… 1 … IN THE HIGH COURT OF BOMBAY AT GOA SECOND APPEAL NO. 22 OF 2000 Smt. Nina Noemia Pinto (Expired) represented by legal heir : Mrs. Xacuntala Makhija, major, residing opposite Football Ground, Campal, Panaji, Goa .. Appellant. Versus 1. Mr. Victor Pereira, major residing behind Agnelo Monteiro Colony, Near Prof. Anton Rodrigues House, Kerent, Caranzalim, Goa. 2. Mr. Teofilo Fernando Antonio Pinto, residing next to Military Hospital, Campal, Panaji, Goa. .. Respondents. Mr. Shivan Dessai, Advocate for the appellant. Mr. G. Shirodkar, Government Advocate for the respondents. CORAM :- U. D. SALVI,J. DATE : 11 th January, 2010 … 2 … ORAL JUDGMENT : Only substantial question that arises in the present second appeal is whether the Civil Court has no jurisdiction to entertain and try the suit for permanent injunction bearing No.107/1986/A instituted in the Court of C.J.S.D., Panaji by the appellant/ plaintiff against the respondent / defendant Victor Pereira on account of provisions of Section 91 of the Maharashtra Co-operative Society Act, 1960. 2. The following facts are disclosed in the plaint, which are relevant for the purpose of answering the aforesaid question: The plaintiff, widow of Dr. Filipe Armindo Pinto and Cabeca de Casal is administering all the immovable properties left behind by Dr. Filipe Pinto; and is the owner of property known as Lote No.18 'Varzia Terceira Cunto Balim Xete' at Campal, Miramar, Panaji, which is hereinafter referred to as the suit property. She developed the suit property with the help of her son-in-law and constructed thereon a building consisting of 10 residential flats and four garages. She thereafter, entered into several agreements with the intending purchasers of the said 10 residential flats. Two of … 3 … the four garages were converted into a flat some time in the year 1980 or thereabout for the purposes of forming a Co- operative Housing Society of the purchasers of the flats in the said building. The defendant, who was an employee of her son-in-law at the material time was shown on the record as a member of the proposed society in order to fulfill the requirements of minimum 11 members needed to form a society. According to the plaintiff, no agreement to sale the said improvised flat was entered into by and between herself and the defendant, and the said building and the property still stands in her name as no conveyance to transfer the said property has been executed in favour of Co-operative Housing Society named 'Pearly Shell Co-operative Housing Society' formed by the intending purchasers and the defendant. It is also the case of the plaintiff that she has been paying in the name of the defendant all dues payable by the defendant as a member of the said society in respect of the said improvised flat, the suit premises. Some time in 1982, the defendant left services of son-in-law of the plaintiff and thereafter has been nursing ideas to grab the suit premises taking advantage of the fact that his name appears as a member in the records of the said society. Apprehending the mischief, the plaintiff instituted the said suit against the … 4 … defendant for a permanent injunction restraining the defendant or anyone claiming through him from dispossessing the plaintiff from the suit flat. 3. Issues were framed. One of them is regarding the maintainability of the suit in view of the provisions of the Maharashtra Co-operative Society's Act, 1960. Issue regarding the maintainability of the suit was heard and the suit was dismissed upon answering the issue in favour of the defendant. The learned Civil Judge, while deciding the said issue in favour of the defendant, made following observations: “ In my opinion, in the instant case the dispute that is outstanding between the parties relates to the affairs of a co-operative society. Furthermore, the parties to the present dispute come within the category of persons described under Section 91 of the Cooperative Society's Act, the plaintiff is basing its claim through a deceased member of the society and the defendant is a member or is claiming through deceased member of the society.” These observations made by the learned Civil Judge, it is pointed out, are in contrast with the facts appearing in the … 5 … plaint, which formulates the dispute between the parties. Nowhere it is apparent from the plaint that the plaintiff is basing her claim through a deceased member of the society. 4. The learned Appellate Court, however, upheld the learned Civil Judge's finding on the said material issue and proceeded to dismiss the appeal preferred by the present appellant. The learned Appellate Court observed thus : “There is material on record also showing that the appellant/ plaintiff is registered holder of five shares in Pearly Shell Cooperative Society and there is certificate of ownership issued by management committee of the society showing that the appellant is the owner of the flat and the ground floor of the building and is registered member of the society under registration No.11.” 5. While considering this material issue, the learned Appellate Court ought to have considered the pleadings of the plaintiff in the plaint. Nowhere the appellant claimed that she is a member of the Pearly Shell Cooperative Housing Society. Specific pleadings – written statement dated 11.3.1987 referred to a fact that the name of the defendant has been shown as a tenant member of the said society in the … 6 … bye-laws at serial No.11 thereof. It appears that the Appellate Court has confused the plaint with written statement and made erroneous observations. 6. Section 163 of the Maharashtra Cooperative Society's Act, 1960 bars jurisdiction of the Civil Court in respect of any dispute required to be referred to the Cooperative Court for decision. Certainly, the dispute in the present suit does not concern the registration of the society or its bye-laws, or the amendments of its bye-laws or the dissolution of the committee of a society, or the management of the society on dissolution thereof; or winding up and dissolution of a society. Section 91 of the said Act requires that any dispute touching the constitution, elections of the committee or its officers, conduct of general meetings, management or business of a society shall be referred to the Co-operative if both the parties to such dispute are one or other of the following : “(a) a society, its committee, any past committee, any past or present officer, any past or present agent, any past or present servant or nominee , heir or legal representative of any deceased officer, deceased agent or deceased servant of the society or the liquidator of the society or the official Assignee of a de-registered society. (b) a member, a past member or a person claiming … 7 … through a member, past member or a deceased member of society or a society which is a member of the society or a person who claims to be a member of the society ; (c) a person other than the member of a society with whom the society has any transaction in respect of which any restrictions or regulations have been imposed, made or prescribed under Sections 43, 44 or 45 and any person claiming through such person; (d) a surety of a member, past member or deceased member, or surety of a person other than a member with whom the society has any transaction in respect of which restrictions have been prescribed under Section 45, whether such surety or person is or is not a member of the society; (e) any other society, or the liquidator of such a society or de-registered society or the official Assignee of such de-registered society.” 7. In the instant case, the plaintiff is neither a member nor a person claiming through a member or a person with whom the society has any transaction in respect of which any restrictions or regulation have been imposed, made or prescribed under Sections 43, 44 or 45 or the surety of a member, past member or deceased member or surety of a person other than a member with whom the society has any … 8 … transaction in respect of which restrictions have been prescribed under Section 45. The plaintiff also does not fall in category of sub clauses (a) to (e) of the clause (1) of Section 91 of the Act. Even by reading explanations 1 and 2 to Section 91, the dispute involved in the present case cannot be said to be dispute within the meaning of Section 91 of the said Act. Clearly the Courts below fell in error in dismissing the said suit and the appeal therefrom on answering the same material issue in favour of the respondent/ defendant. 8. In view of the aforesaid discussion, the appeal is allowed. The impugned orders of the learned Additional District Judge-I, Panaji dated 29.11.1999 in R.C.A. No. 73/1997, and judgment and order of dismissal of the Special Civil Suit No.107/1986/A passed by the learned C.J.S.D., Panaji, Goa on 21/12/1996 are set aside. The suit is remanded back to the CJSD, Panaji, Goa for disposal according to law. No order as to costs. U. D. Salvi, J. SMA