Gurbhajan Singh vs The Estate Officer and Another

L.N. Mittal, J.

CM No.558-C OF 2011

For reasons mentioned in the application, which is accompanied by affidavit of the counsel, delay of 27 days in refilling the appeal is condoned The application stands disposed of accordingly.

RSA No.186 OF 2011

Plaintiff-Gurbhajan Singh who was successful in the trial Court but has been non-suited by the lower Appellate Court has filed this second appeal.

Suit plot in Urban Estate, Karnal was allotted by Haryana Urban Development Authority (HUDA) to S. S. Fatra (allottee) vide allotment letter dated 18.09.1992. The allottee deposited 10 % of tentative price of the plot with defendant No.1 (Estate Officer, HUDA). The allottee vide agreement dated 11.11.1992 agreed to sell the suit plot to the plaintiff for consideration of Rs. 42,704/- including the amount already paid by the allottee to HUDA. The plaintiff paid the said amount or Rs. 42,704/- to the allottee, who transferred all his rights in favour of plaintiff who was also to pay the remaining amount of sale price of the plot to HUDA. It was accordingly paid by the plaintiff. The plaintiff learnt that defendant No.2 Gurdeep Singh, who was made attorney of the allottee pursuant to agreement with the plaintiff, had surrendered the suit plot to defendant No.1 on 02.09.2001 and that defendant No.1 was going to refund Rs. 88,000/- to the allottee out of deposited amount of Rs. 1,44,624/-, which had been paid by the plaintiff to HUDA. Defendant No.2 as attorney of the allottee was not authorized to surrender the plot. However, defendant No.1 passed order dated 03.09.2001 regarding surrender/resumption of the plot. The said order is null and void. The plaintiff sought declaration to this effect and also sought declaration that he is owner of the suit plot being prospective vendee under agreement dated 11.11.1992. Permanent injunction restraining defendant No.1 from auctioning the suit plot and from refunding the amount of Rs. 88,000/- pursuant to resumption/surrender order was also claimed.

Defendant No.2 was proceeded against ex parte.

Defendant No.1 contested the suit and pleaded that balance amount had already been refunded to the allottee vide cheque dated 04.01.2002. It was also alleged that in view of general power of attorney dated 11.11.1992 executed by the allottee in favour of defendant No.2, the latter was fully authorized to surrender the plot. Averments made in the plaint were controverted.

Learned Additional Civil Judge (Senior Division), Karnal vide judgment and decree dated 13.06.2009 decreed the plaintiff''s suit. However, first appeal preferred by defendant No.1 has been allowed by learned Additional District Judge, Karnal vide judgment and decree dated 20.04.2010 and resultantly suit filed by the plaintiff stands dismissed. Feeling aggrieved, plaintiff has filed this second appeal.

I have heard learned counsel for the appellant and perused the case file.

Counsel for the appellant reiterated the averments made in the plaint as noticed hereinbefore and contended that suit of the plaintiff-appellant had been rightly decreed by the trial Court. The contention cannot be accepted. Even assuming the plaintiff''s averments to be correct at face value, the plaintiff cannot succeed.

Firstly, defendant No.2 was admittedly general power of attorney holder of the allottee and, therefore, defendant No.2 had authority under the said power of attorney to surrender the suit plot. Consequently surrender of suit plot by defendant No.2 was legal and valid and defendant No.1 committed no error in accepting the said surrender. Consequently order dated 03.09.2001 passed by defendant No.1 regarding surrender/resumption of suit plot does not suffer from any error and is not liable to be set aside.

Secondly, allottee S. S. Fatra has not been made party to the suit although in view of averments made in the plaint, he was the most necessary party to the suit. In his absence, no relief can be granted to the plaintiff.

Thirdly, suit for declaration and injunction only filed by the plaintiff is not maintainable without seeking relief of specific performance of the alleged agreement. However, plaintiff did not seek relief of specific performance of the agreement.

Fourthly, alleged agreement to sell is dated 11.11.1992 whereas the suit was filed on 13.02.2002 and, therefore, suit for claiming relief of specific performance of the agreement had become barred by limitation.

Fifthly, jurisdiction of civil Court to challenge resumption/surrender order passed by defendant No.1 is also barred by Section 50 of the HUDA Act, 1977.

Sixthly, injunction regarding refund of amount by defendant No.1 to the allottee could not be granted because the amount already stood refunded vide cheque dated 04.01.2002 whereas the suit was filed thereafter on 13.02.2002. For the reasons aforesaid, I find no merit in this second appeal. No question of law, much less substantial question of law, arises for adjudication in this second appeal. Accordingly, the appeal is dismissed in limine.