B D I Residents Welfare Society Sun Shine City Vs B D I Estate Pvt. Ltd.

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HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR

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S.B. Civil Revision Petition No. 278/2023

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B D I Residents Welfare Society Sun Shine City, Alwar Bhiwadi State Highway Bhiwadi Through President Rakesh Kumar S/o Sh. Matadeen Sharma Aged About 53 Years, R/o Flat No. Saphaya 206, Bdi Sun Shine City Alwar By Road Bhiwadi, Tehsil Tapukada, District Alwar

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Kamal Kumar S/o Sh. Jai Prakash Vice- President, B D I Residents Welfare Society Sun Shine City Alwar Bhiwadi State Highway Bhiwadi R/o Saphaya 709, Bdi Sun Shine City, Bhiwadi, Tehsil Tapukada, District Alwar

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Simardeep Singh S/o Shree Dhanna Singh, Secretary Bdi Residents Welfare Society Sun Shine City Alwar Bhiwadi State Highway Bhiwadi R/o Pearl B-108, Sun Shine City, Bhiwadi, Tehsil Tapukada, District Alwar

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Devendra Singh S/o Sh. Choudhary Balbir Singh, Treasure Bdi Residents Welfare Society Sun Shine City Alwar Bhiwadi State Highway Bhiwadi R/o Saphaya 205, Bdi Sun Shine City, Bhiwadi, Tehsil Tapukada, District Alwar

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Deepak Goyal S/o Sh. Murari Lal Goyal, Executive Member Bdi Residents Welfare Society Sun Shine City Alwar Bhiwadi State Highway Bhiwadi R/o Emroyad 204, Bdi Sun Shine City, Bhiwadi, Tehsil Tapukada, District Alwar

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Krisan Chand S/o Sh. Dariya Singh, Executive Member Bdi Residents Welfare Society Sun Shine City Alwar Bhiwadi State Highway Bhiwadi R/o Saphaya 306, Sun Shine City, Bhiwadi, Tehsil Tapukada, District Alwar

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Mukesh Khanna S/o Sh. Shivnath Khanna, Executive Member Bdi Residents Welfare Society Sun Shine City Alwar Bhiwadi State Highway Bhiwadi R/o Saphaya 408, Bdi Sun Shine City, Bhiwadi, Tehsil Tapukada, District Alwar

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----Petitioners

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Versus

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B D I Estate Pvt. Ltd., Registered Office B-405, Spectrum Fourth Floor, Bdi Sun Shine City Alwar- Bhiwadi State Highway Bhiwadi Tehsil Tijara, District Alwar Rajasthan Through Maintenance Manager (Authorized Person)

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Abhishek Shah S/o Shree Shankar Shah, R/o A-68, 69, Nanhe Park Uttam Nagar New Delhi, Now Maintenance Manager, Bdi Estate Pvt. Ltd. Rag. Office B-405, Spectrum 4 Floor Bdi Sun Shine City, Alwar- Bhiwadi State Highway, Tehsil Tijara, District Alwar Now Khairthal Tijara.

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Berry Developers Pvt. Ltd And Infrastructure Pvt. Ltd., Corporate Office Building No. 80, Third Floor, Sector 44, Adjoining Ramada Hotel Gurugram(Hr.) 122002, Present Office Sun Shine City Alwar- Bhiwadi State Highway Bhiwadi Through Director.

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----Respondents

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For Petitioner(s) : Mr. Deepak Soni with Ms. Jyoti Soni For Respondent(s) : Mr. Sandeep Pathak Mr. Umesh Nagpal Mr. R.K. Tongawat

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HON'BLE MR. JUSTICE ASHOK KUMAR JAIN

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Order

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10/03/2025

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Instant revision petition is preferred by petitioner defendants aggrieved from dismissal of application under Order VII Rule 11 read with Section 151 CPC on 20.10.2023 in civil suit no. 34/38/ 2023 passed by learned Civil Judge, Bhiwadi, District Alwar.

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Learned counsel for petitioners while referring Section 31 of Rajasthan apartment Ownership Act, 2015 (hereinafter referred as “the Act of 2015”) submitted that the suit was filed by respondent no.1 builder and developer for injunction both mandatory and prohibitory. He further submitted that the Rajasthan Apartment Ownership Act, 2015 has come into force and Bhiwadi Integrated Development Authority was already taken care of as an authority under the act. He further submitted that Section 31 of Act of 2015 bars the filing of civil suit on the matter reserved for consideration

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by the competent authority and also by appellate authority as provided under Section 25 and 26 of the Act of 2015. He also submitted that the respondent no.1 plaintiff has filed a suit contrary to the provision of law and he is causing a hindrance in the management and affairs of BDI Residents Welfare Society (RWA) affirmed by flat owners. He also submitted that the plaintiff in garb of the suit is threatening to disconnect electricity and water connection and further demanding illegal charges from the flat owners. He further submitted that petitioner No.1-Society (RWA) is recognized by the authority as RWA under the Act.

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Aforesaid contentions were opposed by learned counsel appearing for respondent no.2 and he submitted that after considering the application under Order VII Rule 11 of CPC, learned trial court has rightly dismissed the application and there is no perversity in the order passed by the trial court.

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After conclusion of argument, an application (IO No.01/2025) is filed by respondent no. 1 plaintiff to provide him an opportunity of hearing before pronouncement of order, therefore, the application is allowed and opportunity is granted for hearing.

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Learned counsel for respondent plaintiff while referring the impugned order passed by the trial court has submitted that plaintiff has filed a civil suit to seek injunction of general nature and no where suit has touched upon the subject matter as provided under the Act of 2015. He also referred Section 31 of Act of 2015 and submitted that the suit of general nature can be filed before the civil court and same is maintainable. He also referred

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the facts of the case as mentioned in plaint and submitted that plaintiff has developed a residential scheme and after handing over the Hats/Plots, a residential welfare society (RWA) in the name of BDI Sunshine City was formed and it has entered into a maintenance agreement with defendant no.1 M/s. Very Developers and Infrastructure Private Limited for maintenance of entire building complex. He submits that six to eight persons have formed a different society and they are causing hindrance and obstruction in maintenance of the residential buildings, therefore, the plaintiff was constrained to file a civil suit and same is maintainable. At last, he submitted that at the most the issue requires consideration after recording of evidence, as same is mixed question of fact and law.

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Heard learned counsel for the parties and perused the material available on record. 7. Respondent no.1 plaintiff has filed a civil suit against eight defendants and claimed relief against defendant nos. 2 to 8. The plaintiff who is a developer and builder of BDI Sunshine City, Alwar Bhiwadi State Highway, Bhiwadi has stated that after development of residential building and occupation by flat owners, the maintenance of entire complex was given to defendant no. 1 Very Developers but defendant nos. 2 to 8 (petitioners) have formed another society in the name of BDI Residential Welfare Society Sunshine City Alwar, Bhiwadi State Highway, Bhiwadi.

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The Rajasthan Apartment Ownership Act, 2015 was promulgated on 29.05.2019 after publication in State Gazette. The Act was enacted with following object:-

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“An Act to provide for the ownership of an individual apartment in a building and of an undivided interest in the common areas and facilities appurtenant to such apartment and to make such apartment and interest heritable and transferable and for matters connected therewith or incidental thereto.

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Whereas, with a view to securing that the ownership and control of the material resources of the community are so distributed as to sub serve the common good, it is expedient to provide for the ownership of an individual apartment in a building and of an undivided interest in the common areas and facilities appurtenant to such apartment, and to make such apartment and interest heritable and transferable and to provide for matters connected therewith or incidental thereto.”

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Section 3(f) provides for association and Section 3(i) defines

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the common areas and facilities.

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Chapter-V provides for association of apartment owners and by-laws for regulation of affairs of such association whereas Chapter-III provides for obligation of promoter. Section 10(2) of the Act provides as under:

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“10)-(2) The promoter shall on formation of the Association under section 13 hand over the following documents to the Association, namely :-

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(a) a certified copy of the approved plan of the building ; (b) details of the construction ;

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(c) complete diagram of wiring ; (d) complete plumbing layout ; (e) details of common areas and facilities including copies of warranties, maintenance agreements, etc. in respect thereof ;

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(f) such other information relating to building available with the promoter as may be required by the

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Association in the interest of the apartment owners.”

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The suit for injunction was filed by respondent no. 1 plaintiff before learned civil court wherein after service of notice, an application under Order VII Rule 11 CPC was filed by present petitioners and same was dismissed by trial court. Before proceeding to consider law relating to Order VII Rule 11 of CPC, it is appropriate to refer Section 31 of the Act of 2015 which prohibits exercise of jurisdiction by any court or authority. Section 31 is reproduced as under:

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“Bar of jurisdiction of courts, etc- No court or other authority shall have, or be entitled to exercise, any jurisdiction, power or authority in relation to the matters for which Competent Authority or the Appellate Authority has, or is entitled to exercise, jurisdiction, power or authority under this Act.”

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Chapter-VII provides for authorities under the law. Section 24 provides for competent authority, appointment of competent authority and its functions whereas Section 25 provides for duties of competent authority and Section 26 provides for appellate authority and provision of appeals. Section 27 prescribes a binding effect of the provisions under the Act of 2015 upon promoters, apartment owners and tenant etc., notwithstanding anything inconsistent contained in any other law for the time being in force or in any contract, undertaking or other instruments.

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Section 2 provides for application of Act and made it clear that the Act shall apply to all apartments in any building constructed or converted into apartments by the promoter before or after commencement of this Act. Herein, considering aforesaid, the Rajasthan apartment Ownership Act, 2015 is applicable in the

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instant case and the trial court was under an obligation to act in accordance with the provision of Act of 2015.

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The plaintiff has filed a suit seeking injunction against present petitioners/defendant nos. 2 to 8 and admittedly, defendant nos. 3 to 8 are flat owners. The document filed with application for early listing also indicate that the competent authority Bida Bhiwadi (Khertal- Tijara) after taking note of Section 4(i) of Rajasthan Society Registration Act, 1958 has already approved defendant no.2 society, registered on 24.01.2023, as a RWA.

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In pursuant to the provision under the Act of 2015, the competent authority has already passed an order on 20.02.2024 after opportunity of hearing to both the parties. A perusal of two letters issued by BIDA and one order issued by BIDA indicate that competent authority is taking action in accordance with act of 2015.

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Hon’ble Supreme Court in case of Dahibhen Vs. Arvindbhai Kalyanji Bhanusali through LRs and Ors. 2020 SCC Online (SC) 562 while dealing with an appeal against an order allowing rejection of a suit at the threshold, had occasion to consider various precedents to discuss the intent under Order VII Rule 11 of CPC. Hon’ble Supreme Court observed that if no cause of action is disclosed in the plaint, or if the suit is barred by limitation, court would not permit protraction of the proceedings and it would be necessary to put an end to the shame litigation so that further judicial time is not wasted.

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After placing reliance upon Azhar Hussain Vs. Rajiv Gandhi 1986 SCC (SUPP) 315 opined that the entire purpose of conferment of such power is to ensure that a litigation, which is meaningless and

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bond to prove abortive should not be permitted to occupy the time and space of the Courts. The power on the Court to terminate a civil action is, however, a drastic one, and the conditions enumerated in Order VII, Rule 11 are required to be strictly adhered to.

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Hon’ble Supreme Court while dealing with such an application seeking rejection of a plaint clarified that while determining any application filed under Order VII Rule 11 the court should restrict itself to the plaint and should not go into the detail facts as provided under the written statement or even in the application filed for rejection of plaint. While scrutinizing the averments in the plaint, the Court can read documents annexed and relied upon in the plaint.

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Order VII Rule 11(d) of CPC provides that a plaint should be rejected if the suit is barred by any law. Hon’ble Supreme Court in case of Ramisetty Venkatanna Vs. Nasyam Jamal Saheb 2023 INSC 458 has observed that plaint should be rejected under Order VII Rule 11 (a)(d) of CPC if it is vexatious, illusory cause of action and barred by law.

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After considering aforesaid in light of Section 3 of Act of 2015 a suit which was filed by plaintiff for continuing maintenance service and demands of maintenance amendment for the common facilities as defined under Section 2(i) is not maintainable before the civil court. An agreement of maintenance with defendant no.1 is contrary to the act of 2015 and enforceability of agreement is doubtful in view of over-riding effect of act of 2015.

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Thus, the trial court without considering provisions of Rajasthan apartment Ownership Act, 2015 and also law relating to Order VII Rule 11 (d) of CPC has erroneously dismissed an application under Order VII Rule 11 of CPC. When jurisdiction of court or any other

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authority is barred then a civil suit is not maintainable before the civil court. The trial court has committed serious error while dismissing application under Order VII Rule 11 of CPC.

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As a result, the instant revision petition is hereby allowed and the impugned order dated 20.10.2023, is hereby set aside and application under Order VII, Rule 11 CPC, is allowed and civil suit filed by respondent no.1 plaintiff is hereby rejected.

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No order as to costs.

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Misc. application, if any stands disposed of.

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(ASHOK KUMAR JAIN),J

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CHETNA BEHRANI /196

B D I Residents Welfare Society Sun Shine City v. B D I Estate Pvt. Ltd.

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B D I Residents Welfare Society Sun Shine City v. B D I Estate Pvt. Ltd.

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