2022 Supreme(Guj) 940

IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
A.P. THAKER, J.
Khodaji Govaji Rajput - Appellant
Versus
State of Gujarat & Others - Respondents
R/Second Appeal No. 14 of 1998
Decided On : 11-11-2022

Headnote:

AUCTION - SUIT FOR PERMANENT INJUNCTION - NOTICE UNDER SECTION 80 OF CPC - WAIVER - REVISION POWER UNDER SECTION 211 OF BOMBAY LAND REVENUE CODE - JURISDICTION - GUJARAT CO-OPERATIVE SOCIETIES ACT, 1961 - SECTIONS 116, 122, 134, 136, 138 AND 155 - RELEVANT PROVISIONS - INTERPRETATION - APPLICABILITY.

Fact of the Case:

Plaintiff purchased land in public auction held by Special Recovery Officer of Land Development Bank. Defendant No.2 failed to repay loan amount to the bank and hence auction was held. Plaintiff's proposal was accepted and sale was sanctioned by the Bank. Defendant No.2 preferred an application to the Government alleging that public auction of his land was fraud and prayed to set-aside the auction. Deputy Secretary, Revenue Department allowed the application and set-aside the order dated 12.2.1973 of the Special Recovery Officer and remanded the matter for fresh auction. Plaintiff filed Regular Civil Suit No.24 of 1978 before the Court of Civil Judge (Senior Division), Banaskantha @ Palanpur and prayed for permanent injunction of restraining the defendants from disturbing his possession and further prayed to stay permanently the implementation of the order passed by the Deputy Secretary, Revenue Department.

Finding of the Court:

1. The impugned order of the first Appellate Court is proper. 2. In absence of Notice under Section 80 of CPC, there would be prejudice to the public interest and, therefore, there cannot be waiver of Notice under Section 80 of CPC by the State Government. 3. There is no iota of evidence as to issuance of Notice under Section 80 of CPC by the plaintiff to the government. 4. The impugned order passed by the Deputy Secretary, Revenue Department for re-auction is legal and valid. 5. The State Government has already raised the issue of non-issuance of Notice under Section 80 of CPC and, therefore, there is no question of waiver on the part of the Government.

Issues: 1. Whether the learned Appellate Judge is legally right in holding that the RCS No. 24 of 1978 is for the declaration and not for the permanent injunction? 2. Whether the learned Appellate Judge is legally right in holding that the RCS No. 24 of 1978 is for the declaration, specially when no such arguments were advanced by the other side? 3. Whether the learned Appellate Judge is legally right in holding that the statutory notice under Sec. 80 of C.P. Code is mandatory in background of the prayer made in RCS No. 24 of 1978? 4. Whether the learned Appellate Judge is legally right in holding that the respondent no.1 i.e. plaintiff is entitled to permanent injunction as prayed for in para-10 of the plaint? 5. What order?

Ratio Decidendi: 1. The provisions under Section 80 is mandatory one, the suit must fail and accordingly the first Appellate Court has set aside the decree passed by the trail Court in favour of the plaintiff. 2. Considering the peculiar facts of the present case, it clearly appears that there was an implied leave granted by the Court under Section 80(2) of CPC as temporary injunction pending the suit against the implementation of the impugned order has been passed. 3. When the original auction proceedings was based upon the provisions of Gujarat Co-operative Societies Act, 1961, then any objection against such public auction of the land and issuance of sale certificate in favour of the auction purchaser, needs to be carried out under the provisions of the Gujarat Co-operative Societies Act, 1961 and the Rules made therein. 4. The exercise of power by the Deputy Secretary itself is without jurisdiction, there was no need of issuance of any Notice under Section 80 of the CPC.

Final Decision: Appeal allowed. Impugned judgment and order dated 28.10.1997 passed by the learned Joint District Judge, Banaskantha @ Palanpur in Regular Civil Appeal No. 20 of 1998 are hereby quashed and set aside and the impugned judgment and decree dated 29.2.1988 passed by the learned Civil Judge (Senior Division), Banaskantha @ Palanpur in Regular Civil Suit No. 24 of 1978 are hereby restored.