Rameshwar Singh Malik, J.@mdashPlaintiff, having been non-suited in her suit for declaration and permanent injunction by both the learned courts
below, recording concurrent findings, has approached this Court by way of instant regular second appeal.
2. Briefly put, facts of the case are that plaintiff was allotted a commercial plot measuring 23.630 sq. meters pursuant to a public auction, vide
allotment letter No. 1870 dated 14.10.1998. Allottee-appellant paid 25% of the total costs at the time of allotment and thereafter no payment was
made. The respondent authorities issued notices to the allottee-appellant and after following the procedure laid down under the relevant provisions
of law, resumption order was passed against the plaintiff. Plaintiff filed the suit for declaration and permanent injunction.
3. Having been served in the suit, defendant appeared and filed its written statement raising more than one preliminary objections including
availability of statuary appeal under the Haryana Urban Development Authority Act, 1977 (''HUDA Act'' for short). On merits, claim of the
plaintiff was totally denied. Concealment of facts was alleged and dismissal of the suit was prayed for.
4. On completion of pleadings of the parties, following issues were framed by the learned trial Court:-
1. Whether the plaintiff is entitled for declaration and injunction as prayed for? OPP
2. Whether the present court has no jurisdiction to entertain the present suit? OPD
3. Whether the plaintiff has no locus standi to file the present suit? OPD
4. Whether the suit is bad for want of concealment of material facts before the court? OPD
5. Whether the plaintiff has no cause of action to file the present suit? OPD
6. Relief.
5. To substantiate their respective stands taken, both the parties led their documentary as well as oral evidence. After hearing the learned counsel
for the parties and going through the evidence brought on record, the learned trial Court came to the conclusion that plaintiff has failed to prove her
case. Accordingly, her suit was dismissed vide impugned judgment and decree dated 18.10.2007. Feeling aggrieved, plaintiff filed her first appeal,
which also came to be dismissed by the learned Additional District Judge vide impugned judgment and decree dated 16.12.2009. Hence this
appeal, at the hands of the plaintiff.
6. Learned senior counsel for the appellant submits that plaintiff has duly proved her case. Cogent evidence has been brought on record, which
was sufficient to decree the suit. However, since both the learned courts below have failed to appreciate the true facts of the case as well as the
evidence available on record, the impugned judgments and decrees were not sustainable in law. He prays for setting aside the impugned judgments
and decrees passed by the learned courts below, while allowing the present appeal.
7. Having heard learned senior counsel for the appellant at considerable length, after careful perusal of record of the case and giving thoughtful
consideration to the arguments advanced, this Court is of the considered opinion that in the given fact situation of the present case, no interference
is warranted at the hands of this Court, while exercising its appellate jurisdiction u/s 100 of CPC (''CPC'' for short), because no question of law
much less substantial question of law has been found involved in the instant case. To say so, reasons are more than one, which are being recorded
hereinafter.
8. It is a matter of record that plaintiff was having a remedy of statuary appeal u/s 17(5) of the HUDA Act. It is also not in dispute that plaintiff did
not file any appeal and straightway filed the present suit before the learned civil court. The only issue that falls for consideration before this Court is
whether in such a situation, the learned civil court will have jurisdiction to try the suit filed by the plaintiff-appellant.
9. Section 50 of the HUDA Act provides direct answer to the issue and the same reads as under:-
50. Finality of orders and bar of jurisdiction of civil courts:- (1) Save as otherwise expressly provided in the Act, every order passed or direction
issued by the State Government or order passed or notice issued by the Authority or its officer under this Act shall be final and shall not be
questioned in any suit or other legal proceedings.
(2) No civil court shall have jurisdiction to entertain any suit or proceedings in respect of any matter the cognizance of which can be taken and
disposed of by any authority empowered by this Act or the rules or regulation made thereunder.
10. A bare reading of the above-said provisions of law would show that the learned civil court was not having any jurisdiction to try the suit filed
by the appellant. This was the reason that a specific issue No. 2 was framed in this regard. Issue No. 2 came to be decided against the plaintiff by
both the learned courts below holding that the civil court was not having any jurisdiction to entertain the present suit. When a pointed question was
put to the learned senior counsel for the appellant in this regard as to how the suit was maintainable once the trial Court was not having jurisdiction,
he had no answer and rightly so because it was a matter of record. Basic defect in the suit was based on statutory provisions of law referred to
hereinabove. Having said that, this Court feels no hesitation to conclude that both the learned courts below committed no error of law, while
passing their respective impugned judgments and the same deserve to be upheld.
11. So far as the non-payment of amount for the commercial site in question is concerned, after initial payment of 25% of the sale consideration,
plaintiff-appellant did not pay any amount thereafter before the plot in question was resumed. Any offer to make the entire payment even alongwith
interest after passing of the resumption order would be of no consequence. Once the plaintiff has taken the possession of the commercial site, he
raised the construction thereon and had been running his business from the said commercial plot, non-payment of remaining amount even thereafter
would render the plaintiff totally disentitled, for any kind of relief. It is so said, because plaintiff never made any attempt to discharge his financial
liability, for the same commercial plot from which he was earning profits by doing the business. Thus, plaintiff had no case either on facts or in law.
Learned courts below have rightly recorded concurrent findings of fact in this regard and the impugned judgments deserve to be upheld, for this
reason also.
12. Before arriving at a judicious conclusion, the learned Additional District Judge rightly appreciated the true facts of the case as well as the
evidence brought on record. Cogent findings recorded in paras 12 and 13 of the impugned judgment passed by the learned first appellate court,
read as under:-
I have given thoughtful consideration to the rival submissions made by the ld. counsel for the parties. The allotment letter Ex. PW/1 shows that the
balance amount of Rs. 9,00,000/- was to be paid within 60 days or in 10 half yearly installments along with interest. It is admitted that the plaintiff
did not deposit any installment with the defendant. Section 17 of HUDA Act provides that where any transferee makes defaults in the payment of
any consideration money or any installment, the Estate Officer may make an order resuming the land after issuing the show cause notice and
providing opportunity of personal hearing to the transferee. In the present case DW 1 J.C. Bhatia has stated that the booth in question was
resumed because plaintiff failed to deposit the outstanding amount of Rs. 11,33,500/- with the defendant. Plaintiff has not appeared in the witness
box to prove that the requisite notices u/s. 17 of the Act were not served upon her. The General Power of Attorney of plaintiff cannot say that
notices were not received by the plaintiff. Moreover, in the original suit the plaintiff had challenged the show cause notices dated 11.06.2001 and
20.06.2001 and it apparently shows that those notices were served upon the plaintiff. Despite receipt of show cause notice, the plaintiff did not
deposit the balance amount and therefore, it cannot be said that the order of resumption is illegal
Now the question for determination is whether civil court has jurisdiction to entertain the suit. Section 17(5) of HUDA Act provides that any
person aggrieved by the order of the Estate Officer may file an appeal to Chief Administrator within 30 days. Section 50(2) of the Act provides
that no civil court shall have jurisdiction to entertain any suit or proceedings in respect of any matter the cognizance of which can be taken and
disposed of by any authority empowered by this Act. In the present case the order of resumption could be challenged before the Chief
Administrator but the plaintiff did not file appeal before the Chief Administrator. Therefore, it is concluded that the jurisdiction of civil court is
expressly barred.
13. During the course of hearing, learned senior counsel for the appellant failed to point out any jurisdictional error or patent illegality apparent on
the record of the case, in either of the impugned judgments. He also failed to put into service any substantive argument, so as to convince this
Court to take a different view than the one taken by the learned courts below. Further, no question of law much less substantial question of law has
been found involved in the present case, which is sine qua non for interference at the hands of this Court, while exercising its jurisdiction u/s 100
CPC. Thus, the impugned judgments and decrees passed by the learned courts below deserve to be upheld, for this reason as well.
14. No other argument was raised.
15. Considering the peculiar facts and circumstances of the case noted above, coupled with the reasons aforementioned, this Court is of the
considered view that the present appeal is misconceived, bereft of merit and without any substance. Thus, it must fail. No case for interference has
been made out. Consequently, the impugned judgments and decrees passed by the learned courts below are upheld.
16. Resultantly, the instant appeal stands dismissed. Pending application also stands disposed of. No costs.
