Daga Gas Agency Vs. Raj. State Industrial Development and Investment Ltd. - Court Judgment

Excerpt:
civil procedure code, 1908 - order 39 rules 1 & 2--trary injunction--prima facie case--petitioner allotted plot--allotment withdrawn before expiry of the period of depositing balance 3/4th amount--no opportunity of hearing given--withdrawal illegal--petitioner has a prima facie case--trial court's temporary injunction restored. (para 3);revision allowed - labour & servicesappointment: [shiv kumar sharma, ashok parihar & k.s. rathore, jj] merit list rajasthan secondary education act (42 of 1957), section 28 & rajasthan board of secondary education rules, rule 20 - held, improved marks obtained by candidate after re-appearing in examination can be considered for drawing the merit list of candidate for appointment to post of teacher. circular issued by the director of primary & secondary education ousting such candidate from consideration in merit list is illegal and without jurisdiction. - i am of the view that the basic approach of the learned appellate court is clearly wrong in as much as after allotment having been made the petitioner was required to pay balance 3/4 amount within the permissible time and it cannot be said that till the time expires it is open to the defendant to withdraw the allotment, in any case otherwise then in accordance with law and without giving opportunity of hearing to the allottee. thus in deciding the question of prima-facie case, the learned lower appellate court has clearly committed jurisdictional error, apart from the fact that the learned lower appellate court has not met with the reasoning given by the learned trial court.n.p. gupta, j.1. heard learned counsel for the parties.2. by the impugned order the learned lower appellate court has set aside the injunction order granted by the learned trial court restraining the non-petitioner defendant from allotting plot no. 79-a to any body else pending disposal of the suit. the reason given by the learned lower appellate court for dismissing the injunction application is that the plaintiff was not allotted the plot in as much as the allotment claimed by the plaintiff is dated 28.10.91 and subsequent exchange dated 13.12.1991 were mere proposals and since according to the defendant the plaintiff did not deposit the balance 3/4 amount, the allotment was withdrawn and since the allotment according to the defendant was only proposal which has already been withdrawn, it cannot be said that the plaintiff has any prima-facie case or that the plaintiff was entitled to be given any opportunity of hearing before such withdrawal.3. having heard the learned counsel for the parties. i am of the view that the basic approach of the learned appellate court is clearly wrong in as much as after allotment having been made the petitioner was required to pay balance 3/4 amount within the permissible time and it cannot be said that till the time expires it is open to the defendant to withdraw the allotment, in any case otherwise then in accordance with law and without giving opportunity of hearing to the allottee. in the present case even according to the defendant the allotment was withdrawn on 2.1.1992. in the order dated 2.1.1992 no reason has been disclosed for withdrawal of the allotment and even in the pleadings, the stand taken is that it was withdrawn because the plaintiff did not deposit the 3/4 amount within stipulated time, suffice it to say that up to 2.1.1992, 90 days did not expire whether from 28.10.1991 or from 13.12.1991. in such circumtantces prima-facie it is clear that the cancellation dated 2.1.1992 is bad and since this order dated 2.1.1992 is precisely under challenge in the suit, in order to protect the rights of the parties, the defendant was required to be restrained from allotting plot no. 79-a to anybody else. thus in deciding the question of prima-facie case, the learned lower appellate court has clearly committed jurisdictional error, apart from the fact that the learned lower appellate court has not met with the reasoning given by the learned trial court.4. consequently the revision petition is allowed, the impugned order is set aside and that of the trial court is restored.5. it is made clear that whatever observations have been made regarding the merits of the order dated 2.1.1992 by this court shall not in any manner prejudice the rights of any of the parties in the trial court and the trial court will decide the suit objectively on merits in accordance with the material that may be placed on record by the parties. the learned trial court to expedite the trial of the suit.