GANESHRAM SATYANARAYANA PANDYA Vs. AYANESHWAR BIJORIA

JUDGEMENT

(1.) This appeal arises out of the judgment and decree dated 5-5-1999 in A.S.No. 45 of 1998 on the file of the Court of Additional Chief Judge, City Civil Court, Secunderabad, allowing the appeal and modifying the decree dated 24-4-1998 in O.S.No. 1144 of 1994 on the file of the Court of First Junior Civil Judge, City Civil Court, Secunderabad.

(2.) The averments in the plaint filed bythe appellant, in brief, are: Respondent is the owner of the mulgi bearing No. 7-2-386 within the boundaries mentioned in the schedule appended to the plaint, which hereinafter is called the "Suit Property". The appellant took the suit property on lease from the respondent in 1978. When a dispute arose between the respondent and the appellant regarding the terms of tenancy, the appellant filed R.C.No. 341 of 1987 on the file of the II Additional Rent Controller, Secunderabad, and as per the order passed therein, he has been depositing the rents relating to the suit property in R.C.No. 341 of 1987. Since the respondent wanted to demolish and reconstruct the entire building including the suit property, the appellant and respondent entered into an agreement on 25-2-1994, as per the terms of which the appellant deposited Rs. 70,000/- with the respondent, which the respondent has to repay without interest at the time of his vacating the suit property, the respondent should complete the reconstruction and deliver possession of the (shop room) suit property to the appellant within three months from 1-3-1994 i.e., the date of delivery of possession of the suit property to the respondent, for which period of three months also the appellant has to pay rent at the rate of Rs. 150/- per month to the respondent, and after the appellant is inducted into possession of the newly constructed suit property he has to pay Rs. 500/- per month as rent. Appellant deposited rent even after vacating the premises into Court, as per the Order of the Rent Controller in R.C.No. 341 of 1987. Since Respondent failed to deliver possession of the shop (suit property) as per the terms of the agreement, after reconstruction, appellant filed the suit for delivery of possession of the suit property. Respondent file'd a written statement contending that the agreement relied on by the appellant is not true and is a forged document and that no amount was deposited with him by the appellant. The appellant filed R.C.No. 341 of 1987 in respect of the suit property though there is no relationship of landlord and tenant between them. Since Appellant is not in possession of the suit property from 1-3-1994 after he voluntarily surrendered possession thereof, respondent for his self- occupation, demolished the old structure and constructed a new building after obtaining permission from the Municipal Corporation of Hyderabad, appellant, who is a habitual litigant, is not entitled to any relief in the suit.

(3.) On the basis of the above pleadings,five issues were settled for trial by the trial Court. In support of his case, the appellant examined himself as P.W. 1 and marked Exs. A-l to A-7. In support of his case, the respondent examined himself as D.W. 1 and marked Exs. B-1 to B-8. The trial Court held on issue No. 1, which relates to the question whether the appellant is entitled to specific performance of the agreement dated 25-2-1994, in favour of the appellant. On issue No. 2, which relates to the relief of permanent injunction restraining the respondent from letting out the suit property to third parties, the trial Court held in favour of the appellant. On issue No. 3 which relates to Court Fee, the trial Court held that though the Court fee paid is not proper and insufficient it is not a ground for dismissal of the suit, and directed payment of deficit Court fee within five days from the date of judgment. On issue No. 4 which relates to the question of limitation, the trial Court held that the suit is within the period of limitation. On issue No. 5, which relates to the relief, the trial Court passed a decree in favour of the appellant directing the respondent to put the appellant in possession of the suit property within two months from the date of Judgment, and that in case of default, the appellant is at liberty to take possession of the suit property by taking recourse to due process of law, subject to payment of Court fee as directed on issue No. 3.