Col.D.S.Solanki (Retd.) vs Govt. Of Nct Of Delhi & Ors.
2011 Latest Caselaw 2244 Del

*     IN THE HIGH COURT OF DELHI AT NEW DELHI

%                             Date of Judgment: 27.4.2011

+                       RSA No.71/2011


COL.D.S.SOLANKI (RETD.)      ...........Appellant
             Through: Mr.Naresh Kaushik and             Mr.Joymoti
                        Mize, Advocates.

                  Versus

GOVT. OF NCT OF DELHI & ORS. ..........Respondent
              Through: Nemo.


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)

CM No.8047/2011 (for exemption)

Allowed subject to just exceptions.

RSA No.71/2011

1. This appeal has impugned the judgment decree dated

17.02.2011 which had endorsed the finding of the trial dated

19.2.2009 whereby the suit filed by the plaintiff Col.D.S.Solanki

seeking declaration and mandatory injunction to the effect that a

decree of declaration be granted in his favaour declaring that the

order of the defendant cancelling his allotment of an industrial

plot be declared null and void; simultaneously he had sought for a

decree of mandatory injunction directing the defendant to allot an

industrial plot in his favour had been dismissed.

2. The case of the plaintiff is that he is carrying on business of

manufacturing, trade and sale from his factory situated at Khasra

No.443, Village Nasirpur, Delhi under the name and style of M/s

Dada Dev Ice Factory. Licence dated 24.2.1993 had been granted

to him by the Health Department of the MCD. He had deposited

licence fee. In pursuance of an advertisement in the newspaper

inviting applications for allotment of an industrial plot the plaintiff

had applied; he had applied on 25.12.1996; he had been called for

an interview on 14.01.1999. Plaintiff had deposited a sum of

Rs.1,20,000/- as an advance money. In spite of various visits to

the office of the defendant including his letters dated 20.7.2001

and 07.3.2011 he received no response from the department. He

was constrained to file the present suit.

3. In para 10 of the plaint, it has been specifically averred that

a letter had been received by him calling upon him to refund the

earnest money and he had been informed that his application for

allotment of the industrial plot had been cancelled. The whole

case of the plaintiff, in fact, hinged upon this letter; his averment

is that in terms of this letter his allotment has been cancelled; he

has been directed to take a refund of the earnest money. What is

the date of the letter has not been given. That apart, the plaintiff

had also not placed on record any such letter. This was

incumbent in view of the fact that his whole case was based upon

this letter. Before the courts below (as has been noted therein)

and even before this Court it has been stated that the plaintiff had

sent the original letter to the department and had not kept a

photocopy of the same; he does not know the date of the letter; he

also does not have a copy of it. Plaint has been rejected primarily

on this ground. Court was of the view that in the absence of this

letter the question of limitation also cannot be gone into; the

plaint is vague, no cause of action has been disclosed. The plaint

had accordingly been rejected under Order 7 Rule 11 of the Code

of Civil Procedure.

4. This finding was endorsed in first appeal.

5. On behalf of the appellant, it has been vehemently urged

that the plaintiff should have been given a chance to prove his

case and he should have been granted a chance to lead evidence.

Even on a specific query put to the appellant today in the court

the appellant has admitted that he does not know the date of the

letter; neither does he have a copy of the letter. Even if the

submission of the learned counsel for the appellant is accepted

and he is put to the trial, the result of the trial is known today; in

the absence of the said letter the question of the plaintiff being

able to prove his case that his allotment has been cancelled vide

the aforenoted letter could not be proved. The impugned

judgment endorsing this finding does not in any manner call for

any interference.

6. Substantial questions of law have been embodied on page

seven of the appeal. No such substantial question of law has

arisen. Appeal is dismissed in limine.

INDERMEET KAUR, J.

APRIL 27, 2011 nandan