Gujarat High Court
Anand Prahladbhai Lokapur vs Veenaben D/O Balkrushna Natu & ... on 27 December, 2017
Author: A.J. Shastri
Bench: A.J. Shastri
C/CRA/446/2017 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
CIVIL REVISION APPLICATION NO. 446 of 2017
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ANAND PRAHLADBHAI LOKAPUR....Applicant(s)
Versus
VEENABEN D/O BALKRUSHNA NATU & 2....Opponent(s)
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Appearance:
MR BJ TRIVEDI, ADVOCATE for the Applicant(s) No. 1
MR JT TRIVEDI, ADVOCATE for the Applicant(s) No. 1
MS JIGNASA B TRIVEDI, ADVOCATE for the Applicant(s) No. 1
MR PARESH M DARJI, ADVOCATE for the Opponent(s) No. 2
MR. NEHAL N SHAH, ADVOCATE for the Opponent(s) No. 2
NOTICE SERVED BY DS for the Opponent(s) No. 3
PARTY-IN-PERSON, CAVEATOR for the Opponent(s) No. 1
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CORAM: HONOURABLE MR.JUSTICE A.J. SHASTRI
Date : 27/12/2017
ORAL ORDER
1. The present Civil Revision Application under Section 115 of the Civil Procedure Code,1908 ('CPC', for short) is directed against the order dated 23.09.2017 passed below Exh.26 in Regular Civil Suit No.64 of 2016 by virtue of which application under Order VII Rule 11 of CPC came to be rejected.
2. The factual background upon which the present Revision Application has come up for consideration before this Court is regarding the property bearing Plot No.158 ad-measuring 995 Page 1 of 20 HC-NIC Page 1 of 20 Created On Wed Dec 27 23:58:59 IST 2017 C/CRA/446/2017 ORDER sq mtr / 1190 sq yd situated in the land bearing Survey Number / Block Number 13, 15 and 16 of respondent No.3 - society at Village Palodiya, Tal.Kalol, District : Gandhinagar. It is the case of the petitioner that by contending that the respondent herein has been gifted 1/2 portion of this undivided share of the suit property, she originally instituted suit bearing Lavad Suit No.4447 of 2013 before the learned Board of Nominees, Ahmedabad and the said Civil Suit with respect to this property which was unconditionally withdrawn on 06.05.2016 by tendering the withdrawal pursis at Exh.36. It was also the case of the petitioner that in the said Civil Suit also the injunction which has been sought below Exh.6 was also not granted vide order dated 30.04.2015 and it is further the case of the petitioner that since injunction was not granted in the said Lavad Suit, the suit was withdrawn unconditionally and subsequently has filed present Regular Civil Suit No.64 of 2016 in the Court of learned Principal Civil Judge, Kalol, District : Gandhinagar. It is the further case of the petitioner that though the grievance with regard to the property was abondoned by the respondent herein and the suit was unconditionally withdrawn not 'like suit is permissible to be instituted' at the behest of the respondent herein. It is the further case of the petitioner that in view of settled position of Page 2 of 20 HC-NIC Page 2 of 20 Created On Wed Dec 27 23:58:59 IST 2017 C/CRA/446/2017 ORDER law that once the claim is abondoned and the suit was ultimately withdrawn unconditionally, no similar suit be allowed to be instituted being not reserved any liberty to file fresh one.
2.1 Based upon this contention, it appears from the record that present petitioner has moved an application at Exh.26 under Order VII Rule 11 of CPC seeking rejection of the plaint essentially on aforesaid ground and to justify the said request for rejection of plaint, it appears that the decision delivered by the Apex Court in the case of Sarguja Transport Service vs. State Transport Appellate Tribunal, Gwalior reported in AIR 1987 SC 88, a request was made by the petitioner to reject the plaint submitted by respondent herein. It further appears that this application was contested by the respondent plaintiff of the said suit by filing reply at Exh.39 and after hearing at length after considering the decisions delivered by various Courts vide order dated 23.09.2017, the learned judge i.e. learned Principal Senior Civil Judge, Kalol (District:
Gandhinagar) was pleased to reject the application and it is against this order passed by the learned Civil Judge, the present petitioner original defendant no.1 has invoked jurisdiction of this Court under Section 115 of the CPC to assail the said order. This Court upon perusal of the record found that Page 3 of 20 HC-NIC Page 3 of 20 Created On Wed Dec 27 23:58:59 IST 2017 C/CRA/446/2017 ORDER respondent original plaintiff has filed caveate in the present proceedings and appeared as party-in-person and sought time on 21.11.2017 and thereafter on 27.11.2017 notice for final disposal at the request of both the sides was issued with an interim protection of staying further proceedings of Regular Civil Suit No.64 of 2016 and thereafter the matter has been heard at length on 12.12.2017. Since both the sides have requested to dispose of the Revision Application finally by giving adequate opportunity to both the sides, the matter is heard finally.
2.2 Mr.J.T.Trivedi, learned advocate appearing for the petitioner has vehemently contended that the learned judge has committed a serious error of jurisdiction in not considering the request of the petitioner. It has been contended by Mr.Trivedi, learned advocate that once the claim is abondoned by respondent herein by unconditionally withdrawing the Lavad Suit, it was not open for respondent to institute further suit proceedings as the same is barred by law. Mr.Trivedi, learned advocate has further contended that it is settled position of law that, if at the time when withdrawal took place, no permission is sought from the Court to file fresh proceedings. The respondent herein is estopped from initiating any further process, not only by way of principle of res judicata Page 4 of 20 HC-NIC Page 4 of 20 Created On Wed Dec 27 23:58:59 IST 2017 C/CRA/446/2017 ORDER but by virtue of provisions contained under Order 23 Rule 1 of CPC and the law of estoppel is very much clear, according to learned advocate Mr.Trivedi and has thereby contended that there is a serious error committed by learned judge in discarding the request made by the petitioner. Mr.Trivedi, learned advocate based upon the provisions contained under Order 23 Rule 1 (3) of CPC has categorically submitted that the subsequent suit proceedings, in the form of Regular Civil Suit, is not maintainable at all and for that purpose, learned advocate has relied upon a decision of Hon'ble Apex Court in the case of Sarguja Transport Service vs. State Transport Appellate Tribunal, Gwalior reported in AIR 1987 SC 88 and based upon this judgment, learned advocate has requested the Court to correct the mistake committed by the Court of law. Mr.Trivedi, learned advocate has further contended that, for the purpose of examining the issue involved in the present proceedings, where the respondent no.1 was the member of Cooperative Society or not is insignificant since the fresh proceedings generated by respondent are hit by Sub-Rule (3) of Rule 1 and Order 23 of CPC and Mr.Trivedi, learned advocate has further submitted that under the said relevant provision the principle underlined is founded on the public policy and therefore this material error Page 5 of 20 HC-NIC Page 5 of 20 Created On Wed Dec 27 23:58:59 IST 2017 C/CRA/446/2017 ORDER which has been committed in exercising jurisdiction deserves tobe corrected. No other submissions have been made and by making aforesaid submissions learned advocate has requested the Court to allow the present revision application.
3. To meet with the contention and submissions made by learned advocate Mr.Trivedi, party-in-person, who is appearing before the Court, has submitted an affidavit-in-reply at page:62 and has requested the Court to peruse the same and pass suitable order in the interest of justice. The overall submission of party-in-person is that the trial Court has not committed any error of jurisdiction in rejecting the application under Order VII Rule 11 of CPC. It was explained by the party-
in-person in the reply affidavit that issue of apportionment of property in question is not possible tobe dealt with by learned Board of Nominee and further respondent being not a member of the society cannot invoke jurisdiction of learned Board of Nominee and, therefore, also the said suit, which was originally filed, was filed before the Court i.e. Board of Nominee which has no jurisdiction at all and, therefore, with a view to ventilate the grievance before appropriate forum the said suit came to be withdrawn and present suit is instituted and this aspect has been considered by learned judge in a lucid manner by assigning proper reason hence the order which has been Page 6 of 20 HC-NIC Page 6 of 20 Created On Wed Dec 27 23:58:59 IST 2017 C/CRA/446/2017 ORDER passed is not such which would attract the jurisdiction of this Court under Section 115 of the CPC.
3.1 The party-in-person further has explained in what circumstances the withdrawal pursis was given before the Board of Nominee and considering the said withdrawal pursis the same was granted on 06.05.2016. The party-in-person has submitted that from the bare reading of the order, it clearly reflects that in pursis dated 06.05.2016 reflecting on page:37 and there is addition of word " Binsharti " (unconditionally) and that insertion has taken place not with her signature and, therefore, by pointing out this the party-in-person has submitted that the main grievance is with respect to partition of the suit property which issue could not have been gone into by learned Board of Nominee and cannot be maintained at the her instance because of obvious reasons that she was not a member of the society and, therefore considering the aforesaid circumstances the withdrawal pursis was tendered. The party- in-person has requested the Court that there is no irregularity or manifest error in passing the impugned order. 3.2 The Party-in-person has further submitted that under the guise of Order VII Rule 11 of CPC she could not be non- suited without seeking any adjudication from the competent Page 7 of 20 HC-NIC Page 7 of 20 Created On Wed Dec 27 23:58:59 IST 2017 C/CRA/446/2017 ORDER Court with respect to her grievance because at the time when she filed Lavad Suit, not only respondent No.3 - Society has specifically contended that she being not a member of the society at her instance the suit is not tenable and Board of Nominee has no jurisdiction and that has been categorically averred in the reply filed by original defendant no.1. In addition thereto, further reply which has been filed in the said Lavad suit by defendant nos.2 and 3 in which also a specific contention is raised that Board of Nominee having no jurisdiction to deal with partition issue of property, Lavad suit is not maintainable and categorical stand is taken that it is only the Civil Court which is competent to deal with the issue. Based upon these basic contentions by both the defendants including the present petitioner specifically. Even in addition to injunction application, which has been submitted, was rejected by observing in addition to other reasons that Board of Nominees has no jurisdiction which is reflecting on internal page:5 and page:19 of this revision petition compilation and, therefore, based upon this substantial contention and the grounds, the Lavad Suit was constrained to be withdrawn in aforesaid set of circumstance and, therefore, now it would not be open for the present petitioner to contend that plaint to be rejected as under Order VII Rule 11 of CPC which practically Page 8 of 20 HC-NIC Page 8 of 20 Created On Wed Dec 27 23:58:59 IST 2017 C/CRA/446/2017 ORDER would non-suit her from proceedings and therefore also taking all these overall situation the party-in-person has contended that there is no error committed by Court below in rejecting the application under Order VII Rule 11 of the CPC. The party- in-person has raised the grievance that on the contrary with respect to this subject matter of property, she was shunted from pillar to post and therefore left the issue to be appropriately adjudicated at a Court where it appears that the suit proceedings are submitted in competent forum now. 3.3 The party-in-person has further relied upon a decision delivered by Apex Court in the case of The Managing Director (MIG) Hindustan Aeronautics Ltd. Balanagar, Hyderabad vs. Ajit Prasad Tarway, Manager (Purchase and Stores) Hindustan Aeronautics Ltd. Balanagar Hyderabad AIR 1973 SC 76 and by referring to para:5 and the cache note of the said decision, a request is made that this well-reasoned order passed by the Court below cannot form the subject matter of exercise of revisional jurisdiction and thereby requested the Court to dismiss the revision petition.
4. Having heard learned advocate for the petitioner, having heard party-in-person and having considered the reply which has been submitted, the Court deems it proper first of all to Page 9 of 20 HC-NIC Page 9 of 20 Created On Wed Dec 27 23:58:59 IST 2017 C/CRA/446/2017 ORDER consider the stand taken by the petitioner as well as society in the original proceedings of Lavad suit with present revision compilation at page:71 along with the affidavit-in-reply the party-in-person has attached the written reply submitted by defendant no.1 i.e. the present petitioner before the Board of Nominee. While referring the said affidavit, it appears that in addition to the contentions one of the prime contention which is reflecting in the reply is that the present respondent herein i.e. party-in-person is not a lawful member of the society and, therefore, the provisions of Cooperative Societies Act are not applicable and as such the Board of Nominee has no jurisdiction to entertain the Lavad suit.
4.1 In addition to this, the another reply which has been submitted by defendant nos.2 and 3 of the said Lavad Suit if to be perused in that reply also in addition to other contentions a specific contention is raised with regard to jurisdiction of Board of Nominee. Para:6 of the said reply on internal page:2 of page:79 of revision compilation a specific contention is raised that what has been claimed by respondent herein is with respect to the partition of property and this partition issue can be entertained by the Civil Court which has got competence and the Board of Nominee has no jurisdiction at all and, therefore, all the defendants in the suit have taken categorical Page 10 of 20 HC-NIC Page 10 of 20 Created On Wed Dec 27 23:58:59 IST 2017 C/CRA/446/2017 ORDER stand that learned Board of Nominee has no jurisdiction at all to deal with.
4.2 In addition thereto, in para:16 also on page:84, a further specific contention is raid by referring to section 96 of the Cooperative Societies Act that by virtue of said statutory provisions, ex facie, there is no jurisdiction that the Board of Nominee and it is only the Civil Court which is competent to deal with the claim of respondent herein and, therefore, all the defendants have taken such stand that learned Board of Nominees has no jurisdiction to deal with the subject matter of suit and the relief prayed for by the respondent herein. In addition thereto, if a further order which has been passed at Exh.6 in which an order is passed by the learned Board of Nominee whereby the interim relief is refused and one of the reasons which is reflecting at page:90 is also about the jurisdiction of the learned Board of Nominee and, therefore, in substance, the Lavad suit which was filed by respondent was contested tooth and nail on substantial issue of jurisdiction as a result of which it appears that on page:37 a specific withdrawal pursis was given.
4.3 A bare reading of the said withdrawal pursis also would make it clear that there is a specific assertion that since the Page 11 of 20 HC-NIC Page 11 of 20 Created On Wed Dec 27 23:58:59 IST 2017 C/CRA/446/2017 ORDER name of respondent herein is not incorporated as a member in the society with a view to file suit in the Civil Court withdrawal permission was sought and it is also reflecting apparently that a word "unconditionally" is later on incorporated with the signature of the advocate. However, in substance, the withdrawal pursis was granted only with a view to enable the plaintiff to submit the suit before the Civil Court. 4.4 Now, on the basis of the aforesaid factual matrix if order which has been passed by the Court below if to be examined it prima facie appears that Court has taken note of all the circumstances and critical examination of the plaint has also been undertaken by the Court. It is settled position of law that while exercising jurisdiction under Order VII Rule 11 of the CPC, the basic averment contained in the plaint and the documents attached therewith are of vital importance and defence cannot be examined at this juncture, and, therefore, keeping in mind such proposition of law, the learned trial judge has critically examined the plaint presented by the respondent herein and found that suit has been at a proper forum and is very much maintainable. It appears from the bare reading of reasons which are assigned by the learned trial judge for meaningful reading of plaint it appears that even the stand taken by petitioner has also been examined and only thereafter the Page 12 of 20 HC-NIC Page 12 of 20 Created On Wed Dec 27 23:58:59 IST 2017 C/CRA/446/2017 ORDER detailed reasoned order is passed.
4.5 From the bare perusal of the impugned order, the learned trial judge has considered various decisions cited by respective sides before him including the recent pronouncement on the principle of Order VII Rule 11 of CPC by this Court. The decisions, which are referred to, are very much reflected in relevant portion of order and, therefore, considering all these issues the learned judge has specifically opined that no case is made out to exercise jurisdiction under Order VII Rule 11 of CPC. While coming to this conclusion, the learned judge has also verified Mark-3/6 - the withdrawal pursis and found that whether such permission was unconditional or conditional is also examined as words have been later on added. In addition thereto, it has also been examined that both the suits are altogether in a different form and further the relief contained in the suit is also such which are not permitting the Court to exercise powers under Order VII Rule 11 of CPC. The learned judge has also examined the specific provisions contained in Order 23 Rule 1 of CPC as well as the provisions of the Gujarat Cooperative Societies Act, 1961 and upon careful consideration of averments contained in the plaint and the aforesaid circumstances and the provisions of law coupled with the decision cited before him a specific conclusion is derived by Page 13 of 20 HC-NIC Page 13 of 20 Created On Wed Dec 27 23:58:59 IST 2017 C/CRA/446/2017 ORDER the learned judge that respondent herein deserves an opportunity to adjudicate her grievance in the present case as the relief which has been sought is competently possible to be adjudicated by the Civil Court and, therefore, found that Order VII Rule 11 of CPC is not amenable to the present petitioner in the background of aforesaid circumstances and, therefore by order dated 23.09.2017 application Exh.26 came to be rejected.
5. The aforesaid application of mind in detail on the part of the learned judge of the Court below and the cogent reasons which are supported about the conclusion would lead the present Court to indicate as to what is the revisional jurisdiction of this Court under Section 115 of the CPC. As such the scope of Section 115 is well defined by series of judgments delivered by the Apex Court as well as this Court, however, some of the decisions are worth to be taken note of and hence the Court has considered the same.
5.1 The decision which has been relied upon by party-in- person is a decision reported in the case of The Managing Director (MIG) Hindustan Aeronautics Ltd. Balanagar, Hyderabad (supra), in which the Hon'ble Apex Court, relying upon the decision earlier laid down by the very Court, has Page 14 of 20 HC-NIC Page 14 of 20 Created On Wed Dec 27 23:58:59 IST 2017 C/CRA/446/2017 ORDER clearly opined that High Court has no jurisdiction to interfere unless the exercise of jurisdiction by the Court below is illegal or with material irregularity. The relevant observations contained in said decision is the observations made in para:5, which is reproduced herein after as relevant to the issue.
"[5] In our opinion the High Court had no jurisdiction to interfere with the order of the first appellate court. It is not the conclusion of the High Court that the first appellate court had no jurisdiction to make the order that it made. The order of the first appellate court may be right or wrong; may be in accordance with law or may not be in accordance with law; but one thing is clear that it had jurisdiction to make that order. It is not the case that the first appellate court exercised its jurisdiction either illegally or with material irregularity. That being so, the High Court could not have invoked its jurisdiction under S. 115 of the Civil Procedure Code: See the decisions of this Court in Pandurang Dhoni v. Maruti Hari Jadhav, (1966) 1 SCR 102 = (AIR 1966 SC 153), and D. L. F. Housing and Construction Co. (P.) Ltd., New Delhi v. Sarup Singh, (1970) 2 SCR 368 = (AIR 1971 SC 2324)."
5.2 Yet another decision which has been delivered by the Apex Court in the case of Rukmini Amma Saradamma vs. Kallyani Sulochana reported in AIR 1993 SC 1616 and what is the scope of revision is well propounded by the Apex Court by observing in para:21 and 22 since the same are relevant to be taken note of are reproduced herein after.
"[21] We are afraid this approach of the High Court is wrong. Even the wider language of S. 20 of the Act cannot enable the High Page 15 of 20 HC-NIC Page 15 of 20 Created On Wed Dec 27 23:58:59 IST 2017 C/CRA/446/2017 ORDER Court to act as a first or a second court of appeal. Otherwise the distinction between appellate and revisional jurisdiction will get obliterated. Hence, the High Court was not right in re-appreciating the entire evidence both oral or documentary in the light of the Commissioner's report (Exts. C1 and C2 Mahazar). In our considered view, the High Court had travelled far beyond the revisional jurisdiction. Even by the presence of the word "propriety" it cannot mean that there could be a re-appreciation of evidence. Of course, the revisional court can come to a different conclusion but not on a re-appreciation of evidence; on the contrary, by confining itself to legality, regularity and propriety of the order impugned before it. Therefore, we are unable to agree with the reasoning of the High Court with reference to the exercise of revisional jurisdiction. [22] As to whether a second revision lay to the High Court this Court by the judgment in Aundal Animal's case (AIR 1987 SC 203) (supra) held that no such revision lay. On this point the High Court referring to this very judgment held that the jurisdiction under Art.
227 of the Constitution is not taken away. Therefore, the earlier order dated 21-8-86 passed in exercise of revisional jurisdiction under S. 115 of the Act is not void. We need to pause to consider this because this point ought to have been urged by the appellant immediately after the order of remit was made. Pursuant to the order of remit the appellant took a chance by participation in the proceedings before the Rent Controller, taking up the matter in appeal. Thus, having acquiesced in these proceedings she cannot question the first remit order."
5.3 Even the Hon'ble Apex Court in the recent time has also laid down a proposition while exercising jurisdiction under Section 115 of the CPC which takes the Court to consider and the quote herein after.
Page 16 of 20 HC-NIC Page 16 of 20 Created On Wed Dec 27 23:58:59 IST 2017 C/CRA/446/2017 ORDER 5.4 Keeping aforesaid proposition of law on the issue of exercise of revisional jurisdiction Court has also examined the proposition on powers under Order VII Rule 11 of the CPC which indicates that if there is a slight change of facts then Order VII Rule 11 of CPC powers not to be exercised and the same are to be exercised sparingly and with caution. The Court has kept in mind the observations of Apex Court in the case of Gian Chand vs. State of Haryana reported in (2013) 14 SSC 420, and since the same is relevant, more particularly para:24, it is quoted herein after.
"24. So far as the judgment in Avtar Singh [(2002) 7 SCC 419] is concerned, it has been considered by this Court in Megh Singh vs. State of Punjab [(2003) 8 SCC 666]. The Court held that the circumstantial flexibility, one additional or different fact may make a world of difference between conclusions in two cases or between tow accused in the same case. Each case depends on its own facts and a close similarity between one case and another is not enough because a single significant detail may alter the entire aspect. It is more pronounced in criminal cases where the backbone of adjudication is fact based."
5.5 Considering the aforesaid circumstance, this Court is of the opinion that learned trial judge has neither committed any irregularity in exercising jurisdiction nor any perversity reflecting in the order nor any manifest error in exercising jurisdiction and, therefore, the Court found that well reasoned order is not possible to be disturbed in exercise of revisional Page 17 of 20 HC-NIC Page 17 of 20 Created On Wed Dec 27 23:58:59 IST 2017 C/CRA/446/2017 ORDER jurisdiction, under Section 115 of the CPC.
5.6 Now in the light of aforesaid situation, the decision which has been vehemently pressed into service by learned advocate for the petitioner if to be considered, which is reported in the case of Sarguja Transport Service vs. State Transport Appellate Tribunal, Gwalior (supra), has dealt with the provisions contained under Section 11 of the CPC and Order 23 Rule 1 of the CPC, however, the factual details are appearing to be different from what has been in the case on hand. Here is the case in which Hon'ble the Apex Court was confronted with the contention and the situation as to whether the withdrawal of Writ Petition under Article 226 of the Constitution of India, without permission to institute fresh petition, will debar the fresh petition on the same cause of action or not and in that context the Apex Court has laid down a proposition that fresh petition under Article 226 of the Constitution of India in respect of the same cause of action is not maintainable. Rule of public policy contained under Order 23 Rule 1 of the CPC is taken care of by the Apex Court but here is a fact in which no such similarity of facts is visible and apart from the this principle underlined by the Apex Court, no such distinguishable set of circumstance is constraining the Court to accept the submission of learned advocate for the petitioner based upon Page 18 of 20 HC-NIC Page 18 of 20 Created On Wed Dec 27 23:58:59 IST 2017 C/CRA/446/2017 ORDER this decision. It is settled position of law that if there is slight change in the facts, it would make world of difference in applying the precedent and, therefore, here is the case in which the Court found that circumstances are altogether different more particularly looking to the stand taken by the petitioner in the Lavad Suit proceedings coupled with averments of the withdrawal pursis and the reasons which are assigned by the learned judge it is found that this is not a case in which the respondent can be non-suited under the guise of impugned order at the initiate stage itself and, therefore, considering this position prevailing on record, Court is of the considered opinion that no case is made out by the petitioner in the present Revision Application and thus, the Civil Revision Application being devoid of merits deserves to be dismissed and accordingly is dismissed. Notice is discharged. No order as to costs. Interim relief, if any, granted earlier, shall stand vacated forthwith.
6. After pronouncement of the judgment, learned advocate Mr.Trivedi has made a request to stay the implementation and execution of the present order for a reasonable time. Considering the request made by learned advocate, the present order is suspended for a period of four weeks from today.
Page 19 of 20 HC-NIC Page 19 of 20 Created On Wed Dec 27 23:58:59 IST 2017 C/CRA/446/2017 ORDER (A.J. SHASTRI, J.) Amit Page 20 of 20 HC-NIC Page 20 of 20 Created On Wed Dec 27 23:58:59 IST 2017