Smt M.sobharani

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IN THE COURT OF THE IV ADDL. SENIOR CIVIL JUDGE: GUNTUR

Present: Smt. M. Sobha Rani.,

IV Addl. Senior Civil Judge, Guntur.

Friday, this the 23rd day of July, 2021.

Original Suit No.736 of 2013

Between:

1.P. Sudarshanam Deva Karuna Kumari,

2.Nannepaga Prabhakar Rao,

3.Gera Suvarna Raju. (The plaintiffs are members of 1st defendant

A.E.L. Church, Guntur.)... Plaintiffs

And

1.The Andhra Evangelical Lutheran Church, (Represented by its President Rev. Paradesi Babu,

2.The Executive Council of the Andhra Evangelical Lutheran Church, Represented by its Chairman Rev. Paradesi Babu,

3.The Central Guntur Synod Rep. by its President Rev. Ch. Elia,

4.The West Parish Church, Rep. by its Pastor Rev. Nama Ramesh,

5.M/s. Lakshmana Hotels Pvt. Ltd., Rep. by its Managing Director K. Ramesh Krishna Chandra,

6.The Guntur Municipal Corporation, Rep. by its

Commissioner, Guntur. ... Defendants

This suit is coming on 12-7-2021 for final hearing before me in the presence of Smt. J.B. Vara Lakshmi., Advocate for Plaintiffs., and Sri M. Sita Rama Das., Advocate for 1st and 2nd defendants, and Sri G. Ramesh., Advocate for 5th defendant and defendants 3, 4 and 6 were set exparte., and upon perusing the material on record and having considered the matter till this day, this Court delivered the following:-

J U D G M E N T

This is a suit filed by the plaintiffs (a) for declaration that the registered lease deed said to have been executed by the then alleged

President of A.E.L. Church, on 9-4-1997 with the consequent lease agreement of the 5th defendant by the 1st defendant on 16-11-1998, is null 2 and void, and not binding on Christian community under the A.E.L. Church,

(b) for mandatory injunction directing the 5th defendant to remove the structures which are made illegally in the suit schedule property or permit the plaintiffs to demolish the same by due process of law; (c) for permanent injunction restraining the 5thdefendant, their men, confederates, henchmen, agents, followers, friends from in any way making any structures in the suit schedule property and costs.

2.The facts leading to file this suit by the plaintiffs in brief are as follows:

a)Defendants 1 and 2 are governed by the Society Registration

Act and they have a constitution of their own for the purpose of running various institutions. The plaintiffs are truthful followers of Lord Jesus and got faith and they follow the constitution of the 1st defendant. The plaintiffs are members of the church who paid suvartha dhananidhi and being faithful followers of Jesus Christ, they are unable to see that the church properties are put to huge loss by the past presidents and also its office barrers. Thus, the plaintiffs are filing the suit in the interest of A.E.L. Church.

b)The suit schedule property is in prime locality where the hostel for the students is situated which is known as “Heyer Hall Compound”.

There is also a old church which was constructed about more than 100 years back and the site is being used as play ground for the students of A.C.

College. The play ground is an essential part in the hostel compound and therefore the founding fathers of A.C. College, Guntur had set apart the entire vacant site for sports activity. The vacant site is for the benefit of

A.C. College and boys that reside in the hostel.

c)While so, Kaki Nathaniel filed suit in O.S.529/93 on the file of

Addl. Subordinate Judge, Vijayawada against the defendants 1 and 3 herein 3 who are defendants 1 and 2 in the said suit and also Dr. N. Victor Paul, for declaration that the election of 3rd defendant as President is null and void and also for consequential permanent injunction and mandatory injunction.

The said suit was decreed and the relief for mandatory injunction directing the defendant to recount votes relating to the election of President of the 1st defendant church held on 27-5-1993 was dismissed. The suit was decreed for other reliefs mentioned in plaint ‘A’ and ‘B’ only. By the said orders, the plaintiff in the said suit Kaki Nathaniel became President of the 1st defendant church.

d)While so, Rev. Victor Paul who claimed to be the President of the 1st defendant resigned and then vise President Rev. G. Immanuel wanted to become President of the 1st defendant church. The 1st defendant church represented by Rev. G. Immanuel who was the acting President and vice President of the A.E.L. Church filed suit against Rev. K. Nathaniel on the file of District Munisif Magistrate, Sarurnagar for permanent injunction restraining the defendant, his men and agents from in any manner interfering with the executive counsel meeting to be held on 26-8- 1996 at Lutheran Church, Bapireddy Nagar and Advocate commissioner was appointed who noted down about the proceedings of executive counsel meeting in LCM No.345 dt.27-6-1996. Rev. G. Immanuel filed suit on the file of District Munisif Magistrate, Miriyalaguda against Rev. K. Nathaniel and

Rev. Thomas Wilson for permanent injunction in O.S. 194/95 on the file

Subordinate Judge, Rajahmundry and the said suit had not been prosecuted perhaps it was thought that there is abuse of process of Law.

e)It is common parlance under the constitution of the Church that the actions taken in the executing counsel meeting have to be followed by recording minutes and any transactions that were done by the parishes, synods have to be ratified. In the said process, the suit schedule property 4 had to be ratified by the executing counsel and LCM. There is no minutes in respect of schedule property except part of site. Thus without there being approval of executing counsel of the 1st defendant, there can be no presumptive order or assumptive order in respect of suit schedule property.

f)However, there were inter-se disputes among the Presidents of the 1st defendant and the matter was taken before the Hon’ble High Court and thereupon, on advice, K. Nathaniel had withdrawn the proceedings and the then vice president of A.E.L. Church who was elected as President, was managing the affairs of the Church and its properties. While the matters are thus, Rev. K. Nathaniel who was the president of AEL Church held executive counsel meeting on 26-8-1996 at St. Mathews, North Parish

Church, Guntur and minutes were recorded at LCM number 344 by the recording Secretary K.L. Sirish Babu.

g)While so, there was CMP No.9897/96, LPA No. 99/96 on the file of Hon’ble High Court, Hyderabad filed by K. Nathaniel against the decree of the I Addl. Subordinate Judge, Vijayawada on 8-3-1995 in O.S.529/93 and after hearing, orders were passed that they got interfere with the decree passed in O.S.No.529/93. Thereupon K. Nathaniel filed contempt case

No.1420/96 and orders were passed on 26-2-1997 and it was noted that

“As a result of withdrawing both suits (O.S.No.324/96 on the file of

Prl. District Munisif, Hyderabad West and South, R.R. District,

O.S.No.311/96 on the file of District Munisif, Miriyalaguda)

withdrawn of both the suits and consequently order that might

have been passed in the interlocutory Application filed in the suits

also no longer survives and must be taken to have been awaited.

In view of such affidavit, and unconditional apology tendered, we

accept the same and we do not think it worthwhile to proceed with

contempt case any further”. Thus, it is clear that by the date of 5 contempt petition, Rev. Dr. K. Nathaniel was the President of the 1st defendant Church. By friction of the pleadings in the above said suit, it was felt that Rev. G. Immanuel was the president of the 1st defendant church, but in the legal paralance and the legal affect is that Rev. K. Nathaniel is the

President and that was the reason why Rev. Dr. K. Nathaniel as the

President of A.E.L. church passed minutes of executive counsel in LCM

No.344 dt.26-8-1996. In the said minutes there is no mention of lease of schedule property and if any minute is made in respect of the lease by the rival group it has no legal sanctity of executive counsel of A.E.L. church.

h)The 5th defendant made a claim by entering into a lease agreement with the person who had no authority under the church constitution and filed suit in O.S. No.246/2000 on the file of Addl. Senior

Civil Judge, Guntur for the purpose of registered lease deed originally to an

extent of 3000 sq. yards, but it was learnt that LCM No.344 does not contain any sanction of the said site for lease and it has come into light about 3 months back that there is LCM which was passed under LCM No.431 in the

Executing Meeting held on 11-11-2008 at St. Mathews West Parish Church,

Guntur wherein it was mentioned that another 1000 sq. yards of site has to be registered and it was not registered due to the sudden demise of

President Rev. G. Immanuel.

I)The 5th defendant filed suit for specific performance against the defendants 1 and 2 and obtained a decree for registering the lease deed for 49 years and thereupon the defendants in the said suit failed to appear and the suit was decreed. However, the defendants 1 and 2 did not come forward to register the property and thereupon execution proceedings were started and ultimately registered lease deed was obtained. Taking advantage of the said decree, the 4th defendant schemed to grab the property which is in the control of 3rd defendant. There were 6 representations given by the members who belong to the faith of Jesus

Christ who are Lutherans in the year 2000 and to look-after and to protect the properties of A.E.L. Church, but all attempts were proved in vain.

Defendants 4 to 6 started construction of seller basing on some illegal and concocted documents. 6th defendant is a statutory body had not even given building plans which is public document and the plaintiffs have to wait for long time to get the copies of the documents upon which the alleged constructions are being made. 6th defendant is only a formal party and no relief is claimed. Hence, notice under section 685 of HMC Act is not necessary as no relief was claimed.

j)Under the lease deed said to have been registered by the then

President Reverend Emmanuel under LCM No.344 under clause 4 “the

Lessee does not construct either cine theater or temple in the schedule site”. The lessee shall not utilize the site for any other purpose except as mentioned for the purpose of hotels alone”. But, it is learnt that under LCM 431 it was voted by the executive counsel that permission be accorded to the 5th defendant to construct multiplex theaters and commercial complex and extended the boundaries by 1000 sq. yards. It is learnt that 5th defendant entered into a document which was not disclosed to the public and started construction in the name and style of 5th defendant. A plan was obtained from the 6th defendant.

k)The plaintiffs learnt about the internal fraud of the defendants through minutes. Thus, any lease deed said to have been made by Rev. G.

Immanuel and other members have no actual sanctity nor there is any legal sanctity. 3rd plaintiff sent a letter to the 1st defendant on 19-2-2000 about the anguish of Christian community against the church properties and having received the said letter, the then claimed President Rev. G.

Immanuel slept over the matter and subsequently no construction was 7 made and possession was not given. It is under the definite impression that the lease deed has not come into existence. Defendants 1 to 4 misleaded the Christian community of A.E.L. church and thereby committed fraud.

Under the guise of alleged lease, 5th defendant and his men claimed to have grabbed 6000 sq. yards belonging to the defendants 1 and 2. Defendants 1 to 4 are sleeping over the matter. Recently, 5th defendant started construction and the plaintiffs have to gather documents which took time and therefore there is no limitation at all. The 5th defendant who submitted the plans to the 6th defendant who accorded permission only in the month of August, 2012, thus the rights of the plaintiffs are not barred by law of limitation. The plaintiffs are therefore constrained to file the suit for declaration and for consequential mandatory injunction.

3.a)Defendants 1 and 2 filed written statement denying the averments of the plaint and further submitted that the plaintiffs have no locus-standi to file the suit. They have neither right nor cause of action.

The plaintiffs are not members of A.E.L. Church, as such, they have no right to sue the defendants. The suit itself is hopelessly barred by time and is liable to be dismissed.

b)The A.E.L. Church is a society registered under society’s registration Act. It has got its own constitution and by-laws which govern the administration of the church. The administrative structure of A.E.L.

Church is most democratic and with fool proof provisions to protect the interest of the church. In this matter there are no deviations or violations of any constitutional provisions of the church constitution. Every traction made by the church is transparent. There is no scope for any manipulation.

c)The church in the initial stages largely depended upon foreign funds. As time passed, the flow of foreign funds almost dried up and the 8 church administration has to explore possibilities to secure funds which are necessary to run the church administration and achieve its object. From times over-long the church has been leasing out its properties which lying idle and which were have become defunct institutions. Several parts of vacant site in West Parish Church compound abutting the suit schedule property have been leased out and several commercial buildings came up to the knowledge of one and all.

d)Heyer hall is men’s hostel which was ancient and became dilapidated and became uninhabitable for the students. When the church authorities are searching ways and means, the 5th defendant came forward to construct a new hostel building and also pay handsome amount as rent.

The rent agreed upon at that time was very high when compared with other transactions. Even in the beginning, the 5th defendant requested for more site which was necessary for their project. It has come to light that the

additional site was promised by the church though the initial lease was

granted for 3000 sq. yards. Subsequently, the church executive counsel fulfilled its promise by proper documents. It is false to say that the plaint schedule property was used as football court. A.C. College has got its own play ground situated near by in an extent of more than Ac.5.00 of land popularly called as Gunta Ground. When the 5th defendant did not yield to their unfold monitory demands with a view to blackmail the hospital authorities who have invested crores of rupees over the construction which cannot be stopped. The plaintiff came up with this unholy and frivolous suit.

e)Even though, the lease is of the year 1996, no work could be taken up by the 5th defendant because of the litigation launched by G.

Dayardhana Rao and another as if representing Lutheran Christians which suit filed for the same relief of declaration and the same was dismissed.

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The suit Judgment in the earlier suit is a Judgment in rem and the suit is hopelessly barred as no action can be litigating twice over.

f)The plaint schedule property was leased out to the 5th defendant pursuant to the resolution and decision of executive counsel of the church who has got authority to alienate the church property in whom it vests. Rev. G. Immanuel was the president and executive counsel resolved to lease out the plaint schedule property on all occasions, by proper LCMs pursuant to which the Treasurer and the President executed lease deeds which are true and valid. The tenant has been paying the rent. The present president assumed charge on 1-6-2013. From the records available it is seen that after Rev. Victor Paul was elected as President, Rev. Nathaniel never acted as president of A.E.L. Church. The Hon’ble Apex Court finally decided the matter that Rev. K. Nathaniel never acted as President subsequent to Rev. Victor Paul election. The fate of litigation has no relevance and it is unnecessary to advert to its as there is no record in the church office.

g)The successive presidents and executive counsel have also accepted lease in favour of the 5th defendant under valid lease. It is learnt that the 5th defendant sub-leased the premises to Dr. Ramesh, Cardiac

Multi-Specialty Hospital Pvt. Limited who have under taken massive construction programme by investing huge money and by entrusting the execution of the work to reputed builder. The construction is midway through. If the progress of construction is stopped, the 5th defendant will be ruined. The plaintiff will not suffer any loss.

h)A non party to a document cannot seek for declaration as claimed in this suit. Any suit for mere declaration without possession is not maintainable. Hence, this suit is liable to be dismissed. The company who took sub-lease of the premises has already completed five floors. On 10 completion of the building, the church will not suffer any damage or loss since the lesseess are completing the constructions at their own risk if any.

The plaintiffs resorted to the suit only to extort parties from the lessees and deprive the church and its income. In fact, original lessees have constructed compound wall along with site on lease after taking possession of the property and continue to be in possession of the same since 1996.

Hence, pray to dismiss the suit with exemplary costs.

4.Defendants 3, 4 and 6 stood exparte. 5th defendant filed written statement and submitted that the company took the property on lease by a valid registered lease deed pursuant to valid resolution of the church executive counsel and took possession of the same and has been in possession and enjoyment of the same. It is learnt that the present management sub-leased the plaint schedule property and the sub lessee is constructing a corporate, multi-specialty hospital by entrusting crores of rupees. The plaintiffs have no locus-standi to file the suit. They are not members of the A.E.L. church and have no interest at all. The earlier suit by some persons and association for declaration operates res-judicata as the same was dismissed with costs. The plaintiffs are aware of change of management of Lakshmi Hotels and the person who is said to be representing the company is no longer associated with the company and he does not represent the company since 2006. Under law, the company stood un-represented as the plaintiff did not take care to implead the proper person who is legally represented. Therefore, it is prayed to dismiss the suit with costs.

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5.After perusal of pleadings on both sides, the following issues were framed.

i)Whether registered lease deed said to be executed by President of

AEL Church dt.9-4-1997 is true, valid and binding on the plaintiff and defendants ?

ii)Whether registered lease deed is executed on 9-4-1997 and consequential lease agreement of 5th defendant by 1st defendant on 16-11-1998 is executed without any manner of right ?

iii)Whether plaintiff is entitled for declaration of registered lease deed dt.9-4-97 and consequential lease agreement dt.16-11-1998 is null and void ?

iv)Whether plaintiff is entitled to get directions against 5th defendant to remove the said structures said to be constructed illegally ?

v)Whether plaintiff is entitled for permanent injunction against 5th defendant as prayed for ?

vi)To what relief ?

6.In order to prove the case of the plaintiffs, the first plaintiff got examined herself as P.W.1 and third plaintiff got examined himself as P.W.2 and got marked Ex.A1 to A16.

On behalf of the defendants, Finance Manager of Ramesh Hospitals,

Guntur got examined himself as D.W.1 and got marked Ex.B1 to Ex.B5.

7.No arguments on plaintiffs side.

8.The learned counsel for the defendants 1 and 2 submitted that A.E.L.

church is administered by the Apex body called executive counsel. As per the constitution, the Treasurer along with the President or Vice President are authorized to execute and register necessary deeds as directed by the executive counsel. The plaint schedule property is called Heyer hall compound, the said hostel became dilapidated and useless, at that stage, 5th defendant came forward to construct a new hostel building at its own costs, both parties agreed and entered lease deed dt.16-11-1998 in 12 pursuance of sanction given by the executive counsel in its LCM 344, accordingly, the 5th defendant constructed a big building for housing the students, it was inaugurated by the foreign missionaries and all the church authorities, Ex.B5 photographs showed the same, it shows and establishes that the lease deed in favour of the 5th defendant is true, valid and genuine and that there is no truth in plaintiffs case. One G. Isaac Dayardhana Rao on behalf of Christian welfare association filed O.S.190/2000 on the file of III

Addl. Senior Civil Judge, Guntur for the same relief wording it differently.

The suit was dismissed after full fledged trial. Against it, he preferred an appeal A.S.No.323/2010 on the file of IV Addl. District Court, Guntur, the same was also dismissed. The two Judgments are filed and marked as

Ex.B1 and B2, which are filed on behalf of the Lutheran Christians. The two

Judgments filed here proved the defendants case. The above Judgments operate as right in rem and binds all. Having failed in his attempt G.

Dayardhana Rao got filed the present suit through the plaintiffs who are his henchmen regarding the self same property and for the same relief i.e., to declare lease deed dt.16-11-1998 as null and void. The only ground urged by the plaintiffs in both the matters is that Rev. Kaki Nathaniel was the president and he got LCM 344 passed without reference to the subject lease at all. The real fact is Kaki Nathaniel was defeated in the election and Rev.

Victor Paul was elected as President, said fact was admitted by both P.Ws.1 and 2. After the election K. Nathaniel filed a suit to set aside the election of

Victor Paul as President. An exparte decree was passed and that was passed by the same Court. Rev. Victor Paul and vice president Rev. Dr. G.

Immanuel acting as president filed regular appeal in the Hon’ble High Court.

The Hon’ble Justice Rama Krishnam Raju not only granted stay but gave an elaborate order holding that K. Nathaniel was never acted as president on the relevant dates but only Victor Paul was the president and G. Immanuel is the vice president acted as such. Against the said orders, Nathaniel 13 preferred LPA, which was allowed wrongly. As against the said Judgment of the division Bench G. immanuel filed appeal before the Hon’ble Supreme

Court, which reversed the Judgment of the Division Bench and restored the

Judgment of Justice Rama Krishnam Raju. In the said Judgment, the Hon’ble

Supreme Court not only stated the facts but abstracted the findings of

Justice Rama Krishnam Raju who held that Nathaniel did not act as

President but G. Emmanuel is alone acting as President in the absence of

Victor Paul. The real LCM 344 was passed by the executive council presided by Immanuel is true and valid. The same is also further supported by the actions of successive executive councils of the A.E.L. Church ratifying the

LCM passed by Immanuel and also further granted lease of additional 1,000 sq. yards, the abstract of the LCM and the subsequent acceptance by the

Church executive council marked as Ex.B4 which proves the defendants case and falsify the plaintiffs case. So the entire evidence both oral and documentary clearly established that the LCM 344 passed by K. Nathaniel is false and the plaintiffs tried to take advantage of an affidavit filed by G.

Immanuel. The same was scoffed at by both III Addl. Senior Civil Judge in

O.S.No.190/2000 and IV Addl. District Court in AS 323/2010. Those two

Judgments totally and finally cut the root of the plaintiffs case and question of facts. Now what is to be considered by this Hon’ble Court is what is the right of the plaintiffs to file this suit for declaration that the lease deed dt.16-11-1998 is null and void and for mandatory injunction demolishing a 14 storied building. The plaintiffs herein do not know what is the court fee they have paid and the purport of the documents filed. The witness further says that somebody gave that documents which establishes the hidden hand of Dayardhan Rao. The plaint discloses no cause of action at all. The suit has to be dismissed on the following legal aspects. Under Sec.18 of AP

Societies Registration Act 2001, the societies have given unfeterred right to transfer the property. Firstly the plaintiffs suit is hopelessly barred by 14 limitation. The impugned lease deed is dt.16-11-1998. The suit is filed in 2013 that is 15 years afterwards. Article 58 of the Limitation Act says that any declaration has to be sought within 3 years from the date when the cause of action first arises. The cause of action first arose in this mater on 16-11-1998 when the lease deed was executed. Under section 3 of Transfer of Property Act, registration is public notice. Hence, the suit is liable to be dismissed on this ground also. Secondly, for any declaration regarding immovable property, the right shall be claimed only under the provisions of section 31 and 34 of Specific Relief Act. This suit is clearly attracted by section 31 where a party seeks declaration that a deed is null and void and shall not bind him and if left without setting aside it will cause him serious injury. For this the ld councel relied on the following decisions.

i. Yanala Malleswari and others Vs. Ananthula Sayamma and

others (2006 (6) ALD 523(FB) at Para 26 and 27)

ii. KLV Prasada Rao and others Vs. K Venkateswara Goud and

others (2008 (2) ALT 455)

Section 34 also the same effect but the plaintiff should also ask for consequential relief i.e., where the plaintiff is out of possession the relief of possession is consequential relief. In the following two decisions, the

Hon’ble Supreme Court categorically held that where the plaintiffs admit

that they are out of possession not seeking relief of possession but seeking mere declaration is totally bad in law and this ground alone is held to be sufficient to non suit the plaintiffs.

i. Union of India Vs. Ibrahim Uddin and another (2012 SAR 684)

ii. Executive Officer, Arulmigu Chokkanatha Swamy Koil Trust

Virudhunagar Vs. Chandran and Others (2017 ALD 37 SC)

Nextly, both P.W.1 and P.W.2 in one voice said in their cross examination that they have no personal interest at all nor they are deriving 15 any benefit from the property. They also further deposed that they filed suit on behalf of the Andhra Lutheran Christians.

If any suit is filed for the benefit of others, it has to be filed under order I rule 8 and after obtaining leave of the Court, it is not done so in this case the result is the suit has to be dismissed as held by the Hon’ble Justice

L. Narasimha Reddy in a decision reported in (2011(1) ALT 447) Shaik

Shamunnisa Vs Narravula Obulamma and Others.

There is yet another salutary principle which clearly says by all Courts including the Apex Court that the plaintiff should stand or fall on his case only but not on the weakness of the defendant’s case. It is respectfully submitted that the plaintiffs totally failed to prove its case and that there is no weakness in the defendant’s case. The ld councel for this relied on (2015(4)ALD 117 (SC) Para 10) State of Madhya Pradesh Vs. Nomi

Singh and another.

Thus it is to be seen that the plaintiffs have no case at all either on question fact or question of law on the other hand the defendant has clearly established the validity and legality of the lease deed dt.16-11-1998.

Before parting the above arguments, it is submitted that the suit is

handiwork of G. Dayardana Rao and his followers who are clearly extortionists. They file suits whether a big matter involved and ignore the other matters wherever any possibility of getting amounts, having failed miserably in his first attempt the Dayardhna Rao got this suit filed for the same relief which was nagatived in previous suits and appeal. There are no merits in the plaintiff’s case. Granting declaration or injunction are equitable reliefs for which the plaintiffs are not entitled as they came to court with false case and unclean hands. They are not entitled to equitable reliefs. It is big case where the Hon’ble Court is prayed to dismiss the suit with compensatory costs.

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Issues 1 to 3:-

These issues are interlinked and inter connected, therefore, these issues to be answered under one head.

9.Perused the evidence on both sides and also the decisions relied on by the learned counsel for defendants 1 and 2. In so far as execution of lease deed dt.9-4-1997 i.e., Ex.A11 and lease agreement dt.16-11-1998 are concerned, it is the main case of the plaintiffs that those are not valid as the said deeds were executed by Ref. G. Immanuel in the capacity of vice president and president, but in-fact Dr. K. Nathaniel is the President of A.E.L.

church. Perused the oral evidence of P.W.1 and P.W.2 coupled with Ex.A1 to

Ex.A16 and the documents marked on behalf of the defendants through

D.W.1 as Ex.B1 to B5 thoroughly. It is an admitted fact that initially K.

Nathaniel filed suit in O.S. 529/93 against A.E.L. church and others before I

Addl. Subordinate Judge, Vijayawada to declare that declaration of election committee dt.27-5-1993 declaring the 3rd defendant therein i.e., Dr. M.

Victor Paul for the post of the President is null and void. The said suit was decreed exparte. Finally, A.E.L. church filed SLP before the Hon’ble Apex

Court to set aside the order passed by the division bench of Hon’ble High

Court of A.P. with regard to the petition filed by A.E.L. church under order 9 rule 13 in O.S.No.529/93. The said order was marked as Ex.B3. The learned counsel for the defendants vehemently contended that the Hon’ble Apex

Court while passing the order abstracted the findings of Justice Rama

Krishnama Raju in Ex.B3 who held that Nathaniel did not act as President, but G. Immanuel is alone acting as President in the absence of Victor Paul.

In this case, the burden heavily lies upon the plaintiffs to prove that the above said deeds are not valid.

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10.The plaintiffs are not disputing Ex.B3. Moreover P.W.1 in his evidence clearly admitted that as per the order of the Hon’ble Supreme Court, the order in Letter Patent Appeal was set aside confirming the order of the single bench. But, the plaintiffs without filing the order of the Hon’ble Apex

Court and order of Hon’ble single Bench only by filing exparte decree passed in O.S.No.529/93 are pleading that the above referred lease deed and lease agreement are not valid. Even after producing Ex.B3 order of

Hon’ble Apex Court, the plaintiffs did not choose to produce the order of

Hon’ble Single Judge of High Court of Andhra Pradesh. By non producing

all relevant documents in the above aspect and by admitting the order under Ex.B3, the plaintiffs are not disputing election of Dr. M. Victor Paul as

President of A.E.L. Church in the year 1993. Further the admission of P.W.2 in his cross examination clearly proved that G. Immanuel was President of

A.E.L. church who gave schedule property on lease to the 5th defendant. so, there is no cogent and positive evidence on behalf of the plaintiffs to declare that G. Immanuel was not president of A.E.L. Church at relevant when the schedule property was given on lease to the 5th defendant.

Therefore, it is held that the registered lease deed dt.9-4-1997 is true, valid and binding on the plaintiffs and defendants. Further, it is also held that the 1st defendant has every right to execute the lease agreement dt.16-11-1998 in favour of the 5th defendant. Therefore, the plaintiffs are not entitled for declaration that the lease deed dt.9-4-1997 and consequential lease agreement dt.16-11-1998 as null and void.

Issues 4 and 5:- Both are interlinked and inter connected, therefore, both issues to be answered under one head.

11.It is not in dispute that the 1st defendant was registered under AP

Societies Registration Act and it is having its own constitution and also having right to let out the land and buildings to 3rd parties. Admittedly, the 18 plaintiffs are not members of 1st defendant church. P.W.1 got marked

Ex.A14, a certificate issued on behalf of St. Marks Lutheran Church, Chirala.

There is no evidence to say in what way the said church is concerned with the 1st defendant church and its properties. It is the evidence of P.W.1 and

P.W.2 and also the case of the plaintiffs as per plaint that they are filing the suit in the interest of A.E.L. church. But, admittedly, they are not members of A.E.L. church. When the plaintiffs filed suit on behalf of St. Marks

Lutheran Church, Chirala they have to obtain the consent of other members of the said church under order 1 rule 8 CPC. Thus, the plaintiffs did not follow the procedure in filing this suit. The learned counsel for the defendants also relied on a decision in Shaik Shamunnisa Vs Narravula

Obulamma and Others (2011) 1 ALT 447 wherein it was observed that once the plaintiff stated that the suit is filed for the benefit of entire community, she alone cannot champion the cause and make the respondents to defend themselves. This factual situation squarely applies to the present suit and it is held that the plaintiffs did not follow due procedure while filing the suit on behalf of an association.

12.Further, the plaintiffs filed suit for declaration without seeking consequential relief. Admittedly, the plaintiffs are out of possession, but they are not seeking consequential relief. It was not submitted by the plaintiffs either in pleadings or in evidence what is the damage caused to them by virtue of execution of the lease deed and lease agreement by the 1st defendant in favour of the 5th defendant. The plaintiffs who are seeking declaration must have some interest and that too some serious injury must be caused to them under section 31 of Specific Relief Act. The learned counsel for this also relied upon a decision in Yanala Malleswari and

others Vs. Ananthula Sayamma and others (2006)6 ALT 523 (FB)

wherein it was held that two conditions must exist before one invokes Sec.

19 31 of specific relief act, these are the written instrument is void or voidable against such person and such person must have reasonable apprehension that such instrument if left outstanding may cause him serious injury and also held that a suit for cancellation of an instrument will be maintainable only by the person who executed the document. Accordingly, a suit for cancellation of instrument by a person who did not execute the document would not lie. In the present case, the plaintiffs are not parties to both lease deeds , so as per sec. 31 of specific relief Act, the plaintiffs have no locus- standi to question the validity of suit documents.

13. The learned counsel further relied upon another decision in KLV

Prasada Rao and others Vs. K Venkateswara Goud and others

(2008) 2 ALT 455 wherein it was held that under section 31 of specific relief act, 1963, a suit for declaration of a written instrument as void can be filed only by a person against whom the instrument is void or voidable. The learned counsel further submitted that as per section 34 of specif relief act the plaintiff should also seek for consequential relief, but the plaintiffs filed suit for declaration only, hence, the suit is not maintainable and liable to be dismissed. The learned counsel also relied upon a decision in Union of

India Vs. Ibrahim Uddin and another (2012) SAR (Civil) 684

Supreme Court, wherein it was observed that it is not permissible to claim the relief of declaration without seeking consequential relief, in a suit for declaration of title of ownership, though the plaintiff was not in possession and he did not ask for restoration of possession, the suit was barred by the provision of Sec. 34 and ought to have been dismissed solely on this ground. The learned counsel also relied upon another decision in

Executive Officer, Arulmigu Chokkanatha Swamy Koil Trust

Virudhunagar Vs. Chandran and Others (2017) Law suit (SC) 111

wherein it was observed that plaintiff being out of possession, the relief of 20 recovery of possession was a further relief which ought to have been claimed by the plaintiff. The suit filed by the plaintiff for a mere declaration without relief of recovery of possession was clearly not maintainable. So, from the above decisions it is clear that the suit is not maintainable under section 34 of specific relief act.

14. In so far as limitation is concerned, a suit for declaration has to be filed within three years as per section 58 of limitation act as rightly submitted by the learned counsel for the defendants. In this case, lease deed was executed on 9-4-1997 and lease agreement was executed on 16- 11-1998 whereas the suit was filed in the year 2013 which is after 15 years.

Therefore, the suit is clearly barred by limitation.

15.The evidence of P.W.1 and 2 and D.W.1 clearly proved that 5th defendant sub-leased the schedule property to Ramesh Hospitals and they are in possession of the schedule property at present. From the above discussion, it was also proved that the plaintiffs have no locus-standi to file the suit, the suit is also barred by limitation and the suit is hit by Sec.31 and 34 of Specific Relief Act hence,the suit is liable to be dismissed. Therefore, the plaintiffs are not entitled for permanent injunction and mandatory injunction. Accordingly, I answered Issues 4 and 5 against the plaintiff.

Issue No.6:

16.In the result, suit is dismissed. No costs.

Typed to my dictation by Stenographer, corrected and pronounced by me in the open Court, this the day of 23rd day of July, 2021.

IV Addl. Senior Civil Judge, Guntur.

21

APPENDIX OF EVIDENCE

WITNESSES EXAMINED

For Plaintiffs :

P.W.1 : Sudarshanam Deva Karuna Kumari P.W.2 : Gera Suvarna Raju

For Defendants : D.W.1 : Akkineni Venkatramaiah.

DOCUMENTS MARKED

For Plaintiffs : Ex.A1 - C.C. of Decree in O.S.No.529/1993, Ex.A2 - C.C. of the Judgment In O.S.No.529/1993, Ex.A3 - C.C. of Order in LPA No.99/1996, Ex.A4 - C.C. of Order in the contempt case No.1420/1996 dt.26-02-1997, Ex.A5 – C.C. of Plaint in O.S.No.324/1996. Munsif District, Saroor Nagar, Hyderabad, Ex.A6 – C.C. of Advocate Commissioner Report in I.A.No.789/1996 in

O.S.324/1996,

Ex.A7 - C.C. of LCM No.345/1996 in O.S.324/1996, Ex.A8 - Original letter sent by the third plaintiff to the 1st defendant Church, dt.19-02-2000, Ex.A9 - O/c letter sent Asst. PIO, Guntur Municipal corporation dt.30-1-2013 along with postal receipt and also Postal Order Rs.10/-, Ex.A10 - O/c letter sent Asst. PIO, Guntur Municipal corporation dt.06-06- 2013 along with postal receipt Rs.100/-, Ex.A11 – C.C. of the Registered lease deed. dt.09-04-1997. Bearing No. 3702/1997, Ex.A12 - O/c of the letter of the third plaintiff to the 2nd defendant dt.14-04-2013, Ex.A13 - Positive Photographs along with C.D. which are 6 in number, Ex.A14 - Certificate of Rev. Cheeekati Yohan Pastor, Dt 02-08-2013, Ex.A15 – Membership certificate issued by the Parish Pastor, Ex.A16 – Certified copy of the document No.706/1958, dt.13-3-1958 registered in Sub-Registrar Officer, Guntur.

For Defendants: Ex.B1 – C.C. of Judgment in OS.190/2000 on the file of III ASCJ, Guntur, Ex.B2 - C.C. of Judgment in AS.323/2010 on the file of IV ADJ, Guntur, Ex.B3 – C.C. of Judgment in Civil Appeal No.1987/1997 on the file of Supreme court, Ex.B4 - Notarized singed copy of the LCM passed by the Church, Ex.B5 – Photographs (3) along with C.D.

IV A.S.C.J.,

1

IN THE COURT OF II ADDL. ASSISTANT SESSIONS JUDGE: FTC.,

GUNTUR.

Present: Smt M. SOBHA RANI, B.Sc., L.L.M., II Addl. Asst. Sessions Judge, FTC, GUNTUR .

Friday, this the 27th day of July, 2018

SESSIONS CASE No.522 /2014

(P.R.C.No.18/2013 on the file of V Addl. Junior Civil Judge’s Court, Guntur connected with Cr.No.237/2012 of Arundelpet P.S) 1Name of the STATE: Station House officer, complainantArundlepet, Police station 2Name of the accused1. Bonthapuri Thomas @ Thompson

2. Bonthapuri Yestheramma (abated)

3. Bonthapuri Mojes

4. Darla Glory 3Nature of offenceCharge U/Secs.498-A r/w 34 IPC, 436 and 506 IPC 4Plea of the accusedPleaded not guilty 5Finding of the judgeFound not guilty for the offence U/S.498-A r/w 34 IPC, 436 and 506 IPC 6Sentence or orderIN THE RESULT, the A1 and A4 are found not guilty for the offence U/s 498-A r/w 34 IPC, 436 and 506 IPC, hence they are acquitted U/s 248(1) Cr.P.C for the above said offences. Mos 1 to 5 shall be destroyed after expiry of appeal time. The bail bonds of the accused shall stand cancelled after expiry of appeal time.

This case is coming on 25-07-2018 before me for trial in the presence of the learned Additional Public Prosecutor for the State/Complainant and Sri S.Bramhananda Reddy, Counsel for the Accused No1 and Smt. M. Charulatha, Advocate for Accused No.4, Accused no.2 died, Accused No.3 separated and numbered as PRC No.26/2014 and having stood over for consideration till this day, this court delivered the following: -

J U D G M E N T

The Station House Officer, Arundelpet P.S filed Charge Sheet against the accused in Cr.No.237/2012 for the offences punishable

Under Section. 498-A r/w 34 IPC, 436 and 506 of Indian Penal Code, 2 1860 (Hereinafter referred to as “IPC”), before the court of V

Addl.Junior Civil Judge, Guntur.

2.The facts of the prosecution case as narrated in the charge sheet in brief are as follows :

The marriage of PW1 was performed with Bonthapuri Immaniel who is the 2nd son of A2 on 03-09-2002 at Shalemu Cathedral Chruch,

Hyderabad in the presence of elders as per Christian customs and traditions. PW5, Lw9 and 10 (K.Peddiraju, M.Jaya Kumar) who are pastors performed the said marriage. Even prior to their marriage husband of A2 died. During the life time of husband of A2, he constructed a church and also constructed three rooms in the upstairs in D.No.7-2-136 in 5th lane, Kakumanuvarithota, Guntur. After marriage PW1 and her husband started staying in the middle room.

They were begotten three children. A2 is staying in one of the rooms in ground floor of the church. A1 to A4 are trying to evict PW1 and her husband and children from the church premises and subjected PW1 to severe mental and physical torture. Subsequently, husband of PW1 died. Inspite of the torture of A1 to A4, PW1 entrusted her gold neckless, gold chain, gold bangles and gold rings to A2. PW1 has been maintaining her children by working as a teacher in private school.

While so, on 05-05-2012, PW1 went to her parents house along with her children to spend summer vacation. At that time, A2 threatened PW1 to vacate the house immediately. On 07-06-2012 in the morning she came back to her house along with the children. In the evening, around 4.30 pm, while she was washing the clothes at bathroom imagined that somebody came to her portion and she thought that children are moving, but after some time when she came 3 out from the bath room she found flames and the flames did not allow her to go inside. All the house hold articles and her documents etc., gutted to ashes. Then she immediately came down and found that except A2 no other persons are present at the church. Then she understood that while she was washing the clothes at the bathroom,

A2 came to her room and set fire out of the grouse that she is not vacating the house. Noticing the flames, Pws 3,4 and LW7 V. Srikanth came along with neighbours and tried to put off the flames. Fire brigade also came and extinguished the flames. After the incident, A1 and A2 came and demanded PW1 to vacate the house within 48 hours else they would burn her like her room.

On 09-06-2012 at 9.00 pm PW1 went to police station and gave report. Basing on the report of PW1, a case in Cr.No. 237/2012 U/s 498-A and 506 IPC was registered and investigated into. Since the case was registered U/s 498-A IPC as per the standing instructions, a copy of FIR was sent to SHO, Women PS for investigation. On 10-06- 2012 at 10.00 am, PW9- Inspector of police, women PS received the copy of FIR and took up investigation. He examined PW1 and LW2 M.

Revathi and recorded their statements. He inspected the scene of offence in the presence of mediators i.e., LW10 M- Jayakumar and PW6 and seized iron tea cattle, tea cup, half burnt jeans pant, burnt window plank, and half burnt note book from the scene of offence under cover of Mahazar. As per the statements of PW1 and LW2, he added Sec.

436 IPC also. Subsequently as per the orders of DSP, CCS, Guntur

Urban he transferred the CD file to Arundelpet P.S for further investigation. PW10 received the CD file on 02-07-2012 and took up further investigation on 03-07-2012 and secured the presence of PW1 and LW2 and recorded their statements. He secured the marriage photographs of PW1, marriage certificate, copy of death certificate of 4

PW1’s husband and copy of family members certificate for the purpose of investigation. He also inspected the scene and prepared rough sketch he examined Pws 2 to 5, LW8 M. Ananada Rao and LW10 M.

Jaya Kumar and recorded their statements. A1 to A4 got anticipatory bail. A1, A2 and A4 surrendered before PW10 and furnished sureties.

A3 did not turn up and produce sureties. Accordingly A1 to A4 are liable for punishment for the offence U/s 498-A, 506 and 436 of IPC.

Hence the charge.

3.The V Addl. Junior Civil Judge, Guntur took cognizance for the offence punishable U/Sec.498-A, 436 and 506 of Indian Penal Code against A1 to A4 Vide PRC.18/2013. The case against A2 is abated as died. The case against A3 was seperated as absconded. On appearance of A1 and A4, copies of documents were furnished to them as required U/Sec. 207 Code of Criminal Procedure, 1973 (Hereinafter referred to as “Cr.P.C”), the learned Magistrate committed the case to the court of Sessions, Sessions Division, Guntur District, holding that the offence punishable U/Sec. 498-A, 436 and 506 of Indian Penal

Code, is exclusively triable by the court of sessions. This case was taken on file by the Sessions Judge Vide Sessions Case.522/2014 and made over the same to this court for disposal in accordance with law.

4.After appearance of A1 and A4 and on hearing the learned

Additional public prosecutor and learned counsel for the accused, this

court framed the charge for the offence punishable U/Sec. 498-A, 436 and 506 of Indian Penal Code against the accused, read over and explained to them in Telugu, having understood, the accused pleaded not guilty and claimed to be tried.

5. During the course of trial, to substantiate its case, the prosecution examined LW.1- Bonthapuri Vijaya Mary Grace as PW.1,

LW.4-Gummadala Subbayamma as PW.2, LW.5- G. Jothi Mohan as 5

PW.3, LW.6-Vellampalli Praveen Kumar as PW.4, LW.8- Meruga

Anandarao as PW.5, LW.11- Meruga Jyosan as PW6, LW.13-

V.Lingamurthy HC as PW.7 and LW.9- Kusimi Peddiraju as PW.8, Ch.

Seetharamaiah, Inspector of police, Women P.S Guntur Urban as PW9,

LW15 Sri B. Sitharamaiah, Inspector of police, Arundelpet, P.S Guntur

Urban as PW10 and got marked Exs.P1 to P5. The learned Addl.P.P gave up the evidence of other prosecution witnesses.

6.After closing the evidence on prosecution side, A1 and A4 were examined U/sec. 313 Cr.P.C, by explaining the incriminating evidence available against them. They denied the same and reported no defence evidence on his behalf.

7.Heard the Addl.Public prosecutor and the learned counsel for the accused.

8.Now the point for determination is --

Whether the prosecution proved its case beyond all

reasonable doubt that the accused committed the

offence punishable U/Sec.498-A, 436 and 506 of Indian

Penal Code, as alleged by the prosecution ?

Point: -

9. It was submitted by the learned Addl. Public prosecutor that the evidence of PW1 and other prosecution witnesses proved that A1 and

A4 subjected PW1 to cruelty and they set fire to the house of PW1 and they further threatened PW1 to vacate the house, except A1 and A4 there is no necessity to others to set fire to the portion of PW.1, accordingly, the prosecution is able to prove its case beyond all reasonable doubt, therefore A1 and A4 are liable to be convicted for the above charges.

10. In reply, it was contended by the learned counsel for the accused that there is no case made out against the accused for the offence u/s 498-A, and 506 IPC, report was given belatedly after two 6 days, there is delay in sending the FIR to the court also, in Ex.P1 report also it was mentioned that fire accident took place in the portion of

PW.1, thus,the contents of Ex.P1 report do not attract Sec. 436 IPC.

There are two parts U/s 498-A IPC, as per the complainant the accused allegedly demanded her to vacate the house, but it does not come under any part of Sec. 498-A IPC. There is no demand for any property or valuable security. It is the contention of the prosecution that right from the marriage the accused are demanding PW1 and her husband to vacate the house. PW1 waited for 6 years after the death of her husband and foisted this case. The house wherein PW1 is residing belongs to A2. Hence the question of setting fire by A2 does not arise.

No ingredients of Sec.498-A are attracted, hence there is no case U/s 498-A IPC. PW1’s evidence is developed version, hence it cannot be considered, no witness deposed anything against the accused. Thus, there is no corroboration to the evidence of PW1 in respect of any allegation. Accordingly, the prosecution is unable to prove its case, hence A1 and A4 are liable to be acquitted.

11. In order to establish the guilt of the accused for the offence

U/s 498-A r/w 34 IPC, 436 and 506 IPC, the prosecution has to prove that A1 and A4 subjected PW1 to cruelty within the meaning of explanation to Sec. 498-A IPC and A1 along with A2 set fire to the portion of PW1 and A1 threatened PW1 that if she failed to vacate the house they would burn PW1 also like the room of PW1. To prove the same, the prosecution got examined as many as 10 witnesses out of 15 witnesses cited in the charge sheet. PW2 is friend of PW1. Pws 3 and 4 are neighbours at scene of offence. PW5, 6 and 8 are relatives of PW1, PW7, 9 and 10 are investigating officers.

12.Before going through the evidence of Prosecution witnesses, let us see the contents of Ex.P1 Report. In Ex.P1 report, it 7 was mentioned by PW1 that after the death of PW1, A1 to A4 demanded and threatening her to vacate the house, while so, on 05- 05-2012, PW1 while going to her parent’s house went to A2 who is her mother-in-law and informed that she is going to her parents house for which A2 stated that PW1 has to vacate the house after coming back else she knows well as to how to get vacated PW1. Accordingly, A2 threatened PW1. PW1 then went to her parents house and came back on 07-06-2012 in the morning. On 07-06-2012 fire accident took place in her portion. At that time she was washing clothes in bathroom. All household articles were burnt in fire. Immediately after the incident,

A1 and A2 threatened that PW1 has to vacate the house within 48 hours else they would burnt her as like her house.

13.Now coming to the evidence of PW1, PW1 deposed that one year after their marriage, A2 used to harass her asking to put up separate family, A1 used to instigate A2 to vacate the house alleging that he wants to run a college in their house, after the death of her husband, A1 to A4 harassed her by demanding to vacate the house, on 05-05-2012 she went to her parents house, at that time A2 threatened her stating that she knows as to how to vacate PW1 from the house, she came back on 07-06-2012 along with her mother and children, on the same day around 4.00 pm, she was washing the clothes, she found smoking towards left side of her house, on seeing it she rushed to there and found flames in her portion, she tried to put off the flames with water, neighbours tried to put off the flames but in vain, fire engine came and put off the flames, after some time A1, A2 and A4 came there and stated that the same will be happened in future if she did not vacate the house, later they used to trouble PW1 by switching off motor etc., she bore the harassment of A1,A2 and A4 and stayed in the same house, after three days she went to Arundelpet P.S and gave 8 report, after giving the report A4 threatened her that she would implicate PW1 in a false case, A4 is the main person for causing troubles against PW1, A1 also abated and instigated A4 to threaten

PW1, A2 died in the year 2014, since then she has been residing in the same house.

14.In so far as the offence U/s 498- A IPC is concerned, let us see whether the case of the prosecution falls under any of the two limbs of sec.498-A IPC which are extracted as under:

Sec. 498- A IPC: Husband or relative of husband of a woman subjecting her to cruelty:-

Whoever, being the husband or the relative of the husband of a woman, subjects such woman, to cruelty shall be punished with imprisonment for a term which may extend to three years and shall also be liable to fine.

(a) any willful conduct which is of such a nature as is likely to drive the woman to commit suicide or to cause grave injury or danger to life, limb or health (whether mental or physical) of the woman; or

(b) harassment of the woman, where such harassment is with view to coercing her or any person related to her to meet any unlawful demand for any property or valuable security or is on account of failure by her or any person related to her to meet such demand.

15. The relationship of PW1 with the accused is not in dispute. It is also not in dispute that the father-in-law of PW1 got constructed a church and also constructed three rooms in the upstairs and PW1 is residing in the middle room along with her children. Admittedly, there is no physical injury caused to PW1 by the accused and also there is no demand from them to bring her any amount. As per the prosecution case, A1 to A4 used to threaten PW1 to vacate the house and it caused mental torture to PW1. Now let us see whether a demand to vacate 9 the house attracts the 1st limb of Sec. 498- A IPC. Admittedly, there is no eye witness to the alleged demand of accused. A2 mother-in-law of

PW1 died while pending the case and the case against A2 is abated.

The case against A3 was separated due to pending NBW. Now let us see whether the prosecution is able to prove that A2 and A4 threatened PW1 to vacate the house. As per the prosecution case, A1 used to instigate A2 to demand PW1 to vacate the house. Admittedly,

PW1 is residing in the same house after the death of her husband and after the alleged incident on 05-06-2012. As per the cross examination of PW1, A1 used to pay some amount in every month to

PW1 towards maintenance. PW1 pleaded that it was towards using the site of her husband. But admittedly on the vouchers shown to PW1 it was mentioned that the amount was paid towards family maintenance. However, it is an admitted fact that A1 and A4 are residing some where and A2 is only residing in the ground floor of church. Except the evidence of PW1 there is no direct evidence to prove that at the instance of A1, A2 demanded PW1 to vacate the house, A1 and A4 also threatened PW1 to vacate the house. However, in view of the above facts and circumstances mere threatening to vacate the house does not fall under first limb of sec. 498-A IPC. If at all there is any threatening from the accused, the plaintiff can get protection by approaching the civil court. It is not the case of the prosecution that the accused demanded amount from PW1. Thus no case under 2nd limb of Sec. 498-A IPC also made out. Accordingly, the prosecution failed to establish the offence U/s 498-A r/w 34 IPC against

A1 and A4. Hence the accused are liable to be acquitted for the offence U/s 498- A IPC r/w 34 IPC.

16. In so far as the offence U/s 436 and 506 IPC is concerned, it is the case of the prosecution that A1 along with A2 set fire to the portion 10 of PW1 and threatened PW1 that if she failed to vacate the house they would burnt her also. Admittedly, either PW1 or Pws 2 to 6 and 8 are not eye witnesses when A1 and A2 allegedly set fire. PW1 also deposed that while she was washing the clothes she found flames and run to the portion and tried to put off the flames, fire engine also came and put off the flames. PW2 came to know about the above incident. Pws 3 and 4 are neighbours and they also came to put off the flames, PW5, 6 and 8 visited the house of PW1 subsequent to the incident. PW1 did not state specifically as to whether A1 or A2 was present at the scene of offence immediately after the incident, except stating in her evidence and in the report that A1 and A4 came there subsequently and threatened that they would burnt her also if she did not vacate the house. PW1 also did not state specifically whether the alleged threatening was on the date of incident or not. More so, no witness stated specifically about the presence of A1 or A2 at the scene of offence or in the ground floor at the time of fire accident. Moreover,

PW1 did not choose to give report immediately and she gave report after two days. Therefore, there is every possibility to implicate the accused and to develop her version. Hence the delay in giving the report is said to be fatal to the prosecution case. Admittedly, A2 is aged more than 75 years. Therefore, there is no possibility to go to the upstairs quickly and to reach the ground floor from the 1st floor in the same speed. Therefore, it can be said that if at all A2 came to the 1st floor to set fire, there is every possibility to Pws 3 and 4 to witness

A2 also when they rushed to the scene to put off the flames.

Therefore, without hesitation it can be said that the prosecution failed to prove the role of A2 in setting fire allegedly to the portion of PW1.

17. With regard to the involvement of A1, PW1 did not state specifically that A1 was present with A2 at the time of fire accident, 11

Pws 2 and 3 also did not speak about the presence of A1 either in the 1st floor or ground floor. Accordingly, the prosecution failed to prove the role of A1 also in setting fire allegedly to the portion of PW1. In so far as the involvement of A4 in threatening PW1 along with A1 and A2 is concerned, her presence was also not spoken by any of the witnesses. It is not in dispute that fire accident took place in the house of PW1, all her household articles were burnt in that fire accident. All prosecution witnesses categorically spoke about the fire accident, but Pws 2 to 6 and 8 are not direct eye witnesses to the alleged threatening of accused. Therefore, the evidence of above witnesses is of no avail to the case of the prosecution. Accordingly, the evidence of prosecution witnesses does not establish the guilt of accused for the offence U/s 436 and 506 IPC beyond reasonable doubt.

18. In the result, the A1 and A4 are found not guilty for the offence U/s 498-A r/w 34 IPC, 436 and 506 IPC, hence they are acquitted U/s 248(1) Cr.p.C for the above said offences. Mos 1 to 5 shall be destroyed after expiry of appeal time. The bail bonds of the accused shall stand cancelled after expiry of appeal time.

Typed to my dictation, corrected and pronounced by me in the open Court on this the 27th day of July, 2018.

Sd/- M. Sobha Rani,

II ADDL. ASSISTANT SESSIONS JUDGE,

FTC., GUNTUR

APPENDIX OF EVIDENCE

Witnesses examined////

For Prosecution:

PW.1 : B.Vijaya Mary Grace

PW.2 : Gummadala Subbayamma

PW.3 : G.Jothi Mohan

PW.4 : Vellampalli Praveen Kumar

PW.5 : M.Ananda Rao

PW.6 : M.Jyoson 12

PW.7 : V.Lingamurthy

PW.8 : Kusimi Peddiraju

PW.9 : Ch.Seetharamaiah

PW10 : B.Seetharamaiah

DOCUMENTS MARKED

For prosecution: Ex.P1 : report of PW.1.

Ex.P2 : scene observation mahazar

Ex.P3 : First Information Report.

Ex.P4 : rough sketch.

Ex.P5 : rough sketch

For defence: Nil

Material Objects:

MO1 : One tea kettle

MO2 : One tea cup

MO3 : Half burnt jean pant

MO4 : One wooden piece.

MO5 : One half burnt note book

Sd/- M. Sobha Rani,

II A.S.J.,FTC, GNT.

1

IN THE COURT OF THE II ADDL.ASSISTANT SESSIONS JUDGE ::

GUNTUR.

Present: Smt.M.Sohba Rani, II Addl. Assistant Sessions Judge, Guntur.

Friday, this the 27th day of July, 2018.

Sessions Case No.522/2014

Between:- STATE : Station House officer,

Arundelpet, Police station. ...Complainant

And

1. Bonthapuri Thomas @ Thompson

2. Bonthapuri Yestheramma (abated)

3. Bonthapuri Mojes (separated and numbered as PRC No.26/2014)

4. Darla Glory ...Accused.

(P.R.C.No.18/2013, committed by Smt. Sunkara Sridevi V Addl. Junior Civil Judge, Guntur, dated.14-09-2014)

Charges: U/secs.498-A, 506, 436, IPC Date of offence:07-06-2012 Date of receipt of committal record : 09.12.2014 Date of appearance of Accused:02-01-2015 Date of commencement of trial:10-01-2018 Date of closing of trial: 04-07-2018 Date of sentence or order:27-07.2017 Plea of Accused:Pleaded not guilty. Finding of the court: Found not guilty for the offence 498-A, 506, 436, IPC they are acquitted for the said charges.

Sentence or Order: In the result, the A1 and A4 are found not guilty for the offence U/s 498-A r/w 34 IPC, 436 and 506 IPC, hence they are acquitted U/s 248(1) Cr.p.C for the above said offences. Mos 1 to 5 shall be destroyed after expiry of appeal time. The bail bonds of the accused shall stand cancelled after expiry of appeal time.

Explanation for delay : The Sessions case record received from the

Hon'ble Sessions Court, Guntur on 09.12.2014. On 02-01-2015,

Accused appeared before the Court. On 09-01-2017, Accused was examined U/Sc. 228 Cr.P.C and charge U/sec.498-A r/w 34 IPC, 436 and 506 IPC, has been framed against them. To substantiate its case, the prosecution examined P.Ws.1 to 10 and got marked Exs.P1 to P5. On 05-07-2018, the Accused was examined U/sec.313 of Cr.P.C for the incriminating evidence appeared against them, for which, they denied and reported no defence evidence. Hence, the defence side evidence 2 closed. Heard arguments on both sides. On 27-07-2018, Judgment is

pronounced. The office is directed to furnish a copy of the judgment to

the accused. Hence, there is no avoidable delay.

Sd/- M. Sobha Rani,

II ADDL. ASST.SESSIONS JUDGE,

Guntur

Copies submitted to :

1. The Hon’ble Registrar, (Judl.) High Court of A.P., Hyderabad through the District & Sessions Judge, Guntur. }

2. The Hon’ble District & Sessions Judge, Guntur. } by way of CD Copy to :

3. The Superintendent of Police, Guntur.

4. The Addl.Public Prosecutor, (Asst.Sessions Court, Bapatla).

5. The AJFCM., Bapatla

6. The Accused

1

IN THE COURT OF II ADDL. ASSISTANT SESSIONS JUDGE: FTC.,

GUNTUR. Present: Smt M. SOBHA RANI, B.Sc., L.L.M., II Addl. Asst. Sessions Judge, FTC, GUNTUR .

Monday, this the 23rd day of July, 2018

SESSIONS CASE No.208/2018

(P.R.C.No.35/2017 on the file of Judicial Magistrate of First Class, Special Mobile Court, Guntur connected with Cr.No.34/2017 of Nagarampalem P.S) 1Name of the STATE: Sub-, Inspector of police, complainantNagarampalem Police station 2Name of the accused1. Marriboina Anjaneyulu @ Kuragayala Anji, S/o Srinivasa Rao, 25 years, Mudiraju, 4th lane, Vikalangula Colony, Guntur.

2. Shaik Nagoor Vali @ Keechu Gadu, S/o Peer Saheb, 21 years, 10th lane, Sinivasaraopet, Guntur.

3. Darimadugu Ramesh babu, @ Chinni, S/o Koteswara Rao, 35 years, 6th lane, Srinivasaraopet, Atchaiah Daba Center, Guntur. 3Nature of offenceCharge U/Sec.25 and 27 of Arms Act 4Plea of the accusedPleaded not guilty 5Finding of the judgeFound not guilty for the offence U/S.25 and 27 of Arms Act 6Sentence or orderIN THE RESULT, the A1 to A3 are found not guilty for the offence U/s 25 and 27 of Arms Act , hence they are acquitted U/s 248(1) Cr.p.C for the above said offence. Mos 1 to 3 shall be destroyed after expiry of Appeal time. The bail bonds of the accused shall stand cancelled after expiry of appeal time.

This case is coming on 19-07-2018 before me for trial in the presence of the learned Additional Public Prosecutor for the State/Complainant and Sri M. Srikanth, Counsel for the Accused and having stood over for consideration till this day, this court delivered the following: -

J U D G M E N T

The Sub-Inspector of Police, Nagarampalem P.S filed

Charge Sheet against the accused in Cr.No.34/2017 for the offence punishable Under Section. 25 and 27 of Arms Act.

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2.The facts of the prosecution case as narrated in the charge sheet in brief are as follows :

A1 is resident of 4th lane, Vikalangula colony, Guntur. A2 is resident of 10th lane, Srinivasaraopet, Guntur and A3 is resident of 6th lane Srinivasa Rao pet, Guntur. A1 and A2 are having ‘A’ category rowdy sheet in Nagarampalem P.S while A3 is involved in

Cr.No.15/2008 U/s 302 r/w 34 IPC of Nagarampalem P.S and he was figured as A2. On 29-1-2017, before 5 pm., A1 to A3 gathered at

Chuttugunta center being armed with knives after preparing to extract money from the public by putting them under fear in order to fulfill their requirements. At 5.40 pm., PW2 SI of police, Nagarampalem P.S got information about the accused through one unknown person while

PW4 is performing visible policing along with LW1 A. Srinivasarao Head constable, PW1 and PW3 and found that the accused are armed with knives and they are creating panic. With the help of Pws 1,3 and LW1,

PW4 took the accused into custody and interrogated them one after one. The accused confessed that in order to extract money from the public for fulfilling their requirements, they have gathered at

Chuttugunta Center and tried to extract money from the public by putting them under fear of death being armed with deadly weapons ie., knives. After conforming that the accused are not having any license to carry such deadly weapons, PW2 arrested them for the offence U/s 25 and 27 of Arms Act 1959 and seized three knives from the possession of the accused. Since none came forward to act as mediators as the accused are rowdy sheeters, PW2 drafted police proceedings commenced at 5.00 pm and concluded at 6.00 pm.

On 29-01-2017 at 6.30 pm PW2 brought the accused to police station and registered the above police proceedings as a case in

Cr.no.34/2017 U/s 25 and 27 of Arms Act, 1959 and investigated into.

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During the course of investigation, PW2 visited the scene of offence, inspected the scene and prepared rough sketch of the same. PW2 examined PWs 1, 3 and LW1 and recorded their statements. On 30- 01-2017, PW2 sent the accused for judicial custody. After completion of investigation, PW2 filed charge sheet against the accused for the offence u/s 25 and 27 of Arms Act, 1959. Thus the accused are found in possession of knives which are prohibited and admitted to have gathered to extract money from the public rendered themselves liable for punishment for the offence U/s 25 and 27 of Arms Act, 1959.

Hence the charge.

3.The Judicial Magistrate of First Class, Special Mobile Court,

Guntur took cognizance for the offence punishable U/Sec.25 and 27 of

Arms Act against the accused Vide PRC.35/2017. On appearance of accused, copies of documents were furnished to them as required

U/Sec. 207 Code of Criminal Procedure, 1973 (Hereinafter referred to as “Cr.P.C”), the learned Magistrate committed the case to the court of

Sessions, Sessions Division, Guntur District, holding that the offence

punishable U/Sec. 25 and 27 of Arms Act, is exclusively triable by the court of sessions. This case was taken on file by the Sessions Judge

Vide Sessions Case.208/2018 and made over the same to this court for disposal in accordance with law.

4.After appearance of the accused and on hearing the learned Additional public prosecutor and learned counsel for the accused, this court framed the charge for the offence punishable

U/Sec. 25 and 27 of Arms Act against the accused, read over and explained to them in Telugu, having understood, the accused pleaded not guilty and claimed to be tried.

5. During the course of trial, to substantiate its case, the prosecution examined LW.3- Tondamalli Ramesh, PC as PW.1, LW.4- 4

B.Bhargav, Sub-Inspector of police as PW.2 and LW.2- Y. Manikya Rao,

P.C as PW.3. Exs.P1 to P3 and Mos 1 to 3 were marked on behalf of the prosecution. The learned Addl.P.P gave up the evidence of other prosecution witnesses.

6.After closing the evidence on prosecution side, accused was examined U/sec. 313 Cr.P.C, by explaining the incriminating evidence available against him. He denied the same and reported no defence evidence on his behalf.

7.Heard the Addl.Public prosecutor and the learned counsel for the accused.

8.Now the point for determination is --

Whether the prosecution proved its case beyond all

reasonable doubt that the accused have committed the

offence punishable U/Sec.25 and 27 of Arms Act, 1959 as

alleged by the prosecution ?

Point: -

9. It was submitted by the learned Addl. Public prosecutor that the prosecution is able to establish its case for the above charges by examining Pws 1 to 3, their evidence proved that the accused being armed with deadly weapons i.e., knives tried to extract money from the public by threatening them, thus they are liable to be punished for the above charges.

10. In reply, it was contended by the learned counsel for the accused that the SI did not examine independent witnesses to prove that A1 to A3 are threatening the public being armed with knives.

There is no scrap of evidence to show that the accused created panic at Chuttugunta Center. The investigating officer did not obtain sanction orders from the District Magistrate to register the case under

Arms Act. The evidence of Pws 1 to 3 is inconsistent, uncorroborated 5 and not cogent. There are different versions with regard to the time when they started and as to the number of persons allegedly gathered at Chuttugunta center on seeing them. In respect of drafting of police proceedings, SI deposed that it was drafted by one woman PC. But the presence of woman PC was not specifically spoken by Pws 1 and 3.

PW3 clearly stated that no other person accompanied them except himself, PW1, 2 and LW1. As per mediatornama, slips were affixed on seized knives, but there are no such slips on the knives. The knives are planted for implicating the accused falsely in this case for statistical purpose. There is delay in sending the FIR to the court, the delay was not explained, hence it is fatal to the prosecution case. In support of his contention the learned counsel placed reliance upon a decision in Kuruva Surya Prakash Reddy Vs. The state of

Andhra Pradesh (2002 Crl. L.J, 2356) wherein it was observed that if the material object is produced before the magistrate with delay it is violation of Sec.37 of Arms Act and the story of prosecution cannot be believed. Thus the learned counsel contended that in view of above facts and circumstances the prosecution failed to prove the guilt of accused for the above charges, hence the accused are liable to be acquitted.

11. In order to establish the guilt of the accused for the offence

U/s 25 and 27 of Arms Act, the prosecution has to prove that the accused are in possession of sharp edged weapons and by using those weapons they tried to extract money from the public by threatening them. The prosecution to establish the same got examined Pws 1 to 3.

According to the prosecution version, Pws 1 to 3 and LW1 A.

Sambasiva Rao, Head constable were in petrolling on 29-01-2017 around 5.00 pm at Srinivasaraopet, in the mean time they were informed that A1 to A3 are doing galata at Chuttugunta Center, 6 immediately Pws 1 to 3 and LW1 rushed to Chuttugunta Center and apprehended A1 to A3, PW2 SI of police recorded the confession statement of the accused and they confessed that they are extracting money from the public by threatening them with knives, then the SI seized knives under cover of police proceedings as no one came forward to act as mediators as A1 to A3 are rowdy sheeters, accused were brought to police station and after observing all other formalities they were sent for remand.

12.It is the evidence of PW2 who previously worked as SI of police,

Nagarampalem P.S that on 29-11-2016 around 5.00 pm himself, PW1,

Lws 1 and 2 (A. Srinivasa Rao, head constable and Y. Manikya Rao, constable) are in rounds in Chuttugunta area, there they were informed that some persons are creating panic in the public at

Chuttugunta center, then they proceeded to Chuttugunta center, there

A1 to A3 were present, they apprehended the accused, A1 and A2 are rowdy sheeters in Nagarampalem P.S, A3 is also accused in a old murder case, on enquiry they confessed that they are trying to extract money from the public, then he seized knives present in their possession under cover of police proceedings, he arrested them and brought them to police station, basing on the police proceedings, he registered a case, later he visited the scene of offence and prepared rought sketch and examined PW1, Lws 1 and 2 and after completion of investigation he filed charge sheet.

13.As per the evidence of PW2, after apprehension of accused they were brought to police station and police proceedings were prepared in police station by woman constable Seshu Kumari. In so far as apprehension of accused, the evidence of Pws 2 and 3 is also in the same lines. In respect of drafting of police proceedings, PW1 stated that he does not know where the police proceedings were prepared.

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Pws.1 and 3 did not speak that police proceedings were drafted by one woman PC in police station. Basing on the confession statement of accused only the prosecution is alleging that the accused are trying to extract money from the public by threatening them with knives.

Admittedly, the confession statement of accused has no validity

PW2 did not choose to examine any individual at Chuttugunta center to prove that A1 to A3 being armed with knives threatening the public to extract money. It is also not in dispute that no summons were served to any persons at Chuttugunta center to act as mediators for seizure of Mos 1 to 3. Therefore, except the evidence of Pws 1 to 3 who are police personal, there is no evidence of individual available to prove that accused are in possession of knives and they are threatening the public by using the said knives. In the absence of any independent evidence, it can be said that the sole testimony of police officials cannot be considered as it is not safe to rely upon their evidence as they are interested witnesses. More so, there is no corroboration among them in respect of place of drafting of police proceedings. It also leads doubt about the apprehension of accused on that date.

14.In so far as production of Mos 1 to 3 before the magistrate is concerned, as per the proposition of law observed in the above decision, Mos should be produced before the Magistrate without delay.

In this case Mos were received by the Magistrate on 16-03-2017 after two months and it is nothing but violation of Sec. 37 of Arms Act as per the above decision relied on by the accused and it is fatal to the prosecution case.

15.Perused the Gazette notification Number 471 issued by the

Government, wherein Guntur District was also notified in respect of

Arms Rules. Therefore, the investigating officer rightly followed the 8 procedure and there is no need to obtain prior sanction. However the above discussion disclosed that the prosecution is not able to prove the guilt of accused for the offence U/s 25 and 27 of Arms Act beyond all reasonable doubt. Therefore the accused are liable to be acquitted.

16. In the result, A1 to A3 are found not guilty for the offence U/s 25 and 27 of Arms Act , hence they are acquitted U/s 248(1) Cr.p.C for the above said offences. Mos 1 to 3 shall be destroyed after expiry of appeal time. The bail bonds of the accused shall stand cancelled after expiry of appeal time.

Typed to my dictation, corrected and pronounced by me in the open Court on this the 23rd day of July, 2018.

Sd/- M. Sobha Rani,

II ADDL. ASSISTANT SESSIONS JUDGE,

FTC., GUNTUR

APPENDIX OF EVIDENCE

Witnesses examined////

For Prosecution:

PW.1 : T. Ramesh, P.C PW.2 : B.Bhargav, Sub-Inspector of police PW.3 : Y.Manikya Rao, Constable

DOCUMENTS MARKED

For prosecution:For defence: Nil Ex.P1 : Police proceedings Ex.P2 : FIR Ex.P3 : Rough Sketch

Material Objects:

Mos 1 to 3 : Knives

Sd/- M. Sobha Rani,

II A.S.J.,FTC, GNT.

Copies submitted to :

1. The Hon’ble Registrar, (Judl.) High Court of A.P., Hyderabad through the District & Sessions Judge, Guntur. }

2. The Hon’ble District & Sessions Judge, Guntur. } by way of CD

Copy to :

3. The Superintendent of Police, Guntur.

4. The Addl.Public Prosecutor, (Asst.Sessions Court, Guntur).

5. The AJFCM., Bapatla

6. The Accused 9

IN THE COURT OF II ADDL. ASSISTANT SESSIONS JUDGE: FTC.,

GUNTUR. Present: Smt M. SOBHA RANI, B.Sc., L.L.M., II Addl. Asst. Sessions Judge, FTC, GUNTUR .

Monday, this the 23rd day of July, 2018

SESSIONS CASE No.208/2018

Between:- STATE : Sub-Inspector of Police

Nagarampalem Police station. ...Complainant

And

1. Marriboina Anjaneyulu @ Kuragayala Anji, S/o Srinivasa Rao, 25 years, Mudiraju, 4th lane, Vikalangula Colony, Guntur.

2. Shaik Nagoor Vali @ Keechu Gadu, S/o Peer Saheb, 21 years, 10th lane, Sinivasaraopet, Guntur.

3. Darimadugu Ramesh babu, @ Chinni, S/o Koteswara Rao, 35 years, 6th lane, Srinivasaraopet, Atchaiah Daba Center, Guntur.

...Accused.

(P.R.C.No.35/2017, committed by Ms. K. Anusha, Judicial

Magistrate of First Class, Special Mobile Court, Guntur,

dated.03.04.2018)

Charges: U/secs. 25 and 27 of Arms Act Date of offence:29-01-2017 Date of receipt of committal record : 24-05-2018 Date of appearance of Accused:25-06-2018 Date of commencement of trial:13-07-2018 Date of closing of trial: 18-07-2018 Date of sentence or order:23-07-2018 Plea of Accused:Pleaded not guilty. Finding of the court: Found not guilty for the offence U/Sec.25 and 27 of Arms Act.

Sentence or Order: In the result, the A1 to A3 are found not guilty for the offence U/s 25 and 27 of Arms Act , hence they are acquitted U/s 248(1) Cr.p.C for the above said offence. Mos 1 to 3 shall be destroyed after expiry of Appeal time. The bail bonds of the accused shall stand cancelled after expiry of appeal time.

Explanation for delay : The Sessions case record received from the

Hon'ble Sessions Court, Guntur on 24-05-2018. On 25-06-2018,

Accused appeared before the Court. On 02-07-2018, Accused was examined U/Sc. 228 Cr.P.C and charge U/sec.25 and 27 of Arms Act has been framed against them. To substantiate its case, the prosecution examined P.Ws.1 to 3 and got marked Exs.P1 to P3, Mos 1 to 3. On 18.07.2018, the Accused was examined U/sec.313 of Cr.P.C for the incriminating evidence appeared against them, for which, they denied and reported no defence evidence. Hence, the defence side 10 evidence closed. Heard arguments on both sides. On 23-07-2018, Judgment is pronounced. The office is directed to furnish a copy of the judgment to the accused. Hence, there is no avoidable delay.

Sd/- M. Sobha Rani,

II Addl. ASST. SESSIONS JUDGE,

FTC, GUNTUR

Copies submitted to :

1. The Hon’ble Registrar, (Judl.) High Court of A.P., Hyderabad through the District & Sessions Judge, Guntur. }

2. The Hon’ble District & Sessions Judge, Guntur. } by way of CD Copy to :

3. The Superintendent of Police, Guntur.

4. The Addl.Public Prosecutor, (Asst.Sessions Court, Guntur).

5. The JMFC, Spl. Mobile Court., Guntur

6. The Accused

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IN THE COURT OF IV ADDITIONAL SENIOR CIVIL JUDGE, GUNTUR

Present: Smt. M. Sobha Rani.,

IV Addl. Senior Civil Judge, Guntur. Friday, the 9nd day of July, 2021

ORIGINAL SUIT No.612/2017

Between:

The Guntur Municipal Corporation, Guntur

Represented by its Commissioner....Plaintiff.

And

Gobburi Sivababu....Defendant.

This suit is coming on 6-7-2021 for final hearing before me in the presence of Sri S. Sudhakara Reddy., standing counsel for the plaintiff, and Sri M.V. Subba Rao., Advocate for defendant, and upon hearing and considering the material on record and 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 by the plaintiff for recovery of suit amount of

Rs.5,04,075/-.

2.a)The contents of the plaint in brief are that the plaintiff is a corporation body formed and functioning with powers confirmed under HMC

Act 1955.

b)The Guntur Municipal Corporation is having landed properties and also shopping complexes. It is having sundries market at Guntur city.

The Corporation authorities called tenders for sundries market for collection of Aseelu. The defendant participated and stood highest bidder for the tenders conducted for the year 2016-17 and auctions were conducted on 29-3-2016 and the defendant stood as highest bidder and he was permitted 2 to collect Aseelu and proceedings were issued to that affect on 31-3-2016.

The defendant is contractor of sundries market from 1-4-2016 to 31-3-2017.

The defendant has to pay an amount of Rs.8,19,999/- for the entire year with service tax @ 14.5% i.e., Rs.1,18,900/- resulting a total sum of

Rs.9,38,899/-. Of which he paid only Rs.2 lakhs by way of D.D. on 19-4- 2016 and again Rs.4 lakhs by way of D.D. on 19-4-2016 and there is an outstanding balance of Rs.5,38,899/- per contract period and still he has to pay the same in single installment before 1-4-2016, but the defendant failed to pay the balance amount.

c)The defendant made representations to the plaintiff on 25-4- 2016, 24-5-2016, 11-7-2016, 18-7-2016, 21-10-2016, 29-10-2016, 3-12- 2016, 15-2-2017 and 18-4-2017 with all false allegations that two wholesale business persons of tender coconuts are reluctant to pay Aseelu, hence, demanded to refund the amount he paid.

d)In pursuance of the notices, the Municipal Corporation issued reply notices on 9-8-2016, 26-10-2016, 30-7-2016, 9-11-2016, 29-12-2016 and reply legal notices dt.29-12-2016, 31-12-2016, 12-1-2017, 13-2-2017.

Subsequently, the plaintiff corporation cancelled the contract of lease on 13-2-2017 as the defendant became defaulter. The plaintiff demanded by way of notice on 10-4-2017 to pay the balance amount of Rs.4,20,572/- including service tax @ 14.5% together with interest at 12% from the date of default. Again the plaintiff issued registered legal notice dt.1-11-2017, the defendant received the same on 3-11-2017 and kept quite.

e)The defendant failed to pay the due amount of Rs.4,20,572/- with interest @ 12% from the date of default i.e., 1-4-2016. Therefore, the plaintiff corporation is constrained to file the suit for realization of the above amount with interest @ 12%. Further the defendant failed to get the lease agreement duly registered by paying stamp duty and registration fee, thus 3 he caused revenue loss to the Government to an extent of nearly

Rs.9,020/-. Hence, the suit.

3.a)The defendant filed written statement and denied the averments made in the plaint and further submitted that the suit is not maintainable either at Law or on facts. It is a fact that he participated in the tender called for sundries market to procure waste from the persons getting fruit stocks by transport and thereby to collect Aseelu for 2016-17.

The defendant received the orders of Municipal corporation in ROC 1234/2016/A2 wherein there is no clause for recovery against the defendant.

b)The defendant participated in the tender with a hope that the corporation will cooperate for collecting Aseelu. But there was no proper response or cooperation from the plaintiff though there was resistance from the persons getting stocks. The defendant immediately gave representation on 25-4-2016 seeking for cancellation and refund of money. As there was no response from the plaintiff, the defendant was constrained to issue legal notice on 3-12-2016 to the plaintiff appreciating the practical problems in collecting Aseelu. For the said notice, the plaintiff corporation gave a false reply without any appreciation or verification of practical problems that faced by the defendant. In view of periodical representations of the defendant and also the legal notice caused by the defendant, the plaintiff bore grudge and resulted litigation. The plaintiff is silent on the representation of the defendant for refund of advance amount. Hence, the suit is with a bad cause of action with ill-motive. Therefore, the defendant prays to dismiss the suit with costs.

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4.Basing on the above pleadings, the following issues were settled by my learned predecessor for trial:

1)Whether the plaintiff is entitled for realization of

Rs.5,04,075/- towards default amount with interest as prayed for ?

2)Whether the plaintiff is entitled for realization of stamp duty and registration fee of Rs.9,020/- to be payable to the registration department as prayed for ?

3)To what relief?

5.To substantiate the case of the plaintiff corporation, In-charge

Revenue Officer was examined as P.W.1 and got marked Ex.A1 to Ex.A26.

Ex.A1- Gazette No.23, dt.05-03-2016, Ex.A2-True copy of Date of Auction, dt.15-03-2016, Ex.A3-True copy of Proceedings of the Auction, dt.31-03- 2016, Ex.A4-True copy of Letter addressed to GMC, dt.25-04-2016,

Ex.A5:True copy of Letter addressed to GMC, dt.24-05-2016, Ex.A6-True copy of Memo No.102230/A2/2015, dt.01-07-2016, Ex.A7-True copy of

Letter addressed to GMC, dt.11-07-2016, Ex.A8-True copy of Letter addressed to GMC, dt.18-07-2016, Ex.A9-True copy of Endorsement, dt.30- 07-2016, Ex.A10- True copy of Endorsement, dt.09-08-2016, Ex.A11-True copy of Letter addressed to GMC, dt.26-09-2016, Ex.A12-True copy of Letter addressed to GMC, dt.21-10-2016, Ex.A13- True copy of Endorsement, dt.26-10-2016, Ex.A14- True copy of Letter addressed to GMC, dt.29-10- 2016, Ex.A15- True copy of Endorsement, dt.09-11-2016, Ex.A16- True copy of Legal Notice, dt.03-12-2016, Ex.A17-True copy of Reply notice, dt.29-12- 2016, Ex.A18- True copy of Notice, dt.31-12-2016, Ex.A19- True copy of

Notice, dt.12-01-2017, Ex.A20- True copy of Order of Lease cancellation, dt.13-02-2017, Ex.A21- True copy of Letter addressed to GMC, dt.15-02- 2017, Ex.A22- True copy of Notice, dt.10-04-2017, Ex.A23-True copy of

Letter addressed to GMC, dt.18-04-2017, Ex.A24-True copy of Registered 5

Legal Notice, dt.01-11-2017, Ex.A25 - Postal Receipt, dt.01-11-2017, Ex.A26 - Acknowledgment, dt.03-11-2017.

On behalf of the defendant, the defendant got examined himself as

D.W.1 and got examined D.W.2 and no documents marked.

6.Heard arguments on both sides. The learned counsel for the defendant also filed written arguments.

7.It was submitted by the learned standing counsel on behalf of the plaintiff that the defendant committed default in payment of balance amount and also failed to get the lease deed registered, the defendant is collecting Aseelu in pursuance of tender, but failed to pay the balance amount to the plaintiff corporation, the defendant also participated in the subsequent tender also and became highest bidder which reveals that there is no obstruction from anybody, but he intentionally gave representations to avoid bid amount, there is no clause in the lease agreement that the

Municipal corporation is responsible if any obstruction the defendant faces in collecting Aseelu, therefore, the plaintiff has to pay the entire suit claim and prays to decree the suit in favour of the plaintiff.

8.It was contended by the learned counsel for the defendant that the suit claim was not proved because plaintiff was not examined in this case,

P.W.1 did not state that he was deposing for and on behalf of the plaintiff and P.W.1 did not file any authorization to give evidence, so the plaintiff is not entitled for any suit claim, the plaintiff did not perform his part of contract, inspite of several representations by the defendant, there was no response or cooperation from the plaintiff in collecting Aseelu,P.W.1’s evidence is not helpful to prove the case of the plaintiff, the uncorroborated 6 and sole testimony of P.W.1 is not valid under law. Ex.A6 and A10 speak that there was an obstruction in collecting Aseelu, Ex.A13 speaks that as there is an obstruction, the defendant could not collect Aseelu and the plaintiff will appoint a committee and thereby will solve the problem, but the plaintiff did not solve the proble,Ex.A15 speaks about the representation given by the defendant to show bonafidies of the defendant in performing his part of contract, It is well established Law that wrong doers cannot be entitled to get benefit of his own wrong, thus, the plaintiff is not entitled to get benefit from its own wrongs, The plaintiff is estopped from saying that it has no responsibility in collecting Aseelu as the plaintiff’s officials tried repeated efforts in settling the dispute of non collecting Aseelu by the defendant, the plaintiff did not produce any evidence for which period the defendant collected Asseelu and exact due amount, to support the evidence of the defendant, he examined D.W.2 also, cross examination of D.W.1 also clear that due to non cooperation of the plaintiff, the defendant could not collect Aseelu, D.W.2’s evidence was not discredited, the evidence of

D.Ws.1 and 2 was unshaken and proved the case of the defendant, the plaintiff did not come forward to perform his part of contract though the defendant repeatedly made representations, therefore prays to dismiss the suit with costs.

Issue No.1:

9.On behalf of the plaintiff corporation, In-charge Revenue Officer was examined as P.W.1. In his chief examination affidavit, he got mentioned that he was In charge of concerned file and well acquainted with the facts and he is deposing on behalf of the Guntur Municipal Corporation. Though it is a fact that he did not file any authorization given by the Commissioner, 7 but it is not in dispute that P.W.1 is working as In-charge Revenue Officer and he is dealing with the file relating to the defendant’s lease agreement.

Therefore, P.W.1 is the proper person to depose evidence and his evidence is valid. The defendant never questioned P.W.1 in his cross examination that his evidence is not valid as he did not produce authorization given by the commissioner. Therefore, the defendant has no right to question the same in his arguments. Moreover as stated supra, non filing of authorization is not at all fatal to the case of the plaintiff as P.W.1 is the proper person to depose evidence before this Court. Accordingly, I find no force in the argument advanced by the defendant in this aspect.

10.Admittedly, the defendant participated in the tender and stood highest bidder for the year 2016-17 for collecting Aseelu. The plaintiff got marked Gazette No.23 dt.5-3-2016 as Ex.A1 wherein the plaintiff corporation gave tender notification. There are certain conditions in Ex.A1 to be followed by the contractors. P.W.1 in his cross examination clearly stated that as per conditions in Ex.A1, the corporation is not responsible if the contractor could not collect Aseelu. Perused the conditions mentioned in EX.A1, wherein there is no clause that the plaintiff is responsible if any obstruction is being faced by the bidders in collecting Aseelu. There is no dispute about Ex.A1 to A26 marked by the plaintiff. The defendant addressed Ex.A4, A5, A7, A8, A11 , A12 and A14 letters to the corporation informing the alleged obstructions that being faced by him in collecting

Aseelu. The Municipal corporation also gave notice under Ex.A9 to Srinivasa

Rao and Punna Rao who are allegedly not paying Aseelu to the defendant to attend before the Commissioner. Thus, it appears the corporation also made some attempt to solve the problems being faced by the defendant though there is no clause in Ex.A1 Gazette.

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11. Further, the documents filed by the plaintiff would go to show that though the defendant is giving representations one after the other requesting the corporation to cancel his lease deed, but the corporation demanding the defendant to pay the default amount and did not come forward to cancel the lease deed. As observed in the above paragraph, there is no clause in Ex.A1 that the corporation has to cancel the lease deed in the middle on the request of the defendant. So, the oral evidence of P.W.1 coupled with Ex.A1 to A26 made it clear that it is for the defendant to clear the obstructions by taking legal action against the persons who are causing obstructions to him and it is not for the plaintiff. It is not the evidence of either D.W.1 or D.W.2 that the defendant gave police report against the obstructers to proceed against them as per Law. Without taking any action against them, the defendant used to send representations one after the other to the corporation though the corporation is having no responsibility to clear the problems in collecting Aseelu. It shows that the defendant intentionally to avoid his part of contract used to send representations one after the other. Though the corporation took some action initially in clearing the obstructions, but it does not mean that it is for the corporation to clear the problems being faced by the defendant in collecting Aseelu.

12. The contract of the plaintiff is only issuing proceedings after the defendant stood highest bidder, thereby the contract on the part of the plaintiff is completed and it is for the defendant to perform his part of contract, but it appears the defendant failed to perform his part of contract in paying balance amount. Nothing was elicited from the cross examination of P.W.1 to support the case of the defendant. Giving several representations by the defendant against the contract would not take away 9 the liability of the defendant in paying the default amount. The learned

Muncipal councel also submitted that the defendant participated in the tender in the subsequent year also and became highest bidder which was not denied by the learned counsel for the defendant. This fact itself shows that if really there had been obstruction in collecting Aseelu, the defendant would have not participated in the subsequent tender. So, it clearly shows that the defendant collected Aseelu as per the contract, therefore, the defendant is liable to pay the entire suit claim. Accordingly, I answered issue No.1.

Issue No.2:

13.From the evidence of both parties, it is an admitted fact that the defendant failed to get the lease deed registered by paying stamp duty and registration fee, thereby he caused revenue loss of nearly Rs.9,020/- to the

Government. Accordingly, I answered issue No.2.

Issue No.3:

14.In the result, the suit is decreed with costs against the defendant for an amount of Rs.5,04,075/- with subsequent interest @12% per annum from the date of filing of the suit till the date of decree and future interest @6% per annum from the date of decree till the date of realization on the due amount of Rs.4,20,572/-.

Typed to my dictation by Stenographer, corrected and pronounced by me in the open Court, this the day of 9th day of July, 2021.

IV Addl. Senior Civil Judge, Guntur.

10

APPENDIX OF EVIDENCE

WITNESSES EXAMINED

For Plaintiff:- PW1 – D. Venu Babu.

For Defendant:- DW1 – G. Siva Babu, DW2 – G. Somasekhar Rao.

DOCUMENTS MARKED

For Plaintiff:- Ex.A1 - Gazette No.23, dt.05-03-2016, Ex.A2 - True copy of Date of Auction, dt.15-03-2016, Ex.A3 - True copy of Proceedings of the Auction, dt.31-03-2016, Ex.A4 - True copy of Letter addressed to GMC, dt.25-04-2016, Ex.A5 : True copy of Letter addressed to GMC, dt.24-05-2016, Ex.A6 - True copy of Memo No.102230/A2/2015, dt.01-07-2016, Ex.A7 - True copy of Letter addressed to GMC, dt.11-07-2016, Ex.A8 - True copy of Letter addressed to GMC, dt.18-07-2016, Ex.A9 - True copy of Endorsement, dt.30-07-2016, Ex.A10 - True copy of Endorsement, dt.09-08-2016, Ex.A11 - True copy of Letter addressed to GMC, dt.26-09-2016, Ex.A12 - True copy of Letter addressed to GMC, dt.21-10-2016, Ex.A13 - True copy of Endorsement, dt.26-10-2016, Ex.A14 - True copy of Letter addressed to GMC, dt.29-10-2016, Ex.A15 - True copy of Endorsement, dt.09-11-2016, Ex.A16 - True copy of Legal Notice, dt.03-12-2016, Ex.A17 - True copy of Reply notice, dt.29-12-2016, Ex.A18 - True copy of Notice, dt.31-12-2016, Ex.A19 - True copy of Notice, dt.12-01-2017, Ex.A20 - True copy of Order of Lease cancellation, dt.13-02-2017, Ex.A21 - True copy of Letter addressed to GMC, dt.15-02-2017, Ex.A22 - True copy of Notice, dt.10-04-2017, Ex.A23 - True copy of Letter addressed to GMC, dt.18-04-2017, Ex.A24 - True copy of Registered Legal Notice, dt.01-11-2017, Ex.A25 - Postal Receipt, dt.01-11-2017, Ex.A26 - Acknowledgment, dt.03-11-2017.

For Defendant:- NIL

IV A.S.C.J., Gnt.,

1

IN THE COURT OF THE I ADDL. SENIOR CIVIL JUDGE: GUNTUR

Present: Sri K.Satya Naga Bala Prasad, I Addl. Senior Civil Judge, Guntur

Friday, this the 27th day of July, 2018

Original Suit No. 24 of 2018

Between:

Pasupuleti venkata Ramalingeswara Rao S/o.late Gopaiah, aged about 47 yrs, Hindu, Business, residing at Door No.25-4-135, 5th line, Ramanamakshetram, Ramachandrapura

Agraharam, Guntur.... Plaintiff

AND

Golla Srihari S/o.Govindu, Aged about 44 yrs, Hindu, Business R/o.Flat No.504, Vajra Homes, 1st line, Kodandaramaiah Nagar,

Chuttugunta Centre, Guntur.... Defendant

This suit has come before me on 12.7.2018 for final hearing in the presence of Sri G.V Ramana, Advocate for plaintiff, and defendant remained exparte, and upon perusing the material on record and having considered the matter till this day, this court delivered the following:-

J U D G M E N T

This is a suit filed for specific performance for recovery of sale advance amount received from the plaintiff by the defendant under sale agreement dt.15.9.2014 with interest and costs of the suit.

2.The facts set out in the plaint that the defendant represented that he purchased the suit schedule property from one

Vanimireddy Srinivasa Rao on 9.11.2013 under sale advance agreement and it is in his possession and believing his words the plaintiff agreed to purchase the same for Rs.11,250/- per sq. yard, accordingly he paid 2

Rs.4,05,001/- to the defendant on 15.9.2014 towards sale advance amount in the presence of two attestors and defendant executed a sale agreement on 15.9.2014 in favour of plaintiff. As per terms the plaintiff has to pay the balance sale consideration of Rs.13,93,649/- to the defendant within 40 days and obtained regular sale deed at the costs of plaintiff in case of failure the plaintiff has to pay the same with interest @ 24% p.a, in case the defendant failed to perform his part of contract, the defendant agreed to pay the amount with interest @ 24% p.a. The defendant expressed his ready and willingness for the balance sale consideration within stipulated time for execution of regular sale deed but the defendant protracting the days and further received an amount of Rs.50,000/- and Rs.1,00,000/- on 2.10.2014 and 18.12.2014 respectively towards balance sale consideration and the same was endorsed on the back side of first page of advance sale agreement dt.15.9.2014. Later the plaintiff came to now that the schedule property comes within the prohibited land published in the list of prohibited lands at S.R.O, Nallapadu, Guntur District which cannot be alienated. Knowing the same the defendant inducted the plaintiff to get the advance amount from him, as such the plaintiff paid Rs.5,55,001/-in advance. Basing on list published by S.R.O Nallapadu, Guntur District he submitted a report dt.16.12.2015 to S.H.O, Nallapadu P.S for cheating and fraud, FIR was registered where the defendant approached him and admitted his guilt and accepted to pay the sale advance amount with interest but did not pay the same, subsequently though the plaintiff issued registered notice but he was not responded. Hence, the plaintiff filed this suit for recovery 3 of amount with interest.

3.Though summons are received and appeared through counsel, he subsequently failed to file written statement within stipulated time and conditional order is passed. Hence, set exparte.

4.To substantiate his claim, the plaintiff got examined himself as P.W.1 and got marked Ex.A1 to Ex.A3 viz., Ex.A1 Original sale advance Agreement dt.15.9.2014, Ex.A2 Copy of FIR No.359/15 of

Nagarampalem P.S and Ex.A3 Office copy of registered notice dt.13.12.2017.

5.Heard for plaintiff.

6.Now the point for determination is :

"Whether the plaintiff is entitled for suit amount 

as prayed for ?

7. P O I N T :

On perusal of the record, the suit is based on advance sale agreement which was marked as Ex.A1. On seeing Ex.A1 it is very clear that defendant received amount and two amounts are paid by way of endorsement keeping in view of the same whatever claim made by the plaintiff with regard to sale agreement amount of Rs.5,55,001/-.

Moreover, the defendant failed to show about the genuinity of the transaction and when the schedule property comes within the purview of prohibited land list as published by S.R.O, Nallapadu, Guntur District it 4 cannot be alienated and the contract became impossible. As such there is no other go except to recover advance sale amount with interest because the fraud committed by the defendant and a criminal case is also filed. Keeping in view of the same as the evidence of P.W.1 is remained unchallenged and unrebutted. Hence, this court is constrained to believe the version of P.W.1. Hence, this point is answered in favour of the plaintiff.

9.In the result, the suit is decreed with costs directing the defendant to pay Rs.9,80,764/- with subsequent interest @ 24% per annum from the date of suit till the date of decree and thereafter @ 6% per annum from the date of decree till its realization on the principal amount of Rs.5,55,001/-.

Dictated to the Personal Assistant, transcribed by her,

corrected and pronounced by me in the open Court on this the 27th day of July, 2018.

I Addl. Senior Civil Judge, Guntur.

APPENDIX OF EVIDENCE

WITNESSES EXAMINED

For Plaintiff : For Defendant :

P.W.1 : Pasupuleti venkata Ramalingeswara RaoExparte.

DOCUMENTS MARKED

For Plaintiff :

Ex.A1 : Original sale advance Agreement dt.15.9.2014.

Ex.A2 : Copy of FIR No.359/15 of Nagarampalem P.S

Ex.A3 : Office copy of registered notice dt.13.12.2017.

For Defendant : NIL.

I A.S.C.J., Gnt., 5

IN THE COURT OF THE I ADDL. SENIOR CIVIL JUDGE: GUNTUR

Present: Sri K.Satya Naga Bala Prasad, I Addl. Senior Civil Judge, Guntur

Friday, this the 27th day of July, 2018

Original Suit No. 24 of 2018

Between:

Pasupuleti venkata Ramalingeswara Rao S/o.late Gopaiah, aged about 47 yrs, Hindu, Business, residing at Door No.25-4-135, 5th line, Ramanamakshetram, Ramachandrapura

Agraharam, Guntur.... Plaintiff

AND

Golla Srihari S/o.Govindu, Aged about 44 yrs, Hindu, Business R/o.Flat No.504, Vajra Homes, 1st line, Kodandaramaiah Nagar,

Chuttugunta Centre, Guntur.... Defendant

This is a suit filed for specific performance for recovery of sale advance amount received from the plaintiff by the defendant under sale agreement dt.15.9.2014 with interest and costs of the suit.

Plaint Presented on : 15.12.2017. Plaint numbered on : 15.12.2017.

CAUSE OF ACTION: Cause of action for the suit arose when the defendant agreed to sell the suit property to the plaintiff @ Rs.11,250/- per sq.yard for consideration of Rs.17,97,750/-, when the defendant has received Rs.4,05,001/- on 15.9.2014 towards sale advance amount and executed advance sale agreement dt.15.9.2014 in favour of plaintiff and subsequently Rs.50,000/- on 2.10.2014 and Rs.1,00,000/- on 18.12.2014 and when the plaintiff is ready and willing to pay the remaining balance consideration of Rs.13,93,649/- but the defendant failed to perform his part of contract inspite of notice dt.13.12.2017 and at A.T Agraharam, Guntur where the schedule property is situated which is within the jurisdiction of this Court. PARTICULARS OF VALUATION:

This being a suit for refund of sale advance amount of Rs.9,80,764/- under sale agreement dt.15.9.2014 On which a court fee of Rs.12,326/- is paid under Sec.20 of A.P.C.F and S.V.Act, 1956.

6

Value of the suit for the purpose of jurisdiction is same as above.

This suit has come before me on 12.7.2018 for final hearing in the presence of Sri G.V Ramana, Advocate for plaintiff, and defendant remained exparte, and upon perusing the material on record, this Court doth order and decree as follows :

1.That the suit be and the same is hereby decreed ;

2.That the defendant be and is hereby directed to pay a sum of Rs.9,80,764/- to the plaintiff with subsequent interest @ 24% per annum from the date of suit till the date of decree and thereafter @ 6% per annum from the date of decree till its realization on the principal amount of Rs.5,55,001/- ;

3.That the defendant also do pay a sum of Rs.19,416/- to the plaintiff towards costs of the suit and do bear his own costs of Rs.Nil (Exparte).

(Plaint schedule is hereto attached)

Given under my hand and the seal of the court this the 27th day of July, 2018.

I Addl. Senior Civil Judge, Guntur

TABLE OF COSTS

For For Defendants Plaintiffs Rs. Rs. Stamp on vakalat 2-00 Exp Stamp on plaint 12,326-00 Process fees38-00 Advocate fees 7000-00 Typing charges 50-00 Total : 19416-00

I A.S.C.J.,