Kailashchandra Kakhani s/o Shri Kanwarlalji Kakhani v. Rajasthan Housing Board
2019-02-01
P.K.LOHRA
body2019
DigiLaw.ai
JUDGMENT : 1. Appellant/plaintiff has laid this second appeal under Section 100 CPC, assailing impugned judgment and decree dated 26th of July 2016, passed by Addl. District Judge No.2, Bhilwara (for short, ‘learned first appellate Court’), in the appeal filed by him against dismissal of suit vide judgment and decree dated 23rd of October, 2010 by Addl. Civil Judge (Jr.Div.) No.1, Bhilwara (for short, ‘learned trial Court’). 2. Succinctly stated, the facts of the case are that appellant-plaintiff filed a suit for perpetual and mandatory injunction against respondent-defendant Rajasthan Housing Board stating, inter-alia, therein that on 25.02.1985 he had applied for allotment of house under General Registration Scheme, 1985 of the respondent- defendant in Higher Income Group and deposited a sum of Rs.12,500 as the registration charge and thereafter vide communication dated 7.12.1992 he was asked to deposit Rs.95,000 in three instalments before possession which was paid and accordingly House No.1-B-17 was allotted to him on 22.01.1994. Possession letter in respect of that house was issued on 12.05.1994 and a demand of Rs.1,77,220 for outright sale was raised to which the appellant-plaintiff objected and insisted for sale of house on hire-purchase basis. Later on, the allotment of house was made on hire purchase basis on total cost of Rs.3,00,769, and out of the remaining due amount of Rs.1,75,424, a sum of Rs.18,724 was to be paid within three months and balance amount in instalments of Rs.3,000 per month. In the interregnum, the matter was taken upto State Consumer Forum by the appellant-plaintiff on the ground of some deficiencies in the constructed house but the parties were relegated to civil litigation vide order 01.05.2001. As per appellant-plaintiff, an advertisement was issued by respondent-defendant for sale of vacant houses in Rajasthan Patrika dated 14.08.2003 and that prompted him to initiate proceedings by filing suit. With these averments in the plaint, the appellant-plaintiff prayed for restraining the respondent-defendant from selling House No.1-B-17 Chandrashekhar Azad Nagar, Bhilwara and to declare the sale proceedings initiated in respect thereof illegal with further prayer for curing the defects as required for restoration of his allotment of the said house. 3. The suit was contested by the respondent-defendant by filing written statement.
3. The suit was contested by the respondent-defendant by filing written statement. Though allotment of house in favour of appellant-plaintiff was not denied by the respondent-defendant in its return but it was pleaded that the appellant-plaintiff failed in payment of requisite amount before possession within time and thereafter also in payment of requisite instalments. The averment of appellant-plaintiff with regard to publishing advertisement for sale of disputed house was emphatically denied and it was submitted that possession of the house was taken over by him on 08.02.1995 and before taking possession he had submitted an affidavit accepting the house in the existing condition after signing the list of inventories and further promised not to raise any complaint in future in respect of any deficiency in the house. It was the case of respondent-defendant that a skeleton house was provided to the appellant-plaintiff and accordingly the amount was charged and appellant-plaintiff was further asked to deposit the instalments by February 1995 which he failed to deposit while retaining possession of the house. The respondent Board also took a stand that in the event of appellant’s failure to pay instalments as per rules, the respondent Board shall be free to sale or allot the house to someone else. Objections of deficient court fee and jurisdiction of the trial Court to entertain the suit were raised by the respondent-defendant and lastly a prayer was made for dismissal of the suit. 4. The learned trial Court, on the basis of the pleadings of the rival parties, framed as many as 4 issues for its determination. In support of his case, appellant-plaintiff Kailashchandra himself appeared as PW1 and in documentary evidence produced Exs.1 to 3 while on behalf of respondent-defendant DW1 Rakesh Singh was examined and documents Ex.A/1 to A4 were exhibited. Learned trial Court, on evaluation of evidence and other materials available on record, decided material issues No.1 & 2, about declaring the sale proceedings initiated by respondent-defendant illegal and injunction for making good the deficiencies in the house, against the appellant-defendant. Issues No.3 & 4 relating to objection of respondent-defendant about jurisdiction of the trial Court and deficient court fee were decided against respondent-defendant. Accordingly, the learned trial Court dismissed the suit. 5.
Issues No.3 & 4 relating to objection of respondent-defendant about jurisdiction of the trial Court and deficient court fee were decided against respondent-defendant. Accordingly, the learned trial Court dismissed the suit. 5. Though none is present for the appellant, but the case as is sought to be set up in the present appeal is broadly based on facts in deciding issues No.1 & 2 jointly and not discussing the same in consonance and conformity with the evidence and other materials on record. 6. Learned counsel, Mr. P.C. Sharma, appearing for respondent-defendant Rajasthan Housing Board, submits that it is pure and simple case of concurrent finding of fact by both the Courts below and therefore the impugned judgments require no interference in this second appeal. Mr. Sharma would contend that both the learned Courts below have recorded a concurrent finding of fact that the appellant-defendant was allotted house and possession thereof was given on 08.02.1995 but since then he has not paid the instalments due and entire cost of the allotted house. He further submits that for payment of due amount appellant was time and again given notice and final notice in this chain was given on 27.12.2017 by publication in newspaper which too did not receive any response from him ultimately led to cancellation of the allotment on 11.05.2018. Learned counsel submits that a finding of fact based on documentary and oral evidence cannot be disturbed in second appeal. Lastly, learned counsel would contend that for entertaining second appeal, involvement of substantial question of law is sine-qua-non. 7. Having heard learned counsel for the respondent-defendant and perusing the impugned judgment and decree of the first appellate Court as well as the learned trial Court, it appears that the finding of fact, as emerged out on evaluation of evidence and other materials on record by both the Courts below, clearly and unequivocally reveals that the appellant has obtained possession of a skeleton house on 08.02.1995. It is also borne out from the record that possession of the skeleton house was taken by the appellant after signing the list of inventories showing existing condition/amenities of the allotted house followed by tendering his own affidavit that he would not raise any dispute in future about any deficiency in the allotted house.
It is also borne out from the record that possession of the skeleton house was taken by the appellant after signing the list of inventories showing existing condition/amenities of the allotted house followed by tendering his own affidavit that he would not raise any dispute in future about any deficiency in the allotted house. This sort of situation is sufficient to conclude that the grievances of the appellant against respondent Rajasthan Housing Board are not at all tenable and the litigation initiated at his behest before the Consumer Forums and later on proceedings before the civil Court is nothing but his serious omission in not paying the instalments towards cost of house in time. A litigant seeking equitable relief of injunction is obliged to approach the Court with clean hands without concealing material facts. In the instant case, concealment of facts and default in payment of instalments without any cause much less plausible cause by the appellant is crystal clear, more particularly, in the wake of his signing inventory showing condition of the allotted house while taking possession. That apart, tendering his affidavit not to litigate in the matter is also sufficient to non-suit appellant on the anvil of acquiescence. The appellant was allotted house and possession thereof was given on 08.02.1995 but he did not pay the instalments due pertaining to cost of the allotted house despite notices issued to him again and again and that ultimately resulted in cancellation of the allotted house for which he cannot have a valid grievance sans infringement of his civil rights. 8. On close scrutiny of the impugned judgment, in my opinion, no substantial question of law is involved in this second appeal requiring adjudication rather the questions sought to be proposed are nothing but based on facts which in view of the settled proposition of law and it is not within the domain of the High Court to investigate the grounds, on which the findings were arrived at by the last Court of fact, i.e. the first appellate Court. if in the given set of circumstances two interferences of fact are possible, one subscribed by the first appellate Court is not to be interfered by the High Court in second appeal. Adopting any approach in such a situation is not permissible.
if in the given set of circumstances two interferences of fact are possible, one subscribed by the first appellate Court is not to be interfered by the High Court in second appeal. Adopting any approach in such a situation is not permissible. The High Court, however, can interfere where it is found that the conclusions drawn by the first appellate Court were erroneous on account of being contrary to the mandatory provisions of law or trite legal position settled by authoritative pronouncements of Hon’ble Apex Court, or based on inadmissible evidence, or arrived at by ignoring material evidence. 9. The phrase "substantial question of law", as occurring in the amended Section 100 of the Code of Civil Procedure is not defined in the Code. The word substantial, as qualifying "question of law", means-of having substance, essential, real, of sound worth, important or considerable. It is to be understood as something purely technical, of no substance, or consequence, or merely academic. When a question of law is fairly arguable, where there is room for difference of opinion on it, or where the Court thinks it necessary to deal with that question at some length and discuss alternative views, then obviously the question may be construed as a substantial question of law. On the other hand, if the question is covered by the decision of the Apex Court, or if the general principles to be applied in determining the question are well settled, and the only question is to apply principles to the particular facts of a case, it may not be a substantial question of law. The general rule is that High Court shall not interfere with the concurrent findings of Courts below. But it is not an absolute rule. Some of the well recognized exceptions are where: (i) the Courts below have ignored material evidence or acted on no evidence; (ii) the Courts have drawn wrong inferences from proved facts by applying the law erroneously; or (iii) the Courts have wrongly cast the burden of proof. When Court refers to 'decision based on no evidence', it not only refers to cases where there is a total dearth of evidence, but also refers to any case, where the evidence, taken as a whole, is not reasonably capable of supporting the finding. 10.
When Court refers to 'decision based on no evidence', it not only refers to cases where there is a total dearth of evidence, but also refers to any case, where the evidence, taken as a whole, is not reasonably capable of supporting the finding. 10. Thus, in totality, jurisdiction conferred on this Court under Section 100 CPC is to be exercised sparingly and second appeal is to be entertained only when there is a substantial question of law involved, and a finding of fact cannot be re-appreciated unless and until it is proved that it is perverse or based on misreading of evidence and materials available on record. I am unable to find any such infirmity in the impugned judgment and therefore not inclined to entertain this appeal. 11. Consequently, the appeal fails and the same is hereby dismissed. No costs.