Bombay High Court
Husainali Haji Esmail Badaksha vs Radhe Shyam Co-Operative Housing ... on 12 July, 2002
Equivalent citations: (2003)105BOMLR298, 2003 A I H C 524, (2003) 3 ALLMR 1012 (BOM) 2003 BOM LR 4 298, 2003 BOM LR 4 298
Author: A.M. Khanwilkar
Bench: A.M. Khanwilkar
JUDGMENT A.M. Khanwilkar, J.
1. This writ petition under Article 227 of the Constitution of India takes exception to the order passed by the Maharashtra State Co-operative Appellate Court dated August 17, 1990 in Appeal No. 119 of 1988. The petitioner claims to be in possession of portion of premises bearing Flat No. 12 in Geetanjali near Radio Club. Colaba, Mumbai 400 005. According to the petitioner, he was put in possession of that portion of the premises by one Mr. Punwani who was the member of the respondent society and was allottee of that flat. It Is not in dispute that the respondent society is a Tenant Co-operative Housing Society, of which said Punwani was the member. It was noticed by the respondent society that the occupation of the portion of the suit flat by the petitioner was a source of nuisance to the neighbours and also that the petitioner was inducted without obtaining prior permission of the society; therefore, the society by notice dated January 4, 1972 called upon its member Shri Punwani to take immediate remedial steps to get the flat vacated and to occupy the same himself so as to avoid nuisance caused to the members of the society. Pursuant to the said notice. Shri Punwani gave legal notice to the petitioner on February 4. 1972 through his Advocate, calling upon the petitioner to remove himself from the portion of the said flat within 7 days from the receipt of the said notice. In this notice it is clearly stated that the petitioner was occupying the portion of the suit flat as the "paying guest" on monthly compensation of Rs. 400/-. By this notice, the petitioner was also called upon to pay the arrears of charges amounting to Rs. 2,000/- forthwith. Since, the petitioner did not vacate the portion of the suit premises, the respondent society in its Managing Committee meeting held on April 7, 1972 resolved that the Society should institute eviction proceedings against the petitioner who has been permitted by the member Shri Punwani to occupy one room from the suit flat without permission of the society. This resolution further authorised Shri B.K. Shivdasani, the then Secretary of the respondent society to sign the plaint jointly with the member (Shri Punwani) and represent the society. Pursuant to the said resolution, dispute under Section 91 of the Maharashtra Co-operative Societies Act, 1960 (hereinafter referred to as the "said Act") was filed before the Dr. Registrar of Co-operative Housing Societies, Bombay being Case No. 154/1004/1972. This dispute was presented by the member Shri Punwani as well as the respondent society jointly for the relief of possession against the petitioner and for consequential reliefs of mesne profits and arrears of rent. In this dispute, specific plea is taken that the petitioner has been inducted in the portion of the suit flat without prior permission of the society which was contrary to the conditions of the by-laws of the society and, therefore, it has become imperative for the respondent society to take action against the petitioner for enforcement of the bylaws. This dispute was resisted by the petitioner. According to the petitioner, the Co-operative Court had no jurisdiction because the petitioner was the tenant in respect of the portion in his possession and such a claim could not be entertained by the Co-operative Court under Section 91 of the Act. Various other contentions have been raised which will be referred to a little later. While this dispute was pending, the Society filed another dispute in the Co-operative Court bearing Dispute No. 25/82 of 1978 seeking relief against its member Shri Punwani as well as the petitioner for possession of the subject flat. In this dispute, the grievance made by the respondent society is that the member was in arrears amounting to Rs. 25,088.02 ps. Accordingly, the relief of possession was claimed against, the member Punwani on the ground of default as well as the petitioner being unauthorisedly inducted in the premises without its prior permission. It is not in dispute that the above said dispute No. 25/82/1978 was subsequently withdrawn on 14th June, 1979, as the member Punwani paid the entire arrears which were due and payable to the society. In this backdrop, statement was made before the Co-operative Court in that dispute on 14.6.1979 that the claim was satisfied out of the Court and hence, the dispute be allowed to be withdrawn. The Co-operative Court granted that request and allowed the latter dispute to be withdrawn. In view of this development, one of the contention raised on behalf of the petitioner is that since that dispute was withdrawn by the Society, the present dispute against which the present writ petition arises could not be continued further by the respondent society in law. There is yet another development which took place during the pendency of the dispute that the original member Shri Punwani, sometime in 1972 transferred his right, title and interest in the said flat in favour of his two sisters Mrs. Chitra Thadani and Mrs. Mala Vaswani. Thereafter, the original member Shri Punwani died in 1984. In spite of that no steps were taken to bring on record the heirs and L. Rs. of the original member who was party as Disputant No. 1 in the present dispute. Moreover, subsequently, the original member deceased Mrs. Chitra Thadani died and, some time in 1983 her husband and said Mrs. Mala Vaswani jointly transferred the right, title and interest in the subject flat in favour of M/s. Esjay Engineering which firm later on has been admitted as member of the respondent society. Notwithstanding these developments, no steps were taken to seek appropriate amendment in the dispute which was originally filed on behalf of the member Shri Punwani as well as the respondent society. Subsequently, the name of original disputant No. 1 (Shri Punwani) came to be deleted by order of the Court and the respondent society decided to prosecute the proceedings alone against the petitioner. In these circumstances, the petitioner made an application in 1985 that the respondent society having failed to amend the plaint, pursuant to the order passed in Revision Application No. 65 of 1983, no cause of action survived in favour of respondent society. That application however, came to be rejected by the Co-operative Court, against which revision was filed by the petitioner which was also rejected on 7.1.1986. Accordingly, the dispute which was originally filed jointly by the member Shri Punwani and the respondent society was allowed to be prosecuted by the respondent society singly on its own. Undisputedly, consequential amendments have been carried out in the plaint. After the amendment the Respondent the respondent society claimed the following reliefs in the dispute :
(a) that the opponent be ordered and directed to vacate the one room being part of flat. No. 12 Geetanjali, Behind Radio Club, Colaba, Bombay-5;
(b) that the opponent be directed to hand over himself and/or through person claiming under him to hand over possession to the disputant No. 2;
(c) (Deleted).
(d) that the opponent be directed to pay Rs. 400/- per month as mesne profits with effect from June, 1972 until possession of the said room is vacated and handed over to as per prayers;
(e) that pending the hearing and final disposal of the dispute, opponent be restrained by an order of injunction from parting with the possession of one room in flat No. 12, Geetanjali, Behind Radio Club, Colaba, Bombay. 5 or permitting any third party to reside in the said room:
(f) (Deleted)
(g) ad interim orders be made in terms of prayers:
(h) that such further and other reliefs be granted as the nature and circumstances of the case may require;
(i) the opponent be ordered to pay the cost of the Arbitration and out of pocket expenses to the disputant No. 1.
2. As mentioned earlier, this dispute proceeds on the allegations that the petitioner was unauthorisedly inducted In the portion of the suit flat in his possession without a written permission of the respondent society, therefore, it was necessary for the respondent society to seek evict ion of the petitioner for the enforcement of its by-laws. The dispute was tried and both the disputant as well as petitioner opponent adduced oral evidence. The Secretary of the respondent, society was examined on commission because of his bad health condition. Shri Shivdasani the then Secretary of the Society was the sole witness examined on behalf of the society. So also, the petitioner examined only himself in support of his case. The Co-operative Court after analysing the evidence on record and considering the rival submissions has negatived the preliminary objection taken by the petitioner with regard to the maintainability of the dispute, It held that the petitioner was a person claiming through the member and therefore, the dispute as filed by the respondent society under Section 91 was maintainable. It has further rejected the objection that on account of the withdrawal of the subsequent dispute, the present dispute; cannot be allowed to be pursued by the respondent society.
For taking this view, the Co-operative Court has held that, strictly speaking provisions of the Code of Civil Procedure would have no application to the conduct of the proceedings before the Co-operative Court. It has further held that, no doubt the provisions of the Code of Civil Procedure would preclude from filing of fresh dispute; but, in the present case, since the dispute that was withdrawn was filed in later point of time, and it was founded on the limited cause of action arising due to non payment of rent, the withdrawal of that dispute would have no bearing on the present dispute. Accordingly, the objection taken by the petitioner even in this behalf was rejected. In so far as the objection taken by the petitioner that the Society could not have prosecuted the dispute singularly, the Court after referring to the decision in Hingorani's case, Kalwanti's ease as well as Punjomal's case has held that the contention was unavailable to the petitioner in as much as the Society being a Tenants' Co-op. Housing Society was entitled to maintain such a dispute against the unauthorised occupant for the enforcement of its by-laws. It has also found that the petitioner has admitted in his evidence that he has no receipt or any other writing to show that he was inducted as tenant of I the deceased member Shri Punwani. It has further observed that merely filing electricity bills and letters addressed to the petitioner on the subject flat would be of no avail to establish his plea of tenancy. It. has further observed that the petitioner has failed lo examine any broker through whom the claims to have obtained possession of the suit flat as tenant. Besides, it has observed that during the examination of the respondent's witness no suggestion whatsoever was put to him that the petitioner had approached the Secretary of the Society with the broker, which stand was taken by the petitioner. The Court has also adverted to the admissions of the petitioner in the cross-examination that he fully knew that building belonged to the respondent society and Shri Punwani was only a member of the society. In this view of the matter, the Court found that the petitioner was inducted in the suit flat only in the capacity as a "paving guest" and bad no other status. In so far as the ease set up by the petitioner that he was inducted in I the suit flat pursuant to the permission obtained from the Society, it. is found That although the petitioner in his examination-in-chief has stated that the deceased member Shri Punwani had told him that he had obtained permission from the society, however, he admitted in cross-examination that he had no evidence to show that, the Society had permitted his occupation. Whereas, the then Secretary has deposed that the Society had not given any permission but the deceased member allowed the petitioner to occupy the premises only as a "payingguest". On this premise, the Co-operative Court proceeded to pass the award in favour of the respondent society. The Order passed by the Cooperative Court, reads thus :
(1) The opponent by himself, his family members servants and agents do vacate and hand over peaceful possession of one room with balcony, bathroom, one W.C. at passage admeasuring 400 sq. ft. approximately occupied by him in Flat No. 12 situated in the building "Geetanjali". near Radio Club, Colaba. Bombay 400 005 to the Disputant Society within out month from the date of this order.
(2) The opponent do pay to the disputant society mesne profits at the rate of Rs. 400/- per month from the date of filing of these proceedings 1st June. 1972. till he hands over peaceful possession of the above mentioned portion of flat. No. 12 to the disputant Society.
(3) The opponent is hereby restrained from parting with possession of the said premises to any other person or creating any third party rights in respect. thereof in any manner whatsoever, until he hands over possession of the said portion to the disputant society.
(4) The opponent do pay costs of this dispute to the disputants-Society as under:
1. Court- fee stamp Rs. Nil
2. Court: expenses Rs. 21O/
3. Professional cost Rs. 1000/-
I have reproduced the above said order in its entirely, since one of the contention raised by the petitioner before this Court is that the award passed by the Co-operative Court travels beyond the relief claimed by the respondents in the dispute and that the award as passed was inexecutable one. I shall deal with that contention a little later.
3. Aggrieved by the above said award, the petitioner filed appeal before the Maharashtra State Co-operative Appellate Court, Bombay being Appeal No. 119 of 1988. The Appellate Court has more or less affirmed the reasons given by the Co-operative Court. The Appellate Court consistent with its findings therein dismissed the appeal preferred by the petitioner by the impugned Judgment and order dated August 17, 1990. In short, the Appellate Court has observed that merely raising the plea of tenancy in the written statement would not be sufficient, to oust the jurisdiction of the Cooperative Court and the Court while considering whether it has jurisdiction or not. should be guided by the averments in the plaint. In support, of this proposition, the Appellate Court has adverted to the decisions of this Court. The Appellate Court has also affirmed the finding of fact recorded by the Co-operative Court that the petitioner was inducted in the premises only as "paying guest" by the deceased member Shri Punwani. The Appellate Court has also affirmed the finding of fact recorded by the Co-operative Court that the petitioner was inducted in the subject flat without the prior permission of the respondent society. Accordingly, the appeal was dismissed.
4. In the present writ petition, during the arguments across the bar, the learned Counsel for the petitioner in the first place contends that, after deletion of the name of the original member Shri Punwani, who was the disputant No. 1, from the array of parties in the present dispute, it completely changed the complexion of the proceedings and the petitioner has been taken by surprise. It is contended that the consequence of such a step was obviously to shut out the petitioner from all plausible defences available to him as against the original member Shri Punwani. It is contended that now the petitioner has been left with limited plea that could be pressed only against the respondent society and this tantamounts to denial of a fair trial to the petitioner and has also resulted in breach of principles of natural justice. According to him, therefore, the award as passed by the Co-operative Court and affirmed by the Appellate Court is vitiated by applying the principles recognised by the Apex Court in in Shri M.L. Sethi's case. The learned Counsel further contends that by the deletion of the disputant No. 1 Shri Punwani the cause of action for prosecuting the present dispute would not survive. He submits that the dispute will have to be understood in the context of the suit notice issued by the respondent society proposing to initiate action and the resolution passed by the Managing Committee to institute the proceeding jointly with the member which was essentially to seek relief for and on behalf of the member and since the said member has disappeared from the proceedings, the cause of action, for which the dispute was filed, would not survive and such a dispute cannot be pursued only at the instance of the respondent society. It is next contended that so long as membership of the original member Punwani was not determined by the respondent society, the respondent society could not have pressed for any relief against the petitioner, for the petitioner was claiming to be in possession of the suit premises through Shri Punwani the original member of the society in his own rights as tenant. He further contends that, in any case, the finding of facts recorded by the Courts below on the issue of petitioner was in unauthorised possession or was only "paying guest" are manifestly wrong. He submits that the Courts have proceeded with the enquiry on the assumption that the petitioner was a "paying guest" without considering that the petitioner had fulfilled all the three requirements of transfer within the meaning of Section 105 of the Transfer of Property Act and, which in law amounts to lease created in favour of the petitioner. If this be so, contends learned Counsel that, then the Co-operative Court would not have jurisdiction to proceed with the matter because the claim regarding relation of landlord or tenant or otherwise was exclusively triable by the Rent Court in view of Section 28 of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947. The learned Counsel has placed reliance on Sohanlal's case reported in Vol. LXVIIL Bom. L.R. 400 and in particular at page No. 403 to contend that the petitioner had fulfilled all the three ingredients to constitute the transfer within the meaning of Section 105 of the Transfer of Property Act. The learned Counsel also placed reliance on the documentary evidence in the shape of Electricity bill and ration card etc. which were pressed into service before the Courts below to contend that the transaction was nothing but creation of lease in favour of the petitioner. Therefore, the petitioner was in possession in the portion of the subject flat as tenant in his own rights. The learned Counsel further contends that in any case the relief granted by the Co-operative Court and as affirmed by the Appellate Court is completely beyond the relief prayed on behalf of the Society in the dispute. He further submits that the award as passed was obviously inexecutable. To support this contention he has placed reliance on the sketch which is part of the record to contend that the Petitioner was actually in possession of portion which was more than one room and whereas the award is with reference to one room with attached bathroom and W.C. and passage admeasuring 400 sq. ft. The learned Counsel then relying on the decision of the Supreme Court in Ramesh Himmatlal Shah v. Harsukh Jadhavji Joshi , would contend that in the peculiar facts of the case, this Court ought to direct the respondent society to accept the Petitioner as its member in respect of the portion of the premises which are in his possession in his own rights. Accordingly, the learned Counsel submits that the decision passed by the Courts below though concurrent cannot be sustained either on facts or in law. Besides, making oral submissions both the Counsel have filed written submissions which have been taken on record.
5. Per contra, the learned Counsel for the respondents has adopted the reasons given by the Courts below and submits that most of the contentions raised before this Court have been raised for the first time, and that too across the bar, for which reason same should not be entertained. He further submits that the scope of interference under Article 227 is very limited. He has placed reliance on two decisions of the Apex Court to support this proposition. He has relied on in Mohd. Yunus v. Mohd. Mustaqim and Ors. , where the Supreme Court has observed that the scope of interference is limited to seeing as to whether the inferior Court or Tribunal functions within the limits of its authority and nothing more. He submits that the subordinate Courts in the present case have dealt with all the contentions that were pressed into service before those Courts, therefore this is not a case where the decisions rendered by the subordinates courts can be said to be either in excess of jurisdiction or not exercising jurisdiction vested in it. He submits that the contentions which are raised for the first time before the Court cannot be the basis of questioning the decisions of two Courts below by contending that they are nullity. According to him, this is not a question of jurisdictional error and therefore, no interference under Article 227 is warranted. He has further relied on decisions of this Court as well as the Apex Court to contend that all the contentions raised on behalf of the petitioner are unavailable in view of the settled legal position. He contends that the scope of Section 91 of the Act and the authority of the Co-operative Court to decide the cases such as present case, has been construed on more than one occasion and it has been consistently held that the society is competent to pursue the matter not only against the member but also against the unauthorised occupant independently. He submits that merely because the original member is not party to the dispute would not disrobe the respondent society or its right to maintain and prosecute the dispute for the enforcement of the by-laws which is undoubtedly the business of the respondent society. He therefore, contends that once this position is accepted then all other questions raised by the petitioner would recede in the background. He has placed reliance on the case of Sardar Mohan Singh Ahluwalia since deceased through his wife v. Maitri Park Co.op. Hsg. Society Ltd. and Anr. , which decision has been subsequently approved by the Apex Court in the case of Sardar Mohan Singh Ahluwalia (dead) by L.Rs. v. Maitri Park Co-op. Hsg. Society Ltd. and Anr. . He has also placed reliance on the Apex Court ruling in O.N. Bhatnagar v. Smt. Rukibai Narsindas and Ors. , and another decision of the Apex Court in Smt. Krishna Rqjpal Bhatia and Ors. v. Miss. Leela H. Advani and Ors. , to contend that no tenancy can be created by the member of a Tenant Co-Partnership Society in contravention of the by-laws and in such a case the action under Section 91 of the Act can be resorted to by the society against both, the defaulting member as well as the occupant who is in occupation obviously unauthorisedly. He has also placed reliance on the decision of this Court in the case of Contessa Knit Wear v. Udyog Mandir Co-op. Hsg. Society , as well as in the case of Kalavati Ramchand Malani v. Shankarrao Patil Vol. LXXVI Bom. L.R. 718. According to him, if legal position enunciated in the above said decisions is applied to the facts of the present case, it will be preposterous to entertain the contentions raised on behalf of the petitioner, for the same are unavailable and in fact ill advised. In so far as the grievance made by the petitioner that the award as passed was inexecutable and travels beyond the relief claimed by the respondent society, the learned Counsel submits that this submission is also without any substance. He has taken exception to entertaining this submission for the first time across the bar at the time of hearing. He however, contends that the award is founded on the materials which have come on record in the shape of oral and documentary evidence and the premises referred to therein have been so described therein. He submits that the award merely recognises the rival stand taken by the parties and how the parties understood each other's case. He further relied on decision in the case of Nasir Mea v. Arman Ali Mea and Ors. Vol. XVIII I.C. 745, that even misdescription of plot would be of no consequence and as in the present case, there is ample evidence to show that the award has been passed in respect of that portion of the subject flat which the petitioner claims to be in possession thereof. He has further relied on two decisions of the Apex Court in the case of Kedar Lal Seal and Anr. v. Hari Lal Seal AIR (39) 1952 SC 47 : 1952 S.C.R. 179 : 1952 S.C.J. 37, and in the case of Bhagwati Prasad v. Chandramaul , that the respondents dispute cannot be thrown out on the ground of vagueness of pleadings when on reading the dispute as a whole the pleadings clearly convey the intention of the parties and that the relief ultimately granted by the Court is founded on the materials already on record. Therefore, the same cannot be questioned by the petitioner either on the ground that it travels beyond the reliefs claimed by the respondent or that it is inexecutable as contended before this Court. He therefore, submits that this writ petition deserves to be dismissed.
6. Having considered the rival submissions, I have no hesitation in observing that most of the contentions raised before this Court by the petitioner are being raised for the first time before this Court and that too across the bar during the course of argument. Even if this Court was to show indulgence and entertain those submissions, to my mind, the same are devoid of merits. I shall first deal with the grievance made by the petitioner that because of the deletion of the original member Shri Punwani from the array of parties to the dispute he has suffered prejudice as contended or the decisions of the Courts below have vitiated. Reliance was placed on the decision of the Apex Court in M.L. Sethi's case (supra). The Apex Court, no doubt, has observed that when the Subordinate Courts have proceeded to decide the proceedings in a manner which would cause breach of natural justice then it would be a question of jurisdictional error. But, in the present case, it is not possible to hold that the subordinate Courts have decided the matter in breach of natural justice, for that the petitioner appeared before the Subordinate Courts and that he did raise objection to the deletion of member Mr. Punwani from the array of parties to the dispute but that objection has been rejected by the Courts below. That order has been allowed to become final. Moreover, there is no challenge to that order even in the present writ petition. Therefore, it will not be open to the petitioner to raise the said plea. If that be so, the above contention is devoid of merit. Merely because the writ petition in one sense may be continuation of that proceeding and this Court is a Superior Court, would be of no avail. Assuming that the petitioner was entitled to raise that plea before this Court, to my mind, the grievance made is wholly untenable. In as much as, if we examine the amended plaint in the present dispute, it is seen that the respondent society has amended the plaint and made averments on the basis that the petitioner was inducted in the portion of the subject flat unauthorisedly without prior permission of the respondent society and which transaction was contrary to its by-laws. Moreover, it is clearly asserted in the plaint, that the society intends to evict the petitioner for the enforcement of its by-laws. Such relief could be maintained by the petitioner Society on its own as has been consistently held in the decisions on which the respondent society has placed reliance referred to in para 5 above. Understood thus, it is not possible to countenance the grievance that the complexion of the dispute has changed in any manner. Moreover, even earlier the dispute essentially proceeded on the same averments. Therefore, deletion of Shri Punwani from the array of parties to the dispute would make no difference, in view of the settled legal position. It was not open to the petitioner to assert that he should be treated as a lawful tenant and protected by the provisions of the Rent. Act. It is well settled that in a Tenant Co-Partnership Housing Society creation of tenancy in the flat allotted to the member of the Society is impermissible and contrary to by-law [see Krishana Bhatia's case (supra). If that be so, the presence or absence of the original member Shri Punwani to the dispute would not alter the position or permit the petitioner to take the plea that he was inducted lawfully as a tenant. There is also no force in the contention that the cause of action of the dispute as filed did not survive or could not be pursued by the respondent society after the deletion of the name of Mr. Punwani. As observed earlier, in view of the settled position, the respondent society could independently pursue the remedy even in absence of the member for the enforcement of its by-laws against the unauthorised occupant claiming through the member. Moreover, the society would pursue the remedy against the unauthorised occupant even without expelling the member responsible for the induction of that person. If that be so, then the assumption on which the submission of the petitioner proceeds that the petitioner could have taken plausible defences against the original member is wholly ill advised. In such a case, as observed in the above said decision, the occupation of the person inducted in the premises in breach of the bylaws is one of an unauthorised occupant and of a rank trespasser. Therefore, there would be no occasion for the Court to consider the plea of tenancy which the petitioner seeks to invoke in the present proceeding.
7. Besides, the two Courts below have concurrently found, on analyzing the evidence on record, that the petitioner's occupation in the suit premises was only as a "paying guest" and nothing more. As observed earlier, the plea of tenancy was unavailable to the petitioner. Moreover, the possibility of petitioner claiming to be protected licensee by virtue of Section 15A of the Rent Act was also not available as the petitioner's licence admittedly was determined on 4.4,1972, which is prior to 1st of April, 1973. Accordingly if the petitioner's licence was not subsisting on 1st April, 1973, no statutory protection was available to the petitioner. Even for this reason his occupation would be one of an unauthorised occupant - for which an action under Section 91 could be instituted by the Society against him independently or even jointly with the original member. Therefore, the only status, as rightly held by the two Courts below, of the petitioner was one of a "paying guest". The learned Counsel for the respondents is right in contending that, the petitioner has been described as a "paying guest" by the original member in his notice dated 4.4.1972 and that stand has been maintained against the petitioner. It is rightly pointed out that the definition of "paying guest" was inserted in the Bombay Rent Act for the first time in the year 1973, whereas much before that a clear stand was taken by the original member as well as the respondent society in the dispute that the status of the petitioner was only one of a "paying guest" and nothing more. In the circumstances, 1 see no reason to interfere with the concurrent finding of fact recorded by the two Courts below on this aspect that too in exercise of writ jurisdiction. If that be so, then there would be no question of any bar of proceeding by virtue of Section 28 of the Bombay Rent Act because that bar is restricted to the claims between the landlord and tenant as such. In this view of the matter, all other contentions raised regarding the maintainability of the dispute under Section 91 are wholly ill advised and will have to be rejected.
8. Once it is found that the status of the petitioner was only of a "paying guest" then no other controversy would really survive for consideration and even the learned Counsel for the petitioner accepts the position that in that event Co-operative Court would get jurisdiction under Section 91 to grant the relief in favour of the respondent society of possession as claimed. The only other argument therefore, that survives is that, the Award as passed is inexecutable and is beyond the relief claimed in the dispute. Even this argument is being raised for the first time that too across the bar. In any case, on perusal of the reliefs as claimed and the award as passed by the Courts below, I find no reason as to how it can be said that the relief actually granted would travel beyond the one claimed by the disputants. In any case, as rightly contended by the Counsel for the respondents that the award which has been passed by the Co-operative Court and affirmed by the Appellate Court is founded not only on the basis of pleadings but the evidence which has come on record. According to the petitioner, he was in possession of that portion of the premises in respect of which award has been passed by the Co-operative Court. Going by his own stand and the materials that has come on record in the shape of documentary and oral evidence, no fault can be found with the award passed by the Co-operative Court. The Co-operative Court was justified in passing that award directing to hand over vacant and peaceful possession of one room with balcony, bathroom, one W.C. passage admeasuring 400 sq. ft. which is stated to be in occupation of the petitioner. Reliance has been rightly placed on the principles underlying the decision in XVIII I.C. 745. Accordingly even this grievance does not merit any interference.
9. While parting I may point out that the learned Counsel for the respondents in fact made serious grievance that the present writ petition should not be entertained because of the conduct of the petitioner that he has not paid any amount. However, instead of dismissing the writ petition on that technical ground, I thought it proper to examine the rival contentions on merits since both the Counsel had argued the matter at length before me.
10. The next argument advanced on behalf of the petitioner that the respondent society be directed to admit the petitioner as its member in respect of the portion of the premises in his possession in terms of the observations in Ramesh Himmatlal Shah v. Harsukh J. Joshi's case (supra), the same to my mind is devoid of merits and is complete misreading of that decision. In that case, the Apex Court was considering entirely different issue and was not concerned with the issue that arises in the present case. Moreover, to my mind, it is not possible in writ jurisdiction or otherwise to issue such direction to the respondent society especially when respondent society has been pressing relief of possession on the ground that the petitioner was unauthorised occupant and was occupying the premises in contravention of its by-laws. Accordingly this request does not commend to me and the same is rejected.
11. For the aforesaid reasons, writ petition is dismissed with costs all throughout.
12. At this stage, the learned Counsel for the petitioner submits that the petitioner is in occupation of the suit premises since 1970 and this being residential premises, he may be granted some time to vacate the premises on such terms and conditions as this Court thinks fit. This request is opposed by the Counsel for the respondent society. However, in the peculiar fact situation of the case, the petitioner is granted time to vacate the premises till 15.10,2002 subject to condition that he shall file usual undertaking in this Court within 2 weeks from today. It is made clear that if the undertaking is not filed in this Court and served upon the Counsel for the respondents within two weeks as aforesaid, it will be open to the respondents to proceed to execute the award in accordance with law. The learned Counsel for the petitioner further prays that it be clarified that usual undertaking which petitioner proposes to file will be without prejudice to his right to challenge this order before the appropriate forum, if so advised. It is not necessary to grant such liberty as it is well settled that usual undertaking given before this Court cannot preclude the party from taking the matter in appeal before the Supreme Court.