Himachal Pradesh High Court
M/S Shivalik Co-Operative ... vs Smt. Kavita Devi & Others on 23 July, 2021
Bench: Tarlok Singh Chauhan
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
RSA No. 232 of 2015 a/w RSA No. 233
of 2015, RSA No. 235 of 2015 and RSA
.
No. 389 of 2018
Date of decision: 23.07.2021
RSA No. 232 of 2015
M/s Shivalik Co-operative Housing Building Society Ltd.
.....Appellant/Respondent/Plaintiff.
Versus
Smt. Kavita Devi & Others
....Respondents/Appellants/Defendants.
RSA No. 233 of 2015
M/s Shivalik Co-operative Housing Building Society Ltd.
r .....Appellant/Respondent/Plaintiff.
Versus
Smt. Kavita Devi & Others
....Respondents/Appellants/Defendants.
RSA No. 235 of 2015
M/s Shivalik Co-operative Housing Building Society Ltd.
.....Appellant/Respondent/Plaintiff.
Versus
Smt. Kavita Devi & Others
....Respondents/Appellants/Defendants.
RSA No. 389 of 2018
M/s Shivalik Co-operative Housing Building Society Ltd.
.....Appellant/Respondent/Plaintiff.
Versus
Smt. Kavita Devi & Others
....Respondents/Appellants/Defendants.
Coram
The Hon'ble Mr. Justice Tarlok Singh Chauhan, Judge.
Whether approved for reporting ?1 No
1 Whether reporters of Local Papers may be allowed to see the Judgment ?Yes
::: Downloaded on - 26/07/2021 20:12:23 :::HCHP
2
For the Appellant/Respondent
/Plaintiff(s) :Mr. G. D. Verma, Sr. Advocate with
Mr. Romesh Verma, Advocate.
.
For the Respondents :Ms. Devyani Sharma, Advocate, for
respondent No. 1 in RSA No. 232 of
2015, RSA No. 233 of 2015 and RSA
No. 235 of 2015.
Mr. R. K. Gautam, Sr. Advocate with
Ms. Megha Kapur Gautam, Advocate,
for respondents No. 2 to 7 in RSA No.
232 of 2015, respondents No. 2 and 4
in RSA No. 235 of 2015 and
respondents No. 2, 4(a) and 4(c)-i to
4(c)-(iii and 5 to 7 in RSA No. 389 of
2018.
Mr. Sanjeev Kuthiala, Sr. Advocate
with Ms. Anaida Kuthiala, Advocate,
for respondents No. 6, 7 and 8(i) to
8(iv) in RSA No. 233 of 2015.
Mr. Vivek Singh Thakur, Advocate, for
respondents No. 2 to 5 in RSA No.
233 of 2015.
(Through Video Conferencing)
Tarlok Singh Chauhan, Judge (Oral)
CMP No. 4850 of 2021 in RSA No. 232 of 2015,
CMP No. 4851 of 2021 in RSA No. 233 of 2015,
CMP No. 4852 of 2021 in RSA No. 235 of 2015
& CMP No. 4736 of 2021 in RSA No. 389 of 2018
Since the prayer made in all these applications is the
same, therefore, they are taken up together for consideration and
are being disposed of by way of a common reasoning.
2. The instant applications have been filed by the appellant
under Order 23 Rule 1 CPC read with Section 151 CPC and Order 1
.
Rule 10 CPC for withdrawal/abandonment of claim against
respondent No. 1 Smt. Kavita Devi.
3. The plaintiff is the appellant, who filed a suit for Specific
Performance of Agreement and for declaration that the Sale Deed
No. 1524, dated 28.06.2004, is wrong, null and inoperative. It is averred
that the appellant entered into an agreement to purchase suit land
comprised in Khata Khatauni No. 27/27, bearing Khasra No. 498,
measuring 3 bigha 17 biswas situated in the area of village Katha,
Pargna Dharampur, Tehsil Nalagarh, District Solan with deceased
Harnam Singh and Kanshi Ram on 31.07.1990 for a sale consideration
of Rs. 1,34,750/-. Respondent No. 4 Shri Kanshi Ram received the entire
sale consideration and put the appellant in possession of the suit
property. The owners at that time also executed and got registered
general power of attorney on 09.04.1991 with respect to the suit land
in favour of respondent No. 5 i.e. Gurdass Singh to execute the sale
deed of the suit land in favour of the appellant as and when the
Society i.e. the present appellant would ask for the same.
4. Respondent No. 4 through respondent No. 5 executed
the sale deed on 28.06.2004 vide sale deed No. 1524 in favour of
respondent No. 1 for a part of the land measuring 1 bigha 19 biswas
of the aforesaid land.
.
5. This led to filing of the suit for Specific Performance of
Agreement and for declaration and in alternative for damages
before the learned Trial Court and the same was decreed vide
judgment and decree dated 17.12.2011 and the sale deed No. 1524,
dated 28.06.2004 was declared wrong, illegal, null and void and the
appellant was held entitled to the claim of Specific Performance of
Contract.
6. Against the aforesaid judgment and decree, respondent
No. 1 alone filed an appeal and the same was partly allowed. The suit
of the appellant for Specific Performance and agreement was
dismissed and the sale deed No. 1524, dated 28.06.2004 was held to
be legal and valid, however, the appellant was held entitled to a sum
of Rs. 1,34,750/- alongwith interest @ 6% from respondents No. 2 to 4
(defendants No. 1 to 3) from the date of filing of the suit. It is averred
that defendant No. 5-Kavita Devi, who had been impleaded as
respondent No. 1 in the appeal, negotiated with the appellant-
Society for an amicable settlement of the dispute. She had already
paid a total sum of Rs. 5,25,677/- to the appellant-Society in the
month of December, 2020 against the receipt.
7. The appellant-Society in its meeting of the Managing
Committee held on 13.12.2020 has decided to withdraw the claim
.
against respondent No. 1-Kavita Devi and it is prayed that the appeal
against respondent No. 1- Kavita Devi may be permitted to be
withdrawn and her name may be ordered to be deleted from the
array of the respondents.
8. As observed earlier, the suit filed by the appellant had
been decreed by the learned Trial Court and it was only respondent
No. 1 Kavita Devi, who alone had filed an appeal and contested the
same before the learned Appellate Court, meaning thereby, that the
judgment and decree passed by the learned Trial Court against the
remaining respondents i.e. other than respondent No. 1-Kavita Devi,
had attained finality.
9. Therefore, once the appellant, in view of the
compromise, is to withdraw the claim against respondent No. 1, then,
obviously nothing remains to be adjudicated by this Court for the
decree against the remaining respondents i.e. other than respondent
No. 1-Kavita Devi, as observed above, had already attained finality.
10. It needs to be noticed that respondent No. 1-Kavita Devi,
despite repeated attempts made by the learned Counsel, has failed
to impart instructions. Consequently, this Court is left with no other
options but to allow all these applications for
withdrawal/abandonment of the claim against respondent No. 1-
Kavita Devi.
.
RSA No. 390 of 2018
Delink.
RSA No. 232 of 2015 a/w RSA No. 233 of 2015,
RSA No. 235 of 2015 and RSA No. 389 of 2018
11. Since, the appellant and respondent No. 1-Kavita Devi
have compromised the matter, the appeals are disposed of as
having been compromised, as against the appellant and respondent
No. 1-Kavita Devi. As regards the other respondents, it is made clear
that since they have not appealed against the judgment and decree
passed by the learned Trial Court and the same has attained finality,
therefore, these respondents shall be bound by the judgment and
decree for all times to come and in case any thing remains to be
executed in terms of the judgment and decree of the trial court, then
it shall always be open to the appellant to execute the same against
all the respondents except respondent Kavita Devi.
( Tarlok Singh Chauhan )
23rd July, 2021 Judge
(sanjeev)
