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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

possession of the plots to its 1197 members.  The appellant-

Society also claims that many of its members have built their

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

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(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 20th

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 25th

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

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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 14th 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

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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.

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(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.

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

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

..........................J.         (INDIRA BANERJEE)

NEW DELHI, SEPTEMBER 27, 2018.