Sri T Suryanarayana

IN THE COURT OF THE III ADDITIONAL CHIEF JUDGE:CUM:

MOTOR ACCIDENTS CLAIMS TRIBUNAL: CITY CIVIL COURT: AT HYDERABAD

Dated this the 22nd day of November, 2012.

PRESENT: SRI T.SURYANARAYANA,

IX ADDL.CHIEF JUDGE (FTC)

FAC III ADDL.CHIEF JUDGE

O.P.No.935 of 2011

Between:-

1. Bomma Mangamma w/o B.Narsimha,

2. Bomma Nagamani w/o B.Narsimha,

3. Bomma Lavanya w/o M.Srinivas,

4. Bomma Linga Swamy s/o B.Narsimha,

5. Bommba Sandya Rani D/oB.Narsimha,

6. Bomma Machaynder s/o B.Narsimha.

...PETITIONERS

And

1. B.Laxmamma, w/o Shankaraiah,

2. The Manager, Shri Ram General Insurance Company, Himayathnagar, Hyderabad. ...RESP0NDENTS

This petition coming on for final disposal before me in the presence of Sri S. Chandraiah, Advocate for the petitioners and of

Sri S.Venkatesh Gupta, Advocate for the 2nd respondent and the 1st respondent having called absent and set exparte and the matter having stood over for consideration till this day, this Tribunal made the following:- : O R D E R :

1.This petition was filed under Section 166 of Motor

Vehicles Act, 1988, claiming a compensation of Rs.6,00,000/-

2.The six petitioners were residents of Golenpally village of

Valigonda mandal, Nalgonda District. Their present residence is at

House No. 16-6-122, near Moosarambagh, Hyderabad. The ­2­ O.P.No.935/2011 deceased-B.Narsimha s/o Shivaiah is the husband of the 1st and 2nd petitioners and father of petitioners 3 to 6. He was aged about 45 years and was working as cook and was earning Rs.10,000/- per month.

On 24-12-2010, at about 7.30 PM., the deceased was returning to his house on a motor cycle bearing No. AP 29U 2150, after completing his professional work in a marriage party at

Valigonda. When he reached the outskirts of Nagaram village on

Valigonda – Choutuppal road, one Lorry bearing No. AP 24AH 302 was driven by its driver at high speed and in a rash and negligent manner and dashed it to the motor cycle of the deceased from his behind and as a result, he fell down frfom the motor cycle and the tyre of the lorry ran over him and he sustained fatal injuries and died on the spot. By the date of the accident, the deceased was aged 45 years and he got two wives, namely, the petitioners 1 and 2, two daughters and two sons, namely, the petitioners 3 to 6. He was working as a cook in marriage parties and functions and used to earn Rs.10,000/- per month and was contributing the same for the maintenance of the petitioners, who are his legal representatives.

Due to his sudden death in the accident of this case, the petitioners not only lost his love and affection, but also lost their livelihood and hence prayed for awarding a compensation of Rs.6 lakhs, together with interest and costs. Police of Valigonda Police Station, registered a case in crime No. 128/2010, under Sec. 304 (A) IPC ­3­ O.P.No.935/2011 against the driver of the crime lorry. The 1st respondent is the owner of the crime lorry and the 2nd respondent is its insurer as per the policy bearing No. 10003/31/11/109516, which was valid from 08-7-2010 to 07-07-2011. Hence, both the respondents are jointly and severally liable to pay compensation of Rs.6 lakhs together with interest and costs.

3.The 1st respondent remained exparte.

4.In its counter, the 2nd respondent denied the averments and allegations made in the petition and put the petitioners to strict proof of the same. The 2nd respondent alleged that the driver of the crime lorry had no driving licence by the date of the accident and as such the owner and driver of the crime lorry violated the provisions of M.V.Act and hence the 2nd respondent is not liable to pay the compensation. The 2nd respondent also contended that the claim for compensation of Rs.6 lakhs is highly excessive and exorbitant.

The 2nd respondent further contended that the accident occurred when the motor bike driven by the deceased hit to another motor bike and the petitioners intentionally suppressed the said fact and, thus, the petition is not maintainable for non-joinder of necessary parties, namely, the owner and insurer of the other motor bike to which the motor bike of the petitioner dashed at the time of the accident. The 2nd respondent alleged that the petitioners are in collusion with the 1st respondent and hence the 1st respondent did ­4­ O.P.No.935/2011 not inform about the accident to it and hence it is not liable to pay the compensation. The 2nd respondent sought protection under Sec.

147, 149 and 170(b) of M.V.Act. The 2nd respondent reserved its right to file additional counter and prayed to dismiss the petition with costs.

5.The following issues were framed.

1. Whether the deceased died in the accident on 24-12-2010 due to the rash and negligent driving of the driver of the Lorry bearing No. AP 29U 2150?

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

3. To what relief?

6.In support of their case, the petitioners have examined the 2nd petitioner as P.W-1 and also examined Jilla Chandraiah as

P.W-2 and got marked Exs.A-1 to A-7 through P.W-1. On behalf of the 2nd respondent, P.Ws 1 and 2 were cross-examined. On behalf of the 2nd respondent, its learned advocate reported no oral evidence. During the cross-examination of P.W-1, the xerox copy of her voter I.D. card and xerox copy of her ration card were marked as

Exs.B-1 and B-2. The learned advocate for the 2nd respondent also marked the copy of the insurance policy of the crime lorry as Ex.B-3 with consent.

7.Heard the learned advocates for both sides. On behalf of the 2nd respondent written arguments were also filed.

­5­ O.P.No.935/2011

8.ISSUE NO.1

In her affidavit-in-chief, the 2nd petitioner has reiterated the averments of the petition and marked the certified copy of the

F.I.R. as Ex.A-1, certified copy of the inquest report as Ex.A-2, certified copy of the post-mortem examination report as Ex.A-3, certified copy of M.V.I. report as Ex.A-4, certified copy of scene of offence panchanama as Ex.A-5 and certified copy of charge-sheet as

Ex.A-6.

In her cross-examination, P.W-1 has identified Exs.B-1 and B-2 as her voter identity card and ration card respectively. She admitted that, as per the documents filed by her, one Hero Honda

Shine motor cycle bearing No. AP 24N 2159 was responsible for the accident and its owner belongs to Gurunathpally village, Nalgonda

District. She denied that they have intentionally omitted to make the owner and insurer of the said motor cycle as parties to this case.

She denied that the accident occurred due to negligence of the rider of the said motor-cycle and the deceased, and that, there was no negligence on the part of the driver of the crime lorry, and that, the deceased was aged 50 years by the date of the accident, and that, the deceased was not doing any work and was not earning any amount, and that, she is not entitled for any compensation, and that, the 2nd respondent is not liable to pay any compensation, since the 2nd respondent did not issue any policy for the crime lorry, and ­6­ O.P.No.935/2011 that, she was deposing contrary to the documents filed by her, and that, the documents filed by her were created for the purpose of this case.

In his chief-examination, P.W-2 stated that he was a resident of Golnepally village of Valigonda mandal, Nalgonda

District. According to him, the accident took place on 24-12-2010, at about 7.30 PM., near Nagaram cross roads on Choutuppal road.

At that time, he was waiting for an auto at the bus stop to go to his village. He saw a motorcyclist proceeding towards Choutuppal side on the left side of the road. While so, a Lorry bearing No. AP 29U 2150 dashed to his motor-cycle from behind and as a result, the motorcycle on which the deceased was proceeding hit to the opposite coming motorcycle. The deceased fell down towards his left side and the wheels of the lorry ran over the stomach of the deceased. The other motorcyclist fell down on the tar road.

Immediately after seeing the accident, he rushed to the spot and identified the deceased as Bomma Narsimha of his village and in the meantime people gathered there and the driver of the crime lorry jumped down from the cabin and ran over. He informed the accident to the first wife of the deceased-Mangamma and after the son of the deceased came to the spot, they went to the police station. He also stated that the deceased was aged 45 years and used to work as a cook in the marriage functions and other family functions in and around the village. On one occasion, he also ­7­ O.P.No.935/2011 engaged the services of the deceased for the marriage of his daughters and paid Rs.1,500/- for three days. Finally, P.W-2 stated that the police examined him.

In his cross-examination, P.W-2 admitted that the road at the accident place was a straight road and at the time of the accident, there was no light and there was no bus stop and he was the only person waiting near the auto stand. He denied that the driver of the crime lorry was not responsible for the accident, and that, the entire negligence was on the part of the motor-cyclist, and that, he was not the present at the place of the accident and did not see the accident and did not take the injured person to the hospital, and that, he was not examined by the police of Valigonda Police

Station, and that, he was deposing falsehood to help the petitioners, as the deceased was his childhood friend.

From Exs.A-1 to A-6, which were not challenged on behalf of the 2nd respondent, it is clear that the accident of this case took place on 24-12-2010, at about 7.00 hours, when the deceased-

Narsimha was returning to his village from Valigonda on his motor- cycle bearing No. AP 24 AH 302. When he reached the outskirts of

Nagaram village, near Railway gate, at about 1930 hours, one

Panthulu Srinivas, who was the rider of the Hero Honda Shine motorcycle bearing No. AP 24N 2159 drove his motorcycle opposite to the motorcycle of the deceased in a rash and negligent manner ­8­ O.P.No.935/2011 and dashed the same to the motorcycle of the deceased and as a result of the same, the deceased fell down on the road along with his motorcycle and, in the meanwhile, the driver of the crime Lorry bearing No. AP 29U 2150 drove the same in a rash and negligent manner and at a high speed and ran over the same on the deceased and as a result the deceased sustained severe bleeding injuries and died on the spot. After the said occurrence of the accident, the driver of the crime lorry and the rider of the motorcycle bearing No.

AP 24N 2159 escaped from the scene of the offence by leaving their vehicles at the spot. The accident was witnessed by P.W-2. He was cited as eye-witness in the charge-sheet filed by the police. The driver of the crime lorry was charged with the offence under

Sec.304 (A) IPC and the rider of the crime motorcycle was charged with the offence under Secs. 304 (A), 181 and 196 of M.V.Act.

During the cross-examination of P.Ws 1 and 2, it was tried to show on behalf of the 2nd respondent that only due to sole negligence on the part of the driver of the crime motor bike, the accident took place, and that, there was no negligence on the part of the driver of the crime lorry. However, on the basis of the charge-sheet filed by the police, which is neither challenged nor disputed on behalf of the 2nd respondent, it must be held that the driver of the crime lorry was also guilty of rash and negligent driving of the crime lorry at the time of the accident, when the crime lorry driven by him ran over the deceased at the place of the accident and as a result of which ­9­ O.P.No.935/2011 the deceased sustained severe bleeding injuries and died on the spot. As such, on the basis of Exs.A-1 to A-6 and the evidence of

P.Ws 1 and 2, it is held that the accident of this case took place due to rash and negligent driving of the crime lorry by its driver at the time of the accident and, in such accident, the deceased was ran over by the crime lorry and as a result of which he sustained severe bleeding injuries and died on the spot. Accordingly, the first issue is decided in favour of the petitioners.v

9.ISSUE No.2

(a)The case of the petitioners is that the petitioners 1 and 2 are the wives and petitioners 3 to 6 are the children of the deceased. In this regard, Exs.B-1 and B-2 were produced by the 2nd respondent and were marked during the cross-examination of

P.W-1. They are the xerox copies of voter identity card of the deceased and the ration card of the deceased. Ex.B-1 shows the age of the deceased as 40 years, as on 1-1-2003. Ex.B-2 shows the names of P.W-1 as wife and petitioners 5 and 6 as children of the deceased as on 12-10-2006, on which date the ration card was issued to the deceased. On behalf of the petitioners, no evidence was let in to prove that the 2nd petitioner is the second wife of the deceased and the petitioners 3 and 4 are her children. Therefore, it is held that the petitioners 2, 3 and 4 are not the legal heirs of the deceased and hence they are not entitled to claim the ­10­ O.P.No.935/2011 compensation along with other petitioners due to the death of the deceased in the accident of this case.

(b)Under all heads, the petitioners have claimed Rs.6 lakhs for the death of the deceased in the accident. Their case is that by the time of the accident, the deceased was earning

Rs.10,000/- by working as cook in marriage parties and other functions. However, no evidence was let in to prove that the deceased was earning Rs.10,000/- as a cook. But, on the basis of the decision of the Hon'ble Supreme Court of India, reported in 2011 (6) ALD-75 SC, the income of the deceased can be treated as

Rs.4,500/- per month and out of it, 1/3rd has to be deducted towards his personal expenses. Thus, it comes to Rs.3,000/- per month and

Rs.36,000/- per annum. It was already noted above, as per Ex.B-1, the age of the deceased is 40 years as on 01-1-2003. If that be so, his age must be 48 years by the date of the accident. Accordingly, the age of the deceased by the date of the accident is treated as 48 years. As per the Second Schedule of M.V.Act, the multiplier applicable to the age group of 45 to 50 years, is '13'. If the annual income of the deceased is multiplied with '13', then the loss of dependency comes to Rs.4,68,000/-. Thus, the petitioners 1, 5 and 6 are entitled to a compensation of Rs.4,68,000/- due to the death of the deceased. There is no dispute that the petitioners 1, 5 and 6 are the dependents on the earnings of the deceased by the date of his death. As such, for the death of the deceased, they are entitled ­11­ O.P.No.935/2011 for the said amount for the loss of their maintenance. Apart from the above, the petitioners have also claimed Rs.5,000/- towards transportation to the hospital, Rs.35,000/- towards damages to clothes and motor bike of the deceased, Rs.15,000/- towards loss of estate, love and affection, Rs.15,000/- as compensation for pain and suffering and Rs.10,000/- for loss of future earnings. Thus, the claim of the petitioners under all other heads comes to Rs.80,000/-.

Due to the sudden death of the deceased in the accident, the petitioners have not only lost love and affection of the deceased but also suffered mental agony and loss of estate. It is also borne out from the record that the deceased suffered severe bleeding injuries when the lorry ran over his stomach. As such, his clothes must have been damaged in the accident. At the same time, it is also to be noted that the accident occurred when other motor bike hit to the motor bike of the deceased in the opposite direction. As such, the motorcycle of the deceased also must have been damaged in the accident. Keeping in view the said facts, it is just and necessary to award a compensation of Rs.50,000/- to the petitioners 1, 5 and 6 under all other heads of compensation. Thus, in all the petitioners areentitledtoacompensationofRs.5,18,000/- (Rs.4,68,000+50,000) together with interest at the rate of 7% per annum from the date of the petition till the date of deposit and proportionate costs.

(c)There is no dispute that the 1st respondent is the ­12­ O.P.No.935/2011 owner of the crime lorry and the 2nd respondent is its insurer as per

Ex.B-3 policy, which was in force by the date of the accident. As per the report of the Motor Vehicle Inspector Report, the certified copy of which was marked as Ex.A-4, the crime lorry was having fitness certificate for the period from 29-10-2010 to 28-10-2011 and its driver was holding a valid and effective driving licence bearing

DLRAPO24 6025 2009 issued by the RTA Nalgonda and the same was valid upto 06-03-2012. Hence, it is also clear that the driver of the crime lorry was holding valid and effective driving licence by the date of the accident. Therefore, it is held that both the respondents are jointly and severally liable to pay the compensation of

Rs.5,18,000/- together with interest at the rate of 7% per annum from the date of the petition till the date of deposit and proportionate costs. Accordingly, the Issue No.2 is decided partly in favour of the petitioners 1, 5 and 6, to the extent indicated above.

10.ISSUE NO.3

IN THE RESULT, the petition is allowed partly and the petitioners 1, 5 and 6 are awarded a compensation of Rs.5,18,000/- (Rupees five lakhs and eighteen thousand only) together with interest at the rate of 7% p.a. from the date of the petition till the date of deposit and proportionate costs. Both the respondents are jointly and severally liable to pay the said compensation and they are directed to deposit the same within two months. The 1st ­13­ O.P.No.935/2011 petitioner, being the wife and the petitioners 5 and 6, being the children of the deceased are entitled to take the said compensation at Rs.3,00,000/-; Rs.1,09,000/0 and Rs.1,09,000/- respectively. On deposit of the compensation, all the three petitioners are entitled to withdraw Rs.50,000/- each from their respective shares and the balance of compensation of all the three petitioners shall be kept in

Fixed Deposit in any Nationalised Bank for a period of one year.

However, the petition of petitioners 2, 3 and 4 is dismissed without costs. Advocate's fee is fixed at Rs.5,000/-.

Dictated to the Senior Assistant, transcribed by him,

corrected and pronounced by me in open court on this the 22nd day of November, 2012.

FAC III ADDL.CHIEF JUDGE

CITY CIVIL COURT: HYDERABAD

APPENDIX OF EVIDENCE

WITNESSES EXAMINED FOR

PETITIONERS RESPONDENT No.2

P.W-1: B. Nagamani-None- P.W-2: J.Chandraiah

DOCUMENTS MARKED FOR PETITIONERS

Ex.A-1: Certified copy of F.I.R. Ex.A-2: Certified copy of Inquest report, Ex.A-3: Certified copy of P.M.E. report, Ex.A-4: Certified copy of M.V.I. report, Ex.A-5: Certified copy of scene of offence panchanama Ex.A-6: Certified copy of charge-sheet, Ex.A-7: Xerox copy of insurance policy.

­14­ O.P.No.935/2011

DOCUMENTS MARKED FOR RESPONDENT No.2

Ex.B-1: Copy of voter identity card of deceased, Ex.B-2: Copy of ration card Ex.B-3: Copy of insurance policy

FAC III ADDL.CHIEF JUDGE

CITY CIVIL COURT: HYDERABAD

IN THE COURT OF THE III ADDITIONAL CHIEF JUDGE:

CITY CIVIL COURT: AT HYDERABAD

Dated this the 8th day of November, 2012.

PRESENT: SRI T.SURYANARAYANA

IX ADDL.CHIEF JUDGE (FTC)

FAC III ADDL.CHIEF JUDGE

O.P.No. 1970 of 2011

Between:-

M/s. Super Build India Private Limited, Represented by its Manager Accounts Mr.C.D.Ebenezer. …PETITIONER

And

1. M/s. Niraj Cement Structurals Limited, rep. by its Chairman & M.D.

2. The Branch Manager, HDFC Bank, Ghatkopar Br. East, Mumbai,

3. State Bank of India, Commercial Branch, NGN Vaidya Marg, Bank Street, Fort, Mumbai

4. Madhya Pradesh Road Development Corporation Limited, rep. by its Managing Director,

5. Principal Secretary, National Highway Circle, PWD, Lucknow, Uttar Pradesh,

6. Goa State Infrastructure Development Corporation Limited, rep. by its Managing Director,

7. Pay & Accounts Office, Govt. of India, Ministry of Road Transport of Highways, Regional Office (Civil), Ajmer Road, Jaipur.

…RESPONDENTS

This petition coming on for final disposal before me in the presence of Sri A.Rajashekhar Reddy, Advocate for the petitioner, and of Sri Sunil. B.Ganu, Advocate for 1st respondent,

Sri A.Ravi Babu, Advocate for 3rd respondent, Sri C.Raghu,

Advocate for 4th respondent and Sri P.Ravinder Reddy, Advocate for 7th respondent and other respondents having called absent and set exparte and the matter having stood over for consideration till this day, this Court made the following:- ­2­ O.P.No.1970/2011 : O R D E R:

1.This petition was filed under Section 9 of the Arbitration and Conciliation Act, 1996 for attachment of the Schedules, A, B and C properties and also to restrain the respondents 2 to 7 from disbursing/making/paying/releasing any amounts/payments to/in favour of the 1st respondent with regard to the receivables in respect of the Schedule-D properties.

2.The brief averments of the case are as follows:-

The petitioner was a registered company and it was engaged in the business of Infrastructure construction and execution of undertaking major projects throughout India. The 1st respondent was the successful bidder of a Bids/Tenders floated by the Government of Chhattisgarh State for execution of works in respect of a road construction project ‘’for providing 2-lane

Concrete Pavement and widening of Culvert including Construction

New Slab Culvert from KM.107,000 to 184.800=77.80 KM. of

N.H.221 from Jagdalpur to Konta Road’’ (hereinafter referred to as ‘First Contract’) for a contract price of Rs.136,84,48,390/-. The said work was entrusted to the 1st respondent by the Government vide its letter dated 24-6-2010. The 1st respondent also confirmed to the petitioner that the Government also awarded works for ‘’widening of road to 2 lane from Chintalnar – Maigudam Road in

Km 0 to 65=65.00 KM (under LWE project) (hereinafter referred to as ‘Second Contract’) in its favour. Subsequently, the 1st ­3­ O.P.No.1970/2011 respondent came into contact with the petitioner and after satisfying the credibility of the petitioner, the 1st respondent has issued a Letter of Intent, dated 17-5-2010, to the petitioner for execution of the first contract. As per the said Letter of Intent, the petitioner has furnished performance bank guarantee for a value of

Rs.6,84,22,420/- being the 5% value of the works allotted to the 1st respondent by the Government for the First Contract. Subsequent to the providing of the said bank guarantee by the petitioner to the

Government under the cover of its letter dated 15-7-2010, which was confirmed by the State Bank of India, Industrial Finance

Branch, Raj Bhavan Road, Somajiguda, Hyderabad, vide its letter

dated 9-8-2010, the 1st respondent had entered into a sub-contract

agreement, dated 02-7-2010, with the petitioner and also executed a power of attorney dated 26-7-2010 in connection with the projects/works regarding First Contract in favour of the petitioner- company giving authorisation to its Managing Director Mr. Mir

M.Ali and Mr.P.Nageshwar Rao, Executive Director and Mr. Manoj

Rastoji, CEO and Mr. Kashipathi Rao, G-General Manager (Projects) and thereby concluding the contract in favour of the petitioner. On 26-8-2010, the 1st respondent issued another Letter of Intent to the petitioner for execution of the Second Contract and the petitioner furnished Performance Bank Guarantee for

Rs.3,56,86,677/- as per the requisite format forwarded by the 1st respondent to the petitioner. As per the Letter of Intent of Second ­4­ O.P.No.1970/2011

Contract, the 1st respondent confirmed as ‘’Detailed agreement will be prepared on receipt of PBG of Rs.3,56,86,677/-, as indicated above.’’ As per the letter dated 30-8-2010, the parties have agreed to abide by all the terms of the earlier Sub-contract Agreement

dated 02-7-2010 and as such a separate agreement for Second

Contract was not executed. The 1st respondent also notified the petitioner company as the Sub-Contractor with the Government.

As per the Sub-Contract Agreement dated 02-7-2010, the period for completion of the work of the sub-contract is 24 months from the date of Letter of Intent to the Main Contractor i.e. 23-6-2012.

The petitioner has referred to Clauses 11, 12 and 14 as the relevant clauses, which provide the terms and conditions of the

Sub-Contract Agreement. The petitioner also furnished the details of the bank guarantees provided in para-6 of the petition. The bank guarantees furnished by the petitioner to the Government on behalf of the 1st respondent are valid upto 22-1-2013, 12-2-2014 and 4-9-2013.

The petitioner claimed that it commenced the work at the schedule site on 01-10-2010. The petitioner alleged that the 1st respondent committed breach of terms and conditions of the Sub-

Contract Agreement, dated 02-7-2010, and has misappropriated the funds and started utilizing the same for its own requirements and necessities, in spite of the letters dated 15-10-2010 and 18-10-2010 addressed by the petitioner. The 1st respondent received ­5­ O.P.No.1970/2011 mobilization advance to the tune of Rs.9.5 crores and did not transfer/pay the same to the petitioner’s account, which is against the objectives of the sub-contract and hence the same resulted in hindrance of the execution of the work. After several letters and e-mails addressed by the petitioner, after 78 days, the 1st respondent transferred the mobilization advance to the petitioner- company to a tune of Rs.5.78 crores, which is less than 50% without declaring that the balance amount was kept with the 1st respondent.

On 06-9-2010 the petitioner addressed a letter to the 1st respondent calling for necessary designs, etc., to enable it to proceed with the Second Contract. But, the 1st respondent did not give any reply. On 29-11-2010 the petitioner addressed another letter to the 1st respondent for the said purpose. But, there was no reply from the 1st respondent. Again, the petitioner addressed another letter on 31-12-2010 to the 1st respondent intimating that in view of non-conclusion of the agreement for the Second

Contract, it was not interested to proceed with the Second Contract and demanded to return Performance Bank Guarantees issued on 30-8-2010. The petitioner alleged that without terminating the contract with it, the 1st respondent entered into different agreements with the third parties for the same works. The said acts of the respondents would directly amount to fraud, breach of trust and cheating the petitioner. According to the petitioner, due ­6­ O.P.No.1970/2011 to bandhs called by Maoists for a period of more than 75 days and other disturbances at the place of work site, there was slow progress and the same was within the knowledge of the

Government as well as the 1st respondent. The petitioner also stated that due to unprecedented heavy rains during November and December, 2010 for about 40 days, the progress of the work was very slow. The petitioner alleged that the respondents failed to open an Escrow account as per the terms of the Sub-contract for transfer of funds payable by the Government. All the said facts were brought to the notice of the 1st respondent in several meetings, but of no avail. The petitioner also alleged that during all the period, the machinery, material and men of the petitioner were kept idle without there being any progress in work and the same resulted in loss by the petitioner for no fault of it.

The petitioner alleged that, on 13-4-2011, the 1st respondent along with his henchmen started harassing and creating hurdles to it and its employees in executing the schedule work with an ulterior motive to remove it and transfer the work to other third party contractor for more money. The petitioner claimed that as per the said agreement, it has spent more than

Rs.50 crores including Rs.20 crores towards bank guarantees etc.

While so, the Government has initiated action for encashment of the Bank Guarantees and accordingly sent the same to the banker of the petitioner. As such, the petitioner filed ­7­ O.P.No.1970/2011

O.S.No.367/2011 on the file of the III Additional Chief Judge, City

Civil Court, Hyderabad against the 1st respondent and others seeking an order of injunction and the same was granted on 27-6-2011, but, by the time of passing of the said orders, the

Government successfully encashed the bank guarantees worth Rs.1 crore provided by the petitioner. During the pendency of

O.S.No.367/2011, the petitioner came to know that the Government

has debarred the 1st respondent from participating in any of the tenders in relation to the Highways for a period of three years vide its letter dated 13th May, 2011. On 07-07-2011 the Government addressed letters to the banker of the petitioner i.e. State Bank of

India, Industrial Finance Branch, Raj Bhavan Road, Somajiguda,

Hyderabad, forfeiting the bank guarantees amounting to more than

Rs.16.00 crores submitted by the petitioner. The Government also terminated the contract with the 1st respondent vide its letter dated 8-7-2011.

Clause 24 of the Sub-Contract Agreement between the petitioner and the 1st respondent provides an arbitration clause.

The petitioner extracted Clause 24 of the Sub-Contract Agreement.

It shows that the place of arbitration shall be at 'Mumbai'. In view of the said circumstances, the petitioner has filed the present petition under Sec. 9 of the Arbitration and Conciliation Act, 1996.

3.Counters of respondents 1, 3, 4 and 7 were filed opposing the petition mainly on the ground that the Chief Judge, ­8­ O.P.No.1970/2011

City Civil Court at Hyderabad has no jurisdiction to entertain the present O.P. and the concerned 'District Judge' at 'Mumbai' alone has got jurisdiction. In their counters, the said respondents have denied the averments and allegations made by the petitioner in its petition and prayed to dismiss the petition with costs.

4.Before ordering notice to the respondents on 12-09-2011, an exparte order was passed directing the respondents 2 to 7 not to disburse or make payment or release any amount of claims in favour of the 1st respondent with regard to the payments receivable by it in respect of Schedule-D project, until further orders. Against the said order, the 1st respondent preferred

C.M.A.No.1091/2012 before the Hon'ble High Court of A.P. and

Division Bench of the Hon'ble High Court of A.P. has passed the following oral judgment on 15-10-2012.

''The appellant has impugned the order

dated 12-9-2011 made in O.P.No.1970 of 2011,

vide which the respondents 2 to 7 herein were directed to not disburse or make payment or release any amount of payments in favour of respondent No.1 (appellant herein) with regard to payments receivable by him in respect of Schedule 'D' project until further orders.

Sri D.Prakash Reddy, learned Senior Counsel appearing for the appellant/respondent No.1 in O.P. states that the matter is pending

before the court below and listed for hearing

tomorrow i.,. 16-10-2011. He also states that respondent No.1 herein viz., M/s. Super Build India Private Limited had filed a petition under Sec.9 of the Arbitration and Conciliation Act, 1996 and the same be ordered to be disposed of expeditiously. Learned counsel further submits ­9­ O.P.No.1970/2011 that in the said petition the appellant herein (R1 in OP) has raised a point of jurisdiction, as no cause of action has arisen within the State of Andhra Pradesh.

In view of the above, we dispose of the appeal with a direction to the trial Court to dispose of O.P.No.1970/2011 within a period of three (3) weeks from the date of receipt of a certified copy of this order.''

After passing of the said order by the Hon'ble High Court of Andhra

Pradesh, on behalf of the 1st respondent a memo was filed before this Court along with certified copy of the said order of the Hon'ble

High Court on 18-10-2012. On the same day, the learned advocate for the 1st respondent submitted his arguments. But the petitioner and its learned advocate were called absent and the matter was posted to 19-10-2012 for arguments of the petitioner. But, on 19-10-2012 the petitioner and its learned counsel were called absent. However, as a last chance, the matter was posted to 02-11-2012 to hear the arguments on behalf of the petitioner.

Since the Presiding Officer was on leave on 02-11-2012, the matter was called on 05-11-2012. Even on that day, the petitioner and its learned counsel were called absent and O.P. was reserved for orders.

5.The learned Advocate for the 1st respondent mainly contended that the Chief Judge, City Civil Court at Hyderabad has no jurisdiction to entertain the petition, as per Clause 24 of the

Sub-Contract Agreement entered by the petitioner with the 1st ­10­ O.P.No.1970/2011 respondent and it is only the concerned District Judge at Mumbai got jurisdiction to entertain any such proceedings. In the counter of the 1st respondent, Clause 24 of the Sub-Contract Agreement was referred to. It reads as under:- ''If any dispute or difference or claim of any kind whatsoever shall arise between the parties in connection with this agreement or the said sub-contract works, then firstly the Managing Director of both the parties shall settle the dispute/differences/claims amicably after detailed discussions within 30 days of reference of the dispute. If the parties fail to arrive at any amicably settlement within the next 30 days then all such disputes or differences shall be referred to arbitration consisting of three arbitrators. Each party shall nominate one arbitrator within 45 days and the two arbitrators so nominated shall appoint; the third arbitrator within 30 days who shall be the presiding arbitrator. The arbitration shall be conducted in accordance with the Arbitration and Conciliation Act, 1996 or any other statutory modification or enactment thereof. The decision of the Arbitral Tribunal shall be final and binding upon the parties. The place of arbitration shall be at Mumbai.''

From the said Clause-24 of the Sub-Contract Agreement dated 02- 7-2010 entered into between the petitioner and the 1st respondent, it is quite clear that in case of arbitration, the place of arbitration shall be at 'Mumbai' only, but not at any other place. Therefore, on the ground of jurisdiction itself, this O.P. is liable to be dismissed.

In its order dated 15-10-2012 in C.M.A.No.1091/2012, the Division

Bench of the Hon'ble High Court also referred to the said contention raised on behalf of the 1st respondent regarding ­11­ O.P.No.1970/2011 jurisdiction and then directed this Court to dispose of the present

O.P. within a period of three weeks from the date of receipt of a certified copy of its order.

6.In the light of the said jurisdictional clause mentioned in

Clause-24 of the Sub-Contract Agreement dated 02-7-2010, the

Court of the Chief Judge, City Civil Court at Hyderabad, has no jurisdiction to entertain the present petition. In spite of the said directions given by the Hon'ble High Court of Andhra Pradesh for disposal of this petition within a period of three weeks from the date of receipt of its certified copy of the order, neither the petitioner nor its learned counsel appeared before this Court for submitting their arguments. In the circumstances of the case, there is no other alternative except to return the present O.P. by holding that the Court of Chief Judge, City Civil Court at

Hyderabad has no jurisdiction to entertain the present petition.

Accordingly, this petition is returned along with the documents, if any, filed for presentation before appropriate Court. The exparte interim order dated 12-9-2011 is hereby set aside.

Dictated to the Senior Assistant, transcribed by him,

corrected and pronounced by me in open court on this the 8th day of November, 2012.

FAC III ADDL.CHIEF JUDGE

CITY CIVIL COURT: HYDERABAD

IN THE COURT OF THE III ADDITIONAL CHIEF JUDGE:CUM:

MOTOR ACCIDENTS CLAIMS TRIBUNAL: CITY CIVIL COURT: AT HYDERABAD

Dated this the 15th day of November,2012.

PRESENT: SRI T.SURYANARAYANA,

IX ADDL.CHIEF JUDGE (FTC)

FAC III ADDL.CHIEF JUDGE

O.P.No.709 of 2011

Between:-

1. Smt. Ch.Sarada, w/.o Sathi Reddy,

2. Ch.Sathi Reddy s/o Venkat Reddy.

...PETITIONERS

And

1. S.Rajender Reddy s/o Narsimha Reddy,

2. M/s. New India Assurance Company Ltd., represented by its Deputy Manager, R.P.Road, Secunderabad.

...RESPONDENTS

This petition coming on for final disposal before me in the presence of Sri P.Ramakrishna Reddy, Advocate for the petitioners and of Sri P.Jayachandra, Advocate for the 2nd respondent and the 1st respondent having called absent and set exparte and the matter having stood over for consideration till this day, this Tribunal made the following:- : O R D E R :

1.This petition was filed under Section 166 of Motor

Vehicles Act, 1988, claiming a compensation of Rs.12,00,000/-.

2.The two petitioners were residents of New Nallakunta,

Hyderabad. The deceased, Cherla Pavan Reddy, is the son of the petitioners. By the date of the accident, the deceased was aged 24 years and was working as Welder under one Anil Reddy, Water ­2­ O.P.No.709/2011

Pipeline Contractor, HDPE Pipe Butt, Venkatramana Colony,

Khairatabad, Hyderabad, and used to earn Rs.20,000/- per month.

On 06-12-2010, at about 9.00 PM., at the outskirts of Matedu village of Thorrur mandal, Warangal District, the deceased along with others was travelling in Maruthi Swift Car bearing No. AP 29 AM 6818 and it was driven by one Annam Santhosh Reddy. The said driver drove the car at high speed and in a rash and negligent manner and while overtaking a lorry, he lost control over the car and dashed to the road-side mile-stone and as a result, the car turned turtle and its inmates, including the deceased, sustained multiple fractures and grievous injuries and immediately the deceased was shifted to Sai Multi Speciality Hospital, Thorrur. While undergoing treatment in the said hospital, the deceased was succumbed to the injuries on the same day night. The said Maruthi

Car was totally damaged. By the date of the accident, the deceased was hale and healthy and was unmarried and used to contribute his monthly earnings of Rs.20,000/- for the maintenance of his family members, who are the petitioners. Due to sudden death of the deceased, the petitioners lost their livelihood and love and affection.

They have spent more than Rs.20,000/- for the funeral expenses.

They also incurred huge amount for transportation, post-mortem examination, etc. Police of Thorrur police station, Warangal District, registered a case in Crime No.206/2010, under Sec. 304 (A), 337 and 279 IPC, against the driver of the said Maruthi Car. The 1st ­3­ O.P.No.709/2011 respondent is the owner of the said Maruthi car and the 2nd respondent is its insurer and hence both of them are jointly and severally liable to pay compensation of Rs.12 lakhs together with interest and costs.

3.The 1st respondent remained exparte.

4.In its counter, the 2nd respondent denied the averments and allegations made in the petition and the petitioners were put to strict proof of the same. The 2nd respondent contended that the insurance policy code does not tally with the code of the insurance policy issued by the 2nd respondent. The 2nd respondent also contended that the claim for Rs.12 lakhs is highly excessive and arbitrary. The 2nd respondent reserved its right to file additional counter and prayed to dismiss the petition with costs.

5.The following issues were framed.

1. Whether the accident had occurred on account of the rash and negligent driving of the driver of the offending vehicle, i.e.

Maruthi Swift Car bearing No. AP 29 AM 6818?

2. Whether the offending vehicle driver was having effective driving licence at the time of the alleged accident?

3. Whether the offending vehicle was having proper records at the time of the alleged accident?

4. Whether the petitioners are entitled to the compensation? and

If so, from whom and if so to what extent?

5. To what relief?

­4­ O.P.No.709/2011

6.In support of their case, the petitioners have examined the 1st petitioner as P.W-1 and through her marked Exs.A-1 to A-6.

They have also examined one Thalla Anil as P.W-2 and K.Anil Reddy as P.W-3. On behalf of the 2nd respondent, P.Ws 1 to 3 were cross- examined. However, the learned advocate for the 2nd respondent reported no oral evidence on behalf of the 2nd respondent and got marked the copy of the insurance policy of the crime vehicle as

Ex.B-1 with consent.

7.Heard the learned advocates for both sides.

8.ISSUE NO.1

In her affidavit-in-chief, the 1st petitioner has reiterated the averments of the petition and marked the certified copy of the

F.I.R. as Ex.A-1, certified copy of the charge-sheet as Ex.A-2, certified copy of the inquest report as Ex.A-3, certified copy of post- mortem examination report as Ex.A-4, certified copy of the M.V.I.

report as Ex.A-5 and salary certificate as Ex.A-6. In her cross- examination, P.W-1 denied that they were not dependents on the income of the deceased, and that, the owner of the crime vehicle was related to them, and that, the accident occurred due to rash and negligent driving of the driver of the crime Maruthi Car. She also denied that her age was more than 60 years, and that, the deceased was not earning Rs.20,000/- per month, and that, Ex.A-6 was created for the purpose of this case, and that, their claim is ­5­ O.P.No.709/2011 highly excessive and exorbitant, and that, she colluded with the

Police of Thorrur P.S. and got created Exs.A-1 to A-5 for the purpose of this case, and that, the 2nd respondent is not liable to pay the compensation.

In his affidavit-in-chief, P.W-2 stated that he was resident of Matedu village of Thorrur mandal, Warangal District and was the eye-witness to the accident. According to him, on 06-12-2010, at about 9.00 PM, at the outskirts of Matedu village, the accident took place, while the deceased along with others was travelling in

Maruthi Swift Car bearing No. AP 29 AM 6818. P.W-2 alleged that the driver of the said car drove the same at high speed and in a rash and negligent manner and hit the same to the mile-stone and as a result, the car turned turtle and its inmates, including the deceased, sustained grievous and multiple injuries and the deceased was shifted to Sai Multi Speciality Hospital, Thorrur and the Maruthi Car was completely damaged. He further stated that the deceased was aged 25 years and was hale and healthy and he died in the said hospital while undergoing treatment on the same day night. He also stated that the police of Thorrur examined him and recorded his statement and cited him as 5th witness in the charge-sheet. In his cross-examination, P.W-2 denied that he was not the eye-witness to the accident and was not present at the place of the accident, and that, the accident did not occur due to rash and negligent driving of the car by its driver, and that, due to his acquaintance with the ­6­ O.P.No.709/2011 deceased, he was cited as eye-witness in the charge-sheet, and that, he was deposing falsehood to help the petitioners.

In his affidavit-in-chief, P.W-3 stated that he was doing business of water pipe line as a pipe line contractor and HDPE Pipe

Butt, and was the employer of the deceased Pavan Reddy. He stated that the deceased met with an accident on 06-12-2010 at the outskirts of Matedu village while he was travelling in the Maruthi

Swift Car bearing No. AP 29 AM 6818 along with others, due to rash and negligent driving of its driver, who lost control over the car and as a result, it turned turtle and the deceased sustained multiple fractures and grievous injuries and while undergoing treatment in

Sai Multi Speciality Hospital, he died. He also stated that he used to pay a salary of Rs.20,000/- per month to the deceased, who was aged 24 years by the date of his death. He certified that Ex.A-6 salary certificate dated 10-1-2011 was issued by him showing the monthly salary of the deceased as Rs.20,000/-. He also stated that

Ex.A-6 bears his signature. In his cross-examination, P.W-3 denied that the deceased was not a skilled welder, and that, with a view to help the petitioners, he was deposing falsehood. He admitted that he did not file any document to show that he was the contractor for water pipe line and HDPE Pipe Butt, and the deceased was working under him.

From a reading of the contents of Exs.A-1 to A-5, it is ­7­ O.P.No.709/2011 quite clear that the accident of this case took place on 06-12-2010, at 2100 hours, at the outskirts of Matedu village, Thorrur Mandal, when Maruthi Swift Car bearing No. AP 29 AM 6818 was driven by its driver at high speed and in a rash and negligent manner and lost control over the same while overtaking a lorry and dashed the car to the road side mile-stone and as a result it turned turtle and the deceased and other inmates of the car sustained multiple fracture injuries and the deceased was shifted to Sai Multi Speciality

Hospital, Thorror and there he succumbed to the injuries on the same day while undergoing treatment. Ex.A-2 charge-sheet shows that the driver of the said car, by name, Annam Santosh Reddy, was charged with the offence under Sec.304 (A), 338 and 279 IPC and the concerned learned Magistrate took cognizance of the same.

Ex.A-2 also shows the name of P.W-2 as eye-witness to the accident.

In his cross-examination, P.W-1 denied that she colluded with the police and got created Exs.A-1 to A-5 for the purpose of this case.

Apart from making the said suggestions, no other evidence was brought on record to show that there was collusion between the petitioners and the concerned police and as a result, Exs.A-1 to A-5 were created for the purpose of this case. Therefore, on the basis of

Exs.A-1 to A-5 and the versions of P.Ws 1 and 2, it is held that the accident of this case was caused by the driver of Maruthi Swift Car due to his rash and negligent driving of the same at the time of the accident and in such accident, the deceased sustained multiple ­8­ O.P.No.709/2011 fracture injuries and died on the same day night in Sai Multi

Speciality Hospital, Thorrur while undergoing treatment.

Accordingly, the first issue is decided in favour of the petitioners.

9.ISSUE Nos. 2 to 4

These three issues are inter-related to each other and therefore they are being decided together.

(a)The case of the petitioners is that they are the parents of the deceased Pavan Reddy, who was aged 24 years and was working under P.W-3 and was earning Rs.20,000/- per month.

They have also pleaded that they were depending on the earnings of the deceased and due to sudden death of the deceased at an young age, they have not only lost love and affection of the deceased, but also their livelihood, as there was nobody to look after their maintenance. The petitioners have examined P.W-3 to show that the deceased worked as a welder under P.W-3, who was an authorised contractor for HDPE Pipe Butt, having his office at

Venkataramana Colony, Khairatabad, Hyderabad and was being paid Rs.20,000/- per month. P.W-3 certified that Ex.A-6 certificate was issued by him showing the monthly salary of the deceased as

Rs.20,000/-. No doubt, P.W-3 did not produce any other documents, except Ex.A-6, to show that he was a contractor and the deceased worked under him. But, on the basis of Ex.A-6, it can safely be accepted that the deceased worked under P.W-3 as a Welder and ­9­ O.P.No.709/2011 used to earn Rs.20,000/- per month. Since the deceased was unmarried by the date of the accident, the age of his mother, who is the 1st petitioner shall be taken into consideration for the purpose of deciding multiplier as per the Second Schedule of M.V.Act. In the cause title of the petition, the age of the 1st petitioner was shown as 49 years. No evidence was produced on behalf of 2nd respondent to show that the age of P.W-1 was more than 49 years. In such a case, the age of the 1st petitioner, who is the mother of the deceased, must be accepted as 49 years by the date of the accident. As per the Second Schedule of the M.V.Act, the multiplier applicable to the age group of 45 to 50 years, is ’13’. Out of the monthly income of

Rs.20,000/- of the deceased, 1/3rd has to be deducted towards his personal expenses. It comes to Rs.13,334/- and the annual income comes to Rs.1,60,008/-. If the same is multiplied with ‘13’, it comes to Rs.20,80,104/-. Whereas, the petitioners have claimed only

Rs.12,00,000/- as compensation, under all heads, as narrated in the petition.

(b)There is no dispute that 1st respondent is the owner of the crime vehicle and 2nd respondent is its insurer and the policy issued by the 2nd respondent in respect of crime vehicle was in force from 16-10-2010 to 15-10-2011. The accident of this case occurred on 06-12-2010. As such, it is clear that the insurance policy issued by the 2nd respondent in respect of the crime vehicle was in force by the date of accident. On behalf of the 2nd respondent, no dispute ­10­ O.P.No.709/2011 was raised regarding the validity of driving licence of the driver of the crime car. Therefore, it must be deemed that the driver of the crime car was having valid and effective driving licence by the date of the accident. Accordingly, it is held that the driver of the crime car got valid and effective driving licence by the date of the accident and the records relating to the crime car were proper by the date of the accident and hence the petitioners are entitled to get a compensation of Rs.12 lakhs together with interest and proportionate costs. Therefore, both the respondents are held to be jointly and severally liable to pay compensation of Rs.12,00,000/- together with interest and proportionate costs to the petitioners.

Accordingly, the Issue No.2 is decided in favour of the petitioners.

10.ISSUE NO.3

IN THE RESULT, the petition is allowed and the petitioners are awarded a compensation of Rs.12,00,000/- (Rupees twelve lakhs only) together with interest at the rate of 7% p.a. from the date of the petition till the date of deposit and proportionate costs. Both the respondents are jointly and severally liable to pay the same and they are directed to deposit the same within two months. The petitioners, being the parents of the deceased, are entitled to take the said compensation equally between themselves.

On deposit of the compensation, both the petitioners are permitted to withdraw Rs.1,00,000/- each and the balance of compensation ­11­ O.P.No.709/2011 amount of Rs.5,00,000/- each shall be kept in FDR in any

Nationalised Bank for a period of one year. Advocate's fee is fixed at Rs.10,000/-.

Dictated to the Senior Assistant, transcribed by him,

corrected and pronounced by me in open court on this the 15th day of November, 2012.

FAC III ADDL.CHIEF JUDGE

CITY CIVIL COURT: HYDERABAD

APPENDIX OF EVIDENCE

WITNESSES EXAMINED FOR

PETITIONERS RESPONDENT No.2

P.W-1: Ch. Sarada-None- P.W-2: Thalla Anil, P.W-3: K.Anil Reddy.

DOCUMENTS MARKED FOR PETITIONERS

Ex.A-1: Certified copy of F.I.R. Ex.A-2: Certified copy of charge-sheet, Ex.A-3: Certified copy of Inquest report, Ex.A-4: Certified copy of post-mortem examination report, Ex.A-5: Certified copy of M.V.I. report, Ex.A-6: Salary certificate issued by P.W-3.

DOCUMENTS MARKED FOR RESPONDENT No.,2

Ex.B-1: Copy of insurance policy.

FAC III ADDL.CHIEF JUDGE

CITY CIVIL COURT: HYDERABAD

IN THE COURT OF THE III ADDITIONAL CHIEF JUDGE:

CITY CIVIL COURT: AT HYDERABAD

Dated this the 21st day of November, 2012.

PRESENT: SRI T.SURYANARAYANA

IX ADDL.CHIEF JUDGE (FTC)

FAC III ADDL.CHIEF JUDGE

C.M.A.No. 62 of 2012

Between:-

Mohammed Haseeb Ahmed.

...Appellant

And

Zubaida Begum.

...Respondent

ON APPEAL AGAINST THE ORDER AND DECRETAL ORDER

DATED: 25-4-2012 PASSED BY THE VII JUNIOR CIVIL JUDGE:

CITY CIVIL COURT: HYDERABAD in I.A.No. 308/2012 in O.S.No. 965/2012

Between:-

Zubaida Begum

...Petitioner/plaintiff

And

Mohammed Haseeb Ahmed.

...Respondent/defendant No.2

This appeal coming on for final disposal before me in the presence of Sri Mohammed Aslam, Advocate for the appellant and of Sri M.Venu Madav, Advocate for the respondent and the matter having stood over for consideration till this day, this Court made the following:- : O R D E R :

1.This Civil Miscellaneous Appeal was preferred against the order and decretal order, dated 25-4-2012 passed inI.A.No.308/2012 in O.S.No.965/2012 on the file of the VII Junior Civil Judge, City Civil

Court, Hyderabad. The appellant is the 2nd respondent/D-2 and the ­2­ C.M.A.No.62/2012 respondent is the petitioner/plaintiff in I.A.No.308/2012 in

O.S.No.965/2012. For the sake of convenience, the parties are

referred to as per their array in I.A.No. 308/2012.

2.The petitioner/plaintiff filed the main suit seeking declaration that the registered sale deed bearing document

No.903/1991, dated 25-2-1991, which was registered at Sub-

Registrar's office, Khairatabad, Hyderabad, as null and void and to cancel the same. Along with the suit, the petitioner/plaintiff also filed I.A.No.308/2012 in O.S.No.965/2012, under Order 39, Rules 1 and 2, read with Sec. 151 CPC, seeking ad-interim injunction restraining the respondent No.2/D2 from making illegal constructions over the property bearing House No.8-2-740/15/12, admeasuring 65 sq. yards, situated at Bholanagar (slum area),

Shaikpet mandal, Hyderabad (hereinafter called as 'the suit property').

3.The case of the petitioner/plaintiff is that she is the owner and possessor of the house bearing No.8-2-740/15/12 (old), 8-2-740/15/21 (new), admeasuring 400 sq. yards, situated at

Bholanagar (slum area), 1st Lancer, Banjara Hills, Road No.12,

Hyderabad. She purchased the same vide registered sale deed

dated 16-5-1975 by paying valuable consideration of Rs.4,000/-.

She purchased it from her vendor, Mohd. Yousuf. From the date of purchase, she was paying municipal taxes, water taxes, etc. On 05-05-1956, her vendor purchased it from his vendor. In 1984, she ­3­ C.M.A.No.62/2012 sold away an extent of 200 sq. yards, out of 400 sq. yards, towards western side of her house to one Wahab Shab. In the year 1990, she sold away an extent of 60 sq. yards at western side of her house to one Shama Sulthana for a consideration of Rs.27,000/-. The petitioner/plaintiff claimed that she along with Wahab Shab and

Shama Sultana have got common passage for ingress and egress from their respective plots from south side and 4' width and 42' length passage. It was meant for drainage, water and gas pipelines and also for windows, iron grills and ventilators and doors. After selling 60 sq. yards, she got constructed a compound wall towards rear side of her house, i.e., western side to an extent of 6' height, 9'' width and 26' length. Wahab Shab and the 1st respondent did not care for getting sales in their favour registered. About two months

before filing the suit, the 2nd respondent claimed that he purchased

the property from the 1st respondent and wanted to reconstruct a house with pillars for the residence of himself and his family members. For that purpose, he had dismantled the old house and started construction by digging pits. In order to grab the property of the petitioner/plaintiff, the 2nd respondent started harassing her by threatening that he will disconnect water, drainage connections and close the windows. Hence, he filed O.S.No.182/2012 on the file of the VII Junior Civil Judge, City Civil Court, Hyderabad against the 2nd respondent and obtained status quo order in I.A.No.49/12. In the said suit, the 2nd respondent filed the original sale deed bearing ­4­ C.M.A.No.62/2012 document No. 903/1991, dated 25-2-1991 and also the original copy of the Absolute Agreement of sale dated 06-9-2007 showing that she has sold away 65 sq. yards, out of 400 sq. yards to the 1st respondent. The petitioner contended that she never registered any document in favour of the 1st respondent. She alleged that her signatures and thumb impressions were forged on the said registered sale deed. As such, she got issued a legal notice dated 10-5-2012 for cancellation of the said sale deed. She also alleged that the 2nd respondent did not obtain any permission from the

GHMC for making constructions touching her house. She filed a complaint before the GHMC on 10-2-2012. She also filed the present suit and the application.

4.The case of the 2nd respondent is one of denial of the averments and allegations made by the petitioner/plaintiff. He admitted that the petitioner/plaintiff is the owner of house admeasuring 400 sq. yards, as per the registered sale deed bearing document No.1327/1975. He also admitted that the petitioner sold away 200 sq. yards to Wahab Sahab. He claimed that the petitioner sold 65 sq. yards to the 1st respondent in the year 1991 vide registered sale deed bearing document No.903/1991 with 4 feet wide lane by receiving sale consideration of Rs.27,000/-. While selling the said 65 sq. yards of the property to the 1st respondent, the petitioner also sold away one of the walls to the 1st respondent in the year 1991. The 2nd respondent admitted that he had ­5­ C.M.A.No.62/2012 dismantled the house and started construction by digging pits. The 2nd respondent alleged that the petitioner got full knowledge of the execution of all the documents and the facts of the case and by suppressing the real facts, she filed the suit and obtained status quo order in I.A.No.49/2012 in O.S.No.182/2012. The 2nd respondent alleged that the petitioner approached the Court with unclean hands.

5.Both sides did not produce any oral evidence before the trial Court. However, on behalf of the petitioner/plaintiff, Exs.P-1 to

P-9 were marked and on behalf of the respondent No.2, Exs.R-1 to

R-10 were marked. After taking into consideration the pleadings and the documentary evidence and the arguments of both sides, the trial Court framed the point, namely, whether the petitioner is entitled for any relief under Order 39, Rules 1 and 2 CPC as prayed for and after examining the same, the trial Court allowed the petition granting status quo orders in favour of the petitioner/plaintiff till the disposal of the main suit without costs.

6.Aggrieved by the said order and decretal order of the trial

Court, the 2nd respondent/D2 preferred the present appeal on the following grounds.

i) The trial Court wrongly held that it was difficult to decide about the extent of the land sold by the petitioner/plaintiff to the 1st respondent/D1 and, thus, erred in passing status quo order.

ii) The trial Court failed to take into consideration Ex.R-9, ­6­ C.M.A.No.62/2012 i.e., registered sale deed bearing document No.903/1991, dated 25-2-1991, under which, the petitioner/plaintiff sold 65 sq. yards of property to the 1st respondent/D1 and Ex.R-3, under which, the petitioner/plaintiff sold the same property to the 2nd respondent/D2.

iii) Though the 2nd respondent/D2 produced sufficient evidence to prove that R-1/D1 purchased 65 sq. yards of property from the petitioner/plaintiff and in turn he purchased the same property from the 1st respondent/D1 under a registered sale deed and commenced the construction work, the trial Court committed error in not taking into consideration those documents and wrongly passed the status quo order.

For the said grounds and the grounds to be urged at the time of hearing of the appeal, the 2nd respondent/D2 prayed to allow the appeal with costs and to set aside the order and decretal order of the trial Court and to dismiss I.A.No.308/2012 in O.S.No.965/2012 with costs.

7.In the present appeal, no additional evidence was produced by both sides. Heard both the learned counsel.

8.The points for consideration are:

1. Whether the petitioner/plaintiff sold 60 sq. yards or 65 sq.

yards of house property to the 1st respondent/D1 who in turn sold the same to the 2nd respondent/D2?

2. Whether the order and decretal order of the trial Court suffer from any irregularity or illegality?

­7­ C.M.A.No.62/2012

9.POINT NO.1

From the pleadings and the documents produced by the petitioner/plaintiff, it is seen that she is claiming to have sold only 60 sq. yards of house property to the 1st respondent/D1 in the year 1990 and thereafter constructed a compound wall towards rear side of her house, i.e., western side. She also pleaded that she has sold away 200 sq. yards, out of 400 sq. yards to Wahab Sahab. She, however, alleged that the 1st respondent/D1 and the said Wahab

Sahab did not care to get the registered sale deeds executed in their favour in respect of their respective properties sold to them.

But the petitioner/plaintiff neither pleaded nor proved as to the nature of the sale of 60 sq. yards of property made by her in favour of the 1st respondent/D1. However, during the course of arguments, the learned counsel for the petitioner/plaintiff submitted that the petitioner/plaintiff made oral sale of 60 sq. yards of house property to the 1st respondent/D1. But, no such pleading was made by the petitioner/plaintiff at any stage of the case and also failed to produce any such evidence. On the other hand, the 2nd respondent/D2 produced sufficient evidence to prove that the petitioner/plaintiff sold 65 sq. yards of house property to the 1st respondent/D1 on 25-2-1991 under a registered sale deed and in turn the 1st respondent/D1 sold the same property to him under the registered sale deed, which was marked as Ex.R-3 in I.A.No.49/12 in

O.S.No.182/2012. The registered sale deed in favour of the 1st

­8­ C.M.A.No.62/2012 respondent/D1 executed by the petitioner/plaintiff was also marked as Ex.R-2 in I.A.No.49/12 in O.S.No.182/2012 on the file of the VII

Junior Civil Judge, City Civil Court, Hyderabad.

10.In the present case, the 2nd respondent/D2 produced the certified copy of the registered sale deed dated 25-2-1991 executed in favour of the 1st respondent/D1 by the petitioner/plaintiff as

Ex.R-9. The learned advocate for the petitioner/plaintiff did not dispute about marking of the said registered sale deed in

I.A.No.49/12 in O.S.No.182/2012. From Ex.R-9, it is clear that the petitioner/plaintiff has sold 65 sq. yards, equivalent to 54.60 sq.

metres of house property bearing No. 8-2-740/15/12, situated at

Bholanagar (slum area), 1st Lancer, Hyderabad, to the 1st respondent/D1 for a sale consideration of Rs.27,000/- on 25-2-1991 under registered sale deed. In the pleadings, the petitioner/plaintiff alleged that her signatures and thumb impressions were forged on the alleged registered sale deed executed in favour of the 1st respondent/D1. However, it is not the case of the petitioner/plaintiff that she has taken any steps immediately after execution of the said registered sale deed in favour of the 1st respondent/D1 for its cancellation till she filed the present suit and O.S.No.182/2012.

Evidently, Ex.R-9 is dated 25-2-1991. It means that, there was a lapse of 21 years between 25-2-1991 and filing of the present suit and O.S.No.182/2012. The petitioner no where pleaded that she has taken any steps for cancellation of the registered sale deed under ­9­ C.M.A.No.62/2012

Ex.R-9, during the said period of 21 years. As already stated above, the petitioner/plaintiff has not pleaded about the nature of the alleged sale of 60 sq. yards of the house property in favour of the 1st respondent/D1 in the year 1990. Therefore, pending trial in the main suit, it cannot be said that the petitioner/plaintiff has made out prima facie case and balance of convenience in her favour for grant of any interim orders in her favour. Therefore, it is held that, prima facie, there is evidence on record on behalf of the 2nd respondent/D2 to show that the petitioner/plaintiff sold 65 sq. yards of house property in favour of the 1st respondent/D1 under the original of

Ex.R-9 and in turn the 1st respondent/D1 sold the same property to the 2nd respondent/D2 as per Ex.R-3 marked in I.A.No.49/12 in

O.S.No.182/12. Accordingly, the first point is decided in favour of

the 2nd respondent/D2 and against the petitioner/plaintiff.

11.POINT No.2

In view of the finding given above, the conclusion of the trial Court that it is difficult to decide about the extent of the land sold away by the petitioner/plaintiff and also the genuineness of

Ex.R-9 sale deed in favour of the 1st respondent/D1, as the same requires full-fledged trial, is not based on the pleadings and the documentary evidence produced by both parties. On the basis of the said conclusion, the trial Court granted status quo order in favour of the petitioner/plaintiff by observing that the construction work of the 2nd respondent/D2 is in progress. Since it is found that ­10­ C.M.A.No.62/2012 the 2nd respondent/D2 succeeded to show that he had purchased 65 sq. yards of the suit property from the 1st respondent/D1, who in turn purchased the same from the petitioner/plaintiff under a registered sale deed, it is not proper on the part of the trial Court to conclude that it is difficult to decide the extent of the land sold by the petitioner/plaintiff to the 1st respondent/D1, particularly, when there is no plea or proof on the part of the petitioner/plaintiff about the nature of the alleged sale of 60 sq. yards of the house property made by her in favour of the 1st respondent/D1. Accordingly, it is held that the order and decretal order of the trial Court suffers from irregularity and illegality and hence the same are liable to be set aside. Accordingly, the 2nd point is also decided in favour of the 2nd respondent/D2 and against the petitioner/plaintiff.

12.In the result, the Civil Miscellaneous Appeal is allowed with costs and the order and decretal order of the trial Court are set aside and I.A.No.308/2012 in O.S.No.965/2012 is dismissed with costs.

Dictated to the Senior Assistant, transcribed by him,

corrected and pronounced by me in open court on this the 21st day of November, 2012.

FAC III ADDL.CHIEF JUDGE

CITY CIVIL COURT:HYDERABAD