Judgment:
Sabina, J.
1. Plaintiff-Om Parkash Sharma had filed a suit for mandatory and permanent injunction. Additional Civil Judge (Senior Division), Panchkula vide judgment and decree dated 11.10.2007 decreed the suit of the plaintiff. Aggrieved by the same, defendants preferred an appeal and the same was dismissed by Additional District Judge, Panchkula vide judgment and decree dated 10.6.2008. Hence, the present appeal by the defendants.
2. The facts of the case as noticed by the learned Additional District Judge, in paras 2 and 3 of its judgment read as under:
Sans unessential, the facts of this case are that booth No. 39, Sector-10 Panchkula was allotted to the plaintiff in open auction on free hold basis on 20.4.1989. At the time of auction, it was made clear that the sale of booth shall be subject to the general terms and conditions as contained in the allotment letter. As per condition 6 of the allotment letter issued by the defendant No. 2, possession of the site was taken by the plaintiff after making payment of 25% (10% at the time of bid and 15% within 30 days of allotment) as per the terms and conditions of the allotment letter/contract. The possession of the site was offered without ensuring implementation of all development work in the area of site as per lay-out plan. The defendant No. 2 proceed ahead contravening the contract clause No. 20 of the allotment letter as he was never appointed as an Arbitrator. The HUDA Act empower the Estate Officer to take action against the allottee if he does not make due payment but not when a dispute has arisen and the due amount is not determined as per clause 20 of the allotment letter. It was alleged that action taken by the defendant No. 2 resuming the booth of the plaintiff and forfeiting the amount of Rs. 67,397/- out of the deposited amount was illegal and against the provisions of the HUDA Act and allotment letter. It was pleaded that several requests were made by the plaintiff the defendants to restore the booth and not to charge the penalty and penal interest against provisions of the contract and that he was ready to pay the remaining installments as the defendants did not accede to his requests. The plaintiff requested the defendants to supply to him the details of dues and not to change exorbitant and penal interest against the provisions of the allotment letter but the defendant without giving notice and opportunity of hearing, demanded the dues calculated with the highest rate of interest and breaching the terms and condition of the allotment letter. The plaintiff received a notice from the defendant No. 2 for personal hearing and threatened ex parte proceedings in case of non appearance. It was alleged that by the same notice, offer was given to the plaintiff to deposit the amount up to 31.12.1992 and that therefore, the said notice was vague. It was pleaded that the defendant No. 1 vide order dated 5.3.1993 resumed the booth of the plaintiff and forfeited amount of Rs. 67,397/- out of the amount deposited by the plaintiff. It was averred that the appeal as well as the revision filed by the plaintiff were rejected illegally without giving notice to him or his counsel. The plaintiff pleaded that the defendants were threatening to dispossess him from the booth in question forcibly; that several requests were made by him to the defendants to restore the booth and not to charge penalty and penal interest against provisions of the allotment letter as he was ready to pay the remaining installments but the defendants did not accede to his request and hence he filed the present suit.
3. In response to notice of the suit, the defendants filed written statement and opposed the suit on law and facts questioning jurisdiction of the civil court, maintainability of the suit and facts stated and cause of action in favour of the plaintiff. On merits, the defendants pleaded that the allotment letter was issued to the plaintiff on 20.4.1989 and possession was taken by him on 19.5.1989; that at the time of issuance of the allotment letter and delivery of possession, the area of the site was fully developed; that the plaintiff never made any request for completion of the development works in the said area and that there was no reason or question to apply order dated 7.12.1988 to the plaintiff as he was not in the picture at that time. It was submitted that after the allotment, the plaintiff never paid any installment of the due amount even despite notices under Section 17 of HUDA Act issued to the plaintiff several times. The action taken by the defendants was counterasserted to be legal and in accordance with the HUDA Act & Rules. It was further submitted that the plaintiff was asked to deposit the due amount several times and ample opportunity of hearing was given to him; that the plaintiff was given notices under Section 17(1) to (4) of the HUDA Act before passing the resumption order dated 5.3.1993. The fact regarding filing of appeal and revision was admitted. It was alleged that the plaintiff failed to avail of the opportunities given to him under the HUDA Act and after passing the order dated 5.3.1993 and rejection of his subsequent appeal and revision petition, the plaintiff has no right whatsoever over the site in question and ask for restoration of the site. The defendants denied the entire claim of the plaintiff and sought dismissal of his suit with costs.
3. On the pleadings of the parties, trial court framed the following issues:
(1) Whether the plaintiff is entitled to the relief as claimed for in view of the grounds taken in the plaint? OPP
(2) Whether the civil court has no jurisdiction to file the present suit? OPP
(3) Whether plaintiff has no locus standi to file the present suit? OPD
(4) Relief.
4. After hearing learned Counsel for the parlies, I am of the opinion that the present appeal is devoid of any merit and deserves to be dismissed.
5. Admittedly, the plaintiff was allotted Booth No. 39, Sector-10 Panchkula in an open auction being the highest bidder. Plaintiff paid Rs. 47,300/- at the time of auction and further paid Rs. 70, 950/- within one month as stipulated in the allotment agreement. Plaintiff was required to pay the balance amount in ten half yearly installments with 10% interest on the balance amount. Plaintiff, however, defaulted in making the payment of installments. Order of resumption was passed by the defendants on 5.3.1993 with regard to the booth in dispute. Plaintiff filed the present suit for mandatory injunction directing the defendants to transfer the booth, in question, in his name. Parties led their evidence in support of their cases. Both the courts below after appreciating the evidence on record have given a finding of fact that ho notice was issued to the plaintiff before passing of the resumption order. The case of the defendants was that notice had been issued to the plaintiff whereas the case of the plaintiff was that he had not received the notice issued by the defendants nor any opportunity of hearing was offered to him before passing of the resumption order. Both the courts below have given a finding of fact that the notice was, in fact, not served on the plaintiff. Both the courts below have, further, held that the defendants were not entitled to charge interest @ 18% because as per clause 6 of the agreement between the parties, the rate of interest could be 10% only. In these circumstances, courts below have further observed that the jurisdiction of the civil court was not barred in the facts and circumstances of this case as the order passed by the defendants was in violation of mandatory provisions of Section 17(3) of the Haryana Urban Development Authority Act, 1977 (hereinafter referred to as 'the Act'). Moreover, resumption order had been passed by defendant No. 2 without observing the imperative mandate of Section 17(3) of the Act. Learned trial court while decreeing the suit of the plaintiff has further clarified that the defendants would be at liberty to impose the penalty as per rules and regulations of the Act.
6. Learned Counsel appearing for the caveator-respondent has submitted that the entire amount due has been now deposited by the plaintiff-respondent. In these circumstances, no interference by this Court is called for.
7. No substantial question of law arises in this appeal. Accordingly, this appeal is dismissed.