1

A.F.R.

Court No. - 59

Case :- FIRST APPEAL No. - 141 of 2019

Appellant :- U.P. State Industrial Development Corporation Ltd.

Respondent :- Sneh Lata Gupta

Counsel for Appellant :- Nripendra Mishra

Hon'ble Surya Prakash Kesarwani,J.

1.

Validity of judgment without framing issues with reference to

Order VIII Rule 10 and Order XIV Rule 1 C.P.C. and nature and

object of procedural law is involved in the present First Appeal.

2.

Heard Sri Nripendra Mishra, learned counsel for the defendant-

appellant.

3.

This is defendant's appeal which has been filed praying to set

aside the judgment and decree dated 24.11.2018 & 5.12.2018

respectively in O.S. No.361 of 2005 (Smt. Sneh Lata Gupta Vs. U.P.

State Industrial Development Corporation Ltd.), passed by the Judge

Small Causes Court/Additional Civil Judge (S.D.), Ghaziabad.

4.

Briefly stated facts of the present case are that undisputedly the

defendant-appellant issued an allotment letter dated 2.6.1998 allotting

industrial plot No. E 29, area 1000 sq. meters in Industrial Area, Udyog

Kunj, Ghaziabad, for setting up an Industrial Unit for manufacture of

pressure cooker. The physical possession was given by the defendant-

appellant to the plaintiff-respondent on 990 sq. meter land on

16.9.1998. There was some delay by the plaintiff-respondent in

establishing the factory, therefore, the defendant-appellant issued

demand notice to plaintiff-respondent asking her to pay the entire

premium, lease rent, interest and penalty etc. amounting to

Rs.13,34,866.67/- which was paid by the plaintiff-respondent to the

defendant-appellant on 27.6.2003 which was accepted by the

defendant-appellant and a receipt was also issued. There was a

condition in the agreement dated 10.08.1998 that manufacturing shall

2

be started by the plaintiff-respondent within two years i.e. upto

9.8.2000 and in the event it is not done then the defendant-appellant

shall have a right to take back the vacant possession of the allotted

plot. However, as mentioned above; the defendant-appellant

themselves permitted the plaintiff-respondent to continue with the

occupation of the disputed plot and demanded penalty etc. for such

continuation which was paid by the plaintiff-respondent on 27.6.2003.

The plaintiff-respondent could not fully set up the factory upto 9.8.2000

on account of several reasons including her illness and heart surgery

of her husband. Ultimately, the plaintiff-respondent completed the

construction of the factory building over the plot in question and

installed machineries and started manufacturing of pressure cooker.

She also gave an affidavit before the plaintiff-respondent on 29.1.2005

for starting of the production by 31.3.2005. However, in the mean time,

the defendant-appellant issued a notice to the plaintiff-respondent to

vacate the disputed plot and handover its possession failing which

possession shall be taken forcibly. Aggrieved with the threat given by

the defendant-appellant, the plaintiff-respondent filed O.S. No.361 of

2005 for permanent injunction, which has been decreed by the

impugned judgment dated 24.11.2018. In this suit the defendant-

appellant had not filed written statement within the time. The

explanation submitted for late filing of the written statement was found

to be false and, therefore, Court of Additional Civil Judge (S.D.)/Judge

Small Cause Court, Ghaziabad, passed an order dated 6.12.2006 for

not taking on record the written statement and rejected the application

42 'Ga' filed by the defendant-appellant. This order was not challenged

by the defendant-appellant.

5.

Aggrieved with the aforesaid impugned judgment dated

24.11.2018 and the decree dated 5.12.2018, the defendant-appellant

has filed the present appeal under Section 96 C.P.C.

3

6.

Learned counsel for the defendant-appellant submits as under:

(i)

The impugned judgment has been passed with