Sri V.B.S.Srinivas Rao

IN THE COURT OF THE SENIOR CIVIL JUDGE:

KOTHAPETA

Present : Sri V.B.S. SRINIVASARAO,

Senior Civil Judge, Kothapeta

Friday, the 3rd day of November, 2017.

A.S.No.1/2017

Between:-

Kadali Perumallu…Appellant/defendant

and

Uppalapati Janakiyamma Feeding Choultry,

represented by its Manager, Podagatlapalli. ...Respondent/plaintiff

This appeal filed against the decree and judgment in

O.S.No.49/2012, dated 20-02-2017 on the file of the Junior Civil Judge’s

Court, Kothapeta.

Between:-

Uppalapati Janakiyamma Feeding Choultry represented by its Manager, Podagatlapalli. …Plaintiff

and

Kadali Perumallu ..Defendant

This appeal came up before me for final hearing on 26-10-2017 in the presence of Sri R.K. Acharyulu, Advocate for the appellant/ defendant and Sri P.V.R. Krishna Rao, Advocate for the respondent/ plaintiff and having stood over for consideration till this day, this court made the following:-

JUDGMENT

1.The appellant herein is the unsuccessful defendant in

O.S.No.49/2012 on the file of Junior Civil Judge’s Court, Kothapeta. He

preferred the appeal against the decree and judgment passed in

O.S.No.49/2012, dated 20-02-2017 on the file of Junior Civil Judge’s

Court, Kothapeta for such other reliefs on the following grounds:- 1.The Judgment and decree of the lower court is contrary to law, weight of evidence and probabilities of the case.

2.The lower court ought to have decided the suit in favour of the appellant in stead of respondent.

3.The lower court ought not given an opportunity to the appellant and failed to observe the defence of the appellant.

4.The lower court ought to erroneously consider Ex.A.1 which is filed by the respondent as of genuine without any jurisdiction.

5.The lower court failed to observe and consider Ex.A.1 and A.2 filed by the respondent whether or genuine or not?

6.The lower court failed to observe the defence of the appellant?

7.The lower court failed to observe that the plaintiff have no right to claim the suit amount basing on the false documents?

8.The court erroneously found that the plaintiff is entitled to the relief of suit and decreed the suit?

9.The lower court ought not given such an opportunity by giving sufficient time to the appellant/defendant either to submit his evidence or detailed arguments.

10.The lower court has to consider the previous suit filed by the respondent in O.S.No.38/2012 was dismissed for default and the said matter was suppressed by the respondent in the present suit.

2.The case of the respondent/plaintiff in brief as follows:-

The respondent/plaintiff is a choultry is a feeding institution situated at Podagatlapalli village have landed property at different villages for an extent of Ac.3-58 cents in wet land in R.S.No.49 of

Khandriga village is the absolute property of plaintiff Choultry governed by the endowment department. The leasehold rights of the same were put to public auction on 21-06-2006 for a period of 3 years.

The appellant/defendant participated and became a highest bidder by agreeing to pay 87 cents of paddy for the 1st and 2nd crop payable by the end of April. As per the main conditions in case of default the appellant/defendant is liable to pay the value of the agreed rent at the prevailing market rate of paddy with interest at 12% p.a. The appellant/defendant agreed to abide by the rules and conditions took up the cultivation and cultivated the land for a period of 3 years from 2006-2007.

During the tenancy of the cultivation, the appellant/respondent is not regular in payment of rents and somehow paid the rents for the year 2006-2007 and 2007-2008. For the year 2008 and 2009 having liable to pay 87 bags of paddy but he paid the value of 20 bags of paddy towards part-payment in the rent at the rate of Rs.650/- per bag and failed to pay the remaining 67 bags of paddy which is still outstanding. He is bound to pay the same at the prevailing market rate of Rs.650/- per bag. Even though he admitted his liability to pay the balance but failed to pay the same in spite of repeated demands by the Manager of the village. Hence the respondent/plaintiff constrained to file the suit.

The case of the appellant/defendant is that he denied all the plaint allegations and averred that the appellant/defendant is successful bidder where auction conducted by the respondent/plaintiff institution and as according to the norms which was displayed by the respondent/plaintiff institution that the appellant/defendant agreed to pay 87 kata bags and the cost of the bag is Rs.450/- only and there at the time of delivery in the property the appellant/defendant deposited 30 kata bags of amount of Rs.14,850/- in addition that the deposited amount of Rs.10,000/- on each and every agricultural year as agreeing to the agreed terms the appellant/defendant paid the amounts regularly and obtained receipts from the respondent/plaintiff company.

As the year 2007 and 2008 the crop was affected virus disease and therefore no crops are yielding and also subsequent year the

Government declared that no crop due to lack of sufficient water for cultivation. Even then the appellant/defendant investing the amount by mode of payments as agreed by them. The same is intimated by the respondent/plaintiff institution what they are suffered due to failure of crop land and common crop year and thereby the respondent/appellant institution always made to understand that they will obtain the orders from the higher officials and remission will be provided due to course of time. But this innocent appellant/respondent made to believe that one day or other the respondent/plaintiff institution would return the amount by the appellant/defendant in all 3 consecutive years but the so far time the appellant/defendant by shocking and surprise this respondent/plaintiff institution failed to keep the promise by providing remission instead of that they filed the suit by suppressing all the accounts. But the reason that this respondent/plaintiff are not producing the actual account so. In all times the respondent/plaintiff passed the receipts without obtaining the signatures of the appellant/defendant. Therefore, the allegations are baseless and the appellant is entitled to recover the amount as paid by him even at the time of no crop and a year and lease due to virus disease infected in those years.

The alleged cause of action is false, created and concocted for the purpose of filing the suit. The respondent/plaintiff institution suppressed all the accounts on imposition of paddy bag is only

Rs.450/- only agreeing to the agreement but not Rs.650/- and the calculations are false there is no written agreement as stated by the respondent and the rate of interest claimed by the respondent/plaintiff is very high. The appellant/defendant is a small farmer and having no other movable and immovable properties and the only this property which is Government land and therefore the appellant is entitled to scale down the interest in the event of found due. There is no due is pending as the appellant paid the entire dues.

3.Basing on the pleadings, the following issues are framed for trial:- 1.Whether the plaintiff is entitled for decree as prayed for?

2.To what relief?

4.During the course of the trial the respondent/plaintiff examined

Executive Officer of plaintiff Coultry as P.W.1 and marked Exs.A.1 and

A.2. The appellant/defendant examined as D.W.1 and no documents are marked.

5.On appreciation of the evidence available in the record, the trial court disbelieved the version of the appellant/defendant and the suit is decreed with costs for a sum of Rs.64,162/- with an interest at the rate of 12% p.a., from the date of the presentation of the suit till the date of the decree and thereafter 6% p.a., from the date of the decree till the date of realization of amount of Rs.43,550/-.

6.Arguments heard both sides.

7.Now the points for consideration are:- 1.Whether the findings of the trial court in negativating the claim of the appellant/defendant is erroneous and whether there is any necessary to interfere with such findings?

2.To what relief?

8.POINT No.1:-

The learned counsel for the appellant/defendant contended that the appellant stood as a highest bidder for the lands of the respondent and there is an agreement that the appellant shall pay 87 bags of paddy and the cost of each bag is Rs.450/- only. At the time of delivering the property the appellant deposited 33 kata bags amount of Rs.14,850/- in addition the deposited amount of Rs.10,000/- each and every agricultural year as agreeing to the agreed terms the appellant paid the amounts regularly and obtained receipts from the respondent institution. As the year 2007 and 2008 the crop was affected virus disease and therefore no crops are yielding and also subsequent year the Government declared that no crop due to lack of sufficient water for cultivation. Even then the appellant investing the amounts by mode of payment as agreed by them. The same is intimated to the respondent institution what they are suffer due to failure of crop yielding and no crop year and thereby the respondent institution always made to understand that they will obtain the orders from the higher officials and remission will be provided due to course of time. But the innocent appellant made to believe that one day or other the respondent institution would return the amounts which were paid by the appellant in all 3 consecutive years. But so far time the appellant/defendant by shocking and surprise the respondent institution failed to keep the promise by providing remission instead of that filed the present suit suppressing all the fact. The imposition rate of paddy bag is Rs.450/- but not Rs.650/-.

9.The learned counsel for the respondent argued that the respondent Choultry is a feeding institution situated at Podagatlapalli and the said institution having Ac.3-58 cents of wet land in R.S.No.49 of Khandriga village is absolute property of the respondent Choultry and it is Governed by the Endowment department. On 21-06-2006 the leasehold rights are put in public auction for period of 3 years. In the said auction the appellant stood as a highest bidder and agreeing to pay 87 bags of paddy for the 1st and 2nd crop payable by the end of the

April and there is also a condition if the appellant is failed to pay he shall pay the rent at the prevailing rate of paddy with interest at the rate of 12% p.a. Accordingly, the appellant agreed to abide by the rules and conditions took up by the cultivation and cultivated the lands for a period of 3 years from 2006-2007. During the tenancy of the cultivation the appellant is not regular in payment of rents and somehow he paid the rents for the year 2006-07 and 2007-08 and he is liable to pay the rent for the year 2008 and 2009 and also he is liable to pay 87 bags of paddy and he paid the value of the 20 bags of paddy towards part-payment of the rent at the rate of Rs.650/- per bag and failed to pay the remaining Ac.0-60 cents of paddy which is still outstanding and there is no documentary evidence filed by the appellant that he paid the entire amount.

10.After hearing the both side counsels, on perusing of Ex.A.1 and

A.2 there is no dispute that the respondent institution conducted a public auction over their lands which is an extent of Ac.3-58 cents in

R.S.No.49 of Khandriga village and also there is no dispute that in the said land the appellant stood as a highest bidder and the bid of the appellant is confirmed on the same day i.e., on 21-06-2006. On the same day, the appellant took lease of the land for a period of 3 years rent of 87 bags for the 1st and 2nd crop payable by the end of April.

Subsequently, the appellant paid the rents for the year 2006-07 and 2007-08. Thereafter the appellant failed to pay the rents as agreed by them. The contention of the appellant is that the crop was affected with virus disease and the Government also declared the crop holiday for the year 2008 so that he approached the respondent Choultry and they made believed him that they will issue orders for remission but instead of giving orders for remission the suit was filed against him. In the present case, P.W.1 is the Executive Officer of the respondent

Choultry Ex.A.1 is the list approval order of Endowment department,

Kakinada dt.24-06-2006 and Ex.A.2 is the auction list containing participant’s name including the name of the appellant dt.21-06-2006.

As seen from Ex.A.2 it is clear that the auction was conducted on 21-06-2006 and the appellant is one of the participant of the said auction and he also stood as highest bidder for the land of the plaintiff institution to an extent of Ac.3-50 cents of wet land for 3 years from 2006-07. The evidence of P.W.1 suffered from cross-examination. But nothing was elicited to disprove the contention of the respondent. But as seen from the contention of the appellant and also the cross- examination of P.W.1 and also chief-affidavit of the appellant/defendant that he paid the entire amounts and obtained the receipts from the respondent Choultry. But surprisingly, the appellant not filed the said receipts though it is a very important piece of the document to support the contention of appellant. There is no any explanation forwarded by the appellant why he failed to file the documents. During the course of cross-examination of D.W.1 also the appellant admitted about the passing of the receipts by the respondent but the appellant failed to file the said receipts before the court. As seen from the categorical admission of D.W.1 it crystal clear that the appellant took the lease of the plaintiff Choultry for the period of 3 years i.e., 2006-07, 2007-08 and 2008-09. As seen from the contention of the respondent that the lease for land is 87 bags. But as per the contention of the appellant the lease for land is 67 bags. But when we observe the contents of the written statement at para No.4 that the appellant categorically admitted that the appellant is agreed to pay 87 kata bags and the cost of bag is Rs.450/-. So as seen from the contention of the appellant in the written statement and in his evidence that the appellant taken inconsistent pleas that in one occasion the rent for land is 87 bags and in one the rent for land is 67 bags. It clearly indicates that with a view to avoid to payment of the rent only the appellant taken unconnected pleas which are not acceptable under law. Further, as seen from the contention of the appellant that previously the respondent filed

O.S.No.38/2012 on the file of Junior Civil Jude’s Court, Kothapeta and

the same was dismissed for default but no objection was filed for restoration of the said suit and the respondent is filed the present suit which is not permissible under law and he relied on 1996(1) A.L.T. 50 in between Cheepinapi Venkata Subbamma Vs. Chejerla Naraiah and others.

“In this the Lordship observed that instead of adopting procedure contemplated under Order 9 Rule 9 C.P.C., the plaintiff filed a fresh suit altogether,which is not maintainable.”

In the present case that the appellant contended that

O.S.No.38/2012 was filed before Junior Civil Judge’s Court, Kothapeta

and the same was dismissed for default and no objection was filed under Order 9, Rule 9 C.P.C., seeking the court for restoration of

O.S.No.38/2012 in spite of the plaintiff filed the present suit but

surprisingly no any documentary evidence filed by the appellant to prove that O.S.No.38/2012 was filed and the said suit was dismissed for default. In view of the lack of the such evidence, this court feels that there is no water in the contention of the appellant. Hence, the contention of the appellant i.e., the respondent was filed in

O.S.No.38/2012 and the said suit was dismissed for default is rejected.

11.The learned counsel for the appellant contended that in the year 2007 and 2008 the Government declared as crop holiday and the crop was affected with virus so that they approached the respondent

Choultry and requested for remission and the respondent Choultry promised him that they will give remission after consulting with the higher officials but no evidence is brought on record to prove that 2007-08 was declared as crop holiday by the Government and the crop was affected with virus disease and the appellant approached the respondent and requested for remission. But surprisingly, in the above said aspect the appellant did not place any piece of evidence evidencing that for the year 2007 and 2008 the Government declared as crop holiday and the crop was affected with virus and also that the appellant approached the respondent and the respondent promised the appellant after consulting with the higher officials. In view of the lack of the such evidence, this court sincerely reject the contention of the appellant. In view of the above discussion, this court sincerely believes that the appellant is default of payment of rent for the year 2008 and 2009 and he also liable to pay the interest stipulated in between appellant and respondent. Accordingly, the point is answered.

12.Issue No.2:-

In view of the findings in issue No.1 the appeal is dismissed without costs by confirming judgment and decree in O.S.No.49/2012

dated 20-02-2017 on the file of Junior Civil Judge, Kothapeta.

Dictated to Stenographer(Gr.I), transcribed by him, corrected and

pronounced by me in open court this the 3rd day of November, 2017.

Sd/- V.B.S. Srinivasa Rao

SENIOR CIVIL JUDGE,

KOTHAPETA.

APPENDIX OF EVIDENCE

No oral or documentary evidence is adduced on either side.

Sd/- V.B.S. Srinivasa Rao

S.C.J.

IN THE COURT OF THE SENIOR CIVIL JUDGE:

KOTHAPETA

Present : Sri V.B.S. SRINIVASARAO,

Senior Civil Judge, Kothapeta

Friday, the 3rd day of November, 2017.

A.S.No.1/2017

Between:-

Kadali Perumallu…Appellant/defendant

and

Uppalapati Janakiyamma Feeding Choultry,

represented by its Manager, Podagatlapalli. ...Respondent/plaintiff

This appeal filed against the decree and judgment in

O.S.No.49/2012, dated 20-02-2017 on the file of the Junior Civil Judge’s

Court, Kothapeta.

Between:-

Uppalapati Janakiyamma Feeding Choultry represented by its Manager, Podagatlapalli. …Plaintiff

and

Kadali Perumallu ..Defendant

This appeal came up before me for final hearing on 26-10-2017 in the presence of Sri R.K. Acharyulu, Advocate for the appellant/ defendant and Sri P.V.R. Krishna Rao, Advocate for the respondent/ plaintiff and having stood over for consideration till this day, this court made the following:-

JUDGMENT

1.The appellant herein is the unsuccessful defendant in

O.S.No.49/2012 on the file of Junior Civil Judge’s Court, Kothapeta. He

preferred the appeal against the decree and judgment passed in

O.S.No.49/2012, dated 20-02-2017 on the file of Junior Civil Judge’s

Court, Kothapeta for such other reliefs on the following grounds:- 1.The Judgment and decree of the lower court is contrary to law, weight of evidence and probabilities of the case.

2.The lower court ought to have decided the suit in favour of the appellant in stead of respondent.

3.The lower court ought not given an opportunity to the appellant and failed to observe the defence of the appellant.

4.The lower court ought to erroneously consider Ex.A.1 which is filed by the respondent as of genuine without any jurisdiction.

5.The lower court failed to observe and consider Ex.A.1 and A.2 filed by the respondent whether or genuine or not?

6.The lower court failed to observe the defence of the appellant?

7.The lower court failed to observe that the plaintiff have no right to claim the suit amount basing on the false documents?

8.The court erroneously found that the plaintiff is entitled to the relief of suit and decreed the suit?

9.The lower court ought not given such an opportunity by giving sufficient time to the appellant/defendant either to submit his evidence or detailed arguments.

10.The lower court has to consider the previous suit filed by the respondent in O.S.No.38/2012 was dismissed for default and the said matter was suppressed by the respondent in the present suit.

2.The case of the respondent/plaintiff in brief as follows:-

The respondent/plaintiff is a choultry is a feeding institution situated at Podagatlapalli village have landed property at different villages for an extent of Ac.3-58 cents in wet land in R.S.No.49 of

Khandriga village is the absolute property of plaintiff Choultry governed by the endowment department. The leasehold rights of the same were put to public auction on 21-06-2006 for a period of 3 years.

The appellant/defendant participated and became a highest bidder by agreeing to pay 87 cents of paddy for the 1st and 2nd crop payable by the end of April. As per the main conditions in case of default the appellant/defendant is liable to pay the value of the agreed rent at the prevailing market rate of paddy with interest at 12% p.a. The appellant/defendant agreed to abide by the rules and conditions took up the cultivation and cultivated the land for a period of 3 years from 2006-2007.

During the tenancy of the cultivation, the appellant/respondent is not regular in payment of rents and somehow paid the rents for the year 2006-2007 and 2007-2008. For the year 2008 and 2009 having liable to pay 87 bags of paddy but he paid the value of 20 bags of paddy towards part-payment in the rent at the rate of Rs.650/- per bag and failed to pay the remaining 67 bags of paddy which is still outstanding. He is bound to pay the same at the prevailing market rate of Rs.650/- per bag. Even though he admitted his liability to pay the balance but failed to pay the same in spite of repeated demands by the Manager of the village. Hence the respondent/plaintiff constrained to file the suit.

The case of the appellant/defendant is that he denied all the plaint allegations and averred that the appellant/defendant is successful bidder where auction conducted by the respondent/plaintiff institution and as according to the norms which was displayed by the respondent/plaintiff institution that the appellant/defendant agreed to pay 87 kata bags and the cost of the bag is Rs.450/- only and there at the time of delivery in the property the appellant/defendant deposited 30 kata bags of amount of Rs.14,850/- in addition that the deposited amount of Rs.10,000/- on each and every agricultural year as agreeing to the agreed terms the appellant/defendant paid the amounts regularly and obtained receipts from the respondent/plaintiff company.

As the year 2007 and 2008 the crop was affected virus disease and therefore no crops are yielding and also subsequent year the

Government declared that no crop due to lack of sufficient water for cultivation. Even then the appellant/defendant investing the amount by mode of payments as agreed by them. The same is intimated by the respondent/plaintiff institution what they are suffered due to failure of crop land and common crop year and thereby the respondent/appellant institution always made to understand that they will obtain the orders from the higher officials and remission will be provided due to course of time. But this innocent appellant/respondent made to believe that one day or other the respondent/plaintiff institution would return the amount by the appellant/defendant in all 3 consecutive years but the so far time the appellant/defendant by shocking and surprise this respondent/plaintiff institution failed to keep the promise by providing remission instead of that they filed the suit by suppressing all the accounts. But the reason that this respondent/plaintiff are not producing the actual account so. In all times the respondent/plaintiff passed the receipts without obtaining the signatures of the appellant/defendant. Therefore, the allegations are baseless and the appellant is entitled to recover the amount as paid by him even at the time of no crop and a year and lease due to virus disease infected in those years.

The alleged cause of action is false, created and concocted for the purpose of filing the suit. The respondent/plaintiff institution suppressed all the accounts on imposition of paddy bag is only

Rs.450/- only agreeing to the agreement but not Rs.650/- and the calculations are false there is no written agreement as stated by the respondent and the rate of interest claimed by the respondent/plaintiff is very high. The appellant/defendant is a small farmer and having no other movable and immovable properties and the only this property which is Government land and therefore the appellant is entitled to scale down the interest in the event of found due. There is no due is pending as the appellant paid the entire dues.

3.Basing on the pleadings, the following issues are framed for trial:- 1.Whether the plaintiff is entitled for decree as prayed for?

2.To what relief?

4.During the course of the trial the respondent/plaintiff examined

Executive Officer of plaintiff Coultry as P.W.1 and marked Exs.A.1 and

A.2. The appellant/defendant examined as D.W.1 and no documents are marked.

5.On appreciation of the evidence available in the record, the trial court disbelieved the version of the appellant/defendant and the suit is decreed with costs for a sum of Rs.64,162/- with an interest at the rate of 12% p.a., from the date of the presentation of the suit till the date of the decree and thereafter 6% p.a., from the date of the decree till the date of realization of amount of Rs.43,550/-.

6.Arguments heard both sides.

7.Now the points for consideration are:- 1.Whether the findings of the trial court in negativating the claim of the appellant/defendant is erroneous and whether there is any necessary to interfere with such findings?

2.To what relief?

8.POINT No.1:-

The learned counsel for the appellant/defendant contended that the appellant stood as a highest bidder for the lands of the respondent and there is an agreement that the appellant shall pay 87 bags of paddy and the cost of each bag is Rs.450/- only. At the time of delivering the property the appellant deposited 33 kata bags amount of Rs.14,850/- in addition the deposited amount of Rs.10,000/- each and every agricultural year as agreeing to the agreed terms the appellant paid the amounts regularly and obtained receipts from the respondent institution. As the year 2007 and 2008 the crop was affected virus disease and therefore no crops are yielding and also subsequent year the Government declared that no crop due to lack of sufficient water for cultivation. Even then the appellant investing the amounts by mode of payment as agreed by them. The same is intimated to the respondent institution what they are suffer due to failure of crop yielding and no crop year and thereby the respondent institution always made to understand that they will obtain the orders from the higher officials and remission will be provided due to course of time. But the innocent appellant made to believe that one day or other the respondent institution would return the amounts which were paid by the appellant in all 3 consecutive years. But so far time the appellant/defendant by shocking and surprise the respondent institution failed to keep the promise by providing remission instead of that filed the present suit suppressing all the fact. The imposition rate of paddy bag is Rs.450/- but not Rs.650/-.

9.The learned counsel for the respondent argued that the respondent Choultry is a feeding institution situated at Podagatlapalli and the said institution having Ac.3-58 cents of wet land in R.S.No.49 of Khandriga village is absolute property of the respondent Choultry and it is Governed by the Endowment department. On 21-06-2006 the leasehold rights are put in public auction for period of 3 years. In the said auction the appellant stood as a highest bidder and agreeing to pay 87 bags of paddy for the 1st and 2nd crop payable by the end of the

April and there is also a condition if the appellant is failed to pay he shall pay the rent at the prevailing rate of paddy with interest at the rate of 12% p.a. Accordingly, the appellant agreed to abide by the rules and conditions took up by the cultivation and cultivated the lands for a period of 3 years from 2006-2007. During the tenancy of the cultivation the appellant is not regular in payment of rents and somehow he paid the rents for the year 2006-07 and 2007-08 and he is liable to pay the rent for the year 2008 and 2009 and also he is liable to pay 87 bags of paddy and he paid the value of the 20 bags of paddy towards part-payment of the rent at the rate of Rs.650/- per bag and failed to pay the remaining Ac.0-60 cents of paddy which is still outstanding and there is no documentary evidence filed by the appellant that he paid the entire amount.

10.After hearing the both side counsels, on perusing of Ex.A.1 and

A.2 there is no dispute that the respondent institution conducted a public auction over their lands which is an extent of Ac.3-58 cents in

R.S.No.49 of Khandriga village and also there is no dispute that in the said land the appellant stood as a highest bidder and the bid of the appellant is confirmed on the same day i.e., on 21-06-2006. On the same day, the appellant took lease of the land for a period of 3 years rent of 87 bags for the 1st and 2nd crop payable by the end of April.

Subsequently, the appellant paid the rents for the year 2006-07 and 2007-08. Thereafter the appellant failed to pay the rents as agreed by them. The contention of the appellant is that the crop was affected with virus disease and the Government also declared the crop holiday for the year 2008 so that he approached the respondent Choultry and they made believed him that they will issue orders for remission but instead of giving orders for remission the suit was filed against him. In the present case, P.W.1 is the Executive Officer of the respondent

Choultry Ex.A.1 is the list approval order of Endowment department,

Kakinada dt.24-06-2006 and Ex.A.2 is the auction list containing participant’s name including the name of the appellant dt.21-06-2006.

As seen from Ex.A.2 it is clear that the auction was conducted on 21-06-2006 and the appellant is one of the participant of the said auction and he also stood as highest bidder for the land of the plaintiff institution to an extent of Ac.3-50 cents of wet land for 3 years from 2006-07. The evidence of P.W.1 suffered from cross-examination. But nothing was elicited to disprove the contention of the respondent. But as seen from the contention of the appellant and also the cross- examination of P.W.1 and also chief-affidavit of the appellant/defendant that he paid the entire amounts and obtained the receipts from the respondent Choultry. But surprisingly, the appellant not filed the said receipts though it is a very important piece of the document to support the contention of appellant. There is no any explanation forwarded by the appellant why he failed to file the documents. During the course of cross-examination of D.W.1 also the appellant admitted about the passing of the receipts by the respondent but the appellant failed to file the said receipts before the court. As seen from the categorical admission of D.W.1 it crystal clear that the appellant took the lease of the plaintiff Choultry for the period of 3 years i.e., 2006-07, 2007-08 and 2008-09. As seen from the contention of the respondent that the lease for land is 87 bags. But as per the contention of the appellant the lease for land is 67 bags. But when we observe the contents of the written statement at para No.4 that the appellant categorically admitted that the appellant is agreed to pay 87 kata bags and the cost of bag is Rs.450/-. So as seen from the contention of the appellant in the written statement and in his evidence that the appellant taken inconsistent pleas that in one occasion the rent for land is 87 bags and in one the rent for land is 67 bags. It clearly indicates that with a view to avoid to payment of the rent only the appellant taken unconnected pleas which are not acceptable under law. Further, as seen from the contention of the appellant that previously the respondent filed

O.S.No.38/2012 on the file of Junior Civil Jude’s Court, Kothapeta and

the same was dismissed for default but no objection was filed for restoration of the said suit and the respondent is filed the present suit which is not permissible under law and he relied on 1996(1) A.L.T. 50 in between Cheepinapi Venkata Subbamma Vs. Chejerla Naraiah and others.

“In this the Lordship observed that instead of adopting procedure contemplated under Order 9 Rule 9 C.P.C., the plaintiff filed a fresh suit altogether,which is not maintainable.”

In the present case that the appellant contended that

O.S.No.38/2012 was filed before Junior Civil Judge’s Court, Kothapeta

and the same was dismissed for default and no objection was filed under Order 9, Rule 9 C.P.C., seeking the court for restoration of

O.S.No.38/2012 in spite of the plaintiff filed the present suit but

surprisingly no any documentary evidence filed by the appellant to prove that O.S.No.38/2012 was filed and the said suit was dismissed for default. In view of the lack of the such evidence, this court feels that there is no water in the contention of the appellant. Hence, the contention of the appellant i.e., the respondent was filed in

O.S.No.38/2012 and the said suit was dismissed for default is rejected.

11.The learned counsel for the appellant contended that in the year 2007 and 2008 the Government declared as crop holiday and the crop was affected with virus so that they approached the respondent

Choultry and requested for remission and the respondent Choultry promised him that they will give remission after consulting with the higher officials but no evidence is brought on record to prove that 2007-08 was declared as crop holiday by the Government and the crop was affected with virus disease and the appellant approached the respondent and requested for remission. But surprisingly, in the above said aspect the appellant did not place any piece of evidence evidencing that for the year 2007 and 2008 the Government declared as crop holiday and the crop was affected with virus and also that the appellant approached the respondent and the respondent promised the appellant after consulting with the higher officials. In view of the lack of the such evidence, this court sincerely reject the contention of the appellant. In view of the above discussion, this court sincerely believes that the appellant is default of payment of rent for the year 2008 and 2009 and he also liable to pay the interest stipulated in between appellant and respondent. Accordingly, the point is answered.

12.Issue No.2:-

In view of the findings in issue No.1 the appeal is dismissed without costs by confirming judgment and decree in O.S.No.49/2012

dated 20-02-2017 on the file of Junior Civil Judge, Kothapeta.

Dictated to Stenographer(Gr.I), transcribed by him, corrected and

pronounced by me in open court this the 3rd day of November, 2017.

Sd/- V.B.S. Srinivasa Rao

SENIOR CIVIL JUDGE,

KOTHAPETA.

APPENDIX OF EVIDENCE

No oral or documentary evidence is adduced on either side.

Sd/- V.B.S. Srinivasa Rao

S.C.J.

1

IN THE COURT OF THE SENIOR CIVIL JUDGE:

KOTHAPETA

Present:- Sri V.B.S. Srinivasa Rao,

Senior Civil Judge, Kothapeta

Monday, the 6th day of November, 2017.

O.S.No.35/2017

Between:-

Budim Janakiramayya, S/o Narasimha Rao, aged 45 years, Hindu, Cultivation, D.No.12-318, Kothapeta village and

Mandal and Kothapeta J.C.J.C. ...Plaintiff

and

Yedla Srinivasarao, S/o Satyanarayana, aged 46 years, Hindu, Business, Radham veedhi, Dowleswaram village, Rajahmundry, East Godavari District, Rajahmundry

J.C.J.C. ...Defendant

This suit is coming on this day for hearing before me in the presence of Sri K. Rajeev, Advocate for the plaintiff and the defendant remained exparte and this court made the following:-

JUDGMENT

1. This is a suit filed for recovery of an amount of Rs.5,15,800-00 Ps., together with subsequent interest @ 24% p.a., from the date of suit till the date of realization and for costs.

2. The brief facts of the plaint nutshell as follows:-

The defendant borrowed an amount of Rs.3,00,000/- from the plaintiff on 25-04-2014 for the purpose of family expenses and discharge of sundry debts and executed the promissory note in favour of the plaintiff at Kothapeta village agreeing to repay the said amount with interest at the rate of Rs.2/- per hundred per month either to the plaintiff or on his order. Subsequently, the plaintiff demanded the defendant several times to repay the said amount but the defendant postponed the same on one pretext or other and did not pay anything under the promissory note. The plaintiff got issued a registered legal notice dt.11-04-2017 to the defendant demanding the promissory note 2 debt with subsequent interest. The defendant refused the same and did not pay anything under the suit promissory note debt to the plaintiff. The defendant cannot claim any moratorium laws.

3.Chief affidavit of the plaintiff filed, treated it as affidavit of P.W.1 and Exs.A.1 to A.3 are marked.

4.Heard.

5.In the result, the suit is decreed with costs for a sum of

Rs.5,15,800-00 Ps., with subsequent interest on the principal sum of

Rs.3,00,000-00 Ps., at the rate of 12% p.a., from the date of presentation of the suit till the date of decree and 6% p.a., from the date of decree till realization.

Typed to my dictation, corrected and pronounced by me in open court this the 6th day of November, 2017.

Sd/- V.B.S. Srinivasa Rao

SENIORCIVIL JUDGE,

KOTHAPETA.

APPENDIX OF EVIDENCE

WITNESSES EXAMINED

For Plaintiff:- For Defendant:-

P.W.1: Budim Janakiramayya None

DOCUMENTS MARKED

For Plaintiff:-

Ex.A.1: Promissory note dt.25-04-2014

Ex.A.2: Office copy of registered legal notice dt.11-04-2017

Ex.A.3: Refused registered cover

For Defendant:-

Nil

Sd/- V.B.S. Srinivasa Rao

S.C.J.

1

IN THE COURT OF THE SENIOR CIVIL JUDGE:

KOTHAPETA

Present:- Sri V.B.S. Srinivasa Rao,

Senior Civil Judge, Kothapeta

Monday, the 6th day of November, 2017.

O.S.No.35/2017

Between:-

Budim Janakiramayya, S/o Narasimha Rao, aged 45 years, Hindu, Cultivation, D.No.12-318, Kothapeta village and

Mandal and Kothapeta J.C.J.C. ...Plaintiff

and

Yedla Srinivasarao, S/o Satyanarayana, aged 46 years, Hindu, Business, Radham veedhi, Dowleswaram village, Rajahmundry, East Godavari District, Rajahmundry

J.C.J.C. ...Defendant

Date of presentation:- 24-04-2017 Date of filing:- 29-04-2017

This is a suit filed for recovery of an amount of Rs.5,15,800-00 Ps., together with subsequent interest @ 24% p.a., from the date of suit till the date of realization and for costs.

Cause of action for the suit arose on 25-04-2014 when the defendant borrowed an amount of Rs.3,00,000/- from the plaintiff and executed suit promissory note, on 11-04-2017 when the plaintiff got issued registered legal notice to the defendant and when the defendant refused the same and at Kothapeta village where the suit transaction took place within the jurisdiction of the court.

Value of the suit:-

Principal amount borrowed Rs.3,00,000-

00

Add:- Interest thereon at the rate of 24% p.a., from 25-04-2014 to 23-04-2017 Rs.2,15,800-00 --------------------- Total:- Rs.5,15,800-00 --------------------- a court fee of Rs.7,626/- is paid thereon under Sec.20, Sch.I, Art.1(c) of A.P.C.F. and S.V. Act.

This suit is coming on this day for hearing before me in the presence of Sri K. Rajeev, Advocate for the plaintiff and the defendant remained exparte and THIS COURT DOTH ORDER AND:- 2

DECREE

i) That the defendant do pay to the plaintiff a sum of Rs.5,15,800-00 Ps., with subsequent interest on the

principal sum of Rs.3,00,000-00 Ps., at the rate of 12%

p.a., from the date of the presentation of the suit till the date of decree and 6% p.a., from the date of decree till realisation; and ii) That the defendant do also pay to the plaintiff a sum of Rs.16,215-00 Ps. towards costs of the suit.

Given under my hand and the seal of the court this the 27th day of October, 2017.

Sd/- V.B.S. Srinivasa Rao

SENIOR CIVIL JUDGE,

KOTHAPETA.

MEMORANDUM OF COSTS

For Plaintiff: For Defendant:

1.Stamp on vakalat 2-00No costs memo is filed 2.Stamp on plaint 7,626-00 3.Advocate’s fee 8,587-00 ---------------

Costs allowed:- 16,215-00 ----------------

Sd/- V.B.S. Srinivasa Rao

S.C.J.

IN THE COURT OF THE SENIOR CIVIL JUDGE:

KOTHAPETA

Present : Sri V.B.S. SRINIVASARAO,

Senior Civil Judge, Kothapeta

Friday, the 3rd day of November, 2017.

A.S.No.1/2017

Between:- Kadali Perumallu, S/o Subbarao, aged 75 years, Hindu, Cultivation, r/o Khandriga village, Kothapeta Mandal, Kothapeta J.C.J. Limits…Appellant/defendant

and

Uppalapati Janakiyamma Feeding Choultry, represented by its Manager, Podagatlapalli,

Ravulapalem Mandal, Kothapeta J.C.J. Limits. ...Respondent/plaintiff

This appeal filed against the decree and judgment in

O.S.No.49/2012, dated 20-02-2017 on the file of the Junior Civil Judge’s

Court, Kothapeta.

Between:- Uppalapati Janakiyamma Feeding Choultry represented by its Manager, Podagatlapalli, Ravulapalem Mandal, Kothapeta J.C.J.C. …Plaintiff

and

Kadali Perumallu, S/o Subba Rao, aged 55 years, Hindu, Cultivation, Kothapeta Mandal, Kothapeta

J.C.J.C. ..Defendant

This appeal came up before me for final hearing on 26-10-2017 in the presence of Sri R.K. Acharyulu, Advocate for the appellant/ defendant and Sri P.V.D. Krishna Rao, Advocate for the respondent/ plaintiff and having stood over for consideration till this day, THIS COURT DOTH ORDER AND:-

DECREE

i)That the appeal be and the same is hereby dismissed;

and

ii) That each party shall do bear their own costs.

Given under my hand and seal of the court this the 3rd day of

November, 2017.

Sd/- V.B.S. Srinivasa Rao

Senior Civil Judge,

Kothpeta.

Memorandum of costs

For Appellant/defendant:- Respondent/plaintiff:-

No costs memo is filed. No costs memo is filed

Sd/- V.B.S. Srinivasa Rao

S.C.J.