Delhi High Court
Mohit Bhandari & Ors vs Bharti Makhija & Ors on 19 May, 2010
Author: G. S. Sistani
11.
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ RFA 457/2010
% Judgment delivered on 19th May, 2011
MOHIT BHANDARI & ORS ..... Appellants
Through : Ms. Gitanjali Malviya, Adv.
versus
BHARTI MAKHIJA & ORS ..... Respondents
Through : Ms. Sonali Malhotra, Adv.
CORAM:
HON'BLE MR. JUSTICE G.S. SISTANI
1. Whether reporters of local papers may be allowed to see the
Judgment?
2. To be referred to the Reporter or not?
3. Whether the Judgment should be reported in the Digest?
G.S. SISTANI, J. (ORAL)
1. Petitioners are aggrieved by the Judgment and decree dated
11.03.2010, whereby the learned trial court directed the appellants
to hand over possession of the flat bearing no.120, Swayam Sewa
Cooperative Group Housing Society, Jhilmil Colony to the
respondents. Further, the trial court has also directed the
appellants to pay damages @ Rs. 50,000/-.
2. Brief facts necessary to be noticed in the present appeal are that
the respondents had filed a suit for possession, under Section 6 of
Specific Relief Act, damages and permanent injunction with respect
to flat bearing no.120, Swayam Sewa Cooperative Group Housing
Society, Jhilmil Colony (hereinafter referred to as "suit property"),
consisting of one room set on the ground floor and one room set on
the first floor, against the appellants herein. The respondents have
claimed themselves to be the owners of the suit property.
3. The learned trial court has noticed that the suit property was
allotted to one Smt. Sushila, who was defendant no.3 before the
trial court, against her membership no.332/2895 vide allotment
letter number 173 dated 30.11.2000. Smt. Sushila sold the suit
property to one Sh. Mohit Bhandari, (arrayed as defendant no.1
before the trial court), for a consideration of Rs. 1.20 lakhs. Various
documents including agreement to sell, an irrevocable GPA which
was registered in the office of Sub-Registrar VIII, a Special Power of
Attorney, a receipt of sale consideration, a Will, an Indemnity Bond
alongwith with Possession Letter was executed by appellant no.3
herein in favour of appellant no.1 herein. A letter was also sent to
the Secretary of the said Cooperative Society informing about the
sale.
4. Subsequently, appellant no.1, Mr. Mohit Bhandari, sold the suit
property to the respondents (plaintiffs before the trial court) for a
sale consideration of Rs.1.50 lakhs by means of an Agreement to
Sell dated 25.10.2006. An irrevocable GPA which was registered in
the office of Sub-Registrar VIII New Delhi, a receipt of consideration,
a possession letter, Will, and affidavits were executed by the
appellant in favour of the respondents. Thereafter appellant no.1
in order to grab the property back in connivance with appellant
no.3 filed a suit for permanent injunction against the respondents
and their husbands which was dismissed by the trial court.
Subsequently it is alleged that appellant no.1 in connivance with
other appellants succeeded in trespassing on the ground floor of
the suit property and locked the same. In these circumstances,
respondents were compelled to file a suit for recovery of
possession, damages and permanent injunction. The appellants
were proceeded ex parte on 07.02.2008. Subsequently an
application under Order IX Rule 7 CPC was filed by the appellants
for setting aside the ex-parte order which was dismissed vide order
dated 11.11.2009. Subsequently, the appellants filed another
application for rejection of plaint under Order VII Rule 11 CPC
alleging that the suit is not maintainable in view of section 60 of
the Delhi Co-operative Societies Act which was dismissed.
Thereafter a decree dated 11.03.2010 was passed by the learned
trial court, decreeing the suit of the respondents, which has led to
the passing of the judgment and decree dated 11.3.2010.
5. Learned counsel for respondents has raised a preliminary objection
with regard to the maintainability of the present appeal relying on
Sub-Section (3) of Section 6 of the Specific Relief Act, which reads
as under:
"6. Suit by person dispossessed of immovable property.-
(3) No appeal shall lie from any order or decree passed in
any suit instituted under this section, nor shall any review of
any such order or decree be allowed."
6. I have heard the counsel for the parties and have perused the
impugned judgment.
7. The Apex Court in the case of Sanjay Kumar Pandey v. Gulbahar
Sheikh, reported at(2004) 4 SCC 664, while dealing with the
question of finality of judgment/decree under section 6 of Specific
Relief Act opined as under:
"A suit under Section 6 of the Act is often called a summary
suit inasmuch as the enquiry in the suit under Section 6 is
confined to finding out the possession and dispossession within
a period of six months from the date of the institution of the
suit ignoring the question of title. Sub-section (3) of Section 6
provides that no appeal shall lie from any order or decree
passed in any suit instituted under this section. No review of
any such order or decree is permitted. The remedy of a person
unsuccessful in a suit under Section 6 of the Act is to file a
regular suit establishing his title to the suit property and in the
event of his succeeding he will be entitled to recover
possession of the property notwithstanding the adverse
decision under Section 6 of the Act. Thus, as against a
decision under Section 6 of the Act, the remedy of
unsuccessful party is to file a suit based on title. The remedy
of filing a revision is available but that is only by way of an
exception; for the High Court would not interfere with a decree
or order under Section 6 of the Act except on a case for
interference being made out within the well-settled
parameters of the exercise of revisional jurisdiction under
Section 115 of the Code".
8. In view of the law laid down by the Apex Court, it is clear that Sub-
section (3) of Section 6 of the Specific Relief Act clearly bars an
appeal from any decree or order passed under Section 6(3). Since
the decree in the instant case is under Section 6 of the said Act, an
appeal does not lie. The counsel for appellant has failed to satisfy
this court as to how the present appeal is maintainable.
Accordingly, I find force in the submission of the counsel for the
respondents and the appeal is dismissed as not maintainable.
CM NO.12172/2010.
9. Application stands dismissed in view of the order passed in the
appeal.
G.S. SISTANI, J.
MAY 19, 2011
'msr'
