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2018 DIGILAW 1269 (RAJ)

Rajasthan Housing Board v. Arvind Gupta

2018-05-14

BANWARI LAL SHARMA

body2018
JUDGMENT Banwari Lal Sharma, J. - This misc. appeal is preferred against the impugned judgment dated 11.12.2014 passed by learned Additional District Judge No. 3, Kota in Civil Regular Appeal No. 17/2014 by which learned lower Appellate Court while allowing the appeal quashed and set aside the order dated 14.11.2014 passed by learned Civil Judge (South) Kota in civil regular case No. 93/2014 (Arvind Gupta vs. Rajasthan Housing Board and Ors.) by which learned Civil Judge (South), Kota rejected the plaint of respondent- plaintiff. 2. The brief facts of the case are that the respondent- plaintiff filed a civil suit along with an application under order 39 Rule 1 & 2 seeking declaration and permanent injunction stating therein that against the notice issued by the Housing Board for auction of residential and commercial plots dated 31.3.2013, he submitted his bid for the plot No. 14 measuring 1291 square meter at sector 11, Mahavir Nagar, Parijat Kota. The minimum Sale price was Rs. 35,000/- however the highest bid was of Rs. 42,301/- per square meter. In furtherance to the said auction, he deposited total bid amount Rs. 82,00,000/- with the appellant housing board. It is pleaded in the plaint that the said amount was refunded by the Housing Board on 13.1.2014 and stated in the letter dated 13.1.2014 as the auction was not finalized and the bid was cancelled because the committee was not duly constituted, now Housing Board has decided to re-auction the plot. 3. Lastly, it was prayed that the decision taken by the Housing board on 13.01.2014 regarding cancellation of auction of plot No. 14, to be declared as illegal and void-ab-initio and prayed for permanent injunction to the effect that the aforesaid Plot No. 14 may not be re-auctioned and defendant Housing Board may be directed to confirm the auction after receiving the balance amount and execute the relevant documents in favour of plaintiff. After service of summons of suit, appellant- defendant Housing Board filed an application under Order 7 Rule 11 CPC stating therein that as per Section 50 of the Rajasthan Housing Board Act, 1970 before filing any suit, two months notice is mandatory. After service of summons of suit, appellant- defendant Housing Board filed an application under Order 7 Rule 11 CPC stating therein that as per Section 50 of the Rajasthan Housing Board Act, 1970 before filing any suit, two months notice is mandatory. Without complying the aforesaid provision enshrined in Section 50 of the Act of 1970, the suit was instituted, which is not maintainable, that application was allowed by the learned trial Court vide order dated 14.11.2014 and the plaint was rejected vide order dated 14.11.2014. Against the order dated 14.11.2014 respondent- plaintiff preferred an appeal which was allowed by the learned 4. Additional District Judge No. 3, Kota vide impugned judgment dated 11.12.2014, against which this misc. appeal is preferred by the appellant- defendant- Rajasthan Housing Board. 5. Mr. P.C. Sharma learned counsel appearing on behalf of appellant submits that provision enshrined in Section 50 of the Act of 1970 is mandatory and without complying the aforesaid provision, respondent- plaintiff filed civil suit which is not maintainable, therefore learned trial Court rightly rejected the plaint but learned Appellate Court without considering the fact that the aforesaid provision is mandatory, allowed the appeal and quashed & set aside the order of learned trial Court wrongly, therefore the impugned judgment may be quashed and set aside and the order of learned trial Court may be restored. 6. Per contra Mr. R.K. Agarwal learned senior Advocate appearing on behalf of respondent- plaintiff submits that the matter was urgent, therefore respondent- plaintiff filed an application for exemption from notice under Section 50 of the Act of 1970, which was allowed by the trial Court and considering this fact, learned lower Appellate Court allowed the appeal, which doesn't require any interference. He further submits that in case for the sake of arguments the provision is treated as mandatory, still learned Court below should return the plaint with liberty to file it afresh after serving notice as observed in the matter of Deep Darshan Grah Nirman Sahkari Samiti Ltd. vs U.I.T. And Ors. reported in RLW 1997 (1) Rajasthan 241. 7. He submits that initially in C.P.C., the identical provision is there in Section 80 which was subsequently amended and Section 80 (2) was inserted wherein discreation was given to Court for waiving the burden of notice in urgent cases. reported in RLW 1997 (1) Rajasthan 241. 7. He submits that initially in C.P.C., the identical provision is there in Section 80 which was subsequently amended and Section 80 (2) was inserted wherein discreation was given to Court for waiving the burden of notice in urgent cases. He submits that the aforesaid amendment was effected from 01.02.1977 while the provision of Section 50 of the Rajasthan Housing Board Act is of 1970, therefore considering the subsequent provision in CPC regarding Section 80 (2), learned lower Appellate Court rightly allowed the appeal. He submits that this misc. appeal may be dismissed. 8. I have considered the submissions made at Bar. 9. Since, the provisions of Civil Procedure Code are general provisions while the Act of 1970 is specific Act wherein no such provision is there for waiving the burden of notice required under Section 50 of the Act of 1970. 10. However, in the matter of Deep Darshan Grah Nirman Sahkari Samiti Ltd. vs U.I.T. And Ors. (supra) co-ordinate Bench of this Court considering the provision enshrined in Section 80 (2) of CPC observed that :- "A look at Section 80 CPC reveals that a plaintiff intending to institute a suit against the Government, has two options before him, either he may file a suit after serving two months notice or he may file the suit without serving the notice but in that event he must satisfy the court that an urgent and immediate relief is required. In that event of first course being adopted the suit cannot be filed before the expiry of the two months of giving the notice and this explains the reason for using the word "shall" in Sub-section (1) of Section 80 by the Parliament. However, in the second case he has the choice to file the suit without giving the requisite notice but only after obtaining leave of the court and it is for this purpose that the word "may" has been used in Sub-section (2) of Section 80. However, in the second case he has the choice to file the suit without giving the requisite notice but only after obtaining leave of the court and it is for this purpose that the word "may" has been used in Sub-section (2) of Section 80. The principle laid down in Section 143 of the Act is similar to that of Section 80 CPC but this section has not been amended and the plaintiff intending to institute a suit against the Cooperative Society does not have the choice to file the suit without giving the requisite notice and the plaintiff has to file the suit after serving two months notice, as the provisions contained in Section 143 of the Act are mandatory in nature. In the case at hand though the plaintiff did not seek any relief against the state but impleaded it as party in the suit and instituted suit without serving the notice and after obtaining leave of the trial court under Sub-section (2) of Section 80 CPC. Proviso appended to Sub-section (2) of Section 80 CPC provides that the Court if it is satisfied after hearing the parties that no urgent or immediate relief need be granted in the suit shall return the plaint for presentation to it after complying with the requirements of Sub-section (1). In the instant case the trial court has completely overlooked this proviso. Even according to para 18 of the plaint, cause of action arose to the plaintiff on March 1, 1994 and July, 1995 but the suit was filed on August 13, 1996. The learned trial judge granted leave under Sub-section (2) of Section 80 mechanically without going through the facts pleaded in the plaint which ex facie shows that it was not a case of 'urgent or immediate relief. Even after appearance of the parties, it was incumbent upon the trial judge to again have the satisfaction regarding such urgent and immediate relief in accordance with the proviso appended to Sub-section (2) but it was not done. Even after appearance of the parties, it was incumbent upon the trial judge to again have the satisfaction regarding such urgent and immediate relief in accordance with the proviso appended to Sub-section (2) but it was not done. I am of the considered view that suit of the plaintiff was not maintainable in view of the provisions contained in Section 143 of the Act and even if it is held that Section 143 of the Act is amended by implication in view of Subsection (2) of Section 80 CPC then also in accordance with the proviso appended to subsection (2), the plaint had to be returned for presentation to it after complying with the requirements of Sub-section (1).' Therefore the suit appears from the statement in the plaint to be barred by Section 143 of the Act as well as by proviso appended to Sub-section (2) of Section 80 CPC and it ought to have been rejected under Order 7 Rule 11(d) CPC. In dismissing the application the trial judge has committed jurisdictional error and if the order is allowed to stand it would occasion failure of justice." 11. Here in the case in hand also, learned trial Court ought to have return the plaint inspite of rejection, in the light of the aforesaid judgment of this Court, therefore the impugned order is not sustainable and this appeal is partly allowed and the order of learned lower Appellate Court is quashed and set aside and the order of learned trial Court dated 14.11.2014 by which the plaint was rejected is also quashed and set aside and instead of rejection of plaint it is directed that plaint be returned to respondent- plaintiff for presentation after complying with the requirement of Section 50 of the Act of 1970. 12. It is also directed that till next three months appellant- defendant shall maintain status quo regarding the disputed property. 13. During this three months period, respondent- plaintiff will have liberty to file fresh suit after complying the provision enshrined in Section 50 of the Act of 1970 with application seeking temporary injunction. 14. Accordingly, the misc. appeal stands disposed of. Copy of this order be sent to learned trial Court.