IN THE COURT OF VI JUNIOR CIVIL JUDGE, CITY CIVIL COURT: HYDERBAD
FRIDAY Dated the 26 th Day of APRIL, 2013.
PRESENT: SMT. U. INDIRA PRIYA DARSHINI, B.L.,
VI Junior Civil Judge
O.S.NO.3368 of 2005
Between:
1. Shri Shivcharan Gupta S/o late Bisweshwaranath Gupta, aged about 58 yrs, Occ: Service,
2. Shri Rajender Pershad Gupta S/o late Shri Bisweswarnath Gupta, Hindu, aged about 53yrs, Occ: Business. Both R/o H.No.212132, Charkaman, Hyderabad.
....Plaintiffs.
And
1. The Commissioner, Municipal Corporation of Hyderabad. Tankbund, Hyderabad.
2. Shivraj Sanghi S/o late Ramjidas Sanghi, Hindu, aged about 66 yrs, Occ: Business, R/o 511068, Gowliguda, Hyderabad.
3. Smt. Savithri Sanghi W/o late Shivraj Sanghi, aged about 65 yrs, Occ: Household, R/o B32, Raghavendra Colony, Opp. National Police Academy, Hyderabad.
4. Smt. Anitha Kedia W/o Niranjan Kedia, D/o Late Shivraj Sanghi, aged abut 46 yrs, R/o B23, Bahadurpura Housing Board Colony, Bahadurpura, Hyderabad.
5. Anil Sanghi S/o late Shivraj Sanghi, aged about 44 yrs, R/o B32, Raghavendra Colony, Opp. National Police Academy, Hyderabad.
6. Mukesh Sanghi S/o late Shivraj Sanghi, aged about 43 yrs, R/o B32, Raghavendra Colony, Opp. National Police Academy, Hyderabad.
7. Naveen Sanghi S/o late Shivraj Sanghi, aged about 40 yrs, R/o B32, Rabhavendra Colony, Opp. National Police Academy, Hyderabad.
...Defendants.
(Amended as per Orders passed in I.A.No.754/2011 dated 10.10.2012)
This suit is coming on 09.04.2013 before me for final hearing in the presence of Sri R.A. Krishna, Advocate for the plaintiffs and of Sri G. Venkata Ramana, Advocate for defendant No.1 and of Sri T. Bheem Reddy, Advocate for Defendants No.2 to 7 and the matter having stood over for consideration, till this day this court delivered the following:
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JUDGMENT
This suit is filed by plaintiffs seeking to declare that the act of defendants in trying to demolish the 1st and 2nd floor forming part of premises bearing M.No.212132, situated at Charkaman, Hyderabad be declared as illegal, arbitrary and based on malafides and defendants be restrained perpetually from demolishing any portion or part of the premises bearing
M.No.212132, situated at Charkaman, Hyderabad and costs of the suit.
2.The case of the plaintiff is as follows:
Plaintiffs submitted that they are tenants of Shri Shiv Raj Sanghi and are in possession of 1st and 2nd floor forming part of premises bearing
M.No.212132, situated at Charkaman, Hyderabad. Originally the father of plaintiffs Late Bisweshwaranath Gupta has obtained the premises from
Smt. Saraswathi Bai in the year 1971. On demise of Smt. Saraswathi Bai,
Shri Shiv Raj Sanghi became the owner of the house and started collecting the rents. The plaintiffs further submitted that their father expired leaving behind the plaintiffs as legal heirs, who succeeded to the tenancy rights in respect of the said premises. The plaintiffs father during his lifetime and thereafter the plaintiffs are regular in payment of monthly rent to the owner and landlord.
The plaintiffs further submitted that they filed suit bearing O.S.No.3947/1994 against Shiv Raj Sanghi, Mukesh Sanghi and Smt. Seema restraining them from dispossessing the plaintiffs from the said premises without due process of law. The plaintiffs submits that the owner Shri Shiv Raj Sanghi got filed
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another suit bearing O.S.No.5977/94 through Smt. Ziaunnisa Begum against the plaintiffs restraining them from interfering in house bearing M.No.212 132, situated at Charkaman, Hyderabad. Both the suits were clubbed together and the court was pleased to decree the suit of plaintiffs against the owners by dismissing the suit O.S.No.5977/94 by a common order dated 14.12.1999. The plaintiffs submit that Shiv Raj Sanghi also filed Eviction petition bearing R.C.No.778/94 on the file of III Addl. Rent Controller,
Hyderabad seeking eviction of the plaintiffs from the said property on various grounds under the Provisions of A.P. Buildings (Lease, Rent and Eviction)
Control Act 1960. The eviction petition was dismissed on 8.2.2000. Being aggrieved by the said order, the landlord has preferred R.A.No.130/2000 on the file of Hon'ble Addl Chief Judge, City Small Causes Court, Hyderabad which was dismissed by the court on 3rd November, 2004. They further submitted that they have filed Depositing of Rent petition bearing
R.C.No.734/1994 on the file of III Addl. Rent Controller, Hyderabad and it was
allowed permitting the plaintiffs to deposit the rents to the credit of the said
RC. The plaintiffs submits that they are in possession and enjoyment of the property and have been depositing the rents regularly to the credit of
R.C.No.734/1994. The plaintiffs submits that the defendant No.1 officials
came to the premises on 9.5.2005 without any right and they tried to demolish the premises in occupation of plaintiffs. The plaintiffs have resisted the attempt made by the defendant's official. The defendant's official left the spot with a threat. The plaintiffs gave a complaint on 10.5.2005 to the defendants stating that the defendants has no right to interfere in possession
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and enjoyment of the property or to effect any demolition without any due process of law. Further submitted that the landlord/defendant No.2 has instigated the defendant No.1 to demolish the property in occupation of the plaintiffs to seek forcible eviction of the plaintiffs. On 4.6.2005 the defendant
No.1 officials once again came to the premises along with demolition squad and tried to demolish the property in occupation of the plaintiffs. The plaintiffs with the help of neighbouring owners have resisted the attempt made by the defendant's No.1 official. Further defendant No.1 official has no right to demolish the property in occupation of the plaintiffs. The plaintiffs being the statutory tenants protected under the provisions of Rent Control Act, the defendants cannot abuse the process of law in interfering in possession and enjoyment of the plaintiffs. Further the action on the part of the defendants in trying to demolish the property in occupation of the plaintiffs is illegal, arbitrary and based on malafides. Further submitted that the suit instituted against the defendant No.1 is maintainable without issuing notice U/S 685 of
HMC Act as the action on the part of defendant No.1 is being illegal based on malafide, arbitrary and pray the court to decree the suit.
3.The defendant No.1 filed written statement in which denied all the allegations and averments made by the plaintiffs against the defendant No.1.
It is submitted that the plaintiffs is put to strict proof that their staff visited the suit schedule property on 9.5.2005 and they have tried to demolish the premises and also put to strict proof that their staff threatened the plaintiffs.
Further submitted that the defendant No.1 corporation staff will not act as per
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the instigation of some third party and they will act as per law incorporated under HMC Act, 1955. It is clear case of abuse of process of law by the plaintiffs. The plaintiffs having fought the legal battle with their owners have now created another round of litigation by filing the present suit by creating a false cause of action against this defendant to protect his illegal rights. The plaint schedule property is in dilapidated condition but this corporation has not issued any notice U/S 456 and 459 of HMC Act, 1995 to the plaintiffs.
When the monsoon season starts their field staff will visit the areas to locate the dilapidated structures in the interest of public and for their safety so as to evict them from the properties which are not fit for occupation and they are in dilapidated condition. So far the plaint schedule property is concerned there is no visit was recorded on 9.5.2005 nor on 4.6.2005. Both the dates were created by the plaintiffs to protect his possession. Further submitted that the suit is bad for non issuance of notice U/S 685 of HMC Act and pray the court to dismiss the suit.
4.The defendant No.2 who is impleaded as 2nd defendant as per the order in I.A.No.95/2007 dated 30.10.2007 filed written statement and submitted that the suit filed by the plaintiffs is not maintainable either in law or on facts and same is liable to be dismissed inlimini. The suit filed by the plaintiffs is misconceived, untenable under law and the same is filed by suppressing the real facts in respect of the non existing structures as claimed by the plaintiffs.
The present suit is filed by defendant No.2 without knowledge of his brother in order to extract money from this defendant. Plaintiff No.2 herein is the
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chronic willful defaulter and he bends upon harassing the defendants and his son. There are no premises bearing No.212132, situated at Charkaman,
Hyderabad neither in occupation of the plaintiffs nor in existence. The above mentioned entire building was collapsed due to the age of the building and incessant rains from 1994 to 2006 and the entire building have completely collapsed to the ground. This defendant has received the rents till 1994 and thereafter the plaintiffs have stopped the payment of monthly rent willfully.
The present suit is filed by the plaintiffs by abusing the process of law, except that there is no iota of truth. It is submitted that the suit building is not in existence and entire structures collapsed to the ground level and there is no cause of action warranting to file the present suit by the plaintiffs. The plaintiffs have approached this court with unclean hands. Further submitted that the allegation of plaintiffs herein are in possession of first and second floor forming part of premises bearing No.212132 situated at Charkaman,
Hyderabad is false. There are no structures of the premises bearing No.212 132 situated at Charkaman, Hyderabad neither in occupation of the plaintiffs nor in existence as on date of filing of above suit. The above mentioned premises are still in existence and they are in possession of the suit house.
He further submitted that the plaintiffs herein were tenants of this defendant during the structures are in existence. Presently there are no structures in existence, the claim made by the plaintiffs that they are tenants of the above mentioned premises is untenable under law. Further submitted that the plaintiffs father has obtained the premises from this defendant mother in the year 1971. On demise of Saraswathi Bai, this defendant became owner of the
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house and the plaintiffs paid the rent up to 1994 and thereafter they committed a willful default. The plaintiffs herein are the sons of late
Bisweshwaranath Gupta and they tendered the rents irregularly up to 1994 and thereafter they committed default. Further submitted that if the plaintiffs are depositing any rents of the collapsed premises in Rent Controller Court without knowledge of this defendant such as illegal acts of the plaintiffs amounts to abuse of process of law. Regarding the averments and allegations made in para 2 of the plaint this defendant humbly submits that the plaintiffs herein have filed a false suit O.S.No.3947/1994 in respect of the dilapidated house bearing No.212132, knowing fully that the premises is not habitual use and they filed above suit. The plaintiffs have vacated the above mentioned premises in the year 1994 itself and they started living in two different localities. The second plaintiff was resided at premises No.212670 Saisadan,
Urdu Galli, Charkaman, Hyderabad and the 1st plaintiff has been residing at
Domalguda, Hyderabad. Further submitted that the above suit filed by the plaintiffs against this defendant, against his son and another lady on a false grounds in order to harass this defendant. The suit was decreed on technical grounds against this defendant and others. The plaintiffs herein have filed
E.P.No.65/2001 in O.S.No.3947/1994 with an oblique motive to harass this
defendant. In the above E.P. the plaintiffs have contended that this defendant violated orders passed in O.S.NO.3947/1994 on false grounds. In the above
E.P. an advocate commissioner was appointed in E.A.No.702/2003 to note the physical features of the premises No.212132, Charkaman, Hyderabad. The advocate commissioner issued a notice and he visited the premises on
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4.1.2004. The advocate commissioner noted down the physical features of the suit premises and he has also taken the photographs. The advocate commissioner filed his report in the month of January, 2004 in above E.P. the advocate commissioner specifically mentioned in his report, “I found that the ground floor is partly fit for living and remaining area is damaged and not fit for occupation. It is very difficult to reach the first floor through the steps as there is no entrance to the first floor from the staircase. The ladies, children or any new person cannot reach the first floor without help of a hand. There is wooden staircase to the second floor, which consists partly damaged steps. It is also difficult to go to second floor from the said weak wooden steps. Over all it appears the petition schedule premises is more than 100 years old and it is difficult in living in the said premises”. The plaintiffs deliberately have not whispered about the report of the advocate commissioner and closing the
E.P.No.65/2001 by the Hon'ble IX Jr. Civil Judge. The advocate commissioner
report pertains to January 2004 and he has clearly noted that the condition of the building. It is submitted that the above mentioned building totally collapsed and there is no rooms are in existence. When the above mentioned premises are totally collapsed, the question of staying by the plaintiffs in suit premises is an absurd one. The plaintiffs have set up a cock and bull story in their plaint in order to obtain the orders from this court by suppressing real facts, by abusing the process of law. The xerox copy of the commissioner report is herewith filed for perusal of this court. The allegation that the defendant got it filed O.S.No.5977/1994 through Smt. Ziaunnisa Begum against the plaintiffs in respect of the premises No.212132, Charkaman,
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Hyderabad is false. The defendant herein is no way concerned with the suit filed by the Ziaunnisa Begum against the plaintiffs. Regarding averments and allegations made in para 3 and 4 of the plaint, this defendant humbly submits that he has filed RC.778/1994 for eviction on the file of the Hon'ble III Addl
Rent Controller, Hyderabad for eviction of the plaintiffs on various grounds.
The eviction petition was dismissed on 08.02.2000 and this defendant has preferred on R.A.130/2000 on the file of the Hon'ble Addl Chief Judge, City
Small Causes Court, Hyderabad and the same was dismissed on 03.11.2004.
The plaintiffs herein filed R.c.734/1994 under sec.8(5) of A.P. Rent Control Act for depositing of rents. The plaintiffs have also filed another R.C.624/1994 on the file of II Addl. Rent Controller for restoration of amenities. The above mentioned R.C.No.734/1994 was allowed and R.C.No.624/1994 was also allowed for restoration of amenities. It is submitted that the plaintiff No.1 taken advantage of orders in R.C.No.624/1994 and obtain the electricity connection in his name. Admittedly the premises bearing No.212132, ground, first and second floor is totally collapsed during the period of 1994/2005. The electricity connection is also not in existence which was obtained by the 1st plaintiff in his name. The plaintiffs herein manage the electricity department and obtaining the electricity bills in respect of entire collapsed building as the electricity connection in the name of 1st plaintiff.
Admittedly the electricity connection was removing and there is no service wire is not in existence. In spite of plaintiff No.1 managing the APSEB and obtaining the bills. The plaintiffs herein depositing the rents in RC 734/1994 knowing fully that the entire suit premises has collapsed to the ground level
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and it is not in habitual condition to use and live for men in the said premises.
It is submitted that this defendant being the owner of the premises bearing
No.212132, situated at Charkaman, Hyderabad made a representation to the
Commissioner of MCH, Dy. Commissioner of MCH, Asst. City Planner of MCH and Asst. Commissioner of Police, Charminar stating that on set of monsoon due to down pour, the premises has been dilapidated and is likely to collapsed and endangering the life of the locality along with the photographs, negatives and requested to remove the dilapidated structures to save the life of the locality and neighbours. This defendant informed the MCH that he is ready to bear the expenditure to be incurred for removal dilapidated structures of the above mentioned premises. It is submitted that the 1st defendant officials have made efforts to remove the dilapidated structures. Though the plaintiffs are residing in different premises since 1994 and they approached this court filed the present suit by suppressing the real facts. Further submitted that due to rains, due to 100 years old, the entire structures are collapsed during the period of 2004 to 2005. Further submitted that 2nd plaintiff herein having filed the above suit he has filed another suit on 21.8.2006 against the defendant and two others suppressing the above suit. The plaintiff No.2 has not whispered the pendency of the present suit which was filed prior to
O.S.No.4423/2006 and he has been abusing the process of law and filed
O.S.No.4423/2006 for injunction in respect of collapsed structures. The
defendant herein and defendant No.2 in O.S.No.4423/2006 are revising their right to file a regular appeal against erroneous judgment passed by II Junior
Civil Judge, City Civil Court, Hyderabad. The plaintiff No.2 who is the PW1 in
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O.S.No.4423/2006 has suppressed the present suit pending in court and
committed a perjury for that he is liable to be prosecuted. The plaintiffs herein have no locus standi to file the present suit in respect of the collapsed premises. It is false to state that the 1st defendant officials came to the suit premises on 9.5.2005 and the plaintiffs gave a complaint on 10.5.2005. In fact the plaintiffs are not residing in the suit premises and the question of interfering with 1st defendant officials with the peaceful possession and enjoyment of suit property does not arise. The allegation that this defendant has instigated the 1st defendant to demolish the property in occupation of the plaintiffs to seek forcible eviction is false. The present suit is bad in law for non issuance of notice U/S 685 of HMC Act and pray the court to dismiss the suit.
5.During the pendency of the suit the defendant No.2 was died and his legal heirs added as defendants No.3 to 7. The defendant No.7 filed additional written statement and same was adopted by defendants No.3 to 6. The defendants No.3 to 7 in their additional written statement submitted that the plaintiffs herein have vacated the dilapidated suit premises long back and the entire dilapidated house is not in possession of defendant No.2 during his life time, after his death, the entire dilapidated ground floor is in position of the defendants herein. The plaintiffs are not in position of the suit property as on the date of filing of the suit. It is submitted that the suit property i.e, first and second floor are no more in existence and the suit is filed in respect of the non existing structures. In the absence of any possession of the plaintiff in
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respect of non existing structures, the suit for perpetual injunction is liable to be dismissed on the face of it. It is submitted the plaintiff sought relief in respect of 1st and 2nd floor in premises No.212132, situated at Charkaman,
Hyderabad is no more in existence. The plaintiff filed application for appointment of Commissioner to note down the physical features in
I.A.No.700/2010. In which this court appointed an advocate commissioner to note down physical features of 1st and 2nd floor which are not in existence. The advocate commissioner executed the warrant of commission and filed report on 7.12.2010. The advocate commissioner report is established that there is no existing first and second floor structures i.e, suit property in premises
No.212132, situated at Charkaman, Hyderabad. The suit for perpetual injunction against these defendants is liable to be dismissed. Further submitted that the 1st defendant visited the suit premises on the complaint given by locality elder people and they made efforts to demolish dilapidated ground floor structures of the premises No.212132, Charkaman, Hyderabad.
It is submitted that the electricity department disconnected the supply of electricity long back and the Hyderabad Water Works and Sewerage Board also disconnected the water supply even before filing of the suit. The plaintiffs are not residing in the suit premises which are not in existence in prior to 2005. The plaintiffs herein suppressed the material facts and filed the present suit on a false ground. The plaintiffs are no locus standi to file the suit in respect of the collapsed structures and they are preventing the 1st defendant officials from removing dilapidated structures of ground floor in premises No.212132. The plaintiffs have no right to mislead the court in
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filing the false suit. He further submitted that the plaintiff No.2 himself is admitted in his cross examination that they are not residing in non existing suit property ie., first and second floor in premises No.212132 and pray the court to dismiss the suit.
6. Based on the pleadings of both the parties the following issues are framed for trial:
i. Whether the suit filed by plaintiff without issuing notice U/S 685 of
HMC Act is maintainable?
ii. Whether the plaintiff is entitled for declaration and permanent injunction as prayed for?
iii. To what relief?
7.Additional issues framed on 07.07.2009 as follows:
i. Whether the plaintiff is entitled for declaration as prayed for?
ii. Whether the plaintiff is entitled for perpetual injunction as prayed for?
iii. To what relief?
8.It is notice that in the main issues for two reliefs i.e, declaration and perpetual injunction are framed as one issue in Issue No.ii. It is difficult to answer two issues as one issue. Later date on 07.07.09 again both reliefs i.e, declaration and perpetual injunction separately framed as Issue No.i and
Issue No.ii. It creating confusion. As such main Issue No.ii is hereby striked out, since it is not necessary.
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9.On behalf of plaintiffs, plaintiff No.2 was examined as PW1 and Exs.A1 to A21 and Exs.A40 to A48 got marked and Exs.B1 and B2 also got marked.
On behalf of defendants, defendant No.7 was examined as DW1 and Exs.A22 to A39 got marked. On behalf of CW1, Exs.C1 to C46 got marked.
10.Heard both sides.
11.Additional Issue No.1: Whether the plaintiff is entitled for declaration as prayed for?
The suit schedule property is all that first and second floors forming part of premises bearing No. 212132, situated at Charkaman, Hyderabad within the boundaries mentioned in the schedule of property. It is undisputed fact that the plaintiffs are the tenants of Shri Shiv Raj Sanghi, originally father of plaintiff late Bisweshwaranath Gupta has obtained the premises from
Smt. Saraswathi Bai in the year 1971. On demise of Smt. Saraswathi Bai,
Shri Shiv Raj Sanghi became the owner of the house and started collecting the rents. The plaintiffs further submitted that their father expired leaving behind the plaintiffs as legal heirs, who succeeded to the tenancy rights in respect of the said premises. The plaintiffs father during his lifetime and thereafter the plaintiffs are regular in payment of monthly rent to the owner and landlord.
Regarding payment of rents it is submitted by the defendant No.2 that the plaintiffs who are sons of late Bisweshwaranath Gupta and they tendered the rents irregularly up to 1994 and thereafter they committed default in payment of rents. The defendant No.2 who is landlord to the suit schedule premises admitted regarding filing of suit O.S.No.3947/1994 by the plaintiff against the landlords restraining them from dispossessing the plaintiffs from the said
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premises without due process of law and also filing of another suit
O.S.No.5977/1994 filed by Smt. Ziaunnisa Begum against the plaintiffs
restraining them from interfering in house bearing No.212132, which is also not disputed by the defendant No.2 that the suit filed by plaintiffs herein vide
O.S.No.3947/1994 was decreed, whereas O.S.No.5977/1994 was dismissed
by common judgment dated 14.12.1999. It is also undisputed fact that the eviction petition bearing RC No.778/1994 filed by defendant No.1 against the plaintiffs on the file of III Addl. Rent Controller, Hyderabad was dismissed on 8.2.2000. Thereafter defendant No.2 preferred R.A.130/2000 on the file of
Hon'ble Addl Chief Judge, City Small Causes Court, Hyderabad which was
dismissed by the court on 3rd November, 2004. It is also undisputed fact that the plaintiffs filed R.C.734/1994 on the file of III Addl. Rent Controller,
Hyderabad for depositing of rent petition. The same was allowed by permitting the plaintiffs to deposit rents in the court. The plaintiffs submitted that they have been in peaceful possession and enjoyment of the property and have been depositing the rents to the credit of R.C734/1994. In this regard the defendant No.2 submitted that if the plaintiffs are depositing any rent of the collapsed premises in rent controller court without knowledge of this defendant. On perusal of Exs.A8 to A20 which are ledger extracts of accounts pending to the years 19941995 to 20062007, the plaintiffs are paying rents in R.C.734/1994.
12.It is the grievance of the plaintiffs that the defendant No.1 officials came to the premises on 9.5.05 without any right and they tried to demolish the
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premises in occupation of plaintiffs. The plaintiffs have resisted the attempt made by defendant No.1 officials. The defendant No.1 officials left spot with a threat as such gave a complaint on 10.5.05 to the defendant No.1 authorities.
Further submitted that the landlord has instigated the defendant No.1 to demolish the property in occupation of the pleadings. In this regard the defendant No.1 corporation filed written statement in which categorically pleaded that they never visited the suit schedule property on 9.5.05 or on 4.6.05 and demanded the plaintiffs to put to strict proof that their staff have visited the suit schedule property. They further submitted that there are civil disputes between the plaintiffs herein and with their owners. Now they have created another round of litigation by filing another suit by creating a false cause of action. Further submitted that the plaint schedule property is in a dilapidated condition but corporation has not issued any notice U/S 456 and 459 of HMC Act, 1995 to the plaintiffs. When the monsoon season starts their field staff will visit the areas to locate the dilapidated structures in the interest of public and for their safety so as to evict them from the properties which are not fit for occupation and they are in dilapidated condition. Further submitted that so far the plaint schedule property is concerned there is no visit was recorded on 9.5.2005 nor on 4.6.2005. The defendant No.2 who is landlord also denied the alleged illegal interference by the defendant No.1 officials. It is the contention of the defendant No.2 that the suit is filed in respect of non existing structures. The plaintiff No.2 has been filing several cases without knowledge of his brother i.e, plaintiff No.1 in order to extract money from this defendant. Further submitted that there are no premises
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bearing No.212132, situated at Charkaman, Hyderabad neither in occupation of the plaintiffs nor in existence. The above mentioned entire building was collapsed due to the age of the building and incessant rains from 1994 to 2006 and the entire building have completely collapsed to the ground and this defendant has received the rents till 1994 and thereafter the plaintiffs have stopped the payment of monthly rent willfully. There are no structures of the premises No.212132, situated at Charkaman, Hyderabad, neither in occupation of the plaintiffs nor in existence as occupation on the filing of above suit. The above mentioned entire building was collapsed due to the age of the building and incessant rains from 1994 to 2005. And the entire has completely collapsed to the ground level.
13.Now the point is whether the suit schedule property is in existence or not by the date of filing of the suit and as on today. Whether the plaintiffs are in possession of the suit schedule property as on the date of filing of the suit.
The plaintiffs have been claiming possession over the suit schedule property.
To establish the case of plaintiffs, the 2nd plaintiff himself is examined as PW1 and got marked Exs.A1 to A48. Admittedly the tenancy between the plaintiffs with landlord is a oral tenancy. The defendant No.1 did not deny the plaintiffs tenancy over the suit schedule property. In the pleadings of defendant No.2 taken a plea that the plaintiffs herein not filed E.P.No.65/2001 in
O.S.No.3947/1994 in the above E.P., the plaintiffs have contended that this
defendant violated the orders in O.S.No.3947/94 on false grounds. In the above E.P. the advocate commissioner was appointed in E.A.No.702/2003 to
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note down the physical features of premises No.212132, Charkaman,
Hyderabad. The advocate commissioner visited the premises on 4.1.04 to note down the physical features of the suit premises and also taken photographs.
The advocate commissioner filed his report in the month of January 2004 in which it is specifically mentioned that “I found that the ground floor is partly fit for living and remaining area is damaged and not fit for occupation. It is very difficult to reach the first floor through the steps as there is no entrance to the first floor from the staircase. The ladies, children or any new person cannot reach the first floor without help of a hand. There is wooden staircase to the second floor, which consists partly damaged steps. It is also difficult to go to second floor from the said weak wooden steps. Over all it appears the petition schedule premises is more than 100 years old and it is difficult in living in the said premises”. Further submitted that the plaintiffs deliberately have not whispered about the report of the advocate commissioner and closing of the E.P.No.65/2001 by the Hon'ble IX Jr. Civil Judge and the said advocate commissioner report pertains to January 2004. Though defendant No.2 has taken a specific plea with regard to the appointment of an advocate commissioner in E.A.No.7092/2003 in E.P.No.65/2001 the plaintiffs did not choose to whisper anything with regard to the said E.P. proceedings and with regard to the report of the advocate commissioner and not filed any document
before this court. During the cross examination PW1 was questioned with
regard to the E.P. proceedings at length. During the cross examination it is admitted by PW1/plaintiff No.2 that they have filed E.P.No.65/2001 against the defendant No.2 in which E.A.702/03 filed for appointment of advocate
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commissioner to note down the physical features on the ground that the building was collapsed naturally and the said petition was allowed. The advocate commissioner visited the suit premises on 4.1.04 in which he has also filed work memo. The advocate commissioner filed his report. Regarding the details of the report the witness did not say anything he stated that he does not remember the details of the report submitted by the advocate commissioner. When the counsel for defendant No.2 tried to confront the xerox copy of the commissioner report with the witness, the witness stated that he cannot say on seeing the xerox copy whether it is filed by the commissioner or not. The learned counsel for defendant No.2 questioned PW1 with regard to the report of the advocate commissioner filed in E.A.No.702/03 in E.P.No.65/01 thereafter either plaintiffs or defendant No.2 could not file the copy of commissioner report before this court. Any how both parties did not file the said report before this court.
14.The plaintiff No.2 who is examined as PW1 categorically stated during cross examination that he could not file any document before this court to show that they resides in the suit schedule property as on the date of filing of the suit. The defendant No.2 is disputing the very possession of the plaintiffs over the suit schedule property and the existence of the suit schedule property. The plaintiffs relied on Exs.A1 to A48 documents in support of their case. Among them Exs.A22 to A31 are crucial documents to decide the plaintiffs possession over the suit property. Ex.A22 electricity demand notice
dated 13.1.2011. On perusal of the same which was issued in favour of one
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Satyanarayana but in the name of the plaintiff. Exs.A23 to A25 are telephone bills dated 8.10.02, 7.8.02 and 10.203 respectively. The said telephone bills are not pertaining to the period 2005 when the present suit is filed or subsequent to this suit. Exs.A26 and A27 are LIC demand notices dated 20.12.05, 17.8.05 which cannot be taken into consideration to establish the plaintiffs possession over the suit schedule property during the period June, 2005 to till today. Exs.A28 to A30 are gas receipts dated 23.3.05, 7.2.05, 16.2.05 respectively. These gas receipts are not pertaining to the period June 2005 or later period. Ex.A31 electricity demand notice with payment receipt
dated 26.6.01 is not pertaining to the period June 2005 or later period. So the
documents Exs.A22 to A31 are not establishing the plaintiffs possession over the suit schedule property as on the date of filing of the suit and subsequent to the filing of the suit. On perusal of the evidence of PW1, during cross examination the counsel for defendant No.2 asked the witness that at the time of admission of PW1 children, H.No.212670 is given as residential address which was denied by the PW1. But the PW1 did not choose to file the educational certificates of their children to show he has given the address of suit schedule premises at the time of admission of their children in the school.
During the cross examination he categorically stated that he is residing in house No.212670, Sai Sadan. He stated that the said house belongs to his brother in law. When the counsel for defendant No.2 asked the witness the said house is belongs to his own but not his brotherinlaw, he denied it. Any how there is no material before this court to show that the house bearing
No.212670 is belongs to plaintiff No.2. The counsel for defendant No.2 put a
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question to PW1 that when the elections took place in the year 2004 house
No.212670 was shown as his address and election identity card was issued to the said address only which was denied by the witness. Thereafter the plaintiff filed Exs.A41 and 42 certified copies of entry of electoral roll 2011
dated 24.12.2010. But did not choose to file the election card during the
period 2004 to 2005. Exs.A41 and 42 are subsequent to the filing of the present suit. The advocate commissioner visited the suit schedule premises as per the orders of this court and submitted his report on 27.11.2010. As on that date the plaintiffs were not residing in the suit schedule premises as such this court cannot rely on Exs.A41 and 42 certified copies of entry in electoral roll 2011 dated 24.11.2010 respectively. During the cross examination of
PW1 categorically stated that since 2007 he has been residing temporarily in house No.212670 since he is residing in H.No.212670 temporarily he has not mentioned the said address in his chief affidavit filed in the year 2009.
The defendant No.2 is examined as DW1, on behalf of defendant No.2 Exs.B1 and B2 got marked. Both Exs.B1 and B2 are marked through on admission.
Ex.B1 is cross examination of PW1 herein, as a PW1 in O.S.No.4423/06.
Ex.B2 is chief affidavit in the said suit. On perusal of Ex.B1 during cross examination he categorically stated that since part of the building was collapsed he and his elder brother are temporarily residing in different buildings. Presently he is residing in a house No.212670, Sai Sadan, Urdu
Galli , Charkaman, Hyderabad and he is residing in the said house since
February 2006. So the evidence of PW1 in O.S.NO.4423/06 dated 12.3.07 is contrary to his evidence in the present proceedings as a PW1. In the chief
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affidavit of PW1 in present suit in Ex.B2 chief affidavit also he has given residential address as 212132 ie., the suit schedule property. Whereas his own evidence in this suit as PW1 and in Ex.B1 reflecting that he has been residing in the premises bearing No.212670 since 2007 and February 2006 respectively. So it is clear that PW1 is intentionally and deliberately given wrong address in his affidavits. During the cross examination he gave an explanation that since he is temporarily residing in house No.212670 he did not give the said address in his chief affidavit. but no such explanation is whispered in his affidavit. During the cross examination PW1 stated that the plaintiff No.1 is residing with his father at Himayathnagar, Hyderabad for the last 3 years. The defendant No.2 has taken a plea that the plaintiff No.2 is filing false case including the present suit without knowledge of plaintiff No.1.
But the plaintiff No.2 who is examined as PW1 did not choose to examine the 1st plaintiff in this case. There is no material before this court to show the plaintiffs possession over the suit schedule property by the date of filing of the present suit and subsequent to the filing of the present suit. Plaintiffs utterly failed to establish their possession over the suit schedule property.
15.The defendant No.2 has taken a plea that the total building bearing
No.212132 is in a dilapidated condition and the entire building was collapsed due to the age of the building and incessant rains from 19942005 and the entire building have completely collapsed to the ground level. As stated by the plaintiffs the defendant No.2 stated different versions regarding the stage of the building. Once he stated that entire building was collapsed to
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the ground level during period 19942005. Some were it is stated that it was collapsed during period 19942006. Now the point for consideration is whether the suit schedule building is in existence or not. The suit schedule property is “all that first and second floors forming part of premises No.212 132, situated at Charkaman, Hyderabad” within the boundaries mentioned in the petition. As discussed earlier the plaintiffs could not be in possession over the suit schedule property by the date of filing of the suit and subsequent period. Now the point is whether the suit schedule building is in existence.
Except the evidence of PW1 there is no other oral evidence adduced by plaintiff to establish that suit schedule property is in existence. The photographs filed by plaintiff is helpful to decide whether the suit schedule property is in existence or fit for inhabitation. Ex.A32 to A35, Exs.A38 and
A39 dated 13.11.2010, Ex.A33, A34, A36, A37 photographs are dated 26.11.2010. On perusal of those photographs the entire building was in collapsed stage and is not fit for habitation. There are no traces of residing in the said building as on the date of taken the photographs. The learned counsel for plaintiff submitted that just before the day of visiting the commissioner appointed by this court i.e., on 26.11.2010 the defendant No.2 engaged labourers and started demolishing the suit schedule building in order to show that there was no existence of suit schedule building. Though the statement of defendant No.2 regarding non existence of suit schedule building is not correct, but on perusal of the photographs filed by the plaintiffs it is clear that the suit schedule building is not fit for inhabitation. Ex.A48 are the digital photographs with different dates also reflecting the suit schedule
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building. The photographs Ex.A48 (1) dated 12.11.2010 Ex.A48 (5,6) dated 1.11.2010 is reflecting somebody residing in the ground floor. It is admitted fact that one Ziaunnisa Begum tenant previously resided in ground floor.
Any how the ground floor of the premises No.212132 is not the suit schedule property herein. The report of the advocate commissioner is very crucial to decide the stage of suit building. The advocate commissioner visited the suit schedule property on 27.11.2010 as per the orders of this court in
I.A.No.700/2010 who is examined as CW1 and his report is got marked as
Ex.C4. On perusal of Ex.C4 the point 1 to 6 in respect of the ground floor of the suit schedule property, on perusal of point 1 to 6 it is noticed that the building i.e, ground floor also in dilapidated condition. The point 7 to 9, 11 12 and 21 are in respect of the first floor. Those points are truely extracted for the convenience. Point 7: I noticed a room in the first floor towards front side of suit property without any roof. The said room roof engrossed with wooden bars. Point 8: There is another room in the first floor without any door with line stone roof. I have noticed a hole in the said roof and the said roof is supporting with wooden bars. Point 9: There is another open room in the first floor with RCC roof. The said roof is with hole. Point 11: The front side room in the first floor is without any doors and having one window open to out side.
Point 12: There is another room with three sides walls in the first floor. Point 21: RCC room of first floor is covered with Shabad stones and another room with line stone roof half portion is covered with Shabad stones and crow bar on the roof of the first floor. The above points 7 to 9, 11, 12 and 21 reflecting that the first floor is not in fit condition for habitation. There are no traces of
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residing in the first floor. In the point No.13 of Commissioner report it is observed that there are no floors is existing as on the date of commissioner visit. The commissioner also observed in third point that a staircase cannot lead to upper floor and it is in dilapidated condition. The learned commissioner took photographs and filed before this court along with report which are marked as Exs.C5 to C46. On perusal of the photographs the entire building is in dilapidated condition and no body is residing in the said building. The second floor was not in existence on the date of commissioner visit. The plaintiffs could not establish that they were residing in the suit schedule premises by the date of filing of the suit and subsequent period.
Though it cannot be concluded there is no existence of suit schedule property as on the date of filing of the suit. But it can be said that as on the date of filing of the suit the suit schedule building is not in fit condition for habitation and plaintiff were not in possession of suit schedule property.
16.The cause of action for the suit arose as per the plaint, “when the plaintiffs father has obtained the premises from Smt. Saraswati Bai in the year 1971. It arose on 9.5.2005 when the defendant's official came to the premises and tried to demolish the property in occupation of the plaintiffs. It also arose on 4.6.2005 when the defendant's official along with demolition squad once again came to the premises and tried to demolish the property.”
The relief seek by the plaintiffs initially against the defendant No.1, subsequently by impleading the defendant No.2 as per order in
I.A.No.94/2007, seek the relief against the defendant No.2 also. But no cause of action was mentioned to file the suit against the defendant No.2. The
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plaintiffs seek relief of declaration to declare the act of the defendants trying to demolish the second floor and forming part of premises No.212132, as illegal, arbitrary and based on malafides. But the plaintiffs could not establish the alleged illegal interference dated 9.5.05 and on 4.6.05. During the cross examination of PW1 he categorically admitted that he could not file any documentary evidence before this court to show alleged interference of defendant No.1 officials. The defendant No.1 corporation categorically stated in their pleadings that as per records they never visited the suit schedule property on 9.5.05 or 4.6.05 and demanded strict proof from plaintiffs. In this case the defendant No.1 did not adduce any oral or documentary evidence in support of their pleadings. But they crossexamined PW1, during the cross examination PW1 categorically stated that there is no document to say that the defendant No.1 officials illegally interfered with the suit schedule property. Any how as on today second floor of premises No.212132 is not in existence and the first floor is almost collapsed is not fit for inhabitation.
Under the provisions of Section 456 and 459 of HMC Act the defendant No. 1 corporation got power to take action on any buildings/partition thereof to be unsafe, it shall, in accordance with established procedure. The court cannot resist the statutory authority from taking action for the interest of public.
Hence additional Issue No.1 is answered against the plaintiff.
17.Additional Issue No.2:Whether the plaintiff is entitled for perpetual injunction as prayed for?
Since plaintiffs could not establish their possession over the suit schedule property they cannot get the relief of perpetual injunction against the
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defendants. No relief of injunction can be granted against non existing structures. Accordingly this issue is answered against the plaintiff.
18.ISSUE NO.1:Whether the suit filed by plaintiff without issuing notice U/S 685 of HMC Act is maintainable?
A notice U/S 685 of HMC Act shall be issued before 30 days prior to filing a suit against the defendant No.1/GHMC. Section 685 of HMC Act speaks as follows: No suit shall be instituted against the Corporation or against the Commissioner or a Deputy Commissioner or against any officer or servant, appointed under this act, in respect of any act done in pursuance or execution or intended execution of this Act or in respect of any alleged neglect or default in the execution of this Act until the expiration of the one month next after notice in writing has been issue”. In the instant admittedly the plaintiffs did not issue notice U/S 685 of HMC Act before filing the present suit. They attributed malafides on the part of defendant No.1 corporation but they could not establish the malafides on the part of defendant No.1 corporation by adducing oral or documentary evidence. The notice U/S 685 of a mandatory.
Under the circumstances of the case in view of discussion in the above issues this issue is also answered against the plaintiffs by declaring the suit is bad for non issuance of notice U/S 685 of HMC Act.
19.ISSUE NO.3:To what relief?
Since all the above issues are answered against the plaintiffs, the suit is liable to be dismissed.
In the result, the suit is dismissed without costs.
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Dictated to the Personal Assistant, and after transcribed by her,
corrected and pronounced by me in the open court, on this the 26th day of April, 2013.
VI JUNIOR CIVIL JUDGE,
CITY CIVIL COURT,HYDERABAD.
APPENDIX OF EVIDENCE
Witnesses Examined: FOR PLAINTIFFS: FOR DEFENDANTS: PW1: Shri Rajender Pershad Gupta DW1: Naveen Sanghi CW1: M. Ranjith Kumar. DOCUMENTS MARKED FOR PLAINTIFFS:
Ex.A1C.C. of Judgment in O.S.No.3947/1994 and O.S.No.5977/91 on the file of IX Junior civil Judge.
Ex.A2C.C. of decree in O.S.No.5977/1994.
Ex.A3C.C. of Order R.A.No.130/2000.
Ex.A4Notice dated 10.5.2005.
Ex.A5C.C. of Order in R.C.No.734/1994.
Ex.A6C.C. of Judgment in O.S.No.4423/2006.
Ex.A7C.C. of R.C.No.624/1994.
Ex.A8Ledger extract of Accounts pertaining year 19941995 for the month of June to May.
Ex.A9Ledger extract of Accounts pertaining year 19951996 for the month of June to March.
Ex.A10Ledger Extract of Accounts pertaining year 19961997.
Ex.A11Ledger Extract of Accounts pertaining year 19971998.
Ex.A12Ledger Extract of Accounts pertaining year 19981999.
Ex.A13Ledger Extract of Accounts pertaining year 19992000.
Ex.A14Ledger Extract of Accounts pertaining year 20002001.
Ex.A15Ledger Extract of Accounts pertaining year 20012002.
Ex.A16Ledger Extract of Accounts pertaining year 20022003.
Ex.A17Ledger Extract of Accounts pertaining year 20032004.
Ex.A18Ledger Extract of Accounts pertaining year 20042005.
Ex.A19Ledger Extract of Accounts pertaining year 20052006.
Ex.A20Ledger Extract of Accounts pertaining year 20062007.
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Ex.A21Certified copy of decree in O.S.No.4423/2006.
Ex.A40Original Ration Card.
Ex.A41C.C. of Entry elect roll 2011, dated 24.12.2010.
Ex.A42C.C. of Entry Elect roll 2011, dated 24.12.2010.
Exs.A43 to 47Complaints to the SSO, Charminar P.S. dated 26.11.2010, 11.11.2010, 22.2.2006, 22.2.2006, 2.8.2006 respectively.
Ex.A487 Digital photographs with difference dates along with bill receipt,
dated 27.1.2011 (The connected CD already marked) along with digital
photographs Exs.A36 to A39 but not verified.
Ex.B1Cross examination of PW1 in O.S.No.4423/2006.
Ex.B2C.C. of Chief examination of PW1 in O.S.No.4423/2006.
DOCUMENTS MARKED FOR DEFENDANTS:
Ex.A22Original electricity demand notice.
Ex.A23Telephone bill dated 11.10.2002 with payment receipt.
Ex.A24Telephone bill dated 11.8.2002 with payment receipt.
Ex.A25Telephone bill dated 3.3.2003.
Exs.A26 and A27 LIC demand notices.
Exs.A28 to A30Gas receipts.
Ex.A31Electricity demand notice with payment receipt.
Exs.A32 and A33 Digital photographs with C.D.
Exs.A34 and A35 Digital photographs with C.D.
Exs.A36 to A39Digital photographs with C.D. (C.D. not verified).
DOCUMENTS MARKED FOR CW1:
Ex.C1Warrant dated 19.10.2010.
Ex.C2Warrant dated 18.11.2010.
Ex.C3Proceedings.
Ex.C4Report.
Exs.C5 to C46Digital photographs with C.D.
VI JUNIOR CIVIL JUDGE,
CITY CIVIL COURT,HYDERABAD.