The Municipal Corporation filed an application in SAMP No. 1773 of 2008 under Order 41 Rule 27 read with Section 151 of CPC praying to receive true copy of a Lay out approved by Municipal Corporation of Hyderabad dated 6-12-1979 as additional document in the above S.A. No.78 of 2008.
2. When the matter came up for hearing , leaned counsel for the plaintiffs as well as the Special Government Pleader for Advocate General appearing on behalf of the Corporation have agreed to dispose of the Second Appeals at the time of admission. Hence, these appeals are taken up together for disposal along with the above SAMP.
SAMP No. 1773 of 2008
3. The Commissioner and Special Officer, Greater Hyderabad Municipal Corporation, Hyderabad filed an affidavit in the above application and it is that in the suit filed by the plaintiff, they filed written statement specifically contending that the plaintiffs are claiming ownership and possession in respect of an area to an extent of 1836 sq.yards covered by premises No.8-2-672/B/2/1 in ward No. 89 and Block L, Sy. No. 192 of Khairatabad Circle No. X by specifically giving boundaries and filed OS No.1549/2000 seeking permanent injunction wherein the Corporation filed written statement contending that the plaintiffs encroached the municipal park and started construction unauthorizedly and that the authorities have accorded layout permission for the premises bearing No. 8-2-472, situated at the Banjara Hills, Hyderabad which gives description of the part on extreme western side of the approved lay out the park area stood transferred and vested with the Corporation. It is further stated that as per the sanctioned plan accorded by the Municipal Corporation of Hyderabad, the suit schedule property is a park and the plaintiffs are not entitled to convert the park area as residential one and to prove the same the sanctioned lay out is necessary.
4. The above said application was resisted by the plaintiffs by filing a counter contending that this petition is not maintainable as prior to this second appeal, even there was no mention anything about the fact of availability of the said original lay out which is within the custody of the corporation and that the door number shown in the plan which is now pressed into service are different that there is no dispute raised earlier before the courts below as to the door numbers of the land, and as such the said layout cannot be taken into as additional evidence at the stage of second appeal it is also stated that despite several opportunities top produce documentary evidence in support of its case, the defendant corporation never choose to file the alleged lay out plan before the trial court in suit proceedings or before the first appellate court. it is further stated that the lay out plan, now pressed into service, does not belong to the suit schedule property and the same is sanctioned in favour of one Tariq Mirza who has nothing to do with the suit schedule property.
5. From the above, what is to be seen is as to whether the above said document can be received as additional evidence at this stage?
POINT:
6. Coming to the factual matrix of the case on hand, originally the plaintiffs filed suit for permanent injunction against the defendant corporation and their man restraining them from enjoying the suit schedule property, and in the said suit, though the defendant corporation referred the said property as a park, but failed to adduce any documentary evidence in support of their version and on the other hand the plaintiffs by adducing sufficient evidence both oral and documentary proved their possession over the suit schedule property. Even now, the plaintiffs say that the plan sought to be marked by the Corporation is sanctioned in favour of one Tariq Mirza and it does not belong to the suit schedule property. Further, in a suit for injunction, the question of possession of the parties as on the date of the claim will play a vital role but not the title of the parties to the property in question. The title as well as possession over the property will be looked into only in a comprehensive suit for declaration and permanent injunction. The defendant corporation except stating that the suit schedule property is a park, did not produced any evidence much less documentary evidence to support its contention that the said property is a park and it belongs to the Corporation. It is to be observed that there is a duty cast upon the Corporation being a public authority to protect its property. But, in the present case, the corporation failed to discharge its duty by adducing sufficient evidence. On this aspect, the trial court after elaborately considering the material available on record came to the conclusion that the plaintiffs proved their possession and the said finding was confirmed by the first appellate court. So in view of the concurrent findings arrived at by both the courts below in this aspect, there is nothing available to reconsider or re-appreciate the said finings at this stage. Therefore, the said document even if received by this court as additional evidence, it is in no way helpful to the case of the defendant corporation as the scope of the suit is very limited.
7. Further, as per the provisions of Order 4 and Rule 27 of C P C a party can seek permission of the court to receive the additional documents that too if he is able to establish that notwithstanding the exercise of due diligence, such evidence was not within his knowledge or could not, after exercise of due diligence, be produced by him at the time when the decree appealed against was passed; that means the production of additional documentary evidence is permissible at the stage of First Appeal provided the party, who wants to produce such documentary evidence, shall fulfill the above criteria but, in the present case, the corporation is seeking permission at this second appeal stage leaving the trial stage and also the first appellate stage. Further, it is not the case of the defendant corporation that the document is not within their reach and in spite of their due diligence they could not get the same produced before the court for effective adjudication. The record reveals that defendant at any stage of the proceedings of the suit or the first appeal never choose to file the said lay out plan. The defendant corporation sanctioned the lay out plan and a copy of it is within its own custody. No reason much less plausible reason is stated by the Corporation as to why the said document could not be produced before the (trial) court or in the First Appellate Court. Therefore, the document now sought to e received as additional evidence is only a Xerox copy of the alleged sanctioned plan in favour of the Tariz Mirza, cannot be received at this stage and this petition deserves to be dismissed. Accordingly, SAMP No. 1773 of 2008 is dismissed.
S.A.Nos. 78 and 998 of 2008
8. The above Second Appeals are filed against the judgment and decree dated 5-10-2007 in AS No. 336 of 2006 on the file of the III Additional Chief Judge, City Civil Court, Hyderabad, reversing the judgment and decree dated 22-03-2005 in O.S. No. 1549/ 2000 on the file of IV Junior Civil Judge, City Civil Court Hyderabad.
9. S.A.No. 78 of 2008 is filed by the parties, whereas the S.A.No.998 of 2008 is filed by the Municipal Corporation aggrieved against the judgment and decree dated 5-10-2007 in A.S.No. 336 of 2006. Since these two appeals arise out of a single judgment they are taken up together for disposal.
10. The plaintiffs are the private parities and the Corporation is the defendant. For convenience sake, the parities are referred to as they wee arrayed in the Original Suit.
11. The brief facts, which culminated in filing of the suit are as follows:
The suit was filed for grant of perpetual injunction against the Municipal Corporation of Hyderabad and its commissioner and subordinates restraining from causing interference and subordinates restraining from causing interference and obstruction in the peaceful possession and enjoyment over the suit schedule property on the ground watchman room in the suit land and that the suit schedule property is threatened that they will come to the suit admeasuring 1836 sq.yds bearing Municipal land for further demolition of the watchman No. 8-2-672/2/1 at Road No.1, Ward No. 89 room and the boundary wall and threatened Block No.L in Sy. No. 112 of Khairatabad is a patta land of Md. Sajjad Mirza being the owner holder, pattader and possessor. The said Sajjad Mirza made on oral gift of the suit schedule property to his sister's son namely Syed Asadu Zama Khan @ Achahan Miya on 15-4-1958 and in evidence there of the executed a memorandum also on the same day in respect of 2000 sq. yards, but as the plaintiffs were unable to construct a house, some neighbours encroached some extents and therefore the left over extent is only 1836 sq.yards which is the suit schedule property. The said Achahan Miya accepted the same and enjoyed the property till his death on 6-12-1969 at Hyderabad and after his death the plaintiffs being the sole successors of Achahan Miya, continued their possession over it with the help of each other as there was no male members and that the 2nd plaintiff is the sole daughter of 1st plaintiff as such they are the heirs, holders, owners, enjoyers and possessors of suit schedule property. Now the suit schedule property is encircled by compound wall and the plaintiffs constructed a watchman room to safeguard the suit schedule property.
It is also the case of the plaintiffs that the defendant intending and threatening to demolish the said room with a mala fide intention to dispossess them from the suit land; that as they could not rise the construction over the suit schedule property due to financial problems, some employees of the defendant corporation who are intending to take undue advantage of the circumstances were threatening the plaintiffs by misusing their official power and that the subordinates of the defendant corporation have interfered on 27-3-2000 in the suit schedule land and party demolished the watchman room in the suit land and threatened that they will come to the suit land for further demolition of the watchman room and the boundary wall and threatened to remove the gate at the suit land. It is also stated that the defendant corporation has no right whatsoever to interfere with the peaceful possession of the plaintiffs over the suit schedule land and by unwarranted acts they are trying to dispossess the plaintiffs on 27-3-2000, as such plaintiffs were forced to approach the court for the reliefs as sought in the Suit.
12. The defendant Municipal Corporation filed a written statement starting that the plaintiffs have started construction unauthorizedly by encroaching the municipal park. The suit schedule property is a park shown in the lay out, the plaintiffs have no right over the said property and the park will be used for the general pubic. It is also stated that the suit is not maintainable for want of notice as required under Section 685 of HMC Act and therefore prayed that the suit is liable be dismissed.
13. On the pleadings of both the parties, the trial court framed the following issues.
1. Whether the plaintiffs are entitled to perpetual injunction as prayed for?
2. Whether the suit is maintainable without issuing notice under Section 685 of HMC Act?
3. To what relief?
14. On behalf of the plaintiffs, P.W.1 was examined and Exs. A-1 to A-10 were got marked. On behalf of the defendant Corporation, D.W. 1 was examined and marked no documents.
15. The trial court after hearing both sides and after considering the entire evidence, both oral and documentary, available on record decreed the suit as prayed for. Coming to the issues of maintainability of the suit, the trail court gave a finding that as the plaintiffs have established that the suit is maintainable without notice under Section 685 of HMC Act, allowed the suit and granted the relief as prayed for. Aggrieved by the said decree and judgment, defendant corporation preferred AS No. 336 of 2006 on the file of the Additional Chief judge, City Civil Court, Hyderabad.
16. In appeal, the first appellate court framed the following points for consideration:
1. Whether the plaintiff is the owner of schedule property? If so, whether the plaintiff is in possession there of?
2. Whether the suit is not maintainable without notice under Section 685 of the HMC Act?
17. After re-appreciation of the evidence on record and on hearing both sides, the lower appellate Court came to the conclusion that the findings arrived at by the trial court need no interference. It was further held that the trial court after elaborately considering both the oral and documentary evidence rightly reached the conclusion that the plaintiffs have proved that the suit schedule property is a patta land and that they are having valid right, title and interest over the said property. The lower appellate court also confirmed the said findings of the trial court on this aspect. But, regarding the maintainability of the suit, the first appellate Court did not accept the findings of the trial court and answered that point in favour of the defendant corporation and therefore allowed the appeal and set aside the judgment and decree of the trial court and thereby dismissed the suit. Aggrieved against the reversal findings, the plaintiffs as well as defendant corporation filed separate second appeals in S.A.Nos. 78 of 2008 and 998 of 2008 respectively.
18. Originally the suit was filed seeking permanent injunction against the defendant Corporation and their men to restrain them from interfering with the plaintiffs peaceful possession and enjoyment of the suit schedule property. The defendant Corporation resisted the same by filing a written statement contending that the said property is a park and the plaintiffs have encroached the same and raised construction unauthorizedly.
19. Thought it is the case of the defendant Corporation that the suit schedule property is a park, but it failed to adduce any evidence much less any documentary evidence to assert title to the said land, the land belongs to them more so, it is demarcated for the purpose of park cannot be accepted. In the absence of any evidence adduced on behalf of the Municipality to show that the land belongs to them, except stating that the land belongs to the Corporation, the trial court as well as the first appellate Court have recognized the possession of the plaintiffs over the suit schedule property and gave a categorical findings to that effect.
20. In view of the reversal finding recorded by the first appellate court that as to the maintainability of the 4 suit for want of notice to the Corporation before the institution of the suit, the next question would be whether the notice under Section 685 of HMC Act is mandatory. So from the above, the following substantial question of law arises for consideration in these second appeals;
Whether the suit field by the plaintiffs against the' defendant-corporation, without issuance of notice under Section 685 of Hyderabad Municipal Corporations Act, 1955 is maintainable?
21. For answering the said substantial question of law, it is necessary to look into Section 685 of the Hyderabad Municipal Corporations Act, 1955 (for short the Act') which reads as follows;
"685, Protection of persons acting under this Act against suits:‑
(1) No suit shall be instituted against the Corporation or against the Commissioner or a Deputy Commissioner or against any officer or servant, appointed under this Act, in respect of any act done in pursuance of execution or intended execution of this Act or in respect of any alleged neglect or default in the execution of this Act ‑
(a) until the expiration of one month next after notice in writing has been in the case of the Corporation left at the Chief Municipal Officer and in the case of the Commissioner or of a Deputy Commissioner or of a Municipal Officer or servant delivered to him or left at his office or place of abode, stating with reasonable particularity the cause of action and the name and place of abode of the intending plaintiff and or his attorney or agent if any for the purpose of such suit; or
(b) unless it is commenced within six months next after the accrual of the cause of action;
(2) At the trial of any suit:
(a) the plaintiff shall not be permitted to go into evidence of any cause of action except such as is set forth in the notice delivered or left by him as aforesaid;
(b) the claim, if it be for damages, shall be dismissed if tender of sufficient amends shall have been made before the suit was instituted or if after the institution of the suit, a sufficient sum of money is paid into court with costs.
A plain reading of the above provision reveals that no suit shall be instituted against the Municipal Corporation or the Commissioner etc., in respect of any act done in pursuance of execution or intended execution of the Act, and then the procedure and the time limit has been explained in clauses (a) and (b)
22. The suit referred to in the section must be in respect of anything already done in execution of the Act. Turning to the case on hand, the plaintiffs have averred that the suit schedule property is their property and they are in peaceful possession and enjoyment of the same by constructing a compound wall and also a room for watchman and that the employees of the defendant corporation with a mala fide intention have partly demolished the watchman room by trespassing into the suit schedule land and also tried to plant trees which amounts illegal interference without following due process of law. Further, D.W. 1 in his cross examination admitted that one of the officials of MCH gave complaint against the plaintiffs 3 and 4 to the S.H.O., Banjara Hills P.S. and a case was registered in CC No. 640 of 2000 against the plaintiffs 3 and 4 and the same was ended in acquittal and he also admitted that the suit schedule property is surrounded by a compound wall and gate.
23. As noticed above, the suit was filed for perpetual injunction restraining the Corporation and its officers from interfering with the possession of the plaintiffs over the suit schedule property. It was filed at the time when the officials of the Corporation demolished partly the watchman room in the suit property and threatening to demolish the rest of room and the compound wall. The said relief is not, in any manner, based upon any act done by the officials/ subordinates of the Corporation under the suit. The apprehension of the plaintiffs is that if the permanent injunction is not granted, the officials of the Corporation will demolish the remaining part of watchman room, compound wall etc. Therefore, it is clear that the main purpose of the suit is to restrain the corporation from pulling down the construction made by the plaintiff. The suit is to restrain the corporation from doing a future act.
24. At this stage, learned Special Government Pleader for Advocate General, appearing on behalf of the Corporation relied on a decision of this High Court in Religious Endowment Department, rep by its Executive Officer, Turners Chowltry, Visakhapatnam v. Visakhapatnam Municipal Corporation (2003 (4) ALT 701), wherein it was held that
"non-compliance pf the provisions of Section 685 is fatal to the maintainability of the suit because the issuance of a demand is an act done or purported to be done under the provisions of the Act"
. A perusal of the said decision would go to show that the plaintiffs therein filed a suit for declaration that the disconnection notice claiming water charges from the plaintiff choultry bearing Door No. 28-2-41 without any assessment on the said choultry is invalid and inoperative, and for a consequential relief of permanent injunction restraining the defendant-Corporation from collecting any water tax or water charges mentioned in the impugned notice and for costs. Under the above factual circumstances of the case, the court observed that the demand, which had been questioned in the suit, is a demand made by the officers of the Corporations in pursuance of their discharge of duties under the provisions of the Act, and therefore it was held that if the plaintiff wants to challenge the action of the corporation, it must first issue notice under Section 685 of the Act and then file the suit. But the facts of the case on hand are different from the facts
that came up for consideration in the above case. Though there is no dispute with the legal position that notice under Section 685 is mandatory, but the facts in the case are not applicable to the facts of the case on hand. Hence, the above said decision is not of any help to the corporation. Therefore, we are of the view that the lower appellate court erroneously relied upon and reversed the finding of the trial court on the notice aspect.
25. On the other hand, learned counsel for the Plaintiffs in support of his contention that the defendant corporation when tried to commit some illegal interference without following due process of law, filing of the above suit without notice under Section 685 is maintainable, relied on a judgment of this Court reported in AIR 1972 AP 96 between Municipal Corporation of Hyderabad v. T.V.Sharma, which is rendered basing on the reported judgment in AIR 1964 AP 360 followed by AIR 1941 Madras 82 (Full Bench) and AIR 1960 AP 535.
26. Learned counsel also submitted that the above case was not brought tot the notice of the learned single Judge for consideration while dealing with the Religious Endowments Department reply its Executive Officer of Turners Country, Visakhapatnam v. Visakhapatnam Municipal Corporation (1St cited). In T.V. Sharma's case, the argument advanced was that it was a suit to restrain the Corporation from taking action in future and therefore Section 685 is not applicable and that even assuming the suit is in respect of any act done in pursuance of the execution or intended execution of the Act, such an act should be a bona fide act on the part of the commissioner. If the act is done maliciously or such an act is not done in pursuance of execution or intended execution of the Act Section 685 need not be complied with. In the same decision the court also referred to a case with regard to the interpretation of the phrase "any act done" before the Bombay High Court in Municipality of Parola v. Lakshmandas Suparubhai (1901) ILR 25 Bom. 142 wherein it was observed that "The result of the cases above citied appears to indicate, that for purposes of Section 48 what court has to look to is the real object of the suit, and the section requires notice only when thee suit is for an act already done or purporting to have been done, under the powers conferred. In such cases only can it be necessary for the plaintiff to give an opportunity to make amends or compensation and in such cases the delay necessitated by notice is comparatively immaterial."
Further at para 18 it was also observed that "The next question for consideration is whether the present suit is in respect of any act done in pursuance of execution of intended execution of the Corporation Act. I am not concerned with the further provision in that sub-section which deals with suits in respect of any alleged neglect or default in the execution of the Act. A plain reading of the section shows that is applicable to acts which had been done by the Corporation or the Commissioner before the filing of the suit. The expression "any act done" clearly shows that the act should have been done prior to the institution of the suit. Further the suit has to be in respect of any act done which makes it abundantly clear that the act should have been done before the filling of the suit."
27. In T.V.Sharma's case more or less similar contention have been raised to the effect that in a suit for declaration and permanent injunction restraining the municipality from interfering with the possession, the provisions of Section 685 of the Act is not applicable. The above argument has been upheld in the above judgment by this Court holding that in case a suit is laid or permanent injunction restraining the municipal corporation from interfering with the possession, the provisions of Section 685 of the Act are not applicable and the action which has been done by the municipality cannot be termed as a suit filed in pursuance of the any act done by the corporation.
28. Coming to the case on hand, the suit filed by the plaintiffs herein is only for injunction against the Corporation to restrain the corporation from doing a future act and as such the said decision squarely applies to the case on hand. Therefore the trial court rightly relied on T.V.Sharma's case, and came to the conclusion that the facts and circumstances of the above case are applicable to the facts and circumstances of the present case also, as in the present case the officials of the defendant corporation have interfered with the possession of the plaintiffs over the suit schedule property and tress passed into the suit schedule property along with Urban Forestry Officials and tried to plant trees without following due process of law and therefore the suit field by the plaintiffs without issuing notice under Section 685 of HMC Act to the defendant corporation and in view of the mala fides on the defendant corporation and its officials in demolishing the watchman room constructed in the suit land and entering into the premises for plantation, this Court is of the opinion that the present suit is maintainable. There is no necessity of issuing any notice under Section 685 of the Act prior to filing of the suit.
In view of the foregoing discussion, this question is answered in favour of the plaintiffs and against the defendant corporation.
29. Under the above circumstances, in the absence of any documentary evidence available to .rove the contentions of the Corporation that the land belongs to the Corporation it has to be held that the second appeal filed by the municipality is liable to be dismissed and accordingly S.A.No. 990 of 2008 is dismissed. In view of the reasons given above the SAMP No.1773 of 2008 is also dismissed.
The second Appeal in SA No. 78 of 2008 preferred by the plaintiffs is allowed and the judgment and decree in A.S.No. 336 of 2006 dated 5-10-2007 insofar as it relates to the findings of the maintainability of the suit alone is set aside and the judgment and decree dated 22-3-2005 in OS 1549 of 2000 in the file of IV Additional Junior Civil Judge, CCC, Hyderabad, is here by confirmed.