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2013 DIGILAW 1756 (BOM)

Sudhir s/o. Namdeorao Sonone v. Panjabrao Smurti

2013-08-29

S.B.SHUKRE

body2013
JUDGMENT This appeal is preferred against the judgment and decree passed by learned Principal District Judge, Wardha, in Regular Civil Appeal No. 76 of 2010 on 26.6.2012 upholding the judgment and decree passed against appellant/original defendant no.2 by learned Joint Civil Judge, Jr. Dn., Wardha, in Regular Civil Suit No. 313 of 2005 on 19.1.2010. 2. Heard Shri Anthony, learned counsel for the appellant and Mr. Patil, learned counsel for respondent no. 1. Respondent no. 2 is absent though served and none appears for him. With the assistance of learned counsel for the appellant and respondent no.1, I have carefully perused memo of appeal and documents annexed to it including judgments of both the courts below. 3. Shri Anthony, learned counsel for the appellant, submits that it was the case of respondent no. 1-society, which had filed a suit for possession against the appellant and respondent no. 2, that the suit premises were given on rent to respondent no. 2 and respondent no. 2 without consent and knowledge of respondent no. 1 had allowed the appellant to occupy the suit premises. This itself would show that basically the dispute between the parties was required to be adjudicated upon by the Cooperative Court as per Section 91(3) of the Maharashtra Cooperative Societies Act. He further submits that even though respondent no. 2 was referred to as tenant in the pleadings taken by respondent no. 1 before the lower court, such reference was only a loose reference for a member in the society. He places reliance upon the observations of this Court in the case of Contessa Knit Wear v. Udyog Mandir Coop. Housing Society AIR 1980 Bom. 374 . He also places reliance upon the case of M/s. Electrical Cable Development Association Vs. M/s. Arun Commercial Premises Cooperative Housing Society Ltd. & another AIR 1998 SC 1988 : [1998 (3) ALL MR 184 (S.C.)] wherein Supreme Court has held that any dispute that touches upon the business of society has to be adjudicated upon by a Cooperative Court as per Section 91 of the Maharashtra Cooperative Societies Act. He has also referred to the cases of The Digambar Parshwanath Jain Mandir v. Valubai w/o Revchand Mehta AIR 1961 Bom. 221 ; Chandrika Misir & anr. v. Bhaiyalal AIR 1973 SC 2391 and Ajit Mohinder Singh & ors. v. Smt. Bhani & anr. He has also referred to the cases of The Digambar Parshwanath Jain Mandir v. Valubai w/o Revchand Mehta AIR 1961 Bom. 221 ; Chandrika Misir & anr. v. Bhaiyalal AIR 1973 SC 2391 and Ajit Mohinder Singh & ors. v. Smt. Bhani & anr. AIR 1987 P. & H. 167 in support of his contention that even though the plea of jurisdiction was not taken before the lower court, same, if going to the root of the matter, can very well be taken even in the highest Court of the land or at any stage or in second appeal for the first time. 4. Shri Patil, learned counsel for respondent no. 1, on the other hand, submits that it was no where pleaded by respondent no. 1 before the trial Court that respondent no. 2 was a member of the society-respondent no. 1. It was only stated that the suit premises were given on rent to him and that he had without consent of society let them out to appellant who was nothing but a rank trespasser. According to him, when it was pleaded that the appellant was a rank trespasser and that respondent no. 2 was only a tenant, it could not by any stretch of imagination be said that the society was accepting the fact that respondent no. 2 was its member. Therefore, according to him, there was no application of Section 91(3) to the facts and circumstances of the present case. He further submits that this case does not give rise to any question of law, much-less a substantial question of law and, therefore, this second appeal is not tenable. 5. Here, the main contention raised on behalf of the appellant is that the Civil Court does not have any jurisdiction to entertain a dispute of present nature in view of the bar of jurisdiction under Section 91(3) of the Maharashtra Cooperative Societies Act and this would form a substantial question of law involved in the case. In order to attract the bar of jurisdiction of the Civil Court under the said Act, it would be necessary to ascertain whether the dispute was between the cooperative society and its members or not. If there is some material pointing out this fact, one would say that certainly substantial question of law as sought to be canvassed on behalf of the appellant, is involved in this case. If there is some material pointing out this fact, one would say that certainly substantial question of law as sought to be canvassed on behalf of the appellant, is involved in this case. It is well settled law that a substantial question of law is not only a mere question of law but also substantial one, which substantially and directly affects the rights of the parties and is not finally settled or is not free from difficulty or calls for discussion of alternative views. What constitutes a substantial question of law as contemplated under Section 100 of Code of Civil Procedure, has been succinctly clarified by the Hon'ble Supreme Court in the case of Santosh Hazari Vs. Purushottam Tiwari deceased by L.Rs. reported in 2001(2) Mh. L.J. 786 on which reliance has been placed by Shri Patil, learned Counsel for the respondent-society. The Hon'ble Supreme Court has held, "...to be "substantial" a question of law must be debatable, not previously settled by law of the land or a binding precedent, and must have a material bearing on the decision of the case, if answered either way, insofar as the rights of the parties before it are concerned...". It is also equally well settled that such question of law should be involved in the case. 6. The Hon'ble Apex Court has in the case of Santosh Hazari (supra) laid down three conditions necessary for constituting a question of law "involved in the case". These conditions are as under: (1) there must be a foundation for it laid in the pleadings, (2) the question should emerge from the sustainable findings of fact arrived at by Court of facts, and (3) it must be necessary to decide that question of law for a just and proper decision of the case. 7. Learned Counsel for respondent No. 1 has also placed reliance upon the judgment of this Court rendered in the case of Shankar Shridharrao Deshmukh Vs. Vyankatesh Shankarrao Deshmuh reported in 2007(1) Mh.L.J. 541 , which has followed the law laid down in the case of Santosh Hazari (supra) and the judgment of the Hon'ble Supreme Court rendered in the case of Kshitish Chandra Purkait Vs. Vyankatesh Shankarrao Deshmuh reported in 2007(1) Mh.L.J. 541 , which has followed the law laid down in the case of Santosh Hazari (supra) and the judgment of the Hon'ble Supreme Court rendered in the case of Kshitish Chandra Purkait Vs. Santosh Kumar Purkait & others (1997) 5 SCC 438 , which refers to guidelines to determine as to what is a "substantial question of law" within the meaning of Section 100 of Code of Civil Procedure stated in the case of Chunnilal V. Mehta & Sons Ltd. v. Centry Spinning & Manufacturing Co. Ltd. AIR 1963 SC 1314 and lays down that the Court should be "satisfied" that the case involves a "substantial question of law" and not a mere "question of law". 8. Now, in the light of the legal principles laid down by the Apex Court, it would be necessary to examine whether any foundation for raising the question of law, which the appellant says as substantial one, has been laied before the Court of fact or not. The necessary foundation would be in the nature of some material showing the appellant either a member of respondent No.1 society or a person claiming through the member of respondent No.1 society. Upon close reading of the judgments of both the Courts below and other material available on record and which formed part of the record of these Courts, one can see that no such foundation has been laid by the appellant before the trial Court. In fact, it is an admitted position that the appellant was not a member of the society. What the appellant has sought to canvass before this Court is that the appellant, by the own case of respondent No.1, has been inducted into the suit premises by its tenant, the respondent no. 2, and, therefore, the appellant could be termed as a person claiming through the tenant of respondent No.1. The appellant further submits that respondent No. 2 has been loosely referred to as a tenant of the society and such loose reference needs to be construed as reference in fact to the member of the society and to support such an argument, the appellant would like to draw support from the observations of this Court recorded in the case of Contessa Knit Wear (supra). Such a contention, however, does not impress me for the reason that in the said case of Contessa Knit Wear (supra), the appellant/applicant though a member of the society, was loosely referred to as tenant of the society. Such is not the case here. The appellant has never been a member of the society and that is not the end of the matter. Even, respondent No. 2, the tenant of respondent No.1 society, has never been a member of respondent No.1 society. So, there is no material available on record which points out to the fact that the capacity of the appellant, by own case of respondent No.1, has something to do with the membership of the society. Had there been such material present on record, it would have enabled this Court to say that the first condition for determining the question of law to be a substantial one involved in the case has been satisfied. As this condition has not been satisfied, I am of the view that this case does not give rise to any substantial question of law involved in the case, in as much as there is nothing on record which would indicate that the jurisdiction of the Civil Court could possibly have been barred by application of the provisions of Section 91(3) of the Maharashtra Cooperative Societies Act. 9. Now, it would be necessary to advert to cases of M/s. Electrical Cable Development Association, [1998(3) ALL MR 184 (S.C.)] (supra), The Digambar Parshvanath (supra), Chandrika Misir & another (supra) and Ajit Mohinder Singh (supra) relied upon by the learned counsel for the appellant. 10. In the case of M/s Electrical Cable Development, [1998(3) ALL MR 184 (S.C.)] (supra), the Hon'ble Supreme Court has held that a dispute regarding ejectment of licensee by putting member of the society is a dispute touching business of society and, therefore, authorities under Section 91 of the Maharashtra Coop. Societies Act has jurisdiction. There is no dispute about this principle of law but same would have no application to the facts of the present case for the reason that respondent No. 2 has never been a member of the society. 11. Societies Act has jurisdiction. There is no dispute about this principle of law but same would have no application to the facts of the present case for the reason that respondent No. 2 has never been a member of the society. 11. In the cases of The Digambar Parshvanath, Chandrika and Ajit Mohinder Singh, the Hon'ble Supreme Court has held that where the Court is inherently lacking in jurisdiction, the plea as to jurisdiction could be raised at any stage, even if it was not raised in the trial Court. There could be no second opinion about the legal principle, which is well settled over a period of time. But the question is how to find out inherent defect of jurisdiction? Answer to the question obviously would be by laying some foundation for it before a Court of fact as held in the case of Santosh Hazari (supra). Unless some material is placed before it, it cannot be said that foundation necessary for giving rise to a question of law involved in the case is ready. In the instant case, such material could have been in the nature of some averment that appellant is a member or a person claiming through a member of respondent no. 1-society. Such material being absent, the cases of The Digambar Parshvanath, Ajit Mohinder Singh and Chandrika would not come in aid of the case of the appellant. 12. In the result, I find that this case does not raise any substantial question of law. The appeal is, therefore, liable to be dismissed at admission stage. Accordingly, appeal stands dismissed. In the circumstances of the case, there shall be no order as to costs. Appeal dismissed.