CAV JUDGMENT

The petitioner in this revision application filed under Section 115 of the Civil Procedure Code, 1908 has challenged order dated 8th August 2014 passed by the learned 4th Additional Senior Civil Judge, Gandhinagar below Exhibit 37 in Special Civil Suit No.35 of 2003 whereby the application preferred under Order VII Rule 11(d) of the CPC by the petitioners came to be rejected. The aforesaid suit was filed by respondent No.1 filed in the court of the learned 4th Additional Senior Civil Judge, Gandhinagar for a declaration that the sale deed executed by defendants Nos.1 to 3 on 5th July 1999 in favour of defendants Nos.4 to 8 whereby the land bearing Survey No.239/1 of village Motera, District Gandhinagar admeasuring 23027 gunthas = 14872 square meters was sold to defendants Nos.4 to 8 unauthorisedly.

2 The short facts giving rise to the present revision are that the first respondent – original plaintiff is a cooperative housing society, registered under the provisions of the Gujarat Cooperative Societies Act, 1961. It is the case of the respondent – defendant no.1 that the land bearing Survey No.239/1 of village Motera was agreed to be sold to the Society vide agreement for sale dated 8.2.1980 and the price of the land was fixed at Rs.15 per square meter and Rs.27,000/- was paid towards advance. It is the case of the plaintiff society that they have paid the entire sale consideration of Rs.1,95,000 in installments and thereafter they have time and again requested original defendants Nos.1 and 2 to execute the sale deed in favour of the society. It is the case of the respondent society that defendants Nos.1 and 2 have failed and neglected to do so on one pretext or the other and has sold the land to defendants Nos.4 to 8 on 5th July 1999 illegally and uauthorisedly. Therefore, the Society had filed Regular Civil Suit No.29 of 2000 on 24.4.2000 for specifc performance of the aforesaid agreement for sale dated

8.2.1980, which is pending before the civil court at Gandhinagar. Thereafter, the plaintiff has filed the suit being Special Civil Suit No.35 of 2003 inter alia praying that the the sale deed executed in favour of defendants Nos.4 to 8 by defendant Nos.1 to 3 in respect of the land bearing Survey No.239/1 of village Motera, District Gandhinagar admeasuring 23027 gunthas = 14872 square meters be cancelled and also prayed for a permanent injunction for restraining the defendants from selling, transferring or in any manner alienating in favour of third parties.

3 Respondent No.6 herein preferred an application below Exhibit 37 under Order 7 Rule 11(d) of the Civil Procedure Code to reject the said suit as the same being barred by law. The learned 4th Additional Senior Civil Judge, by the impugned order dated 8th August 2014 rejected the said application below Exhibit 37.

4 The present petitioner, who is the original defendant No.4 in the suit has challenged the impugned order of the learned trial Judge in this revision application.

5 Heard Mr Mihir Thakore, learned Senior Advocate, assisted by Mr Bhargav Karia, learned advocate for the petitioner and Mr Shalin Mehta, learned Senior Advocate, assisted by Ms Nisha Parikh, learned advocate for Respondent No.1.

6 Mr Mihir Thakore, learned Senior Advocate assisted by Mr Bhargav Karia, learned advocate for the petitioner has contended that Respondent No.1 Society was undisputedly registered on 24.8.1996. It is his further contention that an agreement dated 8.2.1980 was entered into between Respondent No.1 Society and Respondent No.2 when the Respondent No.1 Society was not registered and therefore such an agreement is not enforceable being nullity and the Society has no locus to file the suit. In support of his contention he has relied upon judgment of this Court in the case of Jayantilal Hansraj Shah & Ors. v Hemkunverben Dolatrai Dave & Ors., 1996 3 GLR 522 (paragraph 9), which reads as under:

“9. The petitioners are claiming that the consent decree dated November 18, 1993 p