Rajasthan High Court
R H B Through Chairman Jaipur And ... vs Madan Lal Jain on 6 May, 2022
Bench: Sudesh Bansal
HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR
S.B. Civil Second Appeal No. 44/2016
1. Rajasthan Housing Board Through Its Chairman, Bhagwan
Das Road, Jyoti Nagar, Jaipur
2. Dy. Housing Commissioner, Rajasthan Housing Board
Circle Kota, Rajasthan
----Appellants
Versus
Madan Lal Jain S/o Shri Mangi Lal Jain Through Power Of
Attorney Nasimurrahman S/o Abdul Hafeez, House No. 114,
Ballabh Bari, Kota Raj.
----Respondent
For Appellant(s) : Mr. P.C. Sharma
For Respondent(s) : Mr. Suresh Sahni with
Mr. R.M. Sharma
HON'BLE MR. JUSTICE SUDESH BANSAL
Judgment
JUDGMENT RESERVED ON : 29/04/2022
JUDGMENT PRONOUNCED ON : May _6th_, 2022
BY THE COURT:
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
(2 of 8) [CSA-44/2016]
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
(3 of 8) [CSA-44/2016]
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
(4 of 8) [CSA-44/2016]
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?
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
(5 of 8) [CSA-44/2016]
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. 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
(6 of 8) [CSA-44/2016]
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. 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.
(7 of 8) [CSA-44/2016]
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 Vs. Savitribai Sopan Gujar [(1999)
3 SCC 722] and catena of other judgments passed in case of
Pakeerappa Rai Vs. Seethamma Hengsu & Ors., [(2001) 9
SCC 521], Thulasidhara & Anr. Vs. Narayanappa & Ors.,
[(2019) 6 SCC 409], Bholaram Vs. Ameerchand, [(1981) 2
SCC 414], Ishwar Das Jain Vs. Sohan Lal, [(2000) 1 SCC
434] and State of Madhya Pradesh Vs. 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
(8 of 8) [CSA-44/2016]
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.
11. Stay application and any other pending application(s), if any,
also stand (s) disposed of.
12. Record of the court below be sent back forthwith.
(SUDESH BANSAL),J
Arn/64
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