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IN THE COURT OF THE I JUNIOR CIVIL JUDGE,
CITY CIVIL COURT, AT SECUNDERABAD
DATED THIS THE 10 th DAY OF AUGUST, 2020
PRESENT: SRI M.ARJUN
XI JUNIOR CIVIL JUDGE
I JUNIOR CIVIL JUDGE
O.S. No. 251 OF 2016
Between:
1. M/s. Lala Durga Pershaad & Sons, HUF represented by its Kartha Sri C.Rajkumar, S/o late M.Manohar Pershad, aged 62 years, Occ: Retired, R/o H.No. 1-8-28, Yeshwant Bhavan, Temple Alwal, Secunderabad
Prakash Kumar, S/o late M.Manohar Pershad aged 62 years, Occ: Retired, R/o H.No. 1-8-28, Yeshwant Bhavan, Temple Alwal, Secunderabad
(Vide I.A.No. 776/2018 impleaded as plaintiff)...Plaintiff
AND
T.Chandra Prakash, S/o late T.Maniklal aged 65 years, Occ: Business R/o H.No. 9-1-234/1, Regimantal Bazar,
Secunderabad ...Defendant
This suit is coming on this day before me for final hearing in the presence of M/s. Harihara Kumar, Advocate for plaintiff and Sri C.M.R.Velu, Advocate for defendant, and the matter having been heard and stood over for consideration till today, this Court delivered the following:-
J U D G M E N T
This suit is filed by the plaintiff for eviction of the defendant and arrears of rents mesne profits against the defendant.
2.The brief averments of the plaint are as follows:-
The plaintiff is the owner/landlord of the portion of premises bearing
No. 9-1-234/1, ground floor, Manohar Talkies, Cinema Complex, St. Mary’s Road, 2
Secunderabad. Originally the father of defendant was tenant of portion of suit schedule property, after his death the defendant is continuing the tenancy.
Earlier there was a registered lease deed upto 2009 and thereafter the tenancy is confirmed as month to month. The defendant is presently paying monthly rent of
Rs. 9000/- per month. The defendant agreed to pay the rents or or before 5th of every month. But defendant is not paying rents regularly and he was due to pay the rents from January, 2015 to April, 2016 @ Rs. 9000/- per month i.e. total amounting to Rs. 1,44,000/- out which Rs. 45,000/- is deposited in the Hon’ble
Court of I Junior Civil Judge, CCC, Secunderabad in OS No. 142 of 2015. the plaintiff requested the defendant several times to pay the arrears of rents. The defendant deposited in February, 2016 an amount of Rs. 45,000/- in OS No. 142 of 2015 on the file of this court leaving balance of Rs. 99,000/- towards arrears of rent. As the defendant has been irregular in paying rents, the plaintiff was fed up with defendant’s attitude and decided to terminate the tenancy with effect from 31.3.2015. To that extent the plaintiff got issued legal notice dated 14.3.2015 to defendant by terminating the tenancy and to vacate the suit schedule property on or befroe 31.3.2015. The defendant received the legal notice did not have over the vacant peaceful possession by that date, hence the possession of the defendant has to be treated as unlawful. Therefore, plaintiff is entitled to mesne profits @ Rs. 20,000/- per month which is prevailing rent for the premises in occupation of defendant. The plaintiff is entitled to arrears of rents to a tune of
Rs. 99,000/- after adjusting the amount of Rs. 45,000/- deposited in the Hon’ble I
Junior Civil Judge, CCC, Secunderabad. The defendant filed a false suit against the plaintiff for seeking relief of perpetual injunction vide OS No. 142 of 2015 on the file of this court. After receiving the notice also the defendant has not cleared the arrears of rents. In these circumstances, plaintiff is constrained to file the present suit for eviction fo defendant, recovery of arrears of rents, and mesne profits.
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3.The defendant contended in the written statement that he is a tenant in portion of mulgi bearing No. 9-1-234/1, ground floor, St. Mary’s Raod,
Secunderabad. The monthly rent was Rs. 6,300/- per month. The landlord issued last rental receipt on 7.12.2011 and thereafter teh landlord has been collecting
Rs. 9000/- per month regularly and stopped issuing rental receipts with malafide intention to declare the defendant as defaulter. The plaintiff and hsi agents have been frequently visiting the defendant and demanding Rs. 18,000/- per month without any basis. There cannot be a jump Rs. 9000/- to Rs. 18,000/- per month.
Further so many persons claiming to be the legal heirs of late Mouleshwar
Pershaad, the Kartha of M/s Lala Durga Pershaad & Sons have been coming to the defendant and claiming rents. At this juncture the defendant sent a legal notice
dated 9.3.2015 calling upon the plaintiff to declare who is the landlord and to
whom teh rent should be paid. The plaintiff sent a reply dated 14.3.2015 claiming
Rs. 18,000/- per month. When the defendant did not agree for the illegal demand of rent, the plaintiff terminated the tenancy and sought eviction. Sri C.Raj Kumar who filed the presnt suit is neither Karta nor the authorised person to insitute the suit adn seek eviction. He has no locus standin to file the suit. The defendant is not an anuthoirsed occupant. The plaintiff is not entitled for mense profits @ Rs.
20,000/- per month. The plaintiff is not entitled for any arrears of rent. The suit is false and vexatious. There is no cause of action for filing the suit. The notice of eviction issued by the plaintiff is not in accordance with law. Therefore, it is prayed that this court rto dismiss the suit with costs.
4.Basing on the averments of the plaint and written statement, my predecessor has framed the following issues for trial.
I. Whether the plaintiff is entitled for recovery of the posession of the
4 defendant from the suit schedule property as prayed for?
II. Whether the plaintiff is entitled for recovery of arrears of rent of
Rs. 99,000/-as prayed for?
III.Whether the plaintiff is entitled for recovery mesne profits of Rs.
20,000/- p.m. as prayed for?
IV. To what relief?
5.Plaintiff No.2 examined as PW1 and filed his chief affidavit in lieu of his chief examination and marked Exs.A1 to A3.
6.PW1 deposed that he is the owner of suit schedule property and defendant was a tenant of the same. Originally father of defendant was tenant of portion of suit schedule property, after his death the defendant is continuing the tenancy. Earlier there was a registered lease deed upto 2009 and thereafter the tenancy is confirmed as month to month. The defendant is presently paying monthly rent of Rs. 9000/- per month. The defendant agreed to pay the rents or or before 5th of every month. But defendant is not paying rents regularly and he was due to pay the rents from January, 2015 to April, 2016 @ Rs. 9000/- per month i.e. total amounting to Rs. 1,44,000/- out which Rs. 45,000/- is deposited in the Hon’ble Court of I Junior Civil Judge, CCC, Secunderabad in OS No. 142 of 2015. The plaintiff requested the defendant several times to pay the arrears of rents. The defendant deposited in February, 2016 an amount of Rs. 45,000/- in
OS No. 142 of 2015 on the file of this court leaving balance of Rs. 99,000/-
towards arrears of rent. As the defendant has been irregular in paying rents, the plaintiff was fed up with defendant’s attitude and decided to terminate the tenancy with effect from 31.3.2015. To that extent the plaintiff got issued legal notice dated 14.3.2015 to defendant by terminating the tenancy and to vacate the suit schedule property on or befroe 31.3.2015. The defendant received the 5 legal notice did not have over the vacant peaceful possession by that date, hence the possession of the defendant has to be treated as unlawful. Therefore, plaintiff is entitled to mesne profits @ Rs. 20,000/- per month which is prevailing rent for the premises in occupation of defendant. The plaintiff is entitled to arrears of rents to a tune of Rs. 99,000/- after adjusting the amount of Rs. 45,000/- deposited in the Hon’ble I Junior Civil Judge, CCC, Secunderabad. The defendant filed a false suit against the plaintiff for seeking relief of perpetual injunction vide
OS No. 142 of 2015 on the file of this court. After receiving the notice also the
defendant has not cleared the arrears of rents. Hence, the defendant is liable to be evicted from the suit schedule property. In support of oral evidence, PW1 marked CC of partition deed as Ex.A1, Copy of legal notice, dated 14.3.2015 as
Ex.A2, original postal receipt, dt. 14.3.2015 as Ex.A3.
7. Issue No.I
Whether the plaintiff is entitled for recovery of the posession of the
defendant from the suit schedule property as prayed for?
Defendant did not comply the orders of this court on I.A.NO. 775/2018 under Order 15A(2) of CPC and paid rents to the plaintiff, consequently the defence of the defendant was struck of on 1.3.2019. Defendant did not choose to challenge the order of striking of his defence nor cross examined plaintiff’s witnesses to the limited extent of pointing out the lacunaes in the case of the plaintiff as permitted under law. Therefore, the evidence of plaintifff is unchallegned and unshaken. In this circumstances this court inclined to hold that the notice of termination of notice according to Section 106 of Transfer of
Property Act. Hence, it is a valid notice and the defendant has to vacate the suit schedule property as the lease period is terminated by the notice issued by the plaintiff. Accordingly, this Issue is answered in favour of the plaintiff.
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8. Issue No.II
Whether the plaintiff is entitled for recovery of arrears of rent of Rs. 99,000/-as prayed for?
Upon hearing to counsel for plaintiff and after careful scrutiny of the entire material available on record, it is pertinent to mention that the relationship between the plaintiff and the defendant as landlord and tenant is not in dispute.
It is the contention of the plaintiff that earlier there was a registered lease deed upto year 2009 and thereafter tenancy is confirmed as month to month and present monthly rent is Rs. 9,000/-, but the defendant is not paying rents regularly and he was due to pay the rents from January, 2015 to April, 2016 @ Rs.
9000/- per month i.e. total amounting to Rs. 1,44,000/- out which Rs. 45,000/- is deposited in the Hon’ble Court of I Junior Civil Judge, CCC, Secunderabad in OS
No. 142 of 2015. The plaintiff requested the defendant several times to pay the arrears of rents. The defendant deposited in February, 2016 an amount of Rs.
45,000/- in OS No. 142 of 2015 on the file of this court leaving balance of Rs.
99,000/- towards arrears of rent. As the defendant has been irregular in paying rents, the plaintiff got issued legal notice vide Ex.A2 and A3. It also evident ferom the record that orders on I.A.No. 775/2018 was not complied by the defendant, therefore, his defence was strike of. In this circumstances, this court inclined to hold that the defendant is liable to pay the remaining balance of Rs. 99,000/- towards arrears of rent as claimed by the plaintiff. Accordingly, this Issue is answered in favour of the plaintiff.
9.Issue No.III
Whether the plaintiff is entitled for recovery mesne profits of
Rs.20,000/- p.m. as prayed for?
It appears from the record, the plaintiff claimed mesne profits @ Rs.
20,000/- per month from the date of suit, however, there is no evidence putforth 7 by the plaintiff about prevailing market value of the suit schedule property and prevailing rental charges for the similar extent of the premises in that locality.
Plaintiff did not examine neighbour of the property to prove the said fact. In the absence of such evidence, it is difficult to come to a conclusion that the plaintiff is entitled for mesne profits or damages. Hence the plaintiff is not entitled for mesne profits. Accordingly this Issue is answered against the plaintiff.
10. Issue No.IV
In the result, the suit is decreed with costs in favour of the plaintiff against the defendant directing the defendant to vacate the suit schedule property within a period of 3 months from the date of this judgment and further directed to pay the remaining arrears of rent of Rs. 99,000/-. The plaintiff is directed to file a separate application for ascertainment of mesne profits.
(Dictated to Stenographer, transcribed by her, corrected and pronounced by me in Open Court, on this the 10th day of August, 2020.)
XI JUNIOR CIVIL JUDGE,
FAC: I JUNIOR CIVIL JUDGE
CITY CIVIL COURT, SECUNDERABAD.
APPENDIX OF EVIDENCE
WITNESSES EXAMINED
For the plaintiff: For the defendant: PW1: Prakash Kumar ---None--
EXHIBITS MARKED
For the plaintiff:
Ex.A1 – CC of partition deed
Ex.A2 – Copy of legal notice, dated 14.3.2015
Ex.A3 – Original postal receipt, dt. 14.3.2015
For the defendant: –- Nil--
XI JUNIOR CIVIL JUDGE,
FAC: I JUNIOR CIVIL JUDGE
CITY CIVIL COURT, SECUNDERABAD.
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Secretary of the plaintiff club got himself examined as PW1. He has been authorised to depose on behalf of the plaintiff. He deposed that plaintiff esentially sports club and sailling annexe is part and parcel of the activities of the above club. It has been in existence for more than 130 years. The Jetti had been constructed to stem the waves in the lake in order to facilitate the boats and yachts to set sail, otherwise the sailing activity could not be conducted and the waves would tapple the boats resulting the boats capsizing. The defendant issued an order under section 452(2) of the HMC Act vide Order No. 22/TPS/W.No. 5/CIR- 18/NZ/GHMC/2014 which is wholly illegal and unlawful. The plaintiff had addressed a notice to the defendant on 21.5.2014 stating that plaintiff was not give opportunity of a personal hearing before passing of the impugned order without prior notice under section 452(1) of HMC Act. The impugned order is wholly eroneous and unjustifiable. He has got marked the original order passed by the defendant, dt. 13.5.2014 as Ex.A1, reply notice, dt. 23.5.2014 as Ex.A2, photographs with CD as Ex.A3 and true copy of authorisation as Ex.A4.
9.In cross examination of PW1, deposed that he has not filed any documentary evidence to show that bund was constructed way back 130 years 12 ago. He denied that the Jetti was constructed 5 to 6 years ago by the Sailing
Club. He further denied that the Jetti is causing obstruction the out flow of the water from the Hussain Sagar lake particularly in rainy season. He further deposed that there is no compound wall towards the lake. He voluntarily stated that GHMC authorities erected 3 sign boards out of which two sign boards were erected by GHMC and another sign board with the permission of the GHMC. He admitted that no proof was filed to the effect that GHMC erected three sign boards. They are not aware about the inspection of the Hussain Sagar lake on 21.11.2013 by the Engineering department, Dam Safety Committee of Hussain
Sagar lake and based on which Ex.A1 was issued. They have not filed any complaint before the police concerned or the Commissioner of GHMC for illegal threatening by the people of GHMC. They have not issued any notice to the defendant corporation before filing of the suit. He admitted that the government is owner of the Hussain Sagar lake including the Jetti (Pier) portion.
10.After the completion of the evidence of PW1, the defendant, got examined DW1. DW1 is the Assistant City Planner, GHMC, Circle 18 and authorised by the defendant corporation to depose on its behalf. He deposed that the Superintending Engineer, HL & WBM circle, Hyderabad has informed that there was pathway view point in the lake in front of the Boats club in Hussain
Sagar lake, it is obstructing the straight flow in the surplus weir cum bridge. It reduces the speedy discharge of outflow during the flood, the wall in front of
Boats club and the sign boards abutting to the boats club near the Hussain Sagar is also illegally constructed in the fore shore of Hussain Sagar Surplus weir and the same is declared by Dam Safety Committee during their inspection on 22.11.2013. He further deposed that it is necessary to dismantle the entire path way view point in front of Boats club. Hence a notice was issued by the defendant 13 corporation under section 452(2) of HMC Act, 1955 stating that path way is illegally constructed. In response to the said notice, the plaintiff has submitted reply which was sent to Superintending Engineer, HL & WBM Circle to examine the matter. The defendant corporation has not initiated further action since the plaintiff has given reply stating that the said path way is in existence since long back. The plaintiff did not issue notice under section 685 of HMC Act which is mandatory and the present suit is not maintainable.
11.In support of his oral evidence, he got marked notice from
Superintending Engineer to Chief City Planner, dt. 14.5.2014 as Ex.B1, notice under section 452(2) of HMC Act, 1955 as Ex.B2, (6) photographs as Ex.B3.
12.In the cross examination, DW1 deposed that his predecessor by name
Prasad had more acquaintance with the facts of the present case. In his cross examination Ex.A5 was marked. He admitted that Ex.A5 shows the path way from the Sailing Club to the tank bund. He admitted that no show cause notice has been issued prior to Ex.A1 and they have not mentioned in Ex.A1 that the
Superintending Engineer, HL & WBM Circle has informed that there was a path way view point in the lake in front of the Boats club. They have not verified about the authenticity of the Ex.A2. There is no information to the plaintiff about the inspection on 12.6.2014. He further admitted that much prior to the filing of the suit there is a path way from Sailing club to tank bund. Ex.B3 photographs showing Debris. The Engineers section of GHMC has to clean the said debris.
There is an old path way from sailing club from Secunderabad to Hussain Sagar.
According to him the age of the said trees is about 10 or 15 years. They have not mentioned specifically in Ex.A1 about the construction of path way. He is not aware about the existence of the path way. He admitted that they have not issued notice under section 452(1) of HMC Act, 1955 and prior to issuing of the 14 order, the show cause notice is mandatory.
13.The learned counsel for the plaintiff argued that the defendant corporation in high handedness arbitrarily issued an order under section 452(2) of the HMC Act, 1955 without following due procedure of law i.e. issuing of show cause notice under section 452(1) of the Act which is mandatory. There is no notice or information to the plaintiff about the inspection of the Dam Safety
Committee on 22.11.2013. Without prior information or notice, the defendant corporation straigt away issued orders under Ex.A1 which is violative which is not non-est in law. The reply issued by the plaintiff which was marked as Ex.A2 establishes that the act of the defendant corporation is without application of mind and which is unsustainable in law. Photographs submitted by the plaintiff in
Ex.A3 showing the path way and the trees found which were having age of more than 100 years. Ex.A5 which is a brochure of the plaintiff club having a picture in the front page also confirming the same.
14.He further argued that It is incorrect and false to say that path way is recently constructed by the plaintiff. It was constructed way long back and the plantiff club is famous and well known for its sailing club and sailing activities and conducting sports and events and competitions in connection with national and international sports. The defendant company without following due procedure of law threatening to demolish the path way and if the injunction is not granted the plaintiff will suffer irreparable loss and which will effect the activities and the business conducted by the plaintiff since several years, which cannot be compensated in any terms. Hence, requesting the court to decree the suit in favour of the plaintiff declaring the orders issued by the GHMC is illegal and arbitrary and restrain them from interfering with the possession of plaintiff and 15 not to cause any distruction to the path way.
15.He further referred the following judgments.
1. Devi Singh Vs. Municipal Corporation AIR 1972 SC 2510 (1973) 4 SCC 66 wherein it was held thatthe question whether a notice under the aforesaid sections was necessary has to be decided on the averments made. It was never the case of the plaintiff that the defendant corporation was acting or purported to act under the provisions of the Act. The dispute raised related to the ownership of the property as also its possession. We have not been shown any provision in the corporation At by which the Corporation or its officers were entitled to either take possession of another person's property or retain its possession or dispossess a person who is already in possession without having recourse to the ordinary remedies under the law. We are wholly unable to understand how
Section 56 of the Corporation Act could be of any avail to the Corporation in the matter of notice under Section 47 of the Act. The whole controversy between the parties centered on the question whether the Bazaar was the property of the planning and was in his possession at the time of the institution of the suit. That had nothing to do with any act done or purported to be done in pursuance of execution or intended execution of any provision of the Corporation Act. The learned counsel for the Corporation has not been able to show how the suit as laid and framed attracted the applicability of Section 447 of the Corporation Act. We would, accordingly, hold that under the aforesaid section no notice was necessary any before the institution of the suit.
2. AIR 1972 Andhra Pradesh 96, Municipal Corporation of Hyderabad Vs.
T.V.Sharma:- Section 685 of the Corporation Act must be interpreted in the same manner as S.80. Civil Procedure Code. In AIR 1958 Andhra Pradesh 102 argument was advanced before the learned Judges that the provisions of Section 447 of the
Hyderabad Municipal Corporation Act, 36/50 are not applicable to a suit for declaration and injunction and reliance was placed upon a decsion prior to the decision of the Privy Council in Bhagchand Vs. Secretary of State, AOR 1927 PC 176.
16.On the other hand the learned counsel for the defendant corporation argued that the Dam Safety Committee inspected the Hussain Sagar lake on 16 22.11.2013 and they observed that path way view point in front of the Boats Club in Hussain Sagar is obstructing the straight flow in the Surplus Weir Cum Bridge.
The Superintending Engineer, HL & WBM Circle had addressed a letter to the
Assistant City Planner under Ex.B1 requesting to take the immediate action to remove the Sailing Annexe which shows the threat and damage to the Hussain
Sagar and there is an emergency to demolish the path way, otherwise the out flow of the water will be struck off which may result into floods. The plaintiff club also erected sign boards which is also dangerous to continue and there is every necessity to remove them including the path way which is illegally constructed.
17.He further argued that the defendant corporation had issued the show cause notice under section 452(2) of the HMC Act, 1955 which is valid and the defendant corporation has followed due procedure of law and gave fair opportunity to the plaintiff to give reply. But suppressing the real facts, had filed the present suit without issuing notice under section 685 of HMC Act which is mandatory. There is no threat underlying to the plaintiff's property, but the plaintiff by suppressing real facts came to this court with unclean hands. The suit is not maintainable for want of mandatory notice under section 685 of HMC Act and requesting the court to dismiss the suit. He further argued that the defendant corporation actively involving in cleaning the Hussain Sagar premises as instructed by the government, there is no violation of any provision of law by the defendant corporation. Hence, the suit may be dismissed.
18.Before embarking upon the appreciation of oral and documentary evidence of both rival parties, it is necessary to read out the provision under section 452 of the Hyderabad Municipal Corporation Act, 1955. The reading of the same is given below.
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Section 452:- Proceedings to be taken in respect of building or work commenced contrary to Act or bye-laws:-
1) If the erection of any building or the execution of any such work as is described in Section 433 is commenced or carried out contrary to the provisions of this Act or bye-laws made thereunder, the Commissioner, unless he deemds it necessary to take proceedings in respect of such building or work under Section 456 shall -
(a) by written notice, require the person who is erecting or re-erecting such building or executing such work or has erected or re-erected such building or executed such work, on or before such day as shall be specified in such notice, by a statement in writing subscribed by him or by an agent duly authorised by him in that behalf and addressed to the Commissioner, to show sufficient cause why such building or work shall not be removed, altered or pulled down: or
(b) shall require the said person on such day and at such time and place as shall be specified in such notice to attend personally or by an agent duly authorised by him in that behalf, to show sufficient cause why such building or work shall not be be removed, altered or pulled down.
(2) If such person shall fail to show sufficient cause as required under clause (a) or (b) of sub-section (1), to the satisfaction of the Commissioner, why such building or work shall not be removed, altered or pulled down, the Commissioner may remove, alter or pull down the building or work and the expenses thereof shall be paid by the said person.
19.A reading of the above provision of Section 452(1) of the Act and the clauses (a) and (b) shows that prior show cause notice is must to the building owner to show sufficient cause why such building or work shall not be removed, altered or pulled down or call such building owner on such day to attend personally or by an agent to show sufficient cause and according to sub section (2) of the said provision, if such person or the owner of the building failed to show sufficient cause to the satisfaction of the Commissioner, the Commissioner may remove or alter or pull down the building. It is the discretionary power of the
Commissioner to remove or alter even on the failure of the building owner to 18 show sufficient cause why the building shall not be removed or altered or pulled down. But giving the prior notice of show cause is mandatory on part of the
Commissioner to the building owner.
20.In the present case, PW1 who is the Secretary of the plaintiff deposed that no prior notice was issued to the plaintiff before issuing of the Orders under section 452(2) of the Act. At this juncture, it is necessary to look into Ex.A1 which shows that it is an order under section 452(2) of the Act, dt. 13.5.2014 wherein it was mentioned that the plaintiff has constructed the Pier in the water bed level unauthorisedly. The reference No.2 which is a column for show cause notice was struck off. This shows that no prior show cause notice has been given to the plaintiff to show sufficient cause why the Pier shall not be removed from the existing place. Ex.A2 shows that the plaintiff by giving a reply to the Deputy
Commissioner as well as the Commissioner of GHMC wherein it was categorically mentioned that the Pier on the water bed level has been in existence for more than 150 years. By this part of evidence of PW1, it established that the Pier of the
Sailing Annexe which is called as path way view point attached to the plaitniff's club is in existence since several long years. The same is not disputed by the defendant corporation. The photographs under Ex.A3 also corroborating with the oral evidence of PW1. It is clearly established that the defendant corporation had not issued the show cause notice which is mandatory under section 452(1) of the
Act.
21.Be that as it may, the defendant got examined DW1 and marked Exs.B1 to B3. Ex.B1 is the letter addressed by the Superintending Engineer to the
Assistant City Planner wherein requesting to take immediate necessary action to remove the Sailing Annexe of the plaintiff's club which is obstructing the free flow 19 of flood water through surplus weir. Copies of the letters to the Chief City
Planner, GHMC annexed to Ex.B1 showing that to issue notice to the Boats club authorities and take further steps to dismantle the path way view point as well as sign boards constructed in the lake. But Ex.A1 which is also marked by DW1 as
Ex.B2 showing that no such notice been issued to take further steps. Ex.B3 i.e.
photographs showing the debris which is to be cleaned by GHMC staff as admitted by DW1. DW1 also admitted that they have not issued the show cause ntoice which is mandatory. PW1 denied that there is a compound wall constructed by the plaintiff and he admitted that Jetti belongs to the government. It is the grievance of the plaintiff that if the Jetti (Pier) is removed the Sailing Annexe conducted by the plaintiff club will be obstructed and they will suffer irreparable loss due to the demolition of such Jetti.
22.The present suit is filed for declaration that the order of the defendant corporation under section 452 (2) of HMC Act 1955 is illegal and arbitrary. The oral and documentary evidence of both parties elicited that the defendant corporation failed to give the prior show cause notice and there was no information to the plaintiff club that the Dam Safety Committee had inspected the
Hussain Sagar lake and they have reported to the GHMC to take steps for removing the Jetti (Pier). As the defendant corporation failed to give the prior show cause notice, this Order under section 452(2) of the Act is illegal.
23.It is further mentioned that the defendant corporation without adopting proper procedure of law got issued the orders directly on the plaintiff club and it is also established by the plaintiff that the officials of the defendant corporation are threatening to remove the path way. As the present suit is filed for permanent injunction and the plaintiff established his possession over the Jetti (Pier) i.e. the 20 suit schedule property and with which he is conducting his business transaction, as such the defendant corporation shall be restrained from removing the Jetti (Pier) without proper procedure of law.
24.Having regard to the facts and circumstances of the present suit, the plaintiff by producing relevant evidence, established its possession over the suit schedule property and the acts of the defendant corporation found to be against the law.
25.It is the defence and argument of the defendant corporation that the plaintiff has filed the present suit without issuing the mandatory notice u/s 685 of the Act, hence, the suit is liable to be dismissed. But it is the plea of the plaintiff that there is malafide intention of the defendant corporation to demolish the Jetty (Pier) without proper procedure under law and there is imminent threat to the pathway as such this suit is filed with the leave of the court to present by dispensing the issuing of notice. Now the point to be considered is whether failure of the plaintiff to issue notice u/s 685 of the Act makes the suit bad in law and the same should be dismissed. This court is of view that though issuing of the notice u/s 685 of the Act is mandatory, when specific allegations of malafide made against the defendant corporation the court has a duty to look carefully the evidence adduced by both parties and facts and circumstances of each case have their own significance in a given case to appreciate that the issuing of notice to the corporation can be waived or not. In the present case it is established that the defendant corporation with out issuing a prior show case notice issued the orders in 452(2) of the Act, this court already made observation that the orders vide
Ex.A1 were against the procedure under the Act as discussed in the previous paragraphs of this judgment, the allegations of malafide on the part of the 21 defendant can not be thrown away.
26. The learned counsel for the defendant has filed a news paper showing the measures taken by the HMDA for cleaning the Hussain sagar lake. No doubt the above news article showing the cleaning works taken up by the corporation.
At the same time the picture in it also showing the path way which is corroborating the photographs filed by the plaintiff established the long age of the trees on the view point. As part of cleaning of Hussain sagar lake the corporation would have adopted proper procedure under law by issuing prior show cause notice to the plaintiff club and then proceed for issuing of orders for dismantle the path way, after hearing to the plaintiff and on not satisfying with the reasons for not to dismantle which is only a discretionary power and where as issuing of the notice u/s 452(1) of the Act, is mandatory. Hence, the defendant act of issuing of above orders can not be sustained as lawful on the ground of measures adopted by the corporation in cleaning the lake. On the other hand the citations filed by the plaintiff support the facts of the present case.
27.In view of the above discussions, this court holds that the orders in Ex.A1 is illegal and plaintiff could able to prove the facts by producing cogent evidence.
Hence, the suit is decreed in favour of the plaintiff. Accordingly, the Issue is answered in favour of plaintiff.
28. Issue No.2
The plaintiff club by producing relevant and cogent evidence established the possession over suit schedule property and the action of defendant corporation of issuing order u/s 452(2) of the HMC Act is against law. Hence the plaintiff is entitled for the relief as prayed. Accordingly, the Issue is answered in favour of the plaintiff.
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In the result, the suit is decreed without costs in favour of the plaintiff against the defendants declaring the orders of defendant corporation u/s 452(2) of HMC Act is against the law and the defendant corporation and his officials or its staff are restrained from demolishing the Jetty (Pier) i.e. the suit schedule property without due procedure of law.
(Dictated to Personal Assistant, transcribed by her, corrected and
pronounced by me in Open Court, on this the 27th day of June, 2017.)
I JUNIOR CIVIL JUDGE,
CITY CIVIL COURT, SECUNDERABAD.
APPENDIX OF EVIDENCE
WITNESSES EXAMINED
For the plaintiff: PW1: Brigadier Chandra B.Shukla
For the defendant: DW1: K.Srinivas
EXHIBITS MARKED
For the plaintiff:
Ex.A1 – Original impugned order passed by the defendant, dt. 13.5.2014
Ex.A2 – Office copy of the reply notice, dt. 23.5.2014 issued by plaintiffs counsel to the defendant
Ex.A3 – Photographs with CD
Ex.A4 – True copy of authorisation
Ex.A5 – Brochure
For the defendants:
Ex.B1 – Notice from Superintending Engineer to Chief City Planner, dt. 14.5.2014
Ex.B2 – Notice under section 452 (2) of HMC Act, 1955
Ex.B3- Photographs (6) 23
I JUNIOR CIVIL JUDGE,
CITY CIVIL COURT, SECUNDERABAD.
DECREE
IN THE COURT OF THE I JUNIOR CIVIL JUDGE,
24
CITY CIVIL COURT, AT SECUNDERABAD
DATED THIS THE 15th DAY OF NOVEMBER, 2016 PRESENT: SRI T.NARSI REDDY
I JUNIOR CIVIL JUDGE
O.S. NO. 443 OF 2016
Between:
M/s. Prakriti (Exclusive dress materials) represented by its Proprietrix Mrs. Shobha Ladha W/o Shri Devender Gopal Ladha carrying on business at # Shop No. 19, Lower Ground floor, M Ishaque Estate Near General Bazar, Next to Bon Optics M.G. Road, Secunderabad.
...Plaintiff
AND Mrs. R.V.Lakshmi Proprietary M/s. Chaitu's Life style # 8-22-82, 114, New Street, Tirupathi
...Defendant
CLAIM:- This suit is filed by the plaintiff directing the defendant to pay a sum of Rs. 46,765/- in all with further interest on Rs. 39,755/- at the rate of 24% p.a. from the date of suit till the date of realisation.
VALUATION : The total suit is valued at Rs.46,765/-, on which a court fee of Rs.2,326/- is paid under Sec.20 of the AP Court Fee and Suits Valuation Act.
This suit is coming on this day before me for final hearing in the presence of Sri Devender Kumar Jain, Advocate for the plaintiff and defendant set ex parte and the matter having been heard and stood over for consideration till today, this Court delivered the following:-
Plaint filed on : 2.8.2016 Plaint registered on: 2.8.2016
That the suit of the plaintiff be and the same is hereby the suit is decreed • with costs in favour of the plaintiff directing the defendant to pay a sum of Rs.39,755/- together with interest @ 24% p.a. from the date of suit till the date of decree, and @ 6% p.a from the date of suit till the realization.
That the defendant also do pay to the plaintiff a sum of Rs.3,722/- • towards cost of the suit.
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I JUNIOR CIVIL JUDGE
CITY CIVIL COURT: SECUNCERABAD.
MEMO OF COSTS
For Plaintiff For Defendants 01Stamp on Plaint Rs. 2,326-00Exp 02Stamp on Power Rs. 2-00 03Advocate Fees Rs.1,344-00 04Stamp on process Rs. 50-00
Total: Rs. 3,722-00 --
I JUNIOR CIVIL JUDGE
CITY CIVIL COURT:
SECUNDERABAD.