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2016 DIGILAW 276 (CAL)

Abhay Agarwal v. Maina Devo Surana

2016-03-17

SIDDHARTHA CHATTOPADHYAY

body2016
JUDGMENT : Siddhartha Chattopadhyay, J. 1. Feeling aggrieved and dissatisfied with the Order No. 22 dated 17th July, 2015 passed by the learned Civil Judge (Junior Division), 1st Court at Alipore, in Title Suit No. 339 of 2013, the defendant/petitioner has filed this revisional application under Article 227 of the Constitution of India. 2. According to the petitioner, the learned Court below failed to appreciate the position of law so far as under Order 6, Rule 17 is concerned. He added that an application under Order 7, Rule 11 of Code of Civil Procedure was pending before the Court below and without disposing of the same the learned Court below has allowed the application under Order 6, Rule 17 and thereby frustrated the claim of the defendant/petitioner. He further argued that the dispute is related to Co-operative Housing Society and the present opposite party/plaintiff also filed an application before the said authority i.e. Registrar of Co-operative Societies, West Bengal for his redress vide Dispute Case No. 54/RCS of 2012 under Section 102 of the West Bengal Cooperative Societies Act, 2006, read with Rule 166 of the West Bengal Co-operative Societies Rules, 2011. He contended that the matter is sub-judice before the Registrar of Co-operative Societies, West Bengal, who is the competent authority as per Section 102 of the West Bengal Co-operative Societies Act. 3. His application under Order 7, Rule 11 was filed on 10.02.2014 contending inter-alia that the dispute case was instituted by the plaintiff for a declaration that the name of any other person included other than the legal heirs of deceased member in the Register of the Society is illegal and void. According to the present petitioner, unless the learned arbitrator decides the said dispute case in favour of the plaintiffs by granting the declaration as prayed for by the plaintiffs in the said dispute case, no cause of action accrues in favour of the plaintiff and further submitted that the learned Civil Court cannot pass any decree that the deed of conveyance executed and registered on 31.08.2007 is bad, since no cause of action arises. 4. It appears from the record that keeping that petition under Order 7, Rule 11 of Code of Civil Procedure pending, the learned Court below proceeded to hear the application under Order 6, Rule 17 read with Section 151 of Code of Civil Procedure. 5. 4. It appears from the record that keeping that petition under Order 7, Rule 11 of Code of Civil Procedure pending, the learned Court below proceeded to hear the application under Order 6, Rule 17 read with Section 151 of Code of Civil Procedure. 5. According to the petitioner, learned Court below ought to have heard the said application under Order 7, Rule 11 first and thereafter, to hear the petition under Order 6, Rule 17, if situation demands. 6. On perusal of the impugned order I find that the learned Court below admitted that the petition under Order 7, Rule 11 is pending and held that there was ample scope for the present petitioner and defendant to raise the matter regarding maintainability of the suit at the time of hearing of the said petition. 7. Application under Order 7, Rule 11 of the Code of Civil Procedure was filed on 10.02.2014 and the application under Order 6, Rule 17 was filed on 9.02.2015. It is perhaps needless to say that the petition which has been filed earlier that has to be disposed of first and thereafter, the next petition, if pending be heard. When a vital issue has been raised in the petition under Order 7, Rule 11 of the Code of Civil Procedure, the duty of the Court was to hear out the said application first and thereafter, to proceed in accordance with law. 8. It is not denied by the plaintiff/opposite party that they did not apply before the Registrar of Co-operative Societies to resolve the dispute, who is empowered under Section 102 of the West Bengal Co-operative Societies Act to deal with the grievance. Therefore, in my view, the purpose of Justice shall be best served, if the learned Court below be directed to hear out the application under Order 7, Rule 11 of the Code of Civil Procedure first and thereafter, to decide the fate of the application under Order 6, Rule 17, if situation demands. Accordingly, the impugned order passed by the learned Court below, dated 17.07.2015 is hereby set aside. 9. Accordingly, the impugned order passed by the learned Court below, dated 17.07.2015 is hereby set aside. 9. I make it clear that I did not go into the merit of the two applications and learned Court below shall feel free to decide application under Order 7, Rule 11 read with Section 151 of the Code of Civil Procedure along with the provision under Section 102 of the West Bengal Co-operative Societies Act and after disposal of the said application, he would hear the application under Order 6, Rule 17, if situation demands. With this direction and observation the civil revisional application stands allowed. 10. Let a copy of this order be sent to the learned Court below for his information and taking necessary action in accordance with law. 11. Urgent certified photocopy of this Judgment and order, if applied for, be supplied to the parties upon compliance with all requisite formalities.