RSA No.29 of 2008 (O&M) - 1 - IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH **** RSA No.29 of 2008 (O&M) Decided on: 13.08.2010 **** Improvement Trust, Patiala through its Administrator/Chairman . . . .Appellant Versus Jaswinder Kaur and others . . . .Respondents **** CORAM: HON’BLE MR.JUSTICE RAKESH KUMAR JAIN **** Present: - Mr.Salil Sagar, Sr. Advocate with Mr.Samarth Sagar, Advocate for the appellant. Mr.Arun Palli, Sr. Advocate with Mr.Tushar Sharma, Advocate for the respondents. **** RAKESH KUMAR JAIN, J. (ORAL) Defendant No.4 is in second appeal though first appeal is not preferred by it. Brief facts of the case are that defendant No.4 allotted a plot SCF No.12 situated at Shaheed Sewa Singh Thikri Wala Nagar, Rajpura Road, Patiala to defendants No.1 and 2. Defendants No.1 & 2 entered into an agreement to sell dated 27.1.1998 and allotted plot through their power of attorney Bhajan Singh to Gurcharan Singh/defendant No.3. Defendant No.3, in turn, sold the Plot SCF No.12 (hereinafter referred to as ‘the property in dispute’) to the plaintiff after obtaining No Due Certificate on account of non- construction charges from defendant No.4. The case set up by the plaintiff is that at the time of transfer no amount was due in the RSA No.29 of 2008 (O&M) - 2 - name of her vendors as an amount of Rs.6333/- was already deposited by them with defendant No.4 vide receipt dated 21.1.1998 towards late construction fee upto 31.12.1998 and in order to raise construction a site plan was submitted to defendant No.4 with necessary fee of Rs.6346/- deposited on 13.11.1998. The construction on the plot was to be allegedly completed upto 31.12.1998. However, defendant No.4 neither sanctioned the site plan despite request of the plaintiff nor issued the sale deed in her name so that she could raise loan for construction rather a sum of Rs.48166/- was demanded as late fee for non-construction upto 31.12.1998 and the plaintiff was further threatened to complete the construction upto 31.12.1998 failing which her plot was ordered to be resumed and amount already deposited forfeited. Plaintiff’s case is that until the site plan was sanctioned by defendant No.4 she could not have raised any construction. She had been asked to deposit the amount without giving details as to how the said amount was calculated and despite her letter dated 26.11.1998, no orders for issuance of sale deed was passed nor sanction was accorded. It is also submitted by her that defendant No.4 had got no right to recover any amount on account of late fee as earlier allottee had already deposited the same. During the pendency of the suit, Court vide its order dated 12.1.2000, had directed defendant No.4 to sanction and deliver the site plan to the plaintiff to enable her to construct the property in dispute but defendant No.4 had deliberately disobeyed the order. After putting in appearance, defendant No.4 resisted the suit. Besides taking technical pleas in the preliminary objections, on merits, it is denied RSA No.29 of 2008 (O&M) - 3 - that the property in dispute was allotted to defendants No.1 and 2, rather it is submitted that it was purchased by one Sandip Singh in the open auction and after his death it was transferred in the name of defendants No.1 and 2. However, it was admitted that plot was sold to plaintiff and transferred in her name by defendant No.4. It was claimed that the said transfer was subject to payment of balance amount, outstanding towards the property in question. The amount of Rs.6333/- allegedly deposited by the vendors of the plaintiff was denied. It was also submitted that after scrutiny of plaintiff’s case for execution of the sale deed, it was found that a sum of Rs.19,870/- was due against her for late construction charges and thus the sale deed could not be executed in her favour, which as alleged, is the reason behind non-sanctioning of the plan. It was admitted that an amount of Rs.48,166/-was wrongly demanded and Rs.19,870/- was actually due and recoverable from the plaintiff. It was also denied that defendant No.4 had not sanctioned the site plan on 26.4.2000 in view of the Court order dated 12.1.2000 and alleged that no construction has been raised by the plaintiff. Defendants No.1, 2 & 3 did not appear, therefore, they were proceeded against ex parte on 3.6.1999. The averments made in the written statement were replied by the plaintiff in her replication by denying the averments in the written statement and the stand taken in the plaint was reiterated. On 12.1.2000, on the pleadings of the parties, trial Court struck following issues: “1. Whether the plaintiff is entitled to get the sale deed issued in her RSA No.29 of 2008 (O&M) - 4 - name from the defendant No.4 without any further payment? OPP 2. Whether the plaintiff is entitled for sanction of the site plan? OPP 3. Whether the plaintiff is entitled for mandatory injunction and permanent injunction as prayed for? OPP 4. Whether the suit is not maintainable? OPD 5. Whether the suit is false, if so its effect? OPD 6. Relief.” On 18.7.2003, an additional issue No.1 was also struck by the trial Court which reads as under: “1. Whether the plaintiff is entitled to any damages as claimed if so to what extent? OPP Plaintiff had examined Ashok Mathur, Advocate as PW1, S.K. Malhotra as PW2 and then closed her evidence. On the other hand, defendants had examined A.K. Setia as DW1, Balbir Singh Draftsman as DW2 and Amarjit Singh as DW3. Both the parties also tendered documents in support of their case. The learned trial Court after appreciating the evidence available on record, partly decreed the suit of the plaintiff, who was held entitled for sanction of the sale deed of the property in dispute and was also held entitled for permanent injunction restraining the defendants from interfering in the property in dispute, subject to raising the construction thereon within six months from the date of RSA No.29 of 2008 (O&M) - 5 - receipt of copy of the judgment. It was, however, made clear in the decree that the said grant of time shall be subject to deposit of charges, if any, levied by defendant No.4 as per their rules and instructions. It was also made clear that if contesting defendant preferred to levy any charges, same would be levied only after 2.9.2001 as discussed in issue No.2. Plaintiff was also held entitled for refund of the amount so deposited by her during the proceedings of the case. The judgment and decree of the learned trial Court by which plaintiff was given half of the relief led to filing of Civil Appeal No.58 of 14.3.2007 only at the instance of plaintiff whereas none of the defendants therein challenged the judgment and decree of the learned trial Court. Learned Appellate Court accepted the appeal in part holding that defendant No.4 is not entitled to construction charges. One year construction period was granted to the plaintiff for the purpose of raising construction from the date of delivery of plan which was to be delivered by defendant No.4 within one month from the date of receiving of certified copy of the judgment. Refund of the deposited amount to the plaintiff was also ordered. However, suit regarding damages was dismissed. Aggrieved against the judgment and decree of both the Courts below, defendant No.4 has come up in Regular Second Appeal before this Court wherein notice of motion was issued on 10.1.2008 and operation of the judgment and decree dated 16.10.2007 of the First Appellate Court was stayed. Opening his arguments, Mr.Salil Sagar, learned senior counsel for the appellant has vehemently argued that the RSA No.29 of 2008 (O&M) - 6 - controversy in this case can be narrowed down to the finding recorded by the trial Court in para No.17 & 18 of its judgment and that of the First Appellate Court in para No.18 of its judgment. It is submitted by him that despite the fact that the site plan was sanctioned and delivered to the plaintiff by defendant No.4/appellant, they did not care to raise construction and the peon dak book, which has been believed by the trial Court has been wrongly disbelieved by the learned First Appellate Court on conjectures and surmises. He also submits that if the delivery of the site plan is denied by the plaintiff then she should have been the best witness to depose in the witness box about it but she did not dare to come to the witness box being afraid of cross examination. In this regard, he also submits that the statement of the attorney on her behalf cannot be relied upon by the Court in view of the fact that the Power of Attorney cannot state a fact which is based upon personal knowledge of the donor of the attorney. It is also submitted that the question with regard to non-delivery of sanctioned plan was raised by the plaintiff by way of an application filed under Order 39 Rule 2(a) of the Code of Civil Procedure, 1908 (for short ‘CPC’) even those proceedings have been decided in favour of defendant No.4 by the Civil Judge (Junior Division), Patiala vide his order dated 22.2.2007. Therefore, according to the counsel for the appellant, substantial question of law involved in this appeal as to whether the learned First Appellate Court has erred in re-appreciating finding recorded by the learned trial Court while misreading the evidence. RSA No.29 of 2008 (O&M) - 7 - In reply, Mr.Arun Palli, learned senior counsel appearing on behalf of the respondents has submitted that de hors the finding recorded by the trial Court in para No.17 and 18 against him and the evidence recorded by the First Appellate Court in para 18 in its favour, clinching evidence in this case is the written statement filed by defendant No.4/appellant itself. It is submitted that parties cannot travel beyond its pleadings which are verified by them. He has also submitted that as per Order 8 Rule 3, 4 & 5 of the CPC denial of the written statement has to be specific because evasive denial is considered to be an admission. In support of his arguments, learned senior counsel for the appellant has read over the pleadings of defendant No.4 in the amended written statement which was filed on 9.5.2003 in response to the plaint having been amended at the instance of the plaintiff. He has drawn the attention of this Court to para No.7 and 7A of the amended written statement which reads as under: “7. Para No.7 is wrong and denied. Since the amount of Rs.2,12,489/- still remains due against the plaintiff, that too upto 31.12.1998 and for the year 1999 the decision has not been taken by the replying defendants to charge the same, so till she does not deposit the amount with the Trust, the plaintiff is not entitled to declaration or mandatory injunction as sought for. RSA No.29 of 2008 (O&M) - 8 - The defendant No.4 can execute the sale deed in favour of the plaintiff with regard to the plot in question and can sanction the plan in favour of the plaintiff if she deposit all the requisite charges to the replying defendants. 7A. Content of Para No.7-A as stated are wrong and hence denied. It is wrong allegations that the Trust has not passed the site plan on 26.4.2000 in respect of order dated 12.1.2000 of Hon’ble Court. The construction has not completed on the plot allotted by the trust to the allottee in spite of a lot of time. Vide letter No.2315 dated 17.8.1998 all the terms and conditions has been clearfied.” Learned counsel for the respondents has further submitted that in the written statement only para No.7A was sought to be added but the averments made in para No.7 of the original written statement has been changed, without permission of the Court, by defendant No.4/appellant. He has also referred to para No.7 of the original written statement, which read as under: RSA No.29 of 2008 (O&M) - 9 - “7. Para No.7 is wrong and denied. Since the amount of Rs.19,870/- still remains due against the plaintiff, that too upto 31.12.1998 and for the year 1999 the decision has not been taken by the replying defendants to charge the same, so till she does not deposit the amount with the Trust, the plaintiff is not entitled to declaration or mandatory injunction as sought for. The defendant No.4 can execute the sale deed in favour of the plaintiff with regard to the plot in question and can sanction the plan in favour of the plaintiff if she deposit all the requisite charges to the replying defendants.” Learned counsel for the respondents while drawing the attention of the Court to para No.7 of the original written statement and para no.7 of the amended written statement has submitted that in the original para No.7 the amount was Rs.19,870/- whereas in the amended para No.7 that amount is raised to Rs.2,12,489/- otherwise rest of the averments were the same. In this regard, learned counsel for the respondents has submitted that if defendant No.4/appellant could change the amount in para No.7 RSA No.29 of 2008 (O&M) - 10 - from Rs.19,870/- to Rs.2,12,489/- and claims to have delivered the sanctioned site plan as alleged, they could have easily taken the plea in this regard in this paragraph as well instead of stating that the sanctioned plan in favour of the plaintiff will not be issued until she deposited all the requisite charges. He also referred to a document Ex. PZ, which is a legal notice, issued by Ashok Mathur, Advocate on 25.11.2000, highlighting the non-delivery of sanctioned plan in para No.4. The averments made in para No.4 of the legal notice are thus: “That, you failed & neglected to sanction the plan of my client and to deliver the plan to my client within the period of two weeks allowed by the Court and thereby did not allow my client to raise construction on her plot of land. My client approached to you personally on various occasions and when you failed to comply with the orders of the Court, my client has filed a Contempt Petition against you in the Court of Civil Judge, Patiala.” He also referred to the statement of Ashok Kumar Setia, Superintendent of Improvement Trust Bathinda/defendant No.4, who has stated in his cross-examination that “it is correct that legal notice dated 25.11.2000 copy of which is Ex. PZ was received in our office on 28.11.2000 and there are notings to this effect in the file brought by me. According to the noting in the file on office notice page RSA No.29 of 2008 (O&M) - 11 - no.15 dated 4.1.2000, it was ordered by the Chairman that there is no need to give reply to the plaintiff of the said notice. According to the noting dated 7.12.2000 made by the Draftsman Sh. Balbir Singh it is mentioned that the plan of the plaintiff stands sanctioned and is attached with the file. It is correct that in his noting Balbir Singh has not given any date of the sanction of plan. According to the noting Balbir Singh has not mentioned that the sanctioned plan has been sent to the plaintiff. It is correct that in the notice Ex.PZ, the plaintiff has intimated to the Trust that she has not been sent nor has she received the plan approved and she has demanded the plan from the trust”. He has further submitted that there was no occasion for the authority, acting under a statue, not to reply the legal notice and put the same in the dead file. It is submitted that the reason is writ large because by that time the sanctioned plan was not delivered to the plaintiff and the concerned authority was afraid of not replying to para No.4 of that legal notice evasively. Learned counsel for the respondents, in support of his argument, has further relied upon a decision of the Rajasthan High Court in the case of “Raees Ahmed Versus Shrigopal Prakash and others” 2003(1) Civil Court Cases 666 to contend that in reply to amended plaint, new facts cannot be introduced under the garb of amendment and the reply should be confined to paragraph of plaint allowed to be amended. Secondly, it is submitted that neither in the written statement nor in the amended written statement the plea was taken by defendant No.4 that the sanctioned site plan was delivered to the plaintiff and received by her. He submits that no amount of evidence can be looked into in RSA No.29 of 2008 (O&M) - 12 - absence of pleadings and issues. In this regard, he has relied upon a decision of the Supreme Court in the case of “Anathula Sudhakar Vs. P.Buchi Reddy (Dead) by LRs & Ors.” 2008(3) Civil Court Cases 294 (SC). I have heard both the learned counsel for the parties in detail and perused the record with their assistance. The question involved in this appeal is as to whether the finding recorded by the First Appellate Court in reversing the finding of the trial Court on the issue of delivery and receipt of sanctioned site plan is because of misreading of evidence on record? No doubt that the learned trial Court has recorded the findings on the basis of Dak book of the peon which bears the signatures of the plaintiff which has been denied by them as signatures are not in column of receipt against the name of the plaintiffs but the said finding has been reversed by the First Appellate Court while recording finding in para No.18 which reads as under: “DW2 Balbir Singh in cross- examination stated that as per the practice when a plan is sanctioned, they send the intimation and the plan to the party. The letter and plan is sent by their office through Peon. He stated that as per the Peon Book, there is column of acknowledgment in respect of the entry of the delivery of plan to the plaintiff, the column of RSA No.29 of 2008 (O&M) - 13 - acknowledgment is lying blank. It is a fact that in the column by whom delivered, there are signatures. He did not deliver the plan and the letter to the plaintiff. He also stated that he do not know in the column by whom delivered is signed by the person delivering the Dak or by the Clerk who hand over the Dak to the Peon. Therefore, much reliance cannot be placed on the Peon book. DW3 Process Server has stated that he do not know plaintiff personally.” But the question involved in this appeal is whether this question can at all be looked into by the Courts below in the absence of any pleadings? The answer is empathetically ‘No’. It is well settled in the catena of judgments that no evidence beyond the pleadings can be looked into even if the same has been led by the parties. In the present case, I have gone through the original and amended written statement in detail and in none of the written statements I could found that defendant No.4/appellant had taken a plea that the plan was sanctioned and delivered to the plaintiff on 27.4.2000. If the averment is not there, then how the evidence could be seen? Order 7 enshrined in First Scheduled of the CPC deals with particulars to be contained in the plaint and Order 8 of the CPC deals with particulars of the written statement. It is RSA No.29 of 2008 (O&M) - 14 - specifically provided in Order 8 Rule 5 of the CPC that every allegation of fact in the plaint, if not denied specifically or by necessary implication, or stated to be not admitted in the pleading of the defendant, shall be taken to be admitted except as against a person under disability. Order 8 Rule 4 specifically provides that where a defendant denies an allegation of fact in the plaint, he must not do so evasively, but answer the point of substance. Thus, if it is alleged that he received a certain sum of money, it shall not be sufficient to deny that he received that particular amount, but he must deny that he received that sum or any part thereof, or else set out how much he received. And if an allegation is made with diverse circumstances, it shall not be sufficient to deny it along with those circumstances. Only for this reason, Order 6 Rule 2 of the CPC provides that every pleading shall contain, and contain only, a statement in a concise form of the material facts on which the party pleading relies for his claim or defence, as the case may be, but not the evidence by which they are to be proved. In this case, the Dak book of the Peon was the evidence, which is not required to be pleaded by the defendant in the written statement but the defendant was required to at least plead in the written statement that plan was sanctioned on a particular date and was delivered or received by the plaintiff on an alleged date. In the absence of these pleadings, in my view, the evidence which has been led by the defendant to contradict the allegations made by the plaintiff in her plaint is not sufficient and cannot be taken into consideration. Moreover, the act and conduct on the part of defendant No.4 is also RSA No.29 of 2008 (O&M) - 15 - deplorable for the simple reason that while filing the amended written statement to the amended plaint in which only para No.7A was added, defendant No.4/appellant has on its own, increased the amount in para No.7 from Rs.19,870/- to Rs.2,12,489/-. It would be suffice to say that in the case of amendment of the pleadings, only that part has to be replied which has been ordered to be added by the order of Court either in the plaint or in the written statement and not beyond that. Supposing, some new facts have been added in the plaint, the defendant is only entitled to give answer to the amended para of the written statement and is not entitled to introduce a new case or new facts in the paragraphs which are not sought to be amended. Similarly if the defendant amends his written statement then the plaintiff has a right to give reply to the amended paragraph of the written statement in the replication and not beyond that. In this regard, the decision relied upon by the leaned counsel for the respondents in the case of Raees Ahmed (Supra) fully support his submissions. Thus, the above discussion leaves no doubt in the mind of the Court that finding recorded by the First Appellate Court in para No.18 are perfectly in order and it is held that sanctioned plan was neither sent nor delivered to the plaintiff as alleged by defendant No.4. No other point has been raised by the counsel for the appellant. In view thereof, I do not find any question of law much less substantial as envisaged under Section 100 of the CPC RSA No.29 of 2008 (O&M) - 16 - involved in this appeal and as such the same is hereby dismissed with costs. (RAKESH KUMAR JAIN) 13.08.2010 JUDGE Vivek