| SooperKanoon Citation | sooperkanoon.com/433369 |
| Subject | Civil;Property |
| Court | Andhra Pradesh High Court |
| Decided On | Sep-17-1993 |
| Case Number | Civil Revision Petition No. 2634 of 1993 |
| Judge | G.V.L. Narasimha Rao, J. |
| Reported in | 1993(3)ALT359 |
| Acts | Code of Civil Procedure (CPC) , 1908 - Sections 115 - Order 39, Rule 1; Specific Relief Act, 1963 - Sections 6(1) |
| Appellant | Acme Tiles and Building Products, Rep. by Its Prop. Narra Kotaiah |
| Respondent | B. Sudarshan and ors. |
| Appellant Advocate | M.V. Ramana Reddy, Adv. for ;M. Ravindernath Reddy and ;J. Parbhakar, Advs. |
| Respondent Advocate | P. Ramachandra Reddy and ;P.V.S. Kumar, Advs. |
| Disposition | Petition allowed |
G.V.L. Narasimha Rao, J.
1. This revision petition is directed at the instance of the petitioner-plaintiff against the order passed in I.A.No. 1410 of 1992 in O.S.No. 6258 of 1991 on the file of the X Assistant Judge, City Civil Court, Hyderabad.
2. The petitioner-plaintiff filed O.S.No. 6258 of 1991 on the file of the IX Assistant Judge, City Civil Court, Hyderabad against the respondents-defendants for perpetual injunction restraining the respondents-defendants from interfering with its peaceful possession and enjoyment of the plaint schedule property. Along with the suit, the petitioner-plaintiff filed a petition I.A.No. 1131 of 1991 under Order 39, Rule 1, CPC praying for an interim injunction.
3. On an appraisal of the oral and documentary evidence adduced by both parties and also the commissioner's report, the trial Court partly allowed I.A.No. 1131 of 1991 with the following observations:
(a) The respondents 1 to 4 and their men are restrained from interfering with the possession of the petitioner-plaintiff over the open land marked as 11, 12 and 13 i.e., to the extent of 13 from the wall and also the leased out constructed premises of the petitioner-plaintiff without due process of law:-
(b) The petitioner-plaintiff can use the open land which is situate towards Eastern side of the main gate for all its business purposes without causing inconvenience to the respondents-defendants:
(c) The respondents 1 to 4 defendants 1 to 4 are permitted to demolish their constructed old premises in careful manner without causing any type of damage to the leased out, constructed premises of the petitioner-plaintiff which is abutting to the constructed leased out premises of the respondents-defendants;
(d) That Sri P. Balaram Reddy, Advocate-cum-Commissioner who is appointed to supervise the demolition of constructed premises of respondents-defendants and the said Commissioner is hereby directed to intimate the date and time of execution of the demolition work of both portions. We shall take all necessary measures to see that respondents 1 to 4-defendants 1 to 4 can demolish their premises in a careful manner without causing any damage to the constructed premises of the petitioner-plaintiff. In case, if any damage occurs, the respondents 1 to 4-defendants 1 to 4 shall undertake the demolition work. His fee is fixed at Rs. 500/- to be payable by each party.
4. Having been aggrieved by the above said order passed by the learned IX Assistant Judge, City Civil Court, Hyderabad, in so far as it went against each of them, both the parties preferred appeals in the Court of the Additional Chief Judge, City Civil Court, Hyderabad, viz., the petitioner-plaintiff preferred CMA No. 11 of 1992 while the respondents-defendants preferred CMA No. 27 of 1992. After hearing both parties, the learned Additional Chief Judge, City Civil Court, Hyderabad disposed of both the appeals by his common judgment dated 25-9-1992 by making the following order:
(1) There shall be an injunction against the respondents-defendants from in any way interfering with the possession and enjoyment of the the property leased out to the petitioner-plaintiff as per Exs. A-26 and A-27;
(2) There shall be an injunction against the respondents-defendants restraining them from interfering with the possession and enjoyment by the petitioner-plaintiff of the open land towards the East of the main gate for the limited purpose of having free ingress and egress to it and its vehicles to the demised premises;
(3) The respondents-defendants are hereby restrained from effecting demolition of the built up area adjoining the built up area leased out to the petitioner-plaintiff till further directions by the trial Court in terms of the observations made in the foregoing paragraphs of this judgment in regard to the appointment of a commissioner with engineering knowledge etc.,
(4) The appeals are dismissed in all others respects.
5. It appears that after the disposal of the appeals by the learned Additional Chief Judge, City Civil Court, Hyderabad, the 1st respondent in CMA No. 27 of 1992 who is no other than the 1st appellant in CMA No. 11 of 1992 (respondent No. 1 in the present CRP) filed review petitions in both the appeals seeking review of the common judgment rendered by the learned Additional Chief Judge to clarify clause No. 2 in the operative portion of the judgment on the ground that the present tax of the said clause is ambiguous and is amenable to be interpreted in such a way that the said clause takes away the part of the relief granted by the trial Court which is not appealed against by either party.
6. After hearing both parties, the learned Additional Chief Judge allowed the review petitions and Clause 1 in the result portion of his judgment is reviewed as under:
'There shall be an injunction against the respondents-defendants from in any way interfering with the possession and enjoyment of the property leased out to the petitioner-plaintiff as per Exs. A-26 and A-27, viz., portions denoted as 1 to 10 only and demarcated in red colour excluding 11 to 13 in the sketch plan annexed to the petition and plaint subject to the right of both parties to the user of the stair-case in the room, denoted as No. 6'.
7. However, having been aggrieved by the judgment and decree passed by the learned Additional Chief Judge, City Civil Court in CMA No. 27 of 1992 dated 25-9-1992, Civil revision petition No. 4097/92 was/preferred by the petitioner-plaintiff.
8. In order to appreciate the rival contentions of the parties, it is necessary to refer to the brief facts of the case, which are as follows: The petitioner-plaintiff is a proprietory concern carrying on its business in the manufacture and sale of mosaic tiles. One Smt. Badrunnisa Begum, wife of late Nawab Iqbal Ali Khan and her sons and daughters were the landlords and absolute owners of the plaint schedule premises bearing No. 1-7-151, Bakaram, Musheerabad, Hyderabad. In the year 1959 one Mr. K.B. Subrahmanyam started the industry for the manufacture and sale of mosaic tiles in the above said premises under the name and style of 'Acme Tiles & Building Products'. The management of the said concern has been changed from time to time and ultimately in the year 1974 Narra Kotaiah became the sole proprietor for the said business and he has been running the same under the very same name and style, viz., M/s Acme Tiles & Building Products, the petitioner-plaintiff. The said concern has been a tenant and has been in enjoyment of the premises marked in red colour in the plaint plan and the pathway marked in dotted line and numbered as 14, except the portion numbered as 11, 12 and 13 since 1958. However, the petitioner-plaintiff took on lease the above excepted portion viz., portion marked as 11, 12 and 13 in the plan in the year 1976 and since there was an expansion in the business and as it was found that the portion in its occupation was not sufficient for dumping the silt and broken tiles etc., the petitioner-plaintiff took on lease the open land beyond 8, 9, 10, marked portion, from the landlords in the year 1976 and as a consequence the then existing rent of Rs. 350/- was enhanced to Rs. 500/- per month. Eversince the commencement of the tenancy the petitioner-plaintiff and its predecessors have been using the pathway, numbered as 14, for movement of the vehicles and this right of pathway is being used by the petitioner-plaintiff and its predecessors in title for the last more than 35 years without any sort of interruption or objection from any person including the landlords, and the neighbours to whom the balance of the open land was leased out. The petitioner-plaintiff submits that it has been paying the rents regularly. It is the further case of the petitioner-plaintiff that in the year 1979 it appears that the landlords entered into an agreement of sale with respondents-1 to 4 -defendants 1 to 4 for sale of the suit schedule property and subsequently, it appears, there were disputes inter se between the agreement holders and the landlords which culminated into filing of a civil suit which ultimately resulted in executing a registered sale deed by the Court in favour of respondents 1 to 4 - defendants 1 to 4. When this fact was brought to the notice of the petitioner-plaintiff in the year 1990, the petitioner-plaintiff commenced to pay the rents regularly to the 1st respondent-1st defendant who is receiving the same on behalf of the respondents 2 to 4 - defendants 2 to 4 also. After the purchase of the property by the respondents-defendants they wanted to evict the petitioner-plaintiff high-handedly and having failed in their attempts, they in collusion with the 5th defendant-Municipal Corporation and their officials, obtained sanction plan showing the entire building existing in premises No. 1-7-151 including the suit schedule property as demolished. According to the petitioner-plaintiff it is absolutely false and it asserts that the building is still in existence and the petitioner-plaintiff is running its business by paying rents regularly. The respondents-defendants appear to have obtained permission for construction of a row of houses consisting of 12 flats, behind the back of the petitioner-plaintiff. About one week prior to the filing of the suit, the petitioner-plaintiff submits that the respondents-defendants and their agents started digging pits in the open area. Therefore, the petitioner-plaintiff has filed the suit for perpetual injunction and has filed the present petition for interim injunction.
9. The respondents-defendants while admitting that the petitioner-plaintiff, is a tenant in respect of a portion of the suit premises, admeasuring 550 square yards, denied that the portion marked as 11, 12 and 13 has never been leased out either to the petitioner-plaintiff or to its predecessor at any time. The petitioner-plaintiff has not been in enjoyment of the so called pathway. According to the respondents-defendants, they purchased the premises from the landlords of the petitioner-plaintiff and as the landlords failed to execute the sale deed, they filed a suit and ultimately the Court has executed a registered sale deed in their favour in the year 1989 on behalf of the landlords. Subsequently they have applied for permission for construction of flats and obtained the same. The petitioner-plaintiff knew all the steps taken by the respondents-defendants and it has agreed to vacate the premises. The respondents-defendants are entitled for demolition of the old building for the construction of a new building. The lease in favour of the tenants was terminated by the then landlords through a legal notice dated 7-11-1977 and the petitioner-plaintiff was directed to hand over possession to the landlords. Finally the tenants have handed over possession of the demised leased out areas to the then landlords through their letter dated 20-7-1982. According to the respondents-defendants there is neither a prima facie case nor is there any balance of convenience in favour of the petitioner-plaintiff.
10. The learned Additional Chief Judge felt that xerox copies without authentication cannot be received in evidence. He, however, found that Exs. A-1 and A-2 can be taken into consideration.
11. The case of the petitioner-plaintiff is mat a portion of the plaint schedule property was leased out in the year 1963 by the vendors of the respondents-defendants for running the industry for the manufacture and sale of mosaic tiles. The said concern changed hands from time to time and ultimately in the year 1974 the petitioner-plaintiff became the sole proprietor of the said business and he has been running the same under the same name and style, M/s. Acme Tiles' & Building Products. Its is also the further case of the petitioner-plaintiff that in the year 1976 it took on lease portions marked as 11, 12 and 13 and sebsequently the open land beyond 8, 9 and 10 and as a consequence the then existing rent of Rs. 350/- was enhanced to Rs. 500/- per month. On the other hand, the case of the respondents-defendants is that they obtained a decree against the landlady and they got a sale deed executed through Court and so they are entitled for possession and that the permission for construction of houses was also granted in their favour. But it may be noted at this juncture itself that they obtained approval of the plan on the basis of the misrepresentation that the existing buildings were already demolished. Since the unit of the petitioner-plaintiff concern is in existence, the allegation that has been made before the 5th defendant-Municipality for obtaining permission that the buildings were already demolished is not correct. Under the guise of the order of the interim suspension granted by this Court in a writ petition when the 5th defendant cancelled the permission it appears that the respondents-defendants are carrying on with the construction. However, this Court considered the question as to whether the lower appellate Court is justified in modifying the order passed by the lower Court. For the purpose of determining the contention of both the parties, this Court considered as to who is in possession of the suit property on the date of filing of the suit. Admittedly no possession was deivered by the vendors of the respondents-defendants to the respondents defendants. It is only a decree that has been granted in favour of the respondents defendants and pursuant to that decree a sale deed was executed by the Court in their favour. So, the Court has gone by the finding of the Commissioner, who was appointed by the Trial Court, as to the nature of possession as on the date of filing of the suit. It may be necessary to extract the salient features of the Commissioner's report as it would help to a large extent in deciding the issue on hand.
12. According to the Commissioner, the entire premises is surrounded by 15 to 20 height walls and in the open place towards Southern side in the middle there is waste material consisting of rubbish, small stones, dried cement small lumps etc., belonging to the petitioner-plaintiff. After the above said open place towards Southern side, construction is going on in two blocks of area. Towards Eastern side of the construction, there is open space and in the open space towards Southern side huge quantity of silt is dumped and according to the opinion of the Commissioner, that silt dump exists for a very long time Towards Northern side of the open space opposite to the dump silt area, there are about 2 to 3 trucks of broken tiles which are kept in a mound shape The Commissioner has further stated in his report that due to excavation for the purposes of columns construction and foundation, the loose soil is spread over the area and the other construction materials are lying in the area and therefore it is difficult to know the pathway with a naked eye as per the sketch plan For the sake of convenience, the Commissioner has given numbers for each item of his inspection. It is important to extract item Nos. 6, 8, 9, 10, and 20 in the Commissioner's report which are as under:
x x x x x x x x x x x x x x
(6) Mixing room with stair case to go to roof top.
(8) Godown - here about 300 bags of marble chips are kept There is partition wall towards western side of the room with cementing without white wash. It is not a new partition wall.
(9) Room - this room leads to the outside door of the factory towards northern side of the entrance. There is water meter in the room towards right side from the entrance.
(10) Room in this room, I found 150 bags of different colours of marble chips stocked. There is a door towards southern side of the room and it is closed with cement wall upto 5 feet height and leaving about 1 1/2 feet gap at the top. There is also door towards western side and the same is totally closed.
x x x x x x x x x x'
(20) Grill Gate - for ingress and egress for the purpose of coming out of production space and also the stock yard to the silt dump area This grill gate is old one and rusted. Green Colour was originally put but it is peeled off at different places of the gate. Rust is visible. The grill gate is under use. Path is also seen through the grill gate. It measures 6 1/2 feet by 2 1/2 feet. When one comes out of the said grill gate, to left side we find the silt mound and towards right the broken tiles are lying. The silt mound is of the highest of 12 feet and it is in slant position. The broken tiles are of the height of 5 feet height. The wall is very old. There is plastering around the grill gate and also at other places and the cement plastering was not new one.'
13. From the above observations made by the Commissioner and the situation of the material, all indicates that the site is being utilised by the petitioner-plaintiff since a long time on and prior to the date of filing of the suit. In view of this circumstance the allegation of commencement of lease from 1976 assumes importance. It is a matter that has to be considered in a full dressed trial and it has to be ascertained whether the additional accommodation, other than the one mentioned in Exs.A-1 and A-2, is the one that has been leased out or not. But the fact remains that the area covered by 11, 12 and 13 is in possession and enjoyment of the petitioner-plaintiff to the knowledge of the owners. There may be some bad blood running between the respondents-defendants and their vendors. Having found that from the material available on record it is clear that the property was under the pressure of heavy litigation since a long time and having observed that the evidence adduced by the petitioner-plaintiff only establishes his possession of a part of the suit schedule property, it is not desirable for the lower appellate Court to hold that the injunction granted by the trial Court in respect of items 11 to 13 in the paint plan is not proper. When the petitioner-plainitiff was not treated as a trespasser and when he was found to be in possession of the land and when the vendors of the respondents-defendants have not admitted possession of the property to the respondents-defendants, the respondents-defendants have no right at all to disturb the petitioner-plaintiff without taking recourse through a Court of law. In this connection a perusal of Sub-section (1) of Section 6 of the Specific Relief Act is necessary which is as under:
'6. Suit by person dispossessed of immovable property:-
(1) If any person is dispossessed without his consent of immovable property otherwise than in due course of law, he or any person claiming through him may, by suit, recover possession thereof, notwithstanding any other title that may be set up in such suit.
(2) No suit under this section shall be brought-
(a) after the expiry of six months from the date of dispossession; or
(b) against the Government.
(3) No appeal shall lie from any order or decree passed in any suit instituted under this section nor shall any review of any such order or decree be allowed.
(4) Nothing in this section shall bar any person from suit to establish his title to such property and to recover possession thereof.'
14. It is the settled principle of law that a person in possession of the property to the knowledge of the landlord at the time when he occupied the said land, cannot be evicted otherwise than in due course of law even though the respondents-defendants have obtained a sale deed through a competent Court. It must also be remembered that the petitioner-plaintiff-unit has been in existence on the plaint schedule property since a long time and it is not proved that the petitioner-plaintiff-Unit was dispossessed at any time and when they are continuously in possession, it must be presumed that they are the tenants of the original owners under Exs.A-1 and A-2 and they are dumping the material and other waste on the site marked as 11, 12 and 13. The only course left open to the respondents-defendants is to approach the competent Civil Court having jurisdiction for the eviction of the petitioner-plaintiff. Even a trespasser who is in continuous possession since a long time prior to and on the date of the suit, he can maintain a suit for injunction. It is not a suit for declaration of title.
15. It is the duty of the Court to find out prima facie case and balance of convenience. In the existing facts of the case, this Court felt that there is a prima facie case, more in favour of the petitioner-plaintiff and balance of convenience is also in their favour. The fact that he is in possession of the suit premises without being disturbed by the original owner by paying rents regularly and the fact that the Commissioner also found on physical verification that the petitioner-plaintiff-unit is in possession is a clear indication which shows that prima facie case is in his favour and balance of convenience also lies in his favour As already stated that as the possession of the petitioner-plaintiff in respect of the suit premises including portions marked as 11, 12 and 13 has already been established prima facie and that he was not disturbed by any one till the date of filing of the suit and as the conduct of the respondents-defendants in obtaining permission for construction of the flats behind the back of the petitioner-plaintiff on misrepresentation that the existing structure of the petitioner-plaintiff also were demolished and started construction all this is a clear proof of high-handed acts of the respondents-defendants and consequent upon the acts committed by the respondents-defendants irreparable loss will also be caused to the petitioner-plaintiff concern. When the petitioner-plaintiff is in continuous possession paying enhanced rent, his possession cannot be disturbed without recourse to law. Arrangement that was existing prior to the filing of the suit about the enjoyment of the petitioner-plaintiff shall be continued. If the respondents-defendants are allowed to make constructions as per the approved plan which was obtained behind the back of the petitioner-plaintiff, definitely it will deprive the right of the petitioner-plaintiff and it will lead to further complications.
16. It must be remembered that while admitting the writ petition, this Court granted interim suspension of the cancellation order passed by the Municipal Corporation but this Court never permitted the respondents-defendants to make further constructions under the guise of that suspension order. The case mainly rests at this stage on the findings of the Commissioner about the possession and occupation of the land by the petitioner-plaintiff by taking into account the physical features of the property.
17. Another circumstance which has to be taken notice of is that the respondents-defendants without the knowledge of the petitioner-plaintiff filed a petition before the Municipal authorities for approval of the plan stating or misrepresenting that the existing buildings were already demolished which is believed by the Commissioner in his report.
18. The learned Judge of this Court allowed CRP No. 4097 of 1992 by setting aside item No. 1 of the judgment of the lower appellate Court and restored the order of the trial Court in so far as the portion marked as 11, 12 and 13. The learned Single Judge of this Court observed that however the finding of the lower Court as given in items 2 and 3 of his judgment will stand.
19. The respondents-defendants filed I.A.No. 1410 of 1992 in O.S.No. 6258 of 1991 on the file of the X Assistant Judge, City Civil Court, Hyderabad, under Order 26 Rule 9, read with Order XXXIX, Rule 7 read with Section 151 CPC praying to appoint a Commissioner-Engineer for taking further steps in demolition work in respect of the suit property with immediate effect, keeping in view of the urgency because the earlier demolition work stopped for the period of end of January, 1992 to till the order passed in the said Interlocutory Application. After hearing both parties, the learned X Assistant Judge passed the following order:
'The Commissioner has filed an interim report stating that the rooms of the stair case and the rooms Nos. 2, 3, 4 were stored with full of material bags such as marble chips, marblestone powder and stone dust with hardly any approach of enter in the rooms. Therefore it is not possible to undertake the execution of demolition work unless the material is shifted to the vacant space already available in the leased portion. Hence the Commissioner sought permission for shifting all the said material in one of the leased out portion to proceed with the further demolition work. The Commissioner has not specified as to who is the owner of the property which was kept in the said rooms. As per the clarification given in I.A.No. 678 of 1992 in CMA No. 11 of 1992 on the file of the Additional Chief Judge, City Civil Court, Hyderabad, dated 24-11-1992, there is an injunction in favour of the plaintiff, with regard to lease hold property. In the above said order the appellate Court made the following clarifications:
'That there shall be an injunction against the defendant from in any way interfering with the possession and enjoyment of the property leased out to the plaintiff as per exs. A-26 and A-27. The portion denoted as Nos. 1 to 10 only demarcated in red colour excluding 11 to 13, in the sketch plan annexed to the petition and plaint subject to the right of both parties to the user of the stair case in the room denoted as No. 6'.In view of the above said observations of the appellate Court an interim injunction is confined to the portion denoted as Nos. 1 to 10 which is demarcated in red colour in the sketch plan annexed to the plaint. As can be seen from the sketch plan of the plaint, the portion to the west of the staircase to the extent of one room is also shown in red colour in it. But as per the lease deed the plaintiff has got leasehold rights upto the staircase which is denoted room No. 6. The Sketch plan annexed to the lease deed does not show that the plaintiff has got any right over the portion to the west of the room No. 6. Hence, Commissioner is directed to carry out the demolition work in accordance with the observations made by the appellate Court referred to above. If any material placed in the rooms which is to be demolished, the Commissioner can remove the material and hand over them to the owner of the property and then carry out the demolition work. But the Commissioner cannot shift the material that were found in the rooms to the one of the rooms of the lease-hold property which is in possession of the plaintiff as injunction is existing in favour of the plaintiff. If no one is coming forward to take the material that were kept in the rooms to be demolished within a week, the Commissioner can obtain necessary orders from the Court. The Commissioner is further directed to carry out the demolition work in accordance with the orders issued by this Court'.
20. The Commissioner-Engineer filed his interim report and the petitioner-plaintiff filed objections to the report of the Commissioner. No doubt in paragraph 12 of the objections, the petitioner-plaintiff made certain allegations against the Commissioner-Engineer and prayed to discharge the said Commissioner and to appoint another Engineering Commissioner or in the alternative the Commissioner maybe directed to act as a true representative of the Court by demarcating the portion denoted in red colour in the plaint plan at the spot and suggest ways and means to construct the supporting wall technically uninfluenced by the fact that the petitioners therein are his clients. I do not want to go into the various objections raised by the petitioner-plaintiff to the report submitted by the Commissioner-Engineer.
21. Sri M.V. Ramana Reddy, the learned senior Counsel on behalf of the petitioner-plaintiff strenuously contended that the lower Court committed a grievous error in the exercise of the jurisdiction vested in it in giving directions contrary to the appellate Court which have become final, that Clause 1 of the order of the appellate Court in CMA Nos. 11 and 27 of 1992 which reads 'that there shall be an injunction against the defendant from in any way interfering with the possession and enjoyment of the property leased out to the plaintiff as per Ex. A-26 and A-27 viz., portion denoted as Nos. 1 to 10 only and demarcated in red colour excluding 11 to 13 in a sketch plan annexed to the petition and the plaint subject to the right of both parties to use of the staircase in the room denoted as No. 6', but the learned Assistant Judge passed an order directing the Engineer-Commissioner to demolish the portion towards the West of the staircase by extracting the order of the appellate Court by omitting some words, that the order granting injunction in I.A. No. 1131 of 1991 restraining the respondents-defendants from interfering with the possession of the petitioner-plaintiff with respect to the places marked as 1 to 10 and demarcated in red colour including the places marked as 11, 12 and 13 has become final, which means, the entire red colour portion except pathway shown as 14 is in possession of the petitioner-plaintiff and that the respondents-defendants are not entitled to disturb his possession of the same.
22. Sri P. Ramachandra Reddy, the learned senior Counsel on behalf of the respondents-defendants submitted that the order passed in I.A.Nos. 678 and 679 of 1992 in CMA Nos. 11 and 27 of 1992 dated 24-11-1992 is virtually a consent order and the lower Court passed the impugned order in similar lines and within its jurisdiction.
23. Aggrieved by the order passed by the lower Court on 21-7-1993 in I.A.No. 1410 of 1992 in O.S.No. 6258 of 1991, the above revision petition has been filed. Along with the revision petition, the petitioner-plaintiff filed CMP No. 11896 of 1993 praying to stay all further proceedings pursuant to the orders passed by the IX Assistant Judge, City Civil Court, Hyderabad in I.A.No. 1410 of 1992 in O.S.No. 6258 of 1991 dated 21-7-1993 but no orders have been passed thereon. The petitioner-plaintiff also filed another petition, CMP No. 11897 of 1993 praying to appoint an advocate-commissioner to inspect the suit schedule property, and on 6-9-1993 the following order has been passed:
'Sri M.V. Ramana Reddy, learned senior Counsel appearing for the petitioner stated that this application itself was filed for appointment of Commissioner and that he wants to withdraw the application with a liberty to move similar application in the trial Court. Accordingly the CMP is dismissed as with liberty to move similar application in the trial Court'.
The petitioner-plaintiff filed yet another petition, CMP No. 11898 of 1993 praying the Court to grant an ad-interim injunction restraining the respondents-defendants, their men, agents and servants from interfering or altering the nature and character of the portion of the building/place where the demolition was carried out by the Engineering Commissioner and the respondents-defendants on 24-7-1993 onwards and to permit the petitioner-plaintiff to continue to use the same pending disposal of the revision petition. But no orders have been passed on the said petition.
24. When this revision petition has been listed my learned brother P.L.N. Sarma, J., passed the following orders:
'26-7-1993:
Sri P. Ramachandra Reddy, learned senior Counsel appearing for the respondents requested time till Thursday for producing plaint plan since he is disputing the copy of the plan filed by Sri M.V. Ramana Reddy, learned senior Counsel appearing on behalf of the petitioner.
Post on Thursday to enable the contesting respondents to produce the plaint plan copy.
Meanwhile, status quo obtaining as on to-day shall be maintained. There shall be a direction to the Engineer-Commissioner, appointed by the lower Court to stop further demolition forthwith.
Post on Thursday.
The lower Court is also directed to send the copy of the plaint plan attached to the plaint by Wednesday.'
'30-7-1993:
In addition to the order which I have passed on 26-7-1993, I further direct the respondents not to raise any construction in the portion demolished by the Engineer-Commissioner. Post on Tuesday.'
3-8-1993:
Sri P. Ramachandra Reddy seeks ten days time for filing counter. Post the CRP on 13-8-1993. Meanwhile the lower Court is directed to send a copy of the Commissioner's report, if submitted, to this Court. In case the Commissioner has not yet submitted any report, he may be directed to submit the report and a copy thereof should be sent to this Court on or before 13-8-1993. The counsel for the petitioner is permitted to serve notice of the CRP to the Commissioner. The lower Court is also requested to give the information on or before 13-8-1993 whether any Warrant was issued to the Engineer-Commissioner on or after 27-7-1993.
Post on 13-8-1993.'
13-8-1993:
This is set down today for being mentioned. It is represented that the date '27-7-1993' mentioned in the last portion of the order dated 3-8-1993 is a mistake. It should read as '21-7-1993'. Both parties agreed for the same. Therefore, substitute '21-7-1993' for '27-7-1993' which is mentioned in the last portion of my order dated 3-8-1993.
Post on 16-8-1993.
6-9-1993:
Admit.
The interim orders which I have already passed will continue until further orders.
Sri M.V. Ramana Reddy, learned senior Counsel for the petitioner stated that there is urgency in the matter since both demolition as well as the construction are stayed and therefore requested for an order directing the CRP to be posted tomorrow itself. I am also of the opinion that the CRP may be posted tomorrow itself. This will be brought to the notice of the Hon'ble the Acting Chief justice by the Registrar (Judicial) and obtain appropriate orders regarding posting.
Per HCI
Post before Sri G.V.L.N.R., J.,'
25. In pursuance of the directions given by this Court, the lower Court furnished the information called for as directed on3-8-1993. In the letter written by the learned IX Assistant Judge, City Civil Court, Hyderabad addressed to the Registrar (Judicial) it was categorically stated that in pursuance of the order passed by this Court on 21-7-1993, either on 21-7-1993 or subsequently thereto, this Court (lower Court) did not issue any fresh warrant to the Engineer-Commissioner. From the records furnished by the lower Court on 23-7-1993, the Engineer-Commissioner issued notices to the Counsel on both sides. The Counsel for the petitioner-plaintiff made an endorsement which is to the following effect:
'Received notice to-day at 5 p.m. My client's mother expired four days back or so. Moreover I am also not likely to be in town for the rest two days. my client's mother expired in the village in Guntur district. To my knowledge he is out of station. You may therefore fix a date on next Sunday. Kindly also furnish a copy of warrant so as to enable us to see the scope.'
26. On 24-7-1993 the Counsel for the petitioner-plaintiff addressed a letter to the Commissioner stating that the mother of the petitioner-plaintiff expired on 18-7-1993 at Oletivaripalem, Village, Prakasam district. While leaving to his village, he had informed him about the death of his mother and as such he is not in a position to take appropriate steps in the matter or assist the Commissioner in execution of the Commission work. It is also stated in the letter that he is enclosing a copy of the order of the Court of the IX Assistant Judge, City Civil Court, Hyderabad, dated 21-7-1993 in I.A.No. 1410 of 1992 in O.S.No. 6258 of 1991. There is a categorical observation that the Commissioner cannot shift the material that are found in the rooms as there is an injunction existing in favour of the petitioner-plaintiff and also there is a further direction that if none is coming forward to take the material that were kept in the rooms to be demolished within a week, the Commissioner can obtain necessary orders from the Court. It is therefore imperative that the material should be first handed over to the petitioner-plaintiff before the Commissioner carry out any further work. But the petitioner-plaintiff is not available and he is likely to come to Hyderabad for two days and thereafter again go back for attending the ceremonies from 10th day onwards. Therefore he requested the Commissioner to postpone the execution of the work by at least one week.
27. In the proceedings dated 24-7-1993 of the Commissioner-Engineer, the Counsel for the petitioner-plaintiff made an endorsement which is as follows:
'I gave a notice along with copy of orders of Hon'ble Court. The Hon'ble Commissioner refused to listen to us and act in accordance with the directions of Hon'ble Court. Valuable material is in the rooms and extensive damage will be caused. My client Mr. Kotaiah is not available and there is no one to take material. Hence this letter and request to the Commissioner to adjourn the proceedings. The Counsel for petrs/defts are absent and the party is creating law and order problem with the help of workers and hence I see no alternative but to leave spot as the Commissioner is not prepared to hear/listen to us. The workers are not authorised to receive or take/shift any material in the absence of the proprietor. The Commissioner has no right to enter the portion and building.'
28. The learned senior Counsel for the petitioner-plaintiff submits that the direction by the lower Court to the Commissioner-Engineer to demolish the portion on the Western side of the staircase room is without proper understanding the directions given by the appellate Court in CMA Nos. 11 and 27of 1992, and the lower Court acted in excess of the jurisdiction vested in it. To this the learned senior Counsel on behalf of the respondents-defendants submitted that there is no variation from the order passed by the appellate Court in CMA Nos. 11 and 27 of 1992 and hence the impugned order is consistent with the directions given by the appellate Court in CMA Nos. 11 and 27 of 1992. If both the orders are read together I find that the lower Court has not given the directions as directed in the order in I.A.Nos. 678 and 679 of 1992 in CMA Nos. 11 and 27 of 1992 dated 24-11-1992.
29. It is the case of the respondents-defendants that they wanted to demolish green coloured marked portion of the building only and they never intended to demolish any portion which was demarcated in red colour as shown in the suit sketch plan. Even though the lower Court mentioned in its order that as per the clarification given in I.A.No. 678 of 1992 in CMA No. 11 of 1992 on the file of the Additional Chief judge, City Civil Court, Hyderabad, dated 24-11-1992 the lower Court has adopted a strange reasoning in giving directions for demolition of the building which go beyond the orders of the Court. Hence I find that the lower Court has no power to go beyond the order passed by the lower appellate Court dated 24-11-1992.
30. In the final report submitted by the Engineer-Commissioner on 11-8-1993 he stated that he inspected the portion to be demolished and found that no material was lying there and he was informed that the material was taken away by the workers of the respondent ACME Tiles (petitioner-plaintiff herein). So there was no necessity for him to approach the Court again to seek the permission to remove the waste material and chips etc., as no such material was there. So he proceeded with the demolition work of the portion west of staircase room as he was directed with the help of labours in the presence of the respondents-defendants and the manager of the petitioner-Unit. The Commission work started at 10 a.m. and completed by 5 p.m during the demolition work the workers went for lunch about an hour. During execution of demolition work some police personnel were also present on behalf of the petitioner-plaintiff to maintain the peace and the demolition work went peacefully without any objection or obstruction by anybody.
31. In paragraph 20 of the affidavit filed in support of the petition for stay, the petitioner-plaintiff stated that after the orders in the review petition by the appellate Court, there was no room for confusion as the portion of the building demarcated in red colour in the suit sketch plan which was in his possession as tenant was not disputed, that the green coloured portion of the building admittedly is in the occupation of the respondents-defendants, that his grievance for filing the suit was that the green coloured portion is permitted to be demolished, that the red coloured portion will also get damaged, that the portion of the building under his occupation which was delienated in red colour and marked 1 to 10 in the plaint sketch plan was never disputed by the respondents-defendants and the lower appellate Court while allowing the review petitions filed by him clarified the same. It is also relevant to note that even as per Ex. A-26 certain portion, which is not included in Ex. A-27 was to be handed over to his predecessor (Mr. K.V. Subrahmanyam, Tenant), after evicting the then tenants, and the same was handed over. In fact, water meter is there in the said room and the same was installed by Mr. K.V. Subrahmanyam himself and even today the bill comes on his name and the pipeline is passing through his rooms to the place marked No. 9 in the sketch plan. He has further stated that in paragraph 23 of the affidavit that the Engineering Commissioner submitted the preliminary report including the portion which was leased out to them and which was in their occupation and enjoyment and in respect of which there is a subsisting injunction in their favour as confirmed by the trial Court and the appellate Court. He further stated that in spite of the fact that his Counsel pointed out that valuable material is lying in the said rooms and that it may got damaged, the respondents-defendants and the Commissioner carried out the work of throwing the material with the help of about 25 labourers and demolished the rooms damaging the material and the portion of the building is also damaged. Extensive damage is caused not only to the material shifted but also to the material in the factory. He has further stated that there is nothing by them to use the staircase even otherwise the lower appellate Court only permitted the user of the staircase by both the parties and there is no question of his being deprived of the user of the staircase room. Hence he is entitled to vise the staircase room as a mixture room which he is doing all these years.
32. Now the building was demolished by the Commissioner-Engineer. The learned senior Counsel for the petitioner-plaintiff submitted that the petitioner-plaintiff was forcibly and unauthorisedly evicted from the premises and his belongings were thrown out from the premises, as alleged by the petitioner-plaintiff, but the petitioner-plaintiff was not evicted by any valid order of the Court he must be restored the position in which he was, as on the date of the impugned order i.e., 21-7-1993. The learned Counsel relies upon a decision in Ch. Chenchaiah v. Shaik Alli Saheb, : AIR1993AP292 . He further submitted that the respondents-defendants be directed to reconstruct the portion of the building which is to be given to the petitioner-plaintiff and he shall be reinducted into the premises immediately thereafter. To substantiate this the learned Counsel relied upon a decision in Sitaram Sahu v. Lalpari Devi, : AIR1991SC1054 .
33. For the foregoing discussion the action of the Commissioner-Engineer in demolishing the red colour portion which was occupied by the tenant is illegal and the order passed by the lower Court in I.A.No. 1410 of 1992 in O.S.No. 6258 of 1991 dated 21-7-1993 is set aside and the revision petition is allowed. No costs.
34. In view of the order that has been passed by the X Assistant judge without following the tenor and spirit of the injunction order which has become final sufficient damage has been caused to the petitioner-plaintiff-tenant. As the act was done at the instance of the respondents-defendants moving the lower Court and obtaining orders illegally without jurisdiction though the thirst of the respondents-defendants fulfilled causing sufficient damage and inconvenience to the tenant for a proper utilisation and enjoyment of the premises which is marked as red colour portion, this Court feels that in the interests of justice to give a direction to the lower Court to ascertain the damage caused and its value and restore the same position which was prevailing prior to the passing of the impugned order dated 21-7-1993 at the cost and expenditure of the respondents-defendants within three months from the date of receipt of the file after transfer. The lower Court is therefore directed accordingly.
35. As the learned X Assistant Judge has misconstrued and misapplied the order passed by the appellate authority, this Court feels that the Chief Judge, City Civil Court should transfer this case to some other Assistant Judge for trial.