1 cra-326-11.sxw dgm IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION CIVIL REVISION APPLICATION NO. 326 OF 2011 Special Recovery Officer, Shri Vasantrao Chougule Nagari Sahakari Patsanstha Mydt. Shahupuri, Kolhapur .... Applicant (Original Defendant No.2) vs 1 Shri Appaso Kalgonda Patil 2 Shri Jingonda Kalgonda Patil 3 Shri Narsgonda Kalgonda Patil 4 Shri Sandesh Anna Patil 5 Shri Anna Kalgonda Patil (Dadbatte) .... Respondents (Nos.1 to 4 Orig. Plffs. & No.5­ orig.Deft. No.1.) Mr. S.S. Patwardhan for the Applicant. Mr. N.J. Patil for Respondents 1 to 3. CORAM: ANOOP V. MOHTA, J. RESERVED ON: September 15, 2011 PRONOUNCED ON: November 11, 2011 JUDGMENT : 2 cra-326-11.sxw The Petitioner (original Defendant No.2) has challenged the impugned order whereby the learned trial Court rejected an application under Order VII, Rule 11 of Code of Civil Procedure (CPC) in a Suit filed some time in 2009 by Respondents 1 to 4 (the Plaintiffs) against the Petitioner and Respondent No.5 (Original Defendant No.2) for decree of perpetual injunction in respect of the property which was, as alleged, the subject matter of proceedings under the Maharashtra Cooperative Societies Act, 1960 ( for short, “MCS Act”). 2 The Petitioner/Society has obtained Section 101 of MCS Act Certificate dated 25 January 2007 against original Respondent no.5 who had availed a loan of Rs.12 lacs in its individual capacity. The said certificate was never challenged. The Petitioner/Society therefore attached the (HUF) property in question. It was put to auction. No buyer had turned up. The Society therefore applied under Section 100 of the MCS Act to transfer the property in it’s name. The Suit in question was filed by Respondent nos. 1 to 4 against the society with regard to the property. The written statement was filed opposing the contentions as well as interim injunction. The property in the mean while transferred in the name of the Society on 22 January 2010. The 3 cra-326-11.sxw Petitioner, on 6 February 2010 applied for rejection of the plaint under Order VII, Rule 11 of CPC (Exh. 15). The same was rejected. 3 The property admittedly belongs to Hindu Undivided Family of Plaintiff and Defendant no.1. It is recorded accordingly. The possession of the property, therefore, is of HUF family. The property, as averred, was never partitioned. The Plaintiffs have no concern with the recovery proceedings initiated by the Society under the MCS Act. The Plaintiffs are not even the members of the Society. The Suit is for injunction simpliciter against the society to protect the possession of the property. Therefore, the submission that the Suit should be dismissed or plaint be rejected for want of notice under Section 164 of MCS Act read with Section 80 of the CPC, in the facts and circumstances, is not acceptable at this stage of the proceeding. The Petitioner being a Special Recovery Officer that itself is not sufficient to notice under Section 80 of the CPC. He is just an Recovery Officer appointed under the MCS Act. He cannot be treated as public servant and/or public officer for the purposes of present suit. In every matter, notice under Section 164 of MCS Act is not necessary. 4 cra-326-11.sxw 4 Importantly, the basic requirement of Order VII Rule 11(d) of the CPC that the Court needs to consider the plaint and the averments made therein for deciding the relevant aspect of rejection/return of plaint. The written statement or defence, even if any, raised by the Defendants is irrelevant. Therefore, after going through the plaint and the averments made by the Plaintiffs and considering the facts and circumstances of the case, I see there is no reason to interfere with the order so passed by the learned Trial Court while rejecting the application. The suit is still pending. The parties have already filed written statement. The Court needs to consider every aspect of the disputes so raised in the Suit as well as in the written statement. After framing appropriate issues, the Court may pass appropriate order after considering the material and evidence placed on record by the parties. I am therefore, of the view that no case is made out by the Petitioners to interfere with the impugned order. 5 There is nothing on record to show that the property was mortgaged for and on behalf of HUF family, therefore, unless it is decided, effect of recovery proceedings against original Defendant no. 1 for want of consent and/or his right to mortgage the property, such Suit cannot be dismissed at this stage at the instance of Defendants in 5 cra-326-11.sxw view of the defence so raised in the written statement or in reply. 6 The Suit is not against the State and/or its agents or Officer as contemplated under Section 80 of the CPC. 7 In view of above facts, therefore, the reliance on Suprabhat Co­ operative Housing Society Ltd. Vs. Span Builders 1 is of no assistance. The facts and circumstances are distinct and distinguishable. The Suit is not for setting aside the recovery proceedings which were never against the Original Plaintiffs. The Suit cannot be stated to be barred by inherent jurisdiction. 8 In the result, the present Revision Application under Section 115 of the CPC against the order of returning the plaint as contemplated under Order VII Rule 11(d) is maintainable but in view of above reasons dismissed on merits. 9 The Revision Application is accordingly dismissed. There shall be no order as to costs. (ANOOP V. MOHTA, J.) 1 2002(3) Mh.L.J. 837