HIGH COURT OF JUDICATURE FOR RAJASTHAN

BENCH AT JAIPUR

S.B. Civil Miscellaneous Appeal No. 886/2015

1. Rajasthan Housing Board, through the Housing Commissioner,

Jyoti Nagar, Near Vidhansabha, Jaipur.

2. Rajasthan Housing Board, through Dy. Housing Commissioner,

C.A.D. Circle, Kota Circle, Kota (Rajasthan).

3. The Resident Engineer, Rajasthan Housing Board, Near C A D

Circle, Kota Raj.

----Appellants- Defendants

Versus

Arvind Gupta son of Shri Mangi Lal Gupta, by caste Mahajan,

Proprietor M/s Annapurna Associates, 10-F23, Mahavir Nagar-III,

Parijat, Kota Rajasthan.

----Respondent- Plaintiff

For Appellant(s)

:

Mr. P.C. Sharma

For Respondent(s)

:

Mr. R.K. Agarwal Sr. Advocate and

Mr. Ashwani Chobisa

HON'BLE MR. JUSTICE BANWARI LAL SHARMA

Order

14/05/2018

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.

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

(2 of 6)

[CMA-886/2015]

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.

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

(3 of 6)

[CMA-886/2015]

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.

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 t