Mohit Bhandari and Others vs Bharti Makhija and Others

G.S. Sistani, J.—Petitioners are aggrieved by the Judgment and decree dated 11.03.2010, whereby the learned trial court directed the

appellants to hand over possession of the flat bearing no. 120, Swayam Sewa Cooperative Group Housing Society, Jhilmil Colony to the

respondents. Further, the trial court has also directed the appellants to pay damages @ Rs. 50,000/-.

Brief facts necessary to be noticed in the present appeal are that the respondents had filed a suit for possession, u/s 6 of Specific Relief Act,

damages and permanent injunction with respect to flat bearing no. 120, Swayam Sewa Cooperative Group Housing Society, Jhilmil Colony

(hereinafter referred to as ""suit property""), consisting of one room set on the ground floor and one room set on the first floor, against the appellants

herein. The respondents have claimed themselves to be the owners of the suit property.

The learned trial court has noticed that the suit property was allotted to one Smt. Sushila, who was defendant no. 3 before the trial court, against

her membership no. 332/2895 vide allotment letter number 173 dated 30.11.2000. Smt. Sushila sold the suit property to one Sh. Mohit Bhandari,

(arrayed as defendant no. 1 before the trial court), for a consideration of Rs. 1.20 lakhs. Various documents including agreement to sell, an

irrevocable GPA which was registered in the office of Sub-Registrar VIII, a Special Power of Attorney, a receipt of sale consideration, a Will, an

Indemnity Bond alongwith with Possession Letter was executed by appellant no. 3 herein in favour of appellant no. 1 herein. A letter was also sent

to the Secretary of the said Cooperative Society informing about the sale.

Subsequently, appellant no. 1, Mr. Mohit Bhandari, sold the suit property to the respondents (plaintiffs before the trial court) for a sale

consideration of Rs. 1.50 lakhs by means of an Agreement to Sell dated 25.10.2006. An irrevocable GPA which was registered in the office of

Sub-Registrar VIII New Delhi, a receipt of consideration, a possession letter, Will, and affidavits were executed by the appellant in favour of the

respondents. Thereafter appellant no. 1 in order to grab the property back in connivance with appellant no. 3 filed a suit for permanent injunction

against the respondents and their husbands which was dismissed by the trial court. Subsequently it is alleged that appellant no. 1 in connivance with

other appellants succeeded in trespassing on the ground floor of the suit property and locked the same. In these circumstances, respondents were

compelled to file a suit for recovery of possession, damages and permanent injunction. The appellants were proceeded ex parte on 07.02.2008.

Subsequently an application under Order 9 Rule 7 CPC was filed by the appellants for setting aside the ex-parte order which was dismissed vide

order dated 11.11.2009. Subsequently, the appellants filed another application for rejection of plaint under Order 7 Rule 11 CPC alleging that the

suit is not maintainable in view of Section 60 of the Delhi Co-operative Societies Act which was dismissed. Thereafter a decree dated 11.03.2010

was passed by the learned trial court, decreeing the suit of the respondents, which has led to the passing of the judgment and decree dated

11.3.2010.

Learned Counsel for respondents has raised a preliminary objection with regard to the maintainability of the present appeal relying on Sub-

Section (3) of Section 6 of the Specific Relief Act, which reads as under:

Suit by person dispossessed of immovable property.-

(3) No appeal shall lie from any order or decree passed in any suit instituted under this section, nor shall any review of any such order or decree be

allowed.

I have heard the counsel for the parties and have perused the impugned judgment.

The Apex Court in the case of Sanjay Kumar Pandey and Others Vs. Gulbahar Sheikh and Others, while dealing with the question of finality of

judgment/decree u/s 6 of Specific Relief Act opined as under:

A suit u/s 6 of the Act is often called a summary suit inasmuch as the enquiry in the suit u/s 6 is confined to finding out the possession and

dispossession within a period of six months from the date of the institution of the suit ignoring the question of title. Sub-section (3) of Section 6

provides that no appeal shall lie from any order or decree passed in any suit instituted under this section. No review of any such order or decree is

permitted. The remedy of a person unsuccessful in a suit u/s 6 of the Act is to file a regular suit establishing his title to the suit property and in the

event of his succeeding he will be entitled to recover possession of the property notwithstanding the adverse decision u/s 6 of the Act. Thus, as

against a decision u/s 6 of the Act, the remedy of unsuccessful party is to file a suit based on title. The remedy of filing a revision is available but

that is only by way of an exception; for the High Court would not interfere with a decree or order u/s 6 of the Act except on a case for interference

being made out within the well-settled parameters of the exercise of revisional jurisdiction u/s 115 of the Code.

In view of the law laid down by the Apex Court, it is clear that Sub section (3) of Section 6 of the Specific Relief Act clearly bars an appeal

from any decree or order passed u/s 6(3). Since the decree in the instant case is u/s 6 of the said Act, an appeal does not lie. The counsel for

appellant has failed to satisfy this Court as to how the present appeal is maintainable. Accordingly, I find force in the submission of the counsel for

the respondents and the appeal is dismissed as not maintainable.

CM No. 12172/2010.

Application stands dismissed in view of the order passed in the appeal.