THE HON’BLE SRI JUSTICE K.C.BHANU CIVIL REVISION PETITON NO.5746 OF 2007 DATED: 03-02-2011. Between K.Radha Mohan Prasad … Petitioner-Defendant And Md.Khaleel …Respondent-Plaintiff THE HON’BLE SRI JUSTICE K.C.BHANU CIVIL REVISION PETITON NO.5746 OF 2007 ORDER: This revision is directed against the judgment and decree, dated 27-06-2005, in O.S.No.167 of 2002 on the file of the Principal Senior Civil Judge, Kurnool. 2. Petitioner herein is the defendant and the respondent herein is the plaintiff in the suit. 3. The plaintiff filed the suit to direct the defendant to put him possession of plaint schedule property described as ABCD in the plaint plan, to grant mandatory injunction directing the defendant to restore the plaint schedule shop to its original position by re-constructing its eastern and southern walls shown as CD and AD respectively along with iron shutters and iron girders and the Mancha and by laying the iron sheets as per the specification shown in the plaint plan and if the defendant fails to do so, get it done through the process of Court. 4. It is averred in the plaint that the defendant is the owner of the plaint schedule premises and the plaintiff has been tenant in the premises since 1981 and he made improvements in the said premises by spending Rs.40,000/- making it suitable to his professional needs. Later the defendant filed RCC 9 of 1994 before the Rent Controller, Kurnool for eviction of the plaintiff on the ground of personal requirement of his handicapped son and the same was allowed. On appeal in CMA 1 of 1999, the Rent Control Appellate Authority set aside the said order. Against the said order, the defendant filed revision in CRP 4777of 1999 before the High Court of Andhra Pradesh. The plaintiff has been paying agreed rent regularly without fail every month through money order, but the defendant brought pressure on him through police to vacate the premises by force on 05-01-2002, as a result, the plaintiff became sick and was hospitalized. The plaintiff got issued notice to the defendant. But all of sudden on 24-01-2002 at about 3.00 P.M. the defendant along with others came to the premises in the absence of the plaintiff and forcibly entered into the building bearing No.40/11 and kept some racks in side the shop with a view to create evidence to show that the shop was in their possession. When the defendant and his men tried to use criminal force against the son of the plaintiff by name Md.Iftheqor, he tried to contact Superintendent of Police on telephone. On 25-1-2002 at about 9.00 A.M. all the men of the defendant and the defendant have broke open the locks of the shop and removed samans in the shop and kept them on the road and started demolishing the building. On coming to know about the same, the son of the plaintiff rushed to the shop and questioned the defendant, but the defendant challenged him to report the matter to whomsoever he wants by stating that police people had instructed them to do so. The plaintiff who was away from Kurnool as he has been to Venukonda returned to Kurnool in the night of 25-01-2002 and learnt about the demolition of shop. In the first week of February, 2002, the plaintiff received notice from the defendant’s advocate as if the plaintiff himself voluntarily gave possession of the premises to the defendant and that the defendant demolished it. Then the plaintiff approached the Superintendent of Police, Kurnool, who directed the plaintiff to approach the Deputy Superintendent of Police. The Deputy Superintendent of Police advised the defendant to reconstruct the building and to deliver the same to the plaintiff. But the defendant agreed to deliver only half of the site by laying kottam on monthly rent of Rs.2,000/- for which the plaintiff did not agree. The son of the plaintiff also filed a criminal complaint against the defendant and it is pending. Because of the pendency of criminal case, the plaintiff was under impression that he would get possession of the premises, but later he realized that the demolition of the shop was no brought to the notice of the concerned Magistrate. Hence, he filed the suit. 5. The defendant filed written statement denying the averments in the plaint and admitting about filing of RCC, CMA and CRP. The said CRP 4777 of 1999 was dismissed. It is stated that after mediation, the plaintiff vacated the premises on 25-01-2002 and delivered vacant possession to the defendant and as the defendant wanted to re-construct the old cement sheet roofed premises to suit his son’s requirement, the old building was demolished. The plaintiff with an ulterior motive brought back some of the articles like computer, one broken scooter and another scooter spare parts and kept them near the demolished shop. As the acts of the plaintiff and his supporters were un-understandable and suspecting mala fides, the defendant got issued notice to the plaintiff stating correct facts and demanding the plaintiff not to involve the defendant in unnecessary litigation. The police of II Town Police Station, Kurnool registered a case in Cr.No.52 of 2002 when the complaint filed by the plaintiff was referred to them, but subsequently referred the case stating that it was a mistake of fact as it was of civil nature. The plaintiff is trying to built up false case against the defendant step by step and trying to involve the defendant in criminal and civil litigation to cause mental agony. Since the plaintiff vacated and handed over the premises to defendant and he is no more a tenant of the defendant, he has no right to restore possession and the question of defendant again getting him vacated through due process of law does not arise. There is no cause of action for the plaintiff to file the suit and the Court fee paid is not correct. The reliefs sought for by the plaintiff are impossible of being granted since there is no shop building as such existing in the suit schedule premises. Hence, he prays to dismiss the suit. 6. Basing on the above pleadings, the following issues were settled by the trial Court: 1. Whether there exists the relationship of landlord and tenant between the plaintiff and defendant in relation to the suit property? 2. Whether the plaintiff was dispossessed from the premises that existed on the suit site high handedly and without recourse to due process of law? 3. Whether the defendant has to re-erect the premises in the suit site and if a mandatory injunction be issued against him at the instance of the plaintiff? 4. Whether the plaintiff is entitled for the possession of the plaint schedule property? 5. Whether the suit as framed is maintainable? 6. Whether the suit is barred by time? 7. To what relief? The following Additional issue was framed on 09-04-2004: Whether the plaintiff has voluntarily vacated the premises as per mutual settlement and delivered vacant possession as pleaded by the defendant? 7. On behalf of the plaintiff, P.Ws.1 to 3 were examined and Exs.A1 to A33 were marked. On behalf of the defendant, D.Ws.1 and 2 were examined and Ex.B1 was marked. 8. The trial Court after consideration of oral and documentary evidence on record, decreed the suit. Aggrieved thereby, the defendant filed this revision. 9. Learned counsel appearing for the petitioner-defendant contended that the respondent-plaintiff voluntarily vacated the premises and after his vacation, the shop was demolished, that therefore, question of restoring possession to the plaintiff does not arise, that the evidence of D.Ws. 1 and 2 is very clear that the plaintiff voluntarily vacated the shop and hence, she prays to set aside the impugned judgment. 10. On the other hand, learned counsel appearing for the respondent-plaintiff contended that the plaintiff is a tenant for over 20 years as on the date of alleged voluntarily vacating the premises, that on earlier occasion, when the defendant filed petition for eviction of the plaintiff, the same was contested before the Rent Controller, Appellate Court and also before this Court, that in such circumstances, the plaintiff would not have vacated the premises without seeking for legal and other incidental expenses incurred for prosecuting the case in all the forums, that the trial Court after elaborate consideration of evidence on record, rightly decreed the suit and absolutely, there are no grounds to interfere with the same. 11. Revisional powers can be exercised by this Court when there is a mis-carriage of justice or glaring injustice was done to the party or findings are not based upon admissible evidence or inadmissible evidence was taken into consideration or the evidence has been misread. Therefore, in short, there must be perverse findings so as to call for interference by this Court. 12. The entire case rests upon the additional issue, dated 09-04-2004 framed by the trial Court. It is an admitted fact that the plaintiff entered into possession of the building bearing No.40/11 in the year 1981 as a tenant under the defendant. It is also an admitted fact that the defendant filed a case in RCC 9/94 on the file of Rent Controller- cum-Principal Junior Civil Judge, Kurnool for eviction of plaintiff from the said building for the purpose for his physically handicapped son by name K.Deepu Prasad to run a business and the same was allowed. It is also an admitted fact that plaintiff filed CMA 1/99 against the eviction order before the Rent Control Appellate Authority-cum-Principal Senior Civil Judge, Kurnool and the same was allowed. It is also an admitted fact that defendant preferred revision in CRP 4777/99 before this Court against the orders in CMA 1/99 and the same was dismissed on 06-07- 2001. Therefore, in view of long standing legal battle between the parties, no prudent man would vacate the premises without there being any condition. The plaintiff is running the business in the premises in question and he said to be the tenant continuing the premises from the year 1981. Thereafter, some disputes arose between them. The case of the defendant is that the plaintiff vacated the premises on 24-01-2002, just five months after passing of the order in favour of the plaintiff. Therefore, in such circumstances, it is highly unbelievable that the plaintiff has voluntarily agreed to handover possession even without asking for any legal expenses incurred for prosecuting the cases in three forums. Similarly, the defendant ought to have obtained written document from the plaintiff when he voluntarily agreed to vacate the premises. No such document was reduced into writing. No explanation was given by the defendant as to why such a document was not obtained from the plaintiff especially when there were some misunderstandings between the parties exist about five or six years prior to vacating the premises in question. 13. The evidence of P.Ws. 1 to 3 is very clear that the plaintiff was dispossessed forcibly and there is no other reason for them to foist a false case of this nature stating that he was forcibly evicted. If really, he voluntarily vacated the premises, the question of filing any eviction petition by the defendant does not arise. When the plaintiff was dispossessed from the shop in question, there was a delay in lodging the report though the Police Station is very close to the premises in question. Further, there was a delay in filing the suit before the trial Court, but that cannot be a ground to discredit the testimony of P.Ws. 1 to 3 especially they have no other reason to foist a false case stating that plaintiff was forcibly dispossessed from the suit schedule premises. In view of the fact that the defendant has taken a specific plea that the plaintiff voluntarily vacated the premises in question, the burden of proof on Additional Issue, dated 09-04-2004, is squarely upon the defendant. To substantiate the same, D.W.1 who is the defendant and D.W.2, who is a practicing Advocate were examined. D.W.1 has not given any explanation as to why he has not obtained any written document from the plaintiff when he voluntarily vacated the premises in question. Similarly, the presence of D.W.2 is also very much doubtful because he is not a resident of that locality nor place where the shop is located. If really, the plaintiff has vacated the premises and D.W.2 was present at that time, D.W.2 would have advised D.W.1 to obtain a written document from the plaintiff so as to avoid any future complications. Furthermore, D.W.2 is closely related to D.W.1. Therefore, in view of his close relationship, the possibility of supporting the case of the defendant, cannot be ruled out. The mediators said to have been present at the time of vacating the premises, were not examined by the defendant. No explanation is forthcoming for not examining them. Therefore, for withholding all the material witnesses who allegedly present at the time of vacating the premises, an adverse inference can be drawn. The trial Court after proper appreciation of evidence on record, rightly decreed the suit and absolutely, there is no need to interfere with the impugned judgment. 14. Accordingly, the Civil Revision Petition is dismissed. No order as to costs. --------------------- K.C.BHANU, J DATED: 03-02-2011 Hsd