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[Cites 8, Cited by 0]

Delhi District Court

Smt. Vidya Devi vs Panchdeep Co­Operative Group Housing on 30 August, 2010

      ''IN THE COURT OF MS. GOMATI MANOCHA, CIVIL
       JUDGE (NORTH­03), TIS HAZARI COURTS, DELHI''


SUIT NO. 344/92


UNIQUE CASE ID  NO.


SMT. VIDYA DEVI
W/O SH. RAM DITTA MAL
R/O HOUSE NO. 20, PANCHDEEP SOCIETY
ESI VIKASPURI
NEW DELHI  
                                                                      .............PLAINTIFF


         VERSUS


1. PANCHDEEP CO­OPERATIVE GROUP HOUSING
    SOCIETY LTD. , VIKASPURI, NEW DELHI


2. SH. O.P PURI, PRESIDENT, PANCHDEEP CO­OP.
    GROUP HOUSING SOCIETY LTD. 
    R/O HOUSE NO. 36 OF THE SAID SOCIETY


3. SH. RAJ KUMAR MUDGAL, SECRETARY 
    R/O HOUSE NO. 34 OF THE SAID SOCIETY
    VIKASPURI, NEW DELHI                     
                                                                         ............DEFENDANTS


Date of institution                        :­ 20.07.1992
Date of reserving judgment :­ 20.08.2010
Date of pronouncement                      :­ 31.08.2010

Suit no. 244/92                                                                  Page 1 of 12
        SUIT FOR PERMANENT INJUNCTION AND 
               MANDATORY INJUNCTION


JUDGMENT

1. The plaintiff filed the present suit against the defendants praying for a decree of permanent injunction in favour of the plaintiff and against the defendants with costs of the suit thereby restraining the defendants, their agents, officer bearers and associates etc. from constructing any wall in front of the door of the of the property of the plaintiff bearing flat no. 20, ground floor, Panchdeep Co­operative Group Housing Society Ltd, Vikaspuri, New Delhi. She has also prayed that the defendants be also restrained from removing the ceiling fan of the plaintiff as shown red in the site plan and from causing any interference in the peaceful use and enjoyment of the said flat by the plaintiff. She has also sought a decree of mandatory injunction seeking direction to the defendants to demolish the wall in case they succeed to construct the same between the gap of filing the suit and grant of injunction. She further prayed that the defendants be ordered by a decree of mandatory injunction, to remove the illegal and unauthorized wall raised by them during the pendency of the suit and to restore the position at site as it stood prior to passing of the Suit no. 244/92 Page 2 of 12 order dated 04.08.1992.

2. Brief facts relevant for adjudication of the plaintiff's case are that the plaintiff is a registered member of Panchdeep Co­operative Group Housing Society Ltd. and she was allotted flat no. 20, ground floor , the possession of which was given to her on 6.06.1989 on making entire payment. The defendants illegally demanded from her a sum of Rs 30,000/­ and threatened her that in case she fails to pay the said amount then they would block the door of the plaintiff by making a wall in front of the door and for that purpose they have brought the building material. Also they are contemplating to remove the ceiling fan which is fixed in the verandah of the plaintiff's flat.

3. During the pendency of the suit and during the enforcement of the orders dated 04.08.1992 the defendants in utter disregard, disobedience and in violation of the said orders, have illegally and unauthorizedly raised the wall in front of the flat of the plaintiff. The plaintiff has already filed a contempt petition against the defendants contemnors and the same is pending.

4. The defendants appeared and filed their written statement stating that the society ie. defendant no. 1 is a cooperative society registered under the Delhi Co­operative Societies Act, 1972. In pursuance of the objects of the society, it has constructed flats on Suit no. 244/92 Page 3 of 12 the land allotted to the society by the DDA and has allotted the said flats to its members. Any dispute regarding the flats, their allotment and other matters are to be referred u/s 60 of the Delhi Coop. Societies Act, 1972, for arbitration to the Registrar Coop. Societies, Delhi and in view of Section 60 this Hon'ble Court has no jurisdiction to entertain and try the present suit. Also no notice as required u/s 60 of the Delhi Coop. Societies Act has been served before filing of the suit. They also stated that the jurisdiction of this Hon'ble Court has been specifically barred u/s 93 of the Delhi Coop. Societies Act, 1972 .They also stated that the plaintiff has filed the wrong site plan. The portion shown as open land has been marked is neither a part of the flat no. 20 nor the possession of the same has ever been handed over to the plaintiff and she is not in possession of the same.

5. They denied that the defendants have blocked the door of the plaintiff's flat and stated that the plaintiff has her own passage leading towards her flat. The society has a right to construct the wall on the sides of the common place which is the property of the society and the plaintiff has no right or concern with the same. They also denied that there is a ceiling fan of the plaintiff in the common place which is the property of the society. They stated that the fan had already been removed on 12.07.1992. Suit no. 244/92 Page 4 of 12

6. They stated that the society i.e defendant no. 1 and the Managing Committee of the society of which defendant no. 2 & 3 are the office bearers have every right to construct wall on the sides of the common place which is the property of the society and are also authorized to remove the fan illegally put by the plaintiff in the roof, in the common place of the society. The Managing committee of the society including the defendant no. 2 & 3 have constructed the walls as per the decisions taken by the Managing committee. Moreover, if the plaintiff is aggrieved against any action of the defendant society, its office bearers and managing committee she should approach the proper forum.

7. They stated that the wall has already been constructed on the 13th July, 1992 itself. They denied that any wall has been raised during the pendency of the suit or during the enforcement of the order dated 04.08.1992. The wall has been constructed by the defendant no. 1 on 13.07.1992 as per the resolution dated 12.07.1992 passed by the managing committee.

8. They stated that the common place in front of the flat no. 20 has never been allotted to the plaintiff nor the possession of the same has been handed over to the plaintiff. The plaintiff has got no right, title or interest in the common place in front of flat no. 20, as the same is meant for common purposes and has been constructed Suit no. 244/92 Page 5 of 12 for common use and with the money of all the members of the society as a whole. On the other hand, the managing committee of the society which is an elected body as per the Delhi Coop. Societies Act and the rules has every right to protect it by constructing a wall around the common place to save it from the encroachment by the plaintiff or by any other person. Denying the rest of the contents of the plaint, the defendants sought dismissal of the suit of the plaintiff with costs.

9. Plaintiff filed replication thereby denying the contentions raised in the written statement.

10. From the pleadings of the parties, the following issues were framed :­

(i) Whether this Hon'ble court has no jurisdiction u/s 93 of the Delhi Coop. Society Act ? OPD

(ii) Whether any notice u/s 60 of the Delhi Coop. Society Act is required ? OPD

(iii) Whether the disputed land is part of the flat no. 20 of the plaintiff ? OPP

(iv) Whether the disputed land is in the possession of the plaintiff ? OPP

(v) Whether an amount of Rs. 30,000/­ was demanded by the society from the plaintiff ? OPP Suit no. 244/92 Page 6 of 12

(vi) Whether the notice u/s 90 of the Delhi Coop. Society Act was issued as per law, if not its effect ? OPD

(vii) Whether by raising the wall the defendant has blocked the passage of flat no. 20 leading to open space? OPP

(viii) Relief

11. In order to prove her case, the plaintiff examined herself as PW­1 and examined Sh. Mohar Singh as PW­2, Sh. Vijay Gautam as PW­3 and relied upon the following documents :­ Ex. P1 ­ Site plan Ex. P2 ­ Letter to SHO dated 23.08.92 Mark A ­ Possession Certificate

12. To counter the case of the plaintiff the defendants examined Sh. R.K Mudgal as DW­1 and relied upon the following documents :­ Ex. DW1/1 ­ Brochure of the society Ex. DW1/2 ­ Copy of the proceedings dated 12.07.1992

13. My issue­wise findings are as follows :

ISSUE NO. 3 and 4

The onus to prove these issues was on the plaintiff. The plaintiff in her cross examination has stated that the verandah in front of her flat has been mentioned in the possession letter issued to her by the society. The same is Mark A. However, a perusal of Suit no. 244/92 Page 7 of 12 Mark A reveals that there is no mention of the said verandah in the possession certificate. The possession certificate only states that possession of flat no. 20 has been given to the plaintiff. She also admitted that there has not been any demand letter of society asking for the cost of the verandah separately. She admitted that she has not paid the cost of the verandah. She denied that the area mentioned as verandah is not a verandah but a stilt area for parking and common use. She stated that the site plan Ex. P­1 was prepared by the architect in Tis Hazari. The plaintiff has placed on record a copy of possession certificate along with copy of No Objection certificate, copy of complaint to the SHO P.S. Vikas Puri along with the site plan.
To counter the case of the plaintiff, Sh. R. K. Mudgal appeared as DW­1. He stated that the wall was constructed on 13.7.1992 as per the resolution of the managing committee. He stated that a stilt portion is the property of the society and the plaintiff has no right to use it. He stated that the stilt area adjoining to the plaintiff's flat is a common space as shown in Ex. DW1/1. He stated that the wall was constructed on 12­13.7.1992 He stated that on 12.7.1992 itself the resolution was passed, the contract was given and the wall was created. The defendants have placed on record the Brochure of the cooperative society containing the site plan of the premises in Suit no. 244/92 Page 8 of 12 question which is Ex. DW1/1.
Thus, the plaintiff has not placed on record any single document to show that the property in dispute was allotted to her or was promised to be given to her or that she is entitled to occupy or possess the property in question. The plaintiff has also not placed any document on record to establish that the disputed land is part of flat no. 20. The plaintiff in her cross­examination has admitted that the area of the verandah has not been mentioned in the possession certificate. She has also admitted that there has not been any demand letter of society asking for the cost of the verandah separately. She also stated that the society has never mentioned the cost of verandah in the demand letter for the flat and that she has not paid the cost of the verandah. From these statements of the plaintiff herself it is clear that the plaintiff never paid the cost of the disputed land and so the same did not vest in her. Also, Sh. R. K. Mudgal who appeared as DW­1 has stated that a stilt portion is the property of the society and the plaintiff has no right to use it. The fact that the disputed property is the stilt portion and not a verandah as alleged by the plaintiff is also proved by Ex. DW1/1. Further, it has also been admitted by the plaintiff that the wall was created there and the opening was closed. Thus, after the creation of the wall, the plaintiff no longer remained in possession Suit no. 244/92 Page 9 of 12 of the disputed land. I therefore, decide these issues against the Plaintiff and in favour of the defendant.
ISSUE NO. 7
The onus to prove this issue was on the Plaintiff. The Plaintiff has stated that by raising the wall the defendant has blocked the passage of flat no. 20 leading to open space. The DW­1, Sh. R.K Mudgal has admitted that the opening was closed by constructing the wall. However, he has stated that the opening was closed on 12.07.92 and not on 06.08.92. Thus, in view of the admission made by the defendant witness, this issue is decided in favour of the plaintiff and against the defendant.
ISSUE NO. 1

The defendant has stated that this court has no jurisdiction u/s 93 of the Delhi Coop. Society Act to try and entertain the present suit. Section 93 of the Delhi Co­operative Society Act (Section 132 of the new Act) bars the jurisdiction of civil or revenue courts in respect of certain matters like removal of committee, any dispute required under section 70 to be referred to the registrar or any matter concerning the winding up and dissolution of co­operative society etc. Thus, this section does not apply to the circumstances of the present case and therefore does not bar the jurisdiction of the civil court. This issue is thus decided against the defendant and in Suit no. 244/92 Page 10 of 12 favour of the plaintiff.

ISSUE NO. 2 The defendant has submitted that there has been non­ compliance of section 60 of Delhi Co­operative Societies Act.

Section 60 of the old Act and section 70 Delhi Co­operative Societies Act, 2003 states that any dispute touching the constitution, management or the business of the co­operative society between members, past members and persons claiming through members etc. shall be referred to the Registrar for decision and no court shall have jurisdiction to entertain any suit or other proceeding in respect of such disputes. The present suit does not relate to the constitution, management or the business of a co­ operative society and thus, there is no requirement to fulfill the provisions of section 70 of The Delhi Co­operative Societies Act, 2003. This issue is thus decided in favour of the plaintiff and against the defendant.

ISSUE NO. 5

The onus to prove this issue was on the plaintiff. Apart from her own testimony, there is nothing on record to prove that a sum of Rs. 30,000/­ was demanded by the society from the plaintiff. Hence, the plaintiff has not been able to prove this issue and I decide this issue against the plaintiff and in favour of the Suit no. 244/92 Page 11 of 12 defendant.

ISSUE NO. 6 As per Section 90 of the old Act and Section 129 of the Delhi Co­operative Societies Act,2003, no suit shall be instituted against a co­operative society or any of its officers in respect of any act touching the business of the co­operative society until the expiration of ninety days next after notice in writing has been delivered to the Registrar or left at his office. In the present case, no such notice has been alleged or proved to be served to the society. Hence, the present suit is bad on account of non­ compliance of the requirement of notice under Section 129 of The Delhi Co­operative Societies Act, 2003 and is liable to be dismissed on this score also. I therefore, decide this issue against the plaintiff and in favour of the defendant. RELIEF

14. In view of my above discussion, I dismiss the suit of the plaintiff. Parties to bear their own cost. Decree sheet be prepared accordingly. File be consigned to record room after necessary compliance.

Announced in the open court today i.e 31.08.2010 GOMATI MANOCHA Suit no. 244/92 Page 12 of 12 CIVIL JUDGE (NORTH) 31.08.2010 Suit no. 244/92 Page 13 of 12 Suit no.344/92 31.08.2010 Present : None Vide separate judgment of even date, I hereby dismiss the suit of the plaintiff. Decree sheet be prepared accordingly. File be consigned to record room after necessary compliance.

GOMATI MANOCHA CIVIL JUDGE (NORTH) 31.08.2010 Suit no. 244/92 Page 14 of 12