2025:CGHC:36610 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR FA No. 82 of 2008 1 - Smt.Suchita Singh, W/o D.S. Banafer, aged 49 years, R/o Ravishanker Shukla, Nagar, Korba, Tahsil & District- Korba (C.G.) 2 - P.S. Chandel, S/o Late Bhookhan Singh, aged 65 years, House No. HIG50 Arya Colony, Tifra Bilaspur, Tahsil & District- Bilaspur (C.G.) ... Appellant(s) versus Vijay Kumar Wadhawani, aged 55 years, S/o not known, R/o House No. HIG51 Arya Colony Tifra Bilaspur, Tahsil & District- Bilaspur (C.G.) ... Respondent(s) For Appellant (s) : Mr. B.P. Gupta, Advocate. For Respondent (s) : Mr. Vijay K. Deshmukh, Advocate. Hon'ble Shri Justice Narendra Kumar Vyas JUDGMENT ON BOARD 28.07.2025 1. The instant First Appeal has been filed by the appellants/plaintiffs under Section 96 of the Code of Civil Procedure, 1908 challenging the judgment and decree dated 19.02.2008 passed by learned Second Additional District Judge, Bilaspur, District- Bilaspur (C.G.) in Civil Suit 34-A/2007 (Smt. Suchita Singh & another Vs. Vijay Kumar Wadhwani) by which the suit filed by the appellants/plaintiffs has been dismissed by recording its finding that the suit property has been purchased by defendant’s son in auction, therefore, the plaintiff is not entitled to get vacant possession of the house. ARUN KUMAR DEWANGAN Digitally signed by ARUN KUMAR DEWANGAN Date: 2025.09.22 17:36:52 +0530 2. For the sake of convenience, the parties shall be referred to in terms of their status in Civil Suit No. 34-A/2007 which has been filed by the plaintiff for vacant possession and for remaining rent. 3. The brief facts as reflected from records are that”- (A) The plaintiff filed suit for vacant possession of the house situated at HIG Arya Colony, Tifra, Bilaspur (subsequently shall be referred as “suit property”) as also for remaining rent amount to Rs. 52,000/-. It is case of the plaintiff that the plaintiff had given suit property on rent to the defendant for Rs. 2000/- per month and the defendant has not paid 26 months rent from 1st July, 2025 to 31st August, 2007 which comes to Rs. 52,000/- then the plaintiff sent a legal notice to the defendant on 17.07.2007 through his Advocate by registered post which was received by him on 18.07.2007. (B) It has been further contended that the plaintiff is bonafide requirement of the suit property as there is no other house except the suit property at Tifra for her use. On 27.07.2007, the defendant filed reply to the notice dated 17.07.2007 through his Advocate but he has not the paid the arrears of rent which has neccessiated the plaintiff to file suit for vacant possession and arrears of rent with regard to the suit property. (C) The learned trial Court issued notice to the defendant for appearance before the trial Court on 23.01.2008 but he had chosen not to appear there, therefore, the trial Court proceeded ex-parte against the defendant vide order dated 23.01.2008 and the defendant could not file written statement. Since no written statement was filed, therefore, no issue was framed. Page 3 of 6 4. The plaintiff to substantiate her pleadings examined herself by way of affidavit provided under Order 18 Rule 4 C.P.C. reiterating the plaint averment exhibiting document i.e. notice sent to the defendant as well as the reply given by the defendant. The trial Court on the basis of evidence and material on record has recorded its finding that the plaintiff is not entitled to get vacant possession of the suit property as the suit property has been purchased by defendant’s son in auction, accordingly, dismissed the suit filed by the plaintiff vide judgment and decree dated 19.02.2008. Being aggrieved with the judgment and decree dated 19.02.2008, the plaintiff/appellant has preferred the instant appeal before this Court. 5. Learned counsel for the appellant/plaintiff would submit that the trial Court has committed illegality in not taking into consideration the respondent’s admission made in his reply admitting his tenancy and payment of rent to the appellants. He would further submit that a writ petition bearing W.P. No. 3444/2005 was filed by the appellant against Arya Grih Nirman Sahakari Samiti Maryadit & others and this Court vide order dated 28.07.2005 granted stay in favour of the appellant wherein the counsel fo the appellant had submitted that the house i.e. HIG-51, Arya Colony, Tifra Bilaspur was purchased by the appellant/petitioner from respondent No. 1/ Arya Grih Nirman Sahakari Samiti Maryadit and the whole amount has already been paid by the appellant towards purchase of the suit property but the Samiti has taken loan from the Bank and against the Samiti, proceedings were initiated, as such the auction proceeding may continue but it could not be finalized till the disposal of the writ petition. This petition was finally disposed of on 01.04.2013 wherein this Court has directed the Registrar, Cooperative Society to decide the matter on its own merits and pass appropriate order and the interim order passed by this Court on 28.07.2005 in W.P. No. 3370/2005 was continued for further three months, till the final decision by the Registrar, Cooperative Societies in all cases. The Registrar Cooperative Society vide order dated 17.12.2013 decided the matter on merits and in paragraph 17 has recorded its finding that since the plaintiff has already deposited Rs. 1,72,700/- upto 24.07.1991, therefore, no recovery is liable to be made against her. Being aggrieved with the order dated 27.12.2013 passed by the Registrar Cooperative Society, the respondent preferred an appeal before the Chhattisgarh State Cooperative Tribunal Bilaspur wherein the appellant was not party and the order dated 17.12.2013 passed by the Cooperative Society was set aside and respondent No. 4 was directed to implead the petitioner as party to the case and respondent No. 2/Housing and Urban Development Corporation was directed to decide the matter afresh. The defendant included the petitioner thereafter the Registrar Cooperative Society vide order dated 20.07.2018 again recorded its finding that the entire amount has been paid, therefore, the auction proceeding is bad in law. This order has not been challenged by the defendant before this Court, therefore, this order has attained finality. 6. This vital fact has not been submitted by either of the parties before the trial Court and without deciding this issue, the finding recorded by the trial Court cannot be found sustainable. He would further submit that no evidence has been placed on record before the trial Court in this regard and the trial Court has dismissed the claim which is bad in law and would pray for setting aside the impugned order dated 19.02.2008. Page 5 of 6 7. On the other hand, learned counsel for the respondent opposing the submission made by learned counsel for the appellant would submit that the trial Court has not taken into consideration the fact that the suit property has been purchased by plaintiff’s son, therefore, he is not tenant of the plaintiff. He would further submit that in the written submission filed by the appellant, it has been stated about taking recourse available to him before the Debts Recovery Tribunal, Jabalpur as some proclamation proceeding is still pending with regard to the same auction proceeding, therefore, the matter may kindly be remanded back to the trial Court to decide the case afresh in accordance with law. 8. I have heard learned counsel for the parties and perused the documents placed on record with utmost satisfaction. 9. Considering the fact that a lot of litigation has been initiated which is pending before the Court and adjudicated by the various forums including High Court wherein various directions have been passed. So far as question of correctness and genuineness of the auction proceeding is concerned, the same is still pending and merely on the basis of documents Ex. P/2 the judgment and decree has been passed by the trial Court dismissing the suit and no other material was placed on record by the parties to record such finding, therefore, in absence of such material, the trial Court could not pass the judgment and decree dismissing the suit. As such, I am of the view that the matter is remitted back to the trial Court to decide the matter afresh within six months from the date of first appearance of the parties, in accordance with law. Page 6 of 6 10. The parties are directed to appear before the concerned trial Court on 3rd November, 2025. 11. In view of the above, the instant appeal stands disposed of. 12. A decree be drawn up accordingly. Sd/- (Narendra Kumar Vyas) Judge Arun