IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) FRIDAY, THE SIXTEENTH DAY OF APRIL TWO THOUSAND AND TEN PRESENT: THE HON'BLE SRI JUSTICE P.S. NARAYANA APPEAL SUIT No.1383 of 1999 Between: The State of A.P. rep. by the Collector, Guntur-Collectorate, Guntur MMC and another ..... APPELLANTS AND Vadlamudi Venkatramaiah (died) and others ..... RESPONDENTS JUDGMENT: Heard the learned Assistant Government Pleader for Appeals representing the appellants and Sri M. Chandra Sekar Rao, learned counsel representing the respondents. 2. Inasmuch as the sole respondent/plaintiff died and the legal representatives are brought on record. The learned Assistant Government Pleader for Appeals would maintain that the defendants were not negligent and by the mere fact that the building was born by the radicals and the incident had taken place due to violence of radicals by that itself. This claim made by the plaintiff cannot be sustained. 3. The learned Assistant Government Pleader for Appeals also would maintain that the incident had taken place during night time and the Watchman had taken care to report the matter to the Police and also to the fire station department in promptness. Further the learned Assistant Government Pleader for Appeals also would maintain that the trial Court failed to se that the exgratia given by the Government was taken by the plaintiff without any protest and hence, the plaintiff is estopped to claiming Rs.79,000/- after receiving Rs.20,000/- as exgratia. 4. On the contrary learned counsel representing the respondents would maintain that in the light of the convincing reasons which had been recorded by the learned Principal Senior Civil Judge, Guntur the same has been confirmed. 5. Before taking of further discussion it may be appropriate to have a glance with the respective pleadings of the parties, issues settled, the evidence available on record and the findings recoded by the Trial Court in brief. 6. Pleadings of the parties: The plaintiff who is no more filed the suit for recovery of Rs.79,000/- towards damages with subsequent interest at 18% per annum. It was pleaded that the plaintiff is the owner of the suit schedule building situated in Chandramoulinagar, Guntur which is worth amount of Rs.2,00,000/-. Under lease agreement dated 9-8-1985 the schedule building was leased out to the first defendant for the office of the second defendant on a monthly rent of Rs.2,000/- payable on the first day of every succeeding month. The defendant took possession of the said building on 25-04-1985 and were in occupation of the building till 31-10- 1991. The defendants as lessees are bound under law and agreement to keep the schedule premises in good condition and pay the rent regularly. The defendants are also bound to redeliver the vacant premises on expiry or termination of the tenancy, in such good condition as it was taken possession as lessees. On 13-9-1991 at about 8 p.m., the schedule building was burnt by the Radicals/ extremists on account of their opposition to certain policies of the Government. The building was completely destroyed. The defendants and their men did not even tried to save the building. From the said deliberate, open and inhuman act of radicals, the defendants did not even telephone to the Fire fighting department or the Police and requisition their help. Sri T.N. Srinivasulu a retired Deputy Superintendent of Police, who is residing near the schedule building and who witnessed the incident telephoned about the incident to local fire station, but nobody turned up. He also telephoned to the Police at Pattabhipuram as desired by the Fire Station authorities. After lapse of considerable time, the police came to the spot and by that time the extremists left the place. The Police telephoned to the Fire Station and by the time and Fire squad arrived, the entire building gutted and only charred and mutilated walls and heaps of ash were left. Coming to know about the said incident through the newspapers, the plaintiff came to the suit premises on 14-09-1991 and found that the entire suit building except parts of few burnt walls was reduced to ashes. The defendants are bound to compensate the plaintiff by way of damages for breach of lease agreement and for willful non-performance of statutory obligation. The damage was estimated by a local Chartered private Engineer at Rs.1,50,000/-. The Executive Engineer of Roads and Buildings Department, who is under the control of the first defendant estimated the loss of Rs.99,000/- and sent the estimate to the defendants for payment of the amount to the plaintiff. Though the loss is more than the said estimate, the plaintiff requested the defendants to pay him atleast the said amount of Rs.99,000/- as damages but the defendants made paltry payments of Rs.20,000/- as exgratia. The plaintiff received the said part payment without prejudice to his rights and claims and informed the same in writing to the defendants on 6-7-1992 and further requested for payment of the balance amount of Rs.79,000/-. The incident resulted in termination of the un-expired period of lease. The plaintiff issued registered notice dated 14-07-1992 under S.80 of the Code of Civil Procedure to both the defendants, calling upon them to pay the balance amount of Rs.79,000/- as damages. The first defendant under its letter dated 28-07-1992, which was received on 3-9-1992, informed the plaintiff that the matter was referred to the Mandal Revenue Officer, Guntur from whom a reply would be received. The Mandal Revenue Officer, Guntur under his letter dated 6-9-1992 informed the plaintiff that he should satisfy with the amount of Rs.20,000/- already paid. The second defendant in his report dated 13-9-1991 to the Police at Pattabhipuram informed that the loss was not less than Rs.10,00,000/- which includes loss of furniture etc. The defendants are liable to pay Rs.79,000/- towards balance of the estimated damages together with interest at 18% per annum from the date of suit till the date of realization. 7. The second defendant filed written statement admitting the lease and also the incident that occurred during the night of 13-9-1991 whereunder the building and the furniture and records and also the vehicle AHO 8797 of the second defendant Department gutted to fire. It was, however, contended that on 13-09-1991 at about 8 p.m. while Sri K.Nageshwara Rao, Watchman was on duty, some unruly extremists numbering 20 to 25, who were latter identified as radicals, entered into the office premises of the second defendant armed with deadly weapons and threatened the Watchman, pulled him out of the premises and burnt the records and vehicle of the second defendant and also the building, that the said Watchman ran to the next house and requested Sri T.A. Srinivasulu, Retired Deputy Superintendent of Police, Guntur to telephone to the Fire Station and Police, and that he also requested some of the neighbours to inform the matter to the staff members of the second defendant, that the Watchman also reported the matter to the Police at Pattabhipuram, that the staff members of the second defendant who came there tried to save the office building records and van by pouring sand and water, that the defendants and staff have taken proper care and action to minimize the loss to the building and the Government property, that there was no negligence on the part of the defendants in saving the building or property of the office, that the department is, therefore, not responsible for the loss of the property occasioned, that the defendants as lessees are not bound to compensate the loss caused to the building due to the unexpected attack made by the unruly elements, that even though the defendants are not bound to compensate the loss, a decision was taken by the Government on the basis of the report of the first defendant to pay Rs.20,000/- as exgratia to the plaintiff under G.O.Ms.No.2066 dated 16-05-1992, that the plaintiff received the said amount on 13-06-1992 without any protest, that as the plaintiff received the said amount without any protest he is estopped from claiming further amount even if he had any right to proceed against the defendant, that under S.108 (e) of Transfer of Property Act, if by fire, temptest or flood or violence of any army or of mob any other irresistible force any material part of the property is only destroyed or rendered substantially permanently unfit for the purpose it was let out, lease shall at the option of lessee be void, that under S.108 (m) of the Transfer of Property Act, the lessee is bound to keep and on termination of the lease to restore the property in as good as it was at the time when he was put in possession subject only to the changes occurred by reasonable wear and tear or irresistible force, that as the damage was caused by irresistible force and not on account of any negligence on the part of the defendants. 8. The first defendant filed an adoption memo adopting the written statement of the second defendant. 9. ISSUES SETTLED BY THE TRIAL COURT:- The under noted issues had been settled by the trial Court: 1. Whether the plaintiff is entitled to the damages as claimed from the defendants ? 2. Whether the plaintiff is estopped from claiming any amount more than Rs.20,000/- paid as ex-gratia by the defendants loan if he is entitled to claim damages ? 3. To what relief ? 10. EVIDENCE AVAILABLE ON RECORD:- The oral and documentary evidence adduced by the parties are as hereunder: For plaintiff PW-1 V. Venkatramayya PW-2 T.N. Srinivasulu PW-3 T. Sivaramakrishna Rao PW-4 G. Surya Rao PW-5 Ch. Chowdary Babu Ex.A-1 Office copy of notice dated 14-7-1992 got issued by the plaintiff to the defendants Ex.A-2 Postal acknowledgment of the 2nd defendant Ex.A-3 Postal acknowledgment of the 1st defendant Ex.A-4 Postal acknowledgment of the office of the first defendant Ex.A-5 Notice issued by the plaintiff for production of the estimate of the damage caused to his building Ex.A-6 Certificate dated 8-12-1994 issued by the Station Fire Officer Ex.A-7 Attested true Xerox copy of the report dated 13-9-1991 Ex.A-8 Attested true Xerox copy of the phonogram issued by Sri Ankamma Ex.A-9 Attested Xerox copy of confirmation letter dated 14-9-1991 sent by Sri Ankamma to the Divisional Radio Engineer, Ongole. Ex.A-10 Attested Xerox copy of the letter dated 15-10-1991 by the District Collector to the Executive Engineer, Roads and Buildings, Guntur. Ex.A-11 Attested Xerox copy of the letter dated 18-3-1992 Ex.A-12 Attested Xerox copy of letter of valuation of damaged portion of RCC slab prepared by Executive Engineer, R & B Division, Guntur Ex.A-13 Attested Xerox copy of the detailed abstract estimate For defendant DW-1 D. Surya Rao Ex.B-1 Letter No.1/Sa/91 dated 17-9-1991 by the Divisional Radio Executive Engineer to the First Officer, Guntur Ex.B-2 Office copy of legal reply notice dated 6-9-1992 issued by the plaintiff’s Advocate Ex.B-3 Attested Xerox copy of G.O.Rt.No.2066 Finance dated 16-5-1992 Ex.B-4 Office copy of the letter dated 17-09-1991 addressed by the Divisional Radio Engineer, Ongole addressed to the Commissioner, Information and Public Relations Department, Hyderabad (Attested copy) Ex.B-5 Attested Xerox letter of the S.I. of Police dt.22-11-97 addressed to the Dy. Executive Information Engineer, Guntur 11. FINDINGS RECORDED BY THE TRIAL COURT:- The trial Court while answering issue Nos.1 and 2 recorded reasons in detail at paragraph Nos.8 to 12 and ultimately came to the conclusion that the plaintiff is entitled to a decree with costs against the defendants for Rs.79,000/- with interest at 6 % per annum from the date of suit till the date of realization. Hence, the present appeal. 12. In the light of the submissions made by the learned counsel on record the following points arises for consideration in this appeal: 1. Whether the findings recoded by the trial Court suffered from any illegality or legal infirmity warranting interference or whether the said findings are to be confirmed? 2. If so, to what relief the parties would be entitled to ? 13. Point No.1:- For the purpose of convenience the parties hereinafter would be referred as plaintiff and defendant as shown in O.S.No.391 of 1992 on the file of the Principal Senior Civil Judge, Guntur. It is needless to say that the plaintiff – respondent in the appeal having died, the legal representatives had been brought on record by ordering the said applications. 14. The undisputed facts are that the plaintiff is the absolute owner of the plaint schedule property and the second defendant for the sake of office had taken the same by virtue of lease agreement dated 09-08-1985 and the said building was burnt by the extremists on 13-09-1991 at about 8.00 p.m., in protest of the policies of the State Government. 15. On the letter of the District Collector, Guntur vide Ex.A-10 the Executive Engineer, Roads and Buildings estimated cost of the said building and submitted his detailed report under Ex.A-13 on 18- 04-1992 to the District Collector, Guntur wherein the valuation relating to damages has been estimated as Rs.99,600/-. On the basis of the report of the District Collector dated 18-04-1992 the Government issued Ex.B-3 G.O.Rt.No.2066 Finance, dated 16-05-1992 sanctioning exgratia at Rs.20,000/- to the plaintiff and the plaintiff received the said exgratia on 30-06-1992. The plaintiff issued notice to the defendants vide Ex.A-1 under Section 80 of the Code of Civil Procedure claiming Rs.79,000/- towards damages after deducting the exgratia amount received by him out of the estimated damages of Rs.99,000/- together with interests at 18% p.a. 16. The defendants had not chose to give any reply whatsoever. The stand taken by the defendants is that there was no negligence on the part of the second defendant in protecting the building in question and hence, the plaintiff having received the exgratia without any protest is estopped from claiming the rest of the estimated amount by virtue of the suit. 17. The learned Judge carefully analyzed the evidence of PW-1- plaintiff well supported by the evidence of PWs.2 to 5 and also appreciated the evidence of DW-1. Exs.A-1 to A-13 and Exs.B-1 to B-5 also had been appreciated. 18. Even as per the admitted facts and the respective stands taken by the parties the incident in question is not in serious controversy and the estimated damage also is not in serious controversy. The only contention is that when tentatively the exgratia of Rs.20,000/- already has been paid since the plaintiff received the same without any protest whatsoever again for the rest of the claim the suit cannot be maintained. 19. Though prima facie this stand taken appears to be a bit attractive on its face value, this court after carefully going through the findings recorded by the trial Court at paragraph Nos.8 to 13 is well satisfied that the said stand cannot be sustained. The learned Judge appreciated the oral and documentary evidence in detail and on admitted facts came to the conclusion that the plaintiff is entitled to the damages of Rs.79,000/-. But, however, the interest of 18% per annum claiming has not been granted, instead the interest of 6% p.a., from the date of suit till the date of realization alone had been granted. The learned Judge had arrived at the correct conclusion after recording proper findings and hence, the said findings do not warrant any interference and the same are to be confirmed. 20. Point No.2:- In the result, the appeal shall stand dismissed. However, the parties should bear their own costs. ___________________ P.S. NARAYANA, J April 16, 2010. Pn THE HON'BLE SRI JUSTICE P.S. NARAYANA APPEAL SUIT No.1383 of 1999 April 16, 2010