ISHWAR DAYAL Vs. DELHI DEVELOPMENT AUTHORITY

JUDGEMENT

(1.) This second appeal is filed under Section 100 CPC, 1908 impugning the judgment of the first appellate court dated 12.2.2013 by which the first appellate court allowed the appeal of the respondent/defendant and dismissed the suit which was filed by the appellant/plaintiff seeking directions to the respondent/defendant to allot an alternative flat of the nature of flat no. 14-C, Second Floor, Pocket-8 & 9, Sector-25, Rohini, Delhi.

(2.) The facts of the case are that the appellant/plaintiff had got himself registered with the respondent/defendant for allotment of a Janta Flat in Rohini in the year 1996 and was issued a registration vide no. 39453. Plaintiff was allotted a flat no. 14-C, Second Floor, Pocket-8 & 9, Sector-25, Rohini, Delhi on 15.4.2004. The respondent/defendant sent a demand letter to the plaintiff on 15.4.2004 to deposit the requisite amount and also submit the necessary documents, but, the appellant/plaintiff did not do so. As per the respondent/defendant, last date of payment of the initial deposit was 12.9.2004 alongwith interest for the delayed period, and failing which the allotment was to be cancelled automatically. The respondent/defendant pleaded that before issuing of a cancellation letter on 31.1.2005, a show cause notice dated 28.12.2004 was given to the appellant/plaintiff. The appellant/plaintiff responded by asking a duplicate copy of the allotment letter of 15.4.2004 on the ground that the allotment letter was lost on account of unfortunate demise of a close relative Sh. Mohar Singh and another close relative Smt. Ramwati falling seriously ill in July 2004. Appellant/plaintiff relied upon a FIR dated 6.1.2005 which was annexed with the reply to the show cause notice on 7.1.2005 and by which the appellant/plaintiff claimed a duplicate copy of the allotment letter.

(3.) The first appellate court has set aside the findings of the trial court and has held that the case of the appellant/plaintiff lacks credibility because the story of the loss of the registration slip/allotment letter dated 15.4.2004 was stated for the first time only in the FIR dated 6.1.2005 and which is after a show cause notice dated 28.12.2004 was sent by the respondent/defendant. The first appellate court accordingly held that the appellant/plaintiff was guilty of not complying with the demand-cum-allotment letter of 15.4.2004 even till the extended date of 12.9.2004 for payment along with interest, and that the FIR was only a convenient document to justify the reply to show cause notice dated 28.12.2004 sent by the respondent/defendant. The first appellate court has also referred to contradictions in the pleadings and the depositions of the witnesses of the appellant/plaintiff. The relevant paras of the judgment of the first appellate court are paras 14 to 18 of the impugned judgment, and which read as under :