Mr. L.N. Mittal, J. (Oral) : - Defendant no.2 – Secretary, Market Committee, Ismilabad has filed the instant second appeal after remaining unsuccessful in both the courts below.

2. Respondents/plaintiffs filed suit against Market Committee, Ismilabad through its Chairman/Administrator (defendant no.1) and Secretary, Market Committee, Ismilabad (defendant no.2). In open auction held on 24.07.1998 by the defendants, plaintiffs were successful bidders for one booth plot each. Allotment letters dated 01.05.1999 were issued to the plaintiffs. They deposited 25% of the auction money within the stipulated period. They had option of depositing the balance 75% in lump sum without interest or in six half yearly instalments. First instalment was due on 01.11.1999 and was paid in time. Second instalment was due on 01.05.2000, but prior to it, the plaintiffs filed suit on 29.04.2000.

3. The plaintiffs alleged that the defendants agreed that the site of the plots, which was a pond, would be converted into plots and possession would be delivered to the plaintiffs immediately. Dimensions of the plots could vary at the time of actual delivery of possession. According to Clause 12 of the allotment letters, plaintiffs were required to complete construction over the plots within two years from the date of letters of allotment, failing which they were liable to pay penalty (in fact, extension fee). The plaintiffs pleaded that they approached the defendants to carve out the plots and to deliver them possession so that they could start their construction, but the defendants did not do so. The defendants had not deliver the possession of the plots to the plaintiffs till the filing of the suit. The defendants were also to lay roads etc. in accordance with plan, but they did not do so. The plaintiffs were ready to pay the entire price subject to delivery of possession. The plaintiffs accordingly sought mandatory injunction directing the defendants to convert the pond site into plots along with roads etc. and to deliver possession of the respective plots to the plaintiffs by making demarcation along with dimensions of the plots. The plaintiffs also sought injunction against demand of interest and penalty by the defendants from the plaintiffs and not to cancel the allotment of the plots to the plaintiffs. Injunction against resumption of plots was also claimed. Injunction against demand of due instalments till delivery of possession was also sought. In the alternative, plaintiffs sought return of their deposited amount with interest @ 18% per annum.

4. The defendants pleaded that according to the terms and conditions of the auction, they were not liable to level the uneven site. The plaintiffs never approached the defendants for delivery of physical possession of the plots. The defendants claimed their right to charge interest along with due amount of instalments because the defendants were always ready to give physical possession of the plots. Various other pleas were also raised.

5. Learned Additional Civil Judge (Senior Division), Pehowa, vide judgment and decree dated 21.07.2005, partly decreed the plaintiffs’ suit directing the defendants not to resume the plots, not to enforce Clause No.12 of the allotment letters (requiring the allottees to complete construction within two years of the date of allotment letters) for two years from the date of delivery of possession and not to charge penal interest on the instalments that became due during pendency of the suit. First appeal preferred by defendant no.2 has been dismissed by learned Additional District Judge (Adhoc), Fast Track Court, Kurukshetra, vide judgment and decree dated 22.09.2008. Feeling aggrieved, defendant no.2 has filed the instant second appeal.

6. I have heard learned counsel for the parties and perused the case file.

7. Learned lower appellate court, besides dismissing the first appeal on merits, also observed that the appeal had not been validly filed as Secretary of the Mar