Research › Search › Judgment

Madhya Pradesh High Court · body

2014 DIGILAW 914 (MP)

Kedarnath Neekhra v. Suprabhat Grih Nirman Sahkari Sanstha Mydt. , Shivpuri

2014-07-30

ROHIT ARYA

body2014
ORDER 1. This revision petition is directed against the order dated 16.4.2012 passed in Civil Suit No.36A/2011. An application under Order VII rule 11 of CPC filed by defendants No.1 and 3 has been rejected. 2. Facts necessary for disposal of this petition are to the effect that plaintiff is a cooperative housing society and has filed a suit through its President Rahul Birthare for declaration and permanent injunction seeking declaration to the effect that plot No.12 falling in survey No.163 situated at village Rajpura, District Shivpuri is of plaintiff’s ownership and possession. Further, the registered sale deed dated 10.10.1991 executed by plaintiff in favour of defendant No.1 and sale deed dated 22.10.2009 executed by defendant No.1 in favour of defendant No.3 be declared as null and void and lastly defendants be restrained from making encroachment over the suit land and raising construction thereupon. Defendant No.1 is the member of plaintiff-society and while he became the member, defendant No.1 had sworn an affidavit on 2.10.1991 that he shall abide by all the rules/bylaws of the society and same shall be binding upon him. Thereafter, by virtue of defendant No.1 being a member of the society, plaintiff executed a sale deed dated 10.10.1991 in his favour in respect of plot No.12 falling in survey No.163 for a consideration of Rs.7,400/- on such terms and conditions imposed by the plaintiff, which inter alia were to the effect that defendant No.1 after the date of execution of sale deed shall construct a house over the plot within two years. Besides, without prior permission of the society defendant No.1 shall have no right to transfer the plot to third person. Further, if no construction of the house is carried out within five years, the plot shall be reverted back to the society. In the instant case neither defendant No.1 constructed the house within two years nor thereafter till the expiry of five years. Therefore, plaintiff after serving notice upon defendant No.1 declared plot No.12 reverted back to the society and stood vested in it. Thereafter, defendant No.1 in order to transfer title of the suit plot by execution of sale deed appointed defendant No.2 as his power of attorney holder, who in turn executed a sale deed in favour of defendant No.3 on 22.10.2009 without delivery of possession. This act of defendant No.1 was without knowledge and permission of the society. Thereafter, defendant No.1 in order to transfer title of the suit plot by execution of sale deed appointed defendant No.2 as his power of attorney holder, who in turn executed a sale deed in favour of defendant No.3 on 22.10.2009 without delivery of possession. This act of defendant No.1 was without knowledge and permission of the society. On aforesaid facts, instant suit has been filed for the reliefs detailed herein-above. 3. Defendants have chosen not to file written statement, instead defendants No.1 and 3 filed an application under Order VII rule 11 of CPC inter alia contending that admittedly the plaintiff-society is a cooperative society and provisions contained under the M.P. Cooperative Societies Act, 1960 (hereinafter referred to as ‘the Act’) are applicable to it. In view of section 82 of the said Act, the instant suit is barred as the subject matter of the suit is squarely covered within the fold of dispute as defined under the said Act. As such, dispute can be filed before the constituted forum under section 64 of the Act. Hence, suit is barred under Order VII rule 11 (d) of CPC. Plaintiff/respondent No.1 filed reply thereto inter alia contending that the subject matter of the civil suit and the nature of relief claimed cannot be said to be covered within the definition of dispute as defined under the Act and, therefore, the dispute of a nature at hand cannot be filed under section 64 of the Act. Hence, suit is not barred under section 82 of the Act. 4. The scope of order VII rule 11 of CPC and the nature of jurisdiction of the trial Court thereunder has been well settled by the Hon’ble Supreme Court in number of cases. The Supreme Court in the case of Bhau Ram v. Janak Singh and others, (2012) 8 SCC 701 has held as under : “15. The law has been settled by this Court in various decisions that while considering an application under Order 7 rule 11 CPC, the Court has to examine the averments in the plaint and the pleas taken by the defendant in the written statement would be irrelevant. The above view has been once again reiterated in the recent decision of this Court in Church of Chirst Charitable Trust and Educational Charitable Society v. Ponniamman Educational Trust, (2012) 8 SCC 706 .” 5. The above view has been once again reiterated in the recent decision of this Court in Church of Chirst Charitable Trust and Educational Charitable Society v. Ponniamman Educational Trust, (2012) 8 SCC 706 .” 5. The trial Court on averments made in the plaint has reached the conclusion that the instant suit is on the premise that defendant No.1 without seeking prior permission of plaintiff-society had executed a sale deed through his power of attorney holder-defendant No.2 in favour of defendant No.3, who is not even a member of the society. Besides, he ceases to be the owner of the suit plot, as the same stood vested in the society, in view of the default committed by defendant No.1 having not raised the construction of house within five years from the date of allotment of plot in the year 1991. Resultantly, defendant No.2 power of attorney holder had no authority to execute the sale deed in favour of defendant No.3. Besides, defendant No.1 having ceased to be the owner of the suit plot, as the same stood vested in the society, declaration has been sought that the sale deed executed in favour of defendant No.1 on 10.10.1991 be declared as null and void and not binding upon the plaintiff. The trial Court relied upon the judgment of this Court reported in 1988 MPLJ 326 , Madhyam Vargiya Grih Nirman Sahakari Sanstha v. Vasantrao and another in support of its conclusions holding that the suit is maintainable and is not barred under section 82 of the Act. 6. Having heard learned counsel for the parties, this Court is of the view that the trial Court has not committed any error of law or jurisdictional error while dismissing the application under Order VII rule 11 of CPC. Admittedly, defendant No.3 is not a member of the plaintiff-society. Society itself has not executed sale deed in favour of defendant No.3. The act of defendant No.1 through defendant No.2 in the matter of execution of sale deed in favour of defendant No.3 on 22.10.2009 in respect of plot No.12 falling in survey No.163 by no stretch of imagination can be said to be touching the business of society to bring it within the fold of Section 64 of the Act, hence, section 82 of the Act has no application. Further, as per the plaint averments, as defendant No.1 has ceased to be owner of the plot as the same stood vested in the society by efflux of time in terms of the binding conditions of the sale deed, declaration that the sale deed dated 10.10.1991 in favour of defendant No.1 be declared as null and void and permanent injunction to restrain the defendants not to encroach upon the suit plot and raise construction thereupon also cannot be said to be touching the business of the society. As such, suit cannot be said to be barred under Order VII rule 11 (d) of CPC. Hence, the revision petition sans merits is dismissed.