IN THE COURT OF THE I ADDITIONAL JUNIOR CIVIL JUDGE;
VIJAYAWADA
PRESENT;SRI.NAGIREDDY SRINIVAS, B.Com.,B.L., I ADDL.JUNIOR CIVIL JUDGE; VIJAYAWADA
Thursday this the 5th day of JANUARY,2012
O.S.No.219/2011
Between; Tatineni Sudha Chowdary, d/o.Koteswara Rao, Hindu, aged about 37 yrs, resident of D.No.30-5-24/1, Kokachalapathi rao street, Durgaagraharam, Vijayawada, Vijayawada JCJC.
…Plaintiff
And
Nafeesa Nasreen, d/o.Igbal, Muslim, aged about 38 yrs, properties,residentofA.B.Towers,Groundfloor, Mogalrajapuram, Vijayawada, Vijayawada JCJC.
…..Defendant
This Original Suit coming on this day 3-1-12 before me for hearing in the presence of Sri.Md.Khalilullah, Advocate for the plaintiff and of Sri.Kilaru Jayaram, Advocate for the defendant and the matter is having stoodover to this day for consideration and this court upon hearing and perusing the entire material on record and upon consideration ,delivered the following;
J U D G M E N T
1.This suit is filed by the plaintiff for a permanent injunction restraining the defendant, her agents, men, associates, representatives etc., from interfering with the plaintiff’s peaceful possession and enjoyment of the plaint 2 schedule property in any manner whatsoever, except under due process of law and for costs.
2.The brief averments of the plaint are as follow;
The plaintiff is a tenant to the plaint schedule property bearing D.No.30-5-24/1. The defendant is the owner of the plaint schedule property. The plaintiff and her brother are residing in the plaint schedule property. The plaintiff was inducted as a tenant in the plaint schedule property 3 years ago. The monthly rent to the plaint schedule premises at the inception of tenancy is Rs.1,100/-p.m. excluding the electricity charges. The plaintiff paid Rs.6,600/- towards advance rent deposited which will be refundable to the plaintiff at the time of vacation of plaint schedule property.
There is no practice of issuing rental receipts. The plaintiff paid the rent for the month of February,2011 to the defendant. The plaintiff has been paying the monthly rents regularly without any default. On 2.3.11 the defendant surprisingly demanded the plaintiff to vacate the plaint schedule property immediately. The plaintiff expressed her inability to vacate the plaint schedule property as demanded by the defendant. The plaintiff requested the defendant to continue in the plaint schedule property. But the defendant did not hear the request of the plaintiff. As time rolled on 4.3.11 at about 10-00AM the defendant along with her 3 henchmen came to the plaint schedule property and demanded the plaintiff to vacate the plaint schedule property or otherwise face the dire consequence. Hence this suit.
3.The defendant gave a power of attorney to one
Md.Igbal who is the father of the defendant and he field the written statement and interalia contended that the monthly rent to the schedule premises is Rs.4,300/- but not
Rs.1100/-. Besides this rent, the plaintiff paid Rs.200/- towards maintenance charges per month. The plaintiff committed default in payment of monthly rents and maintenance from 1.4.10. As a matter of fact, the father of the defendant is looking after the management of the plaint schedule premises since the defendant is residing in Doha
Qatar, hence the allegation that on 4.3.11 the defendant along with her henchmen came to the plaint schedule property and threatened the plaintiff is totally false. As on the date of alleged cause of action, the defendant is not in
India. The plaintiff filed the suit without any cause of action.
As such, the suit is not maintainable. The plaintiff approached the Hon’ble Court with unclean hands. As such, the plaintiff is not entitled to any relief much less the relief of permanent injunction which is an equitable and discretionary relief. Prima facie case the plaintiff has no case and the 4 balance of convenience. Hence the suit is liable to be dismissed with costs.
4.Basing on the above pleadings, the following issues are settled for trial;
1) Whether the plaintiff is entitled to suit claim as prayed for?
2) To what relief?
5.In order to prove the case of the plaintiff, the plaintiff himself is examined as Pw1 and Exs.A1 to A8 are marked.
On behalf of the defendant, the defendant herself is examined as DW1 and got examined DW2 and Ex.B1 is marked.
6.Heard.
ISSUE No.1:
7.This suit is filed by the plaintiff for perpetual injunction restraining the defendant not to interfere with the peaceful possession and enjoyment of the plaint schedule property and also not to evict her from the schedule premises forcibly without any due process of law.
8.The following facts are admitted and undisputed that the plaintiff is a tenant to the plaint schedule premises and as on the date of filing of the suit, the plaintiff is residing in the plaint schedule property. To prove the contention of the 5 plaintiff, the plaintiff himself is examined as Pw1 and he deposed that he was inducted as a tenant into the plaint schedule property at about three years ago and the rent to the schedule premises is Rs.1100/- p.m. and he is paying the rent regularly and he has not committed any default of rent.
On 2.3.11, the defendant surprisingly demanded the plaintiff to vacate the plaint schedule property and the plaintiff expressed his inability to vacate the plaint schedule property as demanded by the defendant but the defendant did not hear the request of the plaintiff on 4.3.11 at about 10-00AM the defendant along with her henchmen came to the plaint schedule property and tried to evict the plaintiff from the schedule premises forcibly. To establish the possession of the plaintiff, the plaintiff field Exs.A1 to A3 telephone bills.
Ex.A4 to A6 are the electricity demand notices. Ex.A7 is the water supply card issued by Vijaya Industries, Ex.A8 is the voter card. The documents clearly clinchingly establish that the plaintiff has been in possession and enjoyment of the plaint schedule property. However, the defendant also admitted that the plaintiff is a tenant in the plaint schedule property but the defendant contended that the rent to the schedule premises is not Rs.1100/-, the rent to the schedule premises is Rs.4,300/- and he committed default in payment of rents from 1.4.10 and also contended that as on the date 6 of cause of action which is averred in the plaint, the defendant is not in India, she has been residing abroad i.e.
Doha Qatar, so there is no cause of action for the suit and the suit is liable to be dismissed.
9.To establish the above said contention, the power of attorney holder was examined as DW1 and got examined as
DW2. He is tenant in the plaint schedule premises. He deposed that when he is residing in the plaint schedule premises as a tenant in ground floor he paid rent of
Rs.4,000/- p.m. and also Rs.200/- towards maintenance charges. He also deposed that the plaintiff is tenant in the first floor of the said building and the rent is Rs.4,300/-.
10.The defendant mainly raised two contentions i.e. one is the rent to the schedule premises is Rs.4,300/- but not
Rs.1100/-and the plaintiff committed default in payment of rent from 1.4.10 and also there is no cause of action for the suit. As far as the rent to the schedule premises is concerned it is to be decided by a proper form and this court is not proper form to decide the said aspect. As far as second aspect is concerned regarding the cause of action ,as per the plaint and also as per the chief affidavit on 4.3.11 the defendant and her henchmen came to the schedule premises and tried to evict the plaintiff from the schedule 7 premises forcibly .But in the cross-examination, Pw1 categorically deposed that on 4.3.11 the father of the defendant, his wife and their henchmen came to the plaint schedule premises and tried to evict her from the plaint schedule premises and also deposed that the defendant is not present on 4.3.11 at the plaint schedule property at the time of gallata. That itself shows that there is no cause of action against this defendant and also there is no cause of action for the suit.
11.It is pertinent to note that in the plaint as well as in the chief affidavit it was averred that at the time of inducting the plaintiff as a tenant, he paid Rs.6,600/- towards advance rent. But in the cross-examination of Pw1, she categorically deposed that except the rent and the maintenance charges of Rs.200/- she has not paid anything to the defendant. As such, the advance amount of Rs.6,600/- is paid by the plaintiff as alleged in the plaint as well as in the chief affidavit are false and the plaintiff came to the court with unclean hands. To that aspect also the plaintiff is not entitled the discretionary relief of injunction. It is pertinent to note that the plaintiff ought to have establish two aspects to get perpetual injunction against the defendant. One is that the plaintiff has been in possession and enjoyment of the plaint schedule property on the date of filing of the suit and the 8 second aspect is there is cause of action for the suit. Unless the two aspects are to be established by the plaintiff, the plaintiff is not entitled the discretionary relief of injunction.
12.The counsel for the plaintiff relied on a decision reported in 2009(6) ALD 1 (Mohd.Ashrar Ahmed Shareef and another vs.State of A.P. and another) in which their Lordship held that - “Specific Relief Act 1963- Section 38-Possession of premises- Perpetual injunction restraining the defendants from dispossessing plaintiffs without recourse to due process of law, relief of, grant of , scope of- Plaintiff, when proved his possession over suit property, cannot be denied relief of perpetual injunction- Respondents to evict appellants by taking recourse to procedure prescribed by law- Appellants have to prove their title as and when situation warrants- Denial of relief of trial court as confirmed by appellate court, cannot be countenanced- Impugned judgments set-aside- second Appeal allowed- Suit decreed subject to condition that respondents may evict appellants by initiating proceedings in accordance with law.”
13.In this suit the plaintiff established possession on the date of filing of the suit but miserably failed to establish the cause of action of the suit under Order -7 Rule-11 CPC. If there is no cause of action for the suit, the suit is invariably to be rejected. As such the above facts of the case are not applicable to the present facts of the case. In those circumstances, the plaintiff miserably failed to establish the prima-facie case and balance of convenience and also the plaintiff came to the court with unclean hands. As such, the 9 plaintiff is not entitled to discretionary relief of injunction.
Accordingly this issue is answered against the plaintiff.
ISSUE No.2;
14.In the result, the suit is dismissed with costs.
Dictated to the Personal Assistant, transcribed by him,
corrected and pronounced by me in the open Court on this the 5th day of JANUARY,2012.
I ADDL.JUNIOR CIVIL JUDGE
VIJAYAWADA
APPENDIX OF EVIDENCE
WITNESSES EXAMINED FOR
PLAINTIFF;
PW1;Tatineni Sudha Chowdary
Defendant; DW1;Mohammad Igbal DW2;Shaik Jakeer Hussain
Documents marked for Plaintiff;
Ex.A1;Telephone bill dt.5.2.11 Ex.A2;Telephone bill dt.5.2.11 Ex.A3;Telephone dt.5.2.10 Ex.A4;Electricity demand notice dt.8.1.11 Ex.A5;Electricity demand notice dtd.11.2.11 Ex.A6;Electricity demand notice dt.11.2.11 Ex.A7;Water supply card dt.3.2.11 Ex.A8;Xerox copy of voter card dt.17.12.10.
Defendant;
Ex.B1.Notarised copy of power of attorney dt.7.4.11.
I AJCJ/VJA