Punjab-Haryana High Court
M R Gupta And Ors vs Luxmi Cooperative Group Housing ... on 20 September, 2022
RSA-5029-2019 -1-
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
RSA-5029-2019 (O&M)
Date of decision: 20.09.2022
M.R. Gupta and others
....Appellants
Vs.
The Luxmi Cooperative Group Housing Society Ltd. and others
....Respondents
CORAM: HON'BLE MR. JUSTICE ARVIND SINGH SANGWAN
Present: Mr. Vaneet Soni, Advocate
for the appellants.
Mr. Aayush Gupta, Advocate
for respondent No.1.
*******
ARVIND SINGH SANGWAN, J. (Oral)
Prayer in this appeal is for setting aside the judgment and
decree dated 16.08.2019 passed by the lower appellate Court, vide which,
while allowing an appeal filed by respondent No.1-plaintiff, the order dated
28.04.2014 passed by the trial Court, rejecting the plaint, was set aside.
The question of law, involved in this appeal, is whether in view
of Section 102 read with Section 128 of the Haryana Cooperative Societies
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Act, 1984 (for short 'the Act'), the jurisdiction of the Civil Court is barred?
Learned counsel for the appellants has argued that in a suit
filed by respondent No.1-plaintiff/Society, prayer is to grant a decree of
mandatory injunction directing defendant No.1 to hand over the complete
documents with a consequential relief of declaration that conveyance deed
in favour of defendants No.1 to 3 is illegal and liable to be set aside. It is
further submitted that the appellants filed an application under Order 7 Rule
11 CPC for rejection of the plaint, as in terms of Section 102 of the Act,
jurisdiction of the Civil Court is barred. The trial Court allowed the
application, however, in appeal, the order was set aside vide impugned
judgment and decree.
In this regard, learned counsel has relied upon a judgment of
this Court passed in CWP-10560-2012 (Lakhmi Chand Vs. Financial
Commissioner and Principal Secretary to Govt. of Haryana,
Cooperation Department, Chandigarh), decided on 29.05.2012, wherein,
with regard a dispute decided by the Arbitrator under Section 102 of the
Act, this Court held that the disputed question cannot be raised in the writ
jurisdiction.
Learned counsel has also relied upon an order dated 11.12.2014
passed in CR-5838-2013 (Primary Cooperative Agricultural Rural
Development Bank Ltd. Vs. Karnail Singh), in which again the question
was whether the Civil Court has jurisdiction in view of provisions of
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Sections 102 & 128 of the Act and this Court observed that since the dispute
is with regard to allotment of the share, the Civil Court will have no
jurisdiction.
In reply, learned counsel for respondent No.1-plaintiff has
referred to para No.5 of the plaint, in which a specific plea has been taken
that the conveyance deed, which was prepared by defendants No.2 & 3, is in
fact in collusion with defendant No.1 M.R. Gupta and documents like
possession letter and NOC in favour of defendant No.2 were fraudulently
forged and fabricated by all the defendants with common intention to cheat
the plaintiff-Society. It is further submitted that since the suit is filed
challenging the action of the defendants on the basis of fraud, therefore, the
Civil Court will have jurisdiction. Learned counsel has relied upon
judgments of this Court in Jairveer Vs. Balraj and another, 2015 (9) RCR
(Civil) 68 and The Primary Cooperative Agri. and Dev. Bank Ltd. and
others Vs. Smt. Rama Rani, 2018 (4) PLR 467, wherein, while dealing
with the question of rejection of plaint under Order 7 Rule 11 CPC, this
Court held that when a suit is filed on the ground of fraud and
misrepresentation, jurisdiction of the Civil Court is not barred under Section
128 of the Act.
After hearing the counsel for the parties, I find no merit in the
present appeal, for the following reasons: -
(a) Though the trial Court allowed the application, however, the
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lower appellate Court recorded a finding that since in the civil
suit, there is pleading of fraud with regard to execution of the
conveyance deed, on the basis of certain documents, which
were prepared by the defendants in collusion with each other,
therefore, the Civil Court will have jurisdiction and the plaint is
not liable to be rejected under Order 7 Rule 11 CPC.
(b) The lower appellate Court also recorded a finding that Section
102 read with Sections 128 & 130 of the Act deals with
reference of the dispute to an Arbitrator and regarding bar of
jurisdiction of the Courts, however, nothing is stated under
Section 128 of the Act that jurisdiction of the Civil Court will
be barred, if a suit is filed on the basis of fraud.
(c) There is no dispute with regard to judgments relied upon by
learned counsel for the petitioner. The judgment in Lakhmi
Chand's case (supra) is not relevant to facts of the present
case, as it was a case arising out of arbitration dispute, in which
this Court held that writ jurisdiction cannot be invoked on
disputed facts. In Karnail Singh's case (supra), again this
Court held that in the suit, there is no pleading of fraud,
therefore, the plaint is liable to be rejected. However, to the
contrary, this Court finds that judgments in Jairveer's case
(supra) and Smt. Rama Rani's case (supra) are directly
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applicable to facts of the present case.
(d) Needless to say that at the stage of deciding the application
under Order 7 Rule 11 CPC, the Court is primarily to see the
pleadings in the plaint or the documents attached with the
plaint. In para No.5 of the plaint, it is specifically pleaded that
conveyance deed has been executed in favour of defendant
No.2 by playing fraud. Therefore, question of law is decided in
favour of respondent No.1-plaintiff.
In view of the reasons recorded above, finding no illegality or
infirmity with the impugned judgment and decree passed by the lower
appellate Court, present appeal is dismissed.
[ ARVIND SINGH SANGWAN ]
JUDGE
20.09.2022
vishnu
Whether speaking/reasoned : Yes/No
Whether reportable: Yes/No
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