# B.P. Singh & Others v. Ramesh Chandra Rai and another

- **Citation:** (2012) 3 ILRA 1113
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2012-09-26
- **Bench:** Saeed-Uz-Zaman Siddiqi
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/b-p-singh-others-v-ramesh-chandra-rai-and-another-42338
- **Pages:** 4

## Headnote

Code of Civil Procedure-Section 115Revision-order rejecting Application to
return the plaint-plea of bar of Civil Suit
under
section
111
of
Cooperative
Societies Act-not available in a Suit of
permanent Injunction-Trail Court rightly
exercised its desecration by rejecting the
application as dispute not related to
dispute of membership of society-plea of
bar of Civil Jurisdiction not available.

Held: Para 8

As mentioned earlier, the suit is for
permanent
injunction
by
which
the
plaintiff has prayed that a decree for
permanent injunction be granted and
defendant nos. 2 to 5 be restrained from
interfering in peaceful possession and
enjoyment of plaintiff over the disputed
plot or from entering into the premises
to
the
said
plot,
in
any
manner
whatsoever. Ouster of jurisdiction is not
1114 INDIAN LAW REPORTS ALLAHABAD SERIES [2012
to be easily inferred. Bar of jurisdiction is
to be established by cogent reasonings.
In a civil suit, plaintiff is the 'dominus
litus', and the plaint can only be rejected
through
a
meaningful-not
formalreading of the plaint. If it is manifestly
vexatious and meritless, in the sense of
not disclosing a cause of action or clear
right to sue, the Trial Court should
exercise his power under Order VII Rule
11 C.P.C.
Case Law discussed:
[2007 (67) ALR 677]; [1997 (30) ALR 416];
[2012 (30) LCDE 1413 (SC)]; AIR 1966 SC 153

## Text

3 All] B.P. Singh & others V. Ramesh Chandra Rai and another
1113
be sustainable. However, the interest
awarded as penal interest by the tribunal
would be payable after 60 days from the
date of award, if the appellant had
committed default in making the deposit of
the amount of awarded compensation
before the tribunal or before this Court
within 60 days from the date of award
passed by the Tribunal.

31. The point No. III is accordingly
decided.

32. In view of above, the appeal
deserve to be allowed in part. The order
required to be modified.

33. No other ground has been raised
or pressed by the appellant.

34. The appeal is partly allowed.
The award of penal interest at the rate of
7% per annum in place of pendente lite and
future simple interest @ 6% per annum in
case
of
default
of
payment
of
compensation within 60 days from the date
of award is set aside. However, if entire
amount under award has not been
deposited within 60 days, the rate of
interest on unpaid amount would be at the
rate of 7% prospectively payable after two
months from the date of award.

35. The amount deposited by the
appellant in this Court or before the
Tribunal shall be adjusted against the
amount if due against the appellant. The
remaining amount, if any, shall be
deposited by the appellant before the
Tribunal. The amount deposited before this
Court, if any, be remitted to the Tribunal
forthwith but not later than a month. The
Tribunal after deposit of the amount shall
disburse the same expeditiously to the
claimant say within six weeks.

36. Registrar of this Court shall take
fallow up action.

37. There shall be no order as to
costs.
---------
REVISIONAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 26.09.2012

BEFORE
THE HON'BLE SAEED-UZ-ZAMAN SIDDIQI, J.

Civil Revision No. - 96 of 2012

B.P. Singh & Others
 ...Petitioners
Versus
Ramesh Chandra Rai and another

 ...Respondents

Counsel for the Petitioner:
Sri Jaspreet Singh

Counsel for the Respondents:
Sri Rakesh Pandey
Sri S.L. Dubey

Code of Civil Procedure-Section 115Revision-order rejecting Application to
return the plaint-plea of bar of Civil Suit
under
section
111
of
Cooperative
Societies Act-not available in a Suit of
permanent Injunction-Trail Court rightly
exercised its desecration by rejecting the
application as dispute not related to
dispute of membership of society-plea of
bar of Civil Jurisdiction not available.

Held: Para 8

As mentioned earlier, the suit is for
permanent
injunction
by
which
the
plaintiff has prayed that a decree for
permanent injunction be granted and
defendant nos. 2 to 5 be restrained from
interfering in peaceful possession and
enjoyment of plaintiff over the disputed
plot or from entering into the premises
to
the
said
plot,
in
any
manner
whatsoever. Ouster of jurisdiction is not
1114 INDIAN LAW REPORTS ALLAHABAD SERIES [2012
to be easily inferred. Bar of jurisdiction is
to be established by cogent reasonings.
In a civil suit, plaintiff is the 'dominus
litus', and the plaint can only be rejected
through
a
meaningful-not
formalreading of the plaint. If it is manifestly
vexatious and meritless, in the sense of
not disclosing a cause of action or clear
right to sue, the Trial Court should
exercise his power under Order VII Rule
11 C.P.C.
Case Law discussed:
[2007 (67) ALR 677]; [1997 (30) ALR 416];
[2012 (30) LCDE 1413 (SC)]; AIR 1966 SC 153

(Delivered by Hon'ble Saeed-Uz-Zaman
Siddiqi, J.)

1. Heard learned counsel for the
revisionist as well as learned counsel for
opposite party No. 1.

2. This revision has been preferred
against the order dated 31.08.2012 passed
by learned Additional Civil Judge (Senior
Division), Court No. 24, Lucknow in
regular suit No.252/2012 (Ramesh Chandra
vs. Sarla Verma and Ors.), by which the
application of the defendant, before this
Court, for rejecting the plaint under Order
VII Rule 11 C.P.C., has been rejected. The
said application was numbered as paper No.
16 A, in which, it was averred by the
revisionists (Defendant Nos. 2 to 5), that
plaintiff's father was a member of the
society, who had died on 03.04.1974 and, as
such, the disputed plot has been mutated in
the name of plaintiff's mother. A complaint
was made to the Deputy Commissioner
(Housing) by one Baladutt Shetty and a suit
was also instituted under Section 70 U.P.
Co-operative Societies Act, in which an
award was made on 22.06.2004 and the
appeal against the award is pending and; the
suit is barred by time; which is also
defective, because of non-impleadment of
necessary parties. That the jurisdiction of
Civil Court is barred under Section 70 U.P.
Co-operative Societies Act and the plaint
deserves to be rejected under Order VII
Rule 11 C.P.C.. The defendant filed
objection 28 C. After hearing both the
parties, the learned Trial Court has rejected
the application and has observed that the
dispute before the Civil Court does not
relate to any dispute regarding membership
of the society and, as such, the Court has
jurisdiction to try the suit.

3. A perusal of the copy of plaint
contained in Annexure no. 1 shows that the
suit for permanent injunction has been filed
on the simplicitor ground that the plaintiff is
legal owner of the suit property. Mode of
ownership has been described from para-3
to para- 7, in which all the contents have
been mentioned. The defendants are
indulging in fraudulent act, as such,
defendant No. 1 has again executed the
subsequent sale-deed in favour of the
defendant Nos. 2 to 5 and, as such, the
execution was being processed and the suit
was filed under Section 111 of U.P. Cooperative Societies Act. Section 111 of the
U.P.
Co-operative
Societies
Act
is
reproduced below:-

Bar of Jurisdiction of court- Save as
expressly provided in this Act, no civil or
revenue court shall have any jurisdiction in
respect of-

(a) the registration of a co-operative
society or its bye-laws or of an amendment
of a bye-law;

(b) the supersession or suspension of a
Committee of Management.

(c) any dispute required under Section
70 to be referred to the Registrar; and
3 All] B.P. Singh & others V. Ramesh Chandra Rai and another
1115

(d) any other order or award made
under this Act.

4. In view of this provision, the Civil
Court shall not have jurisdiction to try a
case where registration of a Co-operative
Society or its bye-laws are, in question or
the subject-matter relate to supersession or
suspension of Management Committee, or
any dispute under Section 70 has been
preferred to any order or award made under
this Act. The learned trial Court rightly
observed that this is a suit relating to
property dispute.

5. Learned counsel for the revisionist
relied upon the law laid down by this court
in Smt.Vidyawati and Ors. vs. XIIth
Additional District Judge, Kanpur and
Ors.[2007 (67) ALR 677]. This authority
does not help the revisionist, as this
judgment relate to a dispute when two
persons were claiming to be members of the
society and the validity of membership had
to be decided. Similarly, the law laid down
by a Division Bench of this Court in
Maqsood Khan v. A.D.J. Bulandshahar
[1997 (30) ALR 416] relate to law in favour
of party by the Co-operative Society, and,
as such, the matter falls as a dispute under
Section 70 of U.P. Co-operative Societies
Act.

6. Learned counsel for the revisionist
relied upon the law laid down by the
Hon'ble Apex Court in Church of Christ
Charitable Trust v. M/s. Poonniamman
Educational Trust [2012 (30) LCDE 1413
(SC), in which it was held, "It is clear that
in order to consider Order VII Rule 11, the
Court has to look into the averments in the
plaint and the same can be exercised by the
trial Court at any stage of the suit. It is also
clear that the averments in the written
statement are immaterial and it is the duty
of
the
Court
to
scrutinize
the
averments/pleas in the plaint. In other
words, what needs to be looked into in
deciding such an application are the
averments in the plaint. At that stage, the
pleas taken by the defendant in the written
statement are wholly irrelevant and the
matter is to be decided only on the plaint
averments. These principles have been
reiterated in Raptakos Brett & Co. Ltd. V.
Ganesh Property (1998) 7 SCC 184 and
Mayar (H.K) Ltd. and Others v. Owners &
Parties, Vessel M.V. Fortune Express and
Others, (2006) 3 SCC 100.

7. Rule 11(d) shows, "Where the suit
appears from the statement and the plaint to
be barred in any law", the barring law, as
argued by learned counsel for the revisionist
falls under Section 111 of U.P. Cooperative Societies Act, which has been
reproduced
above.
The
dispute,
as
enumerated in the plaint, does not disclose
dispute relating to registration of a Cooperative Society or its bye- laws, nor it
relates to the supersession or suspension of
Committee of Management nor against any
order or award made under U.P. Cooperative Societies Act, nor it is a dispute as
enumerated in Section 70 of the U.P. Cooperative Socieities Act.

8. As mentioned earlier, the suit is for
permanent injunction by which the plaintiff
has prayed that a decree for permanent
injunction be granted and defendant nos. 2
to 5 be restrained from interfering in
peaceful possession and enjoyment of
plaintiff over the disputed plot or from
entering into the premises to the said plot, in
any
manner
whatsoever.
Ouster
of
jurisdiction is not to be easily inferred. Bar
of jurisdiction is to be established by cogent
reasonings. In a civil suit, plaintiff is the
'dominus litus', and the plaint can only be
1116 INDIAN LAW REPORTS ALLAHABAD SERIES [2012
rejected through a meaningful-not formalreading of the plaint. If it is manifestly
vexatious and meritless, in the sense of not
disclosing a cause of action or clear right to
sue, the Trial Court should exercise his
power under Order VII Rule 11 C.P.C.

9. At this stage, it is noteworthy that,
if a clever drafting has created the illusion
of a cause of action, it is incumbent upon
the Trial Judge to nip in the bud, at the first
hearing, by examining the party searchingly
under Order X C.P.C.

10. An application for rejection of the
plaint can be filed if the allegations made in
the plaint even if given face value and taken
to be correct in their entirety appear to be
barred by any law. The question as to
whether a suit is barred by limitation or not
would, therefore, depend upon the facts and
circumstances of each case. For the said
purpose, only the averments made in the
plaint are relevant. At this stage, the court
would not be entitled to consider the case of
the defence. (See Popat and Kotecha
Property v. SBI Staff Assn. (2005) 7 SCC
510)

11. In view of the fact and keeping in
view of the legal angle, the impugned order
is in consonance with law and need no
interference.

12. On the other score, in view of the
law laid down by a full Bench of the
Hon'ble Apex Court in the case of
Pandurang Dhoni Chougule vs Maruti
Hari Jadhav reported in AIR 1966 SC,
153, in which it has been held, "It is wellsettled that a plea of limitation or a plea of
res judicata is a plea of law which concerns
the jurisdiction of the Court, which tries the
proceedings. A finding on these pleas in
favour of the party raising them would oust
the jurisdiction of the Court, and so, an
erroneous decision on these pleas can be
said to be concerned with questions of
jurisdiction which fall within the purview of
Section 115 of the Code. But an erroneous
decision on a question of law reached by
the subordinate court which has no relation
to questions of jurisdiction of that Court,
cannot be corrected by the High Court
under Section 115.", the revision is not
maintainable.

13. On the basis of the discussions
made above, the revision is dismissed.
---------
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 03.09.2012

BEFORE
THE HON'BLE RAMESH SINHA, J.

Criminal Misc. Application No. 1335 of
1999

Dr. Ajay Sharma

 ...Applicant
Versus
State of U.P. & others ...Respondents

Counsel for the Petitioner:
Sri Tarun Kumar Srivastava

Counsel for the Respondents:
A.G.A.

Code of Criminal Procedure-Section 482-
Summoning Order to face trail-offence
under
Section
304-A
I.P.C.-applicant
being doctor-negligently put plaster in
hand of deceased-caused death after 14
days-admittedly
no
post
mortem
conduced to ascertain the cause of
death-negligence
of
treatment
not
established-Trail
Court
as
well
as
revisional court wrongly over sighted
this aspect complaint if prima facie
constitute no offence-order impugned
quashed.