-: 1 :- caw-275/2010. IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION CIVIL APPLICATION NO.. 275 OF 2010 IN WRIT PETITION NO. 3449 OF 1995 Roozbeh M. Aga & Ors. ..Applicants./Petitioners. Versus The Rock House Co-op Hsg. Scoiety & Others. ..Respondents. Mr. V. Y. Sanglikar i/b Mr. Manish Upadhye for the applicants. Mr. Shishir Joshi for respondent no.1. Coram : R. V. MORE, J. Date : July 23, 2010. P. C. : 1. Civil application is filed for interim relief in terms of prayer clause (c) in the writ petition. In order to understand the controversy, few facts are required to be stated, which are as follows : . The above writ petition arises out of the petitioner's application under section 23(2) of the Maharashtra Co-operative Societies Act, 1960 [ for short “the MCS Act.”] requesting respondent no.3 to enroll him as a member of respondent no.1 society. The said application was rejected. After exhausting the remedies of appeal and revision, the petitioner has filed the aforesaid writ petition. On 12th October 1995, writ petition was admitted and interim relief in terms of prayer clause (c) was granted. srp -: 2 :- caw-275/2010. Prayer clause (c) reads thus : “(c) That pending the hearing and final disposal of this petition that respondent no.1 – society through its officers, agents or servants be restrained from disturbing the possession of the said flat no.2 and/or taking any steps for evicting the petitioner from the said flat in Rock House Co-operative Housing Society Limited” . The writ petition was subsequently dismissed for default on 21st July 2008. Therefore, the petitioner filed Civil Application No.1423 of 2009 for restoration of the said writ petition. The said civil application was allowed by this Court by order dated 9th October 2009 and writ petition was restored to its file. However, so far as the question of restoration of interim relief is concerned, this Court gave liberty to the petitioner to file fresh application. In pursuance of this liberty, the petitioner has filed the present civil application for interim relief. 2. The petitioner is claiming title to the disputed flat in pursuance of some consent terms between his father and one predecessor-in-title of the said flat. Respondent no.1- Society, on the contrary, submitted that in the absence of any legal document, transferring the suit flat in favour of the petitioner's father, the society cannot enroll him as member of the society. This dispute has come upto the High Court and is sub-judice in the above writ petition. 3. The society has also filed a dispute in the Co-operative Court in the -: 3 :- caw-275/2010. year 1998 for recovery of maintenance amount from the petitioner. I am told that this suit is pending before the Co-operative Court. In this suit, from time to time, interim orders were passed, which are challenged in the Co-operative Appellate Court and in this Court. The petitioner has ultimately deposited an amount of Rs.50,500/- in the Co-operative Court. 4. Learned counsel for the society, while opposing the relief claimed in the civil application, submitted that the petitioner is enjoying the facilities provided by the society without paying any amount towards maintenance. He further submitted that previously the rate of maintenance was Rs.800/- per month and it has gradually increased and at present each member is required to pay Rs.3,000/- per month towards the society maintenance. 5. Mr. Sanglikar, learned counsel appearing on behalf of the petitioner tried to dispute the statement of learned counsel for the society. However, he submitted that the applicant cannot avoid the liability to pay maintenance to the society. 6. Taking into consideration, the above facts and circumstances, in my opinion, the applicant cannot enjoy the facilities of the society without paying maintenance amount. The respondent-society, on the other hand, cannot claim exorbitant amount by way of maintenance. -: 4 :- caw-275/2010. The entitlement of the applicant to be a member of the respondent – society, will be decided in pending writ petition. The entitlement of the society to recover the amount of maintenance from the applicant will be decided by the Co-operative Court. However, during the pendency of the above writ petition and dispute in the Co-operative Court, I feel that the applicant should be made to pay some amount of maintenance, as a condition precedent for grant of interim relief. In that view of the matter, I dispose of the civil application by passing following order. -: O R D E R :- [A] Civil Application is allowed in terms of prayer clause (a) and interim relief granted on 12th October 1995 in aforesaid writ petition is restored, however, subject to following conditions : (i) Within eight weeks from today, the applicant shall deposit in this Court the amount of maintenance at the rate of Rs.800/- per month for the period November 1998 to June 2010. (ii) From July 2010, the applicant shall go on depositing Rs. 3,000/- per month towards the society maintenance, in this Court on or before 10th day of each month. (iii) Registry shall invest the amount so deposited by the applicant in the Nationalised Bank, initially for the period of one year and thereafter shall renew the said deposit on year to year basis till the final decision of writ petition. (iv) The aforesaid deposit is subject to the outcome of the aforesaid Writ Petition and Dispute in Co-operative Court. -: 5 :- caw-275/2010. [B] Hearing of the writ petition is expedited. [C] The Co-operative Court – III is directed to expedite the hearing of Dispute No. 1321 of 1998. Learned Judge shall endevour to dispose of the said dispute as expeditiously as possible and preferably within the period of 6 months from today. Needless to state that the Co-operative Court shall not be influenced by the observations made in this order. The parties are also directed to co-operate with the Court below for early disposal of the dispute. [D] Civil Application stands disposed of. (R.V. MORE, J.)