Mohammad Rafiq, J. - (1.) This is defendants' appeal against the judgement and decree dated 28.2.2015 passed by Additional District Judge No. 2, Kota, who thereby affirmed the judgement and decree passed by the Additional Civil Judge (Junior Division) and Judicial Magistrate No. 1, Kota.
(2.) Plaintiff -respondent filed a suit for declaration and permanent injunction in the trial court inter alia pleading that defendant -appellant allotted a plot No. F2 (1), Indraprastha Industrial Area, Kota to deceased Amar Lal on 8.6.1976 and a lease deed was executed in his favour on 21.1.1977. Possession was also handed over to the plaintiff and since then he has continued in possession of the land. Plaintiff claimed that he raised construction and when the boundary wall was constructed, a civil suit came to be filed by M/s. Kota Industries through one Mathuresh Kumar Gopi Lal, the neighbour of the allotted land. In that suit, an interim injunction order was passed against the plaintiff. Even though he was not impleaded as party to the suit, owning to the interim order however plaintiff could not raise any construction. The defendant -appellants in the meantime issued a letter dated 3.3.1989 informing that since construction was not made, therefore, the allotment of plot should be cancelled. The Resident Engineer of the appellant wrote a letter dated 11.4.1978 to the plaintiff stating that since there was a dispute pending in the Court, therefore, the construction may not be raised. It is owning to these facts that the plaintiff could not raise the construction. The defendant -appellants filed their written statement to the plaint pleading that the suit was dismissed by the trial court on 27.4.1985 and thus the injunction order in his favour came to an end. Even thereafter the plaintiff failed to raise the construction, thus it has violated the provisions of clause 2(d) and 3(a) of the lease agreement. The defendants also raised objection about valuation of the suit and that there was an arbitration clause which ought to be opted by the plaintiff, rather than filing the suit. The trial court framed as many as seven issues. The plaintiff produced 2 witnesses and exhibited 6 documents. The defendants produced 1 witness and exhibited 17 documents. The learned trial court decreed the suit which was affirmed by the appellate court.
(3.) Shri R.A. Katta, learned counsel for the appellants has argued that the learned trial court as well as first appellate court committed serious illegality in deciding Issue No. 1. Issue No. 1 pertains to the fact as to whether the plaintiff could not complete construction over the disputed plot because of pendency of the case? It is submitted that the defendants have specifically pleaded and proved the fact that the suit filed by M/s. Kota Industries came to be dismissed on 27.04.1985. In that suit, the plaintiff was also party and this fact is admitted. This is also uncontroverted fact that there was no stay order passed by any competent court for raising construction after 27.04.1985. Plaintiff himself could not give and prove any justified and valid reason for not raising any construction after 27.04.1985 but the learned courts below did not accept the contention of the defendants illegally on the ground that the suit was not finally decided as the appeal was still pending. It is submitted that the suit filed by M/s. Kota Industries was decided on 27.04.1985 and thereafter there was no stay order by any competent court. In absence of stay order, the party cannot presume the fact that it is restrained from raising any construction. Learned courts below committed serious illegality and perversity in accepting the contention of plaintiff that since the appeal was pending, therefore, he could not raise construction even though there was no restraint order from any court. Learned trial court though noted this fact that there is no stay order after 27.04.1985 but wrongly observed because of principles of natural justice, the party was expected to not raise any construction. The finding of learned trial court as well as appellate courts are contrary to the provisions of Sec. 115(3) C.P.C. which says that a revision shall not operate as stay of suit or other proceedings before the court except where such suit or other proceeding is stayed by this Court. Even otherwise, the principles of natural justice are not attracted where the parties have a remedy under procedural law. Therefore, the findings of both the courts below on Issue No. 1 are perverse.;