* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of Judgment: 31.03.2011
+ RSA No.352/2006
SHRI HOSHIYAR SINGH BAGRI ...........Appellant
Through: Mr. Sanjay Goswami, Advocate
Versus
DELHI DEVELOPMENT AUTHORITY & Anr. ..........Respondents.
Through: None.
CORAM:
HON'BLE MS. JUSTICE INDERMEET KAUR
1. Whether the Reporters of local papers may be allowed to
see the judgment?
2. To be referred to the Reporter or not? Yes
3. Whether the judgment should be reported in the Digest?
Yes
INDERMEET KAUR, J. (Oral)
1 This appeal has impugned the judgment and decree dated 03.08.2006 which had reversed the findings of the trial Judge dated 13.04.2004. Vide judgment and decree dated 13.04.2004, the suit of the plaintiff Hoshiyar Singh Bagri against the defendant Delhi Development Authority (DDA) seeking mandatory injunction to the effect that the defendant be directed to accept the original amount fixed for the allotment of the flat in question i.e. a sum of Rs.60,700/- and not the escalated price in terms of demand letter dated 10.02.1997 had been decreed in his favour. The appeal filed by the DDA had resulted in the impugned judgment which had reversed this finding; suit stood dismissed. Grounds of appeal as is evident from the record of the first appellate court were various. RSA No.352/2006 Page 1 of 3 The first appellate court had allowed the appeal of the DDA and had dismissed the suit of the plaintiff only on a single point i.e. on the point of limitation. The impugned judgment had relied upon the provisions of Article 113 of the First Schedule of the Limitation Act, 1963 had held that the period of three years in this case would be counted from 08.01.1991 i.e. the date the plaintiff had become entitled to the suit land.
2 This finding in the impugned judgment is clearly erroneous; it is an illegality and is liable to be set aside. 3 Averments made in the plaint have been perused. The plaint clearly states that the plaintiff had originally been allotted a flat under the Janta Flat Scheme in terms of a draw dated 15.03.1990. The oral information about the allotment of the flat and the subsequent letters were thereafter sent to a wrong address. Someone in place of the plaintiff had in fact deposited the amount in terms of the aforenoted demand letters dated 24.04.1990 & 03.05.1990. On efforts being made by the plaintiff and an enquiry having been conducted, on 08.01.1991 the plaintiff was declared as the original and actual allottee of the flat in dispute. Inspite of that, the allotment letter was not issued to the plaintiff. Legal notice had also been sent. In February, 1997 the plaintiff received a demand letter dated 10.02.1997 wherein the original price of the flat which was Rs.60,700/- was enhanced illegally and arbitrarily to Rs.1,42,904/-. This was the grievance of the plaintiff which led him to file the present suit. The paragraphs in the plaint detailing cause of action also clearly state so. The suit had been filed on 01.05.1997. The last demand letter from the defendant seeking enhanced payment was dated 10.02.1997. The suit was within RSA No.352/2006 Page 2 of 3 limitation. The finding in the impugned judgment holding other being an illegality is accordingly set aside. 4 It is also evident that the impugned judgment had not touched the merits of controversy. This is a valuable right which is available to both the parties. In fact in the grounds of appeal, the DDA had averred various grounds which had not been gone into. 5 This is a second appeal. It had been admitted and on 25.04.2007, the following substantial question of law was formulated:-
"Whether the suit filed by the appellant is barred by time?" 6 None has appeared on behalf of the respondents, inspite of telephonic message having been sent to the standing counsel for the DDA.
7 In this background, this court deems it fit that the matter should be remanded back to the first appellate court to enable the first appellate court to decide the case on merits after giving its finding on all the issues. Since the matter is old, it would be appropriate and expected that the first appellate court shall make endevour to dispose of the appeal within an outer limit of 10 months from today. The parties are directed to appear before the District & Session Judge, Tis Hazari Court, Delhi on 06.04.2004 at 10:30 AM who will assign the case to the concerned first appellate court.
8 With these directions, appeal is disposed of. Record be sent back.
INDERMEET KAUR, J.
MARCH 31, 2011, a RSA No.352/2006 Page 3 of 3