Smriti Grih Nirman Sahakari Sanstha Maryadit Sanstha Office Vs Dinesh Kumar Dubey

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2025:CGHC:9058-DB

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NAFR

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Digitally signed by BABLU BABLU RAJENDRA RAJENDRA BHANARKAR BHANARKAR Date: 2025.02.22 11:01:29 +0530

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HIGH COURT OF CHHATTISGARH AT BILASPUR

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WA No. 134 of 2025

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Smriti Grih Nirman Sahakari Sanstha Maryadit Sanstha Office Smriti Nagar, Bhilai Tahsil And District Durg, Through Its President Rajiv Choubey S/o Late B.K. Choubey, Aged About 53 Years, R/o A-79, Street No. 23, Smriti Nagar, Bhilai, District Durg (C.G.)

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... Appellant

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versus

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Dinesh Kumar Dubey S/o Chandrika Prasad Dubey Aged About 55 Years R/o House No. 637, (Wrongly Mentioned As Makaran) Ward No. 16, Sikola Basti, Tahsil And District Durg (C.G.)

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... Respondent

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For Appellant : Mr.Manish Upadhyay, Advocate

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Hon'ble Shri Ramesh Sinha, Chief Justice Hon'ble Shri Ravindra Kumar Agrawal, Judge

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Judgment on Board

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Per Ramesh Sinha, Chief Justice

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21.02.2025

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Heard Mr. Manish Upadhyay, learned counsel, appearing for the appellant on I.A.No.01/2025, which is an application for condonation of delay of 24 days in filing the present writ appeal.

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On due consideration, I.A.No.01/2025 is allowed. Delay is condoned.

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The present writ appeal is directed against an order dated 12.11.2024 passed by learned Single Judge in WPC No. 1146/2022, whereby the learned Single Judge has allowed the writ petition filed by the writ petitioner / appellant herein.

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Brief facts of the case are that writ petition has been filed by the appellant against order dated 16.02.2022 passed by the learned Chhattisgarh State Cooperative Tribunal, Bilaspur (C.G.) in Misc. Case No. 01/2022 whereby dismissing the application filed by the appellant under Order 9 Rule 9 of the CPC for restoration of the unregistered Second Appeal which was dismissed for want of prosecution on 07.10.2021 by the Chhattisgarh State Cooperative Tribunal, Bilaspur (C.G).

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The respondent had purchased one plot bearing No. 421/B area 2400 sq. ft. through registered sale deed dated 19.06.2001 from the then President of the appellant society namely S.K. Das. The said land had already been purchased by one S.K. Agrawal through registered sale deed dated 06.02.1985 due to which the second sale deed itself invalid. Thereafter case No. E-64-70/2018 has been filed by the respondent before Deputy Registrar, Cooperative Societies, Durg for compensation of loss occurred to the respondent and the said suit has been allowed by the Deputy Registrar under Section 64 of the Chhattisgarh Cooperative Societies Act, 1960 by order dated 24.10.2019.

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Against the said order, appeal has been preferred by the appellant society before the Joint Registrar Cooperative Societies Durg along

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with an application for condonation of delay, but the said unregistered appeal of the appellant society has been dismissed by the Joint Registrar on the ground of delay of one year, one month and three days by the appellant society by order dated 14.12.2020.

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Against the said order, second appeal has been preferred by the appellant society under Section 78(2) of the Chhattisgarh Cooperative Societies act, 1960 before the Chhattisgarh State Cooperative Tribunal, Bilaspur and the said unregistered appeal listed on 17.10.2021 before the Hon'ble Tribunal for registration /admission, but due to inadvertent mistake of the counsel and due to lack of communication between the counsel and party, unregistered appeal has been dismissed for want of prosecution.

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Thereafter, on 30.10.2021 application under Order 9 Rule 9 of the CPC has been filed by the appellant for restoration of unregistered second appeal, but the said application has been rejected by the Hon'ble Tribunal on the ground that the appellant has not shown any proper reason for his non appearance and also for the reason that the first appeal filed by the appellant is already about 1 year 1 month and 3 days. The Tribunal came to the conclusion that the appellant is negligence regarding his case, therefore, the impugned order dated 16.02.2022 has been passed by the Tribunal rejecting the application filed under Order 9 Rule 9 of the CPC against which the W.P.C. No. 1146/2022 has been filed by the appellant. The said writ petition filed by the appellant society has however been allowed by learned Single Judge of this Court, but the said writ petition has allowed with the condition of depositing amount of Rs. 30,00,000/-

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and against that part of the order, the appellant society being aggrieved has filed the present writ appeal.

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Learned counsel for the appellant submits that learned Single Judge while deciding writ petition in para-6 of the order had considered the submission made by the appellant and accordingly the impugned order dated 16.02.2022 passed by the Chhattisgarh State Cooperative Tribunal by rejecting the application for restoration filed by the appellant society under Order 9 Rule 9 of CPC has been setaside. He further submits that learned Single Judge while allowing the writ petition had imposed the condition of depositing amount of Rs. 30,00,000/- before the Deputy Registrar, Cooperative Societies, Durg in compliance of order dated 24.10.2019 and the said condition of imposing amount of Rs. 30,00,000/- has been ordered without assigning any reason by learned Single Judge and directing the Chhattisgarh State Cooperative Tribunal for restoring the appeal and deciding the case after the amount deposited by the appellant which is improper and thus the part of the order of imposing amount of Rs. 30,00,000/- required to be set-aside. He also submits that the case of the appellant society firstly has to be decided on merits by the Chhattisgarh State Cooperative Tribunal and before that imposing a condition of depositing huge amount of Rs.30,00,000/- by learned Single Judge without any reason is improper and thus that part of order is liable to be set-aside.

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We have heard learned counsel for the appellant and perused the impugned order and material available on record.

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From perusal of the impugned order, it transpires that learned Single Judge has held that the appeal (Annexure P-4) was filed by the petitioner on 16.12.2020 against order dated 14.12.2020, which was within period of limitation. That appeal was dismissed for want of prosecution on 7.10.2021. Within stipulated period of 30 days, petitioner filed application (Annexure P-5) under Order 9 Rule 9 of the CPC for restoration of appeal before the Tribunal. While considering the restoration application, the Tribunal ought to have considered that, whether restoration application was filed within limitation period or not, but, the Tribunal without considering this fact, it considered the aspect of non-appearance of petitioner and its counsel on 7.10.2021 and also considered the delay in filing appeal before the Joint Registrar. Since petitioner had filed appeal against the order dated 14.12.2020 passed by the Joint Registrar, therefore, Tribunal ought to have restored the appeal and considered the same in accordance with law, but the Tribunal without considering aforesaid fact, dismissed the application filed by the petitioner on other irrelevant grounds which were not to be taken into consideration. Learned Single Judge set aside the order impugned (Annexure P-1) dated 16.2.2022 passed by the CG. State Cooperative Tribunal, Bilaspur in Misc. Case No. 1/2022 and allowed the application Annexure P-5 filed by the petitioner under Order 9 Rule 9 of the CPC, subject to the condition that, the petitioner/society shall deposit Rs. 30,00,000/- within 30 days from today before the Dy. Registrar, Cooperative Societies, Durg in compliance of order (Annexure P-2) dated 24.10.2019 passed by it,

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thereafter, the Tribunal shall restore appeal (Annexure P-4) filed by the petitioner/society under Section 78(2) of the CG Cooperative Societies Act, 1960 in its original file and decide the same in accordance with law. The amount so deposited be kept in Fixed Deposit, in any nationalized bank, in the name of Dy. Registrar, Cooperative Societies, Durg (CG) and original FD be attached with the record of the case.

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Considering the submissions advanced by learned counsel for the appellant, perusing the record of the writ petition as also of writ appeal and the finding recorded by learned Single Judge while allowing the writ petition filed by the writ petitioner / appellant herein, we are of the considered opinion that learned Single Judge has not committed any illegality, irregularity or jurisdictional error, which warrants interference by this Court.

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Accordingly, the writ appeal being devoid of merit is liable to be and is hereby dismissed . No cost(s).

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Sd/- Sd/-

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(Ravindra Kumar Agrawal) (Ramesh Sinha) Judge Chief Justice

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Bablu

Smriti Grih Nirman Sahakari Sanstha Maryadit Sanstha Office v. Dinesh Kumar Dubey

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Smriti Grih Nirman Sahakari Sanstha Maryadit Sanstha Office v. Dinesh Kumar Dubey

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