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2006 DIGILAW 3208 (RAJ)

Jankalyan Vikas Samiti v. Kausalya

2006-12-13

AJAY RASTOGI

body2006
Judgment Ajay Rastogi, J.-This revision petition has been preferred by plaintiff against order dated 25.09.1998 whereby Civil Judge (Jr. Dn.) Sanganer (Jaipur district) rejected suit No. 463/1996 on the objection raised by defendant (respondent) in their application under Order 7, Rule 11, CPC, which was also upheld by Additional District Judge Jaipur District Jaipur in Civil Miscellaneous Appeal No. 21/1998. 2. Facts, in brief , are the Jankalyan Vikas Samiti (plaintiff/petitioner) filed suit for permanent injunction on 210.1996 in respect of a piece of land measuring 942d sq. yards situated in colony Azad Nagar. A which is said to have been developed by Kartarpura Housing Co-operative Society Ltd., Jaipur for a public part and facility area for residents in its Scheme known as Azad Nagar. A Tonk Road Sanganer Jaipur, with a prayer ad infra : It was alleged by plaintiff-Samiti in the plaint that Samiti is a registered Society and constituted with an object for development of various colonies known as Azad Nagar, Shiv Colony, Gayatri Colony, and Ambika Nagar. Indisputably, plot against which dispute was raised by plaintiff Samiti - reference whereof has been made in Para 3 of plaint is not a part of colonies (ibid and is in fact a part of Azad Nagar - A). 3. Indisputably, plot against which dispute was raised by plaintiff Samiti - reference whereof has been made in Para 3 of plaint is not a part of colonies (ibid and is in fact a part of Azad Nagar - A). 3. After service of summons upon defendant-respondent, an application was filed under Order 7 Rule 11, CPC raising objection that plaintiff-Samiti has been registered for development of colonies and for its residents and - reference whereof has been made in Para 3 of plaint and which does not include Azad Nagar - A; as such no grievance could have been raised with regard to plot situated in colony other than for whose welfare and development, the Samiti has been registered and in absence of cause of action to plaintiff in respect of plot situated in Azad Nagar-A, very suit is not maintainable taking note of submissions made, the learned trial Judge observed that the suit plot is a part of land situated in colony Azad Nagar-A and the plaintiff-Samiti is registered co-operative society duly constituted only for welfare of residents of colonies which do not include colony Azad Nagar-A. Thus, it is neither within their constitution nor for which it has been registered - in absence whereof no grievance can raised in regard to suit land and accordingly the trial Judge rejected the plaint vide order, dated 25.09.1998 against which plaintiff-petitioner preferred appeal. The learned appellate Judge while upholding rejection of plaint vide aforesaid order of trial Judge, dismissed plaintiff’s appeal vide order dated 110.1998. Hence, this revision petition. 4. Counsel for petitioner contends that Azad Nagar-A is a part of Azad Nagar and residents of Azad Nagar-A are also its members; as such very finding recorded by both the Courts below is not legally sustainable and the plaintiff-Samiti has been informed and registered to take care for development of residents of Azad Nagar which includes Azad Nagar-A also; in such circumstances, rejection of plaint is not justified and such finding deserves to be set-aside on this count. 5. It is pertinent to mention at this stage that plaintiff filed an application under Order 1 Rule 8, CPC for treating it as representative suit but the said application was also rejected by learned trial Judge vide order dated 19.05.1997. 6. 5. It is pertinent to mention at this stage that plaintiff filed an application under Order 1 Rule 8, CPC for treating it as representative suit but the said application was also rejected by learned trial Judge vide order dated 19.05.1997. 6. Per contra, Counsel for respondent (defendant) while supporting the findings recorded by Courts below under Judgment /orders impugned, contends findings recorded recorded by Courts below under Judgment /orders impugned, contends that Azad Nagar and Azad Nagar-A colonies are not one and the same colony being not part of each others; in fact colony Azad Nagar-A was developed by Kartarpura Housing Co-operative Society whereas Azad Nagar was developed by Subhash Sindhi Housing Co-operative Society and both are independent colonies; plaintiff society has filed suit for permanent injunction in relation to a plot which indisputably is a part of Azad Nagar-A; as such there was no cause of action for the plaintiff-society to raise dispute for a plot which is not part of colony for whose welfare and development of residents of colony it has been constituted. 7. Pendente revision petition, to ascertain factual aspect and to prima facie find out as to whether suit plot which is in Azad Nagar-A is a part of facility area or it is for some other reason disputes have been raised, this Court earlier by its order dated 211.2003 called upon Sr. Officer from Jaipur Development Authority who alongwith record appeared before this Court on 12.04.2004 and at this stage after examining the record, it was considered to call upon Rajasthan Housing Board. Counsel for both the JDA and Housing Board appeared under directions of this Court and made statement that colony Azad Nagar-A is not vested in either of them; as such no action could have initiated. This Court has passed a specific order on 012.2006 and after recording statement made by Counsel appearing for JDA and RHB, arguments were finally concluded. 8. I have considered contentions of Counsel for the parties and with their assistance, examined material on record and as also findings recorded by Court below under Judgment /orders impugned. 9. It is necessary to note here that pendente revision petition, petitioner has filed one additional affidavit alongwith certain documents including list of members of plaintiff Samiti, which was sent to the Deputy Registrar Co-operative Society Jaipur. 9. It is necessary to note here that pendente revision petition, petitioner has filed one additional affidavit alongwith certain documents including list of members of plaintiff Samiti, which was sent to the Deputy Registrar Co-operative Society Jaipur. It is relevant to state that after the appeal was rejected on 25.09.1998 wherein there were observations made by Courts below that resident of Azad Nagar-A are not members of plaintiff-Samiti no grievance qua them could have been raised, on next very date i.e. 26.09.1998, plaintiff-Samiti sent list of members including name of one N.N. Yadav who were residing in Azad Nagar-A to show that residents of Azad Nagar-A are also its members, but it appears that documents has been created after finding has been recorded by Courts below and as such no cognizance can be taken of documents created subsequently. 10. Both the Courts below have observed that residents of colony for whose development and welfare, the plaintiff-Samiti has been constituted and registered, are not included in the colony known as Azad Nagar-A which is neither borne out from their constitution or by their bye-laws placed on record; as such the plaintiff-Samiti cannot have any grievance with regard to suit plot which is part of colony Azad Nagar-A. Taking note of the same, both the Courts below have recorded finding which the petitioner-Samiti has not been able to assail even before this Court in revisional jurisdiction despite the fact that scope of interference under Section 115 Civil Procedure Code is too very limited extent. Apart from additional affidavit filed for the first time to throw any light on the fact that residents of Azad Nagar-A are also members of society (plaintiff), cannot be considered at this stage for the reason that both the Courts below have rejected their material which they enclosed alongwith plaint and the same has not been disputed by the plaintiff-petitioner and the present documents -reference whereof has been made is too late to pronounce the Judgment by appellate Court which cannot now be considered at revisional stage and since both the JDA and Housing Board after putting their hands up and are not aware of whereabouts of the colony Azad Nagar-A, this Court could not have been arrived at a true factual position at site as to whether suit land is at all either a part of facility area or not of Azad Nagar-A as claimed in the plaint, in absence whereof , no finding can be recorded at this stage. I do not find any jurisdictional error or material illegality committed in rejecting the plaint under orders impugned, which do not call for interference in revisional jurisdiction. 11. Consequently this revision petition fails and is hereby dismissed alongwith stay application No. 339/1999. No costs.