KANCHAN DEVI Vs. RIICO

JUDGEMENT

(1.) THIS second appeal under Section 100 CPC is an outstanding example of casual filing and a gross abuse of the judicial process in an environment of already overcrowded court dockets. The facts of the case are that the plaintiff -appellant Kanchan Devi (hereinafter 'the plaintiff') filed a suit for permanent injunction simplicitor on 21.07.1990 before the court of Additional Civil Judge (Jr. Division) and Judicial Magistrate (West), Jaipur City, Jaipur. The plaintiff's case was that on 22.12.1970 a plot No.A2, admeasuring 14,325 sq. mtrs., situate at Vishwakarma Industrial Area, Jaipur, was allotted by RIICO to a firm M/s Jain Industries of which her husband and son were apparently the partners. Lease -deed in respect thereof was executed on 04.05.1979. It was stated that the said plot No.A2 was utilized for setting up a factory for the manufacture of sodium and other chemicals. And subsequent to the death of her husband Sardarmal, the plaintiff and her son Surendra Kumar, who had been impleaded as defendant No.3 in the plaint, became the sole owners of the aforesaid plot and continued to be in possession thereof. It was stated that for setting up the manufacturing a factory on plot No.A2 aforesaid, M/s Jain Industries when under the husband's control had obtained a term loan of Rs.1,35,000/ - from the Rajasthan Financial Corporation (hereinafter 'RFC'). The said loan was alleged to have been repaid with no outstanding remaining due against the firm M/s Jain Industries towards RFC. And in any event at no point of time any demand notice for any purported outstanding towards the aforesaid term loan was received or otherwise communicated to the plaintiff or her son Surendra Kumar (defendant No.3 in the plaint). It was submitted that on 29.06.1990 one Doongar Mal, partner of M/s Mahaveer Industries, defendant No.4 came to the plot site and stated that part of plot No.A2 to an extent of 4,325.47 sq. mtrs. had been purchased by his firm at a public auction conducted by RFC and his firm was in the process of making construction thereon. On inquiries made following Doongar Mal's statement, it came to the plaintiff's knowledge that RFC had indeed taken possession of and sold a part (4,325.47 sq. mtrs.) of plot No.A2 admeasuring 14,325 sq. mtrs. which had been mortgaged with it as a collateral security for the re -payment of the outstandings allegedly due on the term loan advanced to M/s Jain Industries in the exercise of its purported powers under Section 29 of the State Financial Corporations Act, 1951 (hereinafter 'the Act of 1951'). Stating that the proceedings taken by the RFC to take possession and sell part of the erstwhile plot No.A2, Vishwakarm Industrial Area, Jaipur to the defendant -No.4 were wholly null and void in view of the fact that no notice prior of amount due or the sale had been served on the plaintiff and that no amounts to the RFC were at all outstanding, it was prayed that the defendants impleaded in the suit i.e. RIICO, RFC, purchaser M/s Mahaveer Industries as also oddly her own son Surendra Kumar, be restrained by way of a permanent injunction from interfering with her purported possession and ownership of the whole of plot No.A2 still admeasuring 14,325 sq. mtrs. situate at Vishwakarma Industrial Area, Jaipur.

(2.) ON service of notice of the suit, all defendants other than defendant No.4 M/s Mahaveer Industries, the firm which had purchased part of original plot No.A2 aforesaid in an auction by the RFC in the exercise of its powers under Section 29(1) of the Act of 1951 to an extent of 4,325.47 sq. mtrs. remained ex -parte. Written statement by the defendant No.4 was filed in total opposition to the plaint. It was stated that out of the original plot No.A2 in Vishwakarma Industrial Area, Jaipur, plot No.A2(A) have been carved out to an extent of 4,325.47 sq. mtrs. which had earlier been purchased by the defendant No.4 at a public auction conducted by RFC on 29.12.1979. Possession in pursuance thereof was given to the defendant No.4 on 26.08.1980. Construction of a boundary wall was then immediately made. It was stated that subsequently a lease -deed came to be registered at the instance of RIICO in the exercise of its power under RIICO Disposal of Land Rules, 1979 (after bifurcation of plot No.A2) in respect of plot No.A2(A), Vishwakarma Industrial Area, on 14.02.1990. It was submitted that the defendant No.4 was thus the absolute legal owner of plot No.A2(A) admeasuring 4,325.47 sq. mtrs. and was in possession thereof. It was also denied that subsequent to the death of Sardarmal, a partner of the original allottee M/s Jain Industries, the plaintiff had come into the ownership of the said plot in any capacity and neither any averment in that regard was made by the plaintiff nor any evidence with regard thereto adduced before the trial court. It was submitted that RFC, in the exercise of its power under Section 29(1) of the Act of 1951 had taken possession of the part of the extant plot No.A2 held by it under equitable mortgage securing its loan in view of M/s Jain Industries being in default in the discharge of its obligation under the term loan agreement entered into with RFC. Subsequent to the taking of possession of the plot by RFC under Section 29(1) of the Act of 1951, RFC had proceeded to exercise its statutory power and auction the part of original plot No.A2 of which possession was taken to the extent 4,325.47 sq. mtrs. Thereupon defendant No.4 as the successful bidder came into ownership without any encumbrance with reference to Section 29(2) of the Act of 1951. Action taken was necessary for the recovery of RFC's outstanding dues. It was submitted that the proceedings taken by RFC were in accordance with its statutory powers under the Act of 1951 and as no challenge thereto was laid by M/s Jain Industries (the loanee) at any point of time the proceedings under the Act of 1951 thus had attained finality. It was pointed out that the proceedings under Section 29(1) of the Act of 1951 under which possession of part of plot No.A2 at Vishwakarma Industrial Area, Jaipur to an extent of 4,325.47 sq. mtrs. was taken by RFC and auctioned were in the life time of late Sardarmal, partner of M/s. Jain Industries. It was submitted that as a purported successor of late Sardarmal, the plaintiff could not be allowed to circumvent belatedly - after a delay of about ten years, the exercise of power by RFC under Section 29(1) of the Act of 1951 taking over possession of plot No.A2 to the extant of 4,325.47 sq. mtrs. its subdivision and demarcation as plot No.A2(A) by RIICO on RFC's requisition and sale to the defendant No.4 -firm at a public auction. It was pointed out that the public auction of plot No.A2(A) (as subsequently renumbered after subdivision by RIICO) on 29.12.1979 was conducted only after well publicised notices therefor in various newspapers. No objection was raised at the relevant time and it did not thus lie in the mouth of the plaintiff, aside of other serious question of maintainability of the suit more so at her instance, to seek permanent injunction simplicitor inter alia against a purchaser for valuable consideration at a public auction following which he was conferred legal ownership by a registered lease deed and put to possession. In this view of the matter, it was prayed that the suit be dismissed.

(3.) ON consideration of the matter, the learned trial court inter alia found that aside of the absolute lack of merit in the plaintiff's case no evidence having been laid before it with regard to the right of the plaintiff qua the one time property of M/s. Jain Industries, no evidence had even otherwise been placed before it with regard to the discharge of liability of M/s. Jain Industries on account of term loan availed from RFC. The trial court held under its judgment and decree dated 19.03.1997 that in view of the fact that power under Section 29 of the Act of 1951 had been exercised as early as 19.12.1979 the plot admearsuing 4,325.47 sq. mtrs. auctioned after public notice on 29.12.1979, possession given on 26.08.1980 to the defendant No.4, the plaintiff's suit was liable to be dismissed. The trial court also found that a suit for permanent injunction simplicitor in the facts of the case was not maintainable as no cancellation of the lease -deed dated 14.02.1990 executed by the RIICO in favour of defendant No.4 had been sought nor a declaration of the plaintiff's ownership prayed for. An appeal to the appellate court against the judgment and decree of the trial court also came to be dismissed on 11.03.2005.