1 wp2179.92 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD WRIT PETITION NO.2179 OF 1992 Ashok s/o Bapurao Kadam, Age: 31 years, Occ: Agri., R/o. Tapovan, at present Swnand Co-operative Housing Society, Basmath, Tq. Basmath, District Parbhani. ...PETITIONER VERSUS 1. Balaji s/o Manohar Mugutkar, Age: 52 years, Occ: Business, R/o. Basmath, Taluka Basmath, District Parbhani. 2. Swanand Co-operative Society at Basmath, Tq. Basmath, District Parbhani. 3. Bapurao Eknath Deshmukh, Age: 34 years, Occ: Agriculture, R/o. Bhandegaon, Post Amba, Tq. Basmath, Dist. Parbhani. 4. The Maharashtra State Co-operative Appellate Court, Bench at Aurangabad. ...RESPONDENTS ... Mr. E.P. Sawant, Advocate for the petitioner. Mr. A.S. Deshmukh, Advocate for respondent No.1. Respondent Nos. 2 to 4 served. ... 2 wp2179.92 CORAM: S.S. SHINDE, J. DATE : 29TH APRIL, 2011 ORAL JUDGMENT : This petition is directed against the judgment and order dated 07-03-1991 passed by the Co-operative Appellate Court in Appeal No.20 of 1989. 2. The petitioner herein filed Dispute NO.CCP 50/1998 before the Co-operative Judge, Nanded for declaration of ownership and allotment of Plot NO. 34 Municipal No. A-373 situated in Swanand Co-operative Housing Society Ltd., Basmath District Parbhani, to the petitioner . 3. It is the case of the petitioner that, in the said Dispute, the Written Statement was filed on behalf of the opponents. In the written statement, it is stated that the written statement may be treated as counter claim. No separate 3 wp2179.92 counter claim was filed nor the required Court fee was deposited. It is the case of the petitioner that such counter claim without being payment of Court fees and praying to treat written statement as counter claim, was not permissible in law. 4. The original disputant - petitioner herein filed application for withdrawal of Dispute No. CCP-50 of 1988. After hearing the parties, the Co-operative Court allowed to withdraw the Dispute granting liberty in favour of the disputant and opponent No.2 i.e. respondent No.1 herein to file a fresh suit if they so desire. 5. Aggrieved by the order dated 02-05-1999 passed by the Co-operative Court, Nanded, respondent No.1 herein filed Appeal No.20 of 1989. In the said appeal, the Co-operative Appellate Court set aside the order dated 02-05-1989 passed by the Co-operative Court in Dispute No. CCP-50/1988 and the Co-operative Court was directed to proceed with the hearing of the 4 wp2179.92 Dispute. Liberty was granted to the original disputant i.e. the petitioner herein to file fresh application before the Co-Operative Court if he intends to withdraw the Dispute without praying the permission to file fresh Dispute on the same cause of action. The said order is under challenge. 6. The learned Counsel for the petitioner submits that the Co-operative Court by order dated 02-05-1989 granted liberty to the disputant and also opponent NO.2 to file a fresh suit if they so desire. According to the learned Counsel for the petitioner, the order passed by the Co-operative Appellate Court does not disclose any reason much less cogent reasons directing the Co-operative Court to proceed with the Dispute. According to the learned Counsel for the petitioner, there is no any provision either in the Code of Civil Procedure or in the Maharashtra Co-operative Societies Act, prohibiting the disputant from withdrawing the Dispute/Suit. Therefore, according 5 wp2179.92 to the Counsel for the petitioner, if the judgment of the Appellate Court is perused and if the operative part of the order is seen in the light of the reasons in the judgment, contradictory order is passed by the Co-operative Appellate Court. Therefore, the Counsel for the petitioner would submit that the order passed by the Co- operative Court may be maintained by setting aside the order passed by the Appellate Court. 7. The learned Counsel for the respondent No.1 submits that the Appellate Court referring to the M/s. Halas Rai vs Firm K.B. Bass & Co. reported in A.I.R. 1968 S.C. 111 has passed appropriate order realising the position that though the dispute/suit is withdrawn by the plaintiff, counter claim filed by the opponent can survive and the same can be adjudicated even if the dispute/suit is withdrawn. Therefore, the Counsel for the respondent would submit that this Court may not interfere, under extraordinary writ jurisdiction of this Court, in the impugned 6 wp2179.92 judgment and order. 8. I have given due consideration to the rival submissions advanced by the learned Counsel for the parties. Perused the judgment of the Co- operative Court as well as Co-operative Appellate Court. The Co-operative Appellate Court relying on the reported judgment in the case of M/s. Halas Rai vs Firm K.B. Bass & Co. reported in A.I.R. 1968 S.C. 111, came to the conclusion that the counter claim can survive even if the original suit/dispute is withdrawn. However, in the operative part of the order, there is nothing stated about the counter claim of the respondent. Even after realising the legal position that, the plaintiff can withdraw the suit and there is no provision in law to compel the plaintiff to proceed with the suit, the Co-operative Appellate Court directed the Co-operative Court to proceed with the hearing of the dispute. From the perusal of the impugned judgment and order, it further appears that, even liberty is granted to the 7 wp2179.92 original disputant-petitioner herein to withdraw the dispute without praying for permission to file fresh dispute on the same cause of action. 9. On careful perusal of the impugned judgment, it appears that the discussion in the judgment and in its operative part is self contradictory. If the Co-operative Appellate Court has accepted the position that the plaintiff can withdraw the suit and there is no any legal provision preventing the plaintiff from withdrawing the suit, in that case, direction of the Co-operative Appellate Court to proceed with the Dispute cannot be sustained. As stated hereinabove, there is no any order passed by the Co-operative Appellate Court in respect of the counter claim of the opponent-respondent. Therefore, if the judgment of the Supreme Court in the case of M/s. Halas Rai vs Firm K.B. Bass & Co. reported in A.I.R. 1968 S.C. 111 (supra) is perused, it is crystal clear that the plaintiff cannot be compelled to proceed with the suit if he 8 wp2179.92 wants to withdraw it. From the perusal of the order of the Co- operative Court, liberty is granted to the petitioner-disputant and also to the opponent to file a fresh suit if they desire so. Therefore, the order passed by the Co-operative Court which was impugned before the Co-operative Appellate Court was not prejudicial to the interest of either of the parties. It was understandable if the Co-operative Appellate Court should have passed the order directing the Co-operative Court to proceed with the counter claim. However, from the perusal of the operative order of the Co- operative Appellate Court, it is clear that the Court has directed the Co-operative Court to proceed with the dispute. It is not in dispute that the Dispute was filed by the petitioner herein and therefore, no such order should have been passed by the Co-operative Appellate Court when disputant sought permission to withdraw the suit. 9 wp2179.92 10. In the light of what is stated hereinabove, in the facts and circumstances of this case, the impugned judgment and order of the Co-operative Appellate Court, deserves to be set aside. The order dated 02-05-1989 passed by the Co-operative Court, Nanded stands confirmed. 11. The petition is allowed to the above extent and same stands disposed of. Rule made absolute on the above terms. sd/- [S.S. SHINDE, J.] sut/Apr11