IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. R.S.A. No. 3831 of 2009 (O&M) Date of Decision: 11.1.2010 M/S Baldev Raj Ram Murti. ....... Appellant. Versus Director, The Punjab State Small Scale Industires, Export Corporation and another. ....... Respondents. CORAM: HON'BLE MR.JUSTICE MAHESH GROVER .... Present: Shri V.K.Sandhir, Advocate for the appellant. .... 1. Whether Reporters of Local Newspapers may be allowed to see the judgment? 2. To be referred to the Reporters or not? 3. Whether the judgment should be reported in the Digest? .... Mahesh Grover,J. This Regular Second Appeal is directed against judgments and decrees dated 30.11.2004 and 21.3.2009 passed respectively by the Additional Civil Judge (Senior Division), Tarn Taran (hereinafter referred to as `the trial Court') and the Additional District Judge, Tarn Taran (referred to hereinafter as `the first appellate Court') whereby the suit and the appeal of the plaintiff-appellant have been dismissed. The appellant had filed a suit for a decree of mandatory injunction directing the defendants-respondents to deliver possession of plot R.S.A.No.3831 of 2009 (O&M) -2- .... no.2 measuring 5905 square yards situated in Industrial Focal Point, Tarn Taran, which was allotted to it. A decree for permanent injunction was also sought restraining the respondents from allotting the said plot to any body else or permit to raise construction thereon. In response to the invitation for allotment of plots in the Industrial Focal Point being established in Tarn Taran, the appellant had applied for allotment of a plot and was successful in getting plot no.2 on leasehold basis for 59 years vide allotment letter dated 6.2.1981. A sum of Rs.37992/- being 20% of the premium price, was paid by the appellant and the delivery of possession of the plot was prayed for after levelling the land as had been done for other plots. It was also pleaded that there was a ditch in the road leading to the plot in question and an assurance was given that the same would be removed, but needful was not done and despite the fact that a number of requests were made, the possession of the plot was not delivered. The appellant had averred that the respondents had offered it a smaller plot, but the same was refused and the balance amount was not paid because the possession was not delivered. Some communications allegedly took place at the behest of the appellant on 7.2.1982, 14.5.1985 and 13.7.1985. It was alleged that since the respondents were threatening to cancel the allotment of the plot, a notice under Section 80 C.P.C. was served upon him and subsequently the suit was filed. Initially, the suit was filed against respondent no.1 alone and upon notice, it was pleaded that the plot in dispute was allotted to respondent no.2 on 5.11.1985 and the possession thereof was delivered to R.S.A.No.3831 of 2009 (O&M) -3- .... the said respondent on 7.11.1987. It was further pleaded that despite the fact that the plot had been allotted to the appellant, no steps were taken to take possession thereof by the appellant. The existence of any ditch on the road leading to the disputed plot was also denied. It was pleaded that since the appellant had failed to comply with the terms of allotment, the same was cancelled. Respondent no.2 was impleaded as a party, who by virtue of separate written statement, defended its allotment and consequent delivery of possession of the plot in question. The parties went to trial on the following issues:- 1. Whether the plaintiff firm is a registered firm and Shri Baldev Raj is competent to file this suit?OPP 2. Whether the plaintiff is entitled to the relief of mandatory injunction as prayed for?OPP 3. Whether the suit is within time?OPP 4. Whether the suit is maintainable in present form?OPP 5. Whether suit is correctly valued for the purposes of court fee and jurisdiction?OPP 6. Whether the allotment has been cancelled. If so, its effect?OPD 7. Relief. The trial Court, as also the first appellate Court came to the conclusion that the appellant failed to prove that there was any impediment in the approach to the plot in question and, therefore, the plea that R.S.A.No.3831 of 2009 (O&M) -4- .... possession of the same could not be taken on that account was without any merit. It was also concluded that since the plot had already been allotted to respondent no.2 and the appellant had not taken any steps to amend its pleadings challenging the cancellation of allotment or subsequent allotment to the said respondent, the prayer made in the suit was clearly incapable of being granted. The suit as well as the appeal were accordingly dismissed. This has resulted in the filing of the present Regular Second Appeal in which learned counsel for the appellant has contended that the allotment of plot in question in favour of respondent no.2 was not in existence and even according to the documents which wee produced on record, it was plot no.3 which was allotted to the said respondent and not plot no.2. He further contended that the plot in question is still lying vacant and the same deserves to be re-allotted to the appellant as no notice was given about the cancellation of allotment. I have thoughtfully considered the contentions of the learned counsel for the appellant and have gone through the impugned judgments. The contention of the learned counsel for the appellant that the cancellation of allotment was illegal and void and was hit by the principles of natural justice because no opportunity of being heard was given to it, cannot be appreciated by this Court in the Regular Second Appeal for the simple reason that the appellant took no steps to amend its pleadings in order to incorporate such a challenge to the cancellation of allotment. Even if it is to be assumed that the appellant had no knowledge about the cancellation of allotment, yet, this fact was made known to it in the year R.S.A.No.3831 of 2009 (O&M) -5- .... 1992. Despite this, the appellant took no steps to amend its pleadings. The suit lingered on for as many as 12 years after this fact came to the notice of the appellant as it was decided on 30.11.2004, but the appellant did not make the slightest attempt to amend its pleadings. The first attempt to assail the cancellation order was made during the pendency of the appeal which prayer was justifiably declined by the first appellate Court while declining to interfere with the findings recorded by the trial Court. There s no material on record to show that there was any impediment in the approach road which led to the plot in question as claimed by the appellant to be the cause for not complying with the terms and conditions of the allotment. In this view of the matter, when the appellant itself has blatantly violated the terms and conditions of allotment, the respondents were justified in cancelling the allotment and subsequent allotment of the plot in question in favour of respondent no.2. Be that as it may, the challenge to the cancellation of allotment on any ground whatsoever cannot be gone into in the Regular Second Appeal, more-so when there are no pleadings to that effect and the appellant having miserably failed to lay a challenge to the same by amending its pleadings. There is, thus, no infirmity in the findings recorded by the Courts below and in my opinion, none of the questions of law as formulated by the learned counsel for the appellant in paragraph 6 of the grounds appeal does not arise for consideration of this Court. Accordingly, this appeal is dismissed being without any merit. R.S.A.No.3831 of 2009 (O&M) -6- .... All pending civil miscellaneous applications are also dismissed in view of the above. January 11,2010 ( Mahesh Grover ) “SCM” Judge