Shri Girdhari Lal (Deceased) ... vs Ms.Nivedita Mane & Ors.
2011 Latest Caselaw 2090 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

%                              Date of Judgment: 19.4.2011


+      RSA No.220/2007 & CM Nos.12559/2005, 14676/2005


       SHRI GIRDHARI LAL (DECEASED) THROUGH LRS.
                                          ...........Appellant
                Through: Mr.J.P.Sengh,     Sr.Advocate with
                           Mr.Vivek Sharma, Advocate.
                Versus

       MS.NIVEDITA MANE & ORS.                   ..........Respondents

                   Through:    Mr.S.K.Kaushik, Advocate for R-2.
                               Mr.K.B.Rastogi    and      Mr.Mahesh
                               Kasana, Advocates for R-4.

       CORAM:
       HON'BLE MS. JUSTICE INDERMEET KAUR

     1. Whether the Reporters of local papers may be allowed to
        see the judgment?

     2. To be referred to the Reporter or not?               Yes

     3. Whether the judgment should be reported in the Digest?
                                                          Yes

INDERMEET KAUR, J. (Oral)

RSA No.220/2007

1. Admit.

2. Following is the substantial question of law:

Whether the findings in the impugned judgment dated

23.7.2005 are perverse? If so, its effect ?

3. This appeal has impugned the judgment and decree dated

23.7.2005 which had endorsed the finding of the trial judge dated

10.12.2003 whereby the suit filed by the plaintiff Girdhari Lal

seeking a permanent injunction against the defendants had been

dismissed; the plaint had been rejected under Order VII Rule 11 of

the Code of Civil Procedure (hereinafter referred to as 'the Code')

4. The facts as emanating are:-

i. R.S.Mane was the father-in-law of defendant no.1. He was

allotted a flat by defendant no.2 (Cooperative Group Housing

Society). R.S.Mane had sold this plot to defendant no.4

namely Rajan Gupta. Plaintiff in turn had purchased this

plot from Rajan Gupta. This was on 18.6.1991. Thereafter

defendant no.1 who is the daughter-in-law of R.S.Mane

started threatening the plaintiff qua dispossession from the

aforenoted suit flat. She being a member of parliament, the

plaintiff had apprehended threat from her. Present suit was

accordingly filed.

ii. After filing of written statement, an application under

Order VII Rule 11 of the Code had been filed by the

defendants. The contention was that under Sections 60 and

90 of Delhi Cooperative Societies Act 1972 (hereinafter

referred to as 'the DCSA') suit of such a nature is not

maintainable; it can only be tried by the Registrar of

Societies. The averments made in the said application had

been accepted; both the Courts below were of the view that

the plaint is liable to be rejected and it was accordingly

rejected.

5. This is a second appeal. It is yet at the stage of admission.

Learned counsel for the appellant has placed reliance upon a

judgment of this Court reported in AIR 1976 Delhi 299 Chander

Nagar Co-operative House Building Society Ltd. Vs. Ashok Ohri to

substantiate his submission that the provision of Section 60(2) of

the DCSA are exhaustive and not illustrative; only those disputes

which have been enumerated in clause-2 of Section 60 of the

DCSA, the Registrar is competent to decide those disputes; all

other disputes would fall within the domain of the Civil Court.

6. Arguments have been rebutted.

7. Bare reading of Section 60(2) of the DCSA shows that there

are three sub-clauses which make a reference to disputes touching

the constitution, management and business of a cooperative

society. Present suit is a suit for permanent injunction. The

averments made in the plaint have been perused. Plaintiff had

sought permanent injunction against the defendants restraining

them from dispossessing him and not to interfere with his peaceful

possession of the suit property. His averment was that he is in

possession of the suit property.

8. The dispute raised by the plaintiff is prima facie not covered

under Section 60(2)(b) of the DCSA; the plaint could not have been

rejected without permitting the parties to adduce evidence as a

prima facie reading of the averments made in the plaint would not

oust the jurisdiction of the Civil Court. In view thereof, this is a fit

case for remand.

9. It is accordingly remanded back to learned District &

Sessions Judge (Central) with a direction to assign the case to the

concerned civil judge who will decide the same on its merits and in

accordance with law. For the said purpose, the parties are

directed to appear before the learned District & Sessions Judge

(Central) on 26.4.2011 at 10.30 PM. Appeal is disposed off.

10. Record be returned.

CM Nos.12559/2005, 14676/2005

11. Applications are dismissed being infructuous.

APRIL 19, 2011                             INDERMEET KAUR, J
nandan