the absence of such plea or denial, this Court as no other option except to conclude that Exs.A1 to A12 are executed by defendants after availing the loan.

6.2It is the contention of the plaintiff bank that the defendants have fully availed the loan sanctioned by the plaintiff bank but crossed the OCC limit availed for Rs.5,00,000/- and shifted the hypothecated security and concealed the whereabouts of the same, as such, it issued notice under Ex.A9. Despite receipt of notice, the defendants failed to make the payment. Ex.A11 establishes the outstanding amount due by defendant to plaintiff as on the date of filing of the suit. The oral evidence of PW1 and Exs.A1 to A12 prima facie establishes that defendant borrowed the suit amount under loan and subsequently, failed to repay the amount, therefore, plaintiff bank is entitled to recover the suit claim from the defendants along with interest. Accordingly, this point is answered in favour of the plaintiff.

7.In the result, suit of the plaintiff bank is decreed with costs against the defendants severally and jointly for a sum of Rs. 19,74,155.33 ps (Rupees

Nineteen Lakhs Seventy Four Thousand One Hundred and Fifty Five and Thirty

Three paise only) along with interest at the rate of 12% per annum from the date of suit till the date of decree and interest at the rate of 6% from the date of decree till the date of realization.

Typed to my dictation, corrected and pronounced by me in open court on this the 10th day of November, 2021.

IX Junior Civil Judge, FAC XXII Junior Civil Judge, City Civil Court: Hyderabad.

APPENDIX OF EVIDENCE

WITNESS EXAMINED

PLAINTIFF DEFENDANTS

PW1 Ravi Kumar Vandavasi- Nil -

IX JCJ, CCC, Hyderabad FAC XXII JCJ, CCC, Hyderabad 5

O.S.No.1916 of 2020

DOCUMENTS MARKED

PLAINTIFF DEFENDANTS

Ex.A1Application form for loans- Nil -

Ex.A2Sanction memorandum

Ex.A3Deed of hypothecation Re:Machinery

Ex.A4Particulars of vehicles Ex.A5Guarantee covering letter

EX.A6Guarantee agreement

Ex.A7Guarantee covering letter

Ex.A8Guarantee agreement

Ex.A9Original letter which acknowledgment receipts

Ex.A10 Track consignment

Ex.A11 Statement of account along with certificate

Ex.A12 Certified copy of General power of attorney

sd/-

SMT. KHUSHBOO UPADHYAY

IX Junior Civil Judge, FAC XXII Junior Civil Judge, City Civil Court: Hyderabad.

IX JCJ, CCC, Hyderabad FAC XXII JCJ, CCC, Hyderabad

O.S. No. 1968 of 2019

IN THE COURT OF THE XXII JUNIOR CIVIL JUDGE: CITY CIVIL COURT:

HYDERABAD.

Present: SMT. KHUSHBOO UPADHYAY,

IX Junior Civil Judge, City Civil Court, Hyderabad

FAC: XXII Junior Civil Judge, City Civil Court, Hyderabad

Monday, this the 08th day of November, 2021

Original Suit No. 1968 of 2019

Between:

ICICI BANK LIMITED, a Banking Company incorporated under the provisions of Companies Act, 1956 having its Registered Office At Vadodara and Various branches across the Country and one of its Authorized Signatory and Power of Attorney holder Sri. Pabak Debadarsan Das, S/o. Manoranjan Das, Age: 30 years, Occu: Debt Manager, R/o: ICICI Bank Limited, Gachibowli, Hyderabad.

… Plaintiff

A N D

Syd Kamran Hussain Abidy S/o. Syed Mohtasham Hussain, 2-4-339, Nehru Nagar, Kachiguda Himayath Nagar, Hyderabad.

… Defendant

This suit is coming before me on 26.10.2021 for final hearing in the presence of Sri B.Praveen Kumar, counsel for the plaintiff and the defendant set exparte and the matter having stood over for consideration to this day, this court delivered the following:

J U D G M E N T

1.This suit is filed for recovery of Rs.2,66,990.92 ps with interest @ 15.99 per cent per annum with monthly rests from the date of filing of suit to till the date of realization from the defendant.

2. Brief averments of the plaint:- Plaintiff is a banking company incorporated under the provisions of Company Act and carrying banking business as per the Banking Regulation Act, having its head office at Vadodara and various branches. Among other branches, one of their branch is at Khairatabad represented by its G.P.A. holder. Defendant approached them for credit facility vide preliminary credit facility application form dated 07.05.2018 and the credit facility was sanctioned to the defendant, which was acknowledged by the

2 O.S. No. 1968 of 2019

defendant and he accepted the standard terms and conditions governing the unsecured loans. The credit facility was sanctioned to the defendant to an extent of Rs.2,60,000/- on 07.05.2018 with a fixed rate of interest at the rate of 15.99% per annum. The said facility is payable in 48 equal monthly installments of Rs.7355/- per month. The defendant executed preliminary credit facility application form, credit facility application form, receipt of standard terms and conditions, key facts statement and most important information.

2.3The bank disbursed the loan amount to the defendant and after availing the said credit facility, for sometime, the defendant maintained his account regularly as per the terms and conditions. Thereafter, the defendant committed default in repayment of the credit facility amount, despite repeated demands. The defendant was trying to avoid all his liability and under those circumstances, he was constrained to issue loan recall notice on 30.04.2019 demanding payment of outstanding amount of Rs.2,6,990.92. Despite issuance of legal notice, the defendant failed to repay the due amount.

3. On receipt of the summons, the defendant did not choose to appear and contest the case. Hence, defendant was set ex-parte.

4. Heard the learned counsel for the plaintiff. Perused the documents.

5.Now the points for determination are :-

1. Whether the plaintiff is entitled for recovery Rs.2,66,990.92 ps

with interest @ 15.99 per cent per annum with monthly rests from the

date of filing of suit to till the date of realization from the defendant

as prayed ?

2. To what relief?

6.Point :- In order to prove their claim, the manager got himself examined as PW1 and got marked Exs.A1 to A7 i.e., general power of attorney, preliminary credit facility application form from defendant, credit

XXII JCJ, CCC, Hyderabad

3 O.S. No. 1968 of 2019

facility application form, most important information terms and conditions, acknowledgment of receipt of terms and conditions by the defendant, loan recall notice and foreclosure along with statment of account along with certificate under section 2A Banker’s Book of Evidence Act. His chief- examination affidavit is reiteration of the averments of plaint. Since the defendant did not turn up and cross-examine PW1, the oral evidence of

PW1 remains un-challenged. Plaintiff in support of its contention, relied on

Ex.A1 to A7, which contains the signature of the defendant. At present, defendant did not turn up to disprove that Exs.A1 to A7 does not contain his signatures and he has not executed the same and further defendant did not turn up to prove that he has not availed any loan. In the absence of such plea or denial, this Court has no other opinion except to conclude that Exs.A1 to A7 are executed by defendant after availing the loan.

6.2It is the contention of the plaintiff bank that after payment of some installments, defendant became defaulter, as such, it issued notice under

Ex.A6. Despite receipt of notice and several visits made by the plaintiff, the defendant failed to make the payment. Ex.A7 establishes the outstanding amount due by defendant to plaintiff as on the date of filing of the suit. The oral evidence of PW1 and Exs.A1 to A7 prima facie establishes that defendant borrowed the suit amount under loan and subsequently failed to repay the amount, therefore, plaintiff bank is entitled to recover the suit claim from the defendant along with interest.

Accordingly, this point is answered in favour of the plaintiff.

7.IN THE RESULT, the suit is decreed with costs for a sum of

Rs.2,66,990.92 ps (Rupees Two Lakhs Sixty Six Thousand Nine Hundred and Ninety and Ninety Two paise only) with interest at the rate of 12% per annum on principal amount of Rs.2,66,990.92 ps from the date of suit till

XXII JCJ, CCC, Hyderabad

4 O.S. No. 1968 of 2019

the date of decree and at 6% per annum from the date of decree till the date of realization.

Typed to my dictation, corrected and pronounced by me in open court on this the 08th day of November, 2021.

IX Junior Civil Judge, FAC XXII Junior Civil Judge, City Civil Court: Hyderabad.

APPENDIX OF EVIDENCE

WITNESS EXAMINED

PLAINTIFF DEFENDANTS

PW1 M.Satish Kumar - Nil -

DOCUMENTS MARKED

PLAINTIFF DEFENDANTS

Ex.A1 General power of attorney- Nil -

Ex.A2 Preliminary credit facility application form from defendant

Ex.A3 Credit facility application form

Ex.A4 Most important information terms and conditions.

Ex.A5 Acknowledgment of receipt of terms and conditions by the defendant

EX.A6 Loan recall notice

Ex.A7 Foreclosure along with statment of account along with certificate under section 2A Banker’s Book of Evidence Act.

sd/-

SMT. KHUSHBOO UPADHYAY,

IX Junior Civil Judge, FAC XXII Junior Civil Judge, City Civil Court: Hyderabad.

XXII JCJ, CCC, Hyderabad