JUDGMENT Anjani Kumar, J.
1. By means of present writ petition under Article 226 of the Constitution of India, the petitioner-plaintiff has challenged the order passed by the trial Court dated 17th February, 2004 and the order passed by the lower appellate Court dated 28th April, 2004, copies whereof are annexed as Annexure Nos. '1' and '2', respectively to the writ petition.
2. Heard learned counsel appearing on behalf of the petitioner.
3. The brief facts of the present case are that the petitioner-plaintiff filed a suit praying for. grant of injunction restraining the respondent-defendant No. 4 from realising a sum of Rs. 1,93,000/-. The facts as narrated In the plaint of suit are as under :-
That the plaintiff was the highest bidder in a public auction for right to realise Tehbazari on behalf of Nagar Panchayat concerned and his bid which was accepted by the Nagar Panchayat concern was for the Finanancial Year 2000-2001 .That the plaintiff has deposited Rs. l0,000/= as security money and also Rs. 60,000/- as advance, whereas the bid was for Rs. 4,50,000/=. It is further alleged by the plaintiff that though the aforesaid contract (theka) was up to 31st Mach, 2001, yet the Nagar Panchayat concern by the letter dated 1sty August, 2000 directed the petitioner-plaintiff to produce relevant certificates. The petitioner-plaintiff on receipt of the aforesaid letter, instead of furnishing these certificate approached the defendant No. 4, the Nagar Panchayat concern to extend the time for depositing the aforesaid certificates. The plaint case further reveals that the request made by the petitioner-plaintiff was not accepted and therefore this contract (theka) was cancelled by publication in the newspaper. The petitioner-plaintiff received the aforesaid information only through the newspaper on 22nd August, 2000, thereafter the petitioner stopped realising of Tehbazari immediately and the amount Of Rs. 1,84,000/= realised by the petitioner deposited with the Nagar Panchayat concern. It is further stated that in spite of that the Nagar Panchayat mala fide issued a recovery certificate for recovery of Rs. 1,93,000/=. It is further alleged that from the facts stated above, it is apparent that the plaintiff-petitioner has a prima facie case and the balance of convenience is also in favour of the plaintiff-petitioner and in case the injunction is refused, the plaintiff shall suffer irreparable loss.
4. In rebuttal, the case set up by the respondent-defendant was that the petitioner-plaintiff did not have any prima facie case and it is incorrect to say that the theka has been cancelled by publication of the notification in the newspaper. In fact the petitioner-plaintiff has deposited a sum Of Rs. 60 000/= on 22nd August, 2000 and further and up to 22nd August, 2000, a total sum of Rs. 2,53,000/- was deposited by the plaintiff. Thereafter the plaintiff deposited Rs. 2,400/= which the plaintiff had realised throughout the period theka was granted, but has not deposited with the Nagar Panchayat concern, and that the petitioner's theka was not cancelled during the period for which it was granted, therefore the petitioner is liable to deposit a Sum of 4.50,000/= and out of Rs. 4,50,000/=, Rs. 45,454/- has been deposited by the Amin, still a balance of Rs. 1,49,146/= is due with the petitioner-plaintiff for which the necessary recovery certificate has been issued, On the issue of recovery certificate, Rs. 45,454/ deposited by Amin and balance is still Rs. 1,49,146/=, thus the suit is based on incorrect facts.
5. The trial Court after hearing learned counsel appearing on behalf of the parties and perusing the material on record have declined to grant temporary injunction and application 4 C was rejected by the trial Court Aggrieved thereby, the petitioner-plaintiff preferred a misc. appeal before the lower appellate. Court and the lower appellate Court vide its order dated 28th April, 2004 dismissed the appeal and affirmed the findings arrived at by the trial Court. On 11th July, 2005, a recovery certificate was Issued by the Collector for recovery of a sum of Rs. 1,49,146/= as arrears of land revenue, including the collection charges of Rs. 14,915/=, the total of which comes to Rs. 1,64,061/=. Thereafter the petitioner-plaintiff file another application dated 16th August, 2004 before the trial Court. No orders were passed by the trial Court, nor any orders have been passed for staying the recovery by the Tehsildar concern, thus this writ petition.
6. The petitioner-plaintiff has not explained the latches, but has taken recourse of the applications, which were filed after the decision of the lower appellate Court dated 28th April, 2004 and the citation for recovery dated 11th July, 2005, the prayer made by petitioner-plaintiff clearly demonstrates that the petitioner has prayed for quashing of the orders dated 17th February, 2004 and 28th April, 2004, along with the stay of recovery certificate issued by respondent Nos. 6 and 7. The petitioner-plaintiff did not challenge the order passed by the lower appellate Court immediately Of within the period prescribed of the passing of the order by the lower appellate Court dated 20th April, 2004 and has filed this writ petition after a delay of approximately one year and twenty eight days. Thus, trill petitioner-plaintiff has not satisfactorily explained the latches. Coming to the merits of the argument advanced on behalf of learned counsel for the petitioner, learned counsel for the petitioner-plaintiff has not been able to demonstrate that the order passed by the trial Court and affirmed by the lower appellate Court in any way surfers from error of law, much less error apparent on the face of record, so as to warrant any interference by this Court in exercise of jurisdiction under Article 226 of the Constitution of India.
7. So far as the question of recovery for the amount is concerned, the recovery cannot be challenged and admittedly any injunction cannot be granted in view of the provisions of proviso to Rule 2, Sub-rule (2) of Order XXXIX Rule 2-A, as amended in the State of Uttar Pradesh by U.P. Act No. 57 of 1976, which is reproduced below :-
2. Injunction to restrain repetition or continuance of breach.-
(1)...
(2) The Court may by order grant such injunction, on such terms as to the duration of the injunction, keeping an account, giving security, or otherwise, as the Court thinks fit.
Provided that no such injunction shall be granted-
(a) ...
(b) ...
(c) ...
(d) ...
(e) ...
(f) ...
(g) to stay the proceedings for the recovery of any dues recoverable as land revenue unless , adequate security is furnished, or
(h)...
8. As would be clear from the facts stated above and the citation issued by respondents, the recovery in question is a recovery of dues, Which is recoverable as arrears of land revenue and the petitioner-plaintiff has never offered to the satisfactory explanation to the jurisdiction of the Court, Thus, in my opinion, no case is made out for stay of recovery in question. This writ petition, therefore has no force and is accordingly dismissed. However, there will be no order as to costs.