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OS.318/2015 of IV ACJ(JD);RJVRM
IN THE COURT OF THE IV ADDITIONAL CIVIL JUDGE
(JUNIOR DIVISION): RAJAMAHENDRAVARAM
Present : P.S. SUDHA,
IV Additional Civil Judge(Junior Division), Rajamahendravaram.
Wednesday, the 23rd day of April,2025
O.S.No.318/2015
Between:
Tummala Subrahmanyam, S/o Ranga Swamy, Hindu, aged about 47 years, chappal Selling Business, Deluxe Centre, Main road, Rajahmundry,R/oD.No.35-11-24,Mangalavarapupeta, Rajahmundry, East Godavari District, J.C.J. Rajahmundry. ….Plaintiff And: 1.Kethineni Rajendra Prasad, S/o Nageswara Rao, Hindu, aged about 57 years, r/o D.No.6-5-2, Deluxe Hotel, Main Road, Rajahmundry, East Godavari District, J.C.J. Rajahmundry.
2.Jasti Uma Maheswara Rao, S/o late Venkata Kotayya, Hindu, Aged about 50 years, r/o. D.No.6-5-2, Deluxe Hotel, Main road, Rajahmundry, East Godavari District, J.C.J. Rajahmundry.
3.The Commissioner, Municipal Corporation, Municipal Office, Rajahmundry, East Godavari District, J.C.J. Rajahmundry. ….Defendants
This suit came up on 17.04.2025 for final hearing before me in the presence of Sri Dokala Srinivasa Rao, Advocate for the plaintiff and of Sri G.V.V.Satyanarayana, Advocate for the 1st defendant and of Sri Ch. Prabhakara Rao, Advocate for the 2nd defendant and of Sri
K. Sunil Lionel, Advocate for the 3rd defendant and upon perusing the material on record and having stood over for consideration till this day, this court delivered the following:- 2
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J U D G M E N T
This is the suit filed by the plaintiff against defendants seeking relief of declaration declaring him that he is in continuous possession and enjoyment of the plaint schedule ABCD property and for consequential mandatory injunction to remove the wall shown in Red colour i.e., AEF in the plaint plan and for permanent injunction restraining defendants, their men, their agents, their followers and successors in interest from interfering with the plaintiff’s peaceful possession and enjoyment of the plaint schedule property i.e. EFCD portion, for selling Chappals by using wooden stand and for costs of the suit.
2. The brief averments of the plaint are as follows:- that the plaintiff originally belongs to Hindu community and he got married a Muslim woman as they loved each other and blessed with a daughter. He is a permanent resident of Rajahmundry by birth and he is eking out his livelihood by selling chappals by installing wooden stand in plaint schedule property i.e. ABCD marked portion in the plan appended to plaint and he is in continuous possession and enjoyment of the same by selling chappals since 20 years by the side of Deluxe Hotel and the entire family of the plaintiff are all depending upon his earnings from selling chappals only, there are no movable or immovable properties to him and the said fact is known to everybody in the vicinity including the owners of the Deluxe hotel and also 3rd defendant authorities and in the eye of general public.
The 3rd defendant authorities recognized his business and also issued professional tax receipts in his name since 2004. He is also paying all necessary taxes to the 3rd defendant and he doing the 3
OS.318/2015 of IV ACJ(JD);RJVRM
said Chappal selling business in a clam manner without any disputes with anybody and without causing any hindrance to the public or public ways or to anybody including defendants and as such, no complaints against him from anybody in connection with his chappal selling business till date.
(ii).It is further submitted that for the reasons best known to the 1st defendant, he used to create problem and troubles to the plaintiff for smooth functioning of his chappal selling business. 1st defendant has men and money support, where as the plaintiff is a poor person. Since the harassment and threatens of 1st defendant are increased from time to time towards plaintiff, except no other go, he forced to file suit in O.S.No.291/2008 on the file of I Additional
Junior Civil Judge, Rajahmundry for permanent injunction against the 1st defendant,wherein he obtained temporary injunction vide
I.A.No.599/2008 in O.S.No.291/2008 on 22-04-2013 and finally, the said suit was decreed dt.03-07-2013. Subsequently, the 1st defendant filed an application under Order 9 Rule 13 r/w Sec.151
C.P.C., to set aside the decree passed in O.S.No.291/2008 vide
I.A.No.535/2013 and the said petition was allowed on 09-03-2015 on condition to deposit of costs of Rs.750/- into the court on or before 02-04-2015. But the said petition was dismissed on 02-04-2015 as the 1st defendant did not take any steps. SInce there is no appeal aggrieving the decree and Judgment in OS. 291/2008, it became final. The plaintiff also granted loan for his chappal selling business from State Bank of Mysore, Rajahmundry.
(iii).While the matter stood thus, on 06.04.2015, the defendants 1 and 2 having got men and money support, along with their men nearly 30 members came to plaintiff while he was selling 4
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chappals and warned him to stop his chappal selling business and to remove everything. On the same day, he gave report to S.H.O., I
Town and to other higher officials against defendants 1, 2 and others, but police did not take any action against defendants 1,2 and others.
Again on 07.04.2015, defendants 1 and 2 along with their men came to plaintiff while he was selling chappals and demanded to vacate the plaint schedule property, for which, the plaintiff refused to do so.
On that, defendants 1 and 2 along with their men destroyed the chappals and chappal stand and also beat the plaintiff and his wife as they like, openly in the public. Due to which, he received severe injuries and pain and he not even move from bed and admitted in
Government Head Quarters Hospital, Rajahmundry on 08.04.2015 as medico legal case and discharged on 09-04-2015. Therefore, defendants 1 and 2 committed offences punishable under Indian
Penal Code towards the plaintiff and also committed offences against the wife of plaintiff by outraging her modesty openly in the public, as such the plaintiff and his wife reserving their right to take action against them at appropriate time. Taking advantage of situation as the plaintiff is admitted in hospital, defendants 1 and 2 along with their men forcibly trespassed into the plaint schedule property and raised wall as shown in Red colour in plaint plan i.e., AEF. Therefore, plaintiff is seeking for mandatory injunction for removal of wall shown in Red colour i.e., AEF and in the remaining part, the plaintiff is doing his chappal selling business as usually. Defendants 1 and 2 are having men and money support, influencing the 3rd defendant and making efforts to dispossess him from the entire plaint schedule property without any manner of right whatsoever. Since the decree passed by the civil court in OS. 291/2008 is in force, no one can 5
OS.318/2015 of IV ACJ(JD);RJVRM
evict the plaintiff except under due process of law even as per the judgments of High Court and Supreme Court.
(iv).Further, it is submitted that the plaintiff is running a small chappal selling business and it is no way objectionable to anyone or no way obstruct the public way, but he was forcibly removed from the entire plaint schedule property, due to which, he along with his family members suffered hardship for food, cloth and medicine and also suffer for starvation. Defendants 1 and 2 encroached and raised wall i.e. AEF as shown in plaint plan, beyond their property, which belongs to and possession and enjoyment of plaintiff. So in the above circumstances, the plaintiff is advised to file for declaration of his right and for mandatory injunction to remove the wall shown as
Red colour AEF in plaint plan and for consequential permanent injunction against defendants not to interfere with the plaintiff’s peaceful possession and enjoyment of plaint schedule property by selling chappals, in any manner, whatsoever. The plaint plan is filed along with the plaint which is shown as 'ABCD'. The wall constructed by defendants 1 and 2 is shown as 'AEF', as such he is is seeking mandatory injunction for removal of the wall. The plaintiff has got balance of convenience and prima-facie case in his favour. If injunction is not granted, he will sustain great hardship which cannot be compensated in terms of money. Therefore, he was constrained to file the suit. Hence, the suit.
3. On receipt of summons of this Court, defendants 1 to 3
appeared through their respective counsel and filed their
written statements, separately.
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4.The brief averments of the written statement of 1st defendant are as follows:
He denied all the material allegations made in the plaint as not true and correct and further contended that the suit is not maintainable either on law or on facts and is liable to be dismissed in lumini with costs. He further submitted that previously, he was a leassee in respect of the property which is popularly known as “Deluxe Hotel” which is situated by the side of the main road,
Rajahmundry. There were some differences between him and his lessors in respect of the said property and in view of those differences, a civil suit was instituted and there upon, he went on
Second Appeal in S.A.No.443/2009 before the Hon’ble High Court of
Judicature of the States of Telangana and Andhra Pradesh at
Hyderabad. During the pendency of the said Second Appeal, he being lessee, surrendered the lease hold property(Deluxe Hotel) to his lessors (Respondents in S.A.No.443/2009) and a memo to that effect was filed before the Hon’ble High Court and the said fact was recorded and the said Second Appeal was dismissed without costs on 23-03-2015. The defendant is no way concerned with the said property which is shown as Deluxe Hotel, Rajahmundry.
(ii).Further it is submitted that the plaintiff shows the alleged plaint schedule property is situated within four public roads (as per the 4 boundaries given) and so it is the public property i.e., vested with the Municipal Corporation, Rajahmundry which is 3rd defendant in this suit. The plaintiff is nothing to do with the said property of Deluxe Hotel and the plaintiff has no any right, title and possession and enjoyment of the plaint schedule property and so also 7
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in respect of this defendant’s erstwhile lease-hold property either at present or in the past.
(ii).It is further submitted that the defendant Nos.2 and 3 are not the parties in the suit O.S.No.291/2008. The plaintiff has not mentioned anywhere in his pleadings as to how he got right in the property of 2nd defendant who is the owner of the said Deluxe hotel.
Hence, the framing of the suit as one for declaration is not maintainable under law. The plaintiff has no any right or cause of action to file any suit against this defendant since this defendant is neither owner nor lessee at present in respect of the said Deluxe
Hotel property. Even as per Order 2 Rule 1 and 2 of C.P.C., the above suit is not maintainable under law. Even if the plaintiff is entitled to make any claim against this defendant, the plaintiff might have included his whole of the claim in his previous suit itself i.e.,
O.S.No.291/2008. Hence, the above numbered suit is not
maintainable under law and hence, the same is liable to be dismissed with costs in limini. The claim of the plaintiff is baseless, frivolous, fictitious and vexatious and he has no any right to claim any relief of declaration and permanent injunction in respect of this defendant’s erstwhile lease-hold property. Hence, the suit of the plaintiff is not maintainable under law and claim of the plaintiff is baseless and without any right whatsoever.
(iii).The plaintiff has no prima-facie case. Balance of convenience is in favour of the defendants. Even if injunction is not granted, no hardship will be caused to the plaintiff. The cause of action as alleged is false but created one and the valuation of the suit is false and the same is created one. The court fee paid is also false and created by the plaintiff. The other averments of the plaint which 8
OS.318/2015 of IV ACJ(JD);RJVRM
are not specifically traversed are all hereby denied by the defendant and the plaintiff is put to strict proof of each of them. Therefore, the 1st defendant prays to dismiss the suit with exemplary costs.
5. The brief averments of the written statement filed by the 2 nd defendant, is as follows:
He denied the material allegations in the plaint are as not true and correct and he further contended that the suit is not maintainable under law and that the description of the plaint schedule as well as the plaint plan are not true and correct. The plaint schedule is vague as it is not disclosing the dimension of the property. Similarly, the plaint plan does not disclose material facts like dimensions etc. The plaintiff is put to strict proof of the correctness of the plaint schedule and the plaint plan. The allegations in the plaint that the plaintiff is in possession of “ABCD” site since 20 years, is not true and correct and this defendant emphatically denies the same. The property mentioned in “ABFE” is owned by this defendant and it is part of the property purchased by this defendant and others. Allegations made contra to the same in the plaint are absolutely false. The 2nd defendant does not admit that the plaintiff is in possession of “CDEF” portion of the site since 20 years as claimed by the plaintiff.
(ii). It is further submitted that 2nd defendant and his co- owners are owners by the year 2008 and any proceedings thereafter by the plaintiff without impleading this defendant and his co-owners as parties, do not bind this defendant and his co-owners. The defendant never involved in any of the alleged events referred in the plaint. Such events never took place according to this defendant.
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Therefore, the allegations in the plaint that this defendant committed offences punishable under I.P.C., and that the plaintiff reserves his right to take action against this defendant at a later point of time is absurd and false. The compound wall shown on the West and South are well within the property of 2nd defendant and his co-owners.
Due to recent Pushkarams, the 3rd defendant while attending to the maintenance of the drains constructed a permanent drain immediately to the South of the Southern side compound wall of this defendant. Therefore, the plaintiff is not in possession of even “CDEF” property as shown in the plaint sketch.
(iii).In any view of the matter, this defendant submits that the plaintiff cannot even occupy “CDEF” property which belongs to the 3rd defendant, since this defendant as the owner of the property abutting the public road on West and South, is entitled to have access to such roads from every inch of the width of the property owned by this defendant. Under such circumstances, the plaintiff cannot be allowed to occupy even any part of the public property abutting the property of this defendant as it amounts to violation of the right of this defendant to have access to the public roads on either side of his building. The plaintiff cannot be permitted to occupy any such public place under the guise of the present suit, which would amount to transgressing into the valuable public rights vested in this defendant, is suffice for the present to say that the plaintiff has neither possession nor right to occupy any portion of the plaint schedule site. Under such circumstances, the plaintiff has no right to maintain the above suit and he is not entitled to any of the reliefs prayed for in the plaint more particularly when the plaintiff does not have any right, title or interest in the “ABCD” property. The plaintiff is 10
OS.318/2015 of IV ACJ(JD);RJVRM
not entitled for removal of the compound wall “AEF” by way of mandatory injunction since the plaintiff has no right whatsoever over such property and the said “AEF” wall exclusively belongs to this defendant. The plaintiff is also not entitled for the consequential injunction prayed for by the plaintiff more particularly for the entire “ABCD” property. The court fee paid is not proper and the suit is not properly valued. The suit is bad for non-joinder of the other co- owners of the property as they are necessary parties. Hence, the suit is liable to be dismissed with costs.
6. The brief averments of the written statement of 3rd defendant-corporation, are as follows:
They denied all the material allegations as not true and correct and further contended that the the suit is bad for non-issuance of notice under Sec.685 of H.M.C. Act and on that ground also the suit is liable to be dismissed. Even otherwise, without admitting, collecting of professional tax does not prevent this defendant from removing any encroachment or unauthorized construction/erections. Even when there is no complaint from anybody since the erection of wooden stand by the plaintiff on the pavement, which is meant for using by public as pedestrian’s way and the public moving around that area are being obstructed to use the payment, due to erection of wooden stand on the pavement by the plaintiff and the same is to be removed.
(ii).It is further submitted that the proceedings between the plaintiff and the 1st defendant are not known to this defendant, as this defendant is not a party to the said proceedings and that the allegation in paragraph 9 of the plaint that defendants 1 and 2 11
OS.318/2015 of IV ACJ(JD);RJVRM
having man and money came to the plaintiff on 06-04-2015 and warned him to stop chappal business and plaintiff being poor person gave report against the defendants 1 and 2 to I Town P.S., the police received the report but not taken any action and then defendants 1 and 2 along with their men destroyed the chappals and the chappal stand and made galata and went away and the plaintiff received severe body injuries due to severe pain, he could not even move from bed, on 08-04-2015 he was admitted in Government Hospital as medico legal case and discharged on 09-04-2015 and defendants 1 and 2 committed offences of outraging the modesty of his wife and taking advantage of plaintiff’s admission in hospital defendants 1 and 2 along with their men trespassed into the plaint schedule property and raised AEF wall as shown in the plaint plan are all to be strictly proved by the plaintiff.
(ii).It is further submitted that the plaintiff is doing business on the pavement unauthorizedly without any permission and causing inconvenience to the public as well as to the traffic in that area. Due to that the defendant during the course of Pushkarams, which has undertaken steps to remove the encroachments by the side of the roads including pavement, in that process when it tried to remove the shop which is erected on the pavement, the plaintiff rushed to the court with false and untenable allegations.
(iii).It is further submitted that the D3 Corporation being the statutory authority, it should protect the interest of citizens, if any person violates the rules, it has every right to take action against them. It should not be prevented by way of injunction which is acting in accordance with the rules and procedure. The allegations which are not specifically traversed may not be treated as admissions and 12
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they are all hereby denied. The defendant reserves its right to file
additional written statement as and when new facts come to light
during the pendency of the suit. Hence, the suit may be dismissed with costs.
7.Basing on the rival pleadings of both parties, the
following issued are framed for trial, by my predecessor-in-
office on 26-04-2016:
1.Whether the suit is bad for non-joinder of necessary parties? 2.Whether the plaintiff is entitled for declaration and consequential mandatory injunction as prayed for? 3.Whether the plaintiff is entitled for permanent injunction against the defendant as prayed for? 4.To what relief?
8.During the course of trial, P.Ws.1 and 2 examined and Exs.A1 to
A24 are marked on behalf of plaintiff. On the other hand D.Ws.1 to 3 are examined and got marked Exs.B1 to B3 on behalf of defendants.
9.Heard the counsels for plaintiff and defendants. The leanred counsel for plaintiff filed written arguments. Perused the written arguments.
10.The learned counsel for the plaintiff argued that the plaintiff could establish his case that he is doing chappal business at ABCD marked portion which is infront of the Deluxe hotel towards South to the Road i.e. on the Municipal drainage since 20 year with peaceful possession and enjoyment of the same and without causing any disturbances to any one and no complaints were made by any one against him and eking his livelihood and the defendants 1 and 2 having men and muscle power, along with his men came to him while 13
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he was at plaint schedule property and threatened him with dire consequences and removed the wooden cheppal rack and highhandedly, constructed a compound wall as shown in red marked portion i.e. AEF portion. In support of his version, he relied upon two decisions (1) Between Maharastra Ekata Hawkers
Union and others vs. Municipal Corporation, Greater Mumbai and others, dt. 9.9.2013; (2).Sodan Singh Etc. Etc. vs. New Delhi
Municipal Committee & Another, etc. dt. 30.08.1989, in AIR 1989
Supreme Court 1988. He also placed the reliance of "The Street
Vendors(Protection of Livelihood and Regulations of Street Vendors)
Bill,2012 wherein defines the word "Street Vendor" and argued that the Parliament made a Bill with regard to protection of Street vendors like plaintiff and as such, the plaintiff shall be protected by way of granting reliefs as prayed for.
11.Per contract, the learned counsel for defendants argued that the plaintiff failed to establish his case since the evidence of Pw1 is self- contradicting to his own pleadings and he has no any right to claim the possession over the 2nd defendant's property and he has no evidence to say that that he has been in possession and enjoyment of the ABCD portion as shown in the plaint plan by doing chappal business and that the 2nd defendant after purchasing the premises of Deluxe Hotel and after vacating the same by the 1st defendant, they made repairs to their building and compound wall which is well within their property only. Due to recent Pushkarams, the 3rd defendant while attending the maintenance of the drains, they constructed a permanent drain immediately to the South of the
Southern side compound wall of this defendant and the same is 14
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admitted by Pw1. Therefore, the plaintiff cannot even occupy “CDEF” property which belongs to the 3rd defendant, since this defendant as the owner of the property abutting the public road on West and
South, is very much entitled to have access to such roads from every inch of the width of the property owned by 2nd defendant..
Therefore, the plaintiff cannot be allowed to occupy even any part of the public property abutting the property of this defendant as it amounts to violation of the right of this defendant to have access to the public roads on either side of his building. Further the plaintiff failed to establish the alleged cause of action for filing the suit and the cause of action mentioned in the plaint is false and created one.
Further the learned counsel for 1st defendant argued that the suit is hit by Order 2 Rule 2 since all claims must be included in the previous suit itself i.e. OS.291/2008. In support of their version, the learned counsel for 2nd defendant also relied two decisions reported in (1)AIR 1969 AP 136 in between Movva Butchamma vs
Movva Venkateswara rao and others dt. 29.08.1967 and (2) 1988 (2)
APLJ 469 in between Satarboyina Someswara Rao and others vs.
Sangasetti Tirupathamma and others. Accordingly, they prays the
Court to dismiss the suit with exemplary costs.
12.The learned counsel for the 3rd defendant argued that the suit is bad for non-issuance of notice under Sec.685 of H.M.C. Act and on that ground also, the suit is liable to be dismissed. Further he argued that no relief claimed against them by the plaintiff which is an admitted fact by the plaintiff as Pw1. Further he vehemently argued that since the plaintiff running his cheppal business on the pavement without paying any tax and it does not prevent this defendant from 15
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removing any encroachment or unauthorized construction/erections, even there is no complaint from anybody. Further argued that the erection of wooden stand by the plaintiff on the pavement which is meant for public use as pedestrian’s way and the public moving around that area, is being obstructed to use the pavement and as such, such type of erections will be removed. Accordingly, he prays the court to dismiss the suit.
ISSUES No.1: Whether the suit is bad for non joinder of necessary parties?
13.This issue is framed as the defendant No.2 pleaded that the suit is bad for non-joinder of co-owners of the Deluxe Hotel as they are necessary parties in whose absence, suit is not maintainable. Except the averments in his written statement, he did not furnish any details of his other co-owners of the Delux hotel premises, like sale deed or any such document. Of-course, there are other co-owners of the
Deluxe hotel premises along with 2nd defendants, but in view of the principle of civil procedure that the plaintiff is a Dominus litis which means he is the master of the suit. This principle is particularly associated with the plaintiff, who generally has the right to choose the parties, the remedy and the court in a civil suit. Therefore, in view of the of the above principle and in view of absence of any details and particulars of the co-owners of Deluxe hotel, the contention of the 2nd defendants is not tenable and hereby denied.
Hence, this issue is answered negatively against the defendants.
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ISSUE No.2: Whether the plaintiff is entitled for declaration and consequential mandatory injunction as prayed for?
14. In order to establish his case, the plaintiff himself was examined as Pw1 by reiterating the plaint averments in his chief. In support of his case, the plaintiff got marked as many as 24 documents as in Exs.A.1 to A.24.
15.In support of his version, the plaintiff also got examined one 3rd party who is no other than the relative of the plaintiff's wife, as
Pw2. The evidence of P.W.2 is that the plaintiff is running chappal shop since 40 years on the platform i.e., infront of the Deluxe Center and that the plaintiff raised wooden chappal shop and subsequently due to damage to the said wooden chappal shop, he erected iron racks chappal shop in the same place.
16.On the other hand, defendants 1 and 2 are examined as Dws 1 and 2 respectively by reiterating their respective contentions of their written statements and 1st defendant also got marked Exs.B.1 and 2 certified copies of Judgment of the Hon'ble High Court of AP at
Hyderbad in S.A.344/2009, Dt.26.03.2015. The authorised person of 3rd defendant corporation is examined as Dw3. His evidence is nothing but replica of the contents of their written statement. He got marked the authorisation given by D3 corporation to depose evidence in this suit, as Ex.B.3. All the witnesses were subjected to cross-examination by their respective opponent counsel.
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17. During cross-examination by the learned counsel for defendants 1 and 2, Pw1 admitted that D3 authorities came to the schedule premises and removed his shop existed on the municipal drainage and the Deluxe hotel is situated behind the municipal drainage. He further deposed that in view of Pushkaras in the year 2015, D3 authorities have widen the roads and increased the heights of municipal drainage and closed the same by cement planks. The said modification to drainage are also made by D3 where his Chappal shop is situated. He further deposed that when D3 authorities came to his Chappal shop and tried to demolish the same, he filed this suit.
He deposed that he does not remember when D3 authorities came to his Chappal Shop and tried to demolish the same whether it is on 06.04.2015 or 07.04.2015 and he has no idea whether he approached D3 authorities when his shop is tried to demolish by its officials. He further admitted that he did not issue any notice to the
D3 authorities U/Sec.685 of HMC Act prior to filing of this suit. He further also admitted that he has no right over the place where he is running Chappal shop and he did not obtain any permission from
Rajamahendravaram Municipal Corporation to do business in the plaint schedule property. The site in which he is doing Chappal business is a foot path which is towards West i.e., road leads to
Vijaya Talkies.
18.Coming to the documents filed by the plaintiff under Exs.A1 to
A24. Exs.A.1 and A.2 which are Decree copy in OS. 291/2008 and copy of Temporary injunction orders in I.A.599/2008 obtained in his favour against one Kethineni Rajendra Prasad i.e. 1st defendant herein. Ex.A.3: Copy of legal notice issued to the Commissioner 18
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Municipal Corporation and to Special Officer, Municipal Corporation,
Rajamahendravaram, dt.14.04.2015, requesting to inform the defendant in OS.291/2008 i.e. 1st defendant herein not to interfere or remove his client from the above said premises as Civil Court
Decree of Permanent Injunction as in force, if still proceed further, it may amount to contempt of Court order and all responsible persons are liable for compensation and damages according to law. Ex.A.14 is the Courier receipt for sending Ex.A.3 Letter. Ex.A.10 Copy of the letter addressed by the plaintiff to the police authorities, dt. 6.4.2015 stating that he obtained decree for Permanent Injunction from the I
Addl. Junior Civil Judge' Court, Rajamahendravaram in OS.291/2008 on 22.04.2013, wherein the men of Delux Hotel had filed reopen petition, but they did not attend before the court on 2.4.2015 and later on 6.4.2015 in the morning hours, three persons came infront of his shop and tried to make some constructions stating that and threatened him. Even he informed them that the place where he is running chepal shop is belongs to Muncipality and he is paying taxes regularly, but they threatened him to vacate the chepal shop. Since he closed his shop from the night of 6.4.2015, they might have taken any actions to remove his shop even there pending proceedings
before the Court. As such, he is requesting the Police authority to
protect him. Further, the plaintiff filed Ex.A.12 is certified copy of the orders of the Hon'ble I Addl. District Judge, Rajamahendravaram in CMA. 5/2009 dt. 13.07.2010 remitting the record to the Trial
Court after setting aside the orders and decree dt. 12.11.2008 in I.A.
599/2008 in OS. 291/2008. Ex.A.13 is the certified copy of the petition and affidavit filed by the defendant dt. 2.8.2013 in OS.
291/2008 to set aside the exparte decree. But those documents are 19
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no way helpful to the case of plaintiff in view of admissions made by him during cross-examination that in view of Pushkaras in the year 2015, D3 authorities have made modification to drainage where his
Chappal shop is situated and that when D3 authorities came to his
Chappal shop and tried to demolish the same, he filed this suit. Even if it is assumed for a moment that the 1st defendant really violated the injunction orders of the Court, the plaintiff ought to have approach the Court with an appropriate application, but not before the Corporation authorities.
19. Further the plaintiff mainly relied upon Ex.A11 photographs 14 in number and contended that as can be seen from those photographs, it can be known that the shop of plaintiff is existed at the plaint schedule since 20 years i.e. at ABCD marked portion and defendants 1 and 2 high-handedly removed his shop and constructed wall as shown in ABEF lane in plaint plan. But, during the cross- examination by the counsel for 1st defendant, Pw1 admitted that he has no right over the place where he is running Chappal shop and he did not obtain any permission from Rajamahendravaram Municipal
Corporation to do business in the plaint schedule property. He further admitted that the site in which he is doing Chappal business is a foot path which is towards West i.e., road leads to Vijaya Talkies and that the 1st photographs out of 14 photographs in Ex.A11 depicts his chappal shop in front of Delux hotel which were taken 20 years back and that the place shown as CDEF in plaint plan is different from the place of chappal shop depicted in 1st photograph in Ex.A11. Surprisingly, he admitted that he is not claiming
any relief over the place in which the chappal shop depicted
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in 1st photographs in Ex.A11. He further admitted that the photgraphs Nos.5 and 6 under Ex.A11 in which chappal shop is depicted is different place which is shown as CDEF in plaint plan. He further deposed that there is municipal drainage beneath the area where chappal shop is located in photographs 5 and 6 under Ex.A11.
He further deposed that property situated within compound
wall as shown in plaint rough plan is the private property of
2nd defendant and his family members and that he has no
right in the said property. In view of clear admission of Pw1,
it is suffice to say that he has no right to claim the
possession of ABEF property since it is a private property.
Therefore, in view of own admission by the plaintiff as Pw1, it can be said that the relief claimed by the plaintiff for declaration of possession over ABCD marked portion and the consequential relief of mandatory injunction for removal of the wall as shown in 'AEF' is absurd and illegal.
20.The plaintiff also filed Ex.A.15 is the OP Ticket, dt.9.4.2015 issued by A.P.Vaidya Vidhana Parishad issued in his name. Except the said OP Ticket, he did not file any medical record for taking treatment on that day. However, in view of his admission in his cross- examination, it can be said that the said OP ticket is a created one for the purpose of this suit. Further the plaintiff marked the certified copies of documents which are obtained by him under RTI Act. Viz.,
Ex.A.16: NoticeissuedbyMunicipalcorporation,
Rajamahendravaram, dt. 14.02.2022 to Jasti Uma Maheswara rao and others, owners of the Deluxe Hotel directing for repairing any damage occurred to the Chappal buddy, for not taking of any 21
OS.318/2015 of IV ACJ(JD);RJVRM
construction in the premises and to maintain the premises clean and neat as it may cause damage to the public health and to follow order of the Hon'ble Court until disposal of the case, Ex.A.17: True copy of letter dt. 4.2.2022 issued by Sub-Collector, Rajamahendravaram issuedtotheCommissioner,MunicipalCorporation,
Rajamahendravram to conduct enquiry on the legal notice issued by the Sri S.Rama Krishna, Advocate dt. 21.01.2022 and to take action accordingly; Ex.A.18:Certified copy of Report submitted by
Municipal Corporation, Rajamahendravaram to the Commissioner &
Director of Municipal Administration & Urban Development
Department, Mangalagiri, dt. 16.2.2022; Ex.A.19 is Copy of to A16
Report , dt. 16.02.2022 marked to plaintiff. Further he also got marked Ex.A.20: True copy of notice, dt. 30.07.2021 issued by the
Town Planning Section, Municipal Corporation, Rajamahendravaram, to J.Uma Mahaheswara rao and two others. Ex.A.21: Original endorsement dt. 31.03.2022 issued by Public Information officer, City
Planner, Municipal Corporation, Rajamahendravaram on the RTI application of the plaintiff. Ex.A.22: Photographs 4 in number along with CD. On seeing Ex.A.22 photograph depicts some cement bricks are lying on the footpath and also depicts the date and time as 8.7.2016 at 10.46 am , Ex.A.23:Photographs 7 in number along with
CD which were taken on 16.08.2021 at 11.50 am and 17.08.202117.08.2021 at 1.30 pm which depicts some repairs are making to the building which was existed adjacent to the Municipal drainage, Ex.A.24: True copy of Proceedings Memo No.
1531342/IOC/2021, dt., 11.10.2021 of Government of AP Municipal
Administration and Urban Development(IOC) Department issued to the Commissioner, Rajahmahendravaram, for taking necessary action 22
OS.318/2015 of IV ACJ(JD);RJVRM
in the matter. As can be seen from the above documents that the plaintiff made application before the Police authorities and
Government of A.P.Municipal Administration and Ubrban
Development, Commissioner to take action against the Jasti
Umamaheswara rao as he is violating the orders of Temporary
Injunction orders in this suit and he also got photographed for the repairs being done by the said Jasti Uma Maheswara rao. As can be seen from those documents, which do not in any helpful to the case of the plaintiff in view of own admission as stated supra and if really, the 2nd defendant had violated the injunction orders passed by this
Court in this suit, then plaintiff ought to have approach the Court to take action against the 2nd defendant, but no such application is filed by the plaintiff to take action against the 2nd defendant for violation of injunction orders of this Court. Therefore, much reliance cannot be given to those documents.
21. Further in support of his aversion, the plaintiff got examined
Pw2, but his evidence is no way helpful to the case of plaintiff since he clearly deposed that he does not know the contents of his affidavit as Para No.3. Hence, the evidence of Pw2 cannot be considered.
22.On the other hand the defendants 1 &2 got examined as
D.Ws.1 and 2 respectively, Though the learned counsel for the plaintiff cross-examined Dws.1 and 2, nothing worthwhile was elicited from them to discard their evidence, except mere suggestions which were denied by them. Similarly, the Building Inspector(Incharge) of
Municipal Corporation, was examined as Dw3 whose evidence also did not traverse by the plaintiff and nothing was elicited from him in 23
OS.318/2015 of IV ACJ(JD);RJVRM
support of his case and on the other hand, the evidence of Dw3 is gives more strength to the case of defendants that there is a foot path in front of the Deluxe Hotel in the height of two feet from the main road and generally corporation authorities will remove any shops of street vendors on the foot path which are causing inconvenience to the pedestrians, without giving any prior notice to the sellers. Dw3 clearly deposed that in the year 2015, in view of
Godavari Puskaras, the Municipal Corporation authorities have made repairs and and widen the Municipal Drainage in front of Deluxe hotel., where a road which leads to Sai Krishna Theatre road i.e.
Southern side to the Deluxe hotel, which is a public property. Further he deposed that since the footpath is a public property, it cannot be encroached by any one either street hawkers or any petty business people in causing inconvenience to the pedestrians. He further deposed that Corporation authorities have right to remove any illegal occupants on the foot path without any prior notice and as per the instructions given by the Governments of AP, in view of Godavari
Puskharas in the year 2015, the Corporation authorities have removed the unauthorised occupants like plaintiff on the foot path.
Further he deposed that they have not collected any dangerous and offence of trade license from the plaintiff since 2015.
23.Therefore, in view of the evidence elicited by the defendants 2 and 3 from Dw3 and in view of the admission of the plaintiff as Pw1, it is clear that the 3rd defendant corporation have only removed the shops of the unauthorised occupants on the pavements in view of
Godavari Puskharas in the year 2015 like plaintiff. Further as can be seen from Exs.B.1 and B2 which reveals that 1st defendant was 24
OS.318/2015 of IV ACJ(JD);RJVRM
the lessee of the property which is popularly known as Deluxe hotel which is situated by the side of the main road, Rajamahendravaram and because of disputes between him and his lessors which were went upto Hon'ble Hgh Court of Judicature for the States of
Telangana and A.P. at Hyderabad for 2nd Appeal and during pendency of the said Appeal, he surrendered the leasehold premises of Deluxe Hotel to his lessors and a memo was filed before the Hon'ble High COurt and teh said fact was recorded in the said
Appeal and ultimately, the said 2nd Appeal was dismissed on 26.03.2015. Therefore, since the 1st defendant has already vacated the Deluxe hotel premises and handed over the same to it owners i.e.
2nd defendant i.e. 26.03.2015 prior to the date of alleged cause of action, it can be said the plaintiff made allegation against the 1st defendant for the purpose of this case, hence, the case set up by the plaintiff cannot be not believable.
24.Therefore, in view of the above discussion and in view of the evidence elicited from the Pw1 by the defendants, the relief of declaration of his possession by the plaintiff over the property of 3rd defendant corporation and 2nd defendant without having any right or title or interest in the absence of any plausible evidence is not at all considerable and is nothing but misconception. Therefore, this Court has no hesitation to hold that the plaintiff has miserably failed to establish his case to get the relief of declaration of his possession over the ABCD portion as shown in plaint plan and for consequential relief of mandatory injunction to direct the defendants No.2 who is the owner of the Deluxe Hotel to remove compound wall as shown as
AEF red marked lane in plaint plan since it is well within their own 25
OS.318/2015 of IV ACJ(JD);RJVRM
site. Accordingly, this issue is answered negatively against the plaintiff.
ISSUE No.3: Whether the plaintiff is entitled for permanent injunction against the defendants, as prayed for?
25.The learned counsel for the plaintiff argued the the plaintiff is running cheppal shop in front of the Deluxe hotel since 20 years by paying necessary taxes to the Corporation. Hence, he shall be protected in accordance with the rules and regulations to safeguard the platform vendors as per the Bill made by the Parliament of India made a bill in the name and style of "The Street Vendors(Protection of Livelihood and Regulations of Street Vendors) Bill,2012,. He also relied upon two decisions reported in 1) Between Maharastra
Ekata Hawkers Union and others vs. Municipal Corporation,
Greater Mumbai and others, dt. 9.9.2013; (2).Sodan Singh
Etc. Etc. vs. New Delhi Municipal Committee & Another, etc.,
dt. 30.08.1989, reported in AIR 1989 Supreme Court 1988.
26. But facts and circumstances of those cases are not applicable to the case on hand, since their Lordships have issued some guidelines to safeguard the the platform vendors who are paying necessary taxes to do their business at any place and similarly also issued some rules and regulations to the authorities to regulate the unathorised occupants on the public place and pathways causing inconvenience to the public to use path ways or pavements. But in instant case, the plaintiff claiming relief of permanent injunction 26
OS.318/2015 of IV ACJ(JD);RJVRM
over the footpath on the drainage which is absolutely Government
Property adjacent to the private property of 2nd defendant.
27. On further perusal of the record, during cross-examination,
Pw1 deposed that his shop is not a permanent structure and it is only a temporary stand erected by him and that he did not obtain any permission from the Municipal authorities for erecting his chappal shop and he is paying taxes for erecting such shop but he does not know which type of tax he is paying to the Muncipal
Corporation whether it is encroachment or not. He further deposed that he did not file any license or tax receipts before the court to show that his shop is situated on the platform since 2017 to till today. Admittedly, no encroachment taxes were collected by D3 authorities from 2017 onwards. Further, he admitted that no relief was claimed by the plaintiff against the D3 corporation. Except
Exs.A.4 to A.9 tax receipts which donot confer any right to the plaintiff over the ABCD portion as shown in plaint plan. Therefore, except the pleadings of plaintiff which is self-styled statements which are traversed by defendants during cross-examination, no other oral oral documentary evidence adduced by plaintiff. Therefore, without having any license or receipt to do business at the place as shown as
ABCD portion in the plaint plan as per the guidelines as enacted by the Parliament, claiming the relief of Permanent Injunction is not at all reasonable.
28. On the other hand, the learned cousnel for the 2nd defendnat relied two decisions reported in (1)AIR 1969 AP 136 in between
Movva Butchamma vs Movva Venkateswara rao and others
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dt. 29.08.1967 and (2) 1988 (2) APLJ 469 in between
Satarboyina Someswara Rao and others vs. Sangasetti
Tirupathamma and others. While rendering the Judgment between Satarboyina Someswara Rao and ors vs. Sangasetti
Tirupathamma & ors. his Lordship relied upon Movva Butchamma vs
Movva Venkateswara rao and others, held at Para 25 that ".... No person can be allowed to occupy a portion of a public road, a highway, or even a public path way and argue that even after his encroachment, there is sufficient space left for public to pass by. He cannot be the Judge of the requirements of the public, nor can be decide for himself what extent must be left for public use and what extent must be occupied by him. At this rate, anybody will be free to occupy a portion of such public streets, highways and roads with the specious argument that there is still space left for public to pass by. Slowly these encroachments may become permanent. It is evident that such course cannot be permitted" Further in the same para, it is held that "No one has right to make use of a public property for a private purpose without the requisite authorisation and therefore are, it is erroneous to contend that the pavement dwellers have the right to encroach upon pavements by constructing dwelling thereon. Public Street of which pavements from a part, are primarily dedicated for the purpose of passage and, even the pedestrains have but the limited right of using pavements for which pavements are made, his use thereof is legitimate and lawful. But if a person puts any public property to a use for which it not intended and is not authorised so to use it, he became a trespasser".
29. The facts and circumstances of the above case are aptly applicable to the facts and circumstances of the case on hand.
Therefore, in view of the above decision of the erstwhile High Court of Andhra Pradesh at Hyderabad and further that the 2nd defendant who is the owner of the Deluxe hotel has every right to use the path 28
OS.318/2015 of IV ACJ(JD);RJVRM
way which is situated infront of his property for frees access from his property to reach the Road and no pavement dwellers have right to encroach upon pavements by erecting any shop like plaintiff in front of the Deluxe Hotel. Therefore, in view of the above discussion and in view of finding on Issue No.2, it can be said that the plaintiff has miserly failed to establish his case and as such he is not entitled for the equitable relief of injunction even over the CDEF portion as prayed for. Accordingly, this issue is answered against the plaintiff.
ISSUE No.4:
30. In view of the above findings on issues Nos.2 and 3, the plaintiff is not entitled for the declaration to declare his possession over the plaint schedule ABCD property and also not entitled for consequential relief of either mandatory Injunction for direction to remove the compound wall as shown AEF red marked portion of plaint plan or the equitable relief of permanent injunction against the defendants, as prayed for.
31.In the result, the suit is dismissed without costs.
Typed to my dictation, corrected and pronounced in open Court on this the day of 23rd, April, 2025.
IV Additional Civil Judge(Junior Division), Rajamahendravaram.
APPENDIX OF EVIDENCE
WITNESSES EXAMINED FOR
P laintiff :
Pw1: Tummala Subrahmanyam(plaintiff) Pw2: Mohammed Rafi(brother-in-law of plaintiff)
Defendant s:
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OS.318/2015 of IV ACJ(JD);RJVRM
Dw1: K.Rajenda Prasad( 1st defendant) Dw2: J.Uma Maheswara Rao(2nd defendant) Dw3: Seelam Veeraraghavulu(authorised person of 3rd defendant corporation)
Documents marked for: Plaintiff: Ex.A.1: Certified copy of decree in OS. 291/2008 filed by the plaintiff against the 1st defendant herein.
Ex.A.2: Certified copy of Order in I.A. 599/2008 in OS.291/2008 filed by the plaintiff against 1st defendant herein.
Ex.A.3: Copy of legal notice issued to D3/Municipal Corporation,
dt. 14.04.2015
Ex.A.4:Challan dt.19.02.2015 for Rs.531/- paid to Municipal Corporation, Rajamahendravaram
Ex.A.5: Another challan for the year 2014-15 for Rs.531/- paid to Municipal Corporation, Rajamahendravaram.
Ex.A.6: Certified copy of challan for the year 2013-14 for Rs.213/- paid to Municipal Corporation, Rajamahendravaram.
Ex.A.7: Certified copy of challan for the year 2012-13 for Rs.213/- paid to Municipal Corporation, Rajamahendravaram.
Ex.A.8: Certified copy of challan for the year 2011-12 for Rs.213/- paid to Municipal Corporation, Rajamahendravaram.
Ex.A.9: Certified copy of challan for the year 2018-09 for Rs.180/- paid to Municipal Corporation, Rajamahendravaram.
Ex.A.10: Copy of the letter addressed by the plaintiff to the police authorities, dt.6.4.2015(Subject to objection by the learned counsel for D2 for admissibility of document without filing original)
Ex.A.11: Photographs 14 in number along with CDs in 5 in number(Subjet to objection for want of 65-B certificate)
Ex.A.12: Certified copy of Decree in CMA NO. 5/2009 on the file of HOn'ble I ADJ, Rajamahendravaram 30
OS.318/2015 of IV ACJ(JD);RJVRM
Ex.A.13:Certified copy of petition affidavit along with docket orders in I.A. No. 535/2013 in OS.291/2008 on the file of I AJCJ,RJY.
Ex.A.14: Delivery run sheet of DTDC courier receipts, dt. 15.04.2015
Ex.A.15:Original OP Ticket of GGH, Rjy, dt. 09.04.2015
Ex.A.16:Copy of notice issued by Municipal coproation, Rajamahendravaram, dt. 14.02.2022 under RTI (Subject to objection with regard to proof and relevancy of documents as it is not in accordance with the RTI Act)
Ex.A.17:Certified copy of Notice, dt. 4.2.2022 issued by Municipal corporation, Rajamahendravaram under RTI Act(Subject to objection with regard to proof and relevancy of documents as it is not in accordance with the RTI Act)
Ex.A.18:Certified copy of Notice, dt. 16.2.2022 issued by Municipal corporation, Rajamahendravaram under RTI Act(Subject to objection with regard to proof and relevancy of documents as it is not in accordance with the RTI Act)
Ex.A.19: is endorsement to A16, dt. 16.02.2022 addressed to plaintiff.
Ex.A.20: True copy of notice, dt. 30.07.2021 issued under RTI aCT.
Ex.A.21: Original endorsement dt. 31.03.2022 issued by Public Information officer, City Planner,Municipal Corporation, Rajamahendravaram
Ex.A.22:Photographs 4 in number along with CD(subject to objection for want of 65-B Certificate.
Ex.A.23:Photographs 7 in number along with CD(subject to objection for want of 65-B Certificate.
Ex.A.24:True copy of Proceedings Memo NO. 1531342/IOC/2021, dt., 11.10.2021 of Government of AP Municipal Administration and Urban Development(IOC) Department.
Defendants:
Ex.B.1: Certified copy of Judgment of Hon'ble HIgh COurt of Judicature at Hyderabad for the states of Telangana and AP in 2nd Appeal NO. 344/2009, dt. 26.03.2015 31
OS.318/2015 of IV ACJ(JD);RJVRM
Ex.B.2: Certified copy of Judgment of Hon'ble HIgh COurt of Judicature at Hyderabad for the states of Telangana and AP in 2nd Appeal No. 344/2009, dt. 26.03.2015 Ex.B.3: Authorisation letter for Dw3 to give evidence.
IV ACJ(JD):RJVRM 32
OS.318/2015 of IV ACJ(JD);RJVRM
Date of presentation: 12.05.2015 Date of filing: 25.05.2015
IN THE COURT OF THE IV ADDITIONAL CIVIL JUDGE
(JUNIOR DIVISION): RAJAMAHENDRAVARAM
Present : P.S. SUDHA,
IV Additional Civil Judge(Junior Division), Rajamahendravaram.
Wednesday, the 23rd day of April,2025
O.S.No.318/2015
Between: Tummala Subrahmanyam, S/o Ranga Swamy, Hindu, aged about 47 years, chappal Selling Business, Deluxe Centre, Main road, Rajahmundry, R/o D.No.35-11-24, Mangalavarapupeta, Rajahmundry, East Godavari District, J.C.J. Rajahmundry. ….Plaintiff And: 1.Kethineni Rajendra Prasad, S/o Nageswara Rao, Hindu, aged about 57 years, r/o D.No.6-5-2, Deluxe Hotel, Main Road, Rajahmundry, East Godavari District, J.C.J. Rajahmundry.
2.Jasti Uma Maheswara Rao, S/o late Venkata Kotayya, Hindu, Aged about 50 years, r/o. D.No.6-5-2, Deluxe Hotel, Main road, Rajahmundry, East Godavari District, J.C.J. Rajahmundry.
3.The Commissioner, Municipal Corporation, Municipal Office, Rajahmundry, East Godavari District, J.C.J. Rajahmundry. ….Defendants
This is the suit filed by the plaintiff against defendants seeking relief of declaration declaring him that he is in continue possession and enjoyment of the plaint schedule ABCD property and for consequential mandatory injunction to remove the wall shown in the plaint plan as Red colour i.e., AEF and for permanent injunction restraining defendants, their men, their agents, their followers and 33
OS.318/2015 of IV ACJ(JD);RJVRM
successors in interest from interfering with the plaintiff’s peaceful possession and enjoyment of the plaint schedule property i.e. EFCD portion, for selling chappals by using wooden stand and for costs of the suit.
Value of the suit :The suit is filed for declaration of 4 sq.yars i.e. at Rs.36,000/- is Rs.1,44,000/-. On this 1/2 value is under Section 24(b) of APCF and SV Act is Rs.72,000/-. On this a Court fee of
Rs.2,866/- is paid thereon under section 24(b) of APCF and S.V.Act.
The relief of permanent injunction is avalued at Rs.5,000/-. On this a court fee of Rs.411/- is paid under section 26(c) of APCF and
SV Act.Thus the total value of the suit is Rs.77,000/- and total court fee is paid Rs.3,277/-.
This suit came up on 17.04.2025 for final hearing before me in the presence of Sri Dokala Srinivasa Rao, Advocate for the plaintiff and of Sri G.V.V.Satyanarayana, Advocate for the 1st defendant and of Sri Ch. Prabhakara Rao, Advocate for the 2nd defendant and of Sri
K. Sunil Lionel, Advocate for the 3rd defendant and upon perusing the material on record and having stood over for consideration till this day, this court Doth order:
D E C R E E
(i) that the suit be and the same is hereby dismissed ;
(ii) that there be no costs.
*** Copy of the plaint schedule and the copy of rough plan hereby appended.
Given under my hand and Seal of the Court, this the 23rd day of April,2025.
IV ADDL.CIVIL JUDGE(JUNIOR DIVISION),
RAJAMAHENDRAVARAM.
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OS.318/2015 of IV ACJ(JD);RJVRM
Memorandum of Costs
For Plaintiff: For defendants:
No costs memo is filed Costs memo filed by 1st defendant:
Stamp on vakalat: 2-00 Advocate fee: 10,000-00 Typing charges: 200-00 ------------------- Costs taxed: 10,202-00 ----------------- -
IV ACJ(JD):RJVRM
Note: The parties shall apply, as soon as possible, for the return of documents which they may wish to preserve, as the record and exhibits are liable for destruction as per the rules for destruction of records.
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OS.318/2015 of IV ACJ(JD);RJVRM