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1991 DIGILAW 403 (RAJ)

Mangi Lal v. Municipal Board, Balotra

1991-04-25

M.C.JAIN

body1991
JUDGMENT 1. This revision petition has been filed against the order of the learned Civil Judge, Balotra dated November 8, 1990 by which he has dismissed the appeal and confirmed the order of the Learned Munsif, Balotra dated December 23, 1988 refusing temporary injunction. The facts of the case giving rise to this revision petition may be summarised thus. 2. On December 10, 1982, the non-petitioner auctioned a plot situated in Balotra town. The highest bid was of the petitioner for Rs. 18,000/- he deposited the 1/4th amount of Rs. 45,00/-. Despite receipt of the registered notice for depositing the balance amount of Rs. 13,500/-, he did not deposit the same. The non-petitioner published a notice in the 'Simant Times' dated March 11, 1987 for the re-auction of the said plot. Thereon, he filed a suit for injunction along with an application under Order 39 rules 1 and 2, Civil Procedure Code for temporary injunction restraining the non-petitioner from auctioning the said plot and dispossessing him there-from. The defendant-non-petitioner filed its reply stating that the 3/4th amount of the bid has not so far been deposited, as a result thereof the said auction has been cancelled, the petitioner has concealed the fact of filing an appeal before the Board and it was ordered on November 30, 1983 that the previous auction sale will continue if he deposits 3/4th amount of bid along with interest @ 15 percent within 15 days and despite it the amount was not deposited. It has also been averred that the possession of the suit plot was never given to the petitioner and lie has illegally put his cabin on a part of it. After hearing the parties, the learned Munsif rejected the application for temporary injunction by its order dated December 23, 1988. Appeal was preferred and it was dismissed by the learned Civil Judge, Balotra as said above. 3. It has been contended by the learned counsel for the petitioner that the learned lower Courts have seriously erred in holding that the plaintiff- petitioner has no prima facie case, the balance of convenience is not in his favour and he will not suffer any irreparable injury. He further contended that the time was not the essence of the contract which took place in between the parties and this aspect of the case was not properly considered. He further contended that the time was not the essence of the contract which took place in between the parties and this aspect of the case was not properly considered. He also contended that the trial Court by its order has in fact finally decided the suit at the interlocutory stage. He lastly contended that the petitioner is in possession of the disputed land, he has raised boundary wall and has put 'Chhappar' with the non-petitioner's tactics consent. He relied upon Government of Andhra Pradesh v. Valluri Keshava Rao, 1982 (2) S.C.C. 134 , Govind Prasad Chaturvedi v. Haridutt Shastri, AIR 1977 Supreme Court 1005, and Pyarelal Gupta v. H. H. Maharaja Shri Karni Singhji, 1960 R.L.R. 645. 4. There is no substance in the revision petition. Admittedly, the petitioner gave his highest bid for Rs. 18,000/- in the auction sale which took place on December 10, 1982 and he has not deposited the 3/4th amount of the bid as yet. Under the Rajasthan Municipalities (Disposal of Urban Land) Rules, 1974 (hereinafter to be called 'the Rules'), the non-petitioner had no alternative but to cancel the said auction when the petitioner failed to deposit 3/4th amount of the bid during five years and take steps for the fresh auction of the suit plot. Annexure 'A' of the Rules provides procedure for sale of plot by public auction. It has statutory force. Even assuming that its provisions regarding time are directory in nature, the petitioner is not benefited. He has not deposited the 3/4th amount of the bid as yet. Even assuming that the time was not the essence of the contract even then the contract has to be fulfilled within a reasonable time. Under facts and circumstances of the case, the reasonable time cannot be extended for eight years. 5. The petitioner has not been able to show as to how he illegally put his cabin on the suit plot. He had no right to enter into it without depositing the entire auction money and obtaining formal possession from the Board. The learned lower Courts have rightly held that the petitioner has no prima facie case in his favour. 6. Under the facts and circumstances of the case, the balance of convenience is also not in his favour. He had no right to enter into it without depositing the entire auction money and obtaining formal possession from the Board. The learned lower Courts have rightly held that the petitioner has no prima facie case in his favour. 6. Under the facts and circumstances of the case, the balance of convenience is also not in his favour. The learned lower Courts have not committed any material irregularity or illegality in the exercise of their jurisdiction in passing the impugned orders. 7. There is yet another aspect of the matter. The scope of Section 115, Civil Procedure Code is very limite. It has been observed in Hindustan Aeronautics Ltd. v. Ajit Prasad, AIR 1973 Supreme Court 76 , as follows : "In our opinion the High Court had no jurisdiction to interfere with the order of the first appellate Court. It is not the conclusion of the High Court that the first appellate Court had no jurisdiction to make the order that it made. The order of the first appellate Court may be right or wrong; may be in accordance with law or may not be in accordance with law; but one thing is clear that it had jurisdiction to make that order. It is not the case that the first appellate Court exercise its jurisdiction either illegally or with material irregularity. That being so, the High Court could not have invoked its jurisdiction under Section 115 of the Civil Procedure Code; see the decisions of this Court in Pandurang Dhoni v. Maruti Jadhav, (1966) 1 S.C.R. 102 , and D.L.F. Housing & Construction Co. (P) Ltd. New Delhi v. Sarup Singh (1970 2 S.C.R. 368 . 8. Consequently, the revision petition is summarily dismissed.Revision dismissed. *******