G.C.M. Banerjee, vs Hyderabad Urban Development ...
2021 Latest Caselaw 2567 Tel

     THE HON'BLE SRI JUSTICE T. AMARNATH GOUD

                 SECOND APPEAL No.883 of 2015

JUDGMENT :

Heard both sides and perused the material on record.

2. This Second Appeal is preferred by the appellants/plaintiffs,

aggrieved by the judgment and decree dated 01.05.2015 passed in

A.S.No.203 of 2014 by the XXV Additional Chief Judge, City Civil

Court, Hyderabad in A.S.No.203 of 2014, seeking some clarification

on the said order.

3. The appellants/plaintiffs filed O.S.No.2299 of 2009 on the file

of V Junior Civil Judge, City Civil Court, Hyderabad against the

respondent to declare them as auction purchasers of Plot No.90 to an

extent of 455 sq. yards and Plot No.91 to an extent of 465 sq. yards at

Banjara Hills, and Jubilee Hills (Nandagiri Hills layout), Hyderabad

and also restrain the defendant or its officers from alienating schedule

plots in favour of the third parties. The said suit was dismissed on

11.06.2014 on the ground that the plaintiffs are not entitled for the

relief of declaration and permanent injunction and that the suit is bad

for non-joinder of necessary and proper parties.

4. Aggrieved thereby, the appellants/plaintiffs filed A.S.No.203 of

2014 on the file of XXV Additional Chief Judge, City Civil Court,

Hyderabad and the said first appeal was allowed with costs setting

aside the order passed in O.S.No.2299 of 2009 by the V Junior Civil

Judge, City Civil Court, Hyderabad and declared the

appellants/plaintiffs as auction purchasers of plaint schedule plots and

that the respondent/defendant shall ascertain the actual extent of these

two plots by way of joint inspection in the presence of both parties

and after such verification, the appellants/plaintiffs shall pay the

balance sale consideration for the actual extent as per the tender filed

by them on or before 30th June, 2015 and also granted consequential

perpetual injunction restraining the respondent/defendant from

alienating the suit plots to the third parties as prayer for.

5. The appellant holding that the judgment and decree passed by

the lower appellate Court is perverse and not fixing the time for

execution of the judgment and decree, the present second appeal is

preferred.

6. In this Second Appeal, the following substantial questions of

law are framed in ground No.4 :

"(i) Whether the direction of the lower appellate Court for measurement of Plot Nos.90 and 91 by way of joint inspection and the direction that the appellants shall pay the balance sale consideration for the actual extent as per the Tender filed by them are not mutually contradictory, ex-facie illegal and unsustainable.

(ii) Whether on the facts and in the circumstances of the case the direction in the judgment of the lower appellate Court for payment of the balance sale consideration by appellant on or before 30.06.2015, when there is a direction for joint inspection for ascertaining the actual extents in Plot Nos.90 and 91 is sustainable in law; and

(iii) Whether on the facts and in the circumstances of the case, the lower appellate Court in view of its findings should have directed for a joint inspection within a specified time and should have fixed the time for payment of balance sale consideration after such joint inspection."

7. Though the appeal is being allowed in favour of the appellants

herein, this Second Appeal is filed only for the purpose of some

clarification on the orders passed by the appellate Court, as the

appellate Court has erred in not fixing time frame for conducting the

joint inspection of the property and further intimating the plaintiff-

appellants with regard to the amount that they are supposed to deposit

with the respondent-HMDA.

8. Sri S.S.Prasad, appearing for the appellants, has relied on the

judgment of Apex Court in L.C.Goyal v. Mrs.Suresh Joshi &

others1, wherein, it is held that misappropriation of client's money

would amount to professional misconduct. The order in A.S. is

1 1999 (3) SCC 376

perverse as the duration for 1st limb and the 2nd limb of the order for

execution is not specified.

9. Mr Y. Rama Rao, learned counsel appearing for the

respondent/HMDA fairly submitted that HMDA lost the suit and also

in first appeal and that any orders passed in the second appeal would

be complied with. He further admitted that respondent/HMDA has

not preferred any appeal against the order passed in the first appeal.

Learned counsel made an attempt to draw the attention of this Court

with regard to the some other persons, who also participated in the

auction. This Court is not inclined to appreciate the same since it is

not the case of the respondent/HMDA and moreover, all the said

contentions which are now advanced on behalf of HMDA have

already been dealt with by the lower appellate Court.

10. It is the case of the appellants that the respondents having

received substantial money from them for the purpose of registration

of the land, the respondents have not chosen to implement the orders

of the Court and not complied with. More so, on any technical reason,

when the transaction has taken place long back and when the second

appeal is on the file of this Court pending from 2015 onwards, it is not

proper for deciding the matter on technical issues since the ultimate

justice needs to be done to the party, who approaches the Court with

clean hands. It is pointed out that the trial Court ought to have fixed

some time directing the respondent authorities to conduct a joint

inspection and to measure the plots that are sold in auction in favour

of the appellants and collect the amounts in view of the variations in

the extent of plots. Further, reasonable time ought to have been given

by the respondents indicating the amount payable by the appellants to

the respondent/HMDA. Since the same are lacking in the present

appeal, they prayed to allow the appeal.

11. Since the lower appellate Court has already decreed the appeal

in favour of the appellant herein ought to have clarified with regard to

the inspection and also the communication with regard to the payment

by fixing duration independently for both stages. Since HMDA has

already invited the order in first appeal, this Court is inclined to give a

clarification with regard to the order passed by the lower Appellate

Court for the purpose of implementing it.

12. Having heard learned counsel for the parties and having regard

to the facts and circumstances of the case, this Second appeal is

allowed with the following directions :

1. The respondent-HMDA shall conduct joint inspection of the

plots in question, by giving specified date and time, keeping

the appellants well informed in advance by way of a notice,

preferably within a period of one month from the date of

receipt of a copy of this order.

2. After conducting the joint inspection, the respondent-

HMDA shall communicate by a letter with regard to the

extent of land in favour of appellants indicating with regard

to the balance amount payable by them in pursuance to the

allotment of plots, by granting some reasonable time i.e. at

least one month from the date of receipt of notice to that

effect.

13. With the above observations, the second appeal is allowed to

the extent indicated above. No order as to costs.

Pending miscellaneous applications, if any, shall stand closed.

________________________ T. AMARNATH GOUD, J.

Date: 09.09.2021 ajr