Shri Hoshiyar Singh Bagri vs Delhi Development Authority & ...
2011 Latest Caselaw 1894 Del

*     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.

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

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