Bombay High Court
Mahesh B. Chaudhry vs Radha Sadan Co-Op Hsg Soc Ltd. And 2 Ors on 5 February, 2019
Author: R.D. Dhanuka
Bench: R.D. Dhanuka
ppn 1 nms-735.16 wt 1559.15(J).doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
NOTICE OF MOTION NO.735 OF 2016
ALONG WITH
NOTICE OF MOTION NO.1559 OF 2015
IN
SUIT NO.750 OF 2015
Mahesh B.Chaudhary, Indian Inhabitant )
Age 59 years, Occupation : Business )
Residing at 86, Samrat Apartments )
Vasundhara Enclave, Delhi - 110 096. ) .. Applicant
In the matter between
Mahesh B.Chaudhary, Indian Inhabitant )
Age 59 years, Occupation : Business )
Residing at 86, Samrat Apartments )
Vasundhara Enclave, Delhi - 110 096. ) .. Plaintiff
Versus
1. Radha Sadan Co-operative Housing Society Ltd.)
having its registered office at Radha Sadan, )
99 Sion Road, Kings Way, )
Mumbai - 400 022. )
2. Chairman, Radha Sadan Co-operative )
Housing Society Ltd. )
having its registered office at Radha Sadan, )
99 Sion Road, Kings Way, )
Mumbai - 400 022. )
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3. Secretary, Radha Sadan Co-operative )
Housing Society Ltd. )
having its registered office at Radha Sadan, )
99 Sion Road, Kings Way, )
Mumbai - 400 022. ) .. Defendants
---
Mr.Rajat Wadhwa a/w Mr.Ashish Batra a/w Ms.Ratna Bhargavan i/by
R. Bhargavan & Associates for the applicant/plaintiff.
Ms.Rita Bhatia a/w Ms.Manisha Mohamamed Legal for the defendants.
---
CORAM : R.D. DHANUKA, J.
RESERVED ON : 10th January 2019 PRONOUNCED ON : 5th February 2019 Judgment :-
. By the Notice of Motion No.735 of 2016 filed under Order XII Rule 6 of the Code of Civil Procedure, 1908, the plaintiff seeks decree of possession of flat bearing No.Flat No.17, 1st floor, Radha Sadan C.H.S. Ltd. situated on Plot No.99, Sion (East), Kingsway, Mumbai - 400 022 and further direction that the name of the plaintiff be shown as the owner of the said flat in all the records of the defendant no.1 society based on the alleged admissions of the defendants.
2. Notice of Motion No.1559 of 2015 is filed by the plaintiff inter alia praying that the defendant no.1, their servants and agents be ::: Uploaded on - 05/02/2019 ::: Downloaded on - 16/03/2019 02:57:09 ::: ppn 3 nms-735.16 wt 1559.15(J).doc restrained from creating any third party rights, from carrying out any redevelopment or otherwise in respect of the suit flat, for mandatory order and injunction against the defendant no.1 to pay an amount of Rs.4,000/- towards monthly compensation to the plaintiff for the suit flat, for appointment of Court Receiver with a direction to hand over possession of the suit flat to the plaintiff and allow the plaintiff to occupy the flat as an agent of the Court Receiver.
3. The plaintiff has filed a suit inter alia praying for an order and decree to hand over vacant and peaceful possession of the suit flat to the plaintiff and prayed that in all the record of the defendant no.1 society, the plaintiff be shown as the owner of the suit flat and seeking temporary order and injunction against the defendant no.1, their servants and agent from creating any third party rights for redevelopment or otherwise in respect of the suit flat, for appointment of the Court Receiver and for an order and direction against the defendant no.1 to pay an amount of Rs.14,40,000/- towards compensation and further amount of Rs.40,000/- per month or as per the market rent with respect to future compensation till the defendant no.1 society hands over the suit flat to the plaintiff along with interest @18% from the date of filing the suit till realisation. The plaintiff has also prayed for damages of Rs.24,00,000/- ::: Uploaded on - 05/02/2019 ::: Downloaded on - 16/03/2019 02:57:09 :::
ppn 4 nms-735.16 wt 1559.15(J).doc along with interest @18% from the date of filing the suit till realisation, for civil contempt made by the defendant nos.1 to 3 for disobeying the directions in the letter of administration issued by this Court. By consent of parties, both the notices of motion are heard together and were being disposed of by a common order.
4. It is the case of the plaintiff that the grand mother of the plaintiff Smt.Shamibai Issardas Punwani was the member of the defendant no.1 society and was an owner/member in respect of the flat No.17 in the said society. The said Smt.Shamibai Punwani and her husband did not have any issue. It is the case of the plaintiff that the said Smt.Shamibai Punwani and her husband adopted the father of the plaintiff who was the Nephew of the said Smt.Shamibai Punwani. Father of the plaintiff thereafter assumed her surname Chaudhary which was the maiden surname of Shamibai instead of his adopted surname Punwani. Father of the plaintiff continued to stay with his aunt and uncle along with his wife.
5. It is the case of the plaintiff that the said Smt.Shamibai Punwani had executed a Will dated 4th January 1968 thereby bequeathing the suit flat in favour of the plaintiff by giving life interest in the said ::: Uploaded on - 05/02/2019 ::: Downloaded on - 16/03/2019 02:57:09 ::: ppn 5 nms-735.16 wt 1559.15(J).doc flat to her late husband. The said Smt.Shamibai Punwani died on 28 th January 1972. Her husband Mr.Issardas Punwani died on 21st June 1972. It is the case of the plaintiff that after demise of the said Smt.Shamibai Punwani and her husband Mr.Issardas Punwani, in terms of Will dated 4th January 1968, the plaintiff became owner of the suit flat. At that time, the flat was in possession of a tenant namely Mr.A.Rajam. The parents of the plaintiff used to collect rent from the said Mr.A. Rajam. The said Mr.A.Rajam paid rent to the parents of the plaintiff from June 1972 to September 1974 and thereafter stopped paying the rent. Parents of the plaintiff used to pay the maintenance to the defendant no.1 society.
6. In the month of February 1978, the defendant no.1 society filed a suit in the Co-operative Court, Mumbai under Sections 91 to 96 of the Maharashtra Co-operative Societies Act, 1960 against the plaintiff and the licensee Mr.A.Rajam for recovery of arrears of dues of the society and for declaration that the plaintiff herein had no right, title or interest in the suit flat. The defendant no.1 society also prayed for possession of the suit flat and for arrears of dues of the society. The said dispute being Case No.ABN/504/663 of 1978 came to be disposed of by the First Co- operative Court, Bombay by an order dated 22 nd November 1982. The learned Judge of the Co-operative Court rejected the prayer of the ::: Uploaded on - 05/02/2019 ::: Downloaded on - 16/03/2019 02:57:09 ::: ppn 6 nms-735.16 wt 1559.15(J).doc defendants with regard to the declaration that the plaintiff had no right in the suit flat. The Co-operative Court held that the Will dated 4 th January 1968 tantamount to nomination under the provisions of the Maharashtra Co-operative Societies Act and Rules and the plaintiff herein was duly nominated to succeed to the shares and the flat in dispute after the death of both Smt.Shamibai Punwani and Mr.Issardas Punwani and that the defendant no.1 was bound to transfer the shares and the flat in dispute in the name of the plaintiff herein (opponent no.2 in the said dispute).
7. In so far as the plaintiff is concerned, it is held that tenancy does not stand terminated against him as he had always offered to pay all the arrears, if the flat and the shares were transferred to his name. Non-payment of the society's dues by the plaintiff was not without sufficient cause. The plaintiff himself had not committed any breach of regulations of the society as the said Mr.A.Rajam was put in possession not by the plaintiff but by Smt.Shamibai Punwani.
8. The Co-operative Court held that the defendant no.1(original disputant) is entitled to recover possession of the flat in dispute from Mr.A.Rajam but not from the estate of Mr.Issardas Punwani and the ::: Uploaded on - 05/02/2019 ::: Downloaded on - 16/03/2019 02:57:09 ::: ppn 7 nms-735.16 wt 1559.15(J).doc plaintiff herein. It was made clear that in the event of the plaintiff agreeing to and undertakes to the defendant no.1 society to personally occupy the flat in dispute the society after execution of the award against Mr.A.Rajam and after taking possession of the flat in dispute may put the plaintiff herein in accordance with the Rules and Bye-laws of the Society.
9. The Co-operative Court further held that as regards arrears of the society's dues are concerned, it was submitted that the same have been paid upto December 1980. It is held that the society is entitled to recover the dues of the society as shown in the statement annexed at Exhibit-F before the Co-operative Court. The Co-operative Court directed all the opponents including the plaintiff herein to pay jointly or severally the sum of Rs.2,543.29 to the defendant no.1 society with interest @9% p.a. from the date of the said award till payment and also to pay the society's charges as per their bills from time to time. The Co-operative Court directed the said Mr.A.Rajam to quit, vacate and deliver the peaceful and vacant possession of the flat in dispute to the defendant no.1 society forthwith.
10. Being aggrieved by the said award rendered by the Co- operative Court, the said Mr.A.Rajam and the defendant no.1 society ::: Uploaded on - 05/02/2019 ::: Downloaded on - 16/03/2019 02:57:09 ::: ppn 8 nms-735.16 wt 1559.15(J).doc filed two separate appeals bearing Nos.41 of 1983 and 208 of 1983 respectively. Mr.A.Rajam also filed a separate Revision Application bearing No.26 of 1984 before the Maharashtra State Co-operative Appellate Court, Bombay.
11. By a judgment and order dated 28th October 1985, the Co- operative Appellate Court rejected the appeal no.41 of 1983 filed by Mr.A.Rajam. The Co-operative Appellate Court also dismissed the appeal no.208 of 1983 filed by the defendant no.1 society. The Co-operative Appellate Court directed the said Mr.A. Rajam to hand over the actual possession of the flat in dispute to the defendant no.1 society. It was directed that the society shall be entitled to recover monthly outgoings from the said Mr.A.Rajam till he hands over vacant possession to the society. The revision application no.26 of 1984 filed by Mr.A.Rajam came to be dismissed as the same did not survive.
12. Being aggrieved by the said order dated 28 th October 1985 passed by the Maharashtra State Co-operative Appellate Court, the said Mr.A.Rajam filed a writ petition bearing no.4853 of 1985 before this Court. In the said writ petition, the society as well as the plaintiff herein were impleaded as the respondents. The said Mr.A.Rajam and the society ::: Uploaded on - 05/02/2019 ::: Downloaded on - 16/03/2019 02:57:09 ::: ppn 9 nms-735.16 wt 1559.15(J).doc filed consent terms on 21st July 1999 in the said writ petition. The plaintiff was not a party to the said consent terms.
13. Under the said consent terms, the said Mr.A.Rajam and the society agreed that decree for eviction against the said Mr.A.Rajam in respect of the suit flat was confirmed subject to the deletion of the directions that the plaintiff do pay jointly or severally the sum of Rs.2543.29 to the society with interest and society's charges as per their bills from time to time. It was also agreed by them that if the said Mr.A.Rajam vacates the suit flat on or before 31 st December 1999, the said Mr.A.Rajam will not be liable to pay any amount whatsoever as awarded by the two Courts below and/or otherwise. It was further recorded that the said clause did not affect any liability of society and the plaintiff herein under the said awards of the two Courts below. The Society agreed to give time to the said Mr.A.Rajam to vacate unconditionally the flat in dispute and hand over possession of the same to the society and to none else on or before 31 st December 1999 on various conditions.
14. It is the case of the defendants that pursuant to the said consent terms filed by the parties before this Court, the defendant no.1 ::: Uploaded on - 05/02/2019 ::: Downloaded on - 16/03/2019 02:57:09 ::: ppn 10 nms-735.16 wt 1559.15(J).doc society obtained possession of the suit flat from the said Mr.A.Rajam and since then continued to be in possession of the suit flat till date.
15. It is the case of the plaintiff that on getting a job, the plaintiff came to Mumbai and asked the defendant no.1 for possession of the suit flat bequeathed to him by his grandmother. The defendant no.1 society however raised an objection that only on submission of letter of administration from this Court, the flat would be transferred and would be handed over to the plaintiff. The plaintiff accordingly filed a Testamentary Petition (960 of 2001) in this Court inter alia praying for grant of letter of administration for the Will of his grandmother. The said testamentary petition was contested by the defendant no.1 by filing a caveat. The said caveat was however dismissed by this Court. On 3 rd March 2006, this Court granted letter of administration to the plaintiff of the said Will of his late grandmother Smt. Shamibai. The said order was not challenged by the defendants.
16. It is the case of the plaintiff that the plaintiff met the defendant nos.2 and 3 on various dates for seeking possession of his flat however the defendants refused to part with possession of the flat. The plaintiff accordingly filed a suit before the Maharashtra State Co- ::: Uploaded on - 05/02/2019 ::: Downloaded on - 16/03/2019 02:57:09 :::
ppn 11 nms-735.16 wt 1559.15(J).doc operative Court No.3, Mumbai being Dispute No.131/2011 for possession of the suit premises for recovery of compensation.
17. The defendant no.1 society filed an application under Section 9A of the Code of Civil Procedure, 1908 in the said Dispute No.131 of 2011. On 18th September 2014, the Maharashtra State Co- operative allowed the application dated 16 th November 2011 filed by the defendant no.1 society under Section 9A of the Code of Civil Procedure, 1908 and declared that the Co-operative Court had no jurisdiction to try the said dispute and the same was directed to be returned to the plaintiff herein for filing in competent Civil Court.
18. It is the case of the plaintiff that during the period when the said dispute was pending before the Co-operative Court, parties were sent for mediation of Advocate P.V. Joshi. The matter however could not be settled between the parties before the learned mediator.
19. On 17th January 2015, the plaintiff filed a suit bearing No.750 of 2015 for recovery of possession and for various reliefs. The plaintiff also filed the aforesaid two notices of motion for various reliefs. ::: Uploaded on - 05/02/2019 ::: Downloaded on - 16/03/2019 02:57:09 :::
ppn 12 nms-735.16 wt 1559.15(J).doc
20. Learned counsel for the plaintiff made various submissions in Notice of Motion No.735 of 2016 followed by the submissions in Notice of Motion No.1559 of 2015. Learned counsel for the plaintiff invited my attention to various documents, pleadings, orders passed by the Maharashtra State Co-operative Court, the Maharashtra State Co- operative Appellate Court and this Court in various proceedings filed by the parties against each other.
21. It is submitted by the learned counsel that the said Smt.Shamibai Issardas Punwani had executed a Will 4 th January 1968 thereby bequeathing the suit flat in favour of the plaintiff by giving life interest in the said flat to her late husband. This Court had already granted letter of administration in the said suit in favour of the plaintiff. The caveat filed by the defendant no.1 in the said testamentary petition also came to be dismissed. The defendant no.1 society did not challenge the said order dismissing the caveat filed by the society as well as the order of grant of letter of administration in favour of the plaintiff.
22. It is submitted by the learned counsel that in the dispute bearing Case No.ABN/504/663 of 1978 filed by the society against the Estate of Shri Issardas H.Purwani, the plaintiff and Mr.A.Rajam, various ::: Uploaded on - 05/02/2019 ::: Downloaded on - 16/03/2019 02:57:09 ::: ppn 13 nms-735.16 wt 1559.15(J).doc findings came to be rendered in favour of the plaintiff. He submits that the Co-operative Court in the order dated 22nd November 1982 had already held that the Will dated 4th January 1968 tantamount to the nomination under the provisions of the Maharashtra Co-operative Societies Act and the Rules. The Co-operative Court had categorically held that the plaintiff was duly nominated to succeed to the shares and the flat in dispute after the death of both Smt.Shamibai Punwani and Mr.Issardas Punwani and that the defendant no.1 society is bound to transfer the shares and the flat in dispute in the name of the plaintiff. He submits that by the said order, the Co-operative Court had though held that the society was entitled to recover the possession of the suit flat from the said Mr.A.Rajam but not from the Estate of Shri Issardas H. Purwani and the plaintiff herein, the Co-operative Court had also made it clear that in case the plaintiff agrees and undertakes to the defendant no.1 society to personally occupy the flat in dispute, the society after execution of the award against Mr.A.Rajam and after taking possession of the flat in dispute may put the plaintiff herein in possession in accordance with the Rules and Bye-laws of the Society.
23. It is submitted by the learned counsel for the plaintiff that the Co-operative Court also in the order and judgment dated 28 th October ::: Uploaded on - 05/02/2019 ::: Downloaded on - 16/03/2019 02:57:09 ::: ppn 14 nms-735.16 wt 1559.15(J).doc 1985 held that the society cannot be said to be the 'landlord' of the member or the said Mr.A.Rajam by any stretch of imagination and Section 28 of the Rent Act will have no application to the claim of the society against the member or the said Mr.A.Rajam.
24. In so far as the appeal filed by the defendant no.1 society against the order of the Co-operative Court is concerned, the Co- operative Appellate Court rendered a finding that the said deceased Shamibai had not only nominated her husband by separate application for nomination but also she had executed a Will in favour of her husband. The said deceased Shamibai made a subsequent Will to the effect that in case of the death of her husband, the said flat should be transferred in the name of the plaintiff herein. The Co-operative Appellate Court accordingly held that the nomination can be made by a document which is signed by a member or the nomination can be made by a statement which can be entered in a book which is separately kept for that purpose.
25. It is held that the society could have called upon for the original Will or the original writing on which the plaintiff had relied upon and could have satisfied itself about the genuineness of the documents. However, the society did not follow the procedure laid down under ::: Uploaded on - 05/02/2019 ::: Downloaded on - 16/03/2019 02:57:09 ::: ppn 15 nms-735.16 wt 1559.15(J).doc Section 30 of the Maharashtra Societies Act or Rule 20 of the Rules. It is held that if the society entertained any genuine doubts about the documents produced by the plaintiff herein, the society could have published a notice and could have considered the claims of rival parties.
26. It is held that if the society is satisfied that the writing in question, was written by the deceased Shamibai which was deposited by her during her life time, the same document has to be treated as an application for nomination and the society could very well admit the plaintiff as a member. By the said order passed by the Co-operative Appellate Court, it was made clear that if the society entertains the doubt about the claim in writing of the plaintiff, the society could very well direct the plaintiff to produce the probate. The Co-operative Appellate Court held that appeal filed by the society will not be tenable. The Appellate Court, at the same time, held that it was not inclined to confirm the final order passed by the learned trial Judge because unless the plaintiff had been admitted as a member of the society, the society could not recover the monthly outgoings and other charges from him.
27. The Co-operative Appellate Court accordingly set aside that part of the award and directed the society to consider the claim of the ::: Uploaded on - 05/02/2019 ::: Downloaded on - 16/03/2019 02:57:09 ::: ppn 16 nms-735.16 wt 1559.15(J).doc plaintiff on merits. The Co-operative Court accordingly directed that though the Co-operative Appellate Court was directing Mr.A.Rajam to handover the vacant and peaceful possession of the flat of the society, the society will have to be directed not to dispose of the flat for recovering the arrears because the claim of the plaintiff will have to be considered by the society by following the proper procedure. It is not in dispute that by the said order, the Co-operative Court dismissed the said appeal filed by Mr.A.Rajam and also the appeal filed by the society.
28. It is submitted by the learned counsel that in so far as the order passed by this Court in Writ Petition No.4853 of 1985 is concerned, admittedly the plaintiff was not a party to the said consent terms. He submits that the said consent terms thus was not binding on the plaintiff in any manner whatsoever. He submits that in any event, even by the said consent terms, decree passed by the Co-operative Court and by the Maharashtra State Co-operative Appellate Court were confirmed subject to the deletion of certain directions against Mr.A. Rajam and the said Mr.A. Rajam handing over the possession of the suit flat to the society.
29. Learned counsel for the plaintiff placed reliance on the judgment of the Hon'ble Supreme Court in case of Raveesh Chand Jain ::: Uploaded on - 05/02/2019 ::: Downloaded on - 16/03/2019 02:57:09 ::: ppn 17 nms-735.16 wt 1559.15(J).doc vs. Raj Rani Jain, (2015) 8 SCC 428 and in particular paragraphs 5 and 6 in support of his submission that the defendants not having raised the issue of jurisdiction of civil court in the earlier round of litigation though had filed an application under section 9A of the Code of Civil Procedure, 1908 and more particularly before the Maharashtra State Co-operative Court in a dispute filed by the plaintiff, the said issue of jurisdiction of a civil court now raised is barred by the principles of constructive res- judicata. He submits that the power of court to pass a judgment under Order 12 Rule 6 of the Code of Civil Procedure, 1908 is very wide and can be exercised at any stage of the suit on the basis of the admission of facts made in the pleadings or otherwise without waiting for the determination of other questions which arose between the parties.
30. It is submitted that the principles laid down by the Hon'ble Supreme Court in case of Raveesh Chand Jain(supra) would clearly apply atleast in respect of the prayer clause (a) for seeking recovery of the vacant and peaceful possession of the suit flat by the plaintiff from the defendant society. It is submitted that the plea of adverse possession or claim of tenancy/licence raised by the defendant in the affidavit in reply to these notice of motions is also barred by constructive res-judicata in view of the defendants not having raised this plea in the earlier round of ::: Uploaded on - 05/02/2019 ::: Downloaded on - 16/03/2019 02:57:09 ::: ppn 18 nms-735.16 wt 1559.15(J).doc litigation when such plea could have been raised. He submits that all such plea now raised by the defendant society in the affidavit in reply as well as in the written statement are totally afterthought, frivolous and are raised with a view to delay the outcome of the notice of motion filed by the plaintiff for seeking a judgment under Order 12 Rule 6 of the Code of Civil Procedure, 1908 based on various admissions made by the defendants in the pleadings in the earlier round of litigation and also in these proceedings.
31. Ms.Bhatia, learned counsel for the defendant society on the other hand invited my attention to some of the orders passed by the Co- operative court, Maharashtra State Co-operative Appellate Court and the orders passed by this court in the consent terms filed between the defendants and Mr.A.Rajam. It is submitted by the learned counsel that her clients claim to be the owner of the suit property by adverse possession. At the same time, the defendants claim to be the tenant/ gratuitous licensee of the original owner since the society has been in possession of the suit flat since July/August 1999 allegedly with the implied consent and acquiescence of the plaintiff also.
32. It is submitted by the learned counsel that since the ::: Uploaded on - 05/02/2019 ::: Downloaded on - 16/03/2019 02:57:09 ::: ppn 19 nms-735.16 wt 1559.15(J).doc defendants have raised an issue of jurisdiction under section 9A of the Code of Civil Procedure, 1908 in the written statement and in the affidavit in reply, this court will have to frame the said issue first and to adjudicate upon it. She submits that admittedly the plaintiff was a party to the Writ Petition No.4853 of 1995 filed by Mr.A.Rajam against the defendant no.1 society before this court impugning the order passed by the Maharashtra Co-operative Appellate Court. She submits that though the plaintiff was a party to the said writ petition, the plaintiff did not challenge the consent terms between the defendant society and the said Mr.A.Rajam or the order passed by this court in terms of the said consent terms dated 21st July, 1999.
33. It is submitted that it was the defendant who took various steps for eviction of the said Mr.A.Rajam from the suit flat and not the plaintiff. The defendant had incurred substantial amount of expenditure on filing the proceedings for eviction of the said tenant and also in defending the proceedings filed the said Mr.A.Rajam and the plaintiff and thus the demand raised by the plaintiff for recovery of the possession in these circumstances is not an equitable demand. The defendant no.1 society has been already in continuous possession of the said flat since 1999 and has been using the said premises for the purpose of holding its ::: Uploaded on - 05/02/2019 ::: Downloaded on - 16/03/2019 02:57:09 ::: ppn 20 nms-735.16 wt 1559.15(J).doc meetings in the said flat and has been using the same as an office of the society. It is submitted that the provisions of Order 12 Rule 6 of the Code of Civil Procedure, 1908 does not apply to the facts of this case.
34. Insofar as the judgments relied upon by the learned counsel for the plaintiff are concerned, it is submitted by the learned counsel that the principles of law laid down by the Hon'ble Supreme Court in those judgments are not in dispute. She submits that though a right is conferred upon the plaintiff to execute the grant of Letters of Administration granted by this court, the plaintiff has to follow the requisite procedure of law in accordance with the Letters of Administration. She submits that though the said grant was issued by this court in the year 2006, the plaintiff did not take any steps to enforce the said grant of Letters of Administration till 2011. The defendants have been maintaining the suit flat from the funds of the society and has been paying municipal taxes and other outgoings in respect of the said suit flat. She submits that though the defendants could have sold the said flat, the defendants have not sold but has on the other hand protected the possession in respect of the suit flat by filing the proceedings and by defending the proceedings filed by the tenant.
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35. Insofar as the prayer for membership of the society is concerned, it is submitted by the learned counsel that the plaintiff admittedly did not make any application for membership of the defendant no.1 society. No payments have been ever made by the plaintiff in respect of the taxes and outgoings in respect of the suit flat to the defendant no.1. She submits that the defendants are already in a settled possession of the suit flat. This court thus cannot pass any order in the notice of motion filed under Order 12 Rule 6 of the Code of Civil Procedure, 1908.
36. Learned counsel for the defendants invited my attention to the averments made in the plaint and would submit that it is the case of the plaintiff himself that the defendant have been using the premises since 2000 without paying any rent. She submits that the said averments itself would indicate that the plaintiff has accepted the claim of tenancy of the defendant in respect of the suit flat.
37. Learned counsel for the plaintiff placed reliance on the judgment of the Hon'ble Supreme Court in case of Rame Gowda (Dead) by LRs. vs. M.Varadappa Naidu (Dead) by LRs. And another, (2004) 1 SCC 769 and in particular paragraph (9). She submits that in view of the defendants being in a settled possession of the suit flat by virtue of the ::: Uploaded on - 05/02/2019 ::: Downloaded on - 16/03/2019 02:57:09 ::: ppn 22 nms-735.16 wt 1559.15(J).doc consent decree passed by this court, the plaintiff cannot seek dispossession of the defendants in the notice of motion filed under Order 12 Rule 6 of the Code of Civil Procedure, 1908.
38. Insofar as Notice of Motion No.1559 of 2015 filed by the plaintiff is concerned, it is submitted by the learned counsel for the defendants that the defendants have already made a statement before this court at the ad-interim stage of the hearing of the Notice of Motion No.1559 of 2015 that the defendant did not want to go for re- development. There is no conveyance deed executed in favour of the defendant society. If any redevelopment proposal in future, the same would be then only after obtaining prior permission of this court. She submits that this court has already granted an order of status-quo in the said notice of motion which would protect the interest, if any, of the plaintiff in the suit flat.
39. Learned counsel for the plaintiff in rejoinder submits that the so-called plea of lack of jurisdiction of this court raised by the defendant in the written statement and in the affidavit in reply to the notice of motion is not a bonafide plea and has been raised only with an intention to delay the outcome of the result of the notice of motion filed by the ::: Uploaded on - 05/02/2019 ::: Downloaded on - 16/03/2019 02:57:09 ::: ppn 23 nms-735.16 wt 1559.15(J).doc plaintiff under Order 12 Rule 6 of the Code of Civil Procedure, 1908. He invited my attention to the plea already raised under section 9A by the defendant before the Co-operative Court in Dispute No.131 of 2011 filed by the plaintiff raising issue of jurisdiction of the Co-operative Court to grant relief of possession sought by the plaintiff in the said dispute and raising a plea that the civil court only had jurisdiction to grant that relief. The Co-operative Court by an order dated 18th September,2014 accepted the said plea of jurisdiction raised by the defendants and held that since the Co-operative Court had no jurisdiction to try the said dispute and accordingly returned the said dispute to the plaintiff for filing the same before the Competent Civil Court.
40. It is submitted that even at that stage, when the specific plea under section 9A of the Code of Civil Procedure, 1908 was raised by the defendants raising an issue of jurisdiction of the Co-operative Court and raised plea that only the civil court will have jurisdiction to grant such relief, the defendants cannot be now allowed to raise a plea in this suit for the same relief in the civil court, that even the civil court has no jurisdiction to entertain, try and dispose of the suit. He submits that this plea of the defendants is not only afterthought but is also not bonafide. He submits that the said order dated 18th September, 2014 passed by the ::: Uploaded on - 05/02/2019 ::: Downloaded on - 16/03/2019 02:57:09 ::: ppn 24 nms-735.16 wt 1559.15(J).doc Co-operative Court holding that the civil court has jurisdiction by allowing the application filed by the defendants under section 9A of the Code of Civil Procedure, 1908 has attained finality.
41. Insofar as the issue of jurisdiction raised under section 9A of the Code of Civil Procedure, 1908 raised by the defendants in the written statement and affidavit in reply is concerned, it is submitted that since the plea is not bonafide and in any event is already concluded, by the order passed by the Co-operative Court accepting the plea of jurisdiction raised by the defendants under section 9A of the Code of Civil Procedure, 1908 and holding that the civil court has jurisdiction, this plea cannot be allowed to be raised by the defendants in this suit and thus on this ground itself, this court is not required to frame any issue under section 9A of the Code of Civil Procedure, 1908. He submits that though this plea is raised in the written statement in a casual manner, the same is not pressed by the defendants at any stage earlier.
42. Insofar as the issue of limitation sought to be raised by the defendants during the course of he argument is concerned, it is submitted by the learned counsel for the plaintiff that Article 65 of the Schedule to the Limitation Act, 1963 provides for a period of limitation of 12 years ::: Uploaded on - 05/02/2019 ::: Downloaded on - 16/03/2019 02:57:09 ::: ppn 25 nms-735.16 wt 1559.15(J).doc for filing a suit for recovery of possession. He submits that the plaintiff had demanded possession from the defendants from time to time. The plaintiff had filed a dispute before the co-operative court within three years from the date of such demand and had filed this suit within 9 years from the date of obtaining grant of Letters of Administration from this court.
43. Insofar as judgment of the Hon'ble Supreme Court Rame Gowda (Dead) by LRs. (supra) relied upon by the learned counsel for the defendants is concerned, learned counsel for the plaintiff distinguished the said judgment on the ground that the present suit filed by the plaintiff for recovery of the possession from the defendants itself is due process of law. The said judgment of the Hon'ble Supreme Court thus would not assist the case of the defendants but would assist the case of the plaintiff.
REASONS AND CONCLUSION :-
44. I shall first deal with the issue of jurisdiction belatedly raised by the defendants under section 9A of the Code of Civil Procedure,1908 in the written statement filed on 10 th September,2015. It is not in dispute that the plaintiff had filed a dispute bearing no. 131 of 2011 against the defendant society before the Maharashtra Co-operative Court at Bombay ::: Uploaded on - 05/02/2019 ::: Downloaded on - 16/03/2019 02:57:09 ::: ppn 26 nms-735.16 wt 1559.15(J).doc inter alia praying for a judgment to handover the vacant and peaceful possession of the suit flat to the plaintiff under sections 91 to 96 of the Maharashtra Co-operative Societies Act, 1960. It was the case of the plaintiff in the said dispute that the said dispute would fall under sections 91 to 96 and 98 of the Maharashtra Co-operative Societies Act, 1960 since the plaintiff was claiming through the past member and as the legal heir of the said member. In the said suit, the plaintiff had also prayed for order and direction against the defendants to pay various amounts to the plaintiff. In the said dispute, the defendants had admittedly filed an application under section 9A of the Code of Civil Procedure, 1908 raising a plea of jurisdiction of the co-operative court for entertaining the said dispute.
45. It was the case of the defendants in the said application that the civil court would have jurisdiction to entertain the said relief and not the co-operative court. Based on the said plea raised by the defendants, the co-operative court framed an issue i.e. 'whether this court has jurisdiction to try and entertain the said dispute and pass an order therein ?' The co-operative court held that the main relief of the disputant (plaintiff herein) in the said dispute was for possession of the suit flat in connection to title. The title of the plaintiff was disputed by the ::: Uploaded on - 05/02/2019 ::: Downloaded on - 16/03/2019 02:57:09 ::: ppn 27 nms-735.16 wt 1559.15(J).doc defendants in the said proceedings. The co-operative court accordingly held that the disputant had not prayed for a declaration of the said title however has claimed possession of the suit flat. The co-operative court accordingly held that the said court has no jurisdiction to declare the title in respect of the suit flat and only the competent court has jurisdiction of the dispute and handover the possession by declaring the title in respect of the suit flat. The defendants had raised the dispute that there was a tenant in the suit flat. The co-operative court has no jurisdiction to decide the dispute in respect of the flat and only the competent civil court has jurisdiction of allowing the said claim made by the plaintiff in the said dispute and not the co-operative court.
46. It is further held by the co-operative court that if the defendant society had retained the possession of the suit flat with it unauthorizedly, then there would be encroachers in the suit flat and even in that situation the dispute against the encroacher i.e. the opponent no.1 society was not cognizable in the co-operative court and only civil court can dispose of the said dispute. A perusal of the said order clearly indicates that it was not the case of the defendants before the co-operative court that the defendants had become the owner by adverse possession or that the defendants was the tenant or gratuitous licensee in respect of the ::: Uploaded on - 05/02/2019 ::: Downloaded on - 16/03/2019 02:57:09 ::: ppn 28 nms-735.16 wt 1559.15(J).doc suit flat. In my view, the plea now raised that this court has no jurisdiction to try the plea of tenancy/gratuitous licensee raised by the defendants in this suit is not a bonafide plea but is a dishonest plea. The said plea of jurisdiction ought to have been raised before the co-operative court which was not raised admittedly by the defendants. The co-operative court accepted the plea of jurisdiction raised by the defendants on the ground that only the civil court could have entertained the said relief and having accepted the said order, in my view the society cannot be allowed to raise a plea of jurisdiction under section 9A of the Code of Civil Procedure, 1908. The defendant no.1 had raised a plea in the dispute filed by the society that the society was a landlord of Mr.A.Rajam which is contrary to the plea now raised that society is a tenant/gratuitous licensee.
47. A perusal of the order dated 18 th September, 2014 indicates that one of the plea raised by the defendant was that the dispute was with regard that there was a tenant in flat no.17 and the co-operative court has no jurisdiction in deciding the dispute in respect of the said rent. The Co- operative court however held that since the issue was in respect of the title raised by the plaintiff in respect of the suit flat, only the competent civil court will have jurisdiction and not the co-operative court. ::: Uploaded on - 05/02/2019 ::: Downloaded on - 16/03/2019 02:57:09 :::
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48. The Division Bench of this Court in case of Ferani Hotels Private Limited & Anr. vs. Nusli Neville Wadia & Ors., 2013(3) Bom.C.R. 669 has after adverting to various judgments of this Court has held that the object of State Legislature in introducing the provisions of section 9-A of the Code of Civil Procedure, 1908 was to ensure that when an objection on the ground of jurisdiction is raised, that must be addressed first before an application for interlocutory relief is finally disposed of. Nonetheless the legislature balanced the claim of a plaintiff to have access to some interlocutory protection. It is held that though the object of the legislature was thus to protect against an abuse of process on the part of the plaintiffs, experience of trial Judges in this Court would be suggestive of the fact that in certain cases the provision can be capable of being abused by a defendant. A defendant may conceivably raise an objection as to jurisdiction merely with a view to delay the final disposal of a motion for interim relief, cognizant of the fact that an ad-interim application of the kind which is contemplated under section 9-A (2) may not in a given situation result in the grant of wide ranging interim reliefs of the kind that may be sought by a plaintiff.
49. It is held by the Division Bench that the possibility of an abuse by the defendants, which the practical unfolding of the provision of ::: Uploaded on - 05/02/2019 ::: Downloaded on - 16/03/2019 02:57:09 ::: ppn 30 nms-735.16 wt 1559.15(J).doc section 9-A indicates,in the experience of the trial Judges of this Court, would emphasize the necessity of allowing a modicum of discretion on the part of the trial Judge while dealing with an application for the raising of a preliminary issue under section 9A. The Division Bench of this Court adverted to a judgment of the Hon'ble Supreme Court in case of Tayabbhai M. Bagasarwalla vs. Hind Rubber Industries Private Limited, (1997) 3 SCC 443 which provided that the trial Court is not helpless merely because of a preliminary issue is sought to be raised under section 9A. It is held by the Division Bench that in order to ensure that section 9A is not susceptible to grave abuse at the behest of an unscrupulous defendant, it would be within the jurisdiction and authority of the trial Judge to consider as to whether the objection as to jurisdiction arises bonafide or whether it is wholly frivolous.
50. The Division Bench further made it clear that abuse contemplated a minimal enquiry by the Court, since if at that stage comprehensive adjudication were to be contemplated that would factually defeat the provisions of section 9A. It is further clarified that the provisions of section 9A would not be inconsistent with the trial Judge exercising a minimal enquiry at the threshold to satisfy the conscience of the Court that the objection of jurisdiction has been raised bonafide and is ::: Uploaded on - 05/02/2019 ::: Downloaded on - 16/03/2019 02:57:09 ::: ppn 31 nms-735.16 wt 1559.15(J).doc not frivolous or irrelevant exercise meant only to delay or defeat the process of the Court.
51. A perusal of the record ex-facie indicates that a plea of jurisdiction raised by the defendant in the written statement and in the affidavit in reply on the premise that the defendant claims to be a tenant / gratuitous licensee and thus the said issue cannot be decided by this Court is not a bonafide plea but is a dishonest plea. No such plea was ever raised by the defendant even in the earlier round of litigation. The Co- operative Court has passed an order directing the society to hand over possession of the flat to the plaintiff if the plaintiff would have given an indemnity to occupy the suit flat himself. That part of the order passed by the Co-operative Court was admittedly not set aside by the Maharashtra State Co-operative Appellate Court.
52. In my view, this defence thus raised by the defendant in the written statement and in the affidavit in reply to the notice of motion is ex-facie with an intention to delay the out come of the notice of motion. In my view, even on the basis of minimal enquiry permitted to be conducted by the trial Court as held that the Division Bench of this Court (R.D. Dhanuka, J. being a party thereto), this Court is of the view that no ::: Uploaded on - 05/02/2019 ::: Downloaded on - 16/03/2019 02:57:09 ::: ppn 32 nms-735.16 wt 1559.15(J).doc preliminary issue raising a plea of jurisdiction is required to be framed by this Court in the facts and circumstances of this case.
53. The Hon'ble Supreme Court in case of Raveesh Chand Jain (supra) has after construing Order XII Rule 6 of the Code of Civil Procedure, 1908 has held that a bare perusal of the said provision makes it clear that it confers wide discretion on the Court to pass a judgment at any stage of the suit on the basis of admission of facts made in the pleading or otherwise without waiting for the determination of any other question which arose between the parties. It is held that since the said provision permits the passing of judgment at any stage without waiting for determination of other questions, it follows that there can be more than one decree that may be passed at different stages of the same suit. The principle behind Order XII Rule 6 is to give the plaintiff a right to speedy judgment so that either party may get rid of the rival claims which are not in controversy.
54. The Hon'ble Supreme Court in case of Karam Kapahi vs. Lal Chand Public Charitable Trust, (2010) 4 SCC 753 and in particular paragraphs 39 to 42 held that in an appropriate case a party on the admission of the other party can press for judgment, as a matter of legal ::: Uploaded on - 05/02/2019 ::: Downloaded on - 16/03/2019 02:57:09 ::: ppn 33 nms-735.16 wt 1559.15(J).doc right however, the Court always retains its discretion in the matter of pronouncing the judgment. It is held that in Order XII Rule 6, the expression "or otherwise", is much wider in view of the words used therein, viz. "admission of fact ........ either in the plea or otherwise, whether orally or in writing". The Hon'ble Supreme Court held that since the question of ownership was already decided in the earlier suit filed by the appellant in that matter, the said issue need not have to be decided afresh and hence on the basis of the finding of the ownership decided in favour of the plaintiff, the suit has to be decreed so far as recovery of possession is concerned. In my view, the principles laid down by the Hon'ble Supreme Court in case of Raveesh Chand Jain (supra) squarely applies to the facts of this case. The defendant in this case had specifically raised a plea under section 9-A of the Code of Civil Procedure, 1908 in the dispute filed by the plaintiff and had alleged that the Co-operative Court has no jurisdiction to grant relief of possession and determination of title and only the Civil Court had jurisdiction to adjudicate upon or entertain such relief.
55. Though the defendant could have raised an issue of jurisdiction of the Co-operative Court on the ground that the defendant was a tenant/gratuitous licensee and thus even the Civil Court would not ::: Uploaded on - 05/02/2019 ::: Downloaded on - 16/03/2019 02:57:09 ::: ppn 34 nms-735.16 wt 1559.15(J).doc have jurisdiction to entertain such dispute, the defendant did not raise such plea before the Co-operative Court. The plea now raised for the first time that the defendant claims to be a tenant/gratuitous licensee and thus this Court has no jurisdiction to entertain the suit is in my view, clearly barred by constructive res-judicata. The said plea is constructively raised and is deemed to have been rejected in the proceedings filed by the plaintiff before the Co-operative Court for seeking the same reliefs which are subject matter of this suit.
56. In my view, the relief which is directly or indirectly already decided in the earlier ground of litigation between the same parties in respect of the same reliefs and having attained finality, the same cannot be allowed to be re-agitated in the subsequent proceedings. If any such plea raised, the court is not required to decide that issue before deciding the application for judgment under Order 12 Rule 6 of the Code of Civil Procedure, 1908. In my view, the plaintiff in this case has even otherwise satisfied the conditions set out in the said provision and is entitled to judgment for part of the reliefs claimed in the plaint.
57. A perusal of the judgment dated 22nd November, 1982 passed by the Maharashtra State Co-operative Appellate Court in dispute bearing ::: Uploaded on - 05/02/2019 ::: Downloaded on - 16/03/2019 02:57:09 ::: ppn 35 nms-735.16 wt 1559.15(J).doc no.ABN/504/663 of 1978 filed by the defendant against the estate of Shri Issardas Hirasingh Punwani, the plaintiff herein and Shri A.Rajam indicates that the defendant herein had filed the said dispute for recovery of possession of the flat in dispute, for declaration that the plaintiff herein (opponent no.2 therein) did not hold any right, title or interest in the said flat and for monetary relief. It was the contention of the defendants herein that the suit flat was held by its member Smt.Shamibai Issardas Punwani in accordance with the rules, regulations and bye-laws of the society who was required to pay the outgoings and charges of the society from time to time. It was the case of the society that the said Smt. Shamibai Issardas Punwani had filed a nomination form dated 25 th April, 1960 with the society with her husband Shri Issardas Hirasingh Punwani in respect of the suit flat. Upon the death of the Smt.Shamibai Issardas Punwani, the suit flat vested in Shri Issardas Hirasingh Punwani in pursuance of the said nomination which was not revoked. Before the suit flat could be transferred in the name of Shri Issardas Hirasingh Punwani, who had approached the society for transfer of the suit flat in the name of said Shri Issardas Hirasingh Punwani he died on 21st June, 1972.
58. The plaintiff herein thereafter had requested the society to transfer the said flat in dispute in his name on the ground that the said ::: Uploaded on - 05/02/2019 ::: Downloaded on - 16/03/2019 02:57:09 ::: ppn 36 nms-735.16 wt 1559.15(J).doc Smt.Shamibai Issardas Punwani had lodged with the society a copy of her Will dated 4th January,1968 with the consent of her husband assigning the said flat in dispute and relating share to the plaintiff herein and on the date of her death to herself and her husband. The society however did not accede to the said request of the plaintiff herein on the ground that the plaintiff was neither the nominee of the said Smt.Shamibai Issardas Punwani nor by her husband Shri Issardas Hirasingh Punwani in accordance with the provisions of bye-laws nor had produced any probate of the alleged Will dated 4th January,1968. The society had asked the plaintiff herein to produce the probate of the Will. The society filed a dispute against the estate of the said deceased Shri Issardas Hirasingh Punwani since according to the society, it did not know who were the heirs and legal representatives of the said Shri Issardas Hirasingh Punwani.
59. It is not in dispute that the estate of Shri Issardas Hirasingh Punwani and the plaintiff herein who were impleaded as the opponent nos.1 and 2 in the said dispute filed joint written statement. It was contended by them that the refusal of the society to transfer the flat and right, title and interest therein in the name of the plaintiff herein was illegal. The society could not have insisted for probate of Will dated 4 th ::: Uploaded on - 05/02/2019 ::: Downloaded on - 16/03/2019 02:57:09 ::: ppn 37 nms-735.16 wt 1559.15(J).doc January,1968. It was also contended by the plaintiff as well as the estate of the said Shri Issardas Hirasingh Punwani that the Will dated 4 th January,1968 may be treated as the application for nominating the plaintiff herein. There was no other claimants to the shares and the rights in the said flat except the plaintiff. The Co-operative Court formed six issues.
60. A perusal of the said judgment clearly indicates that the witnesses of the society had admitted in his evidence that after depositing the nomination on 25th April, 1960 in favour of her husband Shri Issardas Hirasingh Punwani, the said Smt.Shamibai Issardas Punwani had lodged her Will dated 4th January,1968 with the Society disposing of the flat in favour of the plaintiff herein after her death and the death of her husband. The husband of the said Smt.Shamibai Issardas Punwani also had given consent. The Co-operative Court after considering the oral evidence led by the society and the evidence led by the plaintiff, rejected he contention of the society that since the writing dated 4th January,1968 was labelled and written as a Will, it could be converted into the documents to suit the requirement of section 30 of the Maharashtra Co-operative Societies Act,1960.
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61. It is held by the Co-operative Court that the witness of the society who was a treasurer of the society had admitted that Shri Issardas Hirasingh Punwani had told him that time that after the death of Smt.Shamibai Issardas Punwani and Shri Issardas Hirasingh Punwani, the plaintiff herein would be the owner of the flat in dispute. It is also held by the Co-operative Court that the plaintiff had shown that his father Bhagwandas Chaudhry was adopted by Shri Issardas Hirasingh Punwani and Smt.Shamibai Issardas Punwani as their son. The Co-operative Court rendered a finding that after considering the totality of the case, it was obvious that the plaintiff was clearly named by Smt.Shamibai Issardas Punwani and Shri Issardas Hirasingh Punwani to succeed to the shares and flat after their death. The writing dated 4 th January,1968 though described as the Will could also be termed as a document within the meaning of section 30 of the Maharashtra Co-operative Societies Act, 1960, the purpose of which is to transfer the interest of the deceased member according to the wishes expressed in the writing which requires to be deposited with the society during the lifetime of the member in order to safeguard the manipulation after the death of the member.
62. The Co-operative Court accordingly held that the Will dated 4th January,1968 tantamounted the nomination under the provisions of the ::: Uploaded on - 05/02/2019 ::: Downloaded on - 16/03/2019 02:57:09 ::: ppn 39 nms-735.16 wt 1559.15(J).doc Maharashtra Co-operative Societies Act, 1960 and the Rules. The plaintiff herein was duly nominated to succeed to the shares and the flat in dispute, after the death of Smt.Shamibai Issardas Punwani and Shri Issardas Hirasingh Punwani and that the society was bound to transfer the flat and the shares in dispute in the name of the plaintiff herein.
63. The Co-operative Court in paragraph (13) of the said judgment categorically held that the society was entitled to recover the possession of the flat in dispute from Mr.A.Rajam but not from the estates of Shri Issardas Hirasingh Punwani and the plaintiff herein. It was made clear in the said paragraph that in case the plaintiff agree and undertakes to the disputant society to personally occupy the flat in dispute, the disputant society after execution of the award against the said Mr.A.Rajam and after taking possession of the flat in dispute, may would put the plaintiff in possession of the said flat in accordance with the rules and bye-laws of the society.
64. It is not in dispute that against the said award rendered by the Co-operative Court, the said Mr.A.Rajam and the defendant society filed two separate appeals. A perusal of the judgment rendered by the Maharashtra State Co-operative Appellate Court indicates that it was ::: Uploaded on - 05/02/2019 ::: Downloaded on - 16/03/2019 02:57:09 ::: ppn 40 nms-735.16 wt 1559.15(J).doc urged by the society that after the death of the deceased Shri Issardas Hirasingh Punwani, the suit flat vested the society as a trustee. The Maharashtra State Co-operative Appellate Court held that there exist no contractual and statutory privity between the society and the licensee from a member of the society to ensure protection of his possession after termination of the members' interest in the flat of the society. The Maharashtra State Co-operative Appellate Court held that the society cannot be said to be the landlord of the member or the said Mr.A.Rajam by any stretch of imagination and section 28 of the Rent Act cannot have any application to the claim of the society against the member or the petitioner.
65. Insofar as the issue regarding the nomination is concerned, the Maharashtra State Co-operative Appellate Court held that the deceased Smt.Shamibai Issardas Punwani had not only nominated her husband by a separate application for nomination but had also executed a Will in favour of her husband. The Maharashtra State Co-operative Appellate Court upheld the findings of the Co-operative Court that the said Will submitted by Smt.Shamibai Issardas Punwani was a document which would amount to a nomination in records of the society as per the provisions of law. The society could have called upon the original Will or ::: Uploaded on - 05/02/2019 ::: Downloaded on - 16/03/2019 02:57:09 ::: ppn 41 nms-735.16 wt 1559.15(J).doc the original writing on which the plaintiff herein relied upon and could have been satisfied itself about the genuineness of the document. The Co-operative Appellate Court accordingly held that the said document could be treated as an application for nomination and the society could very well admit the petitioner as a member. However, if the society entertain any doubt about the claim in writing of the plaintiff, the society could very well direct the plaintiff to produce the probate.
66. The Maharashtra State Co-operative Appellate Court held that the appeal thus filed by the society was not tenable. The Co- operative Appellate Court accordingly directed the society to consider the claim of the plaintiff herein on merits. In the operative part of the said order, the Maharashtra State Co-operative Appellate Court dismissed the Appeal No.41 of 1983 filed by Mr.A.Rajam and also the Appeal No.208 of 1983 filed by the society. It is thus clear beyond reasonable doubt that various direction issued by the Co-operative Court were upheld in the said two appeals filed by the said Mr.A.Rajam and the society respectively except to the effect that the society would be entitled to recover the municipal outgoings from Mr.A.Rajam till he would handover the possession to the society. The said order clearly indicates that the submissions of the society that the flat vested in the society as a trustee or ::: Uploaded on - 05/02/2019 ::: Downloaded on - 16/03/2019 02:57:09 ::: ppn 42 nms-735.16 wt 1559.15(J).doc as landlord of the member of the occupant was clearly rejected by the Maharashtra State Co-operative Appellate Court. It is clear that before the Co-operative Court, the defendant society has claimed to be landlord of the plaintiff herein and Mr.A.Rajam in respect of the suit flat whereas in the written statement in this suit, the society claims to be tenant/ licensee of the member which stand is totally destructive to each other.
67. A perusal of the consent terms dated 21st July, 1999 also clearly indicates that by the said consent terms to which the plaintiff herein was admittedly not a party clearly indicates that the order passed by the Co-operative Court and the Maharashtra State Co-operative Appellate Court were confirmed subject to the deletion only of the directions regarding monetary reliefs. Various findings rendered and the directions thus issued by the Co-operative Court and Maharashtra State Co-operative Appellate Court were confirmed even in the said consent terms by the parties to consent terms.
68. Learned counsel appearing for the defendant could not dispute that this court has granted Letters of Administration in favour of the petitioner on 3rd March,2006 in respect of the property and the credits of the deceased Smt.Shamibai Issardas Punwani in Petition No.960 of ::: Uploaded on - 05/02/2019 ::: Downloaded on - 16/03/2019 02:57:09 ::: ppn 43 nms-735.16 wt 1559.15(J).doc 2001. The caveat filed by the society in the said testamentary petition was admittedly which order attained finality. In my view, the defendant society thus even otherwise could not have claimed any right, title or interest in the flat either as the owner or by virtue of alleged adverse possession or as the tenant/gratuitous licensee in the teeth of various orders passed by the Co-operative Court, Maharashtra State Co-operative Appellate Court and the order passed by this court in the consent terms dated 21st July, 1999. The rights in the flat and the share certificate in the suit flat vests in the plaintiff and thus the defendant society cannot claim any right, title contrary to the order passed by the Co-operative Court, Maharashtra State Co-operative Appellate Court and this court in respect of the suit flat. The plaintiff has thus made out a case for grant of relief insofar as possession of the suit flat is concerned in this notice of motion under Order 12 Rule 6 of the Code of Civil Procedure, 1908 on the basis of various admissions in the pleadings and various orders binding on parties insofar as judgment for recovery of possession is concerned by applying the principles laid down by the Hon'ble Supreme Court in case of Raveesh Chand Jain (supra).
69. I am thus inclined to grant the relief sought in the Notice of Motion No.735 of 2016 in terms of prayer clause (a).
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terms of prayer clause (a). The defendant society is directed to handover the vacant and peaceful possession of the flat described in prayer clause (a) to the plaintiff within four weeks from today and shall comply with this order within the same period.
(ii) Insofar as other reliefs sought by the plaintiff in Suit No.750 of 2015 are concerned, those reliefs would be considered by this court on its own merits at the stage of hearing of suit.
(iii) Notice of motion is accordingly made absolute in the aforesaid terms. No order as to costs.
(iv) In view of the disposal of the Notice of Motion No.735 of 2016, the defendant shall not create any third party rights in respect of the suit flat till the defendant hands over the vacant and peaceful possession of the suit flat and complies with the order passed by this court in Notice of Motion No.735 of 2016.
(v) Insofar as prayer clause (b) of the Notice of Motion No.1559 of 2015 is concerned, since the plaintiff has already claimed the compensation in prayer clause (d) of the plaint, this relief cannot be considered by this court at this stage and the said prayer clause (d) ::: Uploaded on - 05/02/2019 ::: Downloaded on - 16/03/2019 02:57:09 ::: ppn 45 nms-735.16 wt 1559.15(J).doc can be considered by this court at the stage of hearing of suit on its own merits.
(vi) Notice of Motion No.1559 of 2015 is also disposed of in the aforesaid terms. No order as to costs.
R.D. DHANUKA, J.
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