Remanded

M.M.D. Educational Extension Society v. Municipal Council, Udaipur

Rajasthan HC20 Oct 2023CSA/122/2019

Case brief

AI extract

What is this about?

Appeal against decree dismissing suit for declaration and injunction regarding land allotment at concessional rates. Held lower courts failed to consider documents produced under Order 41 Rule 27 CPC and impugned judgment quashed. Matter remanded for fresh orders.

What did the court decide?

Impugned judgment of 22.11.2018 quashed and set aside; matter remanded to first Appellate Court to decide afresh after considering documents under Order 41 Rule 27 CPC.

M.M.D. Educational Extension Society Vs Municipal… — Property and Title | Rajasthan HC (2023)

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[2023:RJ-JD:36232]

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HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR

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S.B. Civil Second Appeal No. 122/2019

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M.M.D. Educational Extension Society, Mahamaya Dadhimiti Shiksha Prashar Samiti, Shivnagar South Sundarws, Udaipur Through Its Founder Smt. Bansanti Devi Tiwari W/o Jagdish Tiwari, Age 68 Years (Raj.)

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----Appellant

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Versus

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Municipal Council, Udaipur, Through Its Commissioner. 2. Urban Improvement Trust Udaipur, Through Its Secretary. 3. Local Self Department, State Of Rajasthan Jaipur., Through Deputy Secretary, State Of Rajasthan, Jaipur.

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----Respondents

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For Appellant(s) : Mr. Paramveer Singh Champawat For Respondent(s) : Mr. Anurag Shukla

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HON'BLE MS. JUSTICE REKHA BORANA

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Judgment

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20/10/2023

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The present appeal has been filed against the impugned judgment and decree dated 22.11.2018 passed by the Additional District Judge No.3 Udaipur in Civil Decree Appeal No.01/2016 (CIS No.10/2016) whereby the judgment and decree dated 28.01.2016 passed by Civil Judge (South) Udaipur, in Civil Original Suit No.124/2008 (CIS No.1470/2014) dismissing the suit for declaratory injunction as filed by the plaintiff, has been affirmed.

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The plaintiff society preferred the suit with the submission that a plot was allotted to it by U.I.T., Udaipur vide allotment letter dated 19.10.1995 and Rs.1,00,000/- as part payment was deposited vide cheque dated 21.03.1996. The remaining amount was to be deposited in installments but meanwhile a notification/circular was issued by the State Government whereby

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the educational institutes were granted a relaxation of 50% in the reserved rates of allotment. Therefore, the plaintiff also moved an application to the State Government for grant of the said relaxation.

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In pursuance to the said application, sanction to allot the land in question at 50% concessional rate and further, direction to regularise the allotment of the plaintiff society, after recovering the remaining amount, was granted/passed by the Local Self Department of the State Government vide order dated 01.07.2000. But despite several requests, order dated 01.07.2000 was not implemented by the defendant authorities and hence, the present suit was filed.

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The case of the defendants was that the allotment order dated 19.10.1995 stood cancelled vide letter dated 03.10.1996 and hence, the order dated 01.07.2000 was of no consequence. It has been submitted that the order dated 01.07.2000 was passed by the State Government in ignorance of the cancellation letter dated 03.10.1996. It has also been submitted that the plaintiff society, fraudulently, concealing the fact of the cancellation of the allotment, got the order dated 01.07.2000 issued in its favour and hence, cannot be held entitled to any relief in pursuance to the same.

¶21

On basis of the pleadings of both the parties, the following issues were framed:-

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“¼1½ vk;k jkt- ljdkj uxjh; fodkl laLFkk ds 1-7-2000 ds i= ds vuqØe esa oknh] izfroknh ds fo:) nkokd`r vuqrks’k izkIr djus dk vf/kdkjh gS \

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¼2½ vk;k oknh laLFkk dk vkoaVu fnuakd 03-10-1996 dks fujLr gks tkus ls oknh dk okn iks’k.kh; ugha gS \

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¼3½ vuqrks’k \“

The learned Trial Court while deciding issue No.1 specifically observed that the order dated 01.07.2000 (Exhibit 3) seems to be procured by the plaintiff, concealing the fact of the allotment having already been cancelled. The Court, on basis of the said observation, proceeded on to decide issue No.1 against the plaintiff and as a consequence dismissed the suit.

¶29

The relevant fact to be taken note of is that during the pendency of the first appeal, certain documents were sought to be brought on record by the plaintiff vide an application under Order 7 Rule 14, CPC which was rejected vide order dated 13.01.2016. The said order was assailed in a writ petition and vide order dated 25.01.2016 passed in S.B. Civil Writ Petition No.865/2016;

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M.M.D Education Extension Society, Udaipur vs.

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Commissioner, Municipal Council, Udaipur & Ors., the appellant was granted liberty to assail the validity of the order dated 13.01.2016 in the appeal.

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In pursuance to the above liberty, a prayer was made before the first appellate Court and, the documents as filed by the appellant were taken on record in terms of Order 41 Rule 27, CPC by the first Appellate Court. However, the first Appellate Court proceeded on to confirm the finding of the learned Trial Court on issue No.1 while observing that the proceedings were undertaken by the appellant before the State Government while concealing the fact of cancellation of the allotment in question. Further, the Appellate Court went on to the extent to observe that the order dated 01.07.2000 was passed in contravention to law and the governing Rules, without any challenge been laid by the defendant

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Department to the said order. Admittedly, there was no counter claim on behalf of the defendants qua the order dated 01.07.2000. The first Appellate Court observed as under:-

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“bl izdkj Lo;a okfn;k vihykFkhZ;k }kjk tks jkT; ljdkj ds le{k iz”uxr jkT; ljdkj ds vkns”k fnukad 01-07-2000 ds laca/k esa tks dk;Zokgh jkT; ljdkj ds ;gka dh xbZ gs mlesa okfn;k vihykFkhZ;k laLFkk }kjk iz”uxr vkoaVu fujLr djus ds laca/k esa dksbZ vfHkdFku dj tkudkjh vius Lrj ij ugha nh xbZ gS ftlls fopkj.k U;k;ky; }kjk pqukSrhxzLr fu.kZ; esa tks iSjk la[;k 8 dh ykbZu uacj 7 o mlds vkxs dh nks&rhu iafDr;ksa es okfn;k vihykFkhZ;k laLFkk }kjk vkoaVu fujLrh ds rF; dks uxj fodkl izU;kl ds le{k fNikrs gq, dk;Zokgh dh tkuk tks ekuk o Li’V fd;k gS] dh iqf’V gksrh gSA

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blds vfrfjDr iSjk o fVIi.kh la[;k 40 esa l{ke izkf/kdkfjrk }kjk fcuk fof/k ijke”khZ }kjk izfroknh jsLiksMsaV i{k dks vius Lrj ij i= fy[kdj tks vkoaVu dk;Zokgh fujLr djus ds laca/k esa uxjh; fodkl foHkkx dks voxr djk;k x;k Fkk] ds laca/k esa Li’V mYys[k djrs gq, vf/kdkfjrk ds Lrj ij oknxzLr Hkw[k.M dks fnukad 08-06-2000 dh fVIi.kh ds vuqlkj izfroknh jsLiksMsaV U;kl ds dCts esa gksuk crkdj o vkoaVu fujLrh ds rF; dks Li’V mtkxj dj mDr Hkw[k.M dks vkjf{kr nj ls 50 izfr”kr ls gh vkoaVu djuk U;k;fgr esa ugha gksuk crkrs gq, blh ds vuq:i mDr rF; ds vuqlkj fu.kZ; fy;s tkus gsrq i=koyh rRdkyhu ea=h] uxjh; fodkl foHkkx dks voyksdu gsrq fHktok;k x;k Fkk fdarq rRdkyhu ea=h egksn; uxjh; fodkl foHkkx }kjk iSjk la[;k 40 esa mYysf[kr rF;ksa dks ugha ekus tkus ds laca/k esa ;k muls lger ugha gksus ds laca/k esa dksbZ fof/kd fVIi.kh fd, fcuk dsoy ek= fcuk fdlh uhfr fu;e vkfn dk mYys[k o gokyk fn;s ;g vkns”k iznku djuk crk;k gS fd ^^laLFkk dks 50 izfr”kr nj ls vkoaVu dj fn;k tkosaA** ftlls Hkh ;g mtkxj vkrk gS fd iz”uxr dfFkr okn i= ds vuqrks’k esa ftl dfFkr vkns”k fnukad 01-07-2000 dh ikyuk dk vuqrks’k pkgk x;k gS og vkns”k fcuk fdlh fof/k ,oa uhfr fu;e ds vk/kkj dk gS ftldh ikyuk Hkh gekjs fof/klEer fouez erkuqlkj vihykFkhZ;k okfn;k U;k;ky; ls djokus dk fof/kd n`f’V ls vf/kdkfj.kh ugha gSA”

¶39

In the specific opinion of this Court, the above observation by the first Appellate Court is totally in excess of jurisdiction. Admittedly, the order dated 01.07.2000 was not under challenge and the finding qua the veracity of the same was not even required or necessitated in the present matter. It was no one’s

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case that the order dated 01.07.2000 had been passed in contravention to any law or Rule.

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This Court is also of the clear opinion that the observation of both the Courts that the order dated 01.07.2000 has been procured while concealing the fact of cancellation of the allotment is totally incorrect on the face of it. The documents as taken on record by the first Appellate Court seems not even to have been considered by the Court. A bare perusal of the said document, the note sheet, as shown to this Court by learned counsel for the appellant, makes it clear that the fact of cancellation of the allotment in question was very well on record and was very well taken into consideration by the authorities of the State Government before passing the order dated 01.07.2000.

¶45

In the opinion of this Court, when the first Appellate Court proceeded on to take the documents on record, a consideration of the same was essential by it. The first Appellate Court either should have considered the said documents itself or ought to have remanded the matter to the learned Trial Court for passing fresh orders after consideration of the said documents.

¶46

A perusal of both the orders impugned makes it clear that the documents as taken on record under Order 41 Rule 27, CPC were not at all considered by the Courts below. Therefore, the findings as arrived by both the Courts below are totally contrary to the material available on record.

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In view of the above observations, the impugned judgment and decree dated 22.11.2018 passed by the Additional District Judge No.3, Udaipur is hereby quashed and set aside. The matter is remanded back to the first Appellate Court to decide afresh

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after taking into consideration the documents as taken on record on the application under Order 41 Rule 27, CPC.

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With the above directions, the present appeal is disposed of . Both the parties shall appear before the first Appellate Court on 28.11.2023. The Court would not be required to issue any order notices/summons to the parties.

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Stay petition and all pending applications, if any, also stand dismissed.

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(REKHA BORANA),J

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93-KashishS/-

M.M.D. Educational Extension Society v. Municipal Council, Udaipur

Case brief

What is this about?

What did the court decide?

M.M.D. Educational Extension Society v. Municipal Council, Udaipur

Case brief

What is this about?

What did the court decide?

What the court decided

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