pvr ca295-lpal23301-lpa185-10 IN THE HIGH COURT JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION CIVIL APPLICATION NO.295 OF 2010 IN LETTERS PATENT APPEAL (Stamp)NO.23301 OF 2010 IN WRIT PETITION NO.6992 OF 2003 Sulochana Kirtikumar Shah. ...Appellant vs. 1.Chetali Narendra Shah & Ors. ...Respondents --- Mr.Navin Parekh i/b . Ms.V.M.Jhaveri, for Appellant. Mr.P.S.Dani i/b. Mr.Sagar Kasar, for Respondent no.1. --- CORAM: D.K.DESHMUKH & K.K.TATED, JJ. DATED: 21st January, 2011 P.C.: By consent, Civil application is granted in terms of prayer clause (a). (D.K.DESHMUKH,J.) (K.K.TATED,J.) pvr ca295-lpal23301-lpa185-10 IN THE HIGH COURT JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION LETTERS PATENT APPEAL NO.185 OF 2010 IN WRIT PETITION NO.6992 OF 2003 Chaitali Narendra Shah. ...Appellant vs. 1.Sulochana Kirtikumar Shah & ors. ...Respondents --- Mr.P.S.Dani i/b. Sagar Kasar, for Appellant. Mr.Navin Parekh i/b. Ms.U.M.Jhaveri, for Respondent no.1. Ms.Neha Choksi, for Respondent no.2. AND LETTERS PATENT APPEAL (St) NO.23301 OF 2010 IN WRIT PETITION NO.6992 OF 2003 Sulochana Kirtikumar Shah ...Appellant vs. 1.Chetali Narendra Shah & Ors. ...Respondents --- Mr.Navin Parekh i/b . Ms.V.M.Jhaveri, for Appellant. Mr.P.S.Dani i/b. Mr.Sagar Kasar, for Respondent no.1. --- pvr ca295-lpal23301-lpa185-10 - 2 - CORAM: D.K.DESHMUKH & K.K.TATED, JJ. DATED: 21st January, 2011 P.C.: 1. Admit. Heard finally by consent of parties. Both these appeals are directed against the same order passed by the learned Single Judge of this Court dated 9.3.2010 in Writ Petition no. 6992 of 2003. 2. The admitted facts are that Sulochana Kirtikumar Shah holds a flat in Shree Sati Niwas Co-operative Housing Society s building. Admittedly, there is a registered gift deed executed by Sulochana Kirtikumar Shah in favour of Chaitali Narendra Shah on 10.10.1985. It appears that thereafter Ms.Chaitali N.Shah attempted for grant of membership of the Co- operative housing society. The dispute was taken to the authorities under the Co-operative Societies Act. The Deputy Registrar held that pvr ca295-lpal23301-lpa185-10 - 3 - Ms.Chaitali is entitled to the membership of the Housing Society. In Revision, the Divisional Joint Registrar has set aside that order and has held that Ms.Chaitali is not entitled to be admitted as member of the Housing Society. Therefore, Ms.Chaitali filed second Revision before the State Government challenging the order passed by the Divisional Joint Registrar. The State Government set aside the order of the first revisional authority and held that Ms.Chaitali is entitled to be admitted as member of the housing Society. Then Sulochana K.Shah filed Writ Petition no.6992 of 2003 challenging the order passed by the State Government in the Second Revision. It may be pointed out that Solochana K.Shah, admittedly, has filed civil suit challenging the Gift deed and praying for declaration that it is void document, and that the Gift deed has been obtained by fraud. That Civil Suit is pending. Admittedly, there is no pvr ca295-lpal23301-lpa185-10 - 4 - interim order passed in the Civil Suit. The Society is also not made a party in the Civil suit. The learned Single Judge of this Court decided Writ Petition no.6992 of 2003 by order dated 9.3.2010. The learned Single Judge held that the second Revision under Section 154 of the Co-operative Societies Act was not maintainable. The learned Single Judge further held that the Society should not make any change in relation to the membership of either Sulochana or Chaitali and it should abide by the decision of the Civil Court. Therefore, these two appeals have been filed, one by Sulochana because according to her though the learned Single Judge has held that the second revision against the order of the Divisional Joint Registrar before the State Government was not maintainable, she has not actually set aside the order passed by the State Government; and second by Chaitali because according to her though it is true that there is pvr ca295-lpal23301-lpa185-10 - 5 - a judgment of this Court holds that the Second Revision under Section 154 of the Maharashtra Co- operative Societies Act is not maintainable, that judgment was delivered in the year 2004 and not before the Second Revision decided by the State Government. It is also contended that the Society has right to take a decision about its membership and there are provisions made in the Co-operative Societies Act providing remedies to the persons who are denied membership. Those remedies could not be taken away by the learned Single Judge by directing the parties to abide by the decision of the Civil Court when no interim order was passed in the Civil suit when the Society is not even a party to the civil suit. 3. Now first taking the contention of Chaitali that the learned Single Judge could not have held that Second Revision filed under pvr ca295-lpal23301-lpa185-10 - 6 - Section 154 of the Maharashtra Co-operative Societies Act was not maintainable, for consideration. In our opinion, though the judgment of this Court came in the year 2004 holding that under Section 154 of the Act second revision is not maintainable, that judgment was delivered on the basis of the provisions of Section 154 of The Maharashtra Co-operative Societies Act which was the same in the year 2003 when the second revision filed by Chaitali was decided. In our opinion, therefore, the order of the learned Single Judge holding that order dated 23.1.2003 passed by the State Government is without jurisdiction cannot be interfered with. In our opinion, as the learned Single Judge has recorded a clear finding that the order of the State Government in the Second Revision is without jurisdiction, the learned Single Judge should have set aside that order leaving Chaitali to adopt the remedy that she may have against the order of the Divisional Joint Registrar in pvr ca295-lpal23301-lpa185-10 - 7 - relation to her claim that she is entitled to be admitted to the membership of the Housing Society. 4. So far as the contention of Chaitali that in the absence of any interim order passed in the Civil Suit and in the absence of Society being joined as party to the civil suit, the Society cannot be made to abide by the result of the Civil suit and not by the order that may be passed in relation to the membership passed either by the Authorities under the Maharashtra Co-operative Societies Act or any Court competent to decide that dispute. We find considerable substance in this submission because by directing the Society to abide by the result of the civil suit, the learned Single Judge has really directed the parties not to adopt remedies available under the provisions in the Maharashtra Co-operative Societies Act in relation to grant of membership by a co-operative society. pvr ca295-lpal23301-lpa185-10 - 8 - 5. Taking overall view of the matter, therefore, in our opinion, the following order would meet the ends of justice:- Both the appeals are disposed of in the following terms:- Order dated 23.1.2003 passed by the State Government which was challenged in Writ Petition no.6992 of 2003 is set aside. Ms.Chaitali shall be at liberty adopt such remedies as she may have under the law against the order passed by the Divisional Joint Registrar dated 31.3.1989. The Society shall act in relation to the issue of membership as per the decision that may be rendered by the Court or the authority that may be approached by the parties on this issue. If any interim order or final order is passed by the Civil Court in the civil suit which has bearing on the question of validity of the Gift Deed, Society shall be free to take that pvr ca295-lpal23301-lpa185-10 - 9 - into consideration while considering the issue of membership. Smt.Sulochana shall be free to apply to the civil Court where her civil suit is pending, for permission to join Co-operative society as a proper party to the civil suit. (D.K.DESHMUKH,J.) (K.K.TATED,J.)