B.P. Singh & Others vs Ramesh Chandra Rai & Anr.
2012 Latest Caselaw 4487 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

?AFR
 
Court No. - 8
 

 
Case :- CIVIL REVISION No. - 96 of 2012
 

 
Petitioner :- B.P. Singh & Others
 
Respondent :- Ramesh Chandra Rai & Anr.
 
Petitioner Counsel :- Jaspreet Singh
 
Respondent Counsel :- Rakesh Pandey,S.L. Dubey
 

 
Hon'ble Saeed-Uz-Zaman Siddiqi,J.

Heard learned counsel for the revisionist as well as learned counsel for opposite party No. 1.

This revision has been preferred against the order dated 31.08.2012 passed by learned Additional Civil Judge (Senior Division), Court No. 24, Lucknow in regular suit No.252/2012 (Ramesh Chandra vs. Sarla Verma and Ors.), by which the application of the defendant, before this Court, for rejecting the plaint under Order VII Rule 11  C.P.C., has been rejected.  The said application was numbered as paper No. 16 A, in which, it was averred by the revisionists (Defendant Nos. 2 to 5), that plaintiff's father was a member of the society, who had died on 03.04.1974 and, as such, the disputed plot has been mutated in the name of plaintiff's mother. A complaint was made to the Deputy Commissioner (Housing) by one Baladutt Shetty and a suit was also instituted under Section 70 U.P. Co-operative Societies Act, in which an award was made on 22.06.2004 and the appeal against the award is pending  and; the suit is barred by time; which is also defective, because of non-impleadment of necessary parties.  That the jurisdiction of Civil Court is barred under Section 70 U.P. Co-operative Societies Act and the plaint deserves to be rejected under Order VII Rule 11 C.P.C..  The defendant filed objection 28 C. After hearing both the parties, the learned Trial Court has rejected the application and has observed that the dispute before the Civil Court does not relate to any dispute regarding membership of the society and, as such, the Court has jurisdiction to try the suit. 

A perusal of the copy of plaint contained in Annexure no. 1 shows that the suit for permanent injunction has been filed on the simplicitor ground that the plaintiff is legal owner of the suit property.  Mode of ownership has been described from para-3 to para- 7, in which all the contents have been mentioned.  The defendants are indulging in fraudulent act, as such, defendant No. 1 has again executed the subsequent sale-deed in favour of the defendant Nos. 2 to 5 and, as such, the execution was being processed and the suit was filed under Section 111 of U.P. Co-operative Societies Act.  Section 111 of the U.P. Co-operative Societies Act is reproduced below:-

Bar of Jurisdiction of court- Save as expressly provided in this Act, no civil or revenue court shall have any jurisdiction in respect of-

(a) the registration of a co-operative society or its bye-laws or of an amendment of a bye-law;

(b) the supersession or suspension of a Committee of Management.

(c) any dispute required under Section 70 to be referred to the Registrar; and

(d) any other order or award made under this Act.

In view of this provision, the Civil Court shall not have jurisdiction to try a case where registration of a Co-operative Society or its bye-laws are, in question or the subject-matter relate to supersession or suspension of Management Committee, or any dispute under Section 70 has been preferred to any order or award made under this Act.  The learned trial Court rightly observed that this is a suit relating to property dispute.

Learned counsel for the revisionist relied upon the law laid down by this court in Smt.Vidyawati and Ors. vs. XIIth Additional District Judge, Kanpur and Ors.[2007 (67) ALR 677].  This authority does not help the revisionist, as this judgment relate to a dispute when two persons were claiming to be members of the society and the validity of membership had to be decided.  Similarly, the law laid down by a Division Bench of this Court in Maqsood Khan v. A.D.J. Bulandshahar [1997 (30) ALR 416] relate to law in favour of party by the Co-operative Society, and, as such, the matter falls as a dispute under Section 70 of U.P. Co-operative Societies Act.

Learned counsel for the revisionist relied upon the law laid down by the Hon'ble Apex Court in Church of Christ Charitable Trust v. M/s. Poonniamman Educational Trust [2012 (30) LCDE 1413 (SC), in which it was held, "It is clear that in order to consider Order VII Rule 11, the Court has to look into the averments in the plaint and the same can be exercised by the trial Court at any stage of the suit.  It is also clear that the averments in the written statement are immaterial and it is the duty of the Court to scrutinize the averments/pleas in the plaint.  In other words, what needs to be looked into in deciding such an application are the averments in the plaint.  At that stage, the pleas taken by the defendant in the written statement are wholly irrelevant and the matter is to be decided only on the plaint averments.  These principles have been reiterated in Raptakos Brett & Co. Ltd. V. Ganesh Property (1998) 7 SCC 184 and Mayar (H.K) Ltd. and Others v. Owners  & Parties, Vessel M.V. Fortune Express and Others, (2006) 3 SCC 100.

Rule 11(d) shows, "Where the suit appears from the statement and the plaint to be barred in any law", the barring law, as argued by learned counsel for the revisionist  falls under Section 111 of U.P. Co-operative Societies Act, which has been reproduced above.  The dispute, as enumerated in the plaint, does not disclose dispute relating to registration of a Co-operative Society or its bye- laws, nor it relates to the supersession or suspension of Committee of Management nor against any order or award made under U.P. Co-operative Societies Act, nor it is a dispute as enumerated in Section 70 of the U.P. Co-operative Socieities Act.

As mentioned earlier, the suit is for permanent injunction by which the plaintiff has prayed that a decree for permanent injunction be granted and defendant nos. 2 to 5 be restrained from interfering in peaceful possession and enjoyment of plaintiff over the disputed plot or from entering into the premises to the said plot, in any manner whatsoever.  Ouster of jurisdiction is not to be easily inferred.  Bar of jurisdiction is to be established by cogent reasonings.  In a civil suit, plaintiff is the 'dominus litus', and the plaint can only be rejected through a meaningful-not formal-reading of the plaint.  If it is manifestly vexatious and meritless, in the sense of not disclosing a cause of action or clear right to sue, the Trial Court should exercise his power under Order VII Rule 11 C.P.C.

At this stage, it is noteworthy that, if a clever drafting has created the illusion of a cause of action, it is incumbent upon the Trial Judge to nip in the bud, at the first hearing, by examining the party searchingly under Order X C.P.C.

An application for rejection of the plaint can be filed if the allegations made in the plaint even if given face value and taken to be correct in their entirety appear to be barred by any law.  The question as to whether a suit is barred by limitation or not would, therefore, depend upon the facts and circumstances of each case.  For the said purpose, only the averments made in the plaint are relevant.  At this stage, the court would not be entitled to consider the case of the defence. (See Popat and Kotecha Property v. SBI Staff Assn.  (2005) 7 SCC 510)

In view of the fact and keeping in view of the legal angle, the impugned order is in consonance with law and need no interference.

On the other score, in view of the law laid down by a full Bench of the Hon'ble Apex Court in the case of Pandurang Dhoni Chougule vs Maruti Hari Jadhav reported in AIR 1966 SC, 153, in which it has been held, "It is well-settled that a plea of limitation or a plea of res judicata is a plea of law which concerns the jurisdiction of the Court, which tries the proceedings.  A finding on these pleas in favour of the party raising them would oust the jurisdiction of the Court, and so, an erroneous decision on these pleas can be said to be concerned with questions of jurisdiction which fall within the purview of Section 115 of the Code.  But an erroneous decision on a question of law reached by the subordinate court which has no relation to questions of jurisdiction of that Court, cannot be corrected by the High Court under Section 115.", the revision is not maintainable.

On the basis of the discussions made above, the revision is dismissed.

Order Date :- 26.9.2012

Nitesh