*THE HON’BLE SRI JUSTICE GODA RAGHURAM +C.R.P. Nos. 2623, 2629 of 2011 and Tr.C.M.P. No. 453 of 2011 % Dated: 18-11-2011 # Sri Ramoji Rao and another. …Petitioners VERSUS $ M.A.E. Kumar Krishan Varma and another. … Respondents ! Counsel for the petitioners: Sri D.Prakash Reddy for Sri B.Nalin Kumar ^ Counsel for respondents : Sri S.R. Ashok & Sri P.P. Rao, for Sri P. Balaji Varma <GIST: > HEAD NOTE: ? Cases referred 1. (1985) 2 ALT 421 2. 1996 (1) ALD 964 3. 1998 (3) ALD 672 4. 2000 (3) ALT 423 5. (1987) 1 SCC 183 6. (2005) 12 SCC 734 7. AIR 1962 SC 1135 8. (2003) 6 SCC 641 9. 2005(8) SCC 618 10. AIR 1972 SC 1598 11. (2003) 6 SCC 675 12. (2005) 11 SCC 578 13. (1977) 2 SCC 724 14. (2005) 3 SCC 498 15. (1983) 4 SCC 566 16. (2000) 7 SCC 522 17. (2010) 1 SCC 234 18. (2010) 2 SCC 432 19. (2005) 4 SCC 480 20. (2006) 6 SCC 498 21. (2006) 12 SCC Page 1 22. 2006 (4) Civil Court Cases 455 23. (2009) 2 SCC 409 24. (1996) 4 SCC 127 25. AIR 2008 SC 2234 26. (2009) 14 SCC 525 27. (2009) 10 SCC 84 28. (2010) 8 SCC 383 29. 2010 (5) ALD 97 IN THE HIGH COURT OF JUDICATURE: ANDHRA PRADESH: AT HYDERABAD (Special Original Jurisdiction) FRIDAY, THE EIGHTEENTH DAY OF NOVEMBER TWO THOUSAND AND ELEVEN :: PRESENT :: THE HON’BLE SRI JUSTICE GODA RAGHURAM C.R.P. Nos. 2623, 2629 of 2011 and Tr.C.M.P. No. 453 of 2011 BETWEEN : 1. Sri Ramoji Rao, S/o. late Venkata Subba Rao, aged about 74 years, Residing at Ramoji Film City, Ranga Reddy District. 2. Ushodaya Publications, A division of M/s. Ushodaya Enterprises Limited A company incorporated under The Companies Act, 1956 Represented by its Managing Director Sri Ch.Kiron, S/o. Ramoji Rao, Hindu aged : 48, residing at No.3 Chikoti Gardens, Begumpet, Hyderabad. …Petitioners/Petitioners AND 1. M.A.E. Kumar Krishan Varma S/o. Late M.T. Raju aged about 56 years, Residing at Rockdale Compound, Somajiguda, Hyderabad. 2. The Secretary, Revenue (U.C.-III) Representing the Govt., of A.P., Hyderabad. …Respondents The Court made the following : THE HON’BLE SRI JUSTICE GODA RAGHURAM C.R.P. Nos. 2623, 2629 of 2011 and Tr.C.M.P. No. 453 of 2011 JUDGMENT : C.R.P. 2623 of 2011 is a revision presented under Article 227 of the Constitution, challenging the order dated 08-06-2011 of the learned IX Additional District & Sessions (Fast Track) Court, Visakhapatnam, rejecting I.A.No.2350 of 2010 (an application under Order VI Rule 17 CPC r/w Rule 28 of the Andhra Pradesh Civil Rules of Practice, seeking amendment of the plaint) in O.S.No.212 of 2007. C.R.P. 2629 of 2011 is a revision presented under Section 22 of the A.P. Buildings (Lease, Rent and Eviction) Control Act, 1960 (the ‘Rent Control Act’) directed against the order dated 18-04-2011 of the Learned Rent Controller Cum IV Additional Junior Civil Judge, Visakhapatnam, rejecting I.A.No.198 of 2010 (also an application under Order VI Rule 17 CPC) seeking amendment of the counter in R.C.C.No. 41 of 2007. T.R.C.M.P.No.453 of 2011 is presented under Section 24 CPC seeking transfer of O.S.No.212 of 2007 from the court of the IX Additional District and Sessions Judge (Fast Track Court), Visakhapatnam, to the court of the Principal or any other Additional District and Sessions Judge, Visakhapatnam. All the above proceedings arise out of the orders passed by the respective courts below rejecting applications of the revision petitioners, filed under Order VI Rule 17 CPC, seeking amendment of the plaint in the suit or of the counter in the rent control case, as the case may be. Heard Sri D.Prakash Reddy, learned Senior counsel instructed by Sri. B.Nalin Kumar, learned counsel for the revision petitioners in all the matters; Sri. P.P. Rao, Learned Senior Counsel, instructed by Sri. P. Balaji Verma, in C.R.P.No. 2629 of 2011; and Sri. S.R. Ashok, Learned Senior Counsel, instructed by Sri.P. Balaji Verma in C.R.P.No.2623 of 2011 and in Tr.C.M.P. No.453 of 2011, for the respondents. For the sake of convenience, the revision petitioners are referred to as tenants; and the respondent (who is the same in all three matters) as the landlord, hereinafter. C.R.P.No.2623 of 2011 : This revision arises out of O.S.No.212 of 2007 filed by the tenants seeking (i) a direction to the landlord to renew the lease for a further period of thirty-three years (entered into initially under a registered lease deed, dated 30-03-1974, in respect of property bearing Municipal No.51-1-4, Seethammadara, T.S.No.50, Visakhapatnam Municipality), vide clause -3(vi) of the lease deed, on a rental of Rs.10,000/- per month or such other sum as the Court considers reasonable; (ii) to direct the landlord (the first defendant) to join the tenants in applying for exemption of the schedule property from the provisions of the ULC Act, 1976 or to extend the exemption granted in G.O.427, dated 01-03-1978 for a period co-terminus with the extended lease; (iii) for a direction that in case the landlord fails to join the tenants in applying for exemption and register the lease within three months from the date of the decree, the Court should itself execute and register the lease at the expense of the landlord and after applying to the ULC authorities to grant exemption under the ULC Act; (iv) for an injunction restraining the landlord and his agents, etc., from interfering with the tenants’ peaceful enjoyment of the property; (v) for an injunction restraining the landlord from creating third party interests in the schedule property by way of sale, mortgage, exchange, gift or other forms of alienation; and (vi) for costs and other incidental reliefs. The case of the tenants–plaintiffs in O.S.No.212 of 2007 : In the context of the issues relevant to this revision, the averments in the plaint are : (a) The first plaintiff is the Chief Editor of Eenadu, a Telugu daily newspaper and the second plaintiff an incorporated company and the publisher of the daily. Desirous of starting a newspaper edition from Visakhapatnam, the first plaintiff negotiated with the landlord (the first defendant) who was owning about 9,600 Sq.mts./11,000 Sq.yds. of vacant site together with the building thereon and entered into a lease agreement, registered on 30-03-1974 in respect of the schedule property, on a rent of Rs.2,500/- for the initial fourteen years and Rs.3,000/- per month thereafter. Clause 3(vi) of the lease deed entitled the lessee (the first plaintiff) to renewal for a further period or periods subject to terms and conditions regarding rental and period of lease as mutually agreed upon, provided the lessee gives notice to the lessor of the intention to renew six months before the expiry of the lease; (b) The first plaintiff is authorised to sub-lease the property to any person of his choice; to alter or improve the existing structures and to put up structures permanent or temporary; (c) The first plaintiff granted a sub-lease in favour of the second plaintiff. As the thirty-three years period of the lease was coming to an end, the first plaintiff issued a notice dated 27-09-2006 to the landlord seeking renewal for a further period and for execution and registration of the lease deed, offering a rent of Rs.10,000/- per month for the first fourteen years with an escalation thereafter; and for a further period of thirty-three years; (d) The first defendant responded to the first plaintiff’s notice (dated 27-09-2006) on 20-10-2006 inter alia alleging that the extent of the property was not 9,200 sq.mts. but more and that in respect of a part of the property there was a denial of the title by the tenants. The landlord also returned the deposit of amount of Rs.10,000/-; (e) By a rejoinder dated 13-03-2007 the first plaintiff denied the allegations by the landlord and returned the cheque for Rs.10,000/-; (f) The allegation (in the landlord’s reply notice) that there was a denial of his title as to a portion of the leasehold property is denied. In fact as the extent in occupation of the plaintiffs under the lease was inadequate in view of the expanding business, an additional area was required and there being available vacant land adjoining the demised premises (belonging to the State Government), the plaintiffs approached the Government for assignment of land of an extent of 872 Sq.mts. lying between the rear side boundary of Eenadu and an internal road adjoining the lay-out. The Government by proceedings dated 17- 04-1985 allotted this extent of land to the 2nd plaintiff; (g) The plaint schedule describes the land as of an extent of 11,000 Sq.yds. or approximately 9,200 Sq.mts. with the eastern boundary enumerated as land belonging to M/s. Ushodaya Enterprises Limited, (the second plaintiff); and (h) Hence the suit for specific performance of enforcement of the renewal clause and for injunction and other reliefs. It requires to be noticed that in the landlord’s reply notice dated 20-10-2006 (issued in response to the tenant’s notice dated 27-09-2006) it was specifically alleged that the tenant’s notice describes the eastern aspect of the schedule premises as though there is property belonging to the second plaintiff beyond the landlord’s eastern boundary. In this reply the landlord further alleged - You are aware that the entire property purchased by our client was let out to you within the said boundaries which is admeasuring 13,098 Sq.mts. equivalent to 11,034.78 Sq.mts., i.e., Ac.2.70 cents.; and that the tenant’s description of the property situated beyond the eastern boundary of the schedule property as property belonging to the second plaintiff tantamounts to denial of the landlord’s title in respect of a portion of the property leased out and the tenants are therefore disentitled to seek renewal of lease. The written statement on behalf of the landlord was filed on 20-09-2007 wherein the landlord specifically pleaded that the description of the schedule property (in the plaint) as comprising 9,600 sq.mts. or 11,000 sq.yds. is a mischievous description; that in the lease deed the property is described as approximately 11,000 sq.yds. or 9,200 sq.mts. with specified boundaries including on the east as bounded by land belonging to A.S.P. Narasinga Rao; and that proceedings of the Collector, Visakhapatnam dated 25-10-1986 disclose abuse of Government process and malafides of the plaintiffs, since para – 2 of the said proceedings refers to a communication by the Director of Eenadu wherein the Collector was requested to assess and fix up a reasonable market value of land of 517 sq.mts. belonging to the newspaper which was given on 11-01-1985 for formation of a road and an extent equivalent thereto be treated as an exchange from out of the 872 sq.mts. allotted to the tenants. Further, that the Collector’s proceedings dated 25-10-1986 also referred to a report of the MRO, Visakhapatnam, stating that only Ac.0.07 cents equivalent to 289 sq.mts. belonging to Eenadu was included in the road while the actual extent given to Eenadu is 839 sq.mts. On the basis of the above proceedings of the Collector, the written statement alleged that the plaintiffs misled the authorities by claiming to have surrendered land owned by them; when the plaintiffs did not own any land in T.S.No.50/4 or in the vicinity and therefore could have neither surrendered any land nor sought allotment of land in lieu thereof. On 27-09-2009 issues were settled for trial of the suit and the matter adjourned to 10-06-2009 for trial; and adjourned from time to time thereafter. The trial court framed an additional issue on 14-12-2009 while allowing I.A.No.1286 of 2009 therefor. In the landlord’s revision thereagainst, by the judgment dated 12-04-2010, this Court finally settled the issues for trial of O.S.No.212 of 2007, in C.R.P.No.90 of 2010. I.A.No.685 of 2010 (since renumbered as I.A.No.2350 of 2011) was filed on 06-09- 2010, while the suit was pending adjudication in the VII Addl. Dist. Court, Visakhapatnam; on 22-10-2010 the suit was ordered to be transferred to IV Addl. District Court. In the affidavit (dated 06-09-2010) accompanying I.A.No.2350 of 2010, the core reasons set out by the tenants for seeking extensive amendments to the plaint in O.S.No.212 of 2007, are : (a) They had no knowledge or clarity regarding the actual extent of the lease demised property till the survey report dated 05-03-2008 was filed by the landlord in R.C.C.No.41 of 2007 on the file of the IV Additional Junior Civil Judge – cum – Rent Controller, Visakhapatnam, wherein the extent of the property is shown as Ac.2.71 cents. Had the deponent (first plaintiff) known about the actual extent, there was no reason why the application for exemption under the ULC Act was not filed for the entire extent; (b) Since clarity regarding the extent of the property being Ac.2.71 cents became available from the survey report dated 05-03-2008 (filed in R.C.C.No.41 of 2007) and since the extent mentioned in the sale deed dated 30-07-1968 in favour of the landlord also shows the extent as Ac.2.70 cents, the suit schedule requires to be amended and the extent leased out must reflect as Ac.2.70 cents; (c) The complete facts relating to the execution of the lease deed dated 30-03-1974 (by the landlord in favour of the first plaintiff – tenant) and assignment of 872 sq.mts. of land in favour of the other tenant (second plaintiff) was not mentioned in the plaint; but it is now expedient to plead these facts, in view of the various accusations by the land lord; (d) Assignment of land by the Government in favour of the second plaintiff was mentioned briefly in paragraph – (iii)(l) of the plaint, but elaboration of the relevant facts being necessary, amendment is sought in this regard. The Collector, Visakhapatnam, allotted 872 sq.mts land to the second plaintiff by the order dated 17-04-1985 and the company was put in possession of the same on 20-04-1985, vide delivery receipt of even date. The Government initially fixed the market rate for the land at Rs.300/- per sq. yard vide Collectors proceedings dated 25-10-1986. This was however reduced to Rs.200/- per sq.yd vide Collector’s proceedings dated 05-01-1987; and the entire consideration was paid on 12-02-1987 and 31- 01-1982. This assignment in favour of the second plaintiff is outside the extent of the demised premises (belonging to the landlord) and no part of the landlord’s property was surrendered or given in exchange for the land assigned to the second plaintiff. (e) The first plaintiff was busy in litigation with the Government regarding another business concern of his HUF. There were also interlocutory applications in the suit which were litigated at various levels and hence he could not file the application for amendment of the plaint, earlier. For the aforesaid reasons in brief the tenants sought amendment of the plaint in O.S.No.212 of 2007, as follows: a. To add the words “through his father” after the words “The Plaintiff carried on negotiations with the First Defendant” in paragraph III (a) of the plaint. b. To conclude paragraph III a) of the plaint with the sentence ending with the words “… land on a long term basis” and renumber the subsequent part of the paragraph as new paragraph III f). c. add the following paragraphs as paragraph III b) to III e) of the plaint. i. The Plaintiffs submit that Sri M.T. Raju, the late father of the first defendant, was a Member of Indian Administrative Service. Late Sri M.T. Raju retired as the Chief Secretary of the Andhra Pradesh State Government. At the time of entering into the registered lease deed dated 30-03-1974, he was a Member of Parliament having been elected from Narsapur Parliamentary Constituency. ii. Late Sri M.T. Raju was qualified in Law, being a Bar-at-Law. He was adept and proficient in drafting lease documents, notices, plaints, etc. Late Sri M.T. Raju being possessed of many properties was also consulting lawyers and was taking their opinion on various matters. iii. It is submitted that when late Sri M.T. Raju came to know that the first plaintiff was looking for a suitable property to start businesses, he offered to give the suit schedule property, owned by his son, the first defendant herein on lease. In that context, negotiations were held between late M.T. Raju on behalf of the first defendant herein and the 1st plaintiff herein. Late M.T. Raju was in a dominant position at the time of grant of lease. Sri Late M.T. Raju, furnished the details of the suit scheduled property, among others, the extent as well as boundaries. The first plaintiff had no reason to doubt the details furnished by late M.T. Raju as he retired in a responsible position; was a Member of Parliament and well versed in real estate. Therefore the first Plaintiff readily believed whatsoever information was furnished by late Sri M.T. Raju regarding the suit schedule property. Therefore the lease deed came to be executed on the basis of information furnished by late Sri M.T. Raju without physically measuring the land. iv. It is submitted that under the lease deed dated 30-03- 1974 lease was granted in respect of the suit schedule property, major part of which was covered by compound wall on all the four sides, as is evident from the sketch attached to the lease deed. Further, apart from the area situated within the compound wall on all the four sides, there is an open land beyond the boundary wall on the Eastern side, which was also leased to the petitioner which is also shown separately outside the boundary wall on the eastern side. The open land on the eastern side is neither rectangular nor square but it is in an irregular shape, which is clearly demarcated in the sketch attached to the lease deed. It is also relevant to submit that the entire area leased to the first defendant is demarcated in red line in the sketch attached to the lease deed. It is submitted that the said area leased to the first plaintiff is intact ever since the lease was granted to the first plaintiff. That apart, on an application made by the second plaintiff, an area of 872 sq. meters was assigned to the second plaintiff which is situated in Sy.No.52 on the eastern side adjoining the open area leased to the first plaintiff. The Second plaintiff, for the purpose of securing the property as well as for the beneficial management of the property, constructed another compound wall around the open area leased to the first plaintiff on the eastern side beyond the compound wall shown in the lease deed as well as the land that was assigned to them by the State Government. d. To re-number paragraphs III b) to III l) of the plaint as paragraphs III g) to III q). e. To add the following paragraphs as paragraph III r) to III t) of the plaint. i. The Plaintiffs submit that the Collector, Visakhapatnam was pleased to allot an extent of 872 square meters of land to the second Plaintiff by an order dated 17-04-1985. The land was put in possession of the company on 20-04- 1985 as evidenced by a delivery receipt dated 20-04- 1985. The Plaintiffs submit that the Government has fixed the market rate for the land at Rs.300/- per square yard as per Proceedings of the Collector Visakhapatnam, D.Dis. No.5740/B2 dt. 25-10-1986, but on a representation, reduced it to Rs.200/- per square yard, under Proceedings of the Collector Visakhapatnam, D.Dis. No.5740/B2 dt.05-01-1987. The second Plaintiff paid the entire consideration in the following manner : Challan No. Date Amount in Rs. Rate in Rs. Extent Sq.Yds Sq.Mts. 7378 12-02-1987 84,916 200 428.58 355 8100 31-01-1992 1,23,667 200 618.33 517 Total 2,08,583 1046.01 872 ii. The Plaintiffs submit that this extent of 872 square meters of land allotted/assigned by the government to the Second Plaintiff is to the further East of the suit schedule property. As such the eastern boundary was mentioned in the notice issued by the first Plaintiff, as land belonging to the Second Plaintiff. The Second Plaintiff has paid for the entire extent of land assigned to them and they had not surrendered any part of land belonging to the First Defendant nor was there any exchange of land with the government, as could be gathered from what is mentioned in paragraph III (m) of the plaint. iii. It is respectfully submitted that the first Plaintiff has only been mentioning the extent of lease as 9200 square meters, as the same was furnished by the father of the First Defendant, which was believed in good faith. The Plaintiffs never had an occasion or need to measure the land leased out to them. Further, even by the date of lease of suit schedule property in favour of the first Plaintiff, roads were already formed on the Northern and Western side, as is evident from the schedule to the Lease deed and therefore the question of surrender of land by the Plaintiff for formation of road does not arise. Since Mr. A.S.P. Narasinga Rao was no longer the owner of land in Sy.No.52, to the east of suit schedule property, by the date of notice dated 26-09-2006, the question of mentioning his name as neighbour on the Eastern side, does not arise. f. To re-number existing paragraph III n) to III s) as III u) to III z). g. To amend the plaint schedule, substituting the words 11,000 square yards or approximately 9,200 square meters with the words “approximately Ac.2-70 cents equivalent to 13,078 square yards or 11,034.78 square meters”. The landlord’s pleadings in opposition to the application for amendments : (i) The issues in the suit were framed on 27-04-2009. The application for amendment discloses no reasonable cause or diligence; and having been filed after commencement of the trial of the suit, is not maintainable; (ii) The real intention and motive for filing the amendment application is to wriggle out of the criminal case in Crime No.1160 of 2007 wherein a charge-sheet was filed and the Magistrate took cognizance of the offence, numbered as C.C.No.394 of 2010, pending trial before the IVth Additional Chief Metropolitan Magistrate, Visakhapatnam. The present amendment is an attempt to contrive a defence in the said criminal proceedings; (iii) A charge-sheet was filed in Crime No.1160 of 2007, under Sections 406, 409, 417, 418, 420, 423 and 427 read with 34 IPC against the revision petitioners herein and one Cherukuri Kiran (son of the first revision petitioner), Managing Director of the second revision petitioner. The essence of the charges is that having obtained lease of property of an extent of Ac.2.78 cents in Survey No.50/4, the accused with a criminal intention and without the knowledge of the landlord surrendered Ac.0.07 cents in Survey No.50/4 (out of the leased property) for formation of a road, asserting ownership, suppressing the fact of being a lessee. In view of such surrender the petitioners applied to the Revenue authorities through one of the Directors of the 2nd petitioner for assignment of land. The Revenue authorities handed over an extent of 872 sq.mts., of which an extent of 289 sq.mts. was in lieu of the land surrendered, belonging to the landlord. Even in Criminal Petition No.7399 of 2007 filed before this Court (for quashing of Crime No.1160 of 2007), the accused including the revision petitioners herein clearly asserted that the landlord had purchased 11,034.78 sq.mts. under a sale deed dated 30-07-1968 but granted lease of only 9200 sq.mts under the lease deed dated 30-03-1974. Even in Criminal Petition No.117 of 2008 (filed for anticipatory bail), the accused clearly asserted that though the landlord purchased 11,034.78 sq.mts. had granted lease only of an extent of 9,200 sq.mts. The revision petitioners had thus clear anterior knowledge of the actual extent of the property belonging to the landlord and as regards their claim, that the assignment of land by the Government was not on account of surrender of any land belonging to the landlord to the State for road formation. (iv) The amendment pertaining to the extent of the lease demised property is mischievous, malafide, belated and