Madhya Pradesh High Court
Usman Kha vs Sinchai Vibhag Karmchari Grah Nirman ... on 21 July, 2025
Author: Gurpal Singh Ahluwalia
Bench: G. S. Ahluwalia
NEUTRAL CITATION NO. 2025:MPHC-GWL:15037
1 SA-217-2015
IN THE HIGH COURT OF MADHYA PRADESH
AT GWALIOR
BEFORE
HON'BLE SHRI JUSTICE G. S. AHLUWALIA
ON THE 21 st OF JULY, 2025
SECOND APPEAL No. 217 of 2015
USMAN KHA
Versus
SINCHAI VIBHAG KARMCHARI GRAH NIRMAN SAHKARI SANSTHA
DIST. SHEOPUR THR. AND OTHERS
Appearance:
Shri Ravindra Sarvate - Advocate for the appellant.
ORDER
This second appeal under Section 100 of C.P.C. has been filed against the
judgment and decree dated 17/04/2015 passed by First Additional District Judge,
Sheopur in Regular Civil Appeal No.23A/2015 as well as judgment and decree
dated 21/06/2013 passed by Civil Judge Class I, Sheopur in Civil Suit
No.17A/2010.
2. Plaintiff/appellant had filed a civil suit for mandatory injunction on the
ground that Survey No.260 area 2 Bigha, Survey No.261 area 4 Bigha and 3
Biswa, Survey No.262 area 2 Bigha and Survey No.283 area 10 Biswa total 8
Bigha 13 Biswa of land was allotted to defendant society and the plaintiff had also
deposited an amount of Rs.5,000/- with the society for the allotment of plot.
3. It is the case of plaintiff that defendant has started allotting the plot to the
outsiders, which is contrary to the Rules and Regulations of Co-operative
Societies Act. Plaintiff is ready and willing to deposit the amount, which shall be
fixed by defendant.
4. It was also mentioned that in judgment dated 11/11/2009 passed by
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District Court, Sheopur in Appeal No.13A/2009, it has been mentioned that the
provisions of Section 94 of Co-operative Societies Act are not applicable and the
suit is maintainable. However, during the course of arguments, counsel for
appellant fairly conceded that the suit is not maintainable in the light of Section
82 of Co-operative Societies Act and could not point out any circumstances,
which may bring the suit within the purview of law laid down by the Supreme
Court in the case of Dhulabai Vs. State of M.P. & Anr. reported in AIR 1969
Supreme Court 78.
5. Accordingly, counsel for appellant seeks permission of this Court to
withdraw the suit with liberty to avail the alternative remedy by approaching the
concerning authorities under Section 64 of Co-operative Societies Act.
6. Considered the submissions made by counsel for appellant.
7. The Supreme Court in the case of Dhulabai (supra) has held as under:-
"32. Neither of the two cases of Firm of Illuri Subayya or Kamla Mills
can be said to run counter to the series of cases earlier noticed. The
result of this inquiry into the diverse views expressed in this Court may
be stated as follows:
(1) Where the statute gives a finality to the orders of the special
Tribunals the civil courts' jurisdiction must be held to be excluded if
there is adequate remedy to do what the civil courts would normally do
in a suit. Such provision, however, does not exclude those cases where
the provisions of the particular Act have not been complied with or the
statutory Tribunal has not acted in conformity with the fundamental
principles of judicial procedure.
(2) Where there is an express bar of the jurisdiction of the court, an
examination of the scheme of the particular Act to find the adequacy or
the sufficiency of the remedies provided may be relevant but is not
decisive to sustain the jurisdiction of the civil court. Where there is no
express exclusion the examination of the remedies and the scheme of
NEUTRAL CITATION NO. 2025:MPHC-GWL:15037
3 SA-217-2015
the particular Act to find out the intendment becomes necessary and the
result of the inquiry may be decisive. In the latter case it is necessary to
see if the statute creates a special right or a liability and provides for the
determination of the right or liability and further lays down that all
questions about the said right and liability shall be determined by the
Tribunals so constituted, and whether remedies normally associated
with actions in civil courts are prescribed by the said statute or not.
(3) Challenge to the provisions of the particular Act as ultra vires
cannot be brought before Tribunals constituted under that Act. Even the
High Court cannot go into that question on a revision or reference from
the decision of the Tribunals.
(4) When a provision is already declared unconstitutional or the
constitutionality of any provision is to be challenged, a suit is open. A
writ of certiorari may include a direction for refund if the claim is
clearly within the time prescribed by the Limitation Act but it is not a
compulsory remedy to replace a suit.
(5) Where the particular Act contains no machinery for refund of tax
collected in excess of constitutional limits or illegality collected a suit
lies.
(6) Questions of the correctness of the assessment apart from its
constitutionality are for the decision of the authorities and a civil suit
does not lie if the orders of the authorities are declared to be final or
there is an express prohibition in the particular Act. In either case the
scheme of the particular Act must be examined because it is a relevant
enquiry.
(7) An exclusion of the jurisdiction of the civil court is not readily to be
inferred unless the conditions above set down apply."
8. Thus, it is clear that when there is an express bar, then the civil suit can
be maintained on the limited grounds. According to the plaintiff/appellant
himself, the aforesaid limited grounds are not available, therefore, he sought
permission of this Court to withdraw this appeal as well as Civil Suit
No.17A/2010, which was decided by judgment and decree dated 21/06/2013
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4 SA-217-2015
passed by Civil Judge Class I, Sheopur with liberty to avail the alternative
remedy.
9. In view of bar as contained under Section 82 of Co-operative Societies
Act, the permission sought by counsel for appellant to withdraw the civil suit
itself appears to be bona fide .
10. Accordingly, Civil Suit No.17A/2010 filed by appellant/plaintiff,
which was decided by judgment and decree dated 21/06/2013, is permitted to be
withdrawn.
11. As a consequence thereof, the judgment and decree dated 17/04/2015
passed by First Additional District Judge, Sheopur in Regular Civil Appeal
No.23A/2015 is also hereby set aside.
12. The liberty sought by appellant to approach the competent authority
under Section 64 of Co-operative Societies Act is hereby granted.
13. With aforesaid observation, this appeal is finally disposed of.
(G. S. AHLUWALIA)
JUDGE
PjS/-
