Y.Bindu Madavi

IN THE COURT OF THE III ADDL. JUNIOR CIVIL JUDGE AT VISAKHAPATNAM

PRESENT:Smt. Y. BINDU MADHAVI

III ADDL. JUNIOR CIVIL JUDGE,

VISAKHAPATNAM

Thursday, the 30th Day of April, 2015

O.S.752/2014

Between:

1.Imtiaz Ahmed, Son of Mohammed Abdul Khayyum, Muslim, aged 49 years, residing at D.No.8-60-8, Lane-1, Vidyanagar, China Waltair, Visakhapatnam- 530017 represented by his General Power of Attorney Holder Mohammed Salman Murtaza.

2.Mohammed Salman Murtaza, Son of Imtiaz Ahmed, Muslim, aged 27 years, residing at D.No.8-60-8, Lane-1, Vidyanagar, Chinawaltair, Visakhapatnam- 530017. (Amended as per order dt.30.3.2015 in IA 186/2015).

..Plaintiffs

And

1. The State represented by District Collector, Maharanipeta,

Visakhapatnam.

2. Tahsildar (Urban), Tahsildar's office, Seethammadhara, Visakhapatnam.

3. Andhra Bank, represented by its Senior Branch Manager, Asilmetta

Branch, Asilmetta, Visakhapatnam.

..Defendants

This suit is coming on 24-4-2015 for final hearing before me in the presence of Sri D.V.S.N.Raju, learned counsel for the plaintiffs and of Sri T.Gowthameswara Rao, learned counsel for the defendants 1 and 2 and Sri P.Ravikiran, learned counsel for the 3rd defendant and the matter stood over for consideration till this day, this court delivered the following:

JUDGMENT

This is a suit filed by the plaintiffs against the defendants for declaration that the plaintiffs 1 and 2 are the legal heirs of Mrs. Nighath and for costs of the suit.

2.The brief averments of the plaint are that the 1st plaintiff is the husband and the 2nd plaintiff is the son of Mrs. Nighath and are residents of

Visakhapatnam. Mrs. Nighath died intestate on 05.12.1987 at K.G.Hospital,

Visakhapatnam leaving behind the plaintiffs as her only legal heirs. The 1st plaintiff approached the 3rd defendant Andhra Bank, Asilmetta Branch for obtaining educational loan for the 2nd plaintiff by mortgaging the property belongs to Mrs. Nighath. D3 Bank vide its letter dt.05.08.2014 asked the plaintiffs to furnish the legal heir certificate of Mrs. Nighath apart from other documents for sanctioning the educational loan.

2

The 1stplaintiff further averred that vide registered letter dt.08.08.2014 by enclosing necessary documents requested the 2nd defendant for issuance of legal heir certificate declaring that the plaintiffs are the legal heirs of

Mrs. Nighath. The 2nd defendant had acknowledged the receipt of the said letter on 12.08.2014 and neither issued the legal heir certificate nor sent any reply. D2 failed to respond to the letter dt.08.08.2014. They got issued a statutory notice dt.20.08.2014 under Section 80 of Civil Procedure Code calling upon the defendants 1 and 2 to intimate valid reasons for non-issuance of the legal heir certificate to the plaintiffs, failing which they would be constrained to initiate appropriate legal action. The defendants 1 and 2 have acknowledged the receipt of the notice. In spite of receipt of the statutory notice, the defendants 1 and 2 have not issued the legal heir certificate to the plaintiffs. Therefore, the plaintiffs are suffering severe mental agony for obtaining the educational loan for better future of 2nd plaintiff. Under the above said circumstances, the plaintiffs left with no other alternative except to approach the Court for a declaration that they are the legal heirs of Mrs. Nighath. Hence the suit.

3. Written statement is filed by D2 while the D1 filed an adoption memo adopting the written statement of D2 by denying the allegations made in the plaint and submitted that the above suit is not maintainable for non-issuance of

Section 80 of Civil Procedure Code (CPC in short) properly and prescribed form as laid down under CPC to D1 and D2. The cause of action mentioned in the suit is not correct. There are no bonafides and merits in entertaining the case. The suit is bad under law and not maintainable under law and the same is liable to be dismissed.

4. D3 filed written statement by denying the plaint averments and submitted that D3 is unnecessarily added as a party to the proceedings. Plaintiff approached the Bank for sanction of Education loan for which D3 requested to produce certain documents. The plaintiff requested the defendant to give details 3 of documents required for submission for the loan and accordingly D3 has issued a check list for production of certain documents for the sanction of education loan and basing on the said check list, the plaintiff filed the suit without any merits and

D3 is no way concerned for declaration and D3 is unnecessary added as a party to the proceedings. There is no cause of action for the suit and is liable to be dismissed in limine.

5.Basing on the above rival pleadings, the following issues are settled for trial.

1. Whether the Plaintiffs are entitled to declare them as legal heirs of the deceased Mrs. Nighath as prayed for?

2. Whether the suit is bad for non-joinder and misjoinder of parties?

3. Whether the suit is bad for non-issuance of notice under Section 80

C.P.C?

4. To what relief?

6.To prove the respective contentions, the 1stplaintiff himself is examined as Pw.1 and got exhibited Ex.A1 to A8. Learned counsel for the defendants 1 and 2 reported no evidence by filing a memo dt.2.4.2015.

7.Heard the learned counsels for the plaintiffs and the defendants.

Perused the entire material on record.

Issue Nos.1 and 2:

8.Since the suit is filed by the plaintiffs to declare them as legal heirs of the deceased Mrs. Nighath, the burden lies on the plaintiffs to prove that they are the legal heirs of the deceased and the cause of action arose for filing the suit.

The case of the plaintiffs in brief is that the plaintiffs approached the 3rd defendant

Andhra Bank, Asilmetta Branch for sanction of education loan to the 2nd plaintiff for which they have issued a check list to submit list of documents and also directed to file the legal heir certificate. Thereupon, the plaintiffs approached the defendants 1 and 2 to issue the legal heir certificate by way of written representation, but they failed to issue the same hence a legal notice was also issued to D1 and D2. The defendants 1 and 2 neither issued the legal heir 4 certificate nor gave any reply. Per contra the case of the defendants 1 and 2 in brief is that the suit is not maintainable either on facts or under the law and is liable to be dismissed in limini. The plaintiffs did not made any averments whatsoever against the defendants 1 and 2 and did not aver as to how the defendants are connected to their case and as such the suit is not maintainable under the Specific Relief Act and also the suit is also bad for misjoinder and non- joinder of necessary parties to the above proceedings. There is no cause of action to file the above suit.

9.The case of the 3rd defendant in brief is that plaintiff has unnecessarily added them as party to the proceedings. Plaintiff approached the Bank for sanction of Education loan for which D3 requested to produce certain documents and that the plaintiff requested the defendant to give details of documents required for submission for the loan and D3 has issued a check list for production of certain documents for sanction of education loan. Basing on the said check list, the plaintiff filed the suit without any merits.

10.In support of the contentions of the 1st plaintiff, he himself examined as Pw.1 and got filed his evidence affidavit by reiterating the contents of the plaint, about the demise of Mrs. Nighath, about failure of defendants 1 and 2 in issuing the legal heir certificate as sought by D3 and about issuance of Section 80 notice. In support of the oral testimony of the plaintiff, he got exhibited Ex.A1 to

A8. Ex.A1 is the Death Certificate dt.21.8.2014 of Mrs. Nighath. Ex.A2 is the Letter dt.5.8.2014 issued by Andhra Bank, Asilmetta Branch, Visakhapatnam. Ex.A3 is the Letter dt.8.8.2014 issued to D1 along with postal acknowledgment. Ex.A4 is the verified marriage certificate. Ex.A5 is the verified copy of Birth Certificate of 2nd plaintiff. Ex.A6 is the verified copy of driving license. Ex.A7 is the verified copy of Aadhar card stands in the name of 2nd plaintiff. Ex.A8 is the office copy of legal notice along with postal receipt issued to D1 and D2.

11. It is a specific contention of the plaintiffs that the plaintiffs are the 5 legal heir of the deceased Mrs. Nighath, and that Ex.A1 to A8 categorically proves the same. Further he contends that the defendants 1 and 2 did not issue the legal heir certificate in spite of oral requests, written representation and the legal notice issued by the plaintiffs. In support of the oral testimony of Pw.1, he got exhibited Ex.A1, death certificate of Mrs. Nighath, dt.21.8.2014 which reveals about the death of the deceased Mrs. Nighath and Ex.A1 also proves that the 1st plaintiff is the husband of the deceased Mrs. Nighath.

12.It is a specific case of the plaintiffs that cause of action arose for filing the suit was when D3 issued a check list under Ex.A2 and when they have approached the defendants 1 and 2 for issuance of the legal heir certificate in pursuance of Ex.A2. On perusing Ex.A2, it is a Letter dt.5.8.2014 issued by Andhra

Bank, Asilmetta Branch, Visakhapatnam. It reveals that the 2nd plaintiff has filed the application for education loan for Rs.4,33,000/- dt.3.8.2014 for pursuing

M.B.A. and that D3 has directed the plaintiffs to furnish the information/ documents for considering application for sanction of education loan i.e., to 1)

Submit the salary statement of Mr.Imtiaz Ahmed 2) Pan nos. of Mr.Imtiaz Ahmed

3) Death Certificate of Mrs. Nighath W/o Mr. Imatiaz Ahmed 4) Link documents to registered Title deed No.920/85 dt.28.1.1985. 5) Legal Heir Certificate and 6)

Original Document No.920/85 and latest EC. Out of the above, the 5th column i.e.,

Legal Heir Certificate in which the disputed in involved. D3 has directed the plaintiffs to submit the list of documents and one among them is legal heir certificate. Therefore, Ex.A2 is at best useful to the plaintiffs to show that D3 has directed to file the legal heir certificate but it cannot be said that D3 has denied the legal relationship between the plaintiffs and the deceased Nighath. As rightly contended by the learned counsel for D3 that it is a procedure for any financial institution to obtain the legal heir certificate, specifically any loan/claim is sought, by mortgaging the property of the deceased person. Ex.A3 is letter addressed by the 1st plaintiff to D1 along with postal acknowledgement in proof of its service. It 6 reveals that the 1st plaintiff has addressed a letter to D2 for issuance of legal heir certificate. Ex.A4 is verified marriage certificate which proves that the 1st plaintiff is married with Nighath on 21.7.1985. Ex.A5 is the verified birth certificate of the 2nd plaintiff which proves the 2nd plaintiff is son of the 1st plaintiff and the deceased

Nighath. Ex.A6 is the verified copy of the driving license of 1st plaintiff and Ex.A7 is the Aadhar card which stands in the name of 2nd plaintiff. Ex.A6 and A7 are no way useful for the present case. Ex.A8 is the office copy of the legal notice along with postal receipts which proves that the plaintiffs have issued the legal notice to the defendants 1 and 2. Therefore the above said document would not reveal that the plaintiffs are the sole surviving legal heirs of the deceased Mrs. Nighath.

13. It is the specific case of the defendants that the suit is bad as the conditions contemplated under section 34 of Specific Relief Act did not attract, per contra it is the case of the plaintiff that as the defendants 1 and 2 did not issue the legal heir certificate they are entitled for the same. It is true that the defendants 1 and 2 did not issue any legal heir certificate in spite of the letter addressed and legal notice was issued. But, this Court is of the considered view that the cause of action would arise to file the suit unless conditions mentioned in section 34 of Specific relief act are satisfied. As seen from section 34 of the specific relief act, it clearly envisages that any person entitled to any legal character or to any right as to any property may institute a suit against any person denying or interested to deny his title to such character or right and the court may in its discretion make there in a declaration that he is so entitled.

Therefore from the above reading of the provision of law it is very clear that the cause of action for filing the suit would arise for the party, when his/her title to such character or right is denied by any person or interested to deny.

Furthermore, when the defendants have not denied the legal character or relationship between the plaintiffs and the deceased Mrs. Nighath, there is no explanation offered by the plaintiffs how the cause of action would arise for him to 7 file the suit against the defendants 1 and 2. Furthermore nowhere the plaintiffs have stated that the defendants have denied the legal relationship of the plaintiffs with the deceased Mrs. Nighath. The suit for declaration would lie against the person who denies the legal character or right or title as contemplated under

Section 34 of the Specific Relief Act.Therefore, this court found merits in the contention of the learned counsel for the defendants.

14.It is the specific contention of the learned counsel for the defendants that the suit is bad for non-joinder of necessary parties and misjoinder of the parties. It is true as per the contention of the plaintiffs, they have approached the defendants 1 and 2 for issuance of legal heir certificate. The said legal heir certificate was not issued by the defendants 1 and 2 and furthermore D3 has issued Ex.A2 check list to file the legal heir certificate for obtaining education loan. Therefore, the check list issued to file the legal heir certificate by D3 as per their banks procedure. Mere direction does not amount to denial of the legal right or character of the plaintiffs. Furthermore, Pw.1 categorically admitted that when he has approached D3 for sanction of education loan, they advised to produce the legal heir certificate. Therefore, the evidence of Pw.1 also categorically reveals that title or legal right over the property and also the legal character and relationship with the deceased Nighath were not denied by the defendants. Suit for declaration would only lie against the persons who are denying the legal character or interested to deny the same but not against the persons who simply directed to produce the legal heir certificate. In the present case, the plaintiffs did not agitate anything against the defendants 1 and 2. Mere non-issuance of legal heir certificate by the defendants 1 and 2 does not give any right to the plaintiffs to file the suit against them because the plaintiff is ought to obtain the written endorsement from the defendants for what reason they have failed to issue legal certificate. Furthermore the plaintiffs failed to explain what made him to implead

D1 to D3 as parties to the suit. However the plaintiffs got exhibited Ex.A3 letter 8 addressed to the 2nd defendant. When the plaintiff has issued Ex.A3 letter to the 2nd defendant, it is the bounden duty of the defendants to return or reject the application by mentioning the reasons for doing so. Then the plaintiffs would get an opportunity to approach proper forum to settle their disputes. D1 also failed to do so even after receipt of Ex.A3 and A8 letter and the legal notice issued to them. The defendants 1 and 2 authorities being the Government officials bound to work within the legal frame work for the sake of people. If they failed to do, certainly it would lead to lot of unrest in the society and multiplicity of proceedings. Apart from the above aspect, the plaintiffs ought to have filed the suit against the persons who are denying the legal relationship. As discussed supra, the plaintiffs failed to implead the parties who are denying the legal relationship of the plaintiffs with that of the deceased Mrs. Nighath. Under the circumstances stated above, the plaintiffs have failed to put forth the necessary parties to the suit as contemplated under section 34 of Specific Relief Act. As discussed supra mistakenly joined the parties (D1 to D3) who are not necessary for the adjudication. The necessary party would be the person who denies the legal character or who is interested to deny the legal character or relationship with the parties.

15.In view of the above discussion, reasoning this Court is of the considered view that plaintiffs failed to implead the proper parties to the suit and filed the suit against the persons mistakenly which amounts to misjoinder of parties. Hence the plaintiffs are not entitled for the equitable relief of declaration as contemplated under section 34 of the Specific Relief Act. Accordingly, issue

Nos.1 and 2 are answered against the plaintiffs.

ISSUE No.3:

16.It is a specific contention of the defendant that the plaintiff did not issue the mandatory notice contemplated under section 80 CPC and got filed the suit without any valid notice. Hence, the same is liable to be dismissed. Per 9 contra, it is the contention of the plaintiff that the plaintiff got issued Section 80 notice on 20.8.2014 i.e., three months prior to the filing of the suit. Therefore, they have complied the mandatory provisions as contemplated under Section 80

CPC. In proof of the contention of the plaintiffs, they got exhibited Ex.A8. On perusing Ex.A8, it reveals that they have got issued legal notice to the defendants 1 and 2 by put forthing their grievance to issue the legal heir certificate in favour of the plaintiffs. Furthermore, the postal receipts along with Ex.A8 proves that

Ex.A8 notice was sent to the defendants 1 and 2. It is presumed as per law when the postal receipts are filed Ex.A8 is served upon the defendants 1 and 2.

Therefore, on perusing Ex.A8, it reveals that plaintiffs have got issued section 80 notice to the defendants as contemplated under CPC. Therefore, this contention of the defendants found no merits.

ISSUE No.4:

15.In view of the answer to issue Nos.1 and 2, the plaintiffs have failed to prove that they are the only surviving legal heirs of the deceased Mrs. Nighath and also failed to prove the cause of action against the defendants. Hence the plaintiffs are not entitled for the equitable relief of declaration as contemplated under section 34 of the specific relief act.

In the result, the suit is dismissed. But in the circumstances, no costs.

Dictated to the Stenographer, corrected and pronounced by me in open court this

the 30th Day of April, 2015.

III ADDITIONAL JUNIOR CIVIL JUDGE

VISAKHAPATNAM.

APPENDIX OF EVIDENCE

WITNESSES EXAMINED

For Plaintiffs:For Defendants:

Pw.1 : Sri Imtiaz AhmedLearned counsels for D1 and D2, filed memo reporting no evidence on their behalf.

10

DOCUMENTS MARKED

For plaintiffs:

Ex.A1 is the Death Certificate dt.21.8.2014 of Mrs.Nighath.

Ex.A2 is the Letter dt.5.8.2014 issued by Andhra Bank, Asilmetta Branch,

Visakhapatnam.

Ex.A3 is the Letter dt.8.8.2014 issued to D1 along with postal acknowledgment.

Ex.A4 is the verified marriage certificate.

Ex.A5 is the verified copy of Birth Certificate of 2nd plaintiff.

Ex.A6 is the verified copy of driving license.

Ex.A7 is the verified copy of Aadhar card stands in the name of 2nd plaintiff.

Ex.A8 is the office copy of legal notice along with postal receipt issued to D1 and

D2.

For Defendants:

-Nil-

III AJCJ/VSP 11

I.A. 398/2011 in O.S. 471/2009 VI AJCJ/VSP

IN THE COURT OF VI ADDL. JUNIOR CIVIL JUDGE AT VISAKHAPATNAM.

Present: Smt. M. SUDHA RANI, B.A., L.L.M., VI Addl. Junior Civil Judge, Visakhapatnam.

I.A. 398/2011 in O.S. 471/2009

Thursday, this the 10th day of April, 2014

Between: .

Eegala Suramma, W/o. Late Latchanna, Old widow lady and Senior Citizen, Hindu, aged about 75 years, residing at Door No. 54-4-25, Sivalayam Veedhi, Isukathota, H.B.Colony Post, Visakhapatnam – 530 022 …Petitioner/ Plaintiff

And

1. Palla Yerrayya, S/o. Late Chinna Appala Swamy, Hindu, aged around 42 years, residing at Thotagaruvu, Annanagar, Balajinagar Area, Chinagadili Mandal, Old Dairy Farm Post, Visakhapatnam – 530 040.

2. Palla Rambabu, S/o. Late Chinna Appala Swamy, Hindu, aged around 42 years, residing at Thotagaruvu, Annanagar, Balajinagar Area, Chinagadili Mandal, Old Dairy Farm Post, Visakhapatnam – 530 040.

…Respondants/ Defendants

This petition coming on 24-03-2014 for final hearing before me in the pres ence of Sri A.Venu Gopal Krishna, Advocate for petitioner/Plaintiff and Sri V.S.P.

Rao, Advocate for the respondants/defendants and the matter having stood over for consideration till this day this court delivered the following:

ORDER

This petition is filed under order 39 Rule 1 and 2 and under section 151r/w section 94 of CPC and under section 39 of Specific Relief Act to grant mandatory injunction directing the respondent to remove the newly made structures and constructions, wall in petition schedule property.

2

2.The averments of the petitioner are as follows :

2.1The petitioner filed this suit for grant of permanent injunction restraining the defendants from ever interfering with the peaceful possession and enjoyment of the plaint schedule property along with the common Mud-Wall which is basic pillar to the entire thatched house which is existing and constructed in the year 1965 between the petition schedule property and the respondent property and for other relief.

2.2The petitioner submits that she is the absolute owner of the suit schedule property. Actually the schedule property was purchased by the husband of the petitioner Egala Latchanna, S/o. Appilli, from Palla Chinna Appala Swamy, S/o.

Appala Swamy, under registered sale deed No. 2368/1975 for an extent of 48

Sq.yrds for a valuable consideration on 19-5-1975. It is the western room out of two rooms consisting under one roof of thatched hut with palmyra leaves in

Maddilapalem area, Sivalayam Veedhi, Isukathota, Survey No. 43, Door No.54-4- 25 (Old Door No. 31-14-15) Assessment No. 2040 within the limits of Joint Sub-

Registrar, Visakhapatnam, within the limits of Visakhapatnam Municipal

Corporation bounded as follows:

East: Remaining part of the Vendor’s room

West: 7 feet Sandhu

South:Palla Polayyas House

North: 30 feet road 2.3.There is a common mud wall which is 8 feet height, 20 feet length and 1 feet mandham between the petitioner property on the eastern side and the respondents property on the western side. The existence of the common wall was clearly mentioned in the Registered Sale Deed dated 19-5-1975, the common mud wall constructed in the year 1965 which is basic pillar/wall to the 3 entire thatched house with palmyra leaves. Petitioner further submits that she is in peaceful possession and enjoyment of the petition schedule property along with the common mud wall without any interruption from anybody from the date of purchase i.e. 19-5-1975. It is the contention of the petitioner that her husband namely Egala Latchanna died in the month of December 2000. It is contended by the petitioner that her husband executed a registered will dated 6-5-1998 vide registration No. 184/1998 in favour of the petitioner giving full rights and enjoyment over the suit schedule property during the life time of the petitioner and after her death it will devolved upon the grand sons of the petitioner i.e.

Eegala Someswara Rao, and Buchi Babu, S/o. Eegala Appa Rao (S/o. Eegala

Latchanna). The petitioner submits that after the death of her husband, she got full rights and enjoyment over the petition schedule property by virtue of the

Regd. will dt. 06-5-98 and is in peaceful possession and enjoyment of the petition schedule property without any interruption from anybody till today.

2.4.The petitioner further submit that the respondents/defendants frequently without having any right and whatsoever came to the petition schedule property threatened her who is the old aged and senior citizen and trying to dispossess her from the petition schedule property and trying to remove and demolish the common mud wall which is most basic pillar/wall and crucial to the entire house and tried to encroach and to grab the petition schedule property.

2.5.The petitioner submits that while the matters stood thus, the respondents along with their henchmen came to the schedule property on 5-4-2009 and removed their portion house totally and making hectic efforts to remove some of the palmyra leaves of the petition schedule property and to remove the common mud wall, and the petitioner resisted the high handed acts of the respondents with the help of local elders. Then the respondents left the schedule property and proclaimed that they will come once again with more men and to demolish the common mud wall.

4 2.6The petitioner submit that she approached this court on 9-4-2009 and the court was granted the temporary injunction against the respondents on 9-4-2009 and call on 24-4-2009 and later the same is granted injunction till disposal of the suit. While suit came for marking of documents, she felt sick and was suffered since long back with deaf and not explain in proper way due to old senior citizen and in add to deaf, and was called absent, as such the suit was dismissed for default on 25-8-2011. Immediately on 26-8-2011 she filed I.A. No. 346/2011 under order 9, Rule 9 of Civil Procedure Code for restoration of the suit, but the counsel was refused to take notice and requested to notice to party before this court, then this court ordered notice to party and call on 26-9-2011, immediately, she paid process bata for notice to the party. While the matter is coming for notice, knowing very well the 1st defendant and his followers high handly removed the joint mud wall by using criminal force, influencing the police.

Nobody come forward to stop the high handed acts of the 1st defendant/1st respondent and his followers. When immediately, she gave a police complaint in

III Town Police Station, but they did not take any action and paid deaf ear.

Moreover, she also got issued urgent telegraphic notice to the 1st respondent on 16-9-2011. The 1st respondent intentionally avoid to take notice and telegraphic notice and successfully demolished the common mud wall, and made constructions and structures, wall recently, are illegal and without any right.

Hence, this petition.

3.The respondents filed counter denying the allegations made by the petitioner and that the petitioner purchased the schedule property by husband of petitioner from defendant’s father on 19-5-1975 bearing registered document No.

2368/1975 for an extent of 48 Sq.yds only and that this suit is filed for permanent injunction, not to interfere in respect of common mud wall that is the basic pillar to the entire thatched house which was constructed in the year 1965 in between the petitioner and defendant property and that the said schedule property of the 5 petitioner was purchased from the defendant family to an extent of 1cent only which means 48 Sq.yrds, and the advocate commissioner report reveals that the petitioner is in her occupation more than 1 cent without mud wall and that the respondent’s father late Palla China Appala Swamy purchased entire property of 2 cents including petition schedule property in the year 1959 through registered sale deed document No. 3484 at sub-registrar office, Visakhapatnam from the

GPA holder (M.Kameswarao) of Mosalegantu Rama Krishnarao and 7 others.

Since then the respondent’s father was in enjoyment and he constructed the thatched hut after that he sold 48Sq.Yds to the petitioner’s husband and since then both their families living under one roof and whenever the Palmyra leaves are torn the father of the respondent used to change new Palmyra leaves in place of old and the petitioner’s husband used to pay the cost of the leaves of his share and the understanding between them was good. In fact the father of the respondent at the time of the sale of the petition schedule property to the husband of the petitioner under went in to an oral agreement that whenever the common thatched hut is removed, the husband of petitioner will get his share of 48 Sq.Yrds out of the total property i.e. 2 cents. Now the petitioner is trying to grab more then her share of 48 Sq.Yrds, by making false statement that the mud wall in between them belongs to her.

3.1The respondent further stated that in the registered sale deed of petitioner, no right is created by defendant’s father on the common mud wall and it is only bounded with defendant right. On what property the petitioner is asking injunction is not clearly mentioned in schedule and filed this false suit for injunction to harass the defendant for wrongful gain, without declaring right of the plaintiff on common mud wall. The respondent submits that in I.A. 141/2009 in O.S. 471/2009 this court is pleased to exparte temporary injunction without notice to the respondent since already injunction was granted in respect of schedule property, dismissed petition was restored, and again seeking for the prayer not make further construction by the defendant and removing the newly 6 made structure and construction wall is not maintainable. If the property belongs to the plaintiff, it is to be decided during the course of trail whether the defendant making construction in this petition schedule property as to be decided during the course of trail. The respondent further submit that they have full right, title and possession without interruption from any third parties much less the petitioner ever since the date of purchase of the thatched house covered under one roof.

3.2The respondent further submits that the petitioner had no case what so ever either the title or possession. The petition is not maintainable under law, as the relief prayed in the plaint is inconstant to that of the prayer alleged in the present petition.

4.No oral or documentary evidence is adduced by both the parties.

5.After having perused the petition and affidavit, upon hearing with the both counsels, Point for consideration is “Whether the petitioner is entitled for

Mandatory injunction as prayed for”?

6.POINT:

Considering the contentions of both the counsels, it is evident that initially suit is filed for relief of permanent injunction. The contention of the petitioner is taking advantage of dismissal of suit for default, the respondents avoid to take notice in petition for restoration of suit, for some time, and meanwhile, removed the joint mud wall, made some structures and constructions. Then, the petitioner filed this petition for mandatory injunction, for demolition of said structures, and constructions. When the suit filed for relief of permanent injunction, this petition for mandatory injunction is not maintainable, without amending the relief in plaint.

7.In view of the aforesaid observation, this petition is dismissed as not maintainable. No costs.

Dictated to the Personal Assistant, transcribed by her, corrected and prono

unced by me in the open court this the 10th day of April, 2014.

VI ADDL. JUNIOR CIVIL JUDGE

VISAKHAPATNAM.

7

APPENDIX OF EVIDENCE

NO.OF WITNESS EXAMINED ON BEHALF OF

PETITIONERS RESPONDENTS

- Nil - - Nil -

NO.OF DOCUMENTS MARKED ON BEHALF OF

PETITIONERS RESPONDENTS

- Nil - - Nil -

VI AJCJ/VSP

I.A. 398/2011 in O.S. 471/2009 VI AJCJ/VSP

IN THE COURT OF VI ADDL. JUNIOR CIVIL JUDGE AT VISAKHAPATNAM.

Present: Smt. M. SUDHA RANI, B.A., L.L.M., VI Addl. Junior Civil Judge, Visakhapatnam.

I.A. 398/2011 in O.S. 471/2009

Thursday, this the 10th day of April, 2014

Between: .

Eegala Suramma, W/o. Late Latchanna, Old widow lady and Senior Citizen, Hindu, aged about 75 years, residing at Door No. 54-4-25, Sivalayam Veedhi, Isukathota, H.B.Colony Post, Visakhapatnam – 530 022 …Petitioner/ Plaintiff

And

1. Palla Yerrayya, S/o. Late Chinna Appala Swamy, Hindu, aged around 42 years, residing at Thotagaruvu, Annanagar, Balajinagar Area, Chinagadili Mandal, Old Dairy Farm Post, Visakhapatnam – 530 040.

2. Palla Rambabu, S/o. Late Chinna Appala Swamy, Hindu, aged around 42 years, residing at Thotagaruvu, Annanagar, Balajinagar Area, Chinagadili Mandal, Old Dairy Farm Post, Visakhapatnam – 530 040.

…Respondants/ Defendants

This petition coming on 24-03-2014 for final hearing before me in the pres ence of Sri A.Venu Gopal Krishna, Advocate for petitioner/Plaintiff and Sri V.S.P.

Rao, Advocate for the respondants/defendants and the matter having stood over for consideration till this day this court delivered the following:

ORDER

This petition is filed under order 39 Rule 1 and 2 and under section 151r/w section 94 of CPC and under section 39 of Specific Relief Act to grant mandatory injunction directing the respondent to remove the newly made structures and constructions, wall in petition schedule property.

2

2.The averments of the petitioner are as follows :

2.1The petitioner filed this suit for grant of permanent injunction restraining the defendants from ever interfering with the peaceful possession and enjoyment of the plaint schedule property along with the common Mud-Wall which is basic pillar to the entire thatched house which is existing and constructed in the year 1965 between the petition schedule property and the respondent property and for other relief.

2.2The petitioner submits that she is the absolute owner of the suit schedule property. Actually the schedule property was purchased by the husband of the petitioner Egala Latchanna, S/o. Appilli, from Palla Chinna Appala Swamy, S/o.

Appala Swamy, under registered sale deed No. 2368/1975 for an extent of 48

Sq.yrds for a valuable consideration on 19-5-1975. It is the western room out of two rooms consisting under one roof of thatched hut with palmyra leaves in

Maddilapalem area, Sivalayam Veedhi, Isukathota, Survey No. 43, Door No.54-4- 25 (Old Door No. 31-14-15) Assessment No. 2040 within the limits of Joint Sub-

Registrar, Visakhapatnam, within the limits of Visakhapatnam Municipal

Corporation bounded as follows:

East: Remaining part of the Vendor’s room

West: 7 feet Sandhu

South:Palla Polayyas House

North: 30 feet road 2.3.There is a common mud wall which is 8 feet height, 20 feet length and 1 feet mandham between the petitioner property on the eastern side and the respondents property on the western side. The existence of the common wall was clearly mentioned in the Registered Sale Deed dated 19-5-1975, the common mud wall constructed in the year 1965 which is basic pillar/wall to the 3 entire thatched house with palmyra leaves. Petitioner further submits that she is in peaceful possession and enjoyment of the petition schedule property along with the common mud wall without any interruption from anybody from the date of purchase i.e. 19-5-1975. It is the contention of the petitioner that her husband namely Egala Latchanna died in the month of December 2000. It is contended by the petitioner that her husband executed a registered will dated 6-5-1998 vide registration No. 184/1998 in favour of the petitioner giving full rights and enjoyment over the suit schedule property during the life time of the petitioner and after her death it will devolved upon the grand sons of the petitioner i.e.

Eegala Someswara Rao, and Buchi Babu, S/o. Eegala Appa Rao (S/o. Eegala

Latchanna). The petitioner submits that after the death of her husband, she got full rights and enjoyment over the petition schedule property by virtue of the

Regd. will dt. 06-5-98 and is in peaceful possession and enjoyment of the petition schedule property without any interruption from anybody till today.

2.4.The petitioner further submit that the respondents/defendants frequently without having any right and whatsoever came to the petition schedule property threatened her who is the old aged and senior citizen and trying to dispossess her from the petition schedule property and trying to remove and demolish the common mud wall which is most basic pillar/wall and crucial to the entire house and tried to encroach and to grab the petition schedule property.

2.5.The petitioner submits that while the matters stood thus, the respondents along with their henchmen came to the schedule property on 5-4-2009 and removed their portion house totally and making hectic efforts to remove some of the palmyra leaves of the petition schedule property and to remove the common mud wall, and the petitioner resisted the high handed acts of the respondents with the help of local elders. Then the respondents left the schedule property and proclaimed that they will come once again with more men and to demolish the common mud wall.

4 2.6The petitioner submit that she approached this court on 9-4-2009 and the court was granted the temporary injunction against the respondents on 9-4-2009 and call on 24-4-2009 and later the same is granted injunction till disposal of the suit. While suit came for marking of documents, she felt sick and was suffered since long back with deaf and not explain in proper way due to old senior citizen and in add to deaf, and was called absent, as such the suit was dismissed for default on 25-8-2011. Immediately on 26-8-2011 she filed I.A. No. 346/2011 under order 9, Rule 9 of Civil Procedure Code for restoration of the suit, but the counsel was refused to take notice and requested to notice to party before this court, then this court ordered notice to party and call on 26-9-2011, immediately, she paid process bata for notice to the party. While the matter is coming for notice, knowing very well the 1st defendant and his followers high handly removed the joint mud wall by using criminal force, influencing the police.

Nobody come forward to stop the high handed acts of the 1st defendant/1st respondent and his followers. When immediately, she gave a police complaint in

III Town Police Station, but they did not take any action and paid deaf ear.

Moreover, she also got issued urgent telegraphic notice to the 1st respondent on 16-9-2011. The 1st respondent intentionally avoid to take notice and telegraphic notice and successfully demolished the common mud wall, and made constructions and structures, wall recently, are illegal and without any right.

Hence, this petition.

3.The respondents filed counter denying the allegations made by the petitioner and that the petitioner purchased the schedule property by husband of petitioner from defendant’s father on 19-5-1975 bearing registered document No.

2368/1975 for an extent of 48 Sq.yds only and that this suit is filed for permanent injunction, not to interfere in respect of common mud wall that is the basic pillar to the entire thatched house which was constructed in the year 1965 in between the petitioner and defendant property and that the said schedule property of the 5 petitioner was purchased from the defendant family to an extent of 1cent only which means 48 Sq.yrds, and the advocate commissioner report reveals that the petitioner is in her occupation more than 1 cent without mud wall and that the respondent’s father late Palla China Appala Swamy purchased entire property of 2 cents including petition schedule property in the year 1959 through registered sale deed document No. 3484 at sub-registrar office, Visakhapatnam from the

GPA holder (M.Kameswarao) of Mosalegantu Rama Krishnarao and 7 others.

Since then the respondent’s father was in enjoyment and he constructed the thatched hut after that he sold 48Sq.Yds to the petitioner’s husband and since then both their families living under one roof and whenever the Palmyra leaves are torn the father of the respondent used to change new Palmyra leaves in place of old and the petitioner’s husband used to pay the cost of the leaves of his share and the understanding between them was good. In fact the father of the respondent at the time of the sale of the petition schedule property to the husband of the petitioner under went in to an oral agreement that whenever the common thatched hut is removed, the husband of petitioner will get his share of 48 Sq.Yrds out of the total property i.e. 2 cents. Now the petitioner is trying to grab more then her share of 48 Sq.Yrds, by making false statement that the mud wall in between them belongs to her.

3.1The respondent further stated that in the registered sale deed of petitioner, no right is created by defendant’s father on the common mud wall and it is only bounded with defendant right. On what property the petitioner is asking injunction is not clearly mentioned in schedule and filed this false suit for injunction to harass the defendant for wrongful gain, without declaring right of the plaintiff on common mud wall. The respondent submits that in I.A. 141/2009 in O.S. 471/2009 this court is pleased to exparte temporary injunction without notice to the respondent since already injunction was granted in respect of schedule property, dismissed petition was restored, and again seeking for the prayer not make further construction by the defendant and removing the newly 6 made structure and construction wall is not maintainable. If the property belongs to the plaintiff, it is to be decided during the course of trail whether the defendant making construction in this petition schedule property as to be decided during the course of trail. The respondent further submit that they have full right, title and possession without interruption from any third parties much less the petitioner ever since the date of purchase of the thatched house covered under one roof.

3.2The respondent further submits that the petitioner had no case what so ever either the title or possession. The petition is not maintainable under law, as the relief prayed in the plaint is inconstant to that of the prayer alleged in the present petition.

4.No oral or documentary evidence is adduced by both the parties.

5.After having perused the petition and affidavit, upon hearing with the both counsels, Point for consideration is “Whether the petitioner is entitled for

Mandatory injunction as prayed for”?

6.POINT:

Considering the contentions of both the counsels, it is evident that initially suit is filed for relief of permanent injunction. The contention of the petitioner is taking advantage of dismissal of suit for default, the respondents avoid to take notice in petition for restoration of suit, for some time, and meanwhile, removed the joint mud wall, made some structures and constructions. Then, the petitioner filed this petition for mandatory injunction, for demolition of said structures, and constructions. When the suit filed for relief of permanent injunction, this petition for mandatory injunction is not maintainable, without amending the relief in plaint.

7.In view of the aforesaid observation, this petition is dismissed as not maintainable. No costs.

Dictated to the Personal Assistant, transcribed by her, corrected and prono

unced by me in the open court this the 10th day of April, 2014.

VI ADDL. JUNIOR CIVIL JUDGE

VISAKHAPATNAM.

7

APPENDIX OF EVIDENCE

NO.OF WITNESS EXAMINED ON BEHALF OF

PETITIONERS RESPONDENTS

- Nil - - Nil -

NO.OF DOCUMENTS MARKED ON BEHALF OF

PETITIONERS RESPONDENTS

- Nil - - Nil -

VI AJCJ/VSP

IN THE COURT OF THE III ADDL. JUNIOR CIVIL JUDGE ATVISAKHAPATNAM

PRESENT:Smt.Y.Bindu Madhavi,

III ADDL.JUNIOR CIVIL JUDGE,

VISAKHAPATNAM.

Monday the 27th Day of April, 2015

EA 17/2015 IN EP 57/2014 in OS 789/2012

BETWEEN:

Nammi Gowreswara Rao, S/o Late Saidulu, Hindu, aged 39 years, residing at Door No.58-27-25/1, Butchurajupalem, NAD Kotha Road, Visakhapatnam. … D.Hr./Plaintiff

And

Smt.Bahurothu Ravanamma W/o Late Eswara Rao, Door No.58-1-302, Butchurajupalem, NAD Kotha Road, Visakhapatnam. ..J.Dr/Defendant

This petition is coming on 26-3-2015 for final hearing before me in the presence of Sri P.Ramarao (Ramu), learned Counsel for the Plaintiff/D.Hr. and J.Dr is remained exparte and the same having stood over for consideration till this day, this Court delivered the following:

O R D E R

This petition is filed by the Petitioner/D.Hr to order break open the lock of the schedule property and handover the suit schedule property to the petitioner/D.Hr.

2.The brief averments of the affidavit accompanied the petition are that the above suit is filed by the petitioner/D.Hr for eviction of the defendant from the suit schedule property, which was decreed in his favour on 10.04.2014.

Subsequently, he filed EP 57/2014 for eviction of the J.Dr from the suit schedule property and the same was also allowed as per the directions of this Court. The

D.Hr has paid batta and the delivery warrant was prepared. When the Amin of this Court went to deliver the property, it was found that the property was in lock and key. Further, the Amin of this Court went to the house of the respondent/J.Dr and informed about the delivery warrant and asked the respondent/J.Dr to open the key and handover the property to the D.Hr. Then the J.Dr stated that she will inform her elder son and handover the property. On information the elder Son of the J.Dr came and discussed with their Advocate and stated that to take the delivery of the property by break open the keys and he went into their house and 2 closed the doors. When the petitioner requested the Amin to break open the lock, he informed that until and unless there is Court order, he cannot break the lock.

The petitioner further averred that since from the beginning of the filing of the suit, the J.Dr is continuously harassing him without appearing before this Court even though every time the J.Dr receives notice for each and every step. The J.Dr without any intimation and without handover the keys went away from the house. Therefore, it is very essential to order for break open and handover the vacant possession to the petitioner/ D.Hr. Hence the petition.

3.After receipt of the notice, the respondent/J.Dr did not make her appearance. Hence the respondent/J.Dr was remained exparte.

4.Heard the learned counsel for the petitioner and perused the material on record.

5.Now the point for consideration is:

Whether the petition is liable to be allowed to order break open the lock of the schedule property and handover the schedule property to the petitioner/D.Hr?

6. POINT:

The case of the petitioner in brief is that in spite of the decree for eviction and the EP for delivery of the property is in his favour, the said delivery was not affected as the J.Dr locked the house and went away from the schedule property without giving the keys. Therefore, it is highly essential to break open the lock and put the petitioner in possession of the property.

7.It is an undisputed fact that the suit is decreed in favour of the petitioner/D.Hr on 10.04.2014. Further, the EP was filed under Order 21 Rule 36

CPC for delivery of schedule property and the same was allowed on 11.11.2014.

It is a specific case of the D.Hr that though the orders were passed in his favour, the delivery was not affected as the J.Dr has not cooperated to the Court Bailiff. It is true on perusing the record, it reveals that EP 57/2014 was filed under Order 21 Rule 36 for delivery of the schedule property which is in possession of the 3 respondent/J.Dr and to evict him from the schedule property for which counter was filed by the J.Dr by stating that he has vacated the said property on 10.07.2013 and handed over the keys of the schedule property to the D.Hr before the elders of the locality i.e., Sri Boddeti Appalanarasa Rao S/o Papayya and Sri

Modili Srinu S/o Gowrinaidu and the EP was filed only to harass the J.Dr. In the above EP, the orders were pronounced by this Court by observing in para 8 that “ it is not the case of the J.Dr., that there is any appeal or any stay is pending.

Since the J.Dr has failed to record the alleged delivery in the Court as contemplated under law and also failed to examine the alleged elders i.e., Sri

Boddeti Appalanarasa Rao, S/O Papayya Naidu and Sri Modili Srinu, S/O

Gowrinaidu in whose presence he has delivered the property to the D.Hr, the contention of the J.Dr cannot be relied up on. Therefore this court is of the considered view that there is no force in the contention of the J.Dr in this regard.

Furthermore if really, the J.Dr has handed over the property what made the D.Hr to file the present EP was not explained. Under these circumstances, this Court found merits in the contention of the D.Hr”. Therefore from the above order, it is very clear that this Court has directed the J.Dr to vacate the property and deliver the vacant possession there of to the D.Hr.

8.In spite of the above warrant issued in the above EP, the endorsement of the Court Bailiff dt.21.1.2015 reveals that suit schedule property was under lock and key and along with D.Hr, the Court Bailiff went to the house of the J.Dr, the elder son of the J.Dr stated to break open the lock and take the possession thereof. The endorsement of the Bailiff categorically reveals that in spite of informing about the delivery warrant, the J.Dr did not turn up to deliver the possession to the petitioner/ D.Hr. Furthermore as discussed supra it was observed in para No.8 of the Order in EP 57/2014, if really the contention of the

J.Dr therein is true i.e., the key was delivered to the D.Hr in the presence of the alleged elders, the D.Hr might not have filed the present petition to break open the lock as admittedly the said property belongs to the petitioner/D.Hr.

4

9.Therefore, it clearly reveals that the J.Dr has knowledge of the delivery warrant. Furthermore after issuing the notice in the present petition, the respondent/J.Dr did not make his appearance and did not choose to contest the same. Therefore, though the delivery warrant was ordered, the same was not affected and the possession thereof was not delivered to the petitioner/D.Hr.

Under these circumstances, it is just and proper to break open the lock which is under lock and key. Accordingly, the point is answered in favour of petitioner/D.Hr and against the J.Dr.

In the result, the petition is allowed on payment of process. The Court bailiff is permitted to break open the petition schedule property and put the petitioner in physical possession of the property and further the Bailiff is directed that in case of any movables are found at the time of delivery in the suit schedule house to which the decree holder has no claim and the J.Dr is absent or if present, does not immediately remove the same. The Bailiff shall make an inventory of the articles so found with their probable value, in the presence of respectable person on the spot, have the same attested by them and leave movables in the custody of the decree holder after taking a bond from him for keeping the articles in safe custody pending orders of Court for disposal of the same. Call on 1.6.2015.

Dictated to the Stenographer, transcribed by her, corrected and pronounced by

me in Open Court on this the day 27 th Day of April, 2015.

III ADDL. JUNIOR CIVIL JUDGE,

VISAKHAPATNAM.

APPENDIX OF EVIDENCE

Witnesses Examined On Behalf Of Petitioner/ D.Hr. Respondent/ J.Dr. NilNil

Exhibits Marked On Behalf Of Petitioner/ D.Hr. Respondent/ J.Dr.

NilNil

III AJCJ/VSP 5

IN THE COURT OF THE III ADDL.JUNIOR CIVIL JUDGE AT VISAKHAPATNAM

PRESENT: SMT. Y. BINDU MADHAVI,

III ADDL.JUNIOR CIVIL JUDGE,

VISAKHAPATNAM.

Tuesday, the 28th day of April, 2015

IA 98/2015 in O.S.562/2012

BETWEEN:

1.Sri K.Venkata Ramana Rao, S/o Late Satyanarayana, Hindu, aged 50 years, residing at Sri Sai Residency, Kurmannapalem, Visakhapatnam.

2.Sri K.Madhava Rao, S/o Satyanarayana, Hindu, aged 50 years, residing at Ukkunagaram, Visakhapatnam.

3. Sri Ch.Sudhakar S/o Haranath, Hindu, aged 45 years, residing at Ukkunagarm, Visakhapatnam.

..Petitioners/Defendants 2, 3, & 4.

And:

1. M/s.Kapil Chit Fund (P) Ltd., Visakhapatnam Branch, Visakhapatnam. ..1st Respondent/plaintiff

2. M.Bapuji, S/o Sriramamurthy, Hindu, aged 53 years, H.B.Colony, Visakhapatnam.

3. I.Rambabu, S/o Bennayya, Hindu, aged 47 years, residing at HB Colony, Visakhapatnam.

4. Y.Suseela Reddy, S/o Otle Reddy, Hindu, aged 40 years, Kapil Chit Fund (P) Ltd., Station Road, Visakhapatnam.

5. P.Radhika, D/o Venkata Rao, Hindu, aged 45 years, Kapil Chit Fund (P) Ltd., Dondaparthy, Visakhapatnam.

..Respondents/Defendants

This petition is coming on 2.4.2015 for final hearing before me in the presence of Sri R.Madhusudhana Rao, learned counsel for the petitioners/ defendants 2, 3 & 4 and of Sri A.Venkateswara Rao, learned counsel for the 1st respondent/defendant and the matter having stood over for consideration till this day, this Court delivered the following:

ORDER

This petition is filed under Section 151 CPC by the petitioners/ defendants 2, 3 & 4 to permit the petitioners to file written statement.

2.The brief averments of the affidavit accompanied the petition are that the petitioners/defendants 2 to 4 filed the above suit against the defendants for recovery of suit amount. After receipt of the suit summons, they have contested the matter and posted the matter for cross examination of Pw.2 on 18.03.2014.

But on that date as the 2nd petitioner is not doing well, he could not attend before 2 the Court. Subsequently D1 and other defendants informed that the matter is settled by adjusting the previous receipts. Now the matter is coming for judgment and filing of the written statement by the petitioners is very essential to contest the matter.

3. Counter filed by the 1st respondent/plaintiff by denying the petition averments and submitted that petitioners 2 to 4 written statement was treated Nil on 02.01.2013 for non filing of written statement and for non representation and the petitioners were also absent on that day. The above matter was posted to 11.8.2014 for judgment. 2nd respondent filed memos, petition by petitions in the above matter thereby creating hurdles in pronouncing the judgment, now it is the turn to these petitioners for the same purpose.

1st respondent further submitted that the petitioner intentionally filing this frivolous petition to cause delay in pronouncing the judgment to create unnecessary litigation. The present petition is filed on 20.02.2015 and their written statement was treated as Nil on 02.01.2013 and as per the contents of the affidavit, it clearly shows that they got fully aware of the proceedings. The petitioners simply stated in the affidavit that they are not feeling well on 18.03.2014, hence he could not attend the Court. Since 2 years, the petitioners kept quiet and watching the court proceedings along with 2nd respondent/1st defendant and now they filed these frivolous petitions to receive the written statement on file without any sufficient cause and without any proof, these acts of the petitioners are nothing but abusing the process of the Court. The petitioners willfully causing obstructions in passing the judgment in the above matter. Hence there are no merits in the petition and is liable to be dismissed.

4.No oral or documentary evidence is adduced on behalf of either side.

5.Heard the learned counsel for the petitioners and the respondents.

Perused the material on record.

6.Now the point for consideration is whether the petition is liable to allowed to permit the petitioners/defendants 2, 3 & 4 to file written statement?

3

7. POINT:

It is an undisputed fact that the above suit is coming for Judgment.

Further, it is also an undisputed fact that on 29.10.2012, the written statement of

D1 was filed and the written statement of petitioners/defendants 2 to 4 was not filed and at request of the petitioners/defendants 2 to 4, the matter underwent several adjournments for filing the written statement and on 2.1.2013 as the statutory period was elapsed, the written statement of D2 to D4 was treated Nil as there was no representation and also no written statement was filed. Thereafter since 2013, the matter underwent the entire trial by letting the plaintiff's evidence and also evidence of 1st defendant and this petition is being filed at belated stage.

After thorough perusal of the record, it is true as rightly contended by the learned counsel for the 1st respondent, this petition is filed at a belated stage and simply the petitioners have stated that they are not doing well and it was informed to the petitioners that the matter was settled by adjusting the previous receipts. Even the contention of the petitioners is true that they were informed that the matter was settled by adjusting the previous receipts, it is their bounden duty to appear

before the Court and to know the proceedings. Furthermore to prove the illness of

the petitioner/2nd defendant, he did not file any iota of evidence before this Court.

Therefore, this Court is of the considered view that there is force in the contention of the learned counsel for the 1st respondent that the petitioners are not diligent in prosecuting the proceedings. Further, this Court found that there is no force in the contention of the learned counsel for the petitioners. However, it is well settled principle of law that every matter shall be disposed off on merits but not on technicalities. It is just and proper to give one more opportunity to parties to the proceedings to enable them to proceed with the matter in order to dispose off the matter on merits. Under the circumstances stated supra, this Court is of the considered view that an opportunity has to be given to the petitioners as they have already filed written statement by put forthing their defence. Accordingly the point is answered in favour of the petitioners and against the respondents.

4

In the result, the petition is allowed on costs of Rs.500/- by each petitioner to the 1st respondent on or before 8.5.2015.

Dictated to the Stenographer, transcribed by her, corrected and pronounced by

me in Open Court on this the day 28th day of April, 2015.

III ADDL. JUNIOR CIVIL JUDGE,

VISAKHAPATNAM.

APPENDIX OF EVIDENCE

Witnesses Examined On Behalf Of

Petitioners/defendantsRespondents NilNil

Exhibits Marked On Behalf Of

Petitioners/defendants Respondents NilNil

III AJCJ/VSP .