Gopal Nagar Cooperative House Building Society Ltd. vs Mohd. Aslam @ Abu Bakar and etc.

NON-REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL No(s). 10062-10064 OF 2018 (Arising out of SLP(C)No(s).34745-34747 OF 2016)

GOPAL NAGAR COOPERATIVE HOUSE BUILDING SOCIETY LTD. Appellant(s)

VERSUS

MOHD. ASLAM @ ABU BAKAR AND ETC. Respondent(s)

J U D G M E N T

BANUMATHI, J.:

(1) These appeals arise out of order dated 29th September, 2016

of the High Court setting aside Orders dated 29th October, 2015

and 2nd November, 2015 passed by the Trial Court in and by which

the Trial Court has set aside the preliminary decree as well as

the final decree passed in favour of the respondents.

(2) The appellant-Society claims to have purchased the entire

93.25 acres of land in Survey NO(s).148-155 from six joint

owners including Mohd. Ismail, the father of respondent no.1,

by a sale deed dated 20th May, 1980. The appellant-Society

claims to have developed the said land by making the house

plots numbering 1197 plots and is said to have delivered the Signature Not Verified Digitally signed by MAHABIR SINGH Date: 2018.10.05

possession of the plots to its 1197 members.

12:43:45 IST Reason: The appellant-

Society also claims that many of its members have built their

houses on the said plots which is refuted by the respondents. 2

(3) Respondent No(s).1 and 3 to 8 have filed suit for

partition in respect of certain extent of land in Survey

No(s).148-155 in O.S. NO.21 of 2004. In the said suit,

preliminary decree dated 14th November, 2005 and final decree

dated 17th April, 2007 were passed. In both, preliminary and

final decree stage the appellant-Society herein was set ex-

parte. According to the appellant-Society, they were not

served with summons and that the summons were served on a wrong

person.

(4) Having learnt of the ex-parte decrees, on 22nd May, 2007

the appellant-Society filed I.A.NO(s).232/2007 and 233/2007 to

set aside the preliminary and final decrees. By order dated

29th August, 2008, the Third Addl. Judge allowed both the

applications-I.A.NO(s).232/2007 and 233/2007, by observing that

the ex-parte decree was obtained by keeping the appellant in

the dark.

(5) Even when those applications were pending, the respondents

filed O.S. No.2980 of 2007 challenging the sale deed dated 20 th

May, 1980 and prayed for setting aside the same. In the said

suit - O.S. No.2980 of 2007, the first respondent filed I.A.

No.1208 of 2013 seeking extension of time to comply with the

conditional order and the said application was dismissed by 25 th

October, 2013. Subsequently, as no evidence was adduced in

O.S. No.2980 of 2007 the same came to be dismissed.

Challenging the orders passed in I.A.NO(s).232/2007 and 3

233/2007, the first respondent filed C.R.P. No.462 of 2009 and

C.R.P. No.803 of 2009 before the High Court and the same was

allowed and the matter was remanded to the Trial Court on the

ground that the trial court had not given detailed reasons.

(6) On remand, the Third Additional Judge by a well reasoned

order dated 29th October, 2015 and 2nd November, 2015 once again

set aside the preliminary and final decree dated 14 th November,

2005 and 17th April, 2007 respectively. Subsequently, the

appellant-Society has also filed written statement in the

partition suit i.e. O.S.No.21/2004.

(7) Being aggrieved by order dated 29th October, 2015 and 2nd

November, 2015 setting aside the ex-parte preliminary and final

decree dated 14th November, 2005 and 17th April, 2007

respectively, the first respondent filed revision before the

High Court i.e. C.R.P. NO.1214 of 2016 and C.R.P. No.1231 of

2016. The first respondent has also filed C.R.P. NO.820 of

2014 for restoration of their suit, O.S. No.2980 of 2007. By

impugned order, the High Court has allowed all the three

revisions and again remanded the matter to the Third Additional

Judge for fresh consideration which is impugned in these

appeals.

(8) We have heard Mr. C.U. Singh, learned senior counsel, and

Ms. Madhvi Divan, learned counsel, both appearing for the

appellant-Society and Mr. Anupam Lal Das, learned counsel 4

appearing for the respondents and also perused the impugned

order and materials on record.

(9) By perusal of Orders dated 29th October, 2015 and 2nd

November, 2015, we find that the order of the Third Additional

Judge setting aside the preliminary and final decrees dated

dated 14th November, 2005 and 17th April, 2007 respectively, is

upon consideration of the averments in the application and

well reasoned. The appellant-Society claims to have purchased

93.25 acres in Survey No(s).148-155 from the six joint owners

including Mohd. Ismail, the father of respondent no.1. Out of

the said property of 93.25 acres in Survey No(s).148-155,

certain extent of land is the suit property in the partition

suit in O.S. No.21 of 2004. Sine the appellant-Society is said

to have purchased the extent of 93.25 acres in Survey

NO(s).148-155, a reasonable opportunity has to be afforded to

the appellant-Society. More so, when the appellant-Society

claims to have purchased the property way back in the year 1980

by sale deed dated 20th May, 1980 and is said to have not only

developed the land by forming the layout of house plots but

also allotted the same to its members. When the order of the

Third Additional Judge is a well considered order, in our view,

the High Court ought not to have set aside the same and

remanded the matter back to the trial court. In such view of

the matter, the impugned order of the High Court cannot be

sustained and is liable to be set aside.

5

(10) Mr. Anupam Lal Das, learned counsel appearing for the

first respondent, submitted that the first respondent-plaintiff

shall not take further adjournment in O.S. NO.21 of 2004 and

will proceed with the trial. The findings of the Trial Court

as well as the High Court insofar as the use of the expression

‘fraud’ is concerned, the same shall be construed as expression

of views only for the purpose of the impugned order and shall

not have any bearing on the merits of the contentions of the

parties in the trial.

(11) In the result, the impugned order of the High Court in

C.R.P. NO.1214 of 2016 and C.R.P. NO.1231 of 2016 are set aside

and appeals arising out of SLP(C)No(s).34745 and 34746 of 2016

are allowed. Appeal arising out of SLP(C)No.34747 of 2016

which pertains to C.R.P.No.820 of 2014 is dismissed with the

following directions:

(i) In the partition suit O.S. NO.21 of 2004, the trial

court shall afford sufficient opportunities to both the

parties and proceed with the trial in accordance with the

law.

(ii) Suit filed by the first respondent i.e. O.S. No.2980

of 2007 is ordered to be restored. The Trial Court shall

afford sufficient opportunities to both the parties and

proceed with the same in accordance with law. 6

(12) There shall be no order as to costs.

..........................J. (R. BANUMATHI)

..........................J. (INDIRA BANERJEE) NEW DELHI, SEPTEMBER 27, 2018.