Bombay High Court
Paramanand Joshi, Proprietor, G.P. ... vs T.M. Singh And Ors. on 4 August, 1977
JUDGMENT S.K. Desai, J.
1. The order dated 4th April, 1976, of the Maharashtra Co-operative Appellate Court in Appeal No. 772 of 1974 by which order the appeal was dismissed with costs and the judgment and award of the officer on Special Duty Mr. M.B. Mirchandani, dated 2nd December, 1974, were confirmed has been impugned, in this petition.
2. A few facts may be stated as under :---
3. The third respondent is what is popularly known as owner in respect of certain premises on the 8th floor of a building known of Giriraj Building at Altamount Road, Bombay-26. Legally, he is entitled to the said premises as a member of the 4th respondent Society which is a Co-operative Housing Society. By a care-taker agreement dated 15th June, 1972, between the third respondents and the firm called "G.P. Knitted Industries" the care-taker was allowed to occupy the said premises for a period of six months commencing from the date of the said agreement on the monthly compensation of Rs. 500/- p.m. Ultimately, it is the case of the third respondent that after 15th December, 1972, the said Society objected to the occupation of the premises by the petitioner and gave a notice to the third respondent, which was dated 27th July, 1973, calling upon the third respondent to remove the so-called care-taker. Notice was accordingly addressed to the petitioner by the Advocate for the third respondent. In reply, the claim was raised on behalf of the petitioner that he was the monthly tenant and not a mere licensee and not a care-taker.
4. Ultimately, an arbitration case was filed by the said society against the third respondent and the said firm. A copy of the plaint in the said case annexed together with the correspondence earlier referred to as Exhibit 8 to the petition. After the case was filed, it was referred to one M.B. Mirchandani, an Officer on Special Duty and he issued a summons, dated 14th April, 1974 to the said firm. The petition has been filed by one Paramanand Joshi, claiming to be the proprietor of the said G.P. Knitted Industries.
5. It appears that the petitioner had in the meantime filed a declaration suit in the Court of Small Causes at Bombay, being Declaratory Suit No. 4614 of 1974, against the third respondent, contending that he was a tenant in respect of the suit premises and in the said suit the petitioner applied for necessary injunction and on the ex parte application, the injunction which was granted by that Court was to the effect that the petitioners should not be dispossessed from the premises by the third respondent except by due course of law.
6. From time to time, the petitioner and/or his Advocate appeared before the O.S.D. and took adjournments. According to the Officer on Special Duty (O.S.D.) two dates were taken initially for filing the written statements. On the third date, the Advocate for the petitioner withdrew his appearance. But on the next date, the petitioner appeared and informed the Officer on Special Duty that he had obtained in injunction from the Court or Small Causes. He was asked to produce a copy of the injunctions order as the Advocate for the disputant informed the Officer on Special Duty that the copy of the injunction had not been served on either disputant till that day. On the 5th date, the petitioner again appeared and the matter was adjourned once again, when he was directed to produce the copy of the injunction. On the next date, the petitioner's Advocate appeared for the petitioner and stated that to the Officer on Special Duty that he had filed the declaratory suit and some injunction had been issued. According to the Advocate however, the papers could not be traced by his clerk and, therefore, he could not say whether the injunction was still subsisting. Thereafter, one further opportunity was given to the petitioner. On that day, neither the petitioner nor his Advocate appeared before the O.S.D. The matter was kept for one day. On that day, the same position continued. The Advocate for the disputant stated that he had made enquiries in the Court of Small Causes and he learnt that no such blanket injunction was granted as was suggested and there was no injunction against proceedings with the matter before the O.S.D. The matter was thereafter, kept on 18th November, 1974. Witnesses were examined on the 19th November, 1974. Arguments were heard on the 20th November, 1974 and ultimately a judgment was given on 2nd December, 1974. On none of these dates, the petitioner or his, Advocate chose to appear. No written statement had been filed during this time.
7. In the memo of appeal, it was inter alia urged that the petitioner was under the bona fide belief, that the case before the Officer on Special Duty was adjourned sine die on account of the injunction granted by the Court of Small Causes. It was further stated that during the last stage of the case before the Officer on Special Duty, the petitioner was out of Bombay and therefore, he could not keep in touch with the Advocate to know the progress in the matter. In the memo of appeal, it was further urged that the subject matter of the dispute did not fall within the scope of section 91 and it was also submitted that the tenancy had been created and the view of the Officer on Special Duty that no tenancy right could be created against the co-operative housing society was erroneous. It was urged that there was a subsisting licence and the appellant was, therefore, protected from eviction. All those points were considered by the Co-operative Court.
8. Before the said Co-operative Court it was inter alia contended that there was some bona fide error or mistake on the part of the appellant (petitioner before me) and that the matter should be sent back for retrial or merits. For the purpose of considering this aspect if the matter, the Court considered the Roznama and the proceeding before the Officer on Special Duty. It also considered the nature of the injunction obtained by the appellant (the petitioner). According to the Co-operative Appellate Court the appellant has failed to make out sufficient cause for not remaining present before the O.S.D., which evidence was recorded and arguments heard. On merits the Court considered the facts alleged in the statement in the dispute and held that on the expiry of the period for which the premises were given on care-taker basis, under the agreement, the tenant-member (owner) was entitled to recover back the possession.
9. The first question canvassed before me by Mr. Khemani on behalf of the petitioner was that the Co-operative Appellate Court was in error in not accepting the petitioner's request that he should be given a proper hearing that the judgment and order of the Officer on Special Duty should be set aside and the matter should be sent back for retrial on merits. Mr. Khemani indicated that the petitioner was prepared to totally reimburse respondents No. 3 and 4 in respect of all costs which they had incurred in prosecuting the matter before the Officer on Special Duty, the Co-operative Appellate Court and also in this Court. It was submitted that on payment of such costs as may be quantified by the Court and for which purpose the Court would accept in toto the figures given by respondent Nos. 3 and 4 the petitioner should have an opportunity of defending the case on merits.
10. I will frankly say that had I been exercising the appellant jurisdiction which the Co-operative Appellate Court possessed, I would have been inclined to consider the application for retrial inasmuch as ordinarily a Court or a Tribunal should be loath to sustain the ex parte decision however, negligent the party or its Advocate. This should be ordinarily done unless the conduct of the party can be said to be totally lacking in bona fides or the non-appearance could be regarded as some design to protract the hearing and cause distress to the other side. Normally such ex parte decision should not be maintained provided full reimbursements of the other side is possible. However, it is impossible to say that the view taken by the Appellate Court on the merits of the application for retrial and remand is not a possible or proper view that it could have arrived at on the material before it. It may be characterised as a strict view perhaps, a harsh view, but it cannot be characterised as an illegal or erroneous view merely because another Court more sympathetic to the petitioner may prefer a different approach. This by itself would not be sufficient to enable me to come to the conclusion that the view taken by the Co-operative Appellate Court was illegal or perverse. It has to be remembered that in exercising jurisdiction under Article 226, I am not exercising the appellate or revisional jurisdiction but a jurisdiction which is, in my opinion, although not subjected to any fetters, still more restrictive as a matter of practice and unless therefore, I am in a position to characterise the decision of the Co-operative Appellate Court on this point as perverse, I would not be entitled or competent to interfere. As indicated, it is impossible to consider this decision as a perverse decision.
11. Four other contentions were urged before me. It was submitted in the first instance that the dispute sought to be raised before the Officer on Special Duty was not covered by section 91 of the Maharashtra Co-operative Societies Act, 1960. The provisions of section 91 have been considered in several decisions of this Court. What has to be remembered for our purpose is that here the question will be required to be considered with reference to the statement of case and the evidence led on behalf of the disputant, as the petitioner chose not to put in written statement or to appeal. I have considered the statement of case to which both the tenant-member as well as the society are co-disputants. One of the grounds or perhaps the principal ground on which it is indicated that the dispute has been filed is the non-extension of the permission by the society for the continued occupation of the petitioner and these allegations and the correspondence which is annexed, I am clearly of the opinion that the dispute is one which would be covered by section 91 and, therefore, the Officer on Special Duty would be the proper forum which could take cognizance of the dispute and adjudicate upon the same. It has to be pointed out that this conclusion is reached substantially on the footing of demurrer. It would be open to the respondent in any such dispute to urge both at the outset and on the conclusion of the evidence that the matter is not covered by the provisions of section 91. At the outset, the authority seized of the dispute will have to decide the contention on the footing of a demurred and only by consideration whether on what is stated in the statement of case, the matter lies within the scope of section 91. At the second stage, it will be open again to the respondent to urge that on the evidence that has been led, it is not proved that the dispute is one genuinely within the scope of the statutory provisions. In the case before me, the matter can be decided only by reference to the correspondence and the statement of case and on considering this, the conclusion is irresistible namely, that provision of section 91 of the Maharashtra Co-operative Societies Act are attracted and the matter was within the competence of the Officer on Special Duty.
12. The second contention of Mr. Khemani for the petitioner was that the petitioner was entitled to the protection of the Bombay Rent Act as amended since according to the petitioner, he was a subsisting licence on 17th February, 1973. Now this contention can be very briefly objected. It would have some merits in my opinion, as far as the rights of the third respondent to the premises are concerned. But as far as the society, namely the 4th respondent is concerned, such protection appears to me to be of no avail. The protection licensees against their licensor but cannot be construed as conferring protection to such licensees against the real owner, namely, the co-operative society, which if entitled may throw out both the licensor and the licensee. But there the co-operative society is co-disputant or is the sole disputant, such a contention would ordinarily have no weight.
13. It was then urged that under section 93 of the Maharashtra Co-operative Societies Act, it was necessary for the Registrar to have satisfied himself that the matter sought to be raised by the disputants would constitute a dispute within the meaning of section 91 and that before it was referred to the Officer on Special Duty, the registrar was required to have given notice on the petitioner, and heard him before making a reference. Reliance was placed on the observations in Hingorani's case. At the outset, it must be pointed out that the decision in the said case contained some observation on section 96 as it originally stood before its amendment. After the amendment, the very point can be referred by the registrar for decision to the Officer on Special Duty who may give decision, on the point, both at the stage of a preliminary point (as on demurrer) or subsequently after the full trial. As the law now stands, two enquiries are not contemplated.
14. In any case, in my opinion, the point has no substance inasmuch as the petitioner has the opportunity to urge the contention before the Co-operative Appellate Court that the matter was not within the scope of the Co-operative Court and was not covered under section 91. Before considering this contention it has to be remembered that in my opinion that dispute is one clearly covered by the provisions of section 91. Thus, if Mr. Khemani's contention is accepted, it would mean that though the dispute is one clearly covered by section 91 and although the petitioner had the opportunity to urge this contention before the appellate Court, where he rightly failed, the decision would be required to be quashed and the matter should be sent for retrial only because of the technical failure of the Registrar to carry out the requirements which the Courts have read in the provisions of section 93. In my opinion, to arrive at any such decision would amount to perverting the legal process. The jurisdiction under Articles 226 and 227 of the Constitution is to be exercised in order to further the interests of justice and not in order to pervert the interest of justice. From this point of view also, the point raised by Mr. Khemani deserves to be rejected.
15. Finally, it was urged that the petitioner would be in a position to establish collusion between the third respondent and the fourth respondent the society, if the matter was remanded back and a retiral is allowed to the petitioner. As an instance of such collusion it was urged that the very fact that the third respondent was bearing the entire costs of the proceedings before the Officer on Special Duty both his and those of the four respondents would indicate that the proceedings were collusive in nature in order to further find support to the said contention. Mr. Khemani, relied on the fact that the fourth respondent had not appeared in the petition or even but in any affidavit. In my opinion, there is no substance in any of these contentions. If proceedings are required to be taken because of the default on the part of the member or a default on the part of a care-taker or licensee inducted by the member in the premises allotted to a member the society would be entitled in law to recover the reasonable amount of expenses from the member concerned. There is nothing wrong if that is the true position, if a member was to offer to bear the expenses from the very inception. In this view, the arrangement between the third and the fourth respondents cannot be regarded as collusion. What M. Khemani really intends by urging this point is to try to establish collusion by cross-examination the disputant if an opportunity is offered to him.
16. For these reasons, it is impossible to hold that the decision of the Officer on Special Duty on the confirmation thereof by the Appellate Court were erroneous and required interference with, in any manner. In the result, the rule will stand discharged with costs. The stay shall stand vacated forthwith.
17. By consent, the amount lying in Court, pursuant to the order, dated 25th April, 1975; be paid to the third respondent. The Prothonotary to pay the amount on the third respondent's giving the usual undertaking.