w w w . L a w y e r S e r v i c e s . i n



M/s. Aiswarya & Co., Joint Family Business, Rep by its Partners P. Balakrishnan & Others v/s Tiruchirapalli Cooperative House Construction Society Limited, Rep by its Secretary, Tiruchirapalli & Others

    S.A.(MD)Nos. 258 & 261 of 2004, 340 & 469 of 2005 & C.M.P.(MD)Nos. 1165 of 2004

    Decided On, 03 August 2018

    At, Before the Madurai Bench of Madras High Court

    By, THE HONOURABLE MR. JUSTICE M. SUNDAR

    For the Appearing Parties: K.S. Vamsidhar, S. Vinayak, M. Sivasankaran, Raguvaran Gopalan, Advocates, C. Ramar, Additional Government Pleader.



Judgment Text


(Prayer: S.A.(MD)No.258 of 2004 under Section 100 of CPC against the judgment and decree of the First Additional Subordinate Judge, Tiruchirapalli dated 13.01.2004 made in A.S.No.27 of 1998, partly allowing and partly confirming the judgment and decree of the II Additional District Munsif, Tiruchirapalli dated 03.10.1997 made in O.S.No.370 of 1996.

S.A.(MD)No.261 of 2004 under Section 100 of CPC against the judgment and decree of the First Additional Subordinate Judge, Tiruchirapalli dated 13.01.2004 made in A.S.No.28 of 1998, partly allowing and partly confirming the judgment and decree of the II Additional District Munsif, Tiruchirapalli dated 03.10.1997 made in O.S.No.427 of 1996.

S.A.(MD)No.340 of 2005 under Section 100 of CPC against the judgment and decree of the First Additional Subordinate Judge, Tiruchirapalli dated 13.01.2004 made in A.S.No.90 of 1998, confirming the judgment and decree of the II Additional District Munsif, Tiruchirapalli dated 03.10.1997 made in O.S.No.427 of 1996.

S.A.(MD)No.469 of 2005 under Section 100 of CPC against the judgment and decree of the First Additional Subordinate Judge, Tiruchirapalli dated 13.01.2004 made in A.S.No.74 of 1998, confirming the judgment and decree of the II Additional District Munsif, Tiruchirapalli dated 03.10.1997 made in O.S.No.370 of 1996.)

Common Judgment:

M. Sundar, J.

1. This is a common judgment in S.A.(MD)Nos.258 of 2004, 261 of 2004, 340 of 2005 and 469 of 2005. This common judgment will govern the instant four second appeals, as all the four second appeals arise out of a common judgment and decree in four regular first appeals which in turn arise out of a common judgment and decree in two suits in trial court which arise out of a common factual matrix.

2. It may be necessary to set out a thumbnail sketch of facts (sans unnecessary details and particulars), which are necessary for appreciating and understanding this common judgment.

3. A housing plot admeasuring 5,275 square feet (2.19 grounds) or thereabouts being plot No.AA.25 in Annanagar Housing Colony in Tennur village in Tiruchirappalli Taluk in Tiruchirappalli District is the nucleus of this entire litigation and this plot shall hereinafter be referred to as 'suit plot' for the sake of brevity, clarity and convenience.

4. A cooperative society which goes by the name 'Tiruchirappalli Cooperative House Construction Society Limited', which shall hereinafter be referred to as 'said society', developed a large extent of land by making a layout and creating housing plots. The said society sold various plots in this layout to various persons by way of allotment / sale. The suit plot was allotted to one Shenbagalakshmi in 1981 and 'Shenbagalakshmi' shall hereinafter be referred to as 'original allottee' for the sake of brevity, convenience and clarity. Subsequently, the said society cancelled the allotment of the suit plot in favour of original allottee, conducted an auction and sold the suit plot to one 'Aiswarya & Co.', a joint family business, which shall hereinafter be referred to as 'auction purchaser' for the sake of brevity, clarity and convenience. To be noted, District Collector, Tiruchirppalli and Deputy Registrar of Cooperative Housing, Tiruchirappalli are officials to which the said society is accountable. The said officials are collectively referred to as 'State'.

5. Alleging that she is aggrieved by the cancellation of the suit plot and auction of the same, the original allottee filed a suit in O.S.No.434 of 1989 on the file of the Subordinate Judge's Court, Tiruchirappalli, inter-alia assailing the auction. The suit was subsequently transferred to the file of 'II Additional District Munsif Court, Tiruchirappalli' (hereinafter referred to as ' trial court' for the sake of convenience and brevity) and was assigned the number O.S.No.370 of 1996 .

6. After filing of the aforesaid suit, original allottee filed one more suit being O.S.No.70 of 1991 on the file of the Sub Court, Tiruchirappalli, inter-alia assailing the sale of suit plot in favour of auction purchaser. This suit is predicated on the ground that such sale took place pending earlier suit. This suit being O.S.No.70 of 1991 was also transferred from Sub Court, Tiruchirappalli to trial court and assigned the number O.S.No.427 of 1996.

7. For the sake of convenience and clarity, O.S.No.370 of 1996 on the file of trial court being prior in point of time shall be referred to as 'senior suit' and O.S.No.427 of 1996 on the file of trial court shall be referred to as 'junior suit' .

8. From the narration thus far, it will be clear that the senior and junior suits arise out of same factual matrix. Therefore, there was a joint trial of senior and junior suits in the trial court.

9. To be noted, in the senior suit, there were two defendants. Said society was defendant No.1 and the auction purchaser was defendant No.2. In the junior suit, there were four defendants. State constituted by aforesaid two officials were arrayed as defendants 1 and 2. The said society and auction purchaser were arrayed as defendants 3 and 4 respectively.

10. After joint trial, both suits, i.e., senior and junior suits were disposed of by a common judgment dated 03.10.1997. To be noted, there was one common judgment and two decrees. Instead of saying that senior and junior suits were decreed, it may be appropriate to say that original allottee was granted relief vide this common judgment. The decree in the senior suit is to the effect that the said society should receive balance consideration for suit plot from the original allottee and execute a sale deed in her favour. In the junior suit, the decree was to the effect that the said society and auction purchaser should hand over possession of the suit plot to the original allottee after receiving the balance amount. There is also a further limb of the decree which says that 36 plots in the layout (layout in which suit plot is situate) should not be alienated by the said society.

11. Original allottee as plaintiff in the senior and junior suits was satisfied with the reliefs granted to her and did not file any appeal. However, said society and auction purchaser carried the matter by way of regular first appeals under Section 96 of Code of Civil Procedure, 1908 (hereinafter referred to as 'CPC' for brevity).

12. As there are two decrees of trial court, the said society and auction purchaser preferred two appeals each. Appeals preferred by said society are A.S.Nos.74 and 90 of 1998. Appeals preferred by auction purchaser are A.S.Nos.27 and 28 of 1998. All the four regular first appeals were on the file of 'Sub Court, Tiruchirappalli', which shall hereinafter be referred to as 'first appellate court' for the sake of convenience and clarity.

13. All the four appeals were heard together and after full contest, all four appeals were disposed of by a common judgment dated 13.1.2004. Vide this common judgment, the first appellate court, pragmatically speaking improvised and legally speaking modified the judgment of trial court. The first appellate court vide common judgment held that the original allottee should be given a plot (in the same lay out) which is similar in dimensions and similar to that of suit plot. First appellate court also held that the said society will be entitled to get balance payment only in accordance with the consideration of the suit plot in 1981 when the plot was initially allotted to original allottee. First appellate court also held that alternatively, if no plots are available for conveyance to the original allottee in the aforesaid manner, superstructure put up by auction purchaser in the suit plot should be valued by the official valuer and original allottee should pay for the superstructure at that rate and housing society should convey the suit plot along with superstructure to the original allottee. There was one more limb of the judgment of the first appellate court and that is to the effect that the said society should return the entire consideration to the auction purchaser. The original allottee was satisfied with the aforesaid common judgment of first appellate court and did not prefer any appeal.

14. However, the said society and auction purchaser preferred two second appeals each in this court under Section 100 CPC. The two second appeals each preferred by the said society and the auction purchaser are the instant four second appeals.

15. The two second appeals preferred by the said society being S.A.(MD)Nos.340 and 469 of 2005 were admitted by this court on 15.7.2005 on three substantial questions of law and they are as follows :

"1.Whether the application of Principle of Law relating to declaration has been considered?

2. Whether the suit seeking declaration of an infructuous relief without a prayer for declaration questioning the Cancellation is maintainable?

3. Whether the Court can grant a decree which is neither prayed for by any of the parties nor arising based on circumstances or documents during the course of trial?"

16. With regard to two second appeals preferred by auction purchaser, while S.A.(MD)No.261 of 2004 was admitted on 13.10.2004, S.A.(MD)No.258 of 2004 was admitted on 28.12.2004. However, both second appeals were admitted on same set out substantial questions of law and they are as follows :

"1.Whether the Suits filed by the plaintiff were not barred by limitation?

2. Whether the plaintiff was entitled to sue for declaration that the auction was void or for declaration of title without setting aside the cancellation of allotment in her favour?

3. Whether the plaintiff, whose allotment was cancelled by the second defendant, was entitled to sue for possession of the suit property without seeking the relief of specific performance?

4. Whether the lower Courts were justified in ignoring Exhibits B1 to B17 filed by the first defendant?

5. Whether the lower Courts were justified in not drawing an adverse inference against the plaintiff for non production of the letters alleged to have been written by her intimating the changes in her addresses?

6. Whether it was equitable on the part of the lower Appellate Court in asking it to sell the property to the plaintiff?"

17. Instant four second appeals were before this court for final hearing. On behalf of auction purchaser, Mr.K.S.Vamsidhar, learned counsel was before this court. On behalf of the said society, Mr.S.Vinayak, learned counsel representing the counsel on record Mr.M.Sivasankaran was before this Court. On behalf of original allottee, Mr.Raguvaran Gopalan, learned counsel was before this Court. On behalf of the State, Mr.C.Ramar, learned Additional Government Pleader was before this Court. All learned counsel were heard.

18. Mr.K.S.Vamsidhar, learned counsel appearing for auction purchaser, i.e., appellant in S.A.(MD)Nos.258 of 2004 and 261 of 2004 opened the submissions and his submissions can be summarised as follows :

(a) Senior and junior suits in trial court are barred by limitation, i.e., by Article 113 of the Limitation Act, 1963. This submission is predicated on the ground that the cause of action for the original allottee is cancellation and not auction.

(b) The cancellation is vide Ex.B.17, dated 22.10.1982 and therefore, the senior suit filed on 16.8.1989 is barred by limitation. To be noted, junior suit was filed thereafter.

(c) Original allottee has not sought for recovery of possession and there is a mere prayer for mandatory injunction for delivery of suit plot, which is not maintainable.

(d) On a demurrer, the auction purchaser is entitled to damages from the said society. To be noted, in all other respects, the society and auction purchaser are sailing together.

19. Thereafter, Mr.S.Vinayak, learned counsel appearing for counsel on record for the said society, which is appellant in S.A.(MD)Nos.340 of 2005 and 469 of 2005 made submissions which are as follows :

(a) Prayer in the senior suit is inter-alia assailing the auction and the prayer in the junior suit is inter-alia assailing the sale deed. A perusal of the common judgment and the two decrees therefrom made by the trial court would reveal that the trial court has not decreed the suits as prayed for. In other words, the trial court has neither set aside the auction nor set aside the sale. The original allottee has not preferred any appeal against the senior and junior suits not being decreed as prayed for. Having given quietus to the trial court decree, the original allottee cannot now seek for other reliefs.

(b) The first appellate court has not adhered to the provisions of Order XLI Rule 31 CPC as it had not formulated points for determination / consideration. Owing to this, the common judgment of the first appellate court is vitiated and is liable to be set aside.

(c) Jurisdiction of civil court is ousted by Section 156 of the Tamil Nadu Cooperative Societies Act, 1983 (hereinafter referred to as 'said Act' for brevity) read with Section 9 CPC.

(d) First appellate court ought not to have granted reliefs that were not prayed for and the first appellate court ought not to have travelled beyond the scope of the suit in the appeal, but, it did so in granting the relief in its common judgment.

20. Mr.C.Ramar, learned Additional Government Pleader appearing for the State submitted that the State is only a formal party and it will merely remain bound by any judgment and decree that is made in these proceedings.

21. Mr.Raguvaran Gopalan, learned counsel appearing for original allottee made submissions which are as follows :

(a) Original allottee did not prefer any appeal against the judgment and decree of trial court as well as judgment and decree of first appellate court as the original allottee was granted relief and she was more than satisfied with the reliefs that were granted. Therefore, it cannot be put against the original allottee that she did not prefer an appeal.

(b) Prayer in the junior suit is very specific, particularly the second limb of the prayer and therefore, it cannot be said that the first appellate court travelled beyond the prayer. In any event, the court has power to mould the relief and that is what had been done by the first appellate court. Such powers are vested in the civil court under Order XLI Rule 33 CPC.

(c) Regarding ouster of jurisdiction of civil court by Section 156 of the said Act read with Section 9 of CPC, Section 156 of the said Act would only apply to members of the said society and only with regard to the dispute touching upon the members of the society. In other words, it will not apply to a civil suit of this nature. Section 156 of the said Act should be read in the context of section 90 of the said Act.

(d) There is no clause in the original allotment, which empowers the said society to unilaterally cancel the allotment. It was first introduced or first brought up as an after thought vide Ex.B.11 dated 20.5.1982 and developed vide Ex.B.14 dated 16.8.1982.

(e) The cancellation is void ab initio vide Ex.B.17, dated 22.10.1982 and when a document or an act is void ab initio, the original allottee need not make any election as in the case of voidable document or voidable action, the said society had not served the original allottee with notice qua cancellation and that the cancellation was bad on this ground also. Ex.B.18 returned cover and Ex.B.19 receipt dated 17.08.1989 are clinches.

(f) It cannot be said that common judgment of the first appellate court is vitiated for violation of Order XLI Rule 31 CPC as there is enough and more discussion in the judgment of first appellate court to show that the first appellate court has applied its mind independently and there is even discussion regarding ouster of civil court's jurisdiction.

22. Let us now examine the aforesaid rival submissions. To be noted, the said society, auction purchaser and the State have made submissions on one side and the original allottee has made rival submissions on the other side. Therefore, the discussion will proceed on this line.

23. On a careful analysis of the nine substantial questions of law on which these four second appeals have been admitted and rival submissions made by three counsel (both auction purchaser and said society on one side and original allottee on the other side), all of which have been either extracted or alluded to supra, would reveal that substantial questions of law and the submissions can be narrowed down and compartmentalized into five heads for the sake of ease of discussion. Those five heads are as follows:

(i) Original allottee did not challenge cancellation, whether this disentitles the original allottee to get reliefs?

(ii) Declaratory limbs of prayer regarding challenge to auction and sale deed were not decreed, but relief was granted to original allottee, is this permissible?

(iii) Are senior and junior suits in the trial court hit by Article 113 of the Limitation Act, 1963, resulting in suits being time barred?

(iv) Is the jurisdiction of civil court ousted in this case in the light of Section 156 of the said Act read with Section 9 CPC?

(v)Is the judgment of the first appellate court vitiated owing to non compliance with Order XLI Rule 31 CPC?

24. With regard to original allottee not challenging the cancellation, it is to be noted that the cancellation is vide communication from said society to original allottee dated 22.10.1982 (Ex.B.17). It is not in dispute before this Court that there is nothing on record to show that Ex.B.17 was served on the original allottee. Further more, three communications preceding Ex.B.17 being letters dated 14.2.1982, 20.5.1982 and 16.8.1982 (Exs.B.10, B.11 and B.14 respectively) from the said society to the original allottee were also not served on the original allottee and there is no dispute or disagreement on this aspect before this Court. In this regard, Mr.Raguvaran Gopalan, learned counsel for original allottee pressed into service a decision of the Supreme Court in L.M.S.Ummu Saleema Vs. B.B.Gujaral, (1981) 3 SCC 317 for the principle that a letter merely posted / mailed cannot lead to an automatic presumption that it has reached the addressee in due course. It is his emphatic say that neither Section 16 nor Section 114 of the Evidence Act, 1872 compels the Court to draw a presumption in this regard. In other words, it is his say that it is only a permissible presumption and not an inevitable presumption. Learned counsel drew the attention of this Court to paragraph 6 of Ummu Saleema case and relevant portion of paragraph 6 reads as follows :

"6. .....The certificate of posting might lead to a presumption that a letter addressed to the Assistant Collector of Customs was posted on August 14, 1980 and in due course reached the addressee. But, that is only a permissible and not an inevitable presumption. Neither Section 16 nor Section 114 of the Evidence Act compels the court to draw a presumption. The presumption may or may not be drawn. On the facts and circumstances of a case, the court may refuse to draw the presumption. On the other hand the presumption may be drawn initially but on a consideration of the evidence the court may hold the presumption rebutted and may arrive at the conclusion that no letter was received by the addressee or that no letter was ever despatched as claimed. After all, there have been cases in the past, though rare, where postal certificates and even postal seals have been manufactured. In the circumstances of the present case, circumstances to which we have already referred, we are satisfied that no such letter of retraction was posted as claimed by the detenu."

25. Further more, a conjoint reading of the correspondence between the original allottee and the said society post Ex.B.17 being letters dated 09.05.1984 from the original allottee to the said society, 08.08.1984 from the said society to original allottee, 31.08.1984 from the original allottee to the said society and 31.10.1984 from the said society to the original allottee being Exs.B.1, B.2, B.4 and B.5 respectively clearly reveal that neither the cancellation notice, i.e., Ex.B.17 nor the three communications preceding the same were served on the original allottee. In fact, in the cancellation notice, i.e., Ex.B.17, said society itself has clearly admitted that letters sent to the original allottee have been returned unserved. In this regard, it is necessary to extract Ex.B.17 and it reads as follows:

“TAMIL”

26. It needs no elaboration to say that an order which is not served on the addressee / noticee is no order in the eye of law and therefore, it cannot be put against the original allottee to say that she has not challenged the cancellation and she is therefore not entitled to get relief in this litigation.

27. In the light of Ex.B.17 cancellation order and all communications preceding the same not being served on the original allottee, cause of action for the original allottee can only be the auction notice issued by said society on 13.08.1989. In other words, the cause of action is not cancellation vide Ex.B.17, but auction notice issued by said society on 13.8.1989.

28. This takes us to the next question as to whether it was permissible to grant relief to original allottee without decreeing declaratory limbs of the plaint prayer and whether the original allottee not challenging the declaratory reliefs not being decreed as prayed for, will disentitle her from getting reliefs. One aspect that comes out clearly which has to be borne in mind in examining this question and searching for an answer to the same is that declaratory reliefs were not negatived. In other words, the suits of the original allottee were not dismissed with regard to the declaratory reliefs. A careful perusal of the judgment of the trial court will reveal that the trial court directed the said society to receive the balance amount and execute a sale deed in favour of the original allottee with regard to the suit plot. In other words, the trial court has moulded the relief. Likewise, a careful examination of the judgment of the first appellate court will reveal that the first appellate court has directed the said society and auction purchaser to hand over possession of the suit plot to the original allottee after receiving the balance amount. An alternate relief of allotting a plot similar to the suit plot to the original allottee in the same lay out also forms part of the relief granted by the first appellate court. Therefore, this is not a case where courts below negatived the declaratory reliefs. Courts below have merely moulded the relief. This is more so in the case of the first appellate court as it is evident that the first appellate court has tried to balance the legal rights and equities of parties and has moulded the reliefs with the objective of mitigating the inconvenience and loss of the three litigants. In other words, the first appellate court has ensured that the judgment is not completely harsh to any one of the parties and has moulded the relief in such a way that the relief is balanced by minimizing the loss and damages to three litigants, i.e., said society, original allottee and auction purchaser.

29. Whether the aforesaid approach is permissible or not will be examined infra in this judgment as the same has been put in issue, but, it cannot be denied that declaratory reliefs have not been declined or negatived.

30. Mr.Vamsidhar, learned counsel for auction purchaser pressed into service a judgment of Supreme Court in State of Punjab Vs. Jaswinder Singh, (2017) AIR SC 2881 in this regard. This is a case where a delinquent against whom disciplinary proceedings were conducted and punishment imposing withholding of increment was passed, approached the prescribed authority under the Payment of Wages Act, 1936 without challenging the order in the disciplinary proceedings. This matter arises under Service Law. More over, the delinquent who suffered an order of withholding of increment will obviously be entitled to payment of wages at the obtaining rate only subject to final outcome in the disciplinary proceedings. Without challenging the increment being withheld, obviously the delinquent could not have approached another authority for payment of wages at obtaining quantum / rate. This is completely distinguishable on facts and it does not help the auction purchaser in the instant case.

31. In this regard, learned counsel for the said society Mr.S.Vinayak pressed into service a judgment of this Court in Palaniyandi Vs. Palanisamy, (2018) 3 CTC 638 in an attempt to say that the original allottee is not entitled to relief when declaratory reliefs have not been granted. My attention was drawn to paragraph 24 of the said judgment. A perusal of the said judgment would reveal that it is a case where a suit for declaration of title and consequential injunction was filed. Trial Court after full contest, dismissed the prayer for declaration of title. Dismissal of the prayer for declaration of title was not assailed by plaintiff. In the instant case, declaratory reliefs sought for by the original allottee have not been dismissed. The reliefs have merely been moulded. Further more, that is a case where the permanent injunction prayer was a consequential relief. That is not the case here. In fact, in paragraph 24 itself, Kallappa Setty case has been distinguished by saying that Kallappa Setty case is one where plaintiff did not suffer dismissal for declaratory relief. It may be appropriate to extract paragraph 24 and the same reads as follows :

"24.It is highlighted by learned counsel for Respondents that in the instant case, Trial Court after full contest dismissed the prayer for Declaration of Title and more importantly that dismissal has not been assailed any further. The dismissal of the prayer for Declaration of Title by Trial Court has been given legal quietus in the instant case. This according to learned counsel is the third distinguishing feature. This third distinguishing factor Appeals to my mind and I am of the view that Plaintiff / Appellant not having challenged the dismissal of the prayer for Declaration of Title and giving quietus to the same is clearly fatal to the Plaintiff / Appellant. In other words, in Kallappa Setty case, the Plaintiff therein did not suffer dismissal of declaratory relief. On the contrary, declaration of title relief was granted concurrently by both Courts below. The two Courts below are Court of facts. When Courts which dealt with facts have given the relief of declaration of title and particularly when the second Court below is the last Court of facts exercising power under Section 96 of CPC, the High Court reversed it in Section 100 CPC. That is not the scenario here. Therefore, the principle in Kallappa Setty case definitely does not help the Appellant / Plaintiff in the instant case. In this view of the matter, I answer Substantial Question of Law No.(a) in favour of Respondents and against the Appellant. I accept the submission of learned Counsel for Respondents that Substantial Question of Law (a) does not arise in the instant case owing to the aforesaid reasons. To be noted, Respondents in the Second Appeal under Section 100 CPC are entitled to do so under sub-section (5) of Section 100 CPC."

32. A portion of paragraph 26 is also relevant and the same reads as follows :

"26. ... In this context, at the peril of repetition, it has to be noted that prayer in the Plaint itself is for Declaration of Title and 'consequential' injunction as alluded to supra....."

33. It is obvious that the first appellate court has moulded the relief only with an intention of minimizing the loss to all parties at litigation and with an objective of ensuring that the decree is not harsh on any one of the litigants. Therefore, the technical plea that the relief ought not to have been granted without decreeing declaratory limb of prayer does not find favour with me. However, two judgments being Hameed Joharan Vs. Abdul Salam, (2001) 7 SCC 573 and Raghunath Rai Bareja Vs. Punjab National Bank, (2007) 5 CTC 642 were pressed into service by learned counsel for the said society.

34. Hameed Joharan case was pressed into service for the principle that the delay destroys equity and Raghunath Rai Bareja case was pressed into service for the principle that law will prevail over equity when there is a conflict between the two. I have already held in the light of the correspondence between original allottee and the said society preceding Ex.B.17 and post Ex.B.17, that the cause of action is the auction notice and not cancellation. Therefore, delay destroys equity principle does not help the said society in the instant case. Raghunath Rai Bareja case is one where a huge nationalised bank made a claim which was clearly held to be time barred. In this context, when a desperate plea was made on behalf of the bank that it would be very unfair if the guarantor of the loan and Director of the Company which took loan is allowed to not to pay debt, it was held that law will prevail when there is a conflict between law and equity. That was a clear case where a huge nationalised bank made a claim which was held to be time barred.

35. In Raghunath Rai Bareje case, the Supreme Court has clearly held that the claim made by the nationalised bank is time barred in the light of Section 24 of the Recovery of Debts Due to Banks and Financial Institutions Act, 1993 read with Article 136 of the Limitation Act. There are two distinguishing factors. If the cause of action is auction notice dated 13.8.1989, it cannot be gainsaid that the suit is time barred. The other distinguishing factor is Raghunath Rai Bareja is a case where a huge nationalized bank made a time barred claim, whereas in the instant case, an individual who wants the suit plot for building a house in her native place is pitted against a large entity, i.e., said society. Therefore, in whichever perspective the matter is approached, Raghunath Rai Bareja case does not help the said society in the instant case.

36. A bare perusal of Rule 33 of Order XLI CPC reveals that courts below are certainly vested with powers to mould the relief. Therefore, in the light of the powers vested in the courts below read in the context of declaratory limbs of prayer not being negatived or dismissed, puts an end to the argument that relief ought not to have been given to the original allottee without decreeing the declaratory limbs of the prayer in the plaint. In other words, this submission gets doused as untenable in the light of Order XLI Rule 33 CPC. Further more, it cannot be put against the original allottee to say that the original allottee has not preferred an appeal against declaratory limbs not being decreed, owing to the peculiar facts of this case. It is obvious that the original allottee could not have preferred an appeal for two reasons. One reason is, there can be no appeal against a mere finding. However, in this case, there is not even a finding that the original allottee is not entitled to declaratory limbs of prayer. The second reason as to why the original allottee could not have preferred an appeal is that the original allottee is not a 'person aggrieved' qua trial court's judgment and first appellate court's judgment as the original allottee has clearly been granted reliefs by both courts below.

37. This takes us to the third question as to whether the senior and junior suits are time barred as being hit by Article 113 of the Limitation Act. Article 113 of the Limitation Act is a residuary article and it deals with the suits which have not been otherwise provided for. Be that as it may, in answering the first and second compartmentalized heads as well as an analysis of the relevant exhibits and pleadings, this court has come to a conclusion that the cause of action for the original allottee in the instant case can only be the auction notice dated 13.8.1989 and not cancellation vide Ex.B.17. In this view of the matter, there is no dispute that the auction notice is dated 13.8.1989 and senior suit was filed on 16.8.1989. To be noted, the junior suit was filed in 1991. To be precise, it was filed on 11.01.1991. Therefore, the contention that the senior and junior suits are time barred being hit by Article 113 of the Limitation Act does not find favour with the court.

38. Be that as it may, for the purpose of capturing the hearing as comprehensively as possible, it has to be noticed that Mr.Vamsidhar, learned counsel for the auction purchaser pressed into service Steel Authority of India Ltd. Vs. J.C.Budharaja, Government and Mining Contractor, (1999) AIR SC 3275. This judgment was pressed into service for the principle that limitation period cannot be extended by writing letters. It is obviously based on the premise that the limitation started to run from the date of Ex.B.17 being dated 22.10.1982. Reference is to Exs.B.1 and B.4, dated 09.05.1984 and 31.08.1984 respectively from the plaintiff. As already alluded to supra, Ex.B.17 notice was never served on the original allottee and the three crucial communications (Exs.B.10, B.11 and B.14) preceding Ex.B.17 notice or in other words, communications which led to Ex.B.17 were admittedly never served on the original allottee. In this view of the matter, this court has already held that Ex.B.17 is not the cause of action and that the cause of action is only auction notice dated 13.81989. Therefore, this judgment also does not help the auction purchaser in the instant case.

39. This takes us to the next head as to whether the jurisdiction of civil court is barred by Section 156 of the said Act read with Section 9 CPC. Section 156 of the said Act reads as follows:

"156.Bar of jurisdiction of Civil Courts.-- Notwithstanding anything contained in any other law for the time being in force, no order or award passed, decision or action taken or direction issued under this Act by an arbitrator, a liquidator, the Registrar or an officer authorised or empowered by him, the Tribunal or the Governmen

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t or any officer subordinate to them, shall be liable to be called in question in any court and no injunction shall be granted by any court in respect of anything which is done or intended to be done by or under this Act." 40. In this regard, Mr.Raguvaran Gopalan, learned counsel for the original allottee pressed into service a judgment of this Court in Somasundaram Vs. Liyakat Ali and another,1998 2 LLJ 719 for the principle that only those powers which authorities under the said Act are asked to exercise cannot be called in question in civil suit. It was also his further submission that Section 156 should be read in the context of Section 9 of CPC and section 90 of the said Act. To be noted, Section 90 of the said Act is captioned 'Disputes' and is an enumeration of disputes. Disputes not covered by this enumeration will not be excluded under Section 156 is Mr.Raguvaran Gopalan's say. 41. There can be no doubt or dispute about the principle that ouster of jurisdiction should be complete and absolute to cover suits of all nature. Viewed in this perspective, this court has no difficulty in accepting the submission that for the suits of this nature, out of which the instant second appeals arise is not barred by Section 156 of the said Act. 42. This takes us to the last head as to whether the first appellate court judgment is vitiated for non compliance with Order XLI Rule 31 CPC. 43. While examining whether a judgment is vitiated for non compliance with Order XLI Rule 31 CPC, principle in G.Amalorpavam and others Vs R.C.Diocese of Madurai and others, (2006) 3 SCC 224 laid down by Supreme Court has to be borne in mind. Whenever such a plea is taken, it has to be seen whether first appellate court has examined all aspects of the matter independently and given a finding. Amalorpavam principle is to the effect that if the first appellate court has examined all aspects of the matter independently and returned a finding, it should be considered as substantial compliance with Order XLI Rule 31 CPC notwithstanding the fact that specific points for determination have not been formulated. This court examined the judgment of the first appellate court by using Amalorpavam principle as touch stone. A bare perusal of the judgment of the first appellate court reveals that the first appellate court has clearly applied its mind independently to all aspects of the matter and returned a finding on the same. The first appellate court, as mentioned in pragmatic terms improvised and in legal terms moulded the relief in order to mitigate the loss and hardships for the litigant parties. In this view of the matter, I have no difficulty in coming to a conclusion that the judgment of the first appellate court in the instant case is not vitiated owing to non compliance with Order XLI Rule 31 CPC. 44. From the discussions supra, it unfurls clearly that all the nine substantial questions of law on which the four second appeals were admitted stands answered against the two appellants, i.e., said society and auction purchaser. In other words, all the substantial questions of law are answered in favour of the respondent / original allottee. 45. Before parting with the case, it may be necessary to notice that the said society is a housing society. The objective is to promote housing. In this view of the mater, this court is in full and complete agreement with the view taken and relief granted by the first appellate court. This court finds no reason whatsoever to interfere with the judgment and decree of the first appellate court, much less any ground to dislodge the same. 46. Owing to all that have been set out supra, these four second appeals are dismissed, leaving the parties to bear their respective costs. Consequently, connected miscellaneous petition is closed.
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