JUDGMENT

Banwari Lal Sharma, J. - This misc. appeal is preferred against the impugned judgment dated 11.12.2014 passed by learned Additional District Judge No. 3, Kota in Civil Regular Appeal No. 17/2014 by which learned lower Appellate Court while allowing the appeal quashed and set aside the order dated 14.11.2014 passed by learned Civil Judge (South) Kota in civil regular case No. 93/2014 (Arvind Gupta vs. Rajasthan Housing Board and Ors.) by which learned Civil Judge (South), Kota rejected the plaint of respondent- plaintiff.

2. The brief facts of the case are that the respondent- plaintiff filed a civil suit along with an application under order 39 Rule 1 & 2 seeking declaration and permanent injunction stating therein that against the notice issued by the Housing Board for auction of residential and commercial plots dated 31.3.2013, he submitted his bid for the plot No. 14 measuring 1291 square meter at sector 11, Mahavir Nagar, Parijat Kota. The minimum Sale price was Rs. 35,000/- however the highest bid was of Rs. 42,301/- per square meter. In furtherance to the said auction, he deposited total bid amount Rs. 82,00,000/- with the appellant housing board. It is pleaded in the plaint that the said amount was refunded by the Housing Board on 13.1.2014 and stated in the letter dated 13.1.2014 as the auction was not finalized and the bid was cancelled because the committee was not duly constituted, now Housing Board has decided to re-auction the plot.

3. Lastly, it was prayed that the decision taken by the Housing board on 13.01.2014 regarding cancellation of auction of plot No. 14, to be declared as illegal and void-ab-initio and prayed for permanent injunction to the effect that the aforesaid Plot No. 14 may not be re-auctioned and defendant Housing Board may be directed to confirm the auction after receiving the balance amount and execute the relevant documents in favour of plaintiff. After service of summons of suit, appellant- defendant Housing Board filed an application under Order 7 Rule 11 CPC stating therein that as per Section 50 of the Rajasthan Housing Board Act, 1970 before filing any suit, two months notice is mandatory. Without complying the aforesaid provision enshrined in Section 50 of the Act of 1970, the suit was instituted, which is not maintainable, that application was allowed by the learned trial Court vide order dated 14.11.2014 and the plaint was rejected vide order dated 14.11.2014. Against the order dated 14.11.2014 respondent- plaintiff preferred an appeal which was allowed by the learned

4. Additional District Judge No. 3, Kota vide impugned judgment dated 11.12.2014, against which this misc. appeal is preferred by the appellant- defendant- Rajasthan Housing Board.

5. Mr. P.C. Sharma learned counsel appearing on behalf of appellant submits that provision enshrined in Section 50 of the Act of 1970 is mandatory and without complying the aforesaid provision, respondent- plaintiff filed civil suit which is not maintainable, therefore learned trial Court rightly rejected the plaint but learned Appellate Court without considering the fact that the aforesaid provision is mandatory, allowed the appeal and quashed & set aside the order of learned trial Court wrongly, therefore the impugned judgment may be quashed and set aside and the order of learned trial Court may be restored.

6. Per contra Mr. R.K. Agarwal learned senior Advocate appearing on behalf of respondent- plaintiff submits that the matter was urgent, therefore respondent- plaintiff filed an application for exemption from notice under Section 50 of the Act of 1970, which was allowed by the trial Court and considering this fact, learned lower Appellate Court allowed the appeal, which doesn't require any interference. He further submits that in case for the sake of arguments the provision is treated as mandatory, still learned Court below should return the plaint with liberty to file it afresh after serving notice as observed in the matter of De