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2016 DIGILAW 2894 (PNJ)

Sohan Lal v. Ved Kumari

2016-10-05

AMIT RAWAL

body2016
JUDGMENT Mr. Amit Rawal, J.:- The appellant-plaintiff is aggrieved of the judgment and decree dated 08.01.1990 rendered by the Lower Appellate Court, whereby, suit bearing No.175 of 1987 seeking possession of one plot for the shop no.23 measuring 15’x36' from the defendants, has been dismissed by the Lower Appellate Court, in essence, the judgment and decree of the trial Court, has been set aside. 2. Mr.S.S.Brar, learned counsel appearing on behalf of the appellant-plaintiff submitted that the Lower Appellate Court has committed illegality and perversity in heavily relying upon Section 102 of the Haryana Cooperative Societies Act, 1984 (hereinafter referred to as “Act 1984”). The nature of the suit as stated above was for possession of the plot and not with regard to the dispute enumerated in the aforementioned Section. He has drawn the attention of the Court to the aforementioned provisions of 1984 Act, which read thus:- 102. Disputes for arbitration (1) Notwithstanding anything contained in any law for the time being in force, if any dispute touching the constitution, management or the business of a co-operative society [other than a dispute of disciplinary action or dispute relating to service matters in respect of a paid servant of a society] arises – (a) among members, past members and persons claiming through a member, or deceased members; or (b) between a member, past member or persons claiming through a member, past member or deceased member and the society, its committee or any officer, agent or employee of the society or liquidator, past or present; or (c) between the society or its committee and any past committee, any officer, agent or employee or any past officer, agent or employee or the nominee, heirs or legal representatives of any deceased officer, agent or employee of the society; or (d) between the society and any other society, between a society and liquidator of another society or between the liquidator of one society and the liquidator of another society; such disputes shall be referred to the arbitration of the Registrar for decision and no court shall have jurisdiction to entertain any suit or other proceedings in respect of such dispute. Provided that any proceedings pending or concluded under section 101 shall not constitute a dispute touching the constitution, management or the business of the society. Provided that any proceedings pending or concluded under section 101 shall not constitute a dispute touching the constitution, management or the business of the society. (2) For the purpose of sub-section (1) the following shall be deemed to be disputes touching the constitution, management or the business of a cooperative society, namely:- (a) a claim by the society for any debt or demand due to it from a member, or nominee, heirs or legal representatives of a deceased member, whether such debt or demand be admitted or not; (b) a claim by a surety against the principle debtor where the society has recovered from the surety any amount in respect of any debt or demand due to it from the principle debtor as a result of the default of the principle debtor, whether such debt or demand is admitted or not; (c) any dispute arising in connection with the election of any officer of the society. (3) If any question arises whether a dispute referred to the Registrar under this section is or is not a dispute touching the constitution, management or the business of co-operative society, the decision thereon of the Registrar shall be final and shall not be called in question in any court. (4) No dispute arising in connection with the election of committee member or officer of the society shall be entertained by the Registrar unless it is referred to him within thirty days from the date of the declaration of the result of election.” 3. By referring to the aforementioned provisions, he submitted that by virtue of an arbitration award dated 12.2.1985 and after remand dated 11.12.1986, it has been held that the appellant was the nominee of Sewa Ram, who was a member of the Society namely Pursarthi Cooperative House Building Society Nanakpur Punhana. 4. The case set out in the plaint was that owing to the succession/legal heir of Sewa Ram, appellant-plaintiff had become the owner of the property and defendants No.1 to 4 who were related to each other closely in conspiracy and with other persons of the society got the name of the plaintiff struck off which was referred to the Arbitrator and ultimately came in his favour but they had raised the construction to let out the same to defendant no.5. It is in this background of the matter, the suit for possession was filed. 5. It is in this background of the matter, the suit for possession was filed. 5. He submitted that the nature of the suit does not fall in any of the category in view of the provisions of Section 102 of 1984 Act and thus, urged this Court for setting aside the findings under challenge. 6. Per contra, Mr. Shakti Bhardwaj, Advocate for Mr. Vinod S. Bhardwaj, learned counsel appearing on behalf of the respondents submitted that the jurisdiction of the Civil Court was expressly barred as the claim of the plaintiff had been on the basis of withdrawal of the membership and thus, until and unless the same could not be settled, he could not have sought the possession. He could not have join two cause of action regarding removal of membership and possession, for, first relief jurisdiction of the Civil Court barred and thus, urged this Court for affirming the findings under challenge. 7. I have heard learned counsel for the parties and appraised the judgments and decrees of both the Courts below and of the view that findings rendered by the Lower Appellate Court are not only fallacious but perverse. On perusal of the provisions of Section 102 of 1984 Act (supra) supported the jurisdiction of the Civil Court is barred in case, any of the aforementioned situation arises as stated above. The nature of the suit is for possession of the property and the membership of the appellant had already been decided as per the awards noticed above, i.e., Ex.P2 and Ex.P3. 8. It is conceded position on record that the defendants are in illegal occupation of the aforementioned shop. Once the appellant has been held to be member and legal heir of Sewa Ram, the Lower Appellate Court ought to have upheld the findings of the trial Court. The defendants have chosen not to file the cross objection disputing the fact that possession was not based upon the title. 9. No doubt, this Court, on earlier occasions had been framing the substantial questions of law while deciding the appeals but in view of the ratio decidendi culled out by five learned Judges of the Hon’ble Supreme Court in Pankajakshi (dead) through LRs and others Vs. 9. No doubt, this Court, on earlier occasions had been framing the substantial questions of law while deciding the appeals but in view of the ratio decidendi culled out by five learned Judges of the Hon’ble Supreme Court in Pankajakshi (dead) through LRs and others Vs. Chandrika and others, [2016(2) Law Herald (SC) 877 : 2016(2) Law Herald (P&H) 1555 (SC) : 2016 LawHerald.Org 804] : AIR 2016 SC 1213 , wherein the proposition arose as to whether in view of the provisions of Section 97(1) CPC, provisions of Section 41 of the Punjab Courts Act, 1918 would apply or the appeal i.e. RSA would be filed under Section 100 of Code of Civil Procedure, so there is need to frame the substantial questions of law or not. The Constitutional Bench of Hon’ble Supreme Court held that the decision in Kulwant Kaur and others Vs. Gurdial Singh Mann (dead) by LRs and others, 2001(4) SCC 262 on applicability of Section 97(1) of CPC is not a correct law, in essence, the provisions of Section 41 of the Punjab Courts Act, 1918 had been restored back For the sake of brevity, the relevant portion of the judgment of five learned Judges of the Hon’ble Supreme Court in Pankajakshi ‘s case (supra) reads thus:- “Since Section 41 of the Punjab Act is expressly in conflict with the amending law, viz., Section 100 as amended, it would be deemed to have been repealed. Thus we have no hesitation to hold that the law declared by the Full Bench of the High Court in the case of Ganpat [ AIR 1978 P&H 137 : 80 Punj LR 1 (FB)] cannot be sustained and is thus overruled.” [at paras 27 - 29]” “27. Even the reference to Article 254 of the Constitution was not correctly made by this Court in the said decision. Section 41 of the Punjab Courts Act is of 1918 vintage. Obviously, therefore, it is not a law made by the Legislature of a State after the Constitution of India has come into force. It is a law made by a Provincial Legislature under Section 80A of the Government of India Act, 1915, which law was continued, being a law in force in British India, immediately before the commencement of the Government of India Act, 1935, by Section 292 thereof. It is a law made by a Provincial Legislature under Section 80A of the Government of India Act, 1915, which law was continued, being a law in force in British India, immediately before the commencement of the Government of India Act, 1935, by Section 292 thereof. In turn, after the Constitution of India came into force and, by Article 395, repealed the Government of India Act, 1935, the Punjab Courts Act was continued being a law in force in the territory of India immediately before the commencement of the Constitution of India by virtue of Article 372(1) of the Constitution of India. This being the case, Article 254 of the Constitution of India would have no application to such a law for the simple reason that it is not a law made by the Legislature of a State but is an existing law continued by virtue of Article 372 of the Constitution of India. If at all, it is Article 372(1) alone that would apply to such law which is to continue in force until altered or repealed or amended by a competent Legislature or other competent authority. We have already found that since Section 97(1) of the Code of Civil Procedure (Amendment) Act, 1976 has no application to Section 41 of the Punjab Courts Act, it would necessarily continue as a law in force.” 10. Therefore, I do not intend to frame the substantial questions of law while deciding the appeal, aforementioned. For the reasons aforementioned, the findings rendered by the Lower Appellate Court are set aside. The suit of appellant-plaintiff succeeds. The judgment and decree of the trial Court is restored. 11. Resultantly, the Regular Second Appeal stands allowed.