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Judgment
Indermeet Kaur, J.
CM No. 8047/2011 (for exemption)
Allowed subject to just exceptions.
RSA No. 71/2011
This appeal has impugned the judgment decree dated 17.02.2011 which had endorsed the finding of the trial dated 19.2.2009 whereby the suit filed by the Plaintiff Col.D.S. Solanki seeking declaration and mandatory injunction to the effect that a decree of declaration be granted in his favour declaring that the order of the Defendant cancelling his allotment of an industrial plot be declared null and void; simultaneously he had sought for a decree of mandatory injunction directing the Defendant to allot an industrial plot in his favour had been dismissed.
The case of the Plaintiff is that he is carrying on business of manufacturing, trade and sale from his factory situated at Khasra No. 443, Village Nasirpur, Delhi under the name and style of M/s Dada Dev Ice Factory. Licence dated 24.2.1993 had been granted to him by the Health Department of the MCD. He had deposited licence fee. In pursuance of an advertisement in the newspaper inviting applications for allotment of an industrial plot the Plaintiff had applied; he had applied on 25.12.1996; he had been called for an interview on 14.01.1999. Plaintiff had deposited a sum of Rs. 1,20,000/- as an advance money. In spite of various visits to the office of the Defendant including his letters dated 20.7.2001and 07.3.2011 he received no response from the department. He was constrained to file the present suit.
In para 10 of the plaint, it has been specifically averred that a letter had been received by him calling upon him to refund the earnest money and he had been informed that his application for allotment of the industrial plot had been cancelled. The whole case of the Plaintiff, in fact, hinged upon this letter; his averment is that in terms of this letter his allotment has been cancelled; he has been directed to take a refund of the earnest money. What is the date of the letter has not been given. That apart, the Plaintiff had also not placed on record any such letter. This was incumbent in view of the fact that his whole case was based upon this letter. Before the courts below (as has been noted therein) and even before this Court it has been stated that the Plaintiff had sent the original letter to the department and had not kept a photocopy of the same; he does not know the date of the letter; he also does not have a copy of it. Plaint has been rejected primarily on this ground. Court was of the view that in the absence of this letter the question of limitation also cannot be gone into; the plaint is vague, no cause of action has been disclosed. The plaint had accordingly been rejected under Order 7 Rule 11 of the Code of Civil Procedure.
This finding was endorsed in first appeal.
On behalf of the Appellant, it has been vehemently urged that the Plaintiff should have been given a chance to prove his case and he should have been granted a chance to lead evidence. Even on a specific query put to the Appellant today in the court the Appellant has admitted that he does not know the date of the letter; neither does he have a copy of the letter. Even if the submission of the learned counsel for the Appellant is accepted and he is put to the trial, the result of the trial is known today; in the absence of the said letter the question of the Plaintiff being able to prove his case that his allotment has been cancelled vide the aforenoted letter could not be proved. The impugned judgment endorsing this finding does not in any manner call for any interference.
Substantial questions of law have been embodied on page seven of the appeal. No such substantial question of law has arisen. Appeal is dismissed in limine.