Sri N.rajaprasad Baba

1IV ADJ COURT, VSP, S. C.No.125/2011

CALENDAR

IN THE COURT OF THE IV ADDL.DISTRICT & SESSIONS JUDGE: VISAKHAPATNAM

Present: Sri N.Raja Prasad Baba, B.A., LL.B., VI Addl. District & Sessions Judge FAC - IV Addl.District & Sessions Judge. Tuesday, the 15 th day of May, 2012.

SESSIONS CASE No.125/2011

(P.R.C.No. 15/2011 on the file of Chief Metropolitan Magistrate Visakhapatnam in Crime No.34/2011 of I Town Police Station,Visakhapatnam)

COMPLAINANT: State represented by the Inspector of Police, I Town Police station, Visakhapatnam. .

ACCUSED : Israuil Shaik, S/o. Noorul Shaik, aged 22 years, Muslim, Feery Boatman, R/o. Piyapur village, Udwa Taluq, Radnagur District, Jharkhand State. DATE OF: Offence:27.02.2011 Complaint:27-02-2011 Apprehension:28.02.2011 Commitment:02.07.2011 Commencement of trial:14.11.2011 Close of trial:12.03.2012 Judgment:15.05.2012 Whether accused is on bail/ in Jail: In Jail. EXPLANATION FOR DELAY IN SESSIONS COURT: This Sessions case is made over from Metropolitan Sessions Judge, Visakhapatnam to this Court for disposal according to law on 10.08.2011. On 14.09.2011 charges Under Section 489(B) and 489(C) of IPC were framed against the accused and he pleaded not guilty and claimed to be tried. In this case PWs.1 to 6 were examined from 14.11.2011 to 20.12.2011 and Exs.P1 to P-5 and MOs. 1 to 46 were marked. On 20.12.2011 Prosecution evidence was closed and matter posted to 29.12.2011 for examination of accused U/s 313 of Cr.P.C. On 29.12.2011 accused produced from Central Prison, Visakhapatnam and matter posted to 02.01.2012. On 02.01.2012 Crl.M.P.343/11 pending matter posted to 10.01.2012. On 10.01.2012 & 20.01.2012 Crl.M.P.343/11 pending matter posted to 24.01.2012. On 24.01.2012 Crl.M.P.343/11 was allowed. Pws.1 & 6 recalled and examined. Prosecution side evidence is closed and matter posted to 2IV ADJ COURT, VSP, S. C.No.125/2011 30.01.2012 for 313 Cr.P.C examination. On 02.02.2012 accused was examined u/sec.313 of Cr.P.C and reported no defence and heard arguments and matter posted to 03.02.2012 for Judgment. On 03.02.2012 Addl.P.P. filed a petition and the same was allowed and prosecution case was reopened and matter posted to 15.02.2012 for further arguments. On 15.02.2012 & 24.02.2012 at request of Addl.P.P., matter posted to 28.02.2012. On 28.02.2012 & 01.03.2012 Crl.M.P.80/12 pending matter posted to 12.03.2012. On 12.03.2012 Crl.M.P.80/12 allowed and Pws.1 and 2 recalled and cross examined and prosecution side evidence was closed and matter posted to 26.03.2012 for arguments. At request of Addl.P.P. And defence counsel the case was posted for arguments from time to time from 26.03.2012 to 02.05.2012. On 02.05.2012 heard arguments and matter posted to 09.05.2012 for Judgment. On 09.05.2012 accused is not produced from Central Prison, Visakhapatnam and posted to 15.05.2012 for Judgment .

On 15.05.2012 accused produced from C.J., Vsp., and Judgment

pronounced in open court, holding that the Accused is guilty of the offence

punishable under section 489-B and 489-C of IPC with which he is charged

and consequently, he is convicted under section 235(2) of Cr.P.C. , and matter posted to 16.05.2012 for hearing of the accused with regard to the quantum of sentence imposed against him. On 16.05.2012 heard the accused with regard to quantum of sentence and he is sentenced to undergo Rigorous Imprisonment

for a period of 2 (Two) years and also to pay a fine of Rs.2,000/- (Rupees two

thousand only) IDSI for three months for the offence U/s. 489-B of IPC and

also sentenced to undergo R.I. for for a period of 2 (Two) years and also to

pay a fine of Rs.2,000/- (Rupees two thousand only) IDSI for three months for

the offence U/s. 489-C of IPC. Both the sentences shall run concurrently.

Mos-1 to 46 shall be handed over to the concerned Police for being forwarded to the

Issue Department of the Reserve Bank of India, with a brief report of the case after the appeal time is over. The remand period from 28.02.2011 to 16.05.2012 undergone by the accused, shall be given set-off. Hence, there is no avoidable delay in this court.

VI ADDL. DISTRICT & SESSIONS JUDGE

(FAC) IV ADDL. DISTRICT & SESSIONS JUDGE,

VISAKHAPATNAM.

3IV ADJ COURT, VSP, S. C.No.125/2011

IN THE COURT OF THE IV ADDL.DISTRICT & SESSIONS JUDGE: VISAKHAPATNAM

Present: Sri N.Raja Prasad Baba, B.A., LL.B., VI Addl. District & Sessions Judge FAC - IV Addl.District & Sessions Judge. Tuesday, the 15 th day of May, 2012.

SESSIONS CASE No.125/2011

(P.R.C.No. 15/2011 on the file of Chief Metropolitan Magistrate Visakhapatnam in Crime No.34/2011 of I Town Police Station,Visakhapatnam) Between: State represented by the Inspector of Police, I Town Police station, Visakhapatnam.

…Complainant. And: Israuil Shaik, S/o. Noorul Shaik, aged 22 years, Muslim, Feery Boatman, R/o. Piyapur village, Udwa Taluq, Radnagur District, Jharkhand State. …Accused

1. Charge:under section 489-B & C of IPC

2. Plea of the accused:Not guilty

3. Finding of Court:Accused found guilty.

4. Sentence of order: Accused is guilty of the offence punishable under section 489-B & C of IPC with which he is charged and consequently, he is convicted U/s. 235(2) of Cr.P.C. , and he is sentenced to undergo Rigorous Imprisonment for a period of 2 (Two) years and also to pay a fine of Rs.2,000/- (Rupees two thousand only) IDSI for three months for the offence U/s. 489-B of IPC and also sentenced to undergo R.I. for for a period of 2 (Two) years and also to pay a fine of Rs.2,000/- (Rupees two thousand only) IDSI for three months for the offence U/s. 489-C of IPC. Both the sentences shall run concurrently. Mos-1 to 46 shall be handed over to the concerned Police for being forwarded to the Issue Department of the Reserve Bank of India, with a brief report of the case after the appeal time is over. The remand period from 28.02.2011 to 16.05.2012 undergone by the accused, shall be given set-off.

5. Prosecution conducted by: Sri M.Venu Gopal, In-charge Addl. Public Prosecutor, Visakhapatnam.

6. Accused defended by: Smt. R.Krishna Kumari, Advocate, Visakhapatnam

This Case is committed by Chief Metropolitan Magistrate, Visakhapatnam in P.R.C.No.15/2011 in Crime No.34/2011 of I Town Police Station, Visakhapatnam and the same having stood over for consideration till this day, this court delivered the following:

4IV ADJ COURT, VSP, S. C.No.125/2011

J U D G M E N T

The Accused are charged for trafficking or receiving or using as genuine the fake currency notes and also possessing forged or counterfeit currency notes knowing fully well that they are fake notes in Crime No.34/2011 of I Town Police station, Visakhapatnam. Charges under Sections 489-B and 489-C of IPC were framed against the accused and he pleaded not guilty and claimed to be tried.

2.The case of the prosecution in brief is that the accused had purchased fake Indian currency notes worth Rs.50,000/- of Rs.1,000/- denomination by paying Rs.5,000/- cash to an unknown person at his native place with an intention to gain money illegally and in order to exchange fake currency into real currency he came down to Purna Market, Visakhapatnam and on 27.02.2011 he visited Karunamaya General Stores, Poorna market, Visakhapatnam, the shop of PW-1, and purchased a chocolate packet and gave one fake Rs.1,000/- fake currency note to him and in turn PW-1 scanned the same with the help of a fake currency detection device available with him and confirmed that the said note is fake one and later basing on the complaint lodged by PW-1, PW-6 Inspector of Police, I Town Police station, Visakhapatnam, registered the same as present crime, took up investigation, visited the scene of offence, examined and recorded the statements of witnesses and seized two fake currency notes from the possession of the accused in the presence of mediators under the cover of mediators report and arrested the accused and recorded his confessional statement and seized another 44 of fake currency notes of one thousand denomination and sent the accused to judicial remand and later sent the MOs to FSL, Hyderabad and he filed preliminary charge sheet and on receipt of FSL report and after completion of the investigation PW-5 laid the charge sheet.

3.In all the prosecution examined PWs-1 to 6 and exhibited Exs.P-1 to P-5 and MOs-1 to 46. After closure of the prosecution’s evidence, the accused were examined under section 313 of Cr.P.C., for the incriminating circumstances appeared against them and they denied the allegations. The accused did not choose to let-in any evidence nor got marked any documents.

4.The learned counsel for the accused filed his memo of written arguments in detail and the sum and substance of the memo of arguments is that as per the prosecution, PW-1 caught the accused red handedly with the help of PW-2 but PWs-1 and 2 did not identify the accused before the Court and totally vitiated the case of the prosecution and it clearly 5IV ADJ COURT, VSP, S. C.No.125/2011 shows that a false case is foisted against an innocent accused and though the prosecution examined PW-2 he is not a direct witness to the alleged incident, as such, his evidence is not at all useful to the case of the prosecution as his evidence is only an hearsay evidence. She further contended that the alleged offence took place at Poorna Market, Visakhapatnam, which is a busy locality and daily at any point of time there are thousands of people are available there and there are numerous shops are situated but for the best reasons known to the prosecution no local witness is examined more over the two witnesses examined by the prosecution that PW-1 and 2 are belong to the same shop and they are interested witnesses therefore, their evidence is suspicious as they are working in the same shop and that PW-1 also admitted that it is busy locality and he did not inform the matter to the association of their merchants, any local leaders public also gathered when they apprehended the accused but the prosecution did not examine any of the said witnesses, that strong circumstances go to show any amount of doubt. As per the evidence of PW-1 the turnover of the shop wherein he is working is Rs.1.00 lakh but he is only a salesman in the said shop but no other worker is examined by the police and that is also strong circumstances. It is further contended that no alleged incident took place as alleged by the prosecution at the place of occurrence and the alleged scene of offence is only a fabricated one and the prosecution totally failed to prove the seizure of Mos-1 and 2 and PWs-1 and 2 did not identify the same and Mos-1 and 2 did not contain any slips and seals as admitted by PW-5 and PW-5 stated in his cross-examination that he has received a sealed cover from FSL and the cover contains Mos-1 to 46 are not available and PW-6 stated that no identification slips to Mos-1 to 46 and the prosecution foisted a false story alleging that on confession of the accused they seized total 46 fake currency notes, the evidence of PW-1 itself sufficient that PW-1 categorically stated and admitted in his cross- examination that he was recalled on search of the accused and they found some change, except that nothing is available with the accused, so the prosecution foisted the said false story of alleged confession only with a view to show that the accused will be implicated in a case of severe in nature to suit the provisions of law and see that the accused shall be liable for severe punishment. Further she contended that another suspicious circumstances in this case is that admittedly the accused belong to Jarkhand state, he does not know Telugu but it is not the case of the prosecution that how the accused is supposed to know that what has mentioned in FIR and the case of the prosecution is totally false and how the accused is able to know the proceedings allegedly prepared in Telugu when the accused do not know Telugu and it is not the case of the prosecution that the same is explained to the accused in Hindi and the time of Ex.P-2 it is alleged that H.C., reported the statement in 6IV ADJ COURT, VSP, S. C.No.125/2011

Hindi on dictation of S.I., so the accused did not give any confession and the alleged confession is also recorded by H.C., on the dictation of S.I., Therefore, the alleged confession is totally false and fabricated story and the alleged scanning machine from the shop of PW-1 is also not seized and the alleged remaining 44 notes are not scanned and that PW-1 says that he do not know who scribed Ex.P-1 and PW-2 stated that friend of PW-1 scribed Ex.P-1 and there is a correction also on the said Ex.P-1 line is corrected as 18 in the place of 17. She further contended that the prosecution totally failed to establish the guilt of the accused moreover the accused was in found in the said alleged fake notes in conscious possession etc. as such, the accused is entitled for an acquittal. In this regard, she relied on a decision reported in AOR 1020 SC 979, AIR 1979 SC 1705; and 2001(2) ALT(Crl) 148 (A.P).

5.On the other hand the learned Addl. Public Prosecutor vehemently contended that the evidence of Pws.1 and 2 clinchingly and clearly established the case of the prosecution and therefore, their evidence inspires confidence. The evidence of PW-3 in whose presence and in the presence of another mediator the police seized 44 fake currency notes of thousand rupee denomination and the Sub Inspector of police, also seized another two fake currency notes of thousand rupees denomination from the right side pocket of the pant and

before seizing this 44 notes the Sub Inspector showed another two notes of thousand rupee

denomination and a report was drafted by the police attested by him and another mediator Ramana and numbers of the seized notes are also mentioned in the report and Ex.P-2 is the relevant portion in the confession statement of the accused evidencing the seizure of the notes and Mos-3 to 46 are the 55 fake currency notes seized in their presence which is mentioned in Ex.P-2. His evidence clinchingly crystal clear to prove the seizure of MOs. The evidence of PW-4 Asst. Director, FSL, Hyderabad is also clearly establishes that he stated that he received 44 46 notes of thousand rupee denomination and he mentioned the numbers of the notes in his report furnished to the police and he examined these notes and compared the same with genuine thousand rupee notes available with them and on such examination and also of conducting alternative test, he found these 46 notes of thousand rupee denomination are fake and counterfeit notes. Hence, his evidence is clearly establishes that the fake currency notes are seized from the possession of the accused are not genuine. He further contended that the evidence of Pws-5 and 6 Investigating Officers, who filed the charge sheet after receipt of FSL report and after completion of the investigation and therefore, his evidence also proves the apprehension of the accused and recording confessional statement and seizure of fake currency notes under the cover of 7IV ADJ COURT, VSP, S. C.No.125/2011 mediators report in the presence of mediators and arrest of the accused and seizure of MOs and sending them to FSL, Hyderabad through their ACP along with letter of advise under Ex.P-5 and receipt of report and found that the Mos are fake currency notes and after completion of the investigation they filed the charge sheet. Further the learned Addl. Public prosecutor finally contended that the evidence of PWs-1 to 6 coupled with Exs.P-1 to P-5 and Mos-1 to 46 are crystal clear and establishes the case of the prosecution and thus, the accused is liable for punishment of the offence under sections 489-B and 489-C of IPC with which he is charged.

6.Considered the arguments advanced by both parties.

7.Now the Points for determination are:

1. Whether the accused was found using the fake currency notes as sought to be contended by the prosecution?

2. Whether the accused was found in possession of fake currency notes of thousand rupee denomination?

3. Whether the prosecution bring home the guilty of the accused beyond all reasonable doubt ?

8.POINT Nos. 1 and 2: - To prove the case of the prosecution and the ingredients of Section 489-B and 489-C of IPC, the prosecution mainly rely on the evidence of PWs-1 and 2. PW-1 to speak to his report lodged with the police and the contents of Ex.P-1 report. PW-1 deposed in his evidence that the offence occurred on 27.02.2011 at 5.00 p.m., at his shop and the accused came to their shop and tendered a thousand rupee note and sought a chocolate packet and suspecting the genuineness of the note, he put the same under the scanner which is available in the shop and they kept it under the cash counter and the scanner is placed under the cash counter not visible to the customers and on examination with the help of scanner it was found the note tendered by the accused is a counterfeit note. He further deposed that he also took another thousand rupees note from the accused and it also found the same to be fake note with help of the scanner machine and the accused was conversing in Hindi language and then he contacted his owner over phone and he instructed him to handed over the accused to the police and with the help of Srinivas Reddy and Jagadesh Reddy who were available near their shop he apprehended the accused and they brought the accused to I Town Police station, and handed over the accused and the fake currency notes to the police and he got scribed the complaint by one known person to him and lodged the same with I Town police and he also got the numbers 8IV ADJ COURT, VSP, S. C.No.125/2011 of the fake currency notes mentioned in the complaint and the numbers of the notes are 894129 and 885178 or 79 and Ex.p-1 is the complaint lodged by him and the police visited their shop and MO-1 and 2 are the fake currency notes tendered by the accused. He was subjected to great length of cross-examination by the learned counsel for the accused. During the cross-examination of PW-1, he admitted that on verification they did not find any dangerous articles from the possession of the accused but they found some coins, besides two fake notes they noticed only from the possession of the accused. He denied the suggestion that the police seized two fake notes from the possession of the accused in their presence and no change was record and after the accused stood for about 10 minutes he produced another second fake note to them. So, the combined reading of chief and cross-examination of PW-1 go to show that on 27.02.2011 at 5.00 p.m., the accused came to their shop and tendered a one thousand rupee note and sought a chocolate packet and that he suspecting the genuineness of the note, he put the same under the scanner which is available in the shop and on examination it was found that the note tendered by the accused is a counterfeit note and then he took another note from the possession of the accused and it was also found that the same is also a fake currency note. The accused was conversing in Hindi language and then he contacted his owner on phone and he instructed him to handover the accused to the police with the help of Srinivas Reddy and Jagadesh Reddy who were available near their shop and he apprehended the accused. And they brought the accused to I Town police station and handed over the accused and the fake currency notes to the police and he got scribed the complaint by one known person to him and lodged the same with I Town police and he also got the numbers of the fake currency notes mentioned in the complaint and the number of the notes are 894120 and 885178 or 79 and the police visited their shop and MO-1 and 2 are the fake currency notes tendered by the accused.

9.In the cross-examination PW-1 admitted that the police visited their shop around 6.30 p.m., on the same day and there are number of shops in and around their shop and it is a busy locality and it is only a commercial area but not residential area and at the time of his checking the note the accused was present in the shop only and even after he picked up the second note from the accused, he remained in the shop and he did not inform the matter to the association of their merchants nor any local leaders and public also gathered when the apprehended the accused.

10.PW-2 who corroborated with the evidence of PW-1 in all material aspects. He stated in his evidence that the offence occurred on 27.02.2011 and himself and one Jagadesh 9IV ADJ COURT, VSP, S. C.No.125/2011 were present at the shop of Karunamai General Stores and PW-1 who is a clerk in the said shop and PW-1 informed them the accused tendered two thousand rupees fake notes and they apprehended the accused and brought him to I Town Police station and PW-1 presented a complaint with the police and he also handed over fake currency notes to the police. During the cross-examination he admitted the distance between the police station and the Karunamai stores is about half a kilometer and they went to the police station by 5.30 p.m., and he did not disclose to the police that himself and Jagadesh reddy were standing on the steps of Karunamai General stores and the PW-1 informed that the accused tendered fake currency notes and they do not maintain any shop as such for their cable network and they have given cable connection to the shops and the houses to the said area. He do not know the name of the friend of PW-1 who scribed Ex.P-1 and the said friend visited the police station in connection with some other work. The police visited the shop of PW-1 at about 6.30 p.m., Further he admitted in his cross-examination for the suggestion that on 20.07.2011 he attended cable network in the house of MK Sitaramayya in between 2 and 9.00 p.m., and that he is deposing falsehood. So except mere suggestion nothing useful elicited to discard the evidence of PW-2. Therefore, the evidence of PW-2 go to show that PW-1 informed him and one Jagadesh Reddy that the accused tendered two thousand rupee fake notes which are fake one and on that they apprehended the accused and brought him to I Town police station . The remaining witnesses i.e., PW-3 in whose presence the fake currency notes were seized under Mos 3 to 46 from the possession of the accused under the cover of Ex.P-2 Mediator report. Thereafter PW-6 interrogated the accused before PW-3 and another mediator and in their presence the accused confessed and produced 44 fake thousand rupee denomination notes. PW-6 recorded the confessional statement of the accused and seized the same in the presence of PW-3 and another mediator under Ex.P-2. As seen from Ex.P-2 admission portion of confession of the accused, which is marked as Ex.P-2 in the mediators report. During the cross-examination of PW-3 it is suggested by the accused and PW-3 admitted that by the time they went to the police station the accused was in the custody of police and Ex.P-2 it is not recited the S.I., showed him the Mos1 and 2 also. And he signed in English and one constable scribed the confessional cum-seizure report and Mos-3 to 46 were not seized in his presence and he is deposing falsehood. Except that absolutely there is no denial from his evidence that the accused did not confess anything and did not give any confessional statement and did not produce MOs 3 to 46 under cover of Ex.P-2 confessional statement of the accused. Since there is no denial with regard to the confession, it can be safely come to a conclusion that the confessional statement recorded by PW-6 in the presence of 10IV ADJ COURT, VSP, S. C.No.125/2011

PW-3 and another mediator is true and correct and it is proved beyond all reasonable doubt. Therefore, the apprehension of the accused and contention of the accused and recording of confessional statement and seizure of Mos-3 to 46 and MOs 1 and 2 are proved beyond all reasonable doubt from the evidence of PW-3 and PW-6.

11.So, whether the Indian currency notes seized from the accused under Mos-3 to 46 are fake one or not and in order to prove the same the prosecution examined PW-4 who is the Asst.Director, FSL, Hyderabad. In his evidence he categorically stated that he received 46 notes of thousand rupee denomination and he mentioned the numbers of the notes in his report furnished to the police and he examined these notes and compared the same with genuine thousand rupee notes available with them and on such examination and also of conducting alternative test, he found these 46 notes of thousand rupee denomination are fake and counterfeit notes. And Ex.P-3 is the report containing his opinion. During the cross-examination he admitted that they are under the control of police department and he examined the fake notes on 07.06.2011 and he denied the suggestion that he did not examine Mos-1 to 46 and issued Ex.P-3. Except mere suggestion absolutely there is nothing to suggest that his evidence is remained unchallenged. Therefore, the evidence of PW-4 clearly established tht Mos-1 to 46 are fake currency notes.

12. The evidence of PW-5 who filed the charge sheet and PW-6 is Investigating officer and his evidence also goes to show that on 27.02.2011 PW-1 visited the police station and lodged Ex.P-1 report and he registered the same as present No.34/2011 u/s 489-B and 489-C of IPC and issued FIR under Ex.P-4 and PW-1 produced the accused along with two counterfeit thousand rupee denomination notes bearing No. JAD 894120 and JAD 885179 and PW-1 accompanied by PWs-2 and LW-3 and he took up investigation, and kept the accused under survilance and examined and recorded the statements of witnesses, visited the scene of offence and observed the same and prepared the observation report and in the presence of mediators PW-3 and another LW-5, recorded the confession statement of the accused with the help of PW-3 who knows Hindi and recorded the confessional statement of accused. And handed over 44 fake currency notes of thousand rupee denomination and seized under cover of Ex.P-2 mediator report and their HC recorded the confession statement on his dictation and thereafter he also seized two notes Under Mos-1 and 2 directly from PW-1 and they were handed over to him and later he arrested the accused and sent him for judicial custody and on 12.03.2011 he sent 46 fake notes to the Asst. Director FSL, Hyderabad thorugh ACP along with letter of advice and he mentioned serial number of fake notes in the letter of advise and Ex.P-5 is the letter of advise and in the 11IV ADJ COURT, VSP, S. C.No.125/2011 meanwhile he was transferred and his successor PW5 after receipt of FSL report and after completion of the investigation he filed the charge sheet against the accused.

13. During the cross-examination of PW-6, he admitted that he has not prepared any rough sketch and also any observation report from the scene of offence and he has not examined the owner of the Karunamayi stores and he has not cited his H.C., as witness and no identification slips affixed on the fake notes and one hour after registering Ex.P-4 FIR he has seized the remaining contraband from the accused. And he himself produced the same and and there is a correction at Ex.P-1 in his endorsement at the place of time Ex.P-1 and mediator report are in Telugu and the accused does not know Telugu. He did not seize scanning machine and and the letter of advise Ex.P-5 is not containing seal of their station and he denied the suggestion that he did not sent the contraband to FSL through their ACP under letter of advise.

14.Therefore, the evidence of PW-6 crystal clear and categorically established the receipt of Ex.P-1 report and seizure of MO-1 and 2 and the accused, registering of FIR, visiting the scene of offence and detained the accused in the station and thereafter in the presence of mediators he examined and interrogated the accused and recorded his confessional statement and seized MO-3 to 46 from his possession and arrest of the accused and sending the fake currency notes to the FSL Hyderabad and after receipt of report and after completion of the investigation he filed the charge sheet.

15.Though it is contended by the learned counsel for the accused, those are minor in nature cannot be taken into consideration. Therefore, the evidence of PWs-1 to 6 categorically established the ingredients of Sections 489 B and 489 C of IPC in all material aspects and therefore, it can safely come to conclusion that the prosecution proved the guilt of the accused beyond reasonable doubt. Thus, these two points are answered in favour of the prosecution and against the accused.

16.POINT NO.3:-

In view of the discussion and findings rendered under Point Nos.1 and 2, it is manifest that the prosecution proved the guilt of the accused beyond all reasonable doubt. Thus, this point is answered accordingly in favour of the prosecution and against the accused.

12IV ADJ COURT, VSP, S. C.No.125/2011

17.In the result, I find the accused is guilty of the offence punishable under section 489-B and 489-C of IPC with which he is charged and consequently, he is convicted under section 235(2) of Cr.P.C.

Dictated to the Shorthand Writer, transcribed by him, corrected and pronounced by me in

open Court, this the 15th day of May, 2012.

Sessions Judge – Mahila Court

FAC-IV Addl. District & Sessions Judge Visakhapatnam

Dt: 16.05.2012:

Hearing of the accused with regard to the quantum of sentence to be imposed against the accused:

1. When questioned with regard to the quantum of sentence to be imposed against him, the accused submitted that he got old parents who are dependents on him and he is bread winner of his family and if he is sent to jail, his family members strive for starvation and therefore, prays the court to take a lenient view and also release him as a first offence and also prays to release him under section 360 of Probation of Offenders Act.

2. Since, the alleged offence is severe and grave offence in nature, I am not inclined to accept the plea of the accused, since the accused is deserved for severe punishment as he committed a ghastly offence, hence, he is sentenced to undergo Rigorous

Imprisonment for a period of 2 (Two) years and also to pay a fine of Rs.2,000/-

(Rupees two thousand only) IDSI for three months for the offence U/s. 489-B of

IPC and also sentenced to undergo R.I. for for a period of 2 (Two) years and also to pay a fine of Rs.2,000/- (Rupees two thousand only) IDSI for three months for the offence U/s. 489-C of IPC. Both the sentences shall run concurrently. Mos-1 to 46 shall be handed over to the concerned Police for being forwarded to the

Issue Department of the Reserve Bank of India, with a brief report of the case after the appeal time is over. The remand period from 28.02.2011 to 16.05.2012 undergone by the accused, shall be given set-off.

Dictated to the Personal Assistant transcribed by him corrected and pronounced by me

in open Court, this the 16th day of May, 2012.

Sessions Judge – Mahila Court

FAC-IV Addl. District & Sessions Judge Visakhapatnam 13IV ADJ COURT, VSP, S. C.No.125/2011

APPENDIX OF EVIDENCE

No. of witnesses examined for:

PROSECUTION: DEFENCE:

P.W.1 : Ramatota Chandra Sekhar. -NONE- P.W.2 : B.Srinivasa Rao. P.W.3 : M.Srinivas. P.W.4 : G.Srinivasa Murthy. P.W.5 : A.Satya Rao. P.W.6 : K.Krishna.

No. of Exhibits marked for:

PROSECUTION:

EX.P1 : Report given to police by PW.1. Ex.P2 : Relevant portion in the confessional statement of accused evidencing the seizure of notes. Ex.P3 : Report containing opinion. Ex.P4 : Regd. F.I.R. Ex.P5 : Letter of Advise.

DEFENCE: NIL.

Material Objects Marked

MO-1 : Fake currency note of Rs.1000/-. MO-2 : Fake currency note of Rs.1000/-. MO-3 to 46: 44 fake currency notes seized which is mentioned in Ex.P2.

Sessions Judge – Mahila Court

FAC-IV Addl. District & Sessions Judge Visakhapatnam Copies to:

1. The Registrar(Judl.,)High Court of A.P.,Hyderabad (C.D.).

2. The Commissioner of Police, Visakhapatnam

3. The Addl. Public prosecutor (Sri M.Venu Gopala Rao)

4. The Accused.

5. The Chief Metropolitan Magistrate, Visakhapatnam. (The Lower Court is directed to depute one responsible person to take back the Fake Currency notes for appropriate action).

1

IN THE MOTOR ACCIDENTS CLAIMS TRIBUNAL­CUM­ 

II ADDL. DISTRICT JUDGE :: VISAKHAPATNAM

Present : Sri N. Raja Prasad Baba, B.A.,L.L.B., VI Addl. District Judge, FAC II Addl. District Judge, Visakhapatnam.

Monday, this the 16 th day of April, 2012

M.O.P.NO.626/2008.

Between :

1. Korada Appa Rao, S/o late Mutyalu, Hindu, aged about 60 years, R/at D.No.17­100, Tadi Doddi, Old Gopalapatnam, Gopalapatnam, Visakhapatnam – 27

2. Korada Venkata Krishna Murthy, S/o K.Appa Rao, Hindu, aged about 35 years, ­Rest do­

3. Korada Venkata Krishna, S/o Appa Rao, Hindu, aged 30 years, ­Rest do­

4. Korada Appala Raju, S/o Appa Rao, Hindu, aged about 25 years, ­Rest do­…Petitioners

And 

1. D.Mohan Rao, S/o Prakasam, Hindu, aged 40 years, Auto Owner­cum­ Driver, R/at D.No.23­19­6, Sitramanagar, B.C.Road, Gajuwaka, Visakhapatnam­26.

2. M/s. IFFCO TOKIO General Insurance Co., Ltd., Regd. Office No.3, D.No.47­11­8, G.K.Towers, Dwarakanagar, Visakhapatnam­16 rep., by its Branch Manager.

3. M/s IFFCO TOKIO General Insurance Co., Ltd., Regd.Office no.34, Nehru Place, New Delhi­110019, Rep., by its Director. …Respondents.

This petition is coming on 12.04.2012 for final hearing before me in the presence of Sri Y.V.L.Narasimha Murthy, Advocate for petitioners and Sri 

M.Nagesh, Advocate for R.2 and R.1 having set exparte and the matter having stood over for consideration till this day, this Court delivered the following :

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O R D E R 

This petition is remanded by the Hon'ble High Court by its Judgment dt. 

17.08.2011 rendered in M.A.C.M.A.No.495/2011 whereby the Hon'ble High Court was pleased to set aside the Order dt. 20.09.2010 passed by the learned predecessor of this court in the above MOP No.626/2008, for fresh disposal in accordance with law.

2.The above Petition was disposed of by the learned Predecessor of this 

Court vide his Judgment dated 20.09.2010 wherein he allowed the claim of the petitioners­claimants, granting compensation of Rs.3,37,000/­ with interest @ 7.5% p.a., from the date of petition against the 1st respondent­owner of the crime vehicle, and dismissed the claim against the 2nd and 3rd respondents/Insurance company, without costs. While dismissing the claim against the 2nd and 3rd respondents/Insurance company, the learned Predecessor of this court has directed them to pay the compensation amount to the petitioners­claimants and recover the same from the owner of the crime vehicle within one month from the date of the Award, by filing Execution Petition. 

3.Aggrieved by the direction given by the learned Predecessor of this court by his Judgment dt.20.09.2010 in MOP 626/2008 with regard to the payment of compensation amount to the petitioners at the first instance and recover the same from the 1st respondent/owner of the crime vehicle, the 2nd and 3rd respondents ­Insurance company had preferred an appeal before the Hon'ble High Court. 

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4.After hearing both sides, the Hon'ble High Court vide its Judgment

dt. 17­08­2011 in M.A.C.M.A.No.495/2011, was pleased to set aside the Order dt. 

20.09.2010 passed in the above MOP and noted the following observations:

“There is apparent contradiction in the impugned order, which on one hand dismissed the claim application against the respondents 2 and 3­Insurers and on the other hand gave a direction that they shall pay the amount as the vehicle was admittedly insured with the insurance company and the claimants being the third parties'. 

Holding that the Insurer is liable to satisfy the claim of the third party under the terms of the policy is one thing and directing the Insurance company to pay the amount that they are liable to pay and recover the said amount from the owner of the vehicle is quite another. The intention of the Tribunal as to which of the two courses is sought to be adopted is not clear from the findings recorded and directions issued in the impugned order. The impugned order, owing to the apparent contradictions and the findings and directions, does not make the intention of the Tribunal clear and explicit. “ 

Thus, the Hon'ble High Court while setting aside the Order dt. 

20.09.2010 passed in the above MOP by the learned predecessor of this court, remanded the same to this Court for fresh disposal in accordance wit law.

5.Subsequent to the receipt of copy of Judgment in M.A.C.M.A.No. 495/2011 

dt. 17.08.2011 for remanding the above matter to this court for fresh disposal, on 

24.09.2011, this court issued notices to both parties for adducing further evidence if any. Inspite of the opportunity given to both parties, neither petitioners nor the respondents did let­in any evidence either oral or documentary except marking 

Ex.A­9 attested true copy of Calender and Judgment dt. 16.08.2010 in 4

CC.No.565/2007 on the of III Metropolitan Magistrate, Visakhapatnam, on behalf 

of the petitioners.

6.After remand, this Court heard the arguments advanced by the respective counsels of both parties. 

7.Thus, it is pertinent to mention here, the brief facts of respective parties for proper adjudication and disposal of the above matter. 

The 1st petitioner­the husband, the petitioners 2 to 4­the sons of the deceased Smt. Korada Appalanarasamma filed the above petition claiming compensation of Rs.3,37,000/­ for the death of the deceased in a motor road accident involving the auto rickshaw bearing No. AP 31 X 4498 belonging to the 1st respondent, insured with the 2nd and 3rd respondents. 

8.On 15.07.2002 at about 12.00 noon, while the deceased Korada 

Appalanarasamma, was crossing the road opposite to Gayatri Medical shop, the crime vehicle auto bearing No.AP 31 X 4498 belonging to the 1st respondent, came in a rash and negligent manner and dashed the deceased as a result, she fell down and sustained grievous injuries. Immediately she was shifted to K.G.Hospital on 108 ambulance where she succumbed to injuries. The V Town Police station, 

Visakhapatnam also registered a case in Cr.No.126/2007 under section 304­A of 

IPC against the driver of the auto rickshaw. At the time of accident, the deceased aged 49 years and earning Rs.100/­ per day by running a pan shop and contributed her earnings to the family and due to sudden demise of the deceased, the petitioners who are dependents on the earnings and contribution of the 5 deceased, sustained lot of mental agony and hardship. Thus, they sought compensation of Rs.3,37,000/­ from the respondents 1 to 3 jointly and severally for the death of the deceased in the above accident. 

9.The 1st and 2nd respondents are remained exparte.

10.The 3rd respondent­Insurance company filed its counter denying the material allegations in the petition and further they denied the avocation and earnings of the deceased and put the petitioners with strict proof. Further according to them, the driver of the auto rickshaw was not having a valid and an effective driving licence at the time of accident and the policy also registered a case against the driver of the auto U/s.304­A of IPC and 181 of MV Act as such, the owner of the crime vehicle has violated the terms and conditions of the policy and the owner of the crime vehicle solely liable to pay the compensation and they are not liable to pay any compensation. The compensation as claimed by the petitioners is excessive and exaggerative and thus, they sought for dismissal of the petition. 

11.Basing on the above pleadings the following issues are formulated by my learned Predecessor of this court for trial.

1.Whether the accident occurred on account of the rash and negligent driving of the vehicle bearing No. AP 31 X 4498 (Auto Rickshaw) by its driver?

2. Whether the petitioners are entitled to compensation? If so, to what amount and from whom?

3.To what relief?

12.After completion of the proceedings subsequent to remand the above matter, this court is of the considered view that it is not necessary to formulate any 6

additional issues or to recast the Issues already framed by the Predecessor of this 

court. 

13.Issue No.1: ­

Before remand the above matter, the 1st petitioner, who is the 

husband of the deceased Korada Appalanarasamma, himself was examined as

PW­1 and he reiterated the allegations in the petition and he exhibited Exs.A­1 to 

A­8 which are Death certificate of the deceased; Attested true copies of Inquest report and Post Mortem reports, F.I.R., Insurance policy, Photographs showing the pan shop, C­Book and permit of the crime vehicle.

14.After remanding the above matter from the Hon'ble High Court, the 

Petitioners exhibited certified copy of the Calender and Judgment dt. 16.08.2010 in 

CC.No.565/2007 on the file of III Metropolitan Magistrate, Visakhapatnam, and 

the same is marked as Ex.A­9 with consent.

15.Admittedly PW­1 is not an eye­witness to the occurrence. To prove the accident occurred due to rash and negligent driving of the auto rickshaw belonging to the 1st respondent who is the driver­cum­owner, the petitioners also examined one Gudimetla Sudhir Kumar, as PW­2 who is an eye witness to the occurrence and he testified in his evidence that he witnessed the accident occurred on 15.07.2007 at 12.00 noon when the crime auto was coming from NAD 

Kotha road side to Gopalapatnam in a rash and negligent manner driven the the 1st respondent and hit the deceased while she was crossing the road from Gayatri medical shop to Magaa Shopping Center side and the deceased fell on the road and sustained grievous injuries and she was shifted to K.G.Hospital for treatment 7 on 108 ambulance where she succumbed to injuries. He further testified in his evidence that he lodged a report with the police. Though he was subjected to cross­examine at great length, nothing could be elicited to discredit his trustworthiness.

14.As against the above evidence, the respondents examined one Emandi 

Bangaru Thata, Head constable, Kancharapalem Traffic Police station, during the relevant period as RW­1 and he testified in his evidence that as the driver of the auto did not produce driving licence to drive the crime vehicle auto bearing No.AP 31 X 4498, and the driver was charge sheeted U/s. 304­A of IPC and Section 181 of 

MV Act. Through RW­1, Ex.X­1 charge sheet was marked. The respondents­

Insurance company has also examined one P.Srinivasa Rao, its Relationship 

Executive as RW­3 and he reiterated the allegations in the counter filed on behalf of the 3rd respondent and in fact neither RW­1 nor RW­3 disputed anything with regard to the occurrence of the accident due to rash and negligent driving of the auto by the 1st respondent, who is owner­cum­driver at the time of accident. It is evident that the policy after due investigation, laid the charge sheet against the 1st respondent, who is the driver of the auto in question under section 304­A of IPC. 

Thus, the testimony of PWs­1 and 2 coupled with Exs.A­2 to 4 and Ex.X­1 would clearly prove that on account of rash and negligent driving of the auto rickshaw by the 1st respondent, this accident was occurred in which accident, the deceased sustained grievous injuries and ultimately succumbed to injuries. Hence, this issue is decided accordingly.

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15.ISSUE No.2:

In this regard, it is pertinent to mention here, the apparent contradictions noted by the Hon'ble High Court, in the findings rendered by the learned Predecessor of this court in Issue No.2 are as follows: 

'Therefore, it is proved by the Insurance company that the driver cum­owner of the said vehicle had no valid driving licence at the time of the accident. So, the terms of insurance policy are clearly violated. So, the Insurance company is not liable to indemnify the owner of the said vehicle. So, the Insurance company is not liable to pay compensation to the petitioners. Only, the owner who is the first respondent is liable to pay compensation to the petitioners. 

15.In view of the directions given by the Hon'ble High Court in the appeal, this court once again reiterate the evidence adduced by the both parties to come to a right conclusion on Issue No.2. 

In this regard, as can be seen from the material available on record that the 1st petitioner­the husband and the petitioners 2 to 4 are the sons of the deceased 

Korada Appalanarasamma, who met with the above accident and succumbed to injuries. It is not in dispute about the relationship of petitioners with the deceased and a perusal of Ex.A­7 Legal heir certificate, would clearly reveal the relationship of petitioners with the deceased. Admittedly, the respondent did not dispute the said factum. Therefore, it is evident from the material available on record, that the 1st petitioner is the husband and the petitioners 2 to 4 are sons of the deceased and the respondents also did not dispute the same. Here it may be noted that the 2nd petitioner was also examined PW­3 and he reiterated the allegations in the petition. Though he was cross­examined by the respondents, nothing could be elicited to discredit his trustworthiness.

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14. On the other hand, it is the specific contention of the respondents that the driver of the auto in question, was not having a valid and effective driving licence to drive the auto rickshaw on the date of accident. In order to establish the said factum, the respondents examined one Emandi Bangaru Thata, Head constable, 

Kancharapalem Police station during the relevant period as RW­1 and he testified in his evidence that the driver was charge sheeted under Section 304­A of IPC and 

Section 181 of MV Act and as there is no driving license (not produced) to drive the crime vehicle auto bearing No.AP 31 X 4498, the charge sheet was filed accordingly. Through him Ex.X­1 charge sheet was marked. When coming to the cross­examination, he pleaded ignorance as to whether the driver obtained the driving licence subsequently, and also as to whether the III Metropolitan 

Magistrate, Visakhapatnam did not charge the driver/accused for the offence 

punishable u/s 181 of MV Act. As seen from Ex.A­9 Certified copy of Calender and Judgment in CC.No.565/2007, the learned Magistrate had given his findings only on the charge under Section 304­A of IPC against the driver of the auto. 

15.That apart, the Insurance company also examined one V.A.Krishna Mohan, 

Senior Assistant, R.T.A.Office, Visakhapatnam as RW­2 and he testified in his evidence that the driver of the vehicle in question, has got licence to drive transport and non­transport vehicles and the transport licence is valid till 31.05.2001 and non­transport licence is valid till 31.05.2003. Through him, Ex.X­2 the driving certificate of the driver i.e., 1st respondent is marked. Admittedly, the above accident was occurred on 15.07.2002 by the date, the 1st respondent was holding a non­transport licence valid till 31.05.2003 as per Ex.X­2 attested true 10 copy of Driving licence of R­1 and the vehicle in question is also duly insured with the 2nd respondent as on the date of the accident. 

16.In this context, the learned counsel for the petitioners/claimants relied on a decision in the case of National Insurance Co.Ltd.,­Appellant Vs. Naresh Kumar 

and others... Respondents reported in 2004 ACJ 1225 wherein, their Lordship of 

Hon'ble High Court of Allahbad, denied the contention of Insurance company that 

the driver was not holding a valid driving licence at the time of accident and whether violation of terms and conditions subject to which the Insurance policy was issued, can have the effect of exonerating the insurance company from its statutory liability to a third party. Their Lordships further held that it is open to 

Insurance company to initiate appropriate proceedings for refund of amount by the insured on establishing breach.

17.Admittedly, the 1st respondent who is the owner­cum­driver of the auto rickshaw in question involved in the aforesaid accident, was set exparte. The 

Respondents/Insurance company did not take any steps to summon and examine the 1st respondent to substantiate their contention. In this connection the learned counsel for the petitioners relied on a decision in the case K.Sathyanarayana Vs. 

Vijayalaxmi & another, reported in 2010 (2) ALT 24 wherein His Lordship of our own Hon'ble High Court held that ' driver is the proper person to speak on the aspect of having valid driving licence and the insurance company has not taken steps to examine driver to elicit necessary information as to the existence of licence and hence, Insurance company held liable to pay compensation. Further His 

Lordship held that Insurer cannot exonerate itself from liability to pay  11 compensation on the ground that driver of vehicle involved in accident was not having valid driving licence at the time of accident without examining him to elicit the necessary information on that aspect. 

18.Here it is pertinent to mention, Section 147 (5) of Motor Vehicles Act, 1988 reads as follows: – Requirements of policies and limits of liability : Notwithstanding anything contained in any law for the time being in force, an Insurer issuing a policy of insurance under this section shall be liable to indemnify the person or classes of persons specified in the policy in respect of any liability which the policy purports to cover in the case of that person or those classes of persons.

19.The learned counsel for the petitioners further relied on a decision in the case of National Insurance Co.Ltd., Vs. Swaran Singh; reported in 2004 ACJ 1 Supreme Court., wherein the Hon'ble Apex Court held that though the driver was not having valid driving licence on the date of accident that itself is not sufficient for the insurance company to avoid its liability and that the insurance company must prove that the main cause for occurring the accident is because of the driver not holding the driving licence.  Admittedly the Insurance company did not summon or examine the driver of the auto rickshaw in question involved in the accident, to prove that the insured had violated the terms and conditions of the policy knowingly and willfully. Thus, the constrained plea of the learned counsel for the petitioners is that the liability of the Insurance company is statutory liability and the insurance company has to satisfy the claims of the third parties and then recover the same from the owner of the vehicle.

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20.That apart, the counsel for the petitioners further relied on another decision in the case of New India Assurance Co.Lrd., Secunderabad Vs. K.Devi and others ... 

reported in 20111 (5) ALD 485 wherein His Lordship of our Hon'ble High Court held that As per section 149(2)(a)(ii) of the Act, it is not sufficient to prove by the insurance company that the driver was not duly licensed, but they have to prove that he was disqualified for obtaining a driving license during the period of disqualification. Moreover, the Hon'ble Apex Court comprising of three judges 

Bench in 2004 ACJ 1 SC and 2004(2) ALD 36 SC – categorically held that the liability of the insurer is statutory one, the liability of the insurer to satisfy the decree in favour of the third party is also statutory. It was further held that the Insurance companies have to specifically plead and prove the same. In para ­13 of the 

Judgment, it is held that ' even where the insurer is able to prove breach on the part of the insured concerning the policy condition regarding holding of a valid licence by the driver or his qualification to drive during the relevant period, the insurer would not be allowed to avoid its liability towards insured unless the said breach or breaches of the conditions of driving licence is/are fundamental as are found to have contributed to the cause of the accident.

21.Therefore, basing on the above findings and observations made in various decisions rendered by the Hon'ble Apex Court and various High courts, it is manifest that even when the driver of crime vehicle had no valid driving licence, the Insurance company does not exonerate its liability from payment of compensation amount to be awarded to the third parties. In a decision in the case of United India Insurance Co.Ltd. Vs. Smt.Archana Srivastava & Others; reported 13 in 2010(2) An.W.R. 856 (DB)(All), wherein it is held that 'because the driver of offending vehicle had no valid driving licence, Tribunal authorized Insurance company to recover the amount from the owner of vehicle after satisfying the award.

22.Now, the claim of the petitioners is concerned, the petitioners contended that the deceased is earning Rs.3,000/­ p.m., by carrying pan shop business. As seen from the evidence of PW­1, he testified that he is doing panshop business and the said Pan shop is standing in the name of the deceased. However, he denied the suggestion posted by the respondents/Insurer with regard to proof of any income of the deceased. Admittedly, the petitioners, except their oral testimony, have not produced any piece of documents showing the avocation and income of the deceased as on the date of accident. But taking into consideration, the age of the deceased who was 49 years old, on the date of accident, it is reasonable to expect the woman age of the deceased can easily earn Rs.3,000/­ (Rupees three thousand only) per month. If 1/3rd of the amount is deducted from Rs.3,000/­, towards personal expenses, her earnings can be reckoned as Rs.2,000/­ per month and it comes to Rs.24,000/­ per annum. For the age of the deceased the appropriate multiplier is as per II Schedule is “13”. If Rs.24,000/­ is multiplied by “13”, it comes to Rs.3,12,000/­(Rupees three lakhs twelve thousand only). Apart from this amount the 1st petitioner, being the husband of the deceased, is entitled to compensation for loss of consortium, and loss of love and affection and loss of estate. So, a sum of Rs.15,000/­ (Rupees fifteen thousand only) towards loss of consortium; and a sum of Rs.5,000/­ (Rupees five thousand only) towards loss of 14 love and affection; and another sum of Rs.5,000/­ (Rupees five thousand only) towards funeral expenses is granted to meet the ends of justice. Put together the petitioner is entitled for compensation of Rs.3,37,000/­ (Rupees three lakhs twenty seven thousand only) from the respondents 1 to 3 jointly and severally.

23.Thus, in view of the above discussion and findings and also basing on the observations made by the Hon'ble Apex Court and various High Courts, this court is of the considered view that the Respondents 1 to 3 are jointly and severally liable to pay the above compensation awarded to the petitioners and the respondents 2 and 3/insurers are directed to deposit the award amount along with interest and they are entitled to recover the same from the owner of the vehicle in question i.e., 1st respondent by initiating a separate proceedings on account of the vehicle in question being driven in violation of the conditions of the Insurance policy. Thus, the Issue is decided accordingly. 

24.POINT No.3: ­

In the result, the petition is allowed, awarding compensation of 

Rs.3,37,000/­ (Rupees three lakh thirty seven thousand only) in favour of the petitioners and against the respondents 1 to 3 jointly and severally with costs and interest at 7.5 % p.a., from the date of petition i.e., 28.08.2008 till the date of Order and the interest at the rate of 6% p.a., from the date of Order till the date of realization. The 2nd and 3rd respondents/Insurers are directed to deposit the compensation amount together with interest at the first instance and then recover the same from the owner of the auto in question i.e., 1st respondent by initiating 15 separate proceedings. The time for deposit of compensation amount is one month from the date of this Order.

Out of total compensation amount, the 1st petitioner, being the husband of the deceased, is entitled to a sum of Rs.1,27,000/­ (Rupees One lakh twenty seven thousand only) and the petitioners 2 to 4 are entitled to the remaining the amount of Rs.2,10,000/­ in equal shares. On deposit, the 1st petitioner is entitled to withdraw a sum of Rs.50,000/­(Rupees fifty thousand only) together with interest accrued to his share. The petitioners 2 to 4 are entitled to withdraw a sum of 

Rs.30,000/­ (Rupees thirty thousand) each out of their respective shares together with interest accrued to their respective sh ares. The remaining share amounts of respective petitioners 1 to 4 shall be kept in Fixed Deport in any Nationalized Bank for a period of one year. Advocates' fee is fixed at Rs.1,000/­ (Rupees one thousand only) each.

Typed to my dictation, corrected and pronounced by me in open Court, this the 16th day of April, 2012.

VI Addl. District Judge FAC­ II Addl. District Judge ­cum­CHAIRMAN, M A C T Visakhapatnam.

APPENDIX EVIDENCE

BEFORE REMAND THE WITNESSES EXAMINED 

FOR PETITIONERS: FOR RESPONDENTS:

P.W.1 : K.Appa RaoR.W.1: E.BangaruThata P.W.2 : G.Sudheer KumarR.W.2: V.A.Krishna Mohan P.W.3 : K.Venkata Krishna MurthyR.W.3: P.Srinivasa Rao 16

BEFORE REMAND THE DOCUMENTS MAKRED 

FOR PETITIONERS:

Ex.A.1: Death Certificate of K.Appalanarasamma, dt: 18.8.2007 Ex.A2 : Xerox Copy of Inquest Report of K.Appalanarasamma, dt: 16.7.7 Ex.A3 : Xerox copy of Post Mortem report dt:16.7.2007 Ex.A4 : Xerox copy of FIR dt: 15.7.2007 Ex.A5 : Xerox copy of Insurance Policy dt: 14.9.07 Ex.A6 : Photographs of Panshop EX.A7 : Xerox copy of “C” Book Ex.A8 : Xerox copy of vehicle permit

FOR RESPONDENTS:

Ex.X.1 : Certified copy of charge sheet Ex.X.2 : Driving Licence of D.Mohan Rao

AFTER REMAND THE DOCUMENTS MAKRED 

FOR PETITIONER:

Ex.A­9: Certified copy of the Calender and Judgment in C.C.565/2007, Dt.16.08.2010 on the file of III M M.Court, Vsp ­ with consent. 

FOR RESPONDENTS: NIL

VI ADJ, 

FAC II ADJ/VSP 17

Date of Presentation:28.08.2008Date of Filing:12.09.2008

IN THE MOTOR ACCIDENTS CLAIMS TRIBUNAL­CUM­ 

II ADDL. DISTRICT JUDGE :: VISAKHAPATNAM

Present : Sri N. Raja Prasad Baba, B.A.,L.L.B., VI Addl. District Judge, FAC II Addl. District Judge, Visakhapatnam.

Monday, this the 16 th day of April, 2012

M.O.P.NO.626/2008.

Between :

1. Korada Appa Rao, S/o late Mutyalu, Hindu, aged about 60 years, R/at D.No.17­100, Tadi Doddi, Old Gopalapatnam, Gopalapatnam, Visakhapatnam – 27

2. Korada Venkata Krishna Murthy, S/o K.Appa Rao, Hindu, aged about 35 years, ­Rest do­

3. Korada Venkata Krishna, S/o Appa Rao, Hindu, aged 30 years, ­Rest do­

4. Korada Appala Raju, S/o Appa Rao, Hindu, aged about 25 years, ­Rest do­ …Petitioners

And 

1. D.Mohan Rao, S/o Prakasam, Hindu, aged 40 years, Auto Owner­cum­ Driver, R/at D.No.23­19­6, Sitramanagar, B.C.Road, Gajuwaka, Visakhapatnam­26.

2. M/s. IFFCO TOKIO General Insurance Co., Ltd., Regd. Office No.3, D.No.47­11­8, G.K.Towers, Dwarakanagar, Visakhapatnam­16 rep., by its Branch Manager.

3. M/s IFFCO TOKIO General Insurance Co., Ltd., Regd.Office no.34, Nehru Place, New Delhi­110019, Rep., by its Director. …Respondents.

This petition is filed under Section 166 of Motor Vehicles Act claiming compensation of Rs.3,37,000/­ on account of the death of Korada 18

Appalanarasamma in a motor accident occurred on 15.07.2007 at 

Butchirajupalem at 12.00 Noon with subsequent interest at the rate of 18% p.a. 

and costs of the petition.

The amount claimed by the petitioners is Rs.3,37,000/­ and a court fee of 

Rs.2,730/­ is paid under Rule 475(1) of A.P.M.V.Rules.

This petition is coming on 12.04.2012 for final hearing before me in the presence of Sri Y.V.L.Narasimha Murthy, Advocate for petitioners and Sri 

M.S.Nagesh, Advocate for R.2 & 3 and R.1 having set exparte and the matter having stood over for consideration till this day, this Court doth Order; and 

D E C R E E

1. That the petition be and the same is hereby allowed;

2.that the the respondents 1 to 3 jointly and severally liable to pay a sum of Rs.3,37,000/­ (Rupees three lakhs thirty seven thousand only) towards compensation to the petitioners with costs and interest at 7.5 % p.a., from the date of petition i.e., 28.08.2008 till the date of Order and the interest at the rate of 6% p.a., from the date of Order till the date of realization;

3. that the respondents 1 to 3 do pay to the petitioners a sum of Rs.3,831/­ (Rupees Three thousand eight hundred and thirty one only) towards costs of the petition; 

4.that the 2nd and 3rd respondents/Insurers are directed to deposit the compensation amount together with interest at the first instance and then recover the same from the owner of the auto in question i.e., 1st respondent by initiating separate proceedings.

5. That the time for deposit of compensation amount is one month from the date of this Order;

6.that on such deposit, the 1st petitioner, being the husband of the deceased, is entitled to a sum of Rs.1,27,000/­ (Rupees One lakh twenty seven thousand only);

7.that the petitioners 2 to 4 are entitled to the remaining amount of Rs.2,10,000/­ in equal shares; 19

8.that the 1st petitioner is entitled to withdraw a sum of Rs.50,000/­(Rupees fifty thousand only) together with interest accrued to his share;

9.that the petitioners 2 to 4 are entitled to withdraw a sum of Rs.30,000/­  (Rupees thirty thousand) each out of their respective shares together with interest accrued to their respective shares; and

10. that the remaining share amounts of respective petitioners 1 to 4 shall be kept in Fixed Deport in any Nationalized Bank for a period of one year.

Given under my hand and the seal of the Court this the 16th day of April, 2012.

VI Addl., District Judge, FAC Chairman, MACT­cum­ II Addl., District Judge, Visakhapatnam.

MEMORANDUM OF COSTS

For Petitioners: For Respondents:

Stamp on Vakalat 2­00 No costs memo is filed. Stamp on Petition 2,730­00 Stamp on Process 99­00 Advocate's fee (Fixed by Court) 1,000­00 ­­­­­­­­­­­ Costs allowed: Rs.3,831­00 ========

VI ADJ, 

FAC­II ADJ/VSP

IN THE COURT OF SPL. SESSIONS JUDGE FOR SC & ST CASES- CUM -

ADDL. DISTRICT & SESSIONS JUDGE, VISAKHAPATNAM.

Present: Sri N.Raja Prasad Baba, B.A., LL.B., VI Addl. District Judge FAC-Spl. Judge for SC & ST cases -cum-Addl. District Judge, Visakhapatnam. Tuesday, the 2 nd day of April, 2013

A.S.No:30/12

Between: Chintalapati Butchi Bangaramma, W/o Butchi Bangarraju, Hindu, aged 57 yrs., House wife, Residing at lot No:147, Resapuvanipalem,

Visakhapatnam. ... Appellant

And: The Greater Visakhapatnam Municipal Corporation, Represented by its Commissioner,

GVMC Office, Visakhapatnam. ... Respondent

Appeal preferred against the Decree and Judgement in O.S. No:1405/09 on the file of II Additional Junior Civil Judge at Visakhapatnam.

Between: Chintalapati Butchi Bangaramma, W/o Butchi Bangarraju, Hindu, aged 57 yrs., House wife, Residing at lot No:147, Resapuvanipalem,

Visakhapatnam. ... Plaintiff

And: The Greater Visakhapatnam Municipal Corporation, Represented by its Commissioner,

GVMC Office, Visakhapatnam. ... Defendant

This appeal is coming on this day for final hearing before me in the presence of Sri G.V.S. Kishore Kumar, Advocate for the Appellant/Plaintiff and of Sri S. Krishna Mohan, Advocate for the Respondent/Defendant and the same having stood over for consideration, the court delivered the following:

J U D G M E N T

1.This appeal is filed by the Appellant/Plaintiff against the decree and judgement in O.S.NO:1405/2009, dt. 28-9-2011 on the file of the II

Additional Junior Civil Judge at Visakhapatnam.

2.The appellant herein is the Plaintiff in the trial court and the suit is filed for relief of permanent prohibitory injunction restraining the respondent/defendant and its representatives from ever interfering with the peaceful possession and enjoyment over the plaint schedule property. The parties are averred as they are in the suit proceedings.

3.The case of the plaintiff is that the plaintiff intended to construct first floor on the existing stilt and ground floors in a site measuring an extent of 359 sq. yrds. At Plot No:147 covered by Survey No.7 of

Resapuvanipalem, bearing D.No: 50-1-66/7, GVMC, Visakhapatnam. The plaintiff submitted necessary proposals to the defendant corporation.

The Defendant Authority issued a receipt acknowledging the same to the plaintiff. The plaintiff contends that the suit schedule property is located in a well developed area with pucca roads and drains and the

Defendant authority is collecting necessary taxes from the residents in the area. In the year 1995 the plaintiff intended to construct a dwelling house in the suit schedule property. The Defendant Authority tried to obstruct the construction of the plaintiff. The plaintiff filed O.S. No:

352/1995 before the II Additional Junior Civil Judge at Visakhapatnam for a permanent injunction. The suit was dismissed for non-issuance of

Section-685 Notice, however, the Honourable Court directed the

Defendant Authority to regularize the constructed building of the plaintiff by levying the necessary compounding fee vide its decree and

judgement dt. 11-11-1998.

4.Later, the plaintiff intended to construct the first floor on the existing stilt and ground floors, as per the plan issued by qualified surveyor, a notice was issued to the Defendant Authority and also the proposed date of construction and after waiting for the statutory period, the plaintiff proceeded with the construction in the suit schedule property. It is pleaded by the plaintiff that the construction is as per the statutory regulation under the Municipal Corporation Act, however the agents of the Defendant Authority intervened in the construction in an arbitrary and illegal manner and the same was thwarted by the friends and neighbors of the plaintiff and the plaintiff upon evidencing all the material proof in support of the construction in the first floor of the existing structure, the agents of Defendant Authority, having no other go, left from the suit schedule property, proclaiming that the Defendant

Authorities shall stop the construction activities.

5.The plaintiff issued a Registered Lawyer's Notice on 22-9-2009 to the defendant Authority that the construction activity is as per the

Municipal statute and that the plaintiff is ready to pay all the rates and charges as applicable for regularization of the construction of the first floor. The Defendant Authority is likely to repeat the act of interfering and construction on the first floor, without following the due process of

Law and as such the plaintiff filed the suit for permanent injunction.

6. The case of the defendant corporation is that the suit is not maintainable and is liable to be dismissed for non issuance of notice under section-685 of HMC Act and that the plot No.147, an un-approved lay-out of Andhra Bank Colony and it has no clearance in ULC

Department. The plaintiff ignored the endorsement dated 30-9-2009 and without any authorization proceeded with the construction of first floor in a high-handed manner by violating the Building rules and Zonal

Regulation. The officials of the defendant Corporation, during the course of inspections on 8-10-2009 noticed the unauthorized construction of first floor and a notice was issued under Section-452 of HMC Act on 9- 10-2009 calling upon the plaintiff to show cause as to why the action shall not be taken against the unauthorized construction of first floor.

The plaintiff failed to comply with the notice of the officials of the defendant corporation demolished the unauthorized slab of the first floor on 21-10-2009. The plaintiff filed the present suit with all false and untenable allegations by suppressing the above facts, as if the suit schedule property is in existence. There is no cause of action for the suit. The plaintiff under the guise of interim injunction completed the first floor in a high-handed manner and approached the court with untenable and false allegations. Hence, the suit may be dismissed with costs.

7.Basing on the pleadings of both sides, the trial court framed the floowing issues:- (1) Whether the plaintiff is entitled for declaration that the endorsement in B.A No.12666/09/ACP-II, dated 12-9-2009 as prayed for?

(2) Whether the plaintiff is entitled for permanent injunction as prayed for?

(3) To what relief?

8. To prove the case of the plaintiff in the trial court, the plaintiff is examined as P.W.-1 and supporting the version of the plaintiff, P.W.-II is examined and Ex.A1 to Ex.A21 are marked. The Defendant authority did not choose to adduce any evidence and no documents were marked on their behalf.

9.After conclusion of trial, the learned II Additional Junior Civil Judge at Visakhapatnam dismissed the suit that the plaintiff is not entitled for injunction.

10.As against the decree and judgment, the present. Appeal is filed.

The brief averments in the Grounds of Appeal are that the judgment of the trial court is contrary to law, weight of evidence and probabilities of the case. The trial court erred in appreciating the4 Section-438 of HMC

Act in its letter and spirit and the decree and judgment in

O.S.No.352/1995 on the file of the II Additional Junior Civil Judge at

Visakhapatnam. Further, the court below failed to appreciate the

Ex.A14, Ex.A15, Ex.A16 as the same stands as the conclusive proof of collection of various taxes by the Defendant Authority subsequent to the filing of the suit. Also payment of Rs.11,910/- vide D.D. dated 15-9-1999 as the Defendant Authority collected the necessary fee for regularization. However, Court below was under the impression that the regularization charges were not paid for the previous construction. The

Defendant Authority except filing written statement did not adduce any evidence or got marked any document to rebut the case of the plaintiff.

11.Heard arguments for both sides.

12The points for determination are:- (1) Whether the plaintiff is entitled for permanent injunction as prayed for?

(2) Whether the Judgment of trail court is sustainable either under fact or under Law?

13.POINT NO.1:-

The case of the plaintiff is that she has three sons and all of them are married and two sons are residing at stilt and ground floors and her third son has no proper dwelling house and as such the plaintiff intended to construct the first floor on the existing ground floor in the suit schedule property. The plaintiff submitted the necessary plan as issued by the qualified surveyor and the defendant authority acknowledged the same and issued a receipt Ex. A.2. the plaintiff, when intended to construct a building in the year 1995, the Defendant Authority tried to interfere with construction activity and the plaintiff, filed a suit for permanent injunction against the Defendant Authority and Ex. A.1 is the certified copy of decree and judgement in O.S.No. 352/1995 on the file of the II Additional Junior Civil Judge at Visakhapatnam, whereby and where under the Honourable Court directed the defendant in the said suit proceedings to levy and collect compounding fee for regularization of the construction as claimed in the suit, however, dismissed the suit for non-issuance of Section -685 Notice. The plaintiff proceeded with construction for the first floor in spite of an endorsement by the

Defendant Corporation. On careful study of Section 438 of HMC Act, “Building or work which is disapproved by the Commissioner may be proceeded with subject to terms”. I have gone through section-438 of

HMC Act and I am of the opinion that the person or persons, who intend to make a construction, shall construct the same, if the construction thereon shall not contravene the provisions of the HMC Act or some Bye

Laws made there under. So, it is clear that the plaintiff intended to construct a dwelling house and to that extend, followed the process as contemplated under HMC Act by issuing plan given by the qualified surveyor and also paid an amount of RS.5000/- vide Ex. A.2. The plaintiff categorically stated that she shall pay the rates and charges applicable, if any, for regularization of the first floor construction. The Defendant except taking a general denial did not adduce any evidence either in the form of document or any witness was examined and no written arguments were filed to disprove the case of the plaintiff and as such it is deemed that the plaintiff proved her case. The plaintiff proceeded with the construction and at that stage, the agents of the defendant corporation, admittedly interfered with the construction activity of he plaintiff and more particularly the pleadings in the written statement clearly evidences that on 21.10.2009 the agents of the defendant corporation demolished the unauthorized slab of the first floor. So, it is clear that the defendant corporation interfered and demolished the construction in the first floor and the plaintiff averments that the defendant corporation interfered with the construction activity can be presumed to be a true apprehension as the same is admitted by the defendant corporation in its written statement.

I have gone through the Ex. A.9 to Ex. A.11 which are photographs along with C.D. and the photographs evidences that the plaintiff is constructing the first floor on the stilt and ground floors. The important documents in the suit are Ex. A.14 to Ex. A.21, which are all subsequent to the filing of the suit. The Defendant Corporation collected the taxes for the first floor vide Ex. A.15 and issued House Tax pass book-Ex. A.16.

The Electricity Department collected the power consumption charges on the suit schedule property vide Ex. A.17 to Ex. A.19 and Ex. A.20 and Ex.

A.21 are the telephone bills in the suit schedule property. So, with all prudence it can be presumed that the defendant corporation collected the property tax after assessment of the suit schedule property and the charges are collected from the plaintiff, hence any acts of demolition of the suit schedule property, amounts to arbitrary interference by the agents of the defendant corporation.

I am of the considered opinion that the plaintiff is in a peaceful possession and enjoyment of the suit schedule property and more particularly the pleadings of the plaintiff are that the first floor is meant for dwelling purpose of her younger son and when the plaintiff has not deviated from the original construction plan, the scope of the defendant authority to interfere with the construction activity is not permissible as per section-438 of HMC Act, once the construction is as per the provisions of the Act. The Defendant Authority failed to adduce any evidence on its behalf, either oral or documentary to disprove the case of the plaintiff, except filing written statement. Moreover, the defendant corporation in similar circumstances collected regularization charges from the plaintiff for the stilt and ground floors at the direction of t he

Honourable Court of the II Additional Junior Civil Judge at Visakhapatnam

in O.S.No:1405/2009.

I do not sail with the observations of learned trial judge that the plaintiff did not pay regularization charges as it is not denied by the defendant corporation and no pleadings are taken to that effect. This being a suit simplicitor for injunction, the main issue to be considered by the court is whether the plaintiff is in a peaceful possession and enjoyment of the suit schedule property as on the date of the filing of the suit and whether the defendant interfered with the possession and established that she is in possession and enjoyment of the suit schedule property as on the date of the filing of the sit and the documents relied on by the plaintiff evidence the same and defendant admitted that the agents of the defendant corporation interfered with peaceful possession and enjoyment of the plaintiff. I do not find any merit in the observation of the learned judge of the trial court and the same are not in accordance to the principles rendered in a suit simplicitor for injunction.

Viewed from all angles, the plaintiff established her possession in the suit schedule property and the defendant did not adduce any evidence to destabilize the plaintiff's case and more particularly the plaintiff has taken a specific pleading that no constructions are made in contra, to the Building plain issued by the Surveyor and the same is not rebutted by the defendant corporation and as such it is deemed that the construction of the plaintiff construction is in accordance to the HMC Act, and in view of the plaintiff's possession in the suit schedule property.

The defendant corporation has assessed the suit schedule property and is collecting taxes from the plaintiff. Therefore, I am inclined to grant permanent injunction to the Defendant Corporation and its representatives from ever interfering with the suit schedule property.

POINT NO.2:-

I have gone through the lower court record, placed before me and this being a suit simplicitor for injunction and more particularly the plaintiff purchased a land in a site measuring an extent of 359 sq.yds. At plot

No.147 covered by Survey No.7 of Resapuvanipalem, bearing D.No.50-1- 66/7, GVMC, Visakhapatnam, for valuable consideration and the plaintiff is in a peaceful possession and enjoyment of the property in Plot No.147 by constructing the stilt and ground floors, the defendant authority regularized the same by collecting the necessary regularization charges from the plaintiff. The Law under Municipal Corporation shall be stringent to those constructions which are in complete violation and contain serious deviations which are impermissible under law for regularization and affecting public in general. The construction of the suit schedule property, undertaken, by the plaintiff in the first floor, i.e., the suit schedule property is a dwelling house for her younger son and more particularly, and it is pleaded by the plaintiff that there are no deviations and the defendant corporation did not establish contra to the pleadings, and when there are no deviations and violation to the

Municipal Laws, and when there is no hindrance to the general public, the defendant authority can very much regularize the same by levying the necessary compounding fee for regularizing the first floor. The

Honourable Supreme Court as well as the Honourable High Court has

considered cases for regularization by the municipal corporations in the event of there are no deviations or permissible deviations, by directing the municipal authorities therein, to collect the compounding fee and regularize the construction. This being a suit simplicitor for injunction and when the plaintiff established beyond all reasonable doubts that the plaintiff is in physical possession and enjoyment of the suit schedule property as on the date of the filing of the suit and when the defendant failed to disprove or rebut the case of the plaintiff. The court below ought to have considered the case of the plaintiff, and the oral and documentary evidence adduced by the plaintiff and appreciated in its right perspective. I find no merit in the observations made by the Court below and accordingly set aside the judgement dt. 28.09.2011.

I direct the defendant corporation to levy the necessary compounding fee as per the procedure laid down in the HMC Act and collect the same from the plaintiff. The Defendant Corporation shall issue a notice to that effect and obtain proper acknowledgement from the plaintiff and on receiving the said notice, the plaintiff shall pay the compounding fee, legitimately demanded by the defendant corporation, under the HMC rules within one month from the date of the said notice.

Accordingly point NO.2 is answered in favour of the plaintiff.

28.In the result, appeal is allowed without costs, throughout and the Decree and Judgement dt. 28.09.2011 passed by the

Honourable Court of the II Additional Junior Civil Judge at Visakhapatnam

is hereby set aside.

Dictated to the Shorthand Writer, transcribed by him, corrected and

pronounced by me in open court on this the 2nd day of April, 2013.

VI Addl. District & Sessions Judge, FAC Spl. Judge for SC & ST cases-cum- Addl. District Judge, Visakhapatnam.

APPENDIX OF EVIDENCE

No. of witnesses examined

PLAINTIF DEFENDANT

NILNIL

VI Addl. District & Sessions Judge FAC-Spl. Judge for SC & ST cases-cum- Addl. District

Judge,

Visakhapatnam.

Date of presentation: 16-7-2010 Date of filing: 4-10-2010

IN THE COURT OF THE VII ADDITIONAL DISTRICT JUDGE, (FAST TRACK

COURT), VISAKHAPATNAM.

Present: Kum. C.Yamini, LL.M., PGDCA.,

Friday the 30th day of March 2012

Appeal Suit No:240/2010

Between :

1. Kadimi Jagannadha Rao, S/o late Mutyalu, Hindu, 65 yrs, Gollanarayana Puram, Vepagunta post, Pendurti Mandal

2. Mulagapaka Lakshmana Rao, S/o Ramulu, 52 yrs, employee, D.No.4-26, rest -do-

3. Vepa Jagannadha Rao, S/o late Venkateswarlu, 54 yrs, employee, Susarla Colony, near Baju Junction, rest -do-

4. Rongali Rajababu, S/o late Demudu, 48 yrs, cultivation, M.Alamanda, Devarapalli

5. Smt. Bandaru Atchayyamma, W/o Atcham Naidu, Hindu, 33 yrs, Varalakshmi Nagar, Porlupalem panchayat, Pendurti Mandal

6. Smt. Rangali Suryakumari, W/o Govinda, 30 yrs, D.No.4-25, near police station, Gopalapatnam, Visakhapatnam district

7. Smt. Sabbavarapu Krishna, W/o Swami Naidu, 30 yrs, Ravulammapalem, Anakapalli Mandal

8. Ronagalli Bharani Kumar, S/o late Govinda, 19 yrs, D.No.4-25, Gopalapatnam, Visakhapatnam

9. Rongalli Sravan Kumar, S/o late Govinda, 16 yrs, rest -do- (rep. By his mother and guardian, 7th plaintiff amended as per orders dt.10.4.2008 in I.A.223/2007)

10. Rongali Narayana, W/o late Rajubabu, 48 yrs, M.Alamanda, Devarapalli

11. Rongali Demudu Babu, S/o late Rajubabu, 31 yrs, rest -do-

12. Rongali Sanyasi Naidu, S/o late Rajubabu, 29 yrs, rest -do- …. appellants

And :

1.1.Boddapati Ramunaidu, S/o Venkunaidu, 72 yrs, retired VHM, C/o P.Ranganadha Raju, contractor, D.No.58-21-51, Opp. to gas godown, Butchirajupalem, Visakhapatnam 1.2.Boddapati Ramarao, S/o Ramunaidu, 45 yrs, rest -do- 1.3.Boddapati Krishnam Naidu, S/o Ramunaidu, 52 yrs, rest -do- 1.4.Boddapati Venkata Ramana Murty, S/o Ramunaidu, 38 yrs, rest - do- 1.5.Boddapati Ramesh Naidu, S/o Ramunaidu, 28 yrs, rest -do- 1.6.Korukonda Gnaswara Rao, S/o Eswararao, 38 yrs, retired, No.19, O.No.30 L4 Farm Area, Kadma Jamshedpur 831005 1.7.Kolluru Prasada Rao, S/o Annaji Rao, painting contractor, near Ramatalkies, Visakhapatnam 1.8.Gori Surya Rao, S/o Apparao, 29 yrs, D.No.32-27-8/1, Main Road, Allipuram, Visakhapatnam 1.9.Smt. Premabudri Ramanujamma, W/o Venkata Narasayya, 55 yrs, Guntapalli, Yellamanchili Mandal 1.10. Vechalapu Chinnam Naidu, S/o Demudu, 50 yrs, Vechalam village, Kotapadu, Visakhapatnam district 1.11.Smt. A.Usha Rani, W/o Mohan Rao, 50 yrs, Krishna Nagar, Visakhapatnam 1.12.Yedla Satya Rao, 40 yrs, Technician, center No.97, MPM Department 1.13.Varaha Lakshmi Narasimha Swami Devasthanam, rep. by their Executive Officer 1.14.State, rep. by the District collector, Visakhapatnam 1.15.The Mandal Revenue Officer, Pendurti Mandal, Visakhapatnam

... respondents

APPEAL FILED AGAINST THE DECREE AND JUDGMENT DT.30.3.2007 OF III

ADDITIONAL SENIOR CIVIL JUDGE, VISAKHAPATNAM IN O.S.NO.247/2003 UNDER

ORDER 41 RULE 1 CPC Between :

1.Kadimi Jagannadha Rao, S/o late Mutyalu, Hindu, 65 yrs, Gollanarayana Puram, Vepagunta post, Pendurti Mandal

2.Mulagapaka Lakshmana Rao, S/o Ramulu, 52 yrs, employee, D.No.4-26, rest -do-

3.Vepa Jagannadha Rao, S/o late Venkateswarlu, 54 yrs, employee, Susarla Colony, near Baju Junction, rest -do-

4.Rongali Rajababu, S/o late Demudu, 48 yrs, cultivation, M.Alamanda, Devarapalli

5.Smt. Bandaru Atchayyamma, W/o Atcham Naidu, Hindu, 33 yrs, Varalakshmi Nagar, Porlupalem panchayat, Pendurti Mandal

6.Smt. Rangali Suryakumari, W/o Govinda, 30 yrs, D.No.4-25, near police station, Gopalapatnam, Visakhapatnam district

7.Smt. Sabbavarapu Krishna, W/o Swami Naidu, 30 yrs, Ravulammapalem, Anakapalli Mandal

8.Ronagalli Bharani Kumar, S/o late Govinda, 19 yrs, D.No.4-25, Gopalapatnam, Visakhapatnam

9.Rongalli Sravan Kumar, S/o late Govinda, 16 yrs, rest -do- (rep. By his mother and guardian, 7th plaintiff amended as per orders dt.10.4.2008 in I.A.223/2007)

10.Rongali Narayana, W/o late Rajubabu, 48 yrs, M.Alamanda, Devarapalli

11.Rongali Demudu Babu, S/o late Rajubabu, 31 yrs, rest -do-

12.Rongali Sanyasi Naidu, S/o late Rajubabu, 29 yrs, rest -do-

... plaintiffs

And :

1.1.Boddapati Ramunaidu, S/o Venkunaidu, 72 yrs, retired VHM, C/o P.Ranganadha Raju, contractor, D.No.58-21-51, Opp. to gas godown, Butchirajupalem, Visakhapatnam 1.2.Boddapati Ramarao, S/o Ramunaidu, 45 yrs, rest -do- 1.3.Boddapati Krishnam Naidu, S/o Ramunaidu, 52 yrs, rest -do- 1.4.Boddapati Venkata Ramana Murty, S/o Ramunaidu, 38 yrs, rest - do- 1.5.Boddapati Ramesh Naidu, S/o Ramunaidu, 28 yrs, rest -do- 1.6.Korukonda Gnaswara Rao, S/o Eswararao, 38 yrs, retired, No.19, O.No.30 L4 Farm Area, Kadma Jamshedpur 831005 1.7.Kolluru Prasada Rao, S/o Annaji Rao, painting contractor, near Ramatalkies, Visakhapatnam 1.8.Gori Surya Rao, S/o Apparao, 29 yrs, D.No.32-27-8/1, Main Road, Allipuram, Visakhapatnam 1.9.Smt. Premabudri Ramanujamma, W/o Venkata Narasayya, 55 yrs, Guntapalli, Yellamanchili Mandal 1.10. Vechalapu Chinnam Naidu, S/o Demudu, 50 yrs, Vechalam village, Kotapadu, Visakhapatnam district 1.11.Smt. A.Usha Rani, W/o Mohan Rao, 50 yrs, Krishna Nagar, Visakhapatnam 1.12.Yedla Satya Rao, 40 yrs, Technician, center No.97, MPM Department 1.13.Varaha Lakshmi Narasimha Swami Devasthanam, rep. by their Executive Officer 1.14.State, rep. by the District collector, Visakhapatnam 1.15.The Mandal Revenue Officer, Pendurti Mandal, Visakhapatnam …. defendants

Appellants/ plaintiffs in the lower court prays to set aside the decree and judgment dt.30.3.2007 in O.S.No.247/2003 on the file of III Addl. Sr. Civil

Judge, Visakhapatnam and allow the same with costs.

The appellants herein filed a suit for grant of permanent injunction restraining the defendants 1 to 5, their men and agents from interfering with the peaceful possession and enjoyment of the plaint schedule land of the plaintiffs, defendants 6 to 12 and other owners, who are having the same common interest in the plaint schedule land and for costs and since the suit was dismissed, the plaintiffs preferred this appeal.

Value of appeal is Rs.62,000/- as that of in lower court and a Court fee of Rs.2,626/- is paid under section 49 r/w 26(c) of APCF & SV Act.

This appeal coming on 26.3.2012 for final hearing before me in the presence of Sri M.S.Sastry, advocate for the appellants and Smt. R.Krishna Kumari and Sri V.V.V.S.S.M.Rajarao, advocates for R.1 to R.5 and the same having stood over till this day for consideration, this Court doth order and

D E C R E E

1. that appeal be and the same is hereby dismissed by confirming the judgment and decree dated 30.3.2007 in

O.S.No.247/2003 on the file of III Addl. Senior Civil

Judge, Visakhapatnam;

2. that each party do bear their own costs.

Given under my hand and the seal of the Court, this the 30th day of March 2012

VII Addl. Dist. Judge, (Fast Track Court), Visakhapatnam

MEMORANDUM OF COSTS

For Appellant:For Respondents:

VakalatRs. 2-00 Appeal stampRs. 786-00 ProcessRs. 500-00 Advocate's feeRs.5000-00 Bill of costs not filed Jr. advocate's feeRs.1500-00 Writing chargesRs. 250-00 Type chargesRs. 300-00 Clerk wagesRs. 300-00 ------------------ Costs certifiedRs.8638-00 -----------------

VII ADJ (FTC),

Visakhapatnam

1

CMA 9/2010

VI ADJ/VSP

IN THE COURT OF THE VI ADDITIONAL DISTRICT JUDGE, VISAKHAPATNAM

Present: Sri N.RAJA PRASAD BABA, B.A., LL.B.,

VI ADDITIONAL DISTRICT JUDGE

VISAKHAPATNAM

Friday, the 12th day of April, 2013

CMA 9/2010

Between:-

Smt. Kotni Venkata Lakshmi, W/o Srirama Chandra Murthy, Hindu, aged 40 years, residing at D.No.37-11-117/2, Pattabireddy Gardens, Visakhapatnam, presently residing at D.No.37- 12-1, 38th Ward of GVMC, NGGO's Colony, visakhapatnam-7.

....... Appellant

And:-

1.Palla Pydi Raju, S/o Simhachalam, Hindu, aged about 45 years, Private Employee, residing at D.No.36-92-219, Sreenivasa Nagar, Visakhapatnam-7.

2.Palla Sreenivasa Rao, S/o Simhachalam, Hindu, aged about 40 years, Auto Driver, residing at D.No.37-11-117, Pattabhireddy Gardens, Visakhapatnam-7.

3.Palla Atchiyyamma, W/o Simhachalam, Hindu, aged about 78 years, residing at Door No.37-11-117, Pattabhireddy Gardens, Visakhapatnam-7.

4.Palla Simhachalam, father's name not known to the appellant, Hindu, aged about 84 years, residing at Door No.37-11-117, Pattabhi Reddy Gardens, Visakhapatnam-7.

5.Nammi Varalakshmi, W/o Sanyasi Rao, D/o Simhachalam, Hindu, aged 55 years, residing at Door No.37-11-117, Pattabhi Reddy Gardens, Visakhapatnam-7.

6.Palla Suri Babu, S/o Simhachalam, Hindu, aged 35 years, residing at D.No.37-11- 117/1, Pattabhireddy Gardens, Visakhapatnam.

….. Respondents

This appeal is filed by the appellant, aggrieved by the Order & Decreetal Order passed on 01.06.2009 by the I Addl. Junior Civil Judge, Visakhapatnam in I.A.721/2008 in

O.S.652/2008.

Between: Smt. Kotni Venkata Lakshmi, W/o Srirama Chandra Murthy, Hindu, aged 40 years, residing at D.No.37-11-117/2, Pattabireddy Gardens, Visakhapatnam, presently residing at D.No.37- 12-1, 38th Ward of GVMC, NGGO's Colony, visakhapatnam-7.

......Petitioner/plaintiff....

And:

1.Palla Pydi Raju, S/o Simhachalam, Hindu, aged about 45 years, Private Employee, residing at D.No.36-92-219, Sreenivasa Nagar, Visakhapatnam-7.

2.Palla Sreenivasa Rao, S/o Simhachalam, Hindu, aged about 40 years, Auto Driver, residing at D.No.37-11-117, Pattabhireddy Gardens, Visakhapatnam-7.

3.Palla Atchiyyamma, W/o Simhachalam, Hindu, aged about 78 years, residing at Door No.37-11-117, Pattabhireddy Gardens, Visakhapatnam-7.

4.Palla Simhachalam, father's name not known to the appellant, Hindu, aged about 84 years, residing at Door No.37-11-117, Pattabhi Reddy Gardens, Visakhapatnam-7.

5.Nammi Varalakshmi, W/o Sanyasi Rao, D/o Simhachalam, Hindu, aged 55 years, residing at Door No.37-11-117, Pattabhi Reddy Gardens, Visakhapatnam-7.

6.Palla Suri Babu, S/o Simhachalam, Hindu, aged 35 years, residing at D.No.37-11- 117/1, Pattabhireddy Gardens, Visakhapatnam.

....Respondents/defendants.....

2

CMA 9/2010

VI ADJ/VSP This appeal is coming on 28.10.2009 for final hearing before me in the presence of Sri P.V.Reddy Naidu, Sri B.Trinadha Rao, V.Subba Rao, Advocates for Appellant and Sri P.V.V.V.Gajapathi Rao, Advocate for the Respondents 3 to 6 and respondents 1 & 2 remained exparte and the matter having stood over for consideration till this day, this Court delivered the following :

J U D G M E N T

1.This C.M.A. is filed challenging the Order and Decretal Order, dt.01.06.2009 in

I.A.721/2008 in O.S.652/2008 on the file of I Addl. Junior Civil Judge,

Visakhapatnam.

2.For the sake of convenience, the parties in this appeal are referred as they are arrayed in the suit.

3.The appellant in this appeal is the plaintiff in O.S.652/2008 and She filed

I.A.721/2008 seeking temporary injunction, restraining the respondents/defendants from ever interfering with her possession and enjoyment of the plaint schedule property including construction work till the disposal of the suit.

4.The averments made in the affidavit filed by the plaintiff in brief are as follows: The respondents 1 and 2 are her vendors and 3 to 6 respondents are mother, father, sister and brother of R.1 and R.2 respectively. Plaintiff also contended that she is the owner of asbestos roofed house baring D.No.37-1-117/2 situated at Pattabhi

Reddy Gardens covered by T.S.No.9, 9-1B in S.No.16 and 17 to an extent of 167 sq.yards and she has been in possession and enjoyment of since the date of execution of possessory sale agreement from R.1 and R2 dt.27.3.2003 by constructing asbestos roofed house. While things stood thus, respondents creating inconvenience and making threats to grab the property forcibly, even without any right, title and possession. The plaintiff also contended that in the month of March, when she intends to change the roof of house with RCC Slab, she lid all material in the plaint schedule property, then respondents came there and used filthy language and threatened her not to make construction. Due to intervention of local elders she prevented them. Respondents made attempts likewise and when she also started 3

CMA 9/2010

VI ADJ/VSP removing the asbestos roof also respondents forcibly disposed of material and threatened her and labour and thus she made a complaint to the police and she further contends that she has strong prima facie case and balance of convenience. If interim injunction is not granted, she will be put to irreparable loss and therefore, petitioner prays the court to grant ad interim injunction restraining respondent, their men, agents, employees from ever interfering with her peaceful possession and enjoyment of plaint schedule property including construction work, till the disposal of the suit, in the interest of justice.

5.The said application was resisted by 3rd defendant in the suit by filing counter denying the averments made in the affidavit filed by the plaintiff and contends that she acquired 600 sq.yards of land from her lawful vendor and she did not partitioner the property among her children, as such the GPA-cum-sale executed by D1 and D2 shall not bind the plaintiff and besides that she also filed a suit for injunction

O.S.1536/05 on the file of P.J.C.J Court, Visakhapatnam against D1 and D2 and

court also granted ad-interim injunction against them and while the injunction orders are in force, the execution of GPA is not maintainable and she also contends that plaintiff is not having any title deed from her, as such suit is devoid of merits and is liable for dismissal. Therefore prays to dismiss the petition with exemplary costs.

6.5th defendant/respondent also filed counter denying averments made in the affidavit filed by the plaintiff and also raised same contentions that are raised by 3rd defendant in her counter. Therefore there is no need to reiterate again. Therefore prays to dismiss the petition with exemplary costs.

7.4th, 5th and 6th defendants filed a memo adopting the counter filed by the 3rd defendant. Though 1st and 2nd defendants received summons did not contest the proceedings.

4

CMA 9/2010

VI ADJ/VSP

8. Before the trial court, the plaintiff has exhibited Exs.A.1 to A.5 and on behalf of defendants Exs.B1 and B2 are marked. After considering the contents of the affidavit and counter affidavit and Exs.A.1 to A.5 and Exs.B1 and B2, the learned I Addl.

Junior Civil Judge, Visakhapatnam dismissed the application.

9.Challenging the impugned Order, the present appeal is filed by the appellant/plaintiff on the following grounds;

1) The order of the Trial Court is contrary to law, weight of evidence and probabilities of the case. (2) The trial court ought to have granted interim injunction in favour of the appellant/plaintiff. (3) The trial court ought to have considered that the petitioners are the bonafide purchasers who purchased the property from the respondents 1 & 2 due to lack of knowledge regarding the disputes amongst the respondents 1 to 6. (4)

Admittedly the petitioner is in possession and enjoyment of the suit schedule property by paying house tax to the local body under exhibits A1 to A4 and the trial court can grant interim injunction basing on the said documents. (5) The contesting respondents have not filed any documentary proof to show that they are in physical possession and enjoyment over the petition schedule property. (6) The contesting respondents not questioned when the respondents 1 and 2 alienated the vacant site of 167 sq.yards to the petitioner or at the time of constructing the ground floor way back in the year 2005. The fact was also not appreciated by the trial court properly.

(7) The injunction can be granted to the persons who have either right or title with possession. In the present case on hand admittedly, the petitioner herein have right in the subject matter property, having purchased the same by paying valuable sale consideration and that she is in the possession of the property and this fact was not appreciated by the trial court properly. (8) The trial court admitted the possession of the petitioner over the schedule property by considering the exhibits A1 to A4, but 5

CMA 9/2010

VI ADJ/VSP dismissed the petition only with an observation that the title was not covered by means of unregistered document. This finding of the trial court is absolutely incorrect.

10. Heard arguments of both the counsel.

11. Now the points for consideration are:

1. Whether the plaintiff who is the appellant in this appeal is entitle for the relief of temporary injunction as prayed for?

2. Whether the impugned Order and Decretal Order, dt.1.6.2009 in I.A.721/2008 in O.S.652/2008 on the file of I Addl. Junior Civil Judge is sustainable or not?

3. To what relief?

POINT NOs.1 & 2:

12. The counsel for the respondents No.3 to 6 filed written arguments contending that the respondent No.3 is aged about 82 years, and the respondent No.4 is aged 86 years who died recently and respondent No.5 is also aged about 60 years at the juncture the petitioner filed the suit in the year 2008 and drag on the proceedings as long as possible and there is no merits and that the petitioner never being possession and enjoyment over the plaint schedule property the petitioner stated that the property originally belongs to the respondent No.3 he gifted the property to her sons i.e. R.1 and R.2 and they in turn sold the said property to the petitioner herein are all utterly false and created for the purpose of this litigation only.

Appellant/plaintiff herein is non other than the men of the R.1 and R.2 as such the suit decree and judgment is applicable to the petitioner herein even though she is not a party in that suit she comes as an agent of R1 and R2 and that decree is passed against the R1 and R2 and their men and agents as such as per the observation made by the Hon'ble High Court the decree and judgment is applicable petitioner herein as such the petition is liable for dismissal. Therefore prays that the Hon'ble court pleased to dismiss CMA and proceed with the trial as directed by the Hon'ble

High Court in CRP 3777/2012 vide its order dt.21.8.2012 in the interest of justice.

6

CMA 9/2010

VI ADJ/VSP

13. In the suit O.S.No.652/2008, the Hon'ble High Court of A.P directed the trial Court to dispose of the matter within 6 months from the date of this order i.e. on 21.8.2012 and to that effect the trial court has submitted a letter to dispose of the matter and to submit the entire record at an early date in order to comply the direction of the

Hon'ble High Court.

14. In Civil Revision Petition No.3777/2012 the Hon'ble High Court of A.P directed the trial court to dispose of the matter within 6 months from the date of the order. So, in due obedience to the orders of the Hon'ble High Court of A.P if the petition is closed without prejudice to both parties it will certainly meet the ends of the justice. Points

NO.1 & 2 are answered accordingly.

15. POINT NO.3: In the result, the CMA.9/2010 is closed with a direction to both parties shall maintain status-quo.

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

open Court, this the 12th day of April, 2013.

VI Additional District Judge, Visakhapatnam.

Appendix of Evidence

No additional oral or documentary evidence is adduced on either side.

VI ADJ, VSP.

7

CMA 9/2010

VI ADJ/VSP Date of presentation: 28.10.2009/22.2.2010 Date of filing: 24.02.2010

IN THE COURT OF THE VI ADDITIONAL DISTRICT JUDGE, VISAKHAPATNAM

Present: Sri N.RAJA PRASAD BABA, B.A., LL.B.,

VI ADDITIONAL DISTRICT JUDGE

VISAKHAPATNAM

Friday, the 12th day of April, 2013

CMA 9/2010

Between:-

Smt. Kotni Venkata Lakshmi, W/o Srirama Chandra Murthy, Hindu, aged 40 years, residing at D.No.37-11-117/2, Pattabireddy Gardens, Visakhapatnam, presently residing at D.No.37- 12-1, 38th Ward of GVMC, NGGO's Colony, visakhapatnam-7.

....... Appellant

And:-

1.Palla Pydi Raju, S/o Simhachalam, Hindu, aged about 45 years, Private Employee, residing at D.No.36-92-219, Sreenivasa Nagar, Visakhapatnam-7.

2.Palla Sreenivasa Rao, S/o Simhachalam, Hindu, aged about 40 years, Auto Driver, residing at D.No.37-11-117, Pattabhireddy Gardens, Visakhapatnam-7.

3.Palla Atchiyyamma, W/o Simhachalam, Hindu, aged about 78 years, residing at Door No.37-11-117, Pattabhireddy Gardens, Visakhapatnam-7.

4.Palla Simhachalam, father's name not known to the appellant, Hindu, aged about 84 years, residing at Door No.37-11-117, Pattabhi Reddy Gardens, Visakhapatnam-7.

5.Nammi Varalakshmi, W/o Sanyasi Rao, D/o Simhachalam, Hindu, aged 55 years, residing at Door No.37-11-117, Pattabhi Reddy Gardens, Visakhapatnam-7.

6.Palla Suri Babu, S/o Simhachalam, Hindu, aged 35 years, residing at D.No.37-11- 117/1, Pattabhireddy Gardens, Visakhapatnam.

….. Respondents

This appeal is filed by the appellant, aggrieved by the Order & Decretal Order passed on 01.06.2009 by the I Addl. Junior Civil Judge, Visakhapatnam in I.A.721/2008 in

O.S.652/2008.

Between: Smt. Kotni Venkata Lakshmi, W/o Srirama Chandra Murthy,

......Petitioner/plaintiff....

And:

1.Palla Pydi Raju, S/o Simhachalam,

2.Palla Sreenivasa Rao, S/o Simhachalam,

3.Palla Atchiyyamma, W/o Simhachalam,

4.Palla Simhachalam, father's name not known to the appellant,

5.Nammi Varalakshmi, W/o Sanyasi Rao, D/o Simhachalam,

6.Palla Suri Babu, S/o Simhachalam,

....Respondents/defendants...

This C.M.A. is filed challenging the Order and Decretal Order, dt.01.06.2009 in

I.A.721/2008 in O.S.652/2008 on the file of I Addl. Junior Civil Judge, Visakhapatnam.

8

CMA 9/2010

VI ADJ/VSP A fixed court fee of Rs.3-00 is paid as per APCF and SV Act.

This appeal is coming on 28.10.2009 for final hearing before me in the presence of Sri P.V.Reddy Naidu, Sri B.Trinadha Rao, V.Subba Rao, Advocates for Appellant and Sri P.V.V.V.Gajapathi Rao, Advocate for the Respondents 3 to 6 and respondents 1 & 2 remained exparte and the matter having stood over for consideration till this day, this Court doth Order; and

D E C R E E

1.that the C.M.A. is closed with a direction to both parties shall maintain status-quo;

2.that there be no order as to costs.

Given under my hand and the seal of the Court, this the 12th day of April, 2013.

VI ADDL., DISTRICT JUDGE

VISAKHAPATNAM

Memorandum of Costs

For Appellant :For Respondents :

No costs memo is filed on either side.

VI ADJ/VSP

1

CMA 9/2010

VI ADJ/VSP

IN THE COURT OF THE VI ADDITIONAL DISTRICT JUDGE, VISAKHAPATNAM

Present: Sri N.RAJA PRASAD BABA, B.A., LL.B.,

VI ADDITIONAL DISTRICT JUDGE

VISAKHAPATNAM

Friday, the 12th day of April, 2013

CMA 9/2010

Between:-

Smt. Kotni Venkata Lakshmi, W/o Srirama Chandra Murthy, Hindu, aged 40 years, residing at D.No.37-11-117/2, Pattabireddy Gardens, Visakhapatnam, presently residing at D.No.37- 12-1, 38th Ward of GVMC, NGGO's Colony, visakhapatnam-7.

....... Appellant

And:-

1.Palla Pydi Raju, S/o Simhachalam, Hindu, aged about 45 years, Private Employee, residing at D.No.36-92-219, Sreenivasa Nagar, Visakhapatnam-7.

2.Palla Sreenivasa Rao, S/o Simhachalam, Hindu, aged about 40 years, Auto Driver, residing at D.No.37-11-117, Pattabhireddy Gardens, Visakhapatnam-7.

3.Palla Atchiyyamma, W/o Simhachalam, Hindu, aged about 78 years, residing at Door No.37-11-117, Pattabhireddy Gardens, Visakhapatnam-7.

4.Palla Simhachalam, father's name not known to the appellant, Hindu, aged about 84 years, residing at Door No.37-11-117, Pattabhi Reddy Gardens, Visakhapatnam-7.

5.Nammi Varalakshmi, W/o Sanyasi Rao, D/o Simhachalam, Hindu, aged 55 years, residing at Door No.37-11-117, Pattabhi Reddy Gardens, Visakhapatnam-7.

6.Palla Suri Babu, S/o Simhachalam, Hindu, aged 35 years, residing at D.No.37-11- 117/1, Pattabhireddy Gardens, Visakhapatnam.

….. Respondents

This appeal is filed by the appellant, aggrieved by the Order & Decreetal Order passed on 01.06.2009 by the I Addl. Junior Civil Judge, Visakhapatnam in I.A.721/2008 in

O.S.652/2008.

Between: Smt. Kotni Venkata Lakshmi, W/o Srirama Chandra Murthy, Hindu, aged 40 years, residing at D.No.37-11-117/2, Pattabireddy Gardens, Visakhapatnam, presently residing at D.No.37- 12-1, 38th Ward of GVMC, NGGO's Colony, visakhapatnam-7.

......Petitioner/plaintiff....

And:

1.Palla Pydi Raju, S/o Simhachalam, Hindu, aged about 45 years, Private Employee, residing at D.No.36-92-219, Sreenivasa Nagar, Visakhapatnam-7.

2.Palla Sreenivasa Rao, S/o Simhachalam, Hindu, aged about 40 years, Auto Driver, residing at D.No.37-11-117, Pattabhireddy Gardens, Visakhapatnam-7.

3.Palla Atchiyyamma, W/o Simhachalam, Hindu, aged about 78 years, residing at Door No.37-11-117, Pattabhireddy Gardens, Visakhapatnam-7.

4.Palla Simhachalam, father's name not known to the appellant, Hindu, aged about 84 years, residing at Door No.37-11-117, Pattabhi Reddy Gardens, Visakhapatnam-7.

5.Nammi Varalakshmi, W/o Sanyasi Rao, D/o Simhachalam, Hindu, aged 55 years, residing at Door No.37-11-117, Pattabhi Reddy Gardens, Visakhapatnam-7.

6.Palla Suri Babu, S/o Simhachalam, Hindu, aged 35 years, residing at D.No.37-11- 117/1, Pattabhireddy Gardens, Visakhapatnam.

....Respondents/defendants.....

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CMA 9/2010

VI ADJ/VSP This appeal is coming on 28.10.2009 for final hearing before me in the presence of Sri P.V.Reddy Naidu, Sri B.Trinadha Rao, V.Subba Rao, Advocates for Appellant and Sri P.V.V.V.Gajapathi Rao, Advocate for the Respondents 3 to 6 and respondents 1 & 2 remained exparte and the matter having stood over for consideration till this day, this Court delivered the following :

J U D G M E N T

1.This C.M.A. is filed challenging the Order and Decretal Order, dt.01.06.2009 in

I.A.721/2008 in O.S.652/2008 on the file of I Addl. Junior Civil Judge,

Visakhapatnam.

2.For the sake of convenience, the parties in this appeal are referred as they are arrayed in the suit.

3.The appellant in this appeal is the plaintiff in O.S.652/2008 and She filed

I.A.721/2008 seeking temporary injunction, restraining the respondents/defendants from ever interfering with her possession and enjoyment of the plaint schedule property including construction work till the disposal of the suit.

4.The averments made in the affidavit filed by the plaintiff in brief are as follows: The respondents 1 and 2 are her vendors and 3 to 6 respondents are mother, father, sister and brother of R.1 and R.2 respectively. Plaintiff also contended that she is the owner of asbestos roofed house baring D.No.37-1-117/2 situated at Pattabhi

Reddy Gardens covered by T.S.No.9, 9-1B in S.No.16 and 17 to an extent of 167 sq.yards and she has been in possession and enjoyment of since the date of execution of possessory sale agreement from R.1 and R2 dt.27.3.2003 by constructing asbestos roofed house. While things stood thus, respondents creating inconvenience and making threats to grab the property forcibly, even without any right, title and possession. The plaintiff also contended that in the month of March, when she intends to change the roof of house with RCC Slab, she lid all material in the plaint schedule property, then respondents came there and used filthy language and threatened her not to make construction. Due to intervention of local elders she prevented them. Respondents made attempts likewise and when she also started 3

CMA 9/2010

VI ADJ/VSP removing the asbestos roof also respondents forcibly disposed of material and threatened her and labour and thus she made a complaint to the police and she further contends that she has strong prima facie case and balance of convenience. If interim injunction is not granted, she will be put to irreparable loss and therefore, petitioner prays the court to grant ad interim injunction restraining respondent, their men, agents, employees from ever interfering with her peaceful possession and enjoyment of plaint schedule property including construction work, till the disposal of the suit, in the interest of justice.

5.The said application was resisted by 3rd defendant in the suit by filing counter denying the averments made in the affidavit filed by the plaintiff and contends that she acquired 600 sq.yards of land from her lawful vendor and she did not partitioner the property among her children, as such the GPA-cum-sale executed by D1 and D2 shall not bind the plaintiff and besides that she also filed a suit for injunction

O.S.1536/05 on the file of P.J.C.J Court, Visakhapatnam against D1 and D2 and

court also granted ad-interim injunction against them and while the injunction orders are in force, the execution of GPA is not maintainable and she also contends that plaintiff is not having any title deed from her, as such suit is devoid of merits and is liable for dismissal. Therefore prays to dismiss the petition with exemplary costs.

6.5th defendant/respondent also filed counter denying averments made in the affidavit filed by the plaintiff and also raised same contentions that are raised by 3rd defendant in her counter. Therefore there is no need to reiterate again. Therefore prays to dismiss the petition with exemplary costs.

7.4th, 5th and 6th defendants filed a memo adopting the counter filed by the 3rd defendant. Though 1st and 2nd defendants received summons did not contest the proceedings.

4

CMA 9/2010

VI ADJ/VSP

8. Before the trial court, the plaintiff has exhibited Exs.A.1 to A.5 and on behalf of defendants Exs.B1 and B2 are marked. After considering the contents of the affidavit and counter affidavit and Exs.A.1 to A.5 and Exs.B1 and B2, the learned I Addl.

Junior Civil Judge, Visakhapatnam dismissed the application.

9.Challenging the impugned Order, the present appeal is filed by the appellant/plaintiff on the following grounds;

1) The order of the Trial Court is contrary to law, weight of evidence and probabilities of the case. (2) The trial court ought to have granted interim injunction in favour of the appellant/plaintiff. (3) The trial court ought to have considered that the petitioners are the bonafide purchasers who purchased the property from the respondents 1 & 2 due to lack of knowledge regarding the disputes amongst the respondents 1 to 6. (4)

Admittedly the petitioner is in possession and enjoyment of the suit schedule property by paying house tax to the local body under exhibits A1 to A4 and the trial court can grant interim injunction basing on the said documents. (5) The contesting respondents have not filed any documentary proof to show that they are in physical possession and enjoyment over the petition schedule property. (6) The contesting respondents not questioned when the respondents 1 and 2 alienated the vacant site of 167 sq.yards to the petitioner or at the time of constructing the ground floor way back in the year 2005. The fact was also not appreciated by the trial court properly.

(7) The injunction can be granted to the persons who have either right or title with possession. In the present case on hand admittedly, the petitioner herein have right in the subject matter property, having purchased the same by paying valuable sale consideration and that she is in the possession of the property and this fact was not appreciated by the trial court properly. (8) The trial court admitted the possession of the petitioner over the schedule property by considering the exhibits A1 to A4, but 5

CMA 9/2010

VI ADJ/VSP dismissed the petition only with an observation that the title was not covered by means of unregistered document. This finding of the trial court is absolutely incorrect.

10. Heard arguments of both the counsel.

11. Now the points for consideration are:

1. Whether the plaintiff who is the appellant in this appeal is entitle for the relief of temporary injunction as prayed for?

2. Whether the impugned Order and Decretal Order, dt.1.6.2009 in I.A.721/2008 in O.S.652/2008 on the file of I Addl. Junior Civil Judge is sustainable or not?

3. To what relief?

POINT NOs.1 & 2:

12. The counsel for the respondents No.3 to 6 filed written arguments contending that the respondent No.3 is aged about 82 years, and the respondent No.4 is aged 86 years who died recently and respondent No.5 is also aged about 60 years at the juncture the petitioner filed the suit in the year 2008 and drag on the proceedings as long as possible and there is no merits and that the petitioner never being possession and enjoyment over the plaint schedule property the petitioner stated that the property originally belongs to the respondent No.3 he gifted the property to her sons i.e. R.1 and R.2 and they in turn sold the said property to the petitioner herein are all utterly false and created for the purpose of this litigation only.

Appellant/plaintiff herein is non other than the men of the R.1 and R.2 as such the suit decree and judgment is applicable to the petitioner herein even though she is not a party in that suit she comes as an agent of R1 and R2 and that decree is passed against the R1 and R2 and their men and agents as such as per the observation made by the Hon'ble High Court the decree and judgment is applicable petitioner herein as such the petition is liable for dismissal. Therefore prays that the Hon'ble court pleased to dismiss CMA and proceed with the trial as directed by the Hon'ble

High Court in CRP 3777/2012 vide its order dt.21.8.2012 in the interest of justice.

6

CMA 9/2010

VI ADJ/VSP

13. In the suit O.S.No.652/2008, the Hon'ble High Court of A.P directed the trial Court to dispose of the matter within 6 months from the date of this order i.e. on 21.8.2012 and to that effect the trial court has submitted a letter to dispose of the matter and to submit the entire record at an early date in order to comply the direction of the

Hon'ble High Court.

14. In Civil Revision Petition No.3777/2012 the Hon'ble High Court of A.P directed the trial court to dispose of the matter within 6 months from the date of the order. So, in due obedience to the orders of the Hon'ble High Court of A.P if the petition is closed without prejudice to both parties it will certainly meet the ends of the justice. Points

NO.1 & 2 are answered accordingly.

15. POINT NO.3: In the result, the CMA.9/2010 is closed with a direction to both parties shall maintain status-quo.

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

open Court, this the 12th day of April, 2013.

VI Additional District Judge, Visakhapatnam.

Appendix of Evidence

No additional oral or documentary evidence is adduced on either side.

VI ADJ, VSP.

7

CMA 9/2010

VI ADJ/VSP Date of presentation: 28.10.2009/22.2.2010 Date of filing: 24.02.2010

IN THE COURT OF THE VI ADDITIONAL DISTRICT JUDGE, VISAKHAPATNAM

Present: Sri N.RAJA PRASAD BABA, B.A., LL.B.,

VI ADDITIONAL DISTRICT JUDGE

VISAKHAPATNAM

Friday, the 12th day of April, 2013

CMA 9/2010

Between:-

Smt. Kotni Venkata Lakshmi, W/o Srirama Chandra Murthy, Hindu, aged 40 years, residing at D.No.37-11-117/2, Pattabireddy Gardens, Visakhapatnam, presently residing at D.No.37- 12-1, 38th Ward of GVMC, NGGO's Colony, visakhapatnam-7.

....... Appellant

And:-

1.Palla Pydi Raju, S/o Simhachalam, Hindu, aged about 45 years, Private Employee, residing at D.No.36-92-219, Sreenivasa Nagar, Visakhapatnam-7.

2.Palla Sreenivasa Rao, S/o Simhachalam, Hindu, aged about 40 years, Auto Driver, residing at D.No.37-11-117, Pattabhireddy Gardens, Visakhapatnam-7.

3.Palla Atchiyyamma, W/o Simhachalam, Hindu, aged about 78 years, residing at Door No.37-11-117, Pattabhireddy Gardens, Visakhapatnam-7.

4.Palla Simhachalam, father's name not known to the appellant, Hindu, aged about 84 years, residing at Door No.37-11-117, Pattabhi Reddy Gardens, Visakhapatnam-7.

5.Nammi Varalakshmi, W/o Sanyasi Rao, D/o Simhachalam, Hindu, aged 55 years, residing at Door No.37-11-117, Pattabhi Reddy Gardens, Visakhapatnam-7.

6.Palla Suri Babu, S/o Simhachalam, Hindu, aged 35 years, residing at D.No.37-11- 117/1, Pattabhireddy Gardens, Visakhapatnam.

….. Respondents

This appeal is filed by the appellant, aggrieved by the Order & Decretal Order passed on 01.06.2009 by the I Addl. Junior Civil Judge, Visakhapatnam in I.A.721/2008 in

O.S.652/2008.

Between: Smt. Kotni Venkata Lakshmi, W/o Srirama Chandra Murthy,

......Petitioner/plaintiff....

And:

1.Palla Pydi Raju, S/o Simhachalam,

2.Palla Sreenivasa Rao, S/o Simhachalam,

3.Palla Atchiyyamma, W/o Simhachalam,

4.Palla Simhachalam, father's name not known to the appellant,

5.Nammi Varalakshmi, W/o Sanyasi Rao, D/o Simhachalam,

6.Palla Suri Babu, S/o Simhachalam,

....Respondents/defendants...

This C.M.A. is filed challenging the Order and Decretal Order, dt.01.06.2009 in

I.A.721/2008 in O.S.652/2008 on the file of I Addl. Junior Civil Judge, Visakhapatnam.

8

CMA 9/2010

VI ADJ/VSP A fixed court fee of Rs.3-00 is paid as per APCF and SV Act.

This appeal is coming on 28.10.2009 for final hearing before me in the presence of Sri P.V.Reddy Naidu, Sri B.Trinadha Rao, V.Subba Rao, Advocates for Appellant and Sri P.V.V.V.Gajapathi Rao, Advocate for the Respondents 3 to 6 and respondents 1 & 2 remained exparte and the matter having stood over for consideration till this day, this Court doth Order; and

D E C R E E

1.that the C.M.A. is closed with a direction to both parties shall maintain status-quo;

2.that there be no order as to costs.

Given under my hand and the seal of the Court, this the 12th day of April, 2013.

VI ADDL., DISTRICT JUDGE

VISAKHAPATNAM

Memorandum of Costs

For Appellant :For Respondents :

No costs memo is filed on either side.

VI ADJ/VSP