YADAV, J. - (1.) THE instant second appeal has been filed against the judgment and decree dated 2. 2. 99 passed by the learned District Judge, Pali in Civil Appeal No. 42 of 1995 whereby it partly allowed the appeal and modified the judgment and decree passed by the learned trial court.
(2.) IT is urged by the learned counsel for the appellant Mr. Prakash Tatia that once the learned first appellate court arrived at a conclusion that the suit for declaration of title was not maintainable in absence of statutory notice as provided u/sec. 271 of the Rajasthan Municipalities Act, 1959 (for short "the Act of 1959") it has no jurisdiction to allow the appeal partly. The aforesaid argument of the learned counsel for the appellant is not acceptable for the reasons given hereinbelow. A close scrutiny of sub-sec. (3) of Sec. 271 of the Act of 1959 clearly provides that nothing in sub-sec. (1) shall be construed to apply to a suit wherein the only relief claimed is an injunction. Thus it is implicit from reading of sub-sec. (3) of Sec. 271 that where the plaintiff has filed a suit seeking only relief for injunction then notice is not required to be given under sub-sec. (1) of Sec. 271 of the said Act. It is true that sub-sec. (3) of Sec. 271 of the said Act is not happily worded. I am of the view that if a statutory provision is capable of two interpretations one in favour of citizen and another in favour of State or its instrumentalities then the interpretation in favour of a citizen is to be preferred by courts of law. In view of the aforesaid interpretation of sub-sec. (3) of Sec. 271 of the Act 1959 as discussed hereinabove, the learned trial court erred in refusing relief of injunction to the plaintiff-respondent because of statutory notice to the appellant and the learned first appellate court has committed no error in rectifying the mistake and modifying the decree passed by the learned trial court by granting innocuous injunction to the plaintiff-respondent. It is to be imbibed that courts of law are established from time immemorial to do justice between the parties. The courts of law are respected not because they are capable to legalise injustice between the parties but they are respected by people as they are charged to prevent injustice between man to man and between State and its instrumentalities and citizens. Indisputably, in the present case, the plaintiff-respondent was declared highest bidder of the plot in dispute in auction on 30. 4. 80 by the defendant-appellant. Under the Rajasthan Municipalities (Disposal of Urban Land) Rules, 1974 (for short `the Rules of 1974'), he had deposited 1/4th auction amount on the date of auction. After deposit of 1/4th auction amount on the date of auction, the plaintiff-respondent was running from pillar to post to deposit the remaining auction amount and to get the sale deed executed in his favour. Upto the date of filing of suit, neither remaining auction amount could be deposited nor sale-deed could be executed in his favour because before execution of sale-deed and for deposit of remaining auction amount permission under Rule 30 of the Rules of 1974 was required from the Director, Local self Bodies, Rajasthan, Jaipur. During the course of argument, it is conceded by the learned counsel for the appellant that after deposit of 1/4th auction amount by the plaintiff-respondent on the date of auction, it was informed to him that his file was sent to Jaipur for obtaining necessary sanction from the Director, Local-self Bodies, Rajasthan, Jaipur within the meaning of Rule 30 of the Rules of 1974. A man can speak lie but circumstances never speak lie. It is not believable that the plaintiff-respondent who had deposited 1/4th auction amount on the date of auction long back on 30. 4. 80 for purchase of the plot in dispute for raising construction over it had deliberately avoided to deposit the remaining amount and also avoided to get the sale deed executed in his favour.
(3.) IN my considered opinion, the learned first appellate court has jurisdiction to mould the relief according to the facts of the present case within the meaning of Order 41, Rule 33, CPC, which clearly provides that the appellate court shall have power to pass any decree and make any order which ought to have been passed or made and to pass or make such further or other decree or order as the case may require, and this power may be exercised by the court notwithstanding that the appeal is as to part only of the decree and may be exercised in favour of all or any of the respondents or parties, although such respondents or parties may not have filed any appeal or objection. Here in the present case, learned first appellate court has made its sincere efforts to do justice between the parties by modifying the decree passed by the learned trial court and allowing the appeal partly. The learned first appellate court has legally not allowed the substantial justice between the parties either to escape or slide after analytical discussion of the evidence on record. The learned first appellate court has given cogent and convincing reasons in support of modifying the decree with which I am at one. Instant second appeal is concluded by finding of fact recorded by learned first appellate court and no substantial question of law is involved in it within the meaning of amended Sec. 100 CPC. ;