Sh. Ram Prasad vs Sh. Mohan Lal And Ors.
2006 Latest Caselaw 875 Del

JUDGMENT

Swatanter Kumar, J.

1. A simple but interesting question of law falls for consideration before the Court in the present appeal. The suit of the plaintiff for partition was dismissed by the learned Trial Court on the ground that the subject matter of the suit was covered by Section 60 of the Delhi Cooperative Societies Act, 1972, (hereinafter referred to as 'the Act') and while rejecting the plaint under Order 7 Rule 11 of the Code of Civil Procedure (for short 'CPC'), dismissed the suit with costs. It is contended that this approach of the learned Trial Court is contrary to the settled principles of law. Thus, the question arises, whether the bar of Section 60 of the Act was attracted in the facts and circumstances of the present case?

2. Parties to the suit are brothers. They all were living at House No. 43, Suraj Nagar, Delhi. According to the plaintiff, the plot was purchased and construction was raised thereupon by the father of the parties. It is submitted that these constructions included shops, godowns etc. and there were even tenants in the said property. After the death of Sh. Munshi Lal (father of the parties), the parties along with their mother started residing in the property and the mother became a co-owner along with the other legal heirs of the deceased-father. After the death of the mother, the plaintiff and the defendants became the co-owners in equal shares i.e. to the extent of 1/3rd share. It is submitted that though, the defendants had been Realizing the rent from different tenants even during the lifetime of their mother, however, they did not give any money to the plaintiff. Earlier, the plaintiff had filed a suit and as certain new developments occurred and further facts came to the knowledge of the plaintiff, he filed the present suit for partition taking into consideration the averments which were made by the defendants in their written statement filed by them in the earlier suit. According to the plaintiff, he is entitled to 1/3rd share as a co-owner of the property left by his late father but as the defendants were not giving any share to him nor were they giving any benefits of the property including the rents collected by them earlier, the plaintiff has filed the present suit with the following prayers:

It is, therefore, prayed that a decree for partition be passed in favor of the plaintiff and against the defendants in the following manner

i) A preliminary decree be passed in respect of 1/3 share to the plaintiff out of the entire suit property.

ii) A local commissioner be appointed or architect may be appointed who may be directed to visit the suit property and to suggest appropriate mode of partition of property amongst the plaintiff and the defendants.

iii) Or in case the property is not partitionable and in that event the property be ordered to be sold in open auction and the money so recovered by sale of the house be ordered to be divided amongst the plaintiff and the defendants in equal share i.e. 1/3 each.

The cost of the suit be also awarded or any other relief which this Hon'ble Court may deem fit and proper in the circumstances of the case be awarded.

3. The defendants filed the written statement on 11.9.1995 taking various preliminary objections including that no cause of action had arisen against the defendants and in favor of the plaintiff; the plaintiff had not come to the court with clean hands and the suit was bad for non-joinder of parties as 'The Low Income Friends Co-operative House Building Society Ltd.' was a necessary party. The defendants denied to state as to how the property was purchased. It was also denied that the plaintiff had never resided in the said property. The defendants stated that the defendant No. 2 was carrying on the business of tailoring in one of the shops during the lifetime of Sh. Munshi Lal with his wish and will. They were nominated and after his death on 5.10.1980, the defendants approached the society for transfer of shares. The Society after verifying the documents on 26.7.1980 transferred the shares in the joint name of the defendants and on the date of filing of the suit, the property had not been mutated in their names. Thus, it was stated that the defendants were in no way interested in the welfare of the family, and had not even bothered to check-up on their mother during her lifetime and in these circumstances it was submitted that the suit be dismissed.

4. During the pendency of the suit, the defendants then filed an application under Order 7 Rule 11 on 24.1.1996 stating that the plot No. 43 in the layout plan of the Society was allotted to Sh. Tarsem Lal. Later on he transferred his plot and his membership in the Society in the name of Sh. Munshi Lal, father of the defendants and thereafter the share has been transferred in the name of the defendants after the death of their father. It is stated that in view of the provisions of Section 60 of the Act, the suit was barred and thus, the same be dismissed. Reply to this application was filed. The learned Trial Court vide its judgment and order dated 13.8.1996 allowed this application and as already noticed, the suit of the plaintiff was dismissed. The Trial Court concluded as under:

I have gone through the provisions of said Act and considered the citation of counsel for defendant. The provisions of the Delhi Co-operative Societies Act expressly bar this suit because the subject matter in suit is covered by Section 60 of the said Act. The citations are also direct on this point and the same apply to this case. So, I find no force in the contentions of counsel for the plaintiff and I accept the arguments of counsel for defendant and I hold that suit is barred by the provisions of the said Act.

7. In view of the above observations finding suit barred by express provisions of law, the Delhi Co-operative Societies Act, 1972, I hereby reject the plaint and the suit is accordingly dismissed with costs. Decree sheet be prepared and file be consigned to record room.

5. The above order of the Trial Court is impugned in the present appeal. The learned Counsel appearing for the appellant contended that the suit was one of simplicitor partition of the property and was maintainable; the subject matter of the suit was not covered under the provisions of Section 60 of the Act and it was argued that the learned Trial Court has fallen in error of law in arriving at the above conclusion and the judgment of the Trial Court is liable to be set aside.

6. On the other hand, the learned Counsel appearing for the respondents while relying upon a judgment of the Calcutta High Court in the case of Kusum Debi Jhinjhani v. Pushpa Devi Khurda 1991 Co-op. Cases 148 and the judgment of the Supreme Court in the case of A.V.R. & Co. and Ors. v. Fairfield Co-operative House Society Ltd. and Ors. argued that as the share in the society, which was in the name of the deceased-father of the parties, had been transferred in favor of the defendants, it could not be challenged in the suit before a civil court being a subject matter covered under Section 60 of the Act and as such the present suit was barred.

7. The language of Section 60 of the Act is very wide. It is stated that notwithstanding anything contained in any law for the time being in force, any dispute touching the constitution, management or the business of a Co-operative Society, other than a dispute regarding disciplinary action by the Society against its employee, would be referable to the Registrar for decision and no court shall have jurisdiction to entertain any suit or other proceedings in respect of such disputes. Sub-section (2) of Section 60 then proceeds to enumerate as to what kind of disputes would be deemed to be disputes touching the constitution, management or the business of a co-operative society. Section 93 of the Act further provides that no civil or revenue court shall have any jurisdiction in respect of any dispute required under Section 60 of the Act and has to be referred to the Registrar. The Supreme Court in the case of A.V.R. & Co. and Ors. (supra) while dealing with a case where the suit was to evict a member and persons unauthorisedly inducted by him as licensees from the allotted flat, held that such a dispute was covered under the provisions of Maharashtra Co-operative Societies Act and the Court under the Rent Control Act had no jurisdiction to entertain such a dispute. This preposition of law that the disputes as contemplated under Section 60 of the Act cannot be decided by the Court of Civil Jurisdiction and would be referable to the Registrar alone in accordance with the provisions of the Act, can hardly be disputed. What the court has to examine is whether the dispute and prayer before the Civil Court is squarely covered under the provisions of Section 60 of the Act or not. The Supreme Court also held that the dispute between the Co-operative Society and non-member claiming through the member, would not offend Articles 14 and 19 of the Constitution. But the essence of dispute in that case was between a member of the Society who was alive and certain unauthorised occupants inducted by him in the premises, allotted to him by the society and in those circumstances it was held that the dispute was referable to the Registrar, and the Rent Controller Court would have no jurisdiction. Similarly, in the judgment of the Calcutta High Court the dispute raised was with regard to nomination made by the deceased-Member. There was no claim for partition much less exclusively for partition.

8. Nature of the dispute and relief claimed by a party would be the basis for determination of such a question. We have already referred to the prayer made by the plaintiff in the suit before the Civil Court. As far as the suit for declaration, giving claim of title where even indirectly question of nomination may arise, is stated to be pending between the parties as mentioned by the defendants in the application filed by them under Order 7 Rule 11 of the CPC. In the present case, the prayer simplicitor is that the suit be partitioned to the extent of 1/3rd share wherein the defendants may raise a defense of their being the exclusive owners and a suit for partition may be liable to be dismissed or may be decreed by the court, depending on the evidence led by the parties. But the court certainly could not dismiss the suit as being barred. The relief claimed in the plaint does not in any way fall within the ambit and scope of Section 60 of the Act. The letter of the Society dated 27.7.1997 has not been questioned by the plaintiff. If the correctness of that order was raised in the suit, then probably the view taken by the learned Trial Court could be correct. The Civil Court has to decide the lis pending before it with reference to the facts stated in the plaint and particularly the relief claimed. The entire plaint does not refer to the Act of the Society and in the prayer clause no relief is claimed directly or indirectly against the society. In the present appeal we are not concerned with the other litigations pending between the parties or whether the order of the Society has been questioned by the plaintiff under the provisions of the Act and what is its status. We are also not concerned with the fact that whether the suit was likely to be dismissed by the Trial Court after trial on merits. The view of the Trial Court that the suit was barred by the provisions of Section 60 of the Act, at this stage of the suit, does not appear to us to be in consonance with the scheme of the Act and the jurisdiction of the civil court. Dismissal of a suit on merits would be entirely a different matter but dismissal of a suit on the ground of it being barred by law is controlled and governed by different cannone of law. The prayer made by the plaintiff in the suit does not appear to be ex facie hit by the bar of Section 60 of the Act. The suit as framed and the prayer made in the suit would not justify rejection of the plaint under the provisions of Order 7 Rule 11 of the CPC on the stated grounds.

9. For the reasons afore-stated, we would set aside the judgment and decree of the Trial Court and remand the case to the Trial Court for fresh its adjudication in accordance with law. The parties are directed to appear before the learned Trial Court on Original records of the Trial Court will be returned to the Trial Court. However, in the facts and circumstances of the case, we would leave the parties to bear their own costs.