Dismissed

Gadamsetty Damodara Rao v. Gurram Subbarao

Andhra Pradesh HC11 Oct 2022SA/57/2022

Case brief

AI extract

What is this about?

In the second appeal against dismissal of a suit for permanent injunction, the High Court held that the plaintiff failed to prove possession and enjoyment of the property on the date of filing. Finding no substantial question of law involved under Section 100 CPC, the court dismissed the appeal.

What did the court decide?

Second Appeal dismissed at the stage of admission; no costs; pending miscellaneous petitions closed.

Gadamsetty Damodara Rao Vs Gurram Subbarao — Property and Title | Andhra Pradesh HC (2022)

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THE HON’BLE SRI SUBBA REDDY SATTI

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SECOND APPEAL No.57 of 2022

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JUDGMENT:-

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The unsuccessful plaintiff filed the above Second Appeal against the judgment and decree dated 23.11.2021 in A.S.No.217 of 2015 on the file of the VII Additional District Judge-cum-IV Additional Metropolitan Sessions Judge at Vijayawada, Krishna District, confirming the judgment and decree dated 30.04.2015 in O.S.No.652 of 2011 on the file of the I Additional Junior Civil Judge, Vijayawada, Krishna District.

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For the sake of convenience, the parties shall be referred to as they are arrayed in O.S.No.652 of 2011.

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Plaintiff filed O.S.No.652 of 2011 for grant of permanent injunction. In the plaint, it was contended inter alia that plaintiff was inducted into the plaint schedule property as a tenant for running City Hospitals and Pharmacy attached to it in the name and style of Sai Balaji Medical and Fancy on a monthly rent of Rs.2,000/-; that on 01.04.2004 the defendant handed over the schedule property; that at the time of settlement between the plaintiff and defendant

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through mediators namely G.N.V.Raman Rao and P.Narasimha Rao were present; that plaintiff deposited an amount of Rs.1,00,000/- with the defendant towards security; that the defendant refused to furnish any receipt for the said Rs.1,00,000/-; that defendant gave declaration stating that the plaintiff was a tenant for obtaining drug license; that plaintiff made arrangements and spent Rs.15,00,000/- for running Herbal Hospital and Fancy in the plaint schedule property and has been regularly paying rents; that the rent is being enhanced for every two years by 10%; that defendant after receipt of the rents for the month of May, 2011 demanded the plaintiff in the first week of June, 2011 to enhance Rs.5,000/- per month; that plaintiff offered rent for the month of June, 2011 in the month of July, 2011, the defendant refused to receive the rent; plaintiff sent a cheque on 05.07.2011 for Rs.2,660/- to the defendant for the month of July, 2011; that however, the defendant refused the same; that on 07.07.2011 defendant along with six others came to the schedule property and created havoc and took away some furniture from the schedule property; that while going away, they proclaimed that they will evict the plaintiff from the

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schedule property within ten days forcibly; plaintiff gave police report and filed the suit.

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Defendant filed written statement and contended inter alia that plaintiff was regular in paying monthly rents and plaintiff carried out his business for a period of six years and later he could not run his business for several reasons; plaintiff closed the business during the month of June, 2009 and committed default in paying monthly rents to the schedule property from 01.07.2009 at the rate of Rs.8,000/per month; that plaintiff has to pay Rs.1,84,000/- plus minimum electricity charges payable to the Department; plaintiff vacated the schedule property on 22.05.2011 and delivered vacant possession to the defendant; defendant leased out the schedule premises to one Batchu Venkata Subrahmanyeswara Ramesh on 04.06.2011 who is running business in the name and style of M/s Sri Venkata Durga Rice Corporation & General Stores in the schedule property on the monthly rent of Rs.8,000/- and eventually prays the Court to dismiss the suit.

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Basing on the pleadings, the trial Court framed the following issues:

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1. Whether the plaintiff is entitled for permanent injunction as prayed for?

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1. To what relief?

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During the trial, plaintiff himself is examined as P.W.1 and also examined P.W.2. Exs.A-1 to A-11 were marked on behalf of the plaintiff. On behalf of the defendant, he himself is examined as D.W.1 and got examined D.Ws.2 and 3. Exs. B-1 and B-2 were marked on behalf of the defendant.

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The trial Court on consideration of oral and documentary evidence dismissed the suit by judgment and decree dated 30.04.2015. The trial Court also recorded the finding that as on the date of filing the suit, plaintiff failed to prove his possession and enjoyment over the schedule property.

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Aggrieved by the said judgment and decree, the defendant filed A.S.No.217 of 2015 on the file of the VII Additional District Judge-cum-IV Additional Metropolitan Sessions Judge at Vijayawada.

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The lower appellate Court being the final fact finding Court framed necessary points for consideration and after

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considering both oral and documentary evidence dismissed the appeal by judgment and decree, dated 23.11.2021.

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Aggrieved by the judgments and decrees of the Courts below, the above second appeal is filed.

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Heard Sri M.V.V.R.Satyanarayana, learned counsel for the appellant.

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Learned counsel for the plaintiff/appellant would contend that plaintiff is in peaceful possession and enjoyment of the property on the date of filing of the suit. He would contend that the defendants have not examined any independent witness. He would also contend that plaintiff was evicted forcibly by the defendant and his henchmen by using criminal force and not caring the existence of injunction order dated 16.07.2011 granted by the learned trial Judge. Learned counsel also would contend that Exs.A-9 and A-10 prima facie proved possession of the plaintiff. He also would contend that plaintiff lodged a complaint with the police against the defendant and the police refused to take the report as the dispute is civil in nature. But subsequently, police registered FIR as a case in Crime No.516 of 2011 for

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the offences punishable under Sections 448, 427, 323, 380 and 506 r/w 34 of I.P.C of II Town Police Station, Vijayawada.

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Basing on the pleadings and contentions the following substantial questions of law would arise for consideration:

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1) Whether plaintiff proved possession over the suit schedule property on the date of filing of the suit?

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2) Whether the judgments of Courts below suffer from appreciation evidence?

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As per the pleadings and evidence on record, plaintiff was a tenant of the schedule property. Plaintiff was not in possession of the schedule property on the date of filing of the suit. Even going by the admission made by the plaintiff, he has not been in possession of the schedule property for the last three years. One Batuch Venkata Subrahmanya Ramesh was inducted into the schedule property as a tenant in the month of July, 2011 and he has been doing Rice business.

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The main ingredient for granting permanent injunction

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is that the plaintiff must to establish his possession over the schedule property as on the date of filing of the suit. But in the case on hand, the plaintiff failed to establish that he was

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in possession and enjoyment of the schedule property as on the date of filing of the suit. The finding recorded by trial court is basing on oral and documentary evidence on record.

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The appellate Court in fact considered all the exhibits in detail and considering Ex.A-10 electricity bill from 1/2009 to 12/2011 for 6435318081876 of APSPDCL issued on 16.04.2013. Appellate Court recorded finding that there is no signature of any authorized person on Ex.A.10. Regarding numbers, appellate Court recorded finding that the bills were dated 16.04.2013 nearly two years after filing of the suit and hence no reliance can be placed on Exs.A-10 and A-11. Regarding Ex.A.9, copy of the report given by plaintiff to the police Commissioner, Vijayawada that the alleged incident took place on 22.07.2011, but Ex.A.9 is dated 16.08.2011 i.e., twenty four days after the alleged incident. Ex.A.9 is not sent to II Town Police, but it is addressed to Police Commissioner, Vijayawada. Thus appellate court being the final fact finding court having considered the evidence on record independently recorded findings.

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The plaintiff himself admitted in his cross examination that he did not pursue the said crime and he does not know

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whether the police have referred the said crime as false after investigation. Appellate Court also considered the different version put forth by the plaintiff in Ex.A-9 and in his evidence. Both the Courts below considered the evidence of P.W.2- brother of plaintiff. P.W.2 admitted that Batchu Venkata Subrahmanyeswara Ramesh was a tenant in the month of July, 2011. Plaintiff filed the suit for injunction has to plead and prove that he is in possession and enjoyment of the plaint schedule property. However, plaintiff failed to prove that he is in possession of the property on the date of filing of the suit. In fact, both the Courts came to the conclusion that plaintiff vacated the premises on 22.05.2011 and the findings recorded by the Courts below are based on appreciation and there is no perversity.

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The scope under section 100 CPC is no longer res integra . The Hon’ble Apex Court in Hero Vinoth Vs. Seshammal¹ , held thus:

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“ 19 . It is not within the domain of the High Court to investigate the grounds on which the findings were arrived at, by the last court of fact, being the first appellate court. It is true that the lower appellate court should not ordinarily reject witnesses accepted

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1 AIR 2009 SC 1481

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by the trial court in respect of credibility but even where it has rejected the witnesses accepted by the trial court, the same is no ground for interference in second appeal when it is found that the appellate court has given satisfactory reasons for doing so. In a case where from a given set of circumstances two inferences of fact are possible, one drawn by the lower appellate court will not be interfered by the High Court in second appeal. Adopting any other approach is not permissible. The High Court will, however, interfere where it is found that the conclusions drawn by the lower appellate court were erroneous being contrary to the mandatory provisions of law applicable or its settled position on the basis of pronouncements made by the Apex Court, or was based upon inadmissible evidence or arrived at by ignoring material evidence.

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It was furthermore held:

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23 . To be "substantial" a question of law must be debatable, not previously settled by law of the land or a binding precedent, and must have a material bearing on the decision of the case, if answered either way, insofar as the rights of the parties before it are concerned. To be a question of law "involving in the case" there must be first a foundation for it laid in the pleadings and the question should emerge from the sustainable findings of fact arrived at by court of facts and it must be necessary to decide that question of law for a just and proper decision of the case. An entirely new point raised for the first time

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before the High Court is not a question involved in the case unless it goes to the root of the matter. It will, therefore, depend on the facts and circumstance of each case whether a question of law is a substantial one and involved in the case, or not; the paramount overall consideration being the need for striking a judicious balance between the indispensable obligation to do justice at all stages and impelling necessity of avoiding prolongation in the life of any lis. ( See Santosh Hazari v. Purushottam Tiwari MANU/SC/0091/2001 ).

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24 . The principles relating to Section 100 CPC, relevant for this case, may be summerized thus:-

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(i) …

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(ii) The High Court should be satisfied that the case involves a substantial question of law, and not a mere question of law. A question of law having a material bearing on the decision of the case (that is, a question, answer to which affects the rights of parties to the suit) will be a substantial question of law, if it is not covered by any specific provisions of law or settled legal principle emerging from binding precedents, and, involves a debatable legal issue. A substantial question of law will also arise in a contrary situation, where the legal position is clear, either on account of express provisions of law or binding precedents, but the court below has decided the matter, either ignoring or acting contrary to such legal principle. In the second type of cases, the

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substantial question of law arises not because the law is still debatable, but because the decision rendered on a material question, violates the settled position of law.”

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In second appeal, this Court while exercising jurisdiction under Section 100 of the CPC, must confine to the substantial question of law involved in the appeal. This Court cannot re-appreciate the evidence and interfere with the findings of the Courts below where the Courts below recoded the findings judicially by appreciating both oral and documentary evidence. Further the existence of substantial question of law is the sine qua non for the exercise of jurisdiction. This Court cannot substitute its own opinion unless the findings of the Court are manifestly perverse and contrary to the evidence on record.

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In the present case, both the Courts below considered evidence on record in a proper perspective and recorded the findings. The findings recorded by the Courts below are neither perverse nor misconstruction of documents or misleading evidence. No question of law much less substantial question of law involved in the above second appeal which brook interference of this Court under Section

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100 CPC. Thus, second appeal same is liable to be dismissed.

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Accordingly, this Second Appeal is dismissed at the stage of admission. No costs.

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As a sequel, pending miscellaneous petitions, if any, shall stand closed.

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__________________________________ JUSTICE SUBBA REDDY SATTI

Date: 11.10.2022 KA

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THE HON’BLE SRI SUBBA REDDY SATTI

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SECOND APPEAL No.57 of 2022

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Dated 11.10.2022 KA

Gadamsetty Damodara Rao v. Gurram Subbarao

Case brief

What is this about?

What did the court decide?

Gadamsetty Damodara Rao v. Gurram Subbarao

Case brief

What is this about?

What did the court decide?

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