Research › Search › Judgment

Rajasthan High Court · body

2022 DIGILAW 1440 (RAJ)

Rajasthan Housing Board v. Madan Lal Jain

2022-05-06

SUDESH BANSAL

body2022
JUDGMENT Sudesh Bansal, J. - The appellant- defendant- Rajasthan Housing Board (hereafter 'the Board') has preferred this second appeal invoking jurisdiction of this court under Section 100 CPC assailing the judgment and decree dated 8-10-2015 passed by the Additional District Judge No. 2, Kota in first appeal No. 7/2014 dismissing appeal and affirming the judgment and decree dated 22-1-2014 passed by the Additional Civil Judge (Junior Division) Kota (South) in civil suit No. 2/2009 whereby and whereunder suit has been decreed in the manner that by restoring the registration number of respondent-plaintiff, his priority has been revived in order to holding the entitlement of plaintiff for allotment of plot in MIG-H category by the Board priority wise. 2. There is no involvement of any third party interest. It is not in dispute that plaintiff applied for allotment of plot in MIG-H category of the Board in Kota region, whereupon plaintiff's application was registered at No. 14887/1981 and the allotment were to be made priority wise. Later on his registration was cancelled, however, the Board issued revival letter to deposit seed money and revival fee, which was admittedly deposited by plaintiff within the scheduled time. However, the Board declined to revive the plaintiff's priority for the reason that receipt of deposition of seed money and revival fee were not placed on record within scheduled time. The trial court observed that plaintiff has deposited seed money with the Board well within the scheduled time, mere not placing the receipt of deposition of seed money with the Board is a technical default, for which the plaintiff cannot be deprived to get revive his priority by restoring his registration number for the purpose of having entitlement for allotment of plot by the Board. Findings recorded by the trial court have been affirmed by the first appellate court on re-appreciation of entire evidence. These concurrent findings have been challenged in this second appeal. 3. Facts as culled out from the record are that the plaintiff applied in the scheme of the Board for allotment of a plot in MIG-H scheme and his application was registered at 14887/1981 which was registered in the scheme of 1998 at priority No. 450/M-11/HP/G-2/81. But the said registration was cancelled. On the request for restoration of registration number, the Board vide letter No. 6218 dated 25-1-2001 informed the plaintiff to deposit within fifteen days first instalment of Rs. But the said registration was cancelled. On the request for restoration of registration number, the Board vide letter No. 6218 dated 25-1-2001 informed the plaintiff to deposit within fifteen days first instalment of Rs. 40,000/- along with revival money Rs. 2500/- for restoring the registration number of plaintiff. The letter was received by plaintiff on 27-1-2001 and the plaintiff deposited the amount Rs. 2500/- on 7-2-2001 and Rs. 40,000/- on 8-2-2001 i.e. well within the time prescribed by the Board. The copy of receipts were also deposited in the Board, but the registration of the plaintiff was not restored and no plot was allotted to plaintiff despite several requests. The Board returned the seed money and revival fee through cheque No. 028979 with letter dated 26-7-2005, which was not accepted by the plaintiff and the cheque was sent back to the Board. Thereafter on accrual of cause of action, after serving legal notice, the plaintiff filed the civil suit for restoration of registration and to revive his priority already registered with the Board for allotment of plot in MIG H scheme of the Board priority wise. 4. On service of notice, the Board filed written statement and stated that no allotment of plot was made on 16-12-1998, but only the application form was registered giving priority number to the plaintiff. Later on same was cancelled, however, on request of revival, same was allowed subject to payment of revival fee and seed money. Although the Board admitted for depositing the amount of seed money and revival fee by plaintiff on 7-2-2001 and 8-2-2001 but copy of said challan was deposited by the plaintiff on 4-9-2002, which was beyond six months of depositing the same, therefore, plaintiff's registration was not revived. The plaintiff was informed vide letter dated 28-10-2004 that his registration has been cancelled and vide letter dated 26-7-2005 his deposited amount Rs. 43680/- was refunded through Cheque No. 028979 because his registration was cancelled on 28-10-2004. The defendants denied the claim of plaintiff for allotment of plot and claimed cost of litigation Rs. 6000/-. 5. On basis of pleadings of parties, issues were framed (i) whether plaintiff is entitled for revival of his registration No. 14887/81? (ii) Whether plaintiff is entitled to declaration for allotment of plot in MIGH scheme of the Board on depositing the due amount? (iii) Whether defendants are entitled for cost of Rs. 6000/-? (iv) Relief? 6000/-. 5. On basis of pleadings of parties, issues were framed (i) whether plaintiff is entitled for revival of his registration No. 14887/81? (ii) Whether plaintiff is entitled to declaration for allotment of plot in MIGH scheme of the Board on depositing the due amount? (iii) Whether defendants are entitled for cost of Rs. 6000/-? (iv) Relief? Nasimur Rahman, Power of Attorney of plaintiff examined himself as Pw.1 and exhibited the power of attorney. Dw.1 J.L. Meena, was examined from to side of defendants and exhibited 11 documents. 6. On considering evidence of both parties, the trial court considering the fact that it is not disputed that plaintiff deposited seed money and revival fee within prescribed time, but defendants failed to show any rule of depositing the copy of receipt of depositing seed money within six months and that department receives information on deposition of amount in bank by any applicant and that the power attorney of plaintiff was found valid, therefore, decided the issue No. 1 in favour of plaintiff that he is entitled for revival of his registration No. 14887/81. The issue No. 2 was decided against plaintiff holding that in absence of allotment of plot, only on the basis of revival of his registration, the plaintiff is not entitled for allotment and possession of a plot. The prayer of defendants for special cost of Rs. 6000/- was declined by the trial court deciding the issue No. 3 against defendants. As a result of finding of issue No. 1 in favour of the plaintiff, the suit was decreed and directed the Board to restore the plaintiff's registration for priority wise allotment of plot in MIGH scheme of the Board. 7. On filing first appeal, the appellate court found no illegality or perversity in the impugned judgment passed by the trial court, therefore dismissed the appeal and affirmed the judgment passed by the trial court. Hence, this second appeal. 8. Heard learned counsel for parties and perused impugned judgments passed by courts below including the material available on record. 9. It is not in dispute that plaintiff applied for allotment of plot in MIG-H category of the Board in Kota region, whereupon his application was registered 14887/1981 and the allotment of plots were to be made priority wise. 8. Heard learned counsel for parties and perused impugned judgments passed by courts below including the material available on record. 9. It is not in dispute that plaintiff applied for allotment of plot in MIG-H category of the Board in Kota region, whereupon his application was registered 14887/1981 and the allotment of plots were to be made priority wise. At one point of time registration number was cancelled, nevertheless, later on the Board issued revival letter to deposit seed money and revival fee, which was admittedly deposited by plaintiff within the prescribed time. However, the Board did not revive the plaintiff's priority for the reason that receipt of deposition of seed money were not placed on record within six months. The Board remained fail to show any rule for depositing the receipts before the Board within six months and considering the fact that plaintiff has admittedly deposited the seed money and revival fee well within time prescribed by the Board, mere deposition of receipts is a technical error at most, therefore the issue in this regard has been decided in favour of plaintiff. Finally, the trial court directed the Board to restore the registration of plaintiff and to consider the entitlement of plaintiff for allotment of plot in concerned category priority wise. Findings recorded by the trial court have been affirmed by the first appellate court, after re-appreciation of evidence and material on record as a whole. 10. Counsel for the Board argued that orders for allotment of plot have been issued, whereas the trial court has only restored the registration number to revive the priority of plaintiff declaring him entitled to get allotment of plot by the Board priority wise. Hence, the argument is misplaced and has no force of law. He has further argued that plaintiff himself did not appear as a witness and instead his power of attorney has appeared. In this regard findings of the trial court are based on appreciation of documentary and oral evidence of parties and the same have been upheld by the first appellate court. The power of attorney has been found lawful and valid. Hence, the argument of counsel for the Board does not affect the merits of the present case. 11. Counsel for the Board has also raised argument that the suit was barred by limitation. The power of attorney has been found lawful and valid. Hence, the argument of counsel for the Board does not affect the merits of the present case. 11. Counsel for the Board has also raised argument that the suit was barred by limitation. Though this point was not raised in pleadings, but both courts below have found the plaintiff's suit well within limitation. Moreover, the cause of action to file present suit arose when the Board returned the seed money and revival fee vide letter dated 26-7-2005, informing the plaintiff about non restoration of his registration number and priority. The plaintiff declined to accept the cheque and returned the same to the Board and after serving legal notice filed the suit on 11-7-2006. Otherwise also, in backdrop of facts of the present case the suit cannot be treated to be barred by limitation and the argument raised by counsel for the Board is not tenable. 12. On perusal of findings recorded by the trial court as affirmed by the first appellate court it is apparent that only registration of plaintiff has been restored to revive his priority and no third party rights are affected by the directions issued by courts below. The action of the Board in declining to restore plaintiff's registration and priority number was found technical, which has not been found good by both courts below. 13. Counsel for appellant could not point out any infirmity, illegality or perversity in such fact findings, which are based on appreciation/re-appreciation of evidence on record. In case of Kondiba Dagadu Kadam v. Savitribai Sopan Gujar [ (1999) 3 SCC 722 ] and catena of other judgments passed in case of Pakeerappa Rai v. Seethamma Hengsu & Ors., [ (2001) 9 SCC 521 ], Thulasidhara & Anr. v. Narayanappa & Ors., [ (2019) 6 SCC 409 ], Bholaram v. Ameerchand, [ (1981) 2 SCC 414 ], Ishwar Das Jain v. Sohan Lal, [ (2000) 1 SCC 434 ] and State of Madhya Pradesh v. Sabal Singh & Ors., [ (2019) 10 SCC 595 ], the Hon'ble Supreme Court has categorically held that at the stage of second appeal, fact findings recorded by two Courts below, based on appreciation of evidence, should be honoured and must not be interfered with unless and until there is some perversity, illegality or jurisdictional error which leads manifest injustice. Once findings of fact recorded by two Courts below are justified and based on due appreciation of evidence, re-appreciation of evidence at the stage of second appeal in order to draw a different conclusion is not warranted. The scope of second appeal is confined to examine substantial question of law, which are sine qua non to exercise powers under Section 100 of CPC. No substantial question of law is found involved in the present second appeal, hence, the same is bereft of merits and accordingly dismissed. 14. Stay application and any other pending application(s), if any, also stand (s) disposed of. 15. Record of the court below be sent back forthwith.