Smt Y Renuka

1

IN THE COURT OF THE V ADDITIONAL DISTRICT JUDGE AT

JANGAON

PRESENT: Smt Renuka Yara, II Addl. District Judge, FAC V.Addl.District Judge, Jangaon.

Friday, the 22nd day of January, 2016.

C.M.A.No.50/2014

Between :-

Dandaboina Sikindar S/o Narahari, 45 yrs. Occ:Agriculture R/o Wadlakonda village, Jangaon Mandal, Warangal District.

.. Appellant/Petitioner/

Plaintiff.

A N D

Burugu Yadagiri Goud S/o Chandraiah, 62 yrs. Occ:Advocate R/o Mustiyala village, Cherial Mandal, Warangal District.

...Respondent/Respondent/

Defendant.

AGGRIEVED BY THE ORDER AND DECREE DATED

10.09.2014 IN I.A.No.929/2013 IN O.S.No. 112/2013 ON THE

FILE OF SENIOR CIVIL JUDGE, AT JANGAON.

Between :-

Dandaboina Sikindar

...Petitioner/Plaintiff.

A N D

Burugu Yadagiri Goud

.. Respondent/Defendant.

This appeal is coming up before me for final hearing in the presence of Sri C.A.R Seshagiri Rao, Counsel for Appellant, and of Sri M.Jan Reddy, Counsel for respondent and having stood over 2 the matter till date for consideration, this Court delivered the following :

:: O R D E R ::

This is an appeal preferred by the appellant aggrieved by the

Order and Decree passed by the learned Senior Civil Judge,

Jangaon in IA.No.929/2013 in OS.No.112/2013 dated 10.09.2014 dismissing the petition filed by the appellant/petitioner/plaintiff under Order 39 Rule 1 and 2 of C.P.C seeking interim injunction pendingdisposalofthesuittorestrainthe respondent/respondent/defendant from interfering with the peaceful possession and enjoyment of the suit schedule property consisting of a house bearing Municipal No.1-2-349 ad measuring 125 sq.yards situated at Geethanagar Locality, Siddipet road, Jangaon.

2.The case of the appellant is that he is the owner and possessor of suit schedule house. While so, the respondent was a tenant in the said house for the past six years by paying rent. There was dispute between the appellant and his brother regarding partition of the ancestral property situated at Wadlakonda and

Jangaon. The respondent promised to settle the matter by sorting out the differences between the appellant and his brother. By believing the words of the respondent, the appellant approached the respondent for loan of Rs.1,00,000/- for the purpose of meeting the expenses of medical treatment for his sick mother. The respondent agreed to lend money on the condition that the appellant would mortgage his house by registering mortgage deed prior to lending of the money. While things stood thus, the appellant's mother expired on 11.04.2013 due to which the 3 appellant had to seek debts. The appellant approached the respondent for a hand loan and again the respondent asked him to mortgage the house property. Accordingly, the respondent and the appellant went to the Registration Office on 02.09.2013 and signed on the documents before the Registrar.

3.According to the appellant he signed on the document under the impression that he is executing Mortgage Deed for obtaining hand loan of Rs.1,00,000/-. Whereas the respondent has mischievously got executed a Registered Sale Deed vide document

No.6816/2013 dt.02.09.2013. Therefore, the appellant pleaded that said Registered Sale Deed is incorrect and fabricated document obtained by cheating and he never received sale consideration of

Rs.3,13,000/- as mentioned in the Sale Deed. Further, the appellant pleaded that incorrect boundaries are mentioned in the document.

The appellant pleaded that he is in peaceful possession and enjoyment of the property as the same was never sold to the respondent and there was no payment of consideration. In addition, the appellant pleaded that the suit schedule property is ancestral house and he is not the only person with interest in said property to sell the same in his individual capacity. The respondent came to the suit schedule house on 02.09.2013 and started dismantling the roof and walls. The appellant opposed the respondent with the help of local police and stopped the dismantling work. In the circumstances, the appellant pleaded that he has prima facie case, balance of convenience and prayed that interim injunction be granted.

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4.Per contra the respondent while admitting that he is a tenant of the suit schedule house till 01.09.2009, pleaded that he purchased the house from the appellant through Registered Sale

Deed No.6816/2013 dt.02.09.2013. The respondent pleaded that originally the suit schedule house was in the name of one

D.Jawaharlal who was brother of the appellant. Said Jawaharlal died. The appellant and his brother were the sole legal heirs of the deceased Jawaharlal as the father of the appellant also died.

Subsequently, a partition took place between the appellant herein and his brother and the suit schedule house fell to the share of the appellant. The respondent denied the transaction of lending money to the appellant as a back drop for alleged execution of mortgage deed in favour of the respondent for Rs.1,00,000/-. To the contrary, the respondent pleaded that the appellant has voluntarily executed

Registered Sale Deed on 02.09.2013 before the Sub Registrar in the presence of Bathini Venkateshwarlu and Gajula Ravinder after receiving the total sale consideration of Rs.3,13,000/-. The respondent denied having cheated the appellant. The respondent further pleaded that he has lent Rs.1,70,000/- on 07.09.2013 after the execution of the sale deed upon execution of promissory note and receipt dt.07.09.2013. The promissory note was scribed by Kesi

Reddy Muthyam Reddy and attested by Ch. Nageshwar and

G.Ravinder for payment of the principal with interest at 18% p.a.

On the basis of aforementioned pleadings, the respondent pleaded that there is no cause of action to file the suit. Hence, pleaded that the petition be dismissed.

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5.The petitioner got marked Exs.P1 to P9 and the respondent got marked Exs.R1 to R4.

6.Based on the above pleadings, the learned Senior Civil

Judge, Jangaon considered the points as to:

1. Whether the petitioner/plaintiff has established prima facie case of his possession over the suit schedule property as on the date of filing of the suit?

2. Whether the balance of convenience lies in favour of the petitioner for granting injunction?

3. Whether the petitioner/plaintiff has established irreparable loss or hardship to be suffered by him, if injunction is granted?

4. Whether the petitioner/plaintiff is entitled to interim injunction as prayed for?

5. To what relief?

7.Upon perusing the pleadings and the documentary evidence the learned Senior Civil Judge, Jangaon dismissed the petition on the ground that the suit is filed for cancellation of

Registered Sale Deed vide document No.6816/2013 dt.02.09.2013 along with declaration without any prayer for perpetual injunction.

Therefore, it was held that relief of interim injunction cannot prayed for without seeking main relief of perpetual injunction. Secondly, it is held that Exs.P1 to P9 do not disclose the appellant to be owner and possessor of suit property. The Sale Deed dt.02.09.2013 was held to prove that appellant sold the suit house to the respondent.

The documentary evidence produced before the court was held insufficient to prove the validity, genuineness and execution or binding nature of the sale deed on the appellant. The facts about misrepresentation, cheating as to execution of sale deed on the pretext of execution of Mortgage Deed were to be considered after 6 trial. Therefore, it was held that the appellant cannot seek interim injunction as the appellant failed to establish essential requirements of the prima facie case, lawful possession and balance of convenience and that the appellant would not suffer any loss as he is not in possession of the property. Hence, the petition was dismissed with a finding that until Ex.R2 sale deed is cancelled by due process of law the same is binding on the appellant. Hence, this appeal.

8.In grounds of appeal, it is contended that the trial court failed to consider the balance of convenience and the comparative hardship in favour of the appellant. Further, it is contended that there was a specific pleading to the effect that the appellant is in possession of the property as on the date of filing of the suit. The appellant derailed the documents filed by the respondent claiming that they are obtained by sheer fraud and deceit. It is pleaded that the trial court failed to appreciate the fact that the respondent was in a dominant position and exploited the situation against the appellant but the same was not considered. Lastly, it is contended that on 01.09.2013 the respondent was the only tenant and in case the stand of the respondent is to be pleaded there is no necessary for Exs.R3 and R4 to come into existence.

9.Now the points for consideration are:

1. Whether the order and decree passed by the learned Senior Civil Judge, Jangaon is erroneous in facts and law, and therefore, liable to be set aside?

2. Whether the appellant is entitled to interim injunction as prayed for?

10. POINT NOS.1 & 2:

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11.During arguments in appeal there was emphasis on the fact that the petition was dismissed on the ground that the appellant had sought only declaration as owner and cancellation of the Registered Sale Deed bearing document No.6816/2013 dt.02.09.2013 without any prayer for permanent injunction as an ancillary relief. The counsel for appellant challenged this finding and pleaded that there is no need to seek permanent injunction when the main relief of declaration along with cancellation of th sale deed is sought as the appellant himself is in possession of the suit schedule property. While so, the counsel for respondent relied upon judgment between Chittoju Brahmaiah Vs. Sarida Subha reported in 1997(1) ALT 751 wherein it is held by the Honourable High Court of Judicature Andhra Pradesh that, a suit for declaration and possession means a suit for declaration of title and possession and when consequential injunction is sought without seeking relief of possession, it becomes a suit for mere declaration of title on his failure to establish his possession. Such a suit is hit by Proviso of

Sec.34 of the Act, and therefore, not maintainable. Further, the counsel for respondent relied upon judgment between V. Hanya

Naik and others V. M.Krishna Reddy and others reported in 2009(6)

A.L.T 221 wherein it is held that in a declaratory suit without claiming any ancillary relief and without impleading anybody as defendant and an exparte decree is passed, when a suit is filed for mere declaratory relief and no schedule is attached to plaint and no individual is cited as defendant, the numbering of the suit was held to be illegal.

8

12.The facts of both the aforementioned cases are not applicable to the present case. The Sec.34 of the Specific Relief Act has a proviso imposing limitation that the ancillary reliefs have to be sought at the time of filing of the suit failing which a subsequent suit may not be filed seeking the ancillary reliefs. Said sections and proviso are applicable for prayers in the main. The counsel for respondent did not file any judgment to show that said proviso is applicable to enquiries in interlocutory applications. In the present suit the appellant has sought declaration as owner of the suit house and ancillary relief of cancellation of Sale Deed bearing document

No.6816/2013 dt.02.09.2013. The relief of possession and injunction are not prayed for. There is no hard and fast rule that once an ancillary relief is not prayed the same cannot be granted.

There are other judgments of the Honourable Apex Court stating that the main prayer itself warrants grant of ancillary reliefs. There is no need to ponder upon the prayer of the main suit at the stage of enquiry in interlocutory proceedings. The limited purpose of the present petition is to examine whether the appellant is entitled to interim injunction as prayed for. In this respect, when the property in dispute is a structure consisting of dwelling house or any other structure used for human habitation. The burden is on the appellant to prove prima facie case of possession and interference of peaceful possession and enjoyment of the property. Whereas there is need to prove prima facie case of title in case of open place or plots as there would be no documentary evidence to prove possession or over said vacant plots and lands. The presumption is that, possession follows title in case of open lands.

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13. In the instant case, the disputed property is a house.

The prima facie case of possession has to be shown by the appellant over said suit house. However, the appellant to begin with admitted that the respondent was in possession of suit house as a tenant followed by pleadings to the effect that in the guise of a mortgage deed the respondent got executed a registered sale deed.

The undisputed fact is the respondent is in possession of the suit house as on the date of filing of the suit. Whether said possession is legal or illegal and whether the conveyance of said house through registered sale deed is genuine and binding or not binding as being result of fraud are matters to be decided after full fledged trial. At this stage there is neither evidence on record to substantiate the plea of the appellant that the respondent got the sale deed executed by fraud nor is it necessary to examine said issue when there is proof as to possession by the respondent. By virtue of the fact that the respondent is in possession of the suit house, that there is a registered sale deed in favour of the respondent it can be safely inferred that the appellant has failed to show prima facie case of possession while the title is in dispuLte. Because the respondent is in possession of suit house, the balance of convenience is also in favour of the respondent and there is no case of possible irreparable loss in case temporary injunction is not granted. Hence, I see no reason to interfere with the finding of the learned Senior Civil Judge, Jangaon and the same is confirmed.

14. In the result, the Civil Miscellaneous Appeal is dismissed with costs confirming the order and decree passed by the 10 learned Senior Civil Judge, Jangaon in I.A.No.929/2013 in OS.

No.112/2013 dt.10.09.2014.

(Dictated to the Personal Assistant, after her transcription corrected and pronounced by me in the Open Court on 22nd of January, 2016).

V ADDL DISTRICT JUDGE,

JANGAON

APPENDIX OF EVIDENCE

-Nil-

V ADDL. DISTRICT JUDGE,

JANGAON.

1

IN THE COURT OF V ADDITIONAL DISTRICT JUDGE,

JANGAON

Present: Smt. Renuka Yara, II Addl. District Judge, FAC V.Addl. District Judge, Jangaon.

Friday, 12th day of February, 2016.

A.S. 54 OF 2015

Between:

1. Bommishetty Ramulamma.

2. Bommishetty Sujatha.

3. Bommishetty Sumalatha.

4. Bommishetty Pushpalatha.

5. Bommishetty Sunil.

6. Bommishetty Srilatha.

7. Bommishetty Hemalatha.

....Appellants/Plaintiffs.

And

1. To whomsoever it may concern.

2. The State of Telangana through District Collector, Warangal.

3. The Tahsildar, Raghunathpally Mandal, Warangal District.

4. The Bank of Baroda, Hanamkonda, Warangal.

...Respondents/Defendants.

(Appeal against the Judgment and Decree passed in

O.S.No.106/2013, dated 28.11.2014 by the learned Addl.

Junior Civil Judge, Jangaon.)

Between:

1. Bommishetty Ramulamma.

2. Bommishetty Sujatha.

3. Bommishetty Sumalath.

4. Bommishetty Pushpalatha.

5. Bommishetty Sunil.

6. Bommishetty Srilatha.

7. Bommishetty Hemalatha.

…. Plaintiffs.

And

T. To whomsoever it may concern.

2. The State of Telangana through District Collector, Warangal.

3. The Tahsildar, Raghunathpally Mandal, Warangal District.

4. The Bank of Baroda, Hanamkonda, Warangal.

...Respondents/Defendants.

This Appeal is coming for hearing before me in the presence of

Sri Ch. Chidambara Nath, Advocate for the Appellants/plaintiffs and 2 of Sri Jan Reddy, Advocate for Respondents/defendants 2 and 3 and

Respondent No.4 is set exparte and having stood over the matter for consideration till date, this court delivered the following:-

J U D G M E N T

This is an appeal preferred aggrieved by the Judgment and decree passed by the learned Addl. Junior Civil Judge at Jangaon in

O.S.No.106/2013 dated 28.11.2014 dismissing the suit filed by the

plaintiffs for declaring them as legal heirs of the deceased late

Bommishetty Mallaiah who died on 06.10.2011 at Sultanate of Oman country.

2.The appellants/plaintiffs are referred as appellants and the respondents/defendants are referred as respondents.

3.The brief facts are the appellant No.1 is the legally wedded wife of the deceased Bommishetty Mallaiah. The appellant

Nos.2,4,6 and 7 are the daughters and appellant No.5 is the son of late Bommishetty Mallaiah. The said Mallaiah died in Sultanate

Oman on 06.10.2011. The appellants are the legal heirs of said

Mallaiah. The Asst.Consular Officer, Embassy of India, Sultanate of

Oman has sent a Bank of Baroda Demand Draft bearing No.003965 dt.21.03.2013 for an amount of Rs.20,65,477/- as legal dues in respect of late Mallaiah. The appellants claimed to be the legal heirs and there are no other legal heirs of said Mallaiah.

4.The appellants approached the Bank of Baroda for release of money. The Bank demanded the appellants to produce legal heir certificate in proof of the appellants being legal heirs of deceased Mallaiah. Then, the appellants approached Tahsildar,

Raghunathpally but he refused to issue the certificate in view of the decision of Honourable High Court. Hence, the appellants were constrained to file the suit with documents consisting photocopy 3 ration card dt.02.08.2006, photocopy of R.C.No.C2/2713/2013 dt.15.04.2013 and photocopy of X-ray copy No.MUS/436/402/2011 with a prayer seeking declaration of the appellants as legal heirs of the deceased Mallaiah and for costs of the suit.

5.A public notice was issued and none appeared to oppose the suit claim. Respondent No.4 was served, called absent and set exparte.

6.The respondent No.3 in his written statement stated that the respondent is in no way concerned with the claim or dispute of the appellants. The respondent No.3 is only an Officer of

Government of Andhra Pradesh who has the duty to issue family membership certificates to receive Government dues but is not empowered to issue legal heirs certificate as per instructions issued in Memo No.31346/Ser.II.2/2010 dt.25.10.2010. Respondent No.3 pleaded that the appellants have no cause to array the respondent

No.3 as a respondent. Further, respondent No.3 pleaded that no notice was served on respondent No.3 before filing the above suit. As such, respondent No.3 pleaded that he is not a proper or necessary party to the suit and no relief is sought against him. Hence, prayed that the suit be dismissed.

7.This written statement is adopted by respondent No.2.

8. Based on the above pleadings, the learned Addl. Junior

Civil Judge, Jangaon framed the following issues:

1. Whether the plaintiffs are entitled for declaration as legal heirs of the deceased as prayed for?

2. To what relief?

9.The appellants got examined PW.1 and got marked

Exs.A1 to A6. The respondents examined DW.1 and got marked

Exs.B1 and B2. During the appeal the appellants filed petition under

Or.41 Rule 27 CPC vide IA.No.19/2015 producing the originals of 4 Exs.A1 to A6. Since these exhibits were already marked by the trial court the petition is allowed.

10.The learned Addl.Junior Civil Judge, Jangaon dismissed the suit on the ground that the appellants being in a position to claim other relief did not pray for such ancillary or subsidiary relief and that nobody denied the right of appellants as legal heirs of the deceased

Mallaiah. Hence, this appeal.

11.In grounds of appeal, it is contended that the appellants have proved the case but the trial court passed biased judgment which is illegal and arbitrary. It is contended that the trial court failed to appreciate evidence in the right perspective. The appellants contended that the trial court failed to consider the fact that the respondent No.3 denied for issuance of legal heir certificate and the appellants had no alternative but to approach the court for obtaining legal heir certificate and the trial court dismissed the case without just and reasonable cause. Further, it is contended that the trial court failed to appreciate the fact that the legal heir certificate is necessary for the appellants to withdraw the demand draft that stands in the name of the deceased to meet their day to day requirements. However, without giving any credence to the version of the appellants the trial court has dismissed the suit. The appellants contended that they are entitled to the relief prayed for under Sec.34 of Specific Relief Act. By failing to notice that the respondents refused to issue legal heir certificate and the trial court Judge dismissed the suit without giving proper explanation.

12.Now the points for consideration are:

1. Whether the judgment and decree passed by the learned Addl.Junior Civil Judge, Jangaon in

OS.No.106/2013 dt.28.11.2014 is erroneous in

facts and law, therefore, liable to be set aside?

2. Whether the appellants are entitled to declaration as 5 legal heirs of the deceased Bommishetty Mallaiah?

13.POINT NO.1:

The appellant No.1 as PW.1 restated the averments of the suit and got marked Ex.A1 copy of paper publication dt.01.05.2013 addressed to the people seeking objections if any, for declaration of the appellants as legal heirs of late B.Mallaiah, Ex.A2 letter issued by Embassy of India to the District Collector, Warangal dt.26.03.2013, Ex.A3 attested copy of the letter issued by the District

Collector, Warangal to Tahsildar, Raghunathpally dt.15.04.2013 vide

RC.No.C2/2713/2013, Ex.A4 attested copy of death certificate of

B.Mallaiah dt.15.10.2011, Ex.A5 Original election identity card, Ex.A6

Original ration card.

14.The Tahsildar, Raghunathpally got herself examined as

DW.1, stated that the Tahsildar is competent to issue only family members certificate but not legal heir certificate. DW.1 stated that no application has been made for issuance of family member certificate and prior notice was not received before filing of the suit. DW.1 got marked Ex.B1, B2 attested copies of memo Nos.31346/SER-II-2/2010, dt.25.10.2010 and 11496/SER.II(2)/ 2013-2 dt.25.06.2013 and prayed that the suit be dismissed against the Government.

15.In cross examination, DW.1 admitted that the husband of

PW.1 died in road accident on 06.10.2011 and stated that she has no objection if the court issues legal heir certificate to the appellants.

16. During arguments in appeal originals of Exs.A1 to A6 are filed before this court.

17.The documentary evidence under Ex.A2 shows that

B.Mallaiah died in Sulthanate Oman on 06.10.2011. Ex.A3 is the letter addressed by the Collector to the Tahsildar to hand over the demand draft to appellant No.1 after proper verification with an advise to 6 obtain legal heir certificate from court of law. Ex.A4 is a letter from

Embassy of India to District Collector, Warangal. The address of the appellant No.1 as house No.5-21 Kanchanpally, Raghunathpally

Mandal, Warangal District is given forwarding the demand draft

No.003965 dt.21.03.2013 for Rs.20,65,477/- to be disbursed to the legal heirs of the deceased. Ex.A5 is the original election identity card of appellant No.1., Ex.A6 is the original ration card showing the appellants being the family members of the deceased Mallaiah. The documents marked under Exs.A1 to A6 categorically prove the appellants being legal heirs of the deceased B.Mallaiah.

16.The trial court dismissed the suit on the ground that the appellants did not seek subsidiary and ancillary reliefs. This is a suit for declaration of legal status as being legal heirs of the deceased

Mallaiah and there is no ancillary or subsidiary relief that can be prayed. Therefore, the finding of the learned Addl. Junior Civil Judge,

Jangaon that the suit has a glaring defect of account of absence of ancillary or subsidiary reliefs is erroneous. The second ground stated for dismissal is that, none of the respondents have opposed the legal status of the appellants. This finding is nothing short of mockery of the pathetic situation of the appellants who have lost their bread-winner by denying legal certificate claiming that there is no denial of their status. The very fact that the demand draft bearing

No.003965 dt.21.03.2013 for Rs.20,65,477/- would be disbursed to the appellants on proper verification shows that the Government authorities have impliedly denied the status of the appellants and therefore, called for proof and said proof has to be sought only from a court of law on account of circulars issued under Exs.B1 and B2.

17.The learned Addl.Junior Civil Judge, Jangaon while applying the legal principle laid down in the judgment between 7 Ramachandra Dagdu Sonavane (died) represented by L.Rs and others. Vs. Vithu Hira Mahar (died) represented by L.Rs and others reported in 2010(1)SCJ 362 wherein the Hon'ble Supreme Court held in Para No.30 that a suit for declaration before a civil court is maintainable to declare the status and legal character of an individual which falls within the perview of Sec.34 of the Specific

Relief Act, 1963 has misinterpreted the proviso. The learned Addl.

Junior Civil Judge, Jangaon referred to paragraphs-9 of some judgment of Honourable High Court of Andhra Pradesh without citation and without stating the facts as to how they are comparable to the present case.

18.The learned Addl.Junior Civil Judge, Jangaon failed to state what is the ancillary or subsidiary relief that the appellants were capable of seeking but failed to do so. This is a suit for declaration of legal status in which no ancillary or subsidiary relief can be sought. The trial court dismissed the suit by wrong application of law to the relief sought in the suit without going into the facts of the case and without appreciating the exhibits marked in evidence.

Hence, it is held that the judgment and decree of the trial court are erroneous in application of law as well as appreciation of facts.

Hence, the judgment and decree are set aside in view of the nature of the suit there is no order as to costs. Issue No.1 is answered in favour of appellants.

18.ISSUE NO.2:

In view of the aforementioned findings in issue No.1, issue No.2 is answered in favour of the appellants holding that they are entitled to declaration as legal heirs of deceased Mallaiah.

19. In the result, the appeal is allowed without costs setting aside the judgment and decree passed by the learned Addl. Junior 8

Civil Judge, Jangaon in OS.No.106/2013 dt.28.11.2014 declaring the

appellants as legal heirs of the deceased Bommishetty Mallaiah.

(Dictated to Personal Assistant, after her transcription, corrected and pronounced by me in the open court on this the 12th day of February, 2016)

V-ADDITIONAL DISTRICT JUDGE,

JANGAON.

APPENDIX OF EVIDENCE

-Nil-

V-ADDITIONAL DISTRICT JUDGE,

JANGAON.

1

IN THE COURT OF THE CHAIRMAN, MOTOR ACCIDENTS

CLAIMS TRIBUNAL – CUM – V-ADDITIONAL. DISTRICT

JUDGE AT JANGAON.

PRESENT: SMT. RENUKA YARA,

Chairman, M.A.C.T-cum-II-Addl.

District Judge, Warangal.

F.A.C V.Addl.District Judge, Warangal.

Friday, the 18th day of December, 2015.

MOTOR VEHICLE ORIGINAL PETITION NO. 503/2011.

Between:-

Engili Sudhakar S/o Kasiram, 38 yrs. Occ:Home Guard, vide No.HG 385, R/o H.No.5-11-414, Premnagar colony, Naimnagar, Hanamkonda, Warangal District.

… Petitioner.

AND

1. Kallepu Venkateshwar Goud S/o Balaraju, 37 yrs. Occ: Owner of Crime Vehicle, R/o H.No.2-4-87, Old Bus Depot, Gokulngar, Hanamkonda, Warangal District.

2. Oriental Insurance Company Limited rep. By its Senior Divisional Manager, Divisional Office, at Deva Satyanarayana Building, Girmajipet, Radhika Talkies Lane, Warangal.

3. The Oriental Insurance Company Limited rep., by its Divisional Manager, Divisional Office, at Loyola Arcade Opp:to Choti Masjid, near Adalath, Subedari, Hanamkonda of Warangal District.

….. Respondents 1 to 3.

This petition is coming on this day before me for final disposal in the presence of Sri Desu Prasad, Advocate for the

Petitioner and of Sri A. Madan Mohan Rao, Advcoate for respondent No.2 and Respondent No. 1 is set exparte and after hearing the arguments of both the sides and having 2 stood over for consideration, till this day, this Court delivered the following:-

:: A W A R D ::

1.This is a petition filed by the petitioner U/s.166(1)

(a) of M.V. Act, read with 455 of A.P.M.V.Rules seeking compensation of Rs.1,50,000/- from the respondents jointly and severally on account of injuries sustained in a road traffic accident.

2.The case of the petitioner is that on 08.06.2007 at 06.00 A.M he boarded auto bearing No.AP 36 V 2130 along with others at Mulug road to go to Hanamkonda. When the auto passed Alankar, the driver of said auto drove in rash and negligent manner in high speed. Further, on seeing a vehicle coming in opposite direction applied sudden breaks due to which the auto turned turtle. As a result of this accident, the petitioner along with other inmates of the auto fell down on the road and sustained injuries. The petitioner sustained fracture of radius over left wrist and right wrist, abrasion over left knee and left eye brow and other simple injuries all over the body.

3.The Police, Hanamkonda registered a case in

Cr.No.233/2007 under Sec.279 and 337 IPC against the driver of the auto. After completing investigation, Police filed charge sheet against driver of the crime auto rickshaw.

4.The petitioner was shifted to Sri Ganesh

Orthopedic Hospital, Hanamkonda for emergency treatment 3 as inpatient. The petitioner is still taking treatment for the fractures and bed rest and also taking follow up treatment. As such, the petitioner incurred huge expenses for medicines and extra nourishment. The petitioner is still experiencing pain and suffer inspite of taking treatment with various

Doctors. As such, the petitioner has incurred incidental expenses of Rs.40,000/- and is likely to incur incidental expenses for the rest of his life. On account of prolonged treatment the petitioner is put to untold misery and agony.

The petitioner has suffered loss of earnings of Rs.6,000/- per month as Home Guard. The petitioner is claiming

Rs.1,50,000/- as compensation. The petitioner pleaded that the accident occurred due to rash and negligent driving by the driver of crime auto rickshaw bearing No.AP 36 V 2130.

5.Respondent No.1 is the owner of the crime auto rickshaw, respondent No.2 is the insurer vide insurance policy

No.431400/31/2007/903 covering the risk of accident from 11.08.2006 to 10.08.2007, respondent No.3 is the new office branch of the respondent No.2 company, i.e., respondent 2 and 3 is the same party. Hence, the petitioner is claiming compensation from respondent Nos.1 and 3 jointly and severally.

6.Respondent No.1 remained exparte.

7.Respondent No.3 contested the case by filing written counter denying the manner of occurrence of accident, rash and negligent driving by the driver of crime 4 auto and sought strict proof of said averments. The respondent No.3 also denied the age, income, avocation and health condition of the petitioner at the time of accident.

Further, respondent No.3 claimed violation of Sec.158(6) and 134(c) of M.V.Act as respondent No.1 and the Police failed to inform about the accident and particulars of persons involved in the accident to the insurance company. The respondent

No.3 company also claimed that the compensation claimed is highly exaggerated and arbitrary. The respondent No.3 company denied insurance coverage to the crime auto and called upon the petitioner to prove that the driver of the auto was having valid and effective driving license at the time of accident. Lastly, respondent No.3 denied the injuries sustained, treatment taken and expenses incurred towards treatment and medicines by the petitioner. The respondent

No.3 company sought protection under Secs.147, 149, 170 of

M.V.Act and Sec.64(V)B of Insurance Act and prayed that the petition be dismissed with exemplary costs.

8.Respondent No.3 filed a petition under Sec.170 of M.V.Act and the same is allowed.

9. Based on the above pleadings, the following issues have been settled.

1. Whether on 08.06.2007 the accident took place due to rash and negligent driving of vehicle bearing no.AP 36 V 2130 (Auto Rickshaw) driven by its driver as per Sec.166 of M.V.Act?

2. Whether the petitioner is entitled for compensation? If so, to what amount and from whom?

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3. To what relief?

10.In support of his case, the petitioner got himself examined as Pw.1 and got marked Exs.A1 to A6. The respondent company did not get any witness examined but got marked Ex.B1 copy of the policy with consent.

11. ISSUE NO.1:

The petitioner got himself examined as PW.1, filed affidavit of chief examination and reiterated all the material averments of the O.P with respect to manner of occurrence of accident, rash and negligent driving by the auto driver, consequent accident, injuries sustained, treatment taken and compensation claimed. In cross examination, PW.1 stated that three passengers were going in the auto at the time of accident and that the accident occurred in the evening when there was busy traffic. PW.1 stated that even after the auto turned turtle none of the other vehicles have hit the auto.

12.According to Ex.A1 complaint, the driver has applied sudden breaks near Alanker theater and therefore, the auto turned turtle. The petitioner sustained injuries in the accident. According to charge sheet the accident occurred when the driver applied sudden breaks on seeing a vehicle coming in the opposite direction and the auto turned turtle resulting in injuries to the inmates of the auto. Hence, charge sheet is filed under Sec.338 of IPC against the driver of the crime auto rickshaw bearing No.AP 36 V 2130. In addition, the 6 respondent did not lead any evidence to dispute the evidence adduced by the petitioner. Hence, issue No.1 is answered in favour of the petitioner holding the driver of the crime auto responsible for causing the accident with rash and negligent driving.

13.ISSUE NO.2:

According to Ex.A3 injury certificate, the petitioner is aged 35 years and sustained two grievous and two simple injuries. Therefore, Rs.40,000/- is awarded towards pain and suffering, Rs.5,000/- is awarded towards treatment of simple injuries.

14.The petitioner claimed that he is a Home Guard and had income of Rs.6,000/- per month. There is no evidene in support of this claim, hence, the notional income is taken as Rs.3000/- per month. The petitioner might have taken atleast three months time for healing of fractures of both the wrist and to resume normal work again. Therefore, Rs.9,000/- is awarded towards loss of earnings. The petitioner did not examine any Doctor in support of the prescriptions marked under Ex.A5 and Ex.A6 medical bills. Therefore, no compensation is awarded for the bills marked under Ex.A6.

Rs.2,000/- is awarded towards transportation, Rs.5,000/- is awarded towards extra nourishment. No document is filed in proof of continuing and permanent disability, therefore, no compensation is awarded on that count, no bills are produced in proof of hospitalization and the incidental expenses. As 7 such, no compensation is awarded on that count. Therefore, the petitioner is entitled to total compensation of Rs.61,000/- payable by the respondents 1 and 3 jointly and severally.

14.IN THE RESULT, the petition is partly allowed by awarding Rs.61,000/- (Rupees sixty one thousand only) to the petitioner with simple interest @ 6% p.a. from the date of filing of the original petition till the date of deposit along with proportionate costs thereon, payable by the respondent Nos.1 to 3 jointly and severally.

The respondent Nos.1 and 3 are granted one month time to deposit the compensation amount and upon such deposit, the petitioner is entitled to withdraw entire amount at once. Advocate fee is fixed at Rs.1,000/- (Rupees two thousand only).

(Dictated to the stenographer and after her transcription; corrected and pronounced by me in the open Court on this 18th day of December, 2015.)

C H A I R M A N,

M.A.C.T.-CUM-V-ADDL. DISTRICT JUDGE,

WARANGAL.

APPENDIX OF EVIDENCE

WITNESSES EXAMINED

For Petitioner: For Respondents:

PW-1: E. Sudhakar. - None -

EXHIBITS MARKED

For Petitioner:

Ex.A-1 : Certified copy of FIR along with Complaint. Ex.A-2 : Certified copy of Charge Sheet. Ex.A-3 : Certified copy of Injury Certificate.

8 Ex.A-4 : X-ray films. Ex.A-5 : Medical Prescriptions. Ex.A-6 : Bunch of Medical bills.

For Respondent:

Ex.B1 : Copy of Insurance policy.

C H A I R M A N,

M.A.C.T.-CUM-V-ADDL. DISTRICT JUDGE,

WARANGAL.

9

1

IN THE COURT OF V ADDITIONAL DISTRICT JUDGE,

JANGAON

Present: Smt. Renuka Yara, II Addl. District Judge, FAC V.Addl. District Judge, Jangaon.

Friday, 22nd day of January, 2016.

A.S. 9 OF 2011

Between:

1. Gajula Kavitha.

2. Gajula Anoosa ….Appellant/Petitioner.

And

To whomsoever it may concern.

...Respondent/Respondent.

(Appeal against the Judgment and Decree passed in

O.P.3/2006, dated 10.04.2006 by the learned Junior Civil

Judge, Jangaon.)

Between:

1. Gajula Kavitha.

2. Gajula Anoosa …. Petitioner.

And

To whomsoever it may concern.

… Respondent.

This Appeal is coming for hearing before me in the presence of

Sri Sriram Srinivas, Advocate for the Appellant/petitioner and

Respondent/respondent is set exparte and having stood over the matter for consideration till date, this court delivered the following:-

J U D G M E N T

This is an appeal preferred aggrieved by the Judgment and decree passed by the learned Junior Civil Judge at Jangaon in

O.P.No.3/2006 dated 10.04.2006 dismissing the petition filed under

Sec.371 of Indian Succession Act filed for issuance of Succession 2 Certificate that the appellants/petitioners 1 and 2 are entitled to receive the insurance amount as L.Rs of the deceased Gajula

Venkakshwarlu from New India Assurance Company Policy,

Kamareddy Branch.

2.The brief facts of the case are that the appellant No.1 is the legally wedded wife and appellant No.2 is the minor daughter of the deceased Gajula Venkateshwarlu and resident of Akunoor village of Cherial Mandal, Warangal District. The marriage of the appellant

No.1 took place with the deceased G.Venkateshwarlu on 03.12.2000.

The appellant No.2 was born to appellant No.1 through

G.Venkateshwarlu. The deceased G.Venkateshwarly insured his life with New India Assurance Company for an amount of Rs.1,00,000/- vide Policy No.61605/31/02/04151. The appellant No.1 was mentioned as the nominee of said policy. The deceased died on 05.04.2003. After the death of the deceased they were quarrels between the appellant No.1 and parents of the deceased. As a result, the appellant No.1 was necked out from her matrimonial house. As legal heirs of the deceased G.Venkateshwarlu, the appellant No.1 pleaded that she is entitled to receive the L.I.C Policy amount. When the appellants approached the Insurance Company, the company demanded for succession certificate in proof of the appellants being the heirs of the policy holder. The appellants filed copy of legal heir certificate issued by M.R.O Cherial, Death Certificate issued by Gram

Panchayath, Akunoor as the original certificates are filed in the L.I.C

Office at Siddipet Branch for getting amount in another policy. In the circumstances the appellants filed the O.P seeking declaration that they are entitled to receive the policy amount from New India

Assurance Company, Kamareddy Branch.

3

3.The learned Junior Civil Judge, Jangaon considered the point as to, 'whether the petitioner Nos.1 and 2 are entitled for issuance of Succession Certificate to receive the policy amount of

Rs.1,00,000/- of the policy of late Gajula Venkateshwarlu from New

India Assurance Company, Kamareddy Branch?'

4.The appellants have filed xerox copy of Dependent

Certificate issued by the Village Secretary of Akunoor village and attested by M.R.O cherial. According to Dependent Certificate, the appellant No.1 is the wife, appellant No.2 is the daughter, Gajula

Narayana is the father and Gajula Nagamani is the mother of the deceased. The copy of death certificate shows that the deceased died on 05.04.2003. There is original letter from the New Indian assurance Company calling upon the appellants to furnish the legal heir certificate wherein the name of the Policy holder is shown as

G.Venkatesh. Since the appellants have failed to produce the original

Dependent Certificate and Death Certificate and because the name of the insured person is shown as G.Venkatesh and not as

G.Venkateshwarlu the learned Junior Civil Judge, Jangaon held that the appellants are not entitled to issuance of Succession Certificate and thereby dismissed the petition. Hence, this appeal.

5.In grounds of appeal, it is contended that there is a specific pleading that the Death Certificate issued by the concerned

Authorities is in the custody of L.I.C office, and therefore, a copy has been filed. Likewise, it is contended that other related documents are filed but the trial court has proceeded unilaterally on prior notions and dismissed the O.P despite there being no rival claims.

Hence, prayed that the petition be allowed.

6.Now the point for consideration is 'whether the order and decree passed by the learned Junior Civil Judge, Jangaon in 4

OP.NO.3/2006 is erroneous in facts and law, and therefore, liable to

be set aside?'

7.Perused the documents. As held by the learned Junior

Civil Judge, Jangaon, the O.P is filed on the basis of photo copy of

Dependent Certificate allegedly issued by Gram Secretary, Aknoor and attested by M.R.O, Cherial dt.07.03.2005 and true copy of Death

Certificate issued by Panchayath Secretary, Akunoor. There is original letter from New India Assurance Company requesting the appellant No.1 to submit Legal Heir Certificate. There is a copy of

F.I.R referring to an accident which occurred on 04.05.2003. None of these documents were marked in evidence except the letter issued by New India Assurance Company. None of the copies filed are admissible in evidence. The appellant's did not seek steps to lead

Secondary Evidence before the trial court. Likewise, no petition was filed before the appellate court to consider the documents filed

before the trial court but not marked.

8.There is absolutely no documentary proof on record to give a finding that the appellants are indeed legal heirs of the deceased G.Venkateshwarlu. Even if it is assumed for a moment that the appellants are legal heirs of the deceased, there is no means to ascertain whether G.Venkateshwarlu is the same as G. Venkatesh mentioned in the letter of New India Assurance Company. There is a pleading to the effect that the appellant No.1 is mentioned as the nominee in the policy. However, the original policy certificate is not produced before this court to even believe the version that

G.Venkateshwarlu and the Policy Holder G.Venkesh are one and the same and that the appellant No.1 is the nominee. It is true none appeared to contest the O.P but the same cannot be a ground for allowing the O.P in the absence of proof as to basic pleadings.

5 Hence, I see no reason to interfere with the findings given by the learned Junior Civil Judge, Jangaon.

9.In the result, the appeal is dismissed confirming the order and decree passed by the learned Junior Civil Judge, Jangaon in

OP.No.3/2006 dt.10.04.2006. No costs.

(Dictated to Personal Assistant, after her transcription, corrected and pronounced by me in the open court on this the 22nd day of January, 2016)

V-ADDITIONAL DISTRICT JUDGE,

JANGAON.

APPENDIX OF EVIDENCE

-Nil-

V-ADDITIONAL DISTRICT JUDGE,

JANGAON.

1

IN THE COURT OF THE V-ADDITIONAL. SESSIONS JUDGE ::

JANGAON.

Present:- Smt. Renuka Yara,

II-Addl. Sessions Judge,

F.A.C V.Addl.Sessions Judge,

Jangaon.

Friday, the 8thday of January, 2016.

CRIMINAL REVISION PETITION NO. 67 OF 2014.

Between:-

Sadu Venkat Narasimha Reddy S/o Srinivas Reddy, 35 yrs. Occ: Business r/o Ibrahimplur village, Chegunta Mandal, Medak District. .. Revision Petitioner/Petitioner/ Accused. AND

Emmadi Devender Reddy S/o Narayana Reddy, 44 yrs. Occ: Busienss r/o H.No.6-2-6/18-A, Sai Nagar, Jangaon. … Respondent/Respondent/ Complainant.

This Criminal Revision Petition coming on this day for final hearing before me in the presence of Sri Sreeram Srinivas,

Advocate for the Revision Petitioner and of Sri Y. Chandra Rushi,

Advocate for respondent and after hearing the arguments and having stood over for consideration, till this day, this Court delivered the following:-

:- O R D E R :-

1.This is revision petition preferred aggrieved by the docket order passed by the learned Judicial First Class

Magistrate, Jangaon in Crl.M.P.No.931/2013 in CC.No.2/2012

dt.21.04.2014.

2.The brief facts of the case that, the respondent/respondent/complainant got a complaint registered against the revision petitioner/petitioner/accused under Sec.138 2 of Negotiable Instrument Act. The revision petitioner opposed said complaint on the ground that there is no legally enforceable debt and that the complaint is filed without any documentary evidence to constitute cause of action. Hence, prayed that the revision petitioner be discharged.

3.This discharge petition was opposed by the respondent contending that the petition is filed only to drag the proceedings though the revision petitioner received loan of

Rs.83,000/-. The revision petitioner had issued a cheque and the same was returned as 'funds insufficient'. As such, the respondent had taken steps and got a complaint registered under Sec.138 of N.I.Act. After proper scrutiny, the Judicial First

Class Magistrate, Jangaon court took cognizance of the complaint under Sec.138 of N.I. Act but the petitioner did not turn up for several adjournments and the court was compelled to issue N.B.W. Subsequently, the petitioner got the N.B.W recalled and filed the discharge petition only to protract the matter. Hence, prayed that the petition be dismissed.

4.Upon examining the record, the learned Judicial First

Class Magistrate, Jangaon held that no reason is put forth by the petitioner for claiming that there is no ground to constitute offence under Sec.138 of N.I Act coupled with an observation that in case there are procedural lapses the same can be raised during trial and dismissed the petition. Hence, this revision.

5.In grounds of revision, it is contended that the trial court Magistrate failed to consider the arguments of the revision 3 petitioner with preconceived idea and it would be hazardous to ask the revision petitioner to face trial.

6.Now the point for consideration are:

1. Whether there are just and reasonable grounds to revise the docket order of the learned Judicial First class Magistrate, Jangaon in Crl.M.P.No.931/2013 in CC.No.2/2012 dt.21.04.2012?

2. Whether the revision petitioner is entitled to discharge from charge under Sec.138 of N.I.Act in CC. No.2/2012?

7. POINT NOs.1 & 2:

Perused the record. The case was transferred from the

Court of Principal Sessions Judge to this court on the point of jurisdiction. Notice was issued to both the parties about the transfer of the record from Principal Sessions Court to V.Addl.

Sessions Court. Thereafter several adjournments were given for

appearance of the revision petitioner and his Advocate while the counsel for respondent was present and represented ready for arguments. On account of continuous absence of the counsel for revision petitioner, the arguments of the revision petitioner are treated as heard and order is delivered based on the available record.

8.The discharge petition was considered by the learned Judicial First Class Magistrate, Jangaon and it is held that after considering the evidence a case has been taken cognizance under Sec.138 of Negotiable Instrument Act. Only after scrutinizing the material documents the court took cognizance for the offence under Sec.138 of N.I.Act against the revision petitioner. Such being the case, the revision petitioner 4 has to come up with proper reason for revising the order of the learned Judicial First Class Magistrate, Jangaon. However, there was no such initiation on the part of the revision petitioner. In the grounds of revision, it is mentioned that subjecting the revision petitioner to trial is hazardous. Except this ground there is no other ground that can be considered in review. Several adjectives are used against the order of the learned Judicial First

Class Magistrate, Jangaon. However, they do not in themselves make out a case for the revision petitioner to review the order of the trial court. Since no grounds are raised that warrant a revision, the docket order passed by the learned Judicial First

Class Magistrate, Jangaon, I see no reason to interfere with said order.

9.In the result, the criminal revision petition is dismissed confirming the docket order of the learned Judicial

First Class Magistrate, Jangaon in Crl.M.P.No.931/2013 in

CC.No.2/2012 dt.21.04.2014.

(Dictated to the stenographer and after her transcription; corrected and pronounced by me in the open Court on this the 8th day of January, 2016.)

V-ADDL. SESSIONS JUDGE,

JANGAON.