KAILASHCHANDRA KAKHANI Vs. RAJASTHAN HOUSING BOARD

JUDGEMENT

(1.) Appellant/plaintiff has laid this second appeal under Sec. 100 CPC, assailing impugned judgment and decree dated 26th of July 2016, passed by Addl. District Judge No. 2, Bhilwara (for short, 'learned first appellate Court'), in the appeal filed by him against dismissal of suit vide judgment and decree dated 23rd of October, 2010 by Addl. Civil Judge (Jr. Div.) No. 1, Bhilwara (for short, 'learned trial Court').

(2.) Succinctly stated, the facts of the case are that appellant-plaintiff filed a suit for perpetual and mandatory injunction against respondent-defendant Rajasthan Housing Board stating, inter-alia, therein that on 25/2/1985 he had applied for allotment of house under General Registration Scheme, 1985 of the respondent-defendant in Higher Income Group and deposited a sum of Rs.12,500.00 as the registration charge and thereafter vide communication dtd. 7/12/1992 he was asked to deposit Rs.95,000.00 in three instalments before possession which was paid and accordingly House No. 1-B-17 was allotted to him on 22/1/1994. Possession letter in respect of that house was issued on 12/5/1994 and a demand of Rs.1,77,220.00 for outright sale was raised to which the appellant-plaintiff objected and insisted for sale of house on hire-purchase basis. Later on, the allotment of house was made on hire purchase basis on total cost of Rs.3,00,769,.00 and out of the remaining due amount of Rs.1,75,424,.00 a sum of Rs.18,724.00 was to be paid within three months and balance amount in instalments of Rs.3,000.00 per month. In the interregnum, the matter was taken upto State Consumer Forum by the appellant-plaintiff on the ground of some deficiencies in the constructed house but the parties were relegated to civil litigation vide order 1/5/2001. As per appellant-plaintiff, an advertisement was issued by respondent- defendant for sale of vacant houses in Rajasthan Patrika dtd. 14/8/2003 and that prompted him to initiate proceedings by filing suit. With these averments in the plaint, the appellant-plaintiff prayed for restraining the respondent-defendant from selling House No. 1-B-17 Chandrashekhar Azad Nagar, Bhilwara and to declare the sale proceedings initiated in respect thereof illegal with further prayer for curing the defects as required for restoration of his allotment of the said house.

(3.) The suit was contested by the respondent-defendant by filing written statement. Though allotment of house in favour of appellant-plaintiff was not denied by the respondent-defendant in its return but it was pleaded that the appellant-plaintiff failed in payment of requisite amount before possession within time and thereafter also in payment of requisite instalments. The averment of appellant-plaintiff with regard to publishing advertisement for sale of disputed house was emphatically denied and it was submitted that possession of the house was taken over by him on 8/2/1995 and before taking possession he had submitted an affidavit accepting the house in the existing condition after signing the list of inventories and further promised not to raise any complaint in future in respect of any deficiency in the house. It was the case of respondent-defendant that a skeleton house was provided to the appellant-plaintiff and accordingly the amount was charged and appellant-plaintiff was further asked to deposit the instalments by February 1995 which he failed to deposit while retaining possession of the house. The respondent Board also took a stand that in the event of appellant's failure to pay instalments as per rules, the respondent Board shall be free to sale or allot the house to someone else, Objections of deficient court fee and jurisdiction of the trial Court to entertain the suit were raised by the respondent-defendant and lastly a prayer was made for dismissal of the suit.