Interim custody of crime vehicle = 457. Procedure by police upon seizure of property. (1) Whenever the seizure of property by any police officer is reported to a Magistrate under the provisions of this Code, and such property is not produced before a Criminal Court during an inquiry or trial, the Magistrate may make such order as he thinks fit respecting the disposal of such property or the delivery of such property to the person entitled to the possession thereof, or if such person cannot be ascertained, respecting the custody and production of such property. (2) If the person so entitled is known, the Magistrate may order the property to be delivered to him on such conditions (if any) as the Magistrate thinks fit and if such person is unknown, the Magistrate may detain it and shall, in such case, issue a proclamation specifying the articles of which such property consists, and requiring any person who may have a claim thereto, 3 to appear before him and establish his claim within six months from the date of such proclamation. There is no dispute with regard to the petitioner’s ownership over the vehicle. It is clear that there is no bar under the NDPS Act on the Courts to order for interim custody of a vehicle which is seized in a crime registered for the offences under the said Act. Section 63 of the NDPS Act reads thus: “(1) In the trial of offences under this Act, whether the accused is convicted or acquitted or discharged, the court shall decide whether any article or thing seized under this Act is liable to confiscation under section 60 or section 61 or section 62 and, if it decides that the article is so liable, it may order confiscation accordingly. (2) Where any article or thing seized under this Act appears to be liable to confiscation under section 60 or section 61 or section 62, but the person who committed the offence in connection therewith is not known or cannot be found, the court may inquire into and decide such liability, and may order confiscation accordingly: Provided that no order of confiscation of an article or thing shall be made until the expiry of one month from the date of seizure, or without hearing any person who may claim any right thereto and the evidence, if any, which he produces in respect of his claim: Provided further that if any such article or thing, other than a narcotic drug, psychotropic substance, 1[controlled substance,] the opium poppy, coca plant or cannabis plant is liable to speedy and natural decay, or if the court is of opinion that its sale would be for the benefit of its owner, it may at any time direct it to be sold; and the provisions of this sub-section shall, as nearly as may be practicable, apply to the net proceeds of the sale. 9. From the above it is clear that the Court shall decide whether a vehicle seized in connection with crime registered under the provisions of the NDPS Act is liable for confiscation or not only at the time of convicting, acquitting or discharging the accused. But there is 4 no mention that interim custody of a vehicle cannot be ordered. Further if the vehicle is kept idle it will render useless and there is every likelihood of the vehicle getting destroyed.

457. Procedure by police upon seizure of property. (1) Whenever the seizure of property by any police officer is reported to a Magistrate under the provisions of this Code, and such property is not produced before a Criminal Court during an inquiry or trial, the Magistrate may make such order as he thinks fit respecting the disposal of such property or the delivery of such property to the person entitled to the possession thereof, or if such person cannot be ascertained, respecting the custody and production of such property. (2) If the person so entitled is known, the Magistrate may order the property to be delivered to him on such conditions (if any) as the Magistrate thinks fit and if such person is unknown, the Magistrate may detain it and shall, in such case, issue a proclamation specifying the articles of which such property consists, and requiring any person who may have a claim thereto, 3 to appear before him and establish his claim within six months from the date of such proclamation. 

There is no dispute with regard to the petitioner’s ownership over the vehicle. It is clear that there is no bar under the NDPS Act on the Courts to order for interim custody of a vehicle which is seized in a crime registered for the offences under the said Act. Section 63 of the NDPS Act reads thus: “(1) In the trial of offences under this Act, whether the accused is convicted or acquitted or discharged, the court shall decide whether any article or thing seized under this Act is liable to confiscation under section 60 or section 61 or section 62 and, if it decides that the article is so liable, it may order confiscation accordingly. (2) Where any article or thing seized under this Act appears to be liable to confiscation under section 60 or section 61 or section 62, but the person who committed the offence in connection therewith is not known or cannot be found, the court may inquire into and decide such liability, and may order confiscation accordingly: Provided that no order of confiscation of an article or thing shall be made until the expiry of one month from the date of seizure, or without hearing any person who may claim any right thereto and the evidence, if any, which he produces in respect of his claim: Provided further that if any such article or thing, other than a narcotic drug, psychotropic substance, 1[controlled substance,] the opium poppy, coca plant or cannabis plant is liable to speedy and natural decay, or if the court is of opinion that its sale would be for the benefit of its owner, it may at any time direct it to be sold; and the provisions of this sub-section shall, as nearly as may be practicable, apply to the net proceeds of the sale. 9. From the above it is clear that the Court shall decide whether a vehicle seized in connection with crime registered under the provisions of the NDPS Act is liable for confiscation or not only at the time of convicting, acquitting or discharging the accused. But there is 4 no mention that interim custody of a vehicle cannot be ordered. Further if the vehicle is kept idle it will render useless and there is every likelihood of the vehicle getting destroyed. 

AP. HIGH COURT AMARAVATHI 

THE HON’BLE SMT JUSTICE LALITHA KANNEGANTI

CRIMINAL REVISION CASE No.504 of 2020

Kolluri Sunitha

-vs-

THE STATE OF ANDHRA PRADESH

ORDER:-

 This Criminal Revision Case is filed under Sections 397 and

401 of the Code of Criminal Procedure, 1973 (for short ‘Cr.P.C.’)

seeking to set aside the order dated 14.09.2020 passed in

Crl.M.P.No.1 of 2020 in crime No.34 of 2020 passed by the learned

Special Court for Trial of Offences under the Narcotic Drugs and

Psychotropic Substances Act, 1985 –Cum-I Additional District and

Sessions Judge, Prakasam District, Ongole and consequently

release the vehicle i.e. Hyundai Red I20 car bearing registration

No.AP 27 BT 7013.

2. Heard Sri Marri Venkata Ramana, learned counsel for the

petitioner and learned Public Prosecutor appearing on behalf of

respondent No.1-State.

3. The learned counsel for the petitioner submits that the vehicle

was seized by the Police in connection with crime No.34m of 2020

registered for the offences punishable under Sections 354A, 354D,

506, 509, 366 of the Indian Penal Code, 1860 (for short ‘I.P.C.’ and

Section 20(B) and 8(c) of the Narcotic Drugs and Psychotropic

Substances Act, 1985 (for short ‘NDPS Act’). Subsequent to the

seizure of the vehicle, the petitioner approached the Court below by

filing a petition under Section 457 Cr.P.C. seeking interim custody of

the subject vehicle. But the said petition was dismissed on the

ground that the petitioner is not third party and she is mother of

respondent No.2/accused in the crime. In the order impugned it was

also observed that without disclosing the said fact the petitioner has 

2

filed the petition as third party and the Court has also observed that

if once the vehicle is released on interim custody, the same will go

into the hands of the accused being her son against whom there is

accusation under NDPS Act. There is strong apprehension from the

Police that he would do similar offences by using the said vehicle.

4. Learned counsel for the petitioner also submits that in the

cause title itself it was shown that the petitioner and respondent

No.2/accused are wife and son of Ramanaiah @ Venkata Ramanaiah.

There is no intention on the part of the petitioner to suppress the

said fact. He also submits that if the vehicle is kept idle it will render

useless and there is every likelihood of the vehicle getting damaged.

5. Learned counsel for the petitioner also submits that even if a

vehicle is seized under NDPS Act for use of the vehicle in transporting

narcotic goods, the owner is entitled for interim custody of the vehicle

and this Court has granted interim custody of the vehicles in similar

cases. Hence, this petition may be allowed.

6. It is appropriate to extract Section 457 of Cr.P.C which reads

thus:

457. Procedure by police upon seizure of property.

(1) Whenever the seizure of property by any police officer is

reported to a Magistrate under the provisions of this Code, and

such property is not produced before a Criminal Court during an

inquiry or trial, the Magistrate may make such order as he thinks

fit respecting the disposal of such property or the delivery of such

property to the person entitled to the possession thereof, or if

such person cannot be ascertained, respecting the custody and

production of such property.

(2) If the person so entitled is known, the Magistrate may

order the property to be delivered to him on such conditions (if

any) as the Magistrate thinks fit and if such person is unknown,

the Magistrate may detain it and shall, in such case, issue a

proclamation specifying the articles of which such property

consists, and requiring any person who may have a claim thereto, 

3

to appear before him and establish his claim within six months

from the date of such proclamation.

7. As per Section 457 of Cr.P.C., if the person is known and when

there is no dispute about the ownership of the vehicle, the Magistrate

may order delivery of the property to him on such conditions as the

Magistrate thinks fit.

8. There is no dispute with regard to the petitioner’s ownership

over the vehicle. It is clear that there is no bar under the NDPS Act

on the Courts to order for interim custody of a vehicle which is seized

in a crime registered for the offences under the said Act. Section 63 of

the NDPS Act reads thus:

“(1) In the trial of offences under this Act, whether the accused is

convicted or acquitted or discharged, the court shall decide

whether any article or thing seized under this Act is liable to

confiscation under section 60 or section 61 or section 62 and, if it

decides that the article is so liable, it may order confiscation

accordingly.

(2) Where any article or thing seized under this Act appears to be

liable to confiscation under section 60 or section 61 or section 62,

but the person who committed the offence in connection

therewith is not known or cannot be found, the court may inquire

into and decide such liability, and may order confiscation

accordingly: Provided that no order of confiscation of an article or

thing shall be made until the expiry of one month from the date of

seizure, or without hearing any person who may claim any right

thereto and the evidence, if any, which he produces in respect of

his claim: Provided further that if any such article or thing, other

than a narcotic drug, psychotropic substance, 1[controlled

substance,] the opium poppy, coca plant or cannabis plant is

liable to speedy and natural decay, or if the court is of opinion

that its sale would be for the benefit of its owner, it may at any

time direct it to be sold; and the provisions of this sub-section

shall, as nearly as may be practicable, apply to the net proceeds

of the sale.

9. From the above it is clear that the Court shall decide whether a

vehicle seized in connection with crime registered under the

provisions of the NDPS Act is liable for confiscation or not only at the

time of convicting, acquitting or discharging the accused. But there is 

4

no mention that interim custody of a vehicle cannot be ordered.

Further if the vehicle is kept idle it will render useless and there is

every likelihood of the vehicle getting destroyed.

10. Taking into consideration the submissions made by the learned

counsel for the petitioner and in view of the settled law this Court

feels it appropriate to grant interim custody of the vehicle to the

petitioner by imposing certain conditions.

11. Accordingly the criminal revision case is allowed and the order

dated 14.09.2020 passed in Crl.M.P.No.1 of 2020 by the learned

Special Court Designated for Trial of Offences Under the Narcotic

Drugs and Psychotropic Substances Act, 1985 –Cum- I Additional

District and Sessions Judge, Prakasam District, Ongole, is set aside.

The vehicle i.e. Hyundai Red I20 car bearing registration No.AP27 BT

7013 is ordered to be given interim custody to the petitioner on

condition of her executing a bond for a sum of Rs.1,00,000/- (Rupees

one lakh only) with one surety for a likesum to the satisfaction of the

Special Court Designated for Trial of Offence Under the Narcotic

Drugs and Psychotropic Substances Act, 1985-cum-I Additional

District and Sessions Judge, Prakasam District, Ongole.

As a sequel, all the pending miscellaneous applications are

closed.

____________________________________

JUSTICE LALITHA KANNEGANTI

Date : 05.01.2021

IKN

 

5

THE HON’BLE SMT JUSTICE LALITHA KANNEGANTI

Allowed

CRIMINAL REVISION CASE No.504 of 2020

05.01.2021

IKN 

6 

seeking to enlarge the petitioner/Accused on bail in the event of his arrest in connection with Crime No.28 of 2021 on the file of Varikuntapadu Police Station, SPSR Nellore District, registered for the offences under Sections 417, 420, 465, 466, 468, 471, 473 r/w 120b of Indian Penal Code, 1860= As the offences registered against the petitioner are punishable with less than seven years imprisonment, this Court deems it fit to pass a direction to the Investigating Officer to follow the guidelines prescribed by the Hon’ble apex Court in Arnesh Kumar (supra) and the procedure prescribed in Section 41-A of Cr.P.C.

AP HIGH COURT 

THE HON’BLE SRI JUSTICE K. SURESH REDDY

CRIMINAL PETITION No.2928 OF 2021

SMT NADELLA RAMA DEVI

-VS-

THE STATE OF ANDHRA PRADESH

ORDER:

 This Criminal Petition is filed under section 438 of the Code of

Criminal Procedure, 1973 (for short ‘Cr.P.C.’) seeking to enlarge the

petitioner/Accused on bail in the event of his arrest in connection with

Crime No.28 of 2021 on the file of Varikuntapadu Police Station, SPSR

Nellore District, registered for the offences under Sections 417, 420, 465,

466, 468, 471, 473 r/w 120b of Indian Penal Code, 1860 (for short IPC).

2. Heard the counsel for the petitioner and the Additional Public

Prosecutor appearing for the 1st respondent / State.

3. Learned counsel for the petitioner submits that as the offences

registered against the petitioner are punishable with less than seven

years imprisonment, requested this Court directing the Investigating

Officer to follow the procedure prescribed under Section 41-A of Cr.P.C.,

and the guidelines prescribed by the Apex Court in Arnesh Kumar v.

State of Bihar1.

4. The learned Additional Public Prosecutor stated that he has no

objection for issuing such a direction.

5. As the offences registered against the petitioner are punishable

with less than seven years imprisonment, this Court deems it fit to pass

a direction to the Investigating Officer to follow the guidelines prescribed

by the Hon’ble apex Court in Arnesh Kumar (supra) and the procedure

prescribed in Section 41-A of Cr.P.C.

1

(2014) 8 SCC 273

2

6. In the result, the criminal petition is disposed of, directing the

Investigating Officer to follow the procedure prescribed in Section 41-A of

Cr.P.C., and the guidelines issued by the Hon’ble apex Court in Arnesh

Kumar (supra).

 As a sequel, the miscellaneous applications, if any pending, shall

stand closed.

_______________________

K. SURESH REDDY, J

20th May, 2021

sj 

3

11

THE HON’BLE SRI JUSTICE K. SURESH REDDY

CRIMINAL PETITION No.2928 OF 2021

Dated : 20.05.2021

sj 

Though the learned Senior counsel submits that this Court as well as the Sessions Court have got concurrent jurisdiction, this Court is not inclined to entertain this petition directly without moving the same before the trial Judge, where entire material including remand report will be available on his production. It is also to be noted here that the petitioner is still in police custody and he is not yet produced before appropriate Court for judicial remand. In that view of the matter, this Court is not inclined to entertain the present petition seeing bail and the same is liable to be dismissed.;Even assuming for the sake of argument, that an application seeking bail is maintainable at this stage, but the guidelines framed for hearing bail applications during Summer Vacation -2021 categorically states as under : Criminal Matters : i) Anticipatory bail matters ii) Bail applications, if bail is refused by Magistrates and Sessions Judges/ Additional Sessions Judges. 3 iii) Criminal Appeals and Criminal Revision Cases in which the accused are convicted. 8. As per the above guidelines, it is very much clear that only against the orders passed dismissing the bail application by the trial Court, then only, bail application can be moved before this Court.;

AP HIGH COURT

THE HON’BLE SRI JUSTICE K. SURESH REDDY

CRIMINAL PETITION No.2998 OF 2021

k Raghurama krishna Raju

-VS-

State of ap

ORDER:

This petition is filed under Sections 437 and 439 of the

Code of Criminal Procedure, 1973 to enlarge the

petitioner/Accused on bail in Crime No.12 of 2021 of CID Police

Station, Mangalagiri, Guntur, Andhra Pradesh, registered for the

offences punishable under Sections 124-A, 153(A), 505 r/w 120-

B of Indian Penal Code, 1860 (for short ‘IPC’).

2. Brief facts of the case are that the petitioner is Member of

Parliament having been elected to Lok Sabha from Narasapuram

Parliamentary constituency in Andhra Pradesh. While so, on

14.5.2021 at about 5.00 pm., police arrested the petitioner at his

residence at Hyderabad in the above crime, as he has been

indulging in hate speeches against certain communities and

promoting disaffection against the Government, which will cause

loss of faith in the Government and also cause disturbances.

3. This petition was moved by way of House Motion on

14.5.2021 and the same was allotted to this Court at about 10.30

pm., As there is no technical staff to operate Blue Jeans App and

there is no Court Master and Court Officer because of Lock down

imposed in the State of Andhra Pradesh, it was heard through

telephone. With the consent of both the learned counsels, the

present petition is taken up today for hearing.

2

4. Heard learned Senior counsel Sri B.Adinarayana Rao for

the petitioner as well as the learned Additional Advocate General

for the respondents.

5. As the petitioner has not moved any application seeking bail

before the Sessions Judge, this Court has taken objection for the

same. Learned Senior counsel submitted that there is concurrent

jurisdiction in entertaining bail applications by the High Court as

well as the Sessions Court. In support of his contentions, learned

Senior Counsel has placed reliance on the judgments reported in

2014 (16) SCC 623 and also 2018 SCC On-line Hyderabad

224.

6. On the other hand, learned Additional Advocate General

has opposed the petition and stated that the present petition filed

under Sections 437 and 439 Cr.P.C., is not at all maintainable as

the petitioner was not yet produced before the concerned

Magistrate. In support of his contentions, learned Additional

Advocate General has placed reliance on the judgments reported

in 2019 (2) ALT (Crl.) 209 (DB) and 2004 (7) SCC 558.

7. Even assuming for the sake of argument, that an

application seeking bail is maintainable at this stage, but the

guidelines framed for hearing bail applications during Summer

Vacation -2021 categorically states as under :

Criminal Matters :

i) Anticipatory bail matters

ii) Bail applications, if bail is refused by Magistrates and

Sessions Judges/ Additional Sessions Judges.

3

iii) Criminal Appeals and Criminal Revision Cases in

which the accused are convicted.

8. As per the above guidelines, it is very much clear that only

against the orders passed dismissing the bail application by the

trial Court, then only, bail application can be moved before this

Court.

9. Though the learned Senior counsel submits that this Court

as well as the Sessions Court have got concurrent jurisdiction,

this Court is not inclined to entertain this petition directly without

moving the same before the trial Judge, where entire material

including remand report will be available on his production. It is

also to be noted here that the petitioner is still in police custody

and he is not yet produced before appropriate Court for judicial

remand.

10. In that view of the matter, this Court is not inclined to

entertain the present petition seeing bail and the same is liable to

be dismissed. However, the petitioner can approach the

concerned trial Judge and seek necessary reliefs.

With the above observation, the Criminal Petition is

dismissed.

As a sequel, the miscellaneous applications, if any, shall

stand closed.

4

_______________________

K. SURESH REDDY, J

Date : 15.5.2021.

Note: Furnish C.C. today

B/o

RPD

5

THE HON’BLE SRI JUSTICE K. SURESH REDDY

CRIMINAL PETITION No.2998 of 2021

Date : 15.5.2021

Note: Furnish C.C. today

B/o

RPD

ORDER 39 RULE 1 &2 - SUIT FOR CANCELLATION OF REG. GIFT DEED AND ALSO FOR PARTITION - We feel that there is nothing wrong in trial Court looking into the evidence of P.W.1 and deciding the issue without reference to the documents, more particularly, Aadhar card, gas connection, correspondence from Margadarsi finance, renewal of driving licence etc., belonging to the appellant – plaintiff. Probably all these documents were marked only to show that the appellant - plaintiff was residing at the said place. Nonconsideration of these documents, in our view, may not go to the root of the matter, while deciding granting of injunction, in view of the evidence of P.W.1, who is the plaintiff himself. 15. In paragraph 13 of the plaint it has been stated that, the appellant – plaintiff is in possession of the plaint schedule property along with his brother 2nd respondent – 2nd defendant, since the same is a family property. But, in the evidence of P.W.1, it has been elicited that, in the month of November, 2019, he came from U.S.A. He stayed in Gowtham Lodge, Tenali. His own evidence shows that his father is residing in the ground floor portion of the suit property and he also admits that his father gave a report against him in II Town Police Station, Tenali, alleging that the appellant – plaintiff is harassing him. From the above, prima facie, it appears that the plea taken that he is in possession of the property may not be correct. Apart from that it is also elicited in the crossexamination of P.W.1 that, in the first floor of the property, one tenant is residing and the tenant is paying rent to his sister through online banking. The evidence also shows that his sister 9 got mutated her name in municipal records in pursuance of Ex.A1 gift deed. Apart from that, she got mutated her name in electricity service records as well. Therefore, prima facie, the evidence of P.W.1 itself shows that he was not in possession of the property. Even as per recitals of gift deed – Ex.A1, the property stands in the name of the 1st respondent – 1st defendant and the possession of the suit schedule property was delivered to her by Vijaya Lakshmi. 16. Apart from all these things it is also to be noted that, appellant – plaintiff also sought partition of the property and allotment of share to him and other respondents – defendants. As per the averments in the plaint, they are in the joint possession of the property. Such being the position, the question of granting temporary injunction against co-owners would not arise.

AP HIGH COURT

AP HIGH COURT

THE HON’BLE SRI JUSTICE C.PRAVEEN KUMAR

AND

THE HON’BLE SMT. JUSTICE KONGARA VIJAYA LAKSHMI

Civil Miscellaneous Appeal No.157 of 2020

Senithangappa Srinivasa Rao

-VS-

Vemulapalli Roja Kishore

JUDGMENT : (per the Hon’ble Sri Justice C.Praveen Kumar)

1. Assailing the order dated 13.2.2020 passed in I.A.No.427

of 2017 in O.S.No.24 of 2017 on the file of the

XI Additional District and Sessions Judge, Tenali, the present

Civil Miscellaneous Appeal is filed under Order 43 Rule 1 C.P.C.

2. The facts, which lead to filing of the appeal, are as under :

 The appellant herein who is the plaintiff in the suit filed

the suit against respondents – defendants for cancellation of a

registered sale deed said to have been executed by one Vijaya

Lakshmi, who is the mother of both parties. According to the

appellant – plaintiff, his parents gave Rs.50,00,000/-, gold and

silver jewellery worth Rs.70,00,000/- on the occasion of

marriage of the 1st respondent – 1st defendant in the year 1993

towards Sthridhana. According to him, the said Vijaya Lakshmi,

who is also mother of the appellant, refused to give ‘A’ schedule

property to the 1st respondent – 1st defendant. It is stated that

the 1st respondent – 1st defendant and her daughter, who is a

Doctor, provided treatment to their mother at Guntur, as she fell

sick due to cancer. The daughter of the 1st respondent – 1st

defendant is said to have caused mental agony, physical

sufferance and mental loss to Vijaya Lakshmi. On account of

negligence, misconduct etc., she died on 2.3.2017. It is pleaded 

 2

that the 1st respondent – 1st defendant, her husband and

daughter kept quiet till their mother became unsound and

unable to acknowledge the worldly affairs and thereafter, got

executed the alleged gift deed in their favour on 22.2.2017.

Hence, he pleaded that, alleged gift deed is not valid, illegal and

unenforceable and accordingly, the same is liable to be

cancelled. It is further stated that, the appellant – plaintiff is

entitled to 1/3rd share in the plaint ‘A’ schedule property by way

of partition and that they are in possession and enjoyment of the

same. It is urged that the 1st respondent – 1st defendant and her

men are making every effort to dispossess the appellant –

plaintiff from the plaint schedule property and are making

efforts to alienate the said property to third parties. Under those

circumstances, he sought for a temporary injunction restraining

the 1st respondent – 1st defendant and her men from interfering

with peaceful possession and enjoyment of the rights of the

appellant – plaintiff in plaint ‘A’ schedule property.

3. The 2nd respondent – 2nd defendant remained ex parte,

while the 1st respondent – 1st defendant filed counter denying

the averments in the petition. It has been stated that the

1st respondent – 1st defendant took every care of her mother and

got her treated in best of the hospitals in Vijayawada and

Guntur. In fact, it is stated that, she also took her mother to

Hyderabad and got her treated in KIMS in the month of July,

2016 and an operation was performed by Dr.Jagadishwar Goud.

As the appellant – plaintiff was in U.S.A. at that time, he may 

 3

not be knowing these facts. It is also stated that, after the

operation, Dr.Jagadishwar Goud advised chemotherapy

treatment to Vijaya Lakshmi, who is the mother of the appellant

– plaintiff and respondents – defendants. After completing check

up, she was brought back to Guntur, where she took treatment

under the supervision of one Dr.Krishna Reddy at Manipal

Hospital, Vijayawada. The serious condition of the mother was

informed to the appellant – plaintiff and the 2nd respondent – 2nd

defendant over phone on 16.1.2017 itself, but, there was no

response. The averments in the counter also show that the suit

property was gifted to the 1st respondent – 1st defendant by

executing a registered gift deed and the allegation that the same

came to be registered when she was in unsound mind is

absolutely false and incorrect. Counter also denies the appellant

– plaintiff being in possession and enjoyment of the suit

property.

4. In support of the petition, Exs.A1 to A8 were marked, while

on behalf of respondents – defendants, Exs.B1 and B2 were

marked. After considering the rival submissions made and the

judgments cited, the trial Court dismissed the said I.A.

Challenging the same, the present Civil Miscellaneous Appeal

came to be filed.

5. Sri M.Chalapathi Rao, learned counsel for the appellant,

mainly submits that, the order under challenge is liable to be set

aside, for the reason that the trial Court did not refer to

documents filed by the appellant, which are placed as Exs.A1 to 

 4

A8. According to him, when the condition of Vijaya Lakshmi

was serious on 16.1.2017 itself, which is evident from the

counter, the question of she executing a registered gift deed on

22.2.2017 is highly improbable. Having regard to the above, he

pleads that, the order under challenge be set aside and the

matter be remanded for fresh consideration.

6. Sri N.Sriram Murthy, learned counsel for the

1st respondent – 1st defendant, would contend that, when suit

properties are in joint possession, as averred in the plaint and

as contended by the learned counsel for the appellant, the

appellant is not entitled for an equitable relief of temporary

injunction against co-owners. He would further submit that,

suit is of the year 2017 and as such the question of granting

injunction after three years would not arise, more so, when the

trial has commenced and the evidence of P.W.1 is complete. In

any event, he would plead that, the requirements for granting

temporary injunction, in a case of this nature, are not fulfilled.

He took us through the contents of the gift deed, evidence of

P.W.1 and the judgments in support of his plea to show that, the

order of the trial court requires no interference.

7. The point that arises for consideration is, “Whether the

appellant – plaintiff is entitled for temporary injunction?”

8. It is to be noted here that, suit is filed for cancellation of a

registered gift deed and also for partition. The fact that the

appellant and respondents are siblings is not in dispute. It is 

 5

also not in dispute that the said Vijaya Lakshmi died on

2.3.2017. The plea in substance of the appellant is, his mother

Vijaya Lakshmi never executed the gift deed, dated 22.2.2017, in

favour of the 1st respondent – 1st defendant, since her condition

was very serious as on 16.1.2017 itself, which fact was informed

to him over telephone and the same is evident from the counter.

9. But, it is to be noted that, though her condition was not

good in the month of January, 2017, she survived for 40 days

thereafter. The averments in the counter show that on

16.1.2017, the 1st respondent – 1st defendant, took her mother

to Dr.Janardhani and N.Srinivasa Rao, who after verifying the

scanning report found that her condition is very serious and to

avoid urinary problem, advised insertion of stunt. Hence, she

was taken to an Urologist by name Visweswara Rao, who

arranged a stunt and thereafter, she was taken to her house. By

this, prima facie, it does not mean that she was not in a position

to move at all on 16.1.2017. Therefore, at this stage, it may not

be proper for us to give any finding as to whether she was in a

position to execute registered gift deed on 22.2.2017. It is for the

civil court to decide the said issue at the time of trial. But, as

things stand today, there is a registered gift deed executed on

22.2.2017 in favour of the 1st respondent – 1st defendant.

10. It is no doubt true that, there is no specific reference with

regard to Exs.A2 to A8 in the order, but, there is a reference to

Ex.A1, which is C.C. of the registered gift deed, dated 22.2.2017.

But, since the trial has commenced and P.W.1 was examined, 

 6

the trial Court looked into the evidence of P.W.1 and decided the

I.A.

11. Learned counsel for the appellant relied upon the

judgment of the Apex Court in ‘Seema Arshad Zaheer vs.

Municipal Corporation of Greater Mumbai1’, where in the

Apex Court held as follows:

“Where the lower court acts arbitrarily, capriciously or

perversely in the exercise of its discretion, the appellate court

will interfere. Exercise of discretion by granting a temporary

injunction when there is "no material", or refusing to grant a

temporary injunction by ignoring the relevant documents

produced. When we refer to acting on "no material" (similar to

"no evidence"), we refer not only to cases where there is total

dearth of material, taken as a whole, is not reasonably capable

of supporting the exercise of discretion. In this case, there was

"no material" to make out a prima facie case and therefore, the

High Court in its appellate jurisdiction, was justified in

interfering in the matter and vacating the temporary injunction

granted by the trial court.”

12. In the above judgment the term used is ‘no material’ for

exercise of its discretion for granting a temporary injunction.

The Hon’ble Supreme Court also refers to cases, where there is

total dearth of material, but also to cases where there is no

relevant material or where the material, taken as a whole, is not

reasonably capable of supporting the exercise of discretion.

13. In the present case, the appellant relied upon eight

documents i.e., Exs.A.1 to A.8. Ex.A.1 is the certified copy of

registered gift deed dated 22.02.2017; Ex.A.2 is the certified

copy of gift deed dated 18.06.2010; Ex.A.3 is the certified copy of

1

 (2006) 5 SCC 282 

 7

cancellation of gift deed dated 16.03.2012; Ex.A.4 is the aadhar

card of plaintiff; Ex.A.5 is the gas connection obtained by the

plaintiff dated 28.04.2000; Ex.A.6 is the letter from Margadarsi

Finance Corporation to the plaintiff dated 12.09.2017; Ex.A.7 is

the driving licence of the plaintiff dated 18.10.1986 and Ex.A.8

is the renewal driving licence of the plaintiff dated 18.10.1986.

Exs.A.1 to A.3 are only copies of the gift deeds. Ex.A.4 is the

aadhar card of the plaintiff; Exs.A.7 and A.8 are the copies of

driving licences of the year 1986; Ex.A.5 is the gas connection is

of the year 2000 and Ex.A.6, is the letter of Margadarsi Finance

Corporation is of the year 2017. All these documents do not

prima facie establish possession of the petitioner with the

subject property. Even according to the plaint filed by the

appellant, the appellant is an NRI, working as a Software

Engineer in US for the last 16 years. He further averred that he

used to visit India in alternative years to take care of his

parents. As per the averments of the plaint, after admitting her

mother in KIMS Hospital, in March, 2016, got her treated and

then went back to USA. According to the plaint averments,

plaintiff came to India again on 02.03.2017 i.e., four days prior

to the death of his mother which was on 06.03.2017. In view of

the said averments in the plaint, the documents relied upon by

the plaintiff are not relevant material. Even if they are taken into

consideration, they are not supporting the case of the appellant

and hence, the judgment relied upon by the appellant does not

come to the rescue of the appellant. 

 8

14. We feel that there is nothing wrong in trial Court looking

into the evidence of P.W.1 and deciding the issue without

reference to the documents, more particularly, Aadhar card, gas

connection, correspondence from Margadarsi finance, renewal of

driving licence etc., belonging to the appellant – plaintiff.

Probably all these documents were marked only to show that the

appellant - plaintiff was residing at the said place. Nonconsideration of these documents, in our view, may not go to the

root of the matter, while deciding granting of injunction, in view

of the evidence of P.W.1, who is the plaintiff himself.

15. In paragraph 13 of the plaint it has been stated that, the

appellant – plaintiff is in possession of the plaint schedule

property along with his brother 2nd respondent –

2nd defendant, since the same is a family property. But, in the

evidence of P.W.1, it has been elicited that, in the month of

November, 2019, he came from U.S.A. He stayed in Gowtham

Lodge, Tenali. His own evidence shows that his father is

residing in the ground floor portion of the suit property and he

also admits that his father gave a report against him in II Town

Police Station, Tenali, alleging that the appellant – plaintiff is

harassing him. From the above, prima facie, it appears that the

plea taken that he is in possession of the property may not be

correct. Apart from that it is also elicited in the crossexamination of P.W.1 that, in the first floor of the property, one

tenant is residing and the tenant is paying rent to his sister

through online banking. The evidence also shows that his sister 

 9

got mutated her name in municipal records in pursuance of

Ex.A1 gift deed. Apart from that, she got mutated her name in

electricity service records as well. Therefore, prima facie, the

evidence of P.W.1 itself shows that he was not in possession of

the property. Even as per recitals of gift deed – Ex.A1, the

property stands in the name of the 1st respondent – 1st

defendant and the possession of the suit schedule property was

delivered to her by Vijaya Lakshmi.

16. Apart from all these things it is also to be noted that,

appellant – plaintiff also sought partition of the property and

allotment of share to him and other respondents – defendants.

As per the averments in the plaint, they are in the joint

possession of the property. Such being the position, the

question of granting temporary injunction against co-owners

would not arise.

17. The issue is no more res integra in view of the judgment of

this Court in Ranukanta Mullaiah v. Sircilla Rajamma and

Anr.2 wherein this Court held as under:

 “11. It is not in dispute that the father of the appellant and

father of the 1st respondent are the sons of Rajaram, and both of

them have succeeded to the entire suit schedule property, except

for one item, and almost an equivalent extent of property held by

the appellant herein. For all practical purposes, the appellant

wanted to exclude the succession of the respondents herein, to

the estate of late Durgaiah. For that, he has taken shelter under

the extension of the 1937 Act, to the Hyderabad State, and the

allegation that Durgaiah died before the said date. By its very

nature, a suit for injunction simplicitor does not permit of an

2

 2006 (6) ALD 113 

 10

adjudication of such important questions, involving the

determination of certain jurisdictional facts, interpretation of the

provisions and expression of view upon the operation of the

provisions also. Having regard to the relationship of the parties, a

presumption needs to be drawn that both of them are co-owners,

if not coparceners, vis-a-vis the suit schedule property, even

assuming that the plea of the 1st respondent as to prior partition

has not been proved. That being the case, the 1st respondent

answered the description of a co-owner, and there was no basis,

on which the relief of perpetual injunction could have been

granted in favour of the appellant.”

18. The Hon’ble Madhya Pradesh High Court in Roop Chand

v. Indradevi and Ors. 3 held as under :

 “16. The result is that, the trial Court simply assumed merely on

the basis of the separate living of the co-sharers that there was a

family settlement between the parties, without any evidence. On

the other hand, the mortgage-deed on record clearly shows that

the house was never partitioned nor there was any family

settlement to give independent portions to the co-sharers for their

independent business and dealing with. Mere separate living did

not raise any presumption for family settlement. As earlier

pointed out, the mortgage-deed is admitted on record and para 8

of the mortgage-deed clearly demolishes the theory of any family

settlement. As such, it is established on record that the house

was never partitioned between the co-sharers. Also there was no

family settlement for independent dealing with the portions given

to the four brothers for living, and therefore, the suit for partition

was maintainable and decree for partition ought to have been

passed by the trial Court. The injunction granted by the trial

Court is also uncalled for in view of the fact that no injunction

could be granted in favour of one of the co-sharers against the

other, unless there was a finding that the share of one of the cosharers was either partitioned or made separate by family

arrangement. In this case, there is no proof for either partition or

family settlement, and therefore, no injunction could be granted

to any of the co-sharers against others.”

3

 AIR 1997 MP 200 

 11

19. In Jail Singh & Ors. v. Gurmej Singh 4 the Apex Court

held as under :

“7. The principles relating to the inter-se rights and liabilities of

co- sharers are as follows:

(l) A co-owner has an interest in the whole property and also

in every parcel of it.

(2) Possession of joint property by one co-owner is in the eye

of law, possession of all even if all but one are actually out of

possession.

(3) A mere occupation of a larger portion or even of an entire

joint property does not necessarily amount to ouster as the

possession of one is deemed to be on behalf of all.

(4) The above rule admits of an exception when there is

ouster of a co-owner by another. But in order to negative the

presumption of joint possession on behalf of all, on the

ground of ouster, the possession of a co-owner must not

only be exclusive but also hostile to the knowledge of the

other as, when a co-owner openly asserts his own title and

denies, that of the other.

(5) Passage of time does not extinguish the right of the coowner who has been out of possession of the joint property

except in the event of ouster or abandonment.

(6) Every co-owner has a right to use the joint property in a

husband like manner not inconsistent with similar rights of

other co-owners.

(7) Where a co-owner is in possession of separate parcels

under an arrangement consented by the other co-owners, it

is not open to any body to disturb the arrangement without

the consent of others except by filing a suit for partition.

8. It is thus evident that when a co-sharer is in exclusive

possession of some portion of the joint holding he is in possession

thereof as a co-sharer and is entitled to continue in its possession

if it is not more than his share till the joint holding is partitioned.

Vendor cannot sell any property with better rights than himself.

As a necessary corollary when a co-sharer sells his share in the

joint holding or any portion thereof and puts the vendee into

possession of the land in his possession what he transfers is his

4

 2009 (1) SCJ 714 

 12

right as a co-sharer in the said land and the right to remain in its

exclusive possession till the joint holding is partitioned amongst

all co-sharers.”

20. In view of the judgments referred to above and having

regard to answers elicited in the evidence of P.W.1, and the

averments in the plaint, prima facie, this Court is of the opinion

that, the appellant – plaintiff is not in possession of the property,

and as there cannot be an injunction against co-owners,

the question of granting an injunction as sought for would not

arise.

21. Accordingly, the Civil Miscellaneous Appeal is dismissed.

Since the suit is of the year 2017, and as the examination of

P.W.1 is over, the trial Court may take steps for disposal of the

suit as early as possible, uninfluenced by the observations,

made if any, in the order. No order as to costs.

_______________________________

JUSTICE C.PRAVEEN KUMAR

________________________________________

JUSTICE KONGARA VIJAYA LAKSHMI

Date : 07.10.2020

skmr 

ORDER 39 RULE 1 &2 - SPECIFIC PERFROMANCE SUIT - NOT TO DEMOLISH OR TO CONSTRUCT ANY BUILDING PENDING SUIT - admittedly by the time the application was filed, substantial portion of the construction was completed. Even assuming that the entire construction is completed, it will not cause any loss or prejudice to the appellant. As rightly observed by the Court below that in the event the appellant succeeds in the suit, the respondents have to execute a sale deed along with the structures. Moreover, when the respondents have given an undertaking in the counter that they are not going to alienate the schedule property to any third parties and they have no intention to alienate the same, the apprehension of the appellant is absolutely baseless. Therefore, there are no grounds to interfere with the well considered order passed by the Court below.

AP HIGHCOURT

THE HON’BLE SMT JUSTICE LALITHA KANNEGANTI

CIVIL MISCELLANEOUS APPEAL No.168 of 2020

Thumati Venkata Suresh Babu

-VS-

Kavuri Madhava Rao,

ORDER:-

 Challenging the order dated 16.07.2020 passed in I.A.No.146

of 2020 in O.S.No.31 of 2018 on the file of the Court of X

Additional District & Special Sessions Judge, Krishna at

Machilipatnam, this appeal has been filed by the appellant /

plaintiff.

2. The appellant, who is the plaintiff has filed the suit in

O.S.No.31 of 2018 for specific performance of agreement of sale

dated 05.07.2011.

3. The case of the appellant / plaintiff is that late Kavuri

Venkateswara Rao for the purpose of family needs offered to sell

the suit schedule property to the plaintiff for a sum of Rs.20 lakhs

and the plaintiff paid an amount of Rs.12 lakhs as advance on the

same day itself and the balance amount has to be paid on or before

05.07.2013. On 03.07.2013 the petitioner has paid an amount of

Rs.6 lakhs, out of Rs.8 lakhs. Later, the father of defendants died

on 17.03.2014. Subsequently, when the defendants are evading to

receive the balance of sale consideration, the plaintiff filed the suit.

4. During pendency of the suit, I.A.No.146 of 2020 is filed

seeking temporary injunction restraining the 1st respondent from

demolishing any part of the plaint schedule building or raising any

new construction in the schedule property pending disposal of the

suit. The Court below after hearing both parties, dismissed the

application on the ground that admittedly as on the date of filing of

the petition substantial portion of the construction is completed, 

2

without expressing any merits of the rival parties in the suit,

considering the conduct of the petitioner in approaching the Court

almost five years from the date of endorsement and seven years

from the date of agreement of sale, there is no balance of

convenience in favour of the petitioner. The Court below has also

observed that if the 1st respondent continues to make construction,

in the event of succeeding in the suit, the petitioner is entitled for a

registered sale deed in respect of suit schedule property with

possession including any constructions which are made pending

disposal of the suit.

5. Learned counsel for the appellant submits that if the

respondents are permitted to raise the construction, it would cause

irreparable loss to the appellant and there is every possibility of

alienating and creating third party interest. Further, it is stated

that the Court below has failed to appreciate that there is prima

facie case and balance of convenience in favour of the appellant.

6. Learned counsel for the 1st respondent would submit that

the agreement of sale is of the year 2011 and in fact by the time of

filing the application substantial portion of the construction is

completed. He submit that it is specifically averred in the counter

filed in I.A. before the Court below that the respondents never

made any attempt to alienate the plaint schedule property pending

disposal of the suit and further they undertook that they will not

alienate the schedule property or enter into any agreement with

third parties in future till the disposal of the suit. Learned counsel

for the 1st respondent would submit that the construction is made

after obtaining necessary permission from the Municipality. 

3

7. Having heard the learned counsel for the appellant and

learned counsel for the 1st respondent, admittedly by the time the

application was filed, substantial portion of the construction was

completed. Even assuming that the entire construction is

completed, it will not cause any loss or prejudice to the appellant.

As rightly observed by the Court below that in the event the

appellant succeeds in the suit, the respondents have to execute a

sale deed along with the structures. Moreover, when the

respondents have given an undertaking in the counter that they

are not going to alienate the schedule property to any third parties

and they have no intention to alienate the same, the apprehension

of the appellant is absolutely baseless. Therefore, there are no

grounds to interfere with the well considered order passed by the

Court below.

8. In the result, the Civil Miscellaneous Appeal is dismissed.

No order as to costs.

 As a sequel, pending miscellaneous petitions, if any, shall

stand closed.

___________________________________

JUSTICE LALITHA KANNEGANTI

21st October, 2020

PVD

 

4

THE HON’BLE SMT JUSTICE LALITHA KANNEGANTI

CIVIL MISCELLANEOUS APPEAL No.168 of 2020

21st October, 2020

PVD 

0RDER 39 RULE 1 & 2 - PARTITION SUIT - NOT TO ALIENATE PENDING SUIT = Defendants 1, 4 and 5 who are the appellants herein filed counter, wherein they stated that pursuant to the settlement deed dated 12.09.1994, they executed a number of 6 documents and entered into various transactions. It is not in dispute that the appellant herein did not get the settlement deed dated 12.09.1994 marked. In fact, all the documents, on which the appellants herein sought to rely upon, are the documents emanated on the basis of the alleged settlement deed dated 12.09.1994. In fact, the 1st respondent herein is strongly disputing the genuineness of the said settlement deed. The learned District Judge, only after taking into consideration all the contentions advanced by both the parties and taking into consideration the non-marking of the settlement deed dated 12.09.1994 and in order to avoid further complications in the matter, granted the order of injunction in favour of the 1st respondent herein. It is a settled proposition of law that the relief of injunction is a discretionary and equitable relief. A perusal of the order passed by the trial Court shows that the learned I Additional District Judge has assigned cogent and convincing reasons in the impugned order. 9. Having regard to the apprehension expressed by the learned senior counsel, Sri P.Veera Reddy, that the 1st respondent-plaintiff is taking steps to get the revenue records mutated taking advantage of the injunction orders, this Court is inclined to modify the injunction order as an order of status quo in all respects with regard to the subject property.

AP HIGH COURT

THE HON’BLE SRI JUSTICE A.V.SESHA SAI

AND

THE HON’BLE MS. JUSTICE J.UMA DEVI

CIVIL MISCELLANEOUS APPEAL No.235 OF 2020

 Shamshunnisa Begum

-VS-

Khamrunnisa Begum,

JUDGMENT: (per AVSS,J)

Defendants 1, 4 and 5 in O.S. No.20 of 2019 on the file of

the Court of I Additional District Judge, Kurnool, are the

appellants in the present Civil Miscellaneous Appeal, preferred

under Order XLIII Rule 1 of the Code of Civil Procedure, 1908

(C.P.C.). This appeal challenges the order dated 03.11.2020

passed by the said Court in I.A. No.166 of 2019 in O.S. No.20 of

2019. The 1st respondent herein instituted the said suit against

the appellants and respondents 2 and 3 herein for partition of

the plaint schedule property and for allotment of 1/8th share to

her and for mesne profits. Along with the suit, the 1st

respondent herein filed I.A. No.166 of 2019 under the provisions

of Order XXXIX Rules 1 and 2 C.P.C., praying the trial Court to

grant ad interim injunction to restrain the defendants or

anybody, claiming through them from creating third party

interest, like sale, mortgage, gift, relinquishment and such other

transactions in respect of petition schedule property.

Respondents 1, 4 and 5 in the interlocutory application, who are

the appellants herein resisted the said application by filing a

counter. The learned I Additional District Judge, Kurnool, by 

 2

way of an order dated 03.11.2020, allowed the injunction

application, granting ad interim injunction, restraining the

defendants from alienating the petition schedule property

pending disposal of the suit. This appeal calls in question the

said order passed by the learned I Additional District Judge,

granting ad interim injunction in favour of the 1st respondent

herein.

 2. Heard Sri P.Veera Reddy, learned senior counsel

representing Sri M.Chinnappa Reddy, learned counsel for the

appellants and Sri G.Sravan Kumar, learned counsel for the 1st

respondent, apart from perusing the material available on

record.

 3. Learned senior counsel maintains that the questioned

order is highly erroneous, contrary to law and opposed to the

very spirit and object of the provisions of Order XXXIX Rules 1

and 2 C.P.C. It is further contended that in the absence of

necessary ingredients of Order XXXIX Rules 1 and 2 C.P.C., the

leaned I Additional District Judge grossly erred in granting

equitable relief of injunction. It is further submitted that in view

of the family arrangement dated 11.09.1994 entered into among

the family members, the very suit instituted by the 1st

respondent herein is not maintainable. It is further contended

by the learned counsel that though the respondents-defendants 

 3

produced voluminous evidence, in support of their possession

and the transactions entered into subsequent to the family

settlement, the learned I Additional District Judge failed to take

the same into consideration. It is further contended that the

main suit is barred by limitation and the interest of the 1st

respondent, if any, is well protected by Section 52 of the

Transfer of Property Act, 1882. Learned senior counsel further

submits that taking advantage of the injunction granted by the

learned trial Court, the 1st respondent-plaintiff is actively

contemplating to approach the revenue authorities to get the

entries changed in the revenue records and if the same is

permitted, the appellants herein and their successors will have

to suffer irreparable loss and hardship. It is also submitted by

the learned senior counsel that for having slept over the matter

from 1994, the 1st respondent herein instituted the suit in the

year 2019 and there are no bona fides on the part of the

plaintiff.

 4. On the contrary, it is contended by Sri G.Sravan

Kumar, learned counsel for the 1st respondent that there is

absolutely no infirmity nor there exists any error in the order

passed by the learned District Judge and in the absence of the

same, the discretionary relief granted by the learned Judge is

not amenable for any interference under Order XLIII Rule 1 

 4

C.P.C. It is further contended by the learned counsel that since

all the issues raised by the appellants herein were thoroughly

answered by the learned District Judge in the impugned order,

the present appeal is liable to be dismissed. It is further

submitted by the learned counsel that in order to avoid

multiplicity of litigation, learned District Judge granted

discretionary relief of injunction, as such, the same does not

warrant any interference of this Court.

 5. In the above background, now the issue that falls for

consideration of this Court in the present Civil Miscellaneous

Appeal is “Whether the order passed by the learned District

Judge is sustainable and tenable and whether the same

warrants any interference of this Court?”

 6. Appellants and the respondents herein are the

children of late Sri Mohammad Ghouse and late Smt. S.Ghousia

Bee of Kurnool town, appellant No.1 and respondents 1 to 3 are

their daughters and appellants 2 and 3 are the sons of Sri

Mohammad Ghouse and Smt. S.Ghousia Bee.

 7. The information available on record discloses, in clear

and vivid terms, that there is absolutely no controversy with

regard to the reality that Smt. Ghousia Bee owned the subject

property. Smt. Ghousia Bee died intestate on 26.01.1990, 

 5

leaving behind her husband and the parties to the present

litigation. Sri Mohammad Ghouse also passed away on

06.06.1996. According to the learned counsel for the 1st

respondent-plaintiff, appellants 2 and 3 used to apportion total

income derived from all the properties to all the shares including

the plaintiff upto the end of 2017 and they dodged to give her

share of income at the end of 2018 and when she insisted for a

share in the income, the defendants 4 and 5 who are the

appellants 2 and 3 herein postponed the same on some pretext

or the other. The plaintiff also pleaded that in the last week of

March, 2019, appellants 2 and 3 herein approached her for her

signature on some papers to apply for family members certificate

in favour of their mother to sell the property and for such course

of action, the plaintiff refused and demanded her 1/8th share in

the property. It is her further case that since the appellants 2

and 3 refused to partition the property, she instituted the

instant suit. As stated supra, along with the main suit, the 1st

respondent herein filed the instant application under Order

XXXIX Rules 1 and 2 C.P.C. to restrain the defendants from

alienating the properties.

 8. Defendants 1, 4 and 5 who are the appellants herein

filed counter, wherein they stated that pursuant to the

settlement deed dated 12.09.1994, they executed a number of 

 6

documents and entered into various transactions. It is not in

dispute that the appellant herein did not get the settlement deed

dated 12.09.1994 marked. In fact, all the documents, on which

the appellants herein sought to rely upon, are the documents

emanated on the basis of the alleged settlement deed dated

12.09.1994. In fact, the 1st respondent herein is strongly

disputing the genuineness of the said settlement deed. The

learned District Judge, only after taking into consideration all

the contentions advanced by both the parties and taking into

consideration the non-marking of the settlement deed dated

12.09.1994 and in order to avoid further complications in the

matter, granted the order of injunction in favour of the 1st

respondent herein. It is a settled proposition of law that the

relief of injunction is a discretionary and equitable relief. A

perusal of the order passed by the trial Court shows that the

learned I Additional District Judge has assigned cogent and

convincing reasons in the impugned order.

 9. Having regard to the apprehension expressed by the

learned senior counsel, Sri P.Veera Reddy, that the 1st

respondent-plaintiff is taking steps to get the revenue records

mutated taking advantage of the injunction orders, this Court is

inclined to modify the injunction order as an order of status quo

in all respects with regard to the subject property. It is also 

 7

made clear that the Original Suit shall be disposed of without

being influenced by any of the observations made by the learned

I Additional District Judge in the impugned order or by this

Court in the present order.

 10. With the above modification, this appeal is disposed

of. There shall no order as to costs of this appeal.

Miscellaneous Petitions pending, if any, in this case shall

stand closed.

 __________________________

 JUSTICE A.V.SESHA SAI

 ________________________

 JUSTICE J. UMA DEVI

25.03.2021

siva 

 8

THE HON’BLE SRI JUSTICE A.V.SESHA SAI

AND

THE HON’BLE MS. JUSTICE J.UMA DEVI

CIVIL MISCELLANEOUS APPEAL No.235 OF 2020

Date: 25.03.2021

siva 

Section 9-A applies when any entertainment shows escaped assessment of tax under Section 4 or 4-A. In such an event, the prescribed authority shall assess to the best of its judgment, the tax due on such entertainment shown under section 4 or section 4A after making such enquiry as it considers necessary within a limited 6 period. Section 9-A does not apply as no assessment was done previously and the appellant is not assessed under Section 4 or Section 4(1-A) or Section 4A earlier. If any entertainment tax was assessed under section 4 or section 4(1-A), and if tax escaped the assessment in such past assessment, the invocation of section 9-A comes into picture so as to assess the escaped tax. Since, the proceedings of the Entertainment Tax Officer are assessed for the first assessment, the provisions of Section 9A have no relevance. In the instance case, enquiry, as required under Section 9, has been carried out by giving a notice, but no objections were filed. Therefore, it cannot be said there was any illegality in invoking Section 9, more so, when there is escaped assessment.

AP HIGH COURT 

THE HON’BLE SRI JUSTICE C.PRAVEEN KUMAR

AND

THE HON’BLE SRI JUSTICE BATTU DEVANAND

C.M.A. Nos.591, 594, 596, 598, 599, 600,

603, 604, 609, 590, 607 and 608 of 2019

 DEVATHA MAHAL

-VS-

STATE OF ANDHRA PRADESH

    Advocate - GP FOR COMMERCIAL TAX (AP)

COMMON JUDGMENT : (per the Hon’ble Sri Justice C.Praveen Kumar)

1. The present appeals are filed under Section 9E of A.P.

Entertainment Tax Act, 1939 (for short, ‘the Act’) questioning the

orders dated 26.09.2018 passed by the Appellate Deputy

Commissioner, Tirupati, in ADC Order Nos.3634/28-09-2018,

3634/28-09-2018, 3633/28-09-2018, 3632/28-09-2018,

3635/28-09-2018, 3632/28-09-2018, 3634/28-09-2018,

3635/28-09-2018, 3635/28-09-2018, 3633/28-09-2018,

3633/28-09-2018 and 3632/28-09-2018 respectively.

2. The facts in issue are as under :

 The appellant theatres - Kavali management, have

screened films and filed weekly returns in Form-V along with

Daily Collection Reports under Andhra Pradesh Entertainment

Tax Act, 1939. The details of which are reflected in the order. It

is said that exhibitors have exhibited high budget/dubbing films

in the guise of low budget films and thereby evaded

entertainment tax to the Government, violating Section 4(1-A) of

Andhra Pradesh Entertainment Tax Act and conditions of

G.O.Ms.No.604 (Revenue (CT-IV) Department, dated 22.4.2008.

After careful consideration of the objections filed by the

managers of the theaters, Form-A was issued directing to pay 

2

the balance of tax after deducting the tax paid. Orders passed

by the Entertainment Tax Officer, Kavali, came to be challenged

before the Appellate Deputy Commissioner, who, after going

through the facts in issue and also considering the objection

raised with regard to the applicability of Section 4 vis-à-vis

Section 9, dismissed the appeals. Challenging the same, these

appeals are filed under Section 9E of the Act.

3. The main ground urged by the learned counsel for the

appellants is that in the facts and circumstances of the case,

entertaining an application under Section 4 of the Act without

invoking Section 9-A of the Act is illegal and incorrect. The

second ground urged by the learned counsel for the appellant is

that the appellants herein are entitled to certain exemptions

under the G.O., which were not properly brought to the notice of

the authorities. These two objections were dealt with by the

appellate authority and negatived the same.

4. In so far as entitlement to avail concessions or exemptions

under the entertainment tax, it is to be noted that though

notices were given to the appellants on four occasions on

13.7.2015, 13.6.2016, re-assessment show cause notice on

10.5.2017 and final notice on 12.6.2017, the appellants herein

failed to file objections. The material on record show that if the

appellants intend to differ with the proposal, they have to follow

the conditions laid down in G.O.Ms.No.604, dated 22.4.2008.

They have to file documentary evidence of certified copy of the

feature film/low budget film along with certified copy of 

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certification obtained from A.P. Film Development Corporation to

the effect the feature film/low budget film is produced in the

State of Andhra Pradesh. The material indicate that the

exhibitors should inform the Entertainment Tax Officer in

advance, in writing, the particulars of screening the feature

film/low budget film produced in A.P. in the application form

represented in G.O.Ms.No.604, dated 22.4.2008. It is clear from

the record that appellants neither filed any objections nor filed

any documentary evidence to contradict the movies screened as

per the UFO, Chennai, even after receiving the detailed date

wise/movie wise information furnished by the Entertainment

Tax Officer, Kavali. Therefore, the argument of the learned

Government Pleader that appellants are not entitled for any

exemptions cannot be brushed aside.

5. At the same time, learned counsel for appellants would

contend that if a reasonable opportunity is given to appellants,

they will file all the objections and documentary evidence

contradicting the movies screened as per the UFO, Chennai.

6. In so far as the applicability of Section 4 and Section 9 of

the Act is concerned, it will be useful to refer to Section 4(1-A)

and Section 9-A of the Act, which are as under :

Section 4(1-A) : There shall be levied and paid to the state

government a tax on the gross collection capacity on every show

(hereinafter referred to as the Entertainments Tax) in respect of

entertainments held in the theatres specified in column (2) of the

table below and located in the local areas specified in the

corresponding entry in column (1) of the said table, calculated at 

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the rates specified in the corresponding entry in column (3)

thereof for the number of shows prescribed therein for every week.

Local Authority Theatre Rate of tax on the

gross collection

capacity per show

(1) (2) (3)

a) First Grade

 Municipality

All categories of

theatres

10% of the gross

collection capacity

per show multiplied

by 21.

b) Second Grade

 Municipality

All categories of

theatres

9% of the gross

collection capacity

per show multiplied

by 21

c) Third Grade

 Municipality

All categories of

theatres

8% of the gross

collection capacity

per show multiplied

by 17

d)Gram Panchayats

townships and any

local authorities

(1) with a

population of

15,000 and above

i) permanent and

semi-permanent

ii) Touring and

Temporary

7% of the gross

collection capacity

per show multiplied

by 14

7% of the gross

collection capacity

per show multiplied

by 10.

(2) with a

population of 7,500

and above but

below of 15,000.

i) permanent and

semi-permanent

ii) Touring and

Temporary

6% of the gross

collection capacity

per show multiplied

by 14.

6% of the gross

collection capacity

per show multiplied

by 10.

(3) with a

population of less

than 7,500

i) permanent and

semi-permanent

ii) Touring and

Temporary

5% of the gross

collection capacity

per show multiplied

by 14.

5% of the gross

collection capacity

per show multiplied

by 7.

 

5

“Section 9A : Payment for Admission, etc., escaping

assessments :

 “(1) Where, for any reason any entertainment show has

escaped assessment to tax under section 4 or section 4A, the

prescribed authority may, subject to the provisions of sub-section

(3) and at any time within such period as may be prescribed,

assess to the best of its judgment the tax due on such

entertainment show under section 4 or section 4A, as the case

may be, after making such enquiry as it considers necessary and

after giving the proprietor a reasonable opportunity to show cause

against such assessment

 (2) Where, for any reason any entertainment show has

been assessed at a rate lower than the rate at which it is

assessable under section 4 or Section 4-A, as the case may be,

the prescribed authority may, subject to the provisions of subsection (3) and at any time within such period as may be

prescribed, re-assess the tax due on such payment or

entertainment show under section 4 or Section 4-A as the case

may be, after making such enquiry as it may consider necessary

and after giving the proprietor a reasonable opportunity to show

cause against such re-assessment.

 (3) When making an assessment to the best of Judgment

under sub-section (1) or sub-section (2) the prescribed authority

may also direct the proprietor to pay in addition to the tax

assessed, a penalty as specified in sub-section (4).

 (4) The penalty leviable under sub-section (3) shall,--

 (a) in a case where the prescribed authority is satisfied

that the failure of the proprietor to disclose the whole or part of

the particulars correctly or to submit the return before the

prescribed date, was willful, not exceed one and half times the

entertainments tax or the tax on entertainment shows due;

 (b) in a case where such failure was not wilful, not exceed

on half of such tax :

 Provided that where such failure occurred due to a

bonafide mistake on the part of the proprietor, no such penalty

shall be levied.

 Provided further that no penalty under this sub-section

shall be imposed unless the proprietor affected has had a

reasonable opportunity of showing cause against such

imposition.”

7. A reading of the two provisions makes it clear that Section

9-A applies when any entertainment shows escaped assessment

of tax under Section 4 or 4-A. In such an event, the prescribed

authority shall assess to the best of its judgment, the tax due on

such entertainment shown under section 4 or section 4A after

making such enquiry as it considers necessary within a limited 

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period. Section 9-A does not apply as no assessment was done

previously and the appellant is not assessed under Section 4 or

Section 4(1-A) or Section 4A earlier. If any entertainment tax

was assessed under section 4 or section 4(1-A), and if tax

escaped the assessment in such past assessment, the invocation

of section 9-A comes into picture so as to assess the escaped tax.

Since, the proceedings of the Entertainment Tax Officer are

assessed for the first assessment, the provisions of Section 9A

have no relevance. In the instance case, enquiry, as required

under Section 9, has been carried out by giving a notice, but no

objections were filed. Therefore, it cannot be said there was any

illegality in invoking Section 9, more so, when there is escaped

assessment.

8. The main plea of the learned counsel for appellants

appears to be that if an opportunity is given to appellants, they

would fulfil the requirements by claiming exemptions or

concessions as per the said G.O.

9. The same is strongly opposed by the learned Government

Pleader for Commercial Taxes contending that enough

opportunities have been given to appellants, but, in spite of the

same, they never utilized. She also contends that there is any

amount of doubt as to whether really the appellants are entitled

to any exemptions or concessions as urged by them. According

to her, even if such exemptions or concessions are given, still

appellants would be liable to pay certain amounts. 

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10. A perusal of the orders impugned shows that it is not as if

the appellants have not paid any money. They have paid some

amount which was adjusted and thereafter the amount due is

reflected in the orders. Having regard to the facts and

circumstances of the case and with a view to give the appellants

an opportunity, we feel that it is a fit case where the matter can

be remanded back directing the appellants to fulfil the

requirements as pleaded here on certain terms and conditions

within a period of four weeks from today. In which event, the

primary authority shall pass appropriate orders within a period

of four weeks thereafter.

11. As the orders of the appellate authority indicate that the

appellants have paid some amounts out of disputed amounts,

and with a view to give an opportunity to appellants (only to the

extent of producing material for availing concessions or

exemptions) the matter shall be remanded back, setting aside the

orders under challenge, subject to appellants paying ½ (half) of

the demanded (disputed) amount, which would be inclusive of

the disputed amount already paid. Further, the appellants

shall comply with the order within four weeks from today, in

which event the primary authority shall pass orders in

accordance with law within four weeks thereafter. If the

appellants fail to deposit the amount within four weeks, as

directed above, the authorities shall proceed further basing on

the earlier orders passed. 

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12. With the above directions, the Appeals are allowed. No

orders as to costs.

 Consequently, interlocutory applications pending, if any,

shall stand closed.

______________________________

JUSTICE C.PRAVEEN KUMAR

_____________________________

JUSTICE BATTU DEVANAND

Date : 24.03.2020

skmr