Bombay High Court
Vishwas Pandurang Shinde vs Manish Mahal Co-Op. Hsg. Ltd. And 4 Ors on 31 March, 2021
Author: R. D. Dhanuka
Bench: R. D. Dhanuka
KVM
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1 & 2 - RPWL 65 & 66 OF 2019.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
REVIEW PETITION (L) NO. 65 OF 2019
IN
WRIT PETITION NO. 1573 OF 2013
AND
REVIEW PETITION (L) NO. 66 OF 2019
IN
WRIT PETITION NO. 1600 OF 2013
Vishwas Pandurang Shinde ..... Petitioner
VERSUS
Manish Mahal Co-op. Hsg. Ltd. & Ors. ..... Respondents
Dr.Abhinav Chandrachud, a/w. Mr.A.A.Siddiquie, i/b.
M/s.A.A.Siddiquie & Associates for the Petitioner/Applicant in both
Review Petitions.
Mr.G.S.Godbole, a/w. Dr.Kishan A.Khanna for the Respondent No.1.
CORAM: R. D. DHANUKA, J.
DATE : 31st MARCH, 2021 (IN CHAMBER) P.C. :-
By these two review petitions filed under Order XLVII Rule 1 of the Code of Civil Procedure, 1908, the review petitioner, (the original petitioner) seeks recall of the order dated 25 th July, 2019 passed by this Court dismissing the writ petitions filed by the review petitioner.
2. The review petitioner was the opponent no.2 in the dispute filed ::: Uploaded on - 03/04/2021 ::: Downloaded on - 04/09/2021 10:56:09 ::: KVM 2/12 1 & 2 - RPWL 65 & 66 OF 2019.doc by the respondent no.1 society. The respondent no.1 society had prayed for recovery of the possession and for various reliefs in the said dispute. It was averred by the respondent no.1 society that the review petitioner was claiming through the developer i.e. Manish Developers in respect of the flat bearing no. 102 situated in the respondent no.1 society. The said dispute was resisted by the review petitioner by filing written statement. The developer did not file any written statement in the said dispute.
3. The Co-operative Court framed various issues including the issue of jurisdiction and answered most of the issues in favour of the society and against the review petitioner and the developer. The review petitioner had impugned the said award rendered by the Co-operative Court before the Maharashtra Co-operative Appellate Court. The Maharashtra Co-operative Appellate Court dismissed the appeal filed by the review petitioner. This Court dismissed the writ petition filed by the review petitioner on 25th July, 2019. On 11th September, 2019, the Hon'ble Supreme Court dismissed the Special Leave Petition filed by the review petitioner. The review petitioner has filed these two review petitions for seeking recall of the order dated 25th July, 2019.
4. Dr.Chandrachud, learned counsel for the review petitioner ::: Uploaded on - 03/04/2021 ::: Downloaded on - 04/09/2021 10:56:09 ::: KVM 3/12 1 & 2 - RPWL 65 & 66 OF 2019.doc submits that it was the specific case of the society that the review petitioner was a tresspasser in respect of the flat in question and had prayed for recovery of the possession not only against the developer but also against his client. He submits that the Co-operative Court had no jurisdiction to pass any order for recovery of the possession against the tresspasser or to decide the issue of title. In support of this submission, learned counsel placed reliance on the judgment delivered by a Division Bench of this Court in case of Alok Agarwal and Ors. Vs. Punam Co-operative Housing Society Ltd. and Ors. 2013(1) Mh.L.J. 104 and in particular paragraphs 16, 18 and 20, judgment of Supreme Court in case of S.N.D.P. Sakhayogam vs. Kerala Atmavidya Sangham, (2017) 8 SCC 830 and in particular paragraphs 16 and 17 and the judgment of Delhi High Court in case of Anil Kumar vs. Devendra Kumar & Ors., 2019 SCC OnLine Del 8782.
5. It is submitted by the learned counsel that the review petitioner had raised a plea of jurisdiction in the writ petition filed by his client before this Court. The said issue though was not urged specifically at the time of the arguments before this Court, since the said issue goes to the root of the matter, the same can be raised even at this stage in the review petition filed under Order 47 Rule 1 of the Code of Civil Procedure, 1908.
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6. Mr.Godbole, learned counsel for the society on the other hand raised the issue of maintainability of these review petitions on the ground that the review petition has been filed on various grounds which were not either raised in the written statement filed by the review petitioner before the Co-operative Court nor in the appeal filed before the Maharashtra State Co-operative Appellate Court or in the writ petition filed before this Court. In support of this submission, learned counsel invited my attention to the paragraph nos. 11 to 15 of the judgment dated 25th July, 2019 narrating the arguments advanced by the learned counsel for the review petitioner in those two writ petitions and the reasons recorded by this Court while dealing with each of those arguments. He submits that the record of this Court is ex-facie clear. It was not the case of the review petitioner that all these arguments which are advanced now across the bar in these review petitions were though advanced, were not dealt with by this Court while dismissing these two writ petitions filed by the review petitioner by judgment dated 25th July, 2019.
7. Learned counsel for the society submits that admittedly the review petitioner was claiming through the opponent no.1 developer. The developer did not file any written statement. The review petitioner ::: Uploaded on - 03/04/2021 ::: Downloaded on - 04/09/2021 10:56:09 ::: KVM 5/12 1 & 2 - RPWL 65 & 66 OF 2019.doc did not lead any oral evidence on any of the issue framed by the Co- operative Court. In support of the submission that the review petitioner was claiming through the original opponent no.1 developer, learned counsel for the society invited my attention to various paragraphs of the dispute filed by his client before the Co-operative Court.
8. It is submitted by the learned counsel that insofar as the possession of the hut demanded by the society in the said dispute from the review petitioner and few others is concerned, the Co-operative Court while recording the findings that those opponents including the review petitioners were tresspassers held that under section 91 of the Maharashtra Co-operative Societies Act, no such order for possession could be passed against the tresspasser. However, order for recovery of possession of the suit flat was not passed on that ground.
9. Learned counsel for the petitioner invited my attention to section 91(1)(b) and would submit that the dispute filed by the society before the Co-operative Court insofar as the review petitioner as well as opponent no.1 is concerned, the said dispute was filed under the said provision, the review petitioner was admittedly claiming through the opponent no.1. He also strongly placed reliance on section 163 in support of the submission that the dispute filed by the society falling ::: Uploaded on - 03/04/2021 ::: Downloaded on - 04/09/2021 10:56:09 ::: KVM 6/12 1 & 2 - RPWL 65 & 66 OF 2019.doc under section 91(3) could not have been entertained by any civil court in view of the bar provided under the said provision. He submits that the Co-operative Court has thus rightly exercised jurisdiction by entertaining the dispute filed by the society and rightly had rendered an award which has attained finality.
10. Learned counsel for the society distinguished the judgment relied upon by Dr.Chandrachud, learned counsel for the review petitioner on the ground that the issue before the Division Bench of this Court in case of Alok Agarwal and Ors. (supra) was totally different. The relief sought before this Court in the said judgment were totally different. He submits that under section 91 of the MCS Act, the society is entitled to seek relief in respect of the property of the society. Section 91(1)(b) empowers the Co-operative Court to pass an order also against the person claiming through the member. He further submits that the Co- operative Court had recorded the finding that the developer who was the opponent no.1 was a member. The name of the developer was registered as a registered member.
11. Learned counsel also distinguished the other two judgments relied upon by Dr.Chandrachud on the ground that none of the said judgments are applicable in the facts of this case. The review ::: Uploaded on - 03/04/2021 ::: Downloaded on - 04/09/2021 10:56:09 ::: KVM 7/12 1 & 2 - RPWL 65 & 66 OF 2019.doc petitioner had never raised any issue before the Co-operative Court or before the Maharashtra State Co-operative Appellate Court and more particularly the issue of jurisdiction on the ground that the Co- operative Court could not have passed any award for possession against a tresspasser. The review petitioner cannot be allowed to raise such issue for the first time in the review petition filed under Order 47 Rule 1 of the Code of Civil Procedure, 1908.
12. It is submitted by the learned counsel that though the Court is required to consider the averments in the plaint for the purpose of deciding the jurisdiction, the said exercise has to be done by the Court if any issue is raised at the threshold for return of the plaint or for rejection of plaint under Order 7 Rule 11(a) of the Code of Civil Procedure, 1908 and not at the stage of trial.
13. I have heard both the parties at great length on the issue of maintainability of the review petitions. Both the parties have also addressed this Court on the merits of the case.
14. Insofar as the maintainability of the review petition is concerned, it is an admitted position that the review petitioner did not raise any issue of jurisdiction before the Co-operative Court on the ground that ::: Uploaded on - 03/04/2021 ::: Downloaded on - 04/09/2021 10:56:09 ::: KVM 8/12 1 & 2 - RPWL 65 & 66 OF 2019.doc no order could be passed for recovery of the possession against him on the ground that he was not claiming through the original opponent no.1 or was claiming any title in the suit flat. No such ground was raised before the Maharashtra State Co-operative Appellate Court nor in the writ petition filed before this Court.
15. A perusal of the order passed by this Court clearly indicates that this Court has summarized each and every submission advanced across the bar by the learned counsel for the review petitioner in paragraphs 11 to 15 of the said order and has accordingly dealt with those specific submissions which were urged before this Court. In my view, the issue now urged across the bar for the first time in these review petitions thus cannot be allowed to be raised being new and additional grounds which were not urged before this Court when the writ petition was argued. In my view, the review petition itself is not maintainable on that ground. No ground under Order 47 Rule 1 of the Code of Civil Procedure, 1908 is made out. Be that as it may, learned counsel for the review petitioner has made various new submissions which are dealt with by Mr.Godbole, learned counsel for the society without prejudice to his objection to the maintainability of the review petitions. By consent of parties, I have dealt with those issues also.
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16. A perusal of the averments made in the dispute filed by the society clearly indicates that it was the case of the society that the review petitioner was claiming through the original opponent no.1 developer. A perusal of the written statement filed by the review petitioner clearly indicates that it was not his case that he was not claiming through original opponent no.1 or was claiming any independent right in the flat. The Co-operative Court has not decided the title of the review petitioner. The Co-operative Court has given specific finding insofar as the possession of the hut of the review petitioner and others is concerned. While rendering the finding that the review petitioner and few others were tresspassers in respect of the hut, the Co-operative Court rightly held that it did not have jurisdiction in respect of such hut being in possession of the tresspasser under section 91 of the MCS Act. However, the award for possession of the suit flat is not on the ground of review petition being a tresspasser.
17. I am inclined to accept the submission of Mr.Godbole, learned counsel for the society that the review petitioner has not raised any issue claiming his independent right and the issue of jurisdiction that no order could be passed by the Co-operative Court against the tresspasser. The issues being limited before the Co-operative Court which were framed by the Co-operative Court after considering the ::: Uploaded on - 03/04/2021 ::: Downloaded on - 04/09/2021 10:56:09 ::: KVM 10/12 1 & 2 - RPWL 65 & 66 OF 2019.doc dispute and the written statement. In my view, the Co-operative Court rightly proceeded with only the issues which were framed in the award rendered by the Co-operative Court.
18. In any event, the review petitioner knew the case of the society. The review petitioner could have prayed for framing the additional issues which they never applied before the Co-operative Court. In any event, it was for the review petitioner to show that any prejudice was caused to the review petitioner in view of the Co-operative Court not framing an additional issues as sought to be argued before this Court at this stage.
19. The review petitioner did not apply to the Court for speaking to the minutes of the judgment delivered by this Court dismissing the writ petition on the ground that the review petitioner had though allegedly urged these additional points which are now urged were though argued, had not been dealt with by this Court while dismissing the writ petition filed by the review petitioner. The Court has to consider the record indicating what was argued by the parties and the same are dealt with by this Court while dismissing the writ petition. I am informed that the review petitioner had also filed a separate review petition against the order passed by the Maharashtra Co-operative Appellate Court for ::: Uploaded on - 03/04/2021 ::: Downloaded on - 04/09/2021 10:56:09 ::: KVM 11/12 1 & 2 - RPWL 65 & 66 OF 2019.doc seeking review of the order passed by that Court. Application seeking condonation of delay in the said review petition came to be dismissed by the Maharashtra Co-operative Appellate Court. The writ petition filed by the review petitioner against the said order also came to be dismissed. None of the judgments relied upon by the learned counsel for the review petitioner are applicable to the facts of this case for the reasons recorded aforesaid.
20. In my view there is thus no merit in any of the contention raised by Dr.Chandrachud, learned counsel for the review petitioner. Review petitions are thoroughly misconceived and are accordingly dismissed.
21. Learned counsel for the review petitioner seeks continuation of the ad-interim relief granted by this Court which is vehemently opposed by Mr.Godbole, learned counsel for the society. He submits that the society has already filed execution application. Ad-interim relief granted by this Court was passed without hearing the society.
22. The review petitioner is admittedly not in a possession of the flat in question. The possession of the flat in question is with the Court Receiver, High Court, Bombay.
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23. The other part of the decree is in respect of the monetary relief. I am not inclined to continue the ad-interim protection granted by this Court which was granted ex-parte. Application for continuation of the ad-interim stay is accordingly rejected.
[R. D. DHANUKA, J.] ::: Uploaded on - 03/04/2021 ::: Downloaded on - 04/09/2021 10:56:09 :::