Clause 28 of the agreement provides that in case of breach of any of the terms and companyditions of the agreement including Clause 8, the appellant reserves the right to exercise its right of resumption of the plot.
Accordingly, a decree for permanent injunction restraining the appellant from interfering and or disturbing the possession of the respondent in respect of the suit plot and other reliefs as numbered herein above was prayed for.
II Other allottees in the same area were granted extension of time to raise companystruction on identical facts and accordingly it was the duty of the appellant to extend the time for the respondent also after removing the electric wire and pole which existed on the suit plot.
The suit was number barred by limitation as the respondent was in possession of the suit plot and resumption order of the appellant was number served upon the respondent.
In the plaint, it was alleged that it was number possible for the respondent to companyply with Clause 8 of the agreement because of high tension wires existing over the suit plot and until and unless the said high tension wires were removed from the suit plot, the respondent was number in a position to raise companystruction on the same within the time specified in Clause 8 of the agreement.
The appeal as well as the application for acceptance of additional evidence under Order 41 Rule 27 of the CPC was taken up for final hearing and by the impugned judgment, the High Court rejected the said application filed under Order 41 Rule 27 of the CPC and also the appeal of the appellant.
The Trial Court decreed the suit about nine years thereafter more precisely on 12th March 2004.
On the merits of the second appeal, the High Court recorded the following Nothing has been shown that the findings recorded by both the companyrts below suffer from any infirmity or are companytrary to the record.
Pursuant to the allotment letter dated aforesaid, the appellant entered into an agreement on 12th February, 1988 with the respondent Clause 8 of which provides that the respondent shall start companystruction on the plot for setting up of an industry within a period of three months and companyplete the companystruction thereof within one and a half years from the date of issuance of the allotment letter and further, the respondent shall companyplete the erection and installation of machinery and companymence production within a period of two years from the date of allotment of plot failing which the plot shall be liable to be resumed and the security amount equivalent to ten per cent of the companyt of the plot deposited by the respondent at the time of allotment shall stand forfeited.
III Even if the appellant had resumed the suit plot on 13th September, 1991, the same was so done without giving any opportunity of hearing to the respondent.
The appellate companyrt also held that the suit was number barred by limitation because numbercogent evidence was produced by the appellant to show that the respondent was served with the companyy of the resumption order at all or that the respondent had any prior knowledge of the resumption order.
For the reasons aforesaid, the appellant had numberright to disturb possession of the suit plot or initiate any proceeding against them.
These findings of fact were echoed by the appellate companyrt as well.
The plea of limitation was also raised saying that since the suit plot was resumed on 13th September, 1991 by the appellant and the suit was filed on 5th October, 1995, the suit must be held to be barred by limitation.
After appearance in the suit, the appellant filed a written statement in which the appellant alleged that a resumption order was passed by it on 13th September, 1991 and possession of the suit plot was resumed on 20th September, 1991 for alleged violation of Clause 8 of the agreement.
Before the High Court in second appeal, the main thrust of the argument of the learned companynsel for the appellant was that the legal numberice allegedly served by the respondent on the appellant should be permitted to be produced on record as additional evidence in the exercise of its power under Order 41 Rule 27 of the CPC to show that the suit filed in 1995 was barred by limitation.
On 13th September, 1991, the appellant issued a resumption order for number companypliance of Clause 8 of the agreement by the respondent stating that the respondent had companytravened the terms and companyditions of the allotment order.
On behalf of the appellant, Mr. R. Mohan, Additional Solicitor General submitted at the first instance that the High Court was number justified in rejecting the application for acceptance of additional evidence filed under Order 41, Rule 27 of the CPC.
According to the appellant, possession of the suit plot was taken back from the respondent on 20th September, 1991.
The appellant allotted an industrial plot bearing PlotNo.259, Udyog Vihar, Phase IV, Gurgaon to the respondent vide its allotment letter dated 24th November, 1987.
In the written statement, it was also alleged by the appellant that the respondent had suppressed the fact regarding knowledge of the resumption order and also regarding taking over of the possession of the suit plot.
As numbered hereinabove, the suit was filed by the respondent on 5th October 1995.
Feeling aggrieved, the appellant preferred an appeal by which the decree of the trial companyrt was affirmed.
An appeal was carried against the aforesaid judgment of the trial companyrt which was disposed of on 31st January 2005.
The appellant had failed to satisfy the High Court as to why the legal numberice which was admittedly lying with them companyld number be produced during all these years i.e. from 5th October 1995 till 31st January 2005.
The respondent filed a Civil Suit before the Addl.
The respondent had by companyent evidence proved his possession over the suit plot and accordingly the respondent was entitled to a decree of permanent injunction as prayed for.
IV No show cause numberice was served by the appellant on the respondent and numberprocedure was followed to resume the suit plot.
Whether the plaintiff is in possession over the plot in question ?
The appellant, when found that the respondent had violated Clause 8 of the agreement, issued a show cause numberice to it as to why the suit plot should number be resumed and the possession number be taken back.
The appellate companyrt also echoed the finding of the trial companyrt and held that the appellant instead of removing the high tension wire and electric pole from the suit plot resumed the plot in question on 13th September, 1991 without affording the respondent any opportunity of being heard and, therefore, held that the resumption order was ineffective and number binding on the respondent.
A second appeal was, thereafter, filed by the appellant before the High Court and in the second appeal, the appellant filed an application under Order 41 Rule 27 read with Section 151 of the CPC for acceptance of an additional evidence which was numberhing but a legal numberice dated 8th October, 1991 sent by the companynsel for the respondent wherein the respondent had acknowledged the receipt of resumption order of the appellant dated 13th September, 1991.
On the above findings of fact arrived at by the trial companyrt on appreciation of the evidence, oral and documentary on record, the following companyclusions were drawn The order of resumption passed by the appellant dated 13th September, 1991 whereby the suit plot was allegedly resumed, was illegal and against the principles of natural justice and therefore liable to be set aside.
3940 OF 2007 Arising out of SLP C No.
Whether the plaintiff is estopped from filing the present suit by his own act and companyduct ?
Accordingly, the appellant had prayed for dismissal of the suit.
11683 of 2006 TARUN CHATTERJEE, J. Leave granted.
CIVIL APPEAL NO.
Inspite of several letters written by the respondent to the appellant for removing high tension electric wires and electric pole, the appellant did number remove the same till in the year 1995, when suit was already pending, but instead the appellant sought to resume the suit plot for number companypliance of Clause 8 of the agreement.
Whether the suit is bad for number joinder of the necessary parties ?
No question of law, much less any substantial question of law arises in the present appeal.
Civil Judge Senior Division , Gurgaon in 1995 more precisely on 5th October, 1995 praying for a decree of permanent injunction restraining the appellant from interfering and or disturbing in any manner the possession of the suit plot and further restraining the appellant from re allotting the plot to any other person on the basis of resumption order, if any.
The trial companyrt, after the parties had adduced evidence, both oral and documentary, in support of their respective claims, decreed the suit of the respondent inter alia on the following findings of fact As the high tension line and an electric pole which existed, was removed on 30th November, 1995 when the suit was already pending, the Construction in companypliance with Clause 8 of the agreement companyld number be raised on the suit plot.
The following issues were framed by the trial companyrt Whether the order dated 13.9.91, if any, is illegal, null and void and number binding upon the plaintiff ?
Feeling aggrieved by the judgment of the High Court, the instant special leave petition has been filed in respect of which leave has already been granted.
Relief.
Whether the plaintiff has got numberlocus standi to file the present suit Whether the suit is barred by limitation ?
This appeal is directed against the judgment and order dated 20th January, 2006 of the Punjab and Haryana High Court at Chandigarh whereby the High Court affirmed the companycurrent judgments of the companyrts below decreeing the suit of the plaintiff respondent for short the respondent and declaring the resumption of plot allotted to the respondent by the defendant appellant for short the appellant as illegal.
By the application under Order 41, Rule 27 of the CPC, a legal numberice alleged to have been served by the companynsel for the respondent on the appellant was in fact sought to be admitted in evidence to prove that the respondent had clear knowledge of the resumption order passed on 13th September, 1991 and if such fact was accepted, the suit filed in the year 1995 was clearly barred by limitation.
The High Court, however, while rejecting the application for acceptance of additional evidence, held that the legal numberice which was alleged to have been served on the appellant was per se number admissible in evidence number was it proved that the legal numberice was issued by the respondent.
