important points
As a court of first appeal and as the final court of facts, the Appellate Court had a duty to reappraise the entire material to decide the points arising.
There is a presumption that when an Advocate sends a notice on behalf of a client, the notice is sent by him on instructions from his client.
Haryana State Industrial Development Corporation is a trustee of public property and is expected to deal with it as a trustee with all care and caution.
The trial courts, the first appellate courts and the second appellate courts in the State exhorted to show better application of mind.

Headnote:(a)Judicial Review – In spite of glaring factors emerging to the contrary, the trial court accepting the story of the plaintiff – The decision of the trial court suffers from total lack of application of mind and non consideration of the pleadings and the evidence in the case – Appellate Court also dismissing the appeal without proper advertence to the relevant materials available in the case – As a court of first appeal and as the final court of facts, the Appellate Court had a duty to reappraise the entire material to decide the points arising - However held that appellate court in this case miserably failed to perform its duty. (Para 9)
       (b)Code of Civil Procedure, 1908 – Order 41, rule 47 – Second Appellate Court was clearly in error in refusing to admit in evidence the notice sent on behalf of the plaintiff by its advocate to the defendant which was not disputed or denied – Impugned judgment vitiated, set aside. (Para 16)
       (c)Administration of Justice – There is a presumption that when an Advocate sends a notice on behalf of a client, the notice is sent by him on instructions from his client. (Para 16)
       (d)State Financial Corporations Act, 1951 – Section 29 – Respondent accepting the allotment and possession unconditionally on the terms and conditions of the agreement – On resumption of possession and re-allotment of the plot following default, Respondent claiming a existence of a pre-condition for his allotment that electric lines and pole would be removed – Also denying knowledge of order of resumption – There being no such condition in the agreement and respondent’s advocate having sent a notice regarding resumption of possession, orders of courts below unsustainable – Appellant held entitled to resumption of possession – However, in view of the respondent agreeing to take the allotment afresh on current rates, the same allowed. (Para 16 to 19)
       (e)Judicial Review – The appellant is a trustee of public property and is expected to deal with it as a trustee with all care and caution – The appellant therefore directed to initiate action against those officers who were dealing with the cancellation of the allotment and taking possession of the property, and more particularly those who were in charge of the litigation and who failed to produce vital documents including the notice issued on behalf of the plaintiff that was sought to be produced in Second Appeal – Such an action is absolutely necessary in the interests of the appellant, the citizens and the State. (Para 20)
       (f)Judicial Review – The trial courts, the first appellate courts and the second appellate courts in the State exhorted to show better application of mind while deciding a lis keeping in mind that what they are performing is a divine function that is onerous and at the same time challenging. (Para 20)
       Facts of the case :
       The appellant allotted plot No. 259 on 12.3.1986 to the respondent through its sole proprietor Om Prakash Saharan. The approximate area of the plot is 1000 square meters and the tentative price was Rs. 1,20,000/-. On 12.2.1988, a formal agreement was entered into between the parties. According to the agreement, the allottee had to start construction of a building for the setting up of an industrial unit within a period of three months and had to complete the construction within one and half years from the date of issue of the letter of allotment. The construction had to be completed and the installation of the machinery had also to be completed and the commercial production was to be started within a period of two years from the date of allotment. The Agreement also provided that failing compliance with the above condition by the allottee, the plot was liable to be resumed and 10% of the cost of the plot deposited by the allottee at the time of allotment was liable to be forfeited. The letter of allotment was issued on 24.12.1987. The allottee did not fulfill the condition of starting commercial production within two years of the letter of allotment. The appellant thereupon issued various notices to the allottee. On 19.7.1991, the allottee requested for extension of time. That request was rejected. On 13.9.1991 the appellant issued an order of resumption which specifically referred to the contravention of the terms and conditions of allotment by the allottee. Possession was taken back on 20.9.1991. The plot was thereafter re-allotted to M/s Insulation & Electrical Products (P) Ltd., New Delhi on 2.4.1992. Since that allottee also did not fulfill the conditions, the said allotment was cancelled on 6.1.1994. The respondent filed an application for referring the dispute to Arbitration. The same was rejected. Respondent then approached the Consumer Forum, but that complaint was also dismissed. On 5.10.1995, the respondent filed the present suit No. 8 of 1995 for a permanent injunction restraining the defendant - appellant from interfering, disturbing or in any manner tampering with the possession of the plaintiff over the plot in dispute, and restraining the defendant - appellant from re-allotting the plot in question to any other person on the basis of the resumption order, if any, or otherwise. The suit was decreed. The lower appellate court also toed the line of the trial court and dismissed the appeal. Second Appellate Court rejected the Second Appeal by stating that no substantial questions of law arose in the Second Appeal.
       Findings of the Court :
       The judgments of the courts below suffered from lack of application of mind and were hence not sustainable.
       Result : Appeal allowed and directions issued.

JUDGMENT

P.K. BALASUBRAMANYAN, J.—

1.Leave granted.

2.The defendant in Suit No. 8 of 1995 in the court of Senior Sub-Judge, Gurgaon is the appellant in this appeal. The appellant allotted plot No. 259 on 12.3.1986 to the respondent through its sole proprietor Om Prakash Saharan. The approximate area of the plot is 1000 square meters and the tentative price was Rs. 1,20,000/-. On 12.2.1988, a formal agreement was entered into between the parties. According to the agreement, the allottee had to start construction of a building for the setting up of an industrial unit within a period of three months and had to complete the construction within one and half years from the date of issue of the letter of allotment. The construction had to be completed and the installation of the machinery had also to be completed and the commercial production was to be started within a period of two years from the date of allotment. The Agreement also provided that failing compliance with the above condition by the allottee, the plot was liable to be resumed and 10% of the cost of the plot deposited by the allottee at the time of allotment was liable to be forfeited. The letter of allotment was issued on 24.12.1987. The allottee did not fulfil the condition of starting commercial production within two years of the letter of allotment. This fact is not in dispute. The appellant thereupon issued various notices to the allottee. On 19.7.1991, the allottee requested for extension of time. That request was rejected. On 13.9.1991, according to the appellant, the appellant issued an order of resumption which specifically referred to the contravention of the terms and conditions of allotment by the allottee. According to the appellant, possession was taken back on 20.9.1991. The plot was thereafter re-allotted to M/s Insulation & Electrical Products (P) Ltd., New Delhi on 2.4.1992. Since that allottee also did not fulfil the conditions, the said allotment was cancelled on 6.1.1994.

3.The respondent, the plaintiff, filed an application for referring the dispute to Arbitration. The same was rejected. Respondent then approached the Consumer Forum, but that complaint was also dismissed.

4.On 5.10.1995, the respondent filed the present suit No. 8 of 1995 for a permanent injunction restraining the defendant appellant from interfering, disturbing or in any manner tampering with the possession of the plaintiff over the plot in dispute, and restraining the defendant appellant from re-allotting the plot in question to any other person on the basis of the resumption order, if any, or otherwise. Though there was no prayer regarding any resumption order, it was asserted that the resumption order, if any passed by the defendant was void, illegal, non-est and not binding upon the plaintiff in any manner. A decree for mandatory injunction directing the defendant appellant to remove an existing high-tension wire going over the plot in question and also to remove an electrical pole existing in the plot and to make available the plot free from all kinds of hindrances for raising the construction was also prayed for. The plaint was signed by one Uma Shankar who was said to be a power of attorney of the plaintiff firm. The plaint proceeded on the footing that there was also an agreement between the parties that the electric pole located in the plot would be got removed by the appellant and it was in view of the failure of the appellant to get it done, that the construction could not be started by the plaintiff. It was also admitted in the plaint that there might have been an order of resumption of the plot, but if there was any such order, it was illegal, void and ineffective and not binding on the rights of the plaintiff because of lack of opportunity of hearing given to the plaintiff. The plaint proceeded to state that the defendant was threatening to dispossess the plaintiff pursuant to that order of resumption; that the plaintiff was in possession and that the plaintiff was ent

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