Trimurthy Sahkari Grih Nirman Samiti vs Brahmanand Gupta and Others

Dhirendra Mishra, J.—The applicant - Trimurthy Sahkari Griha Nirman Samiti, Mahasamund, has preferred the above civil revisions against the orders passed by the Civil Court on its application filed under Order 7 Rule 11 of the CPC read with Sections 64 and 84 of the Chhattisgarh Co-operative Societies Act, 1960 (for short the "Act") as the prayer for dismissal of the suit on the ground that the same was barred u/s 82(1)(c) of the Act, has been rejected and the suit has been held to be maintainable. All the civil revisions have the only question of law to be decided such as "whether in the facts and circumstances of the case the civil suit preferred by the non-applicants/Plaintiffs was maintainable in view of the bar contained in Section 82 of the Act of 1960 ?"

Before adverting to the legal submissions of the parties it would be necessary to have a glimpse of the facts of each case. In Civil Revision No. 102/ 2001 the applicant allotted plot No. 46 and executed a sale deed dated 27-3-1984 in favour of the Respondent/Plaintiff for a sum of Rs. 3000/-. A notice was given to the Respondent/Plaintiff on 6-12-1994 stating that the above allotment has been cancelled by the Society in terms of Clause 11 of the sale deed. A further notice was given to the Respondent/Plaintiff on 4-8-1998 asking him to take back the deposited sum and as a result of which the suit was filed by the Plaintiff on 12-5-2000 for declaration of title and perpetual injunction.

In Civil Revision No. 248/2001 the applicant allotted plot No. 27 and executed a sale deed dated 1-4-1986 in favour of the Respondent/Plaintiff for a sum of Rs. 5,250/-. A notice was given to the Respondent/Plaintiff on 6-12-1994 stating that the above allotment has been cancelled by the Society in terms of Clause 11 of the sale deed. A further notice was given to the Respondent/Plaintiff on 4-8-1998 asking him to take back the deposited sum and as a result of which the suit was filed by the Plaintiff on 7-10-1998 for declaration of title and perpetual injunction. Likewise in Civil Revision Nos. 253/2001, 249/2001 and 254/2001 plot No. involved is 25, 26 and 23 respectively and the date of filing of the suit is 6-11-1998, 6-11-1998 and 7-10-1998 respectively and except this all the facts and figures remain the same.

Similarly in Civil Revision No. 1920/1996 during the pendency of the suit preferred by Plaintiff/non-applicant the applicant Defendant moved an application under Order 7 Rule 11 of the Code of Civil Procedure, which rejected on 19-8-1996 by recording a finding that the nature of the suit filed by the Respondent/Plaintiff does not fall within the purview of Sections 64 and 82 of the Act of 1960 and therefore the suit is maintainable.

The argument of the learned Counsel for the applicant is that the Court below has held the suit filed by the Plaintiff as maintainable relying upon the decision of High Court of Madhya Pradesh in the matter of Dr. Kusum Verma and Another Vs. Pritam Singh Gulati and Another, . However, in the above case it has been held that the jurisdiction of the Civil Court is not barred especially when the written statement has not been filed. Learned Counsel for the applicant further placed reliance on the Division Bench decision of Madhya Pradesh High Court in the matter of Madhavrao Kulkarni v. 9th Additional District Judge, Indore and Ors. 1991 RN 81 and submitted that the matter in hand is squarely covered by the above judgment where it has been held that in a dispute between the Society and its members and where nature of the dispute touches business of the society, the civil suit is barred u/s 82(1)(c) of the Act of 1960 and the matter falls within the ambit of Section 64 of the act of 1960 Placing reliance on the judgment of High Court of M.P. in the matter of Nagrik Grih Nirman Samiti Jagdalpur and Anr. v. Anil kumar Mane 2000 RN 343 learned Counsel for the applicant submits that the question of right indicated in Section 64(2)(4) of the Act of 1960 is wide enough to include even the dispute regarding title. It is further argued that the question of jurisdiction can be raised by the Defendant at any stage and even after his appearance without filing the written statement.

On the other hand learned Counsel for the Respondent/Plaintiff placing reliance on the judgment of Madhya Pradesh High Court in the matter of Kusum Verma (supra) submits that dispute in regard to the invalidity of sale deed and its cancellation on the ground of its being voidable can be determined and adjudicated by the Civil Court. He further placed reliance on the judgment of the Madhya Pradesh High Court in the matter of V.K. Munshi v. Raipur Co-operative Society and Anr. 2001 RN 257 and submitted that where cancellation of allotment of plot is challenged on the ground of arbitrariness, lack of jurisdiction and against the principles of natural justice, the same is not hit by Section 82 of the Act of 1960. Referring to yet another judgment of the Madhya Pradesh High Court in the matter of Manju Shyafn Sunder Ramteke and Anr. v. Manda W/o Shankar Rao Vaidya and Ors. 2000 (1) MPLJ 411 it is argued that where the Housing Society is selling the plot to the Plaintiffs and thereafter transfers the same to another person after a considerable period and the suit for declaration of title by the earlier purchaser and injunction is maintainable and it is not barred u/s 82 of the Act of 1960.

From perusal of the plaint filed by the Respondent/Plaintiff it appears that the plots were allotted to the Plaintiffs somewhere in the year 1984 and 1986. Sale deed contained Clause 11 mentioning therein that in case the Plaintiff does not commence the construction within the stipulated period, the allotment in favour of the allottee shall be deemed to be cancelled. The allotment was cancelled and the notice of the same was given to the Plaintiffs on various dates but no such notice was given to them before cancellation of the allotment. More so, the Plaintiffs were also directed to take back the amount deposited with the Society in the year 1998.

The facts of the case in the matter of Madhav Rao (supra) were that the Plaintiff of that case filed a suit for cancellation of allotment in favour of the co-Defendant and against the society and for further declaration that the Plaintiff was entitled to get the allotment of the suit plot and the Division Bench dismissed the petition by recording a finding that the dispute was mainly between the Society and its members which is touching the constitution, management or business of the society and the same has to be referred to the Registrar and the same was barred by Section 82 of the Act of 1960.

In the matter of Nagrik Grih Nirman Samiti (supra) the dispute was between two members of the society and the allegation of the Plaintiff was that though he was allotted the plot vide sale deed dated 23-12-1987, the map of the same was not given to him by its President - the Defendant No. 1 and in the meantime the possession of the plot was obtained by Defendant No. 2 in collusion with Defendant No. 4 and on the above set of facts the declaration of sought that the sale deed dated 31-10-1991 be declared as not validly executed.

In the matter of V.K. Munshi (supra) the plot sold to the Petitioner of that case was cancelled by the concerned society after issuing notice dated 4-8-1987 calling upon him to show cause as to why the allotment should not be cancelled as he did not carry out the construction work as per the by-laws of the society and thereafter without giving any hearing to the Plaintiff permission was obtained from the Deputy Registrar to cancel the allotment and then the same was cancelled. The High Court relying upon the judgment in the matter of Raipur co-operative. Housing Society and Ors. v. Smt. Sushiladevi and Ors. has held that excluding the jurisdiction of the Civil Court in a matter required to be decided by a special tribunal under the Act, does not have the effect of excluding the jurisdiction of the Civil Court, and where the order is made without jurisdiction is a nullity and it is open to the Civil Court to examine the matter to this limited extent.

The facts of the present case are identical to the judgment in the matter of V.K. Munshi (supra) where the Sub Registrar canceled the allotment of the Plaintiffs without affording an opportunity of hearing to them and taking into consideration the allegations made by the Plaintiffs the ground of nullity is made out.

Thus in my considered view the suit for declaration of cancellation of allotment is maintainable and the judgment in the matter of V.K. Munshi (supra) covers the factual matrix of the present case and accordingly, I do not find any illegality in the orders passed by the learned Court below.

Consequently, the revision petitions preferred by the applicant/Defendant are without merit and the same are hereby dismissed.

However, in the peculiar facts and circumstances of the case there shall be no order as to costs.