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S.B.CIVIL SECOND APPEAL NO.170/2015

(U.I.T., Bhilwara Vs. Smt.Rekha Gaggad))

Date of Order : 12.08.2015

HON'BLE MR. JUSTICE P.K. LOHRA

Mr.Sandeep Shah for the appellant.

Mr.Darshan Jain, for the respondent.

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Appellant-defendant has preferred this second

appeal to assail the impugned judgment and decree dated

24.02.2015 passed by Additional District Judge No.3,

Bhilwara (for short, 'learned lower appellate Court'),

whereby the learned lower appellate Court has affirmed the

judgment and decree dated 05.05.2014 passed by

Additional Civil Judge (Sr. Division) No.2, Bhilwara (for

short, 'learned trial Court').

The facts, necessary and germane to the matter,

are that appellant published a Notification for open auction

in respect of Plot No.S-68, Azad Nagar Scheme. In the

auction proceedings, besides other incumbents, respondent-

plaintiff also participated and being the highest bidder, her

bid was accepted on 05.06.2009. Pursuant to the

acceptance of her bid, for a sum of Rs.40,50,000/-, on the

same day respondent deposited 1/4^th amount of bid to the

tune of Rs.10,25,000/-. In terms of Notification, respondent

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was required to deposit the remaining 3/4^th amount within

30 days to be reckoned from 05.06.2009 and it is clearly

evident that the requisite amount was deposited by

respondent after expiry of 30 days, i.e., on 06.07.2009. In

such a situation, the respondent-plaintiff was exposed to

action at the behest of appellant-UIT and she was asked to

pay interest on the amount aforesaid to the tune of

Rs.41,663/-. In the suit filed by the respondent-plaintiff,

mainly she has craved for the relief that recovery of the

aforesaid amount be declared null and void and a direction

be issued to the appellant-UIT to issue requisite lease deed

and get it registered in her name.

The suit was contested by appellant and in the

return it is specifically pleaded that the respondent-plaintiff

is bound by the terms of the Notification and in view of the

fact that she has not deposited the requisite amount within

the stipulated period, the appellant has rightly raised the

demand for interest on the outstanding amount which is a

just decision in accordance with Rule 14 read with Annexure

“A” of the Rajasthan Urban Improvement Trust (Disposal of

Urban Land) Rules 1974 (for short 'Rules of 1974').

On the basis of pleadings of rival parties, the

learned trial Court settled two issues for determination. The

parties led their evidence and the learned trial Court, after

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scrutinizing the evidence and material available on record,

decided both the issues in favour of the respondent-plaintiff

and finally decreed the suit. While extending the benefit to

the respondent of the holidays on 4^th and 5^th July 2009, the

learned trial Court invoked powers under Section 4 of the

Limitation Act of the 1963 and also applied the legal maxim

“lex non cogit ad impossibilia”.

Feeling desmayed with the judgment and decree

of the learned trial Court, the appellant approached the

learned lower appellate Court, and the learned lower

appellate Court after thrashing out the matter afresh, fully

concurred with the findings and conclusions of the learned

trial Court. Curiously, the learned lower appellate Court has

also pressed into service Section 4 of the Limitation Act as

well as the aforementioned maxim to non suit the appellant.

I have heard learned counsel for the parties and

perused the impugned judgments of both the Courts below.

Upon examining the matter in its entity, and

more particularly the argument of learned counsel,

Mr.Shah, that auction proceedings were not legal

proceedings, therefore, Section 4 of the Limitation Act,

1963 (for short, 'the Act') cannot be invoked, I feel

persuaded to examine this argument. A bare perusal of

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Section 4 of the Act makes it abundantly clear that it relates

to any suit, a