1 1 1 IN THE HIGH COURT OF JUDIATURE AT BOMBAY IN THE HIGH COURT OF JUDIATURE AT BOMBAY IN THE HIGH COURT OF JUDIATURE AT BOMBAY CIVIL APPELLATE JURISDICTION CIVIL APPELLATE JURISDICTION CIVIL APPELLATE JURISDICTION WRIT PETITION NO.1915 OF 1987 WRIT PETITION NO.1915 OF 1987 WRIT PETITION NO.1915 OF 1987 A-1 Co-operative Housing Soicety Ltd. 270, Walkeshwar Road, Bombay 400 006. .. Petitioners. Vs. 1. M/s.R.Jaikishan & Co. 270, Walkeshwar Road, Bombay 400 006. .. 2. Rajmal N.Javeri, Flat No.III, 11th Floor, & Smt.Padma R.Javeri .. 3. Sirish R.Javeri and Smt.Sushma R.Javeri, 11th Floor, Flat No.112 .. 4. Vinay R.Javeri, 11th Floor, Flat No.113 .. 5. Sunil R.Javeri 11th Floor, Flat No.114 .. 7. Dharamsey Trikamdas & Smt.Chandravati Trikamd 11th Floor, Flat No.116 .. 9. Rajendra Dinkerrai Joshi 11th Floor, Flat No.118 A-1 Apartments, 270, Walkeshwar Road, Bombay 400 006. .. 10. Shri L.M.Patil, Member of Maharashtra State Co-operative Appellate Tribunal .. 11. Shri J.S.Patil, Judge, II Co-operative Court, Contractor Building, 2nd Floor, Ballard Estate, Bombay .. Respondents. Mr.Anil Sakhare with Mr.Dinesh P.Shah with Monik Khade for the petitioners. Mr.Y.S.Jahagirdhar with Mr.K.R.Dhanuka with Mr.J.P.Dhanuka for respondent no.1. Mr.P.V.Sawant with Mr.Navnath Patil for respondent nos.2 to 9. 2 2 2 ALONGWITH ALONGWITH ALONGWITH WRIT PETITION NO.1585 OF 1987 WRIT PETITION NO.1585 OF 1987 WRIT PETITION NO.1585 OF 1987 M/s.R.J.Krishna & Co. 270, Walkeshwar Road, Bombay 400 006 .. Petitioners. Vs. 1.A-1 Co-operative Housing Society Ltd. A-1 Apartments Ground Floor, 270, Walkeshwar Road, Bombay 400 006 .. 2(a) Shri Rajmal M.Jhaveri .. (b) Smt.Padma R.Jhaveri both at Flat No.111, 11th Floor .. 3(a) Shri Shrish R.Jhaveri .. (b) Smt.Sushma R.Jhaveri both at Flat No.112 .. 4. Shri Vijay R.Jhaveri at Flat No.113 .. 5. Shri Sunil R.Jhaveri at Flat No.114 .. 6(a) Mansingh Trikamdas Asher .. (b) Krishnakant Trikamdas Asher both R/o 458/468, Jadhavji Karakachhi, Bhatia Bldg., 3rd Floor, R.No.46, Jagannath Shankarseth Road, Girgaum, Bombay 400 002. .. (c) Mrs.Chandravati nee Trikamdas R/o Flat No.116, 11th Floor, A-1 Co-operative Housing Society A-1 Apartment, 270, Walkeshwar Road, Bombay 400 006. .. 8.(a) Dinkarrai S.Joshi 11th Floor,270, Walkeshwar Road, Bombay 400 006. .. (b) Jaywant Dinkarrai Joshi 96, Adarsha Co-op. Hsq. Society Athwa Lines, Surat .. (c) Barat Dinkarrai Joshi Shyam Niwas Co-op. Society Flat No.6, Bldg.No.8, 6th floor, Bhulabhai Desai Road, Bombay .. (d) Rajendra Dinkarrai Joshi 11th floor, 270, Walkeshwar Road bombay .. 3 3 3 (e) Mrs.Jyoti Ashok Kothari (married daughter) 98, Adarsha Co-op. Hsq. Society, Athwa lines, Surat .. (f) Ms.Nuta Dinkarrai Joshi Asian Patk Apartment, Flat No.1, B-Adarsh Society, Athwa Lines, Surat .. 10(a) Smt.Shakuntaladevi D.Parasrampuria .. (b) Mr.Arun Kumar D.Parasrampuria .. (c) Smt.Ushadevi R.Jhunjhunwala .. (d) Smt.Sudhadevi S. Berlia .. (e) Smt.Umadevi Anandkumar Jain .. (f) Smt.Rashmidevi Rajendra Padia .. (g) Smt.Neetadevi Padamkumar Singhania being their Power of Attorney holder Respondent No.10(b) having their address at B-2, 11th Floor, Matru Ashish Co-op. Hsg. Society Ltd. Napean Sea Road, Mumbai 400 036. 11. Mr.Beniprasad Parasrampuria 6th floor, Rewa Apartments, Bhulabhai Desai Road, Bombay 400 026. .. 12. Mr.Ratanlal Parasrampuria 14th floor, Rewa Apartments, Bhulabhai Desai Road, Bombay 400 006 .. 13. Mr.Omprakash Parasrampuria 16th floor, Rewa Apartments, Bhulabhai Desai Road Bombay 400 006 .. 14.Mr.Krishankumar Parasrampuria A-1 Apartments, Flat No.40, 270, Walkeshwar Road, Bombay 400 006 .. 15. Mr.Biharilal Parasrampuria C/o.Sanjiv Builders Pvt. Ltd. Ring Road, Surat .. 16. Mr.Satishkumar Parasrampuria Building No.1 above Central Bank of India, Sundernagar S.V. Road, Bombay 400 064 .. 17. Shri L.H.Patil the member of Maharashtra Co-operative Appellate Court, .. 18. Shri J.S.Patil, Judge, II Co-operative Court, Bombay .. Respondents. 4 4 4 Mr.Y.S.Jahagirdar with Mr.K.R.Dhanuka with Mr.J.P.Dhanuka for the petitioners. Mr.A.Y.Sakhare with Mr.Dinesh P.Shah with Ms.Monik Khade for respondent no.1. Mr.V.P.Sawant with Mr.Navanath R.Patil for respondent nos.2 to 5. CORAM : D.B.BHOSALE, J. CORAM : D.B.BHOSALE, J. CORAM : D.B.BHOSALE, J. DATED : 8TH SEPTEMBER, 2004 DATED : 8TH SEPTEMBER, 2004 DATED : 8TH SEPTEMBER, 2004 ORAL JUDGMENT: . Heard Mr.learned counsel for the petitioner and Mr.learned counsel for the respondent. 2. These two writ petitions arise out of the common judgment and order dated 21.7.1986 rendered by the Co-operative Appellate Court by which three revision applications were disposed of. The first revision application was filed by the disputant (for short "the firm") who is respondent no.1 in the first Writ Petition No.1915 of 1987 and the petitioner in the second Writ Petition No.1585 of 1987. The second revision was filed by original opponent no.1 - society (for short "the society") who is the petitioner in the first petition and respondent no.1 in the 2nd petition. The third revision was filed by the original opponent no.2 to 5 5 5 9 who are respondent nos.2 to 9 in both the petitions (for short "respondent nos.2 to 9"). All three revisions were filed against the judgment and order dated 23.4.1986 passed by the Co-operative Court in the application seeking amendment of the dispute filed under section 91 of the Maharashtra Co-operative Societies Act, 1960 (for short "the Act") bearing Arbitration Case No.CC/II/537/1870 of 1973 by which the said application was partly allowed. 3. The factual matrix that would be relevant and material for deciding the questions raised and involved in these two petitions is as follows: The firm filed a dispute application claiming various reliefs. The sum and substance of the reliefs claimed by the firm is that the society and the opponents be ordered and directed to complete the construction of the flats on the 10th floor and the garages on the ground floor and also the ground floor flats, the recreation hall etc. and handover possession thereof to the firm and their licencees as provided in the agreement dated 25.9.1963 and further that opponent nos.2 to 9, who are in occupation of the said flats be ordered to vacate the same. They have also prayed for damages from 6 6 6 the society. In effect, the firm has prayed for specific performance of the agreement dated 25.9.1963 entered into between them and the society and wherein the society had agreed to complete the construction and to handover the possession thereof to the firm. Respondent Nos.10 to 16 in Writ Petition No.1585 of 1987 are the beneficiaries-licencees (for short "Respondent Nos.10 to 16") of the petitioner-firm, who were named in the agreement of 1963 and, according to the firm, are entitled for their rights created under the said agrement. I will not like refer to the facts in detail as, in my opinion, they may not be necessary for deciding the questions involved in the instant writ petitions. 4. The evidence in the instant case started with recording of the examination in chief of one Ratanlal on behalf of the firm on 4.8.1981 which concluded some time in 1985. Two more witnesses were examined in 1985, and the firm closed their evidence. The society started leading their evidence with the examination of one Tulsidas Sharma on 1.11.1985 and while his evidence was being recorded on 10.2.1986 the application was filed by the firm for amendment. The amendment was 7 7 7 opposed by the society on various grounds. I am consciously avoiding to make reference to the amendment in view of the fact that merits of the amendment have not been challenged and even otherwise need not be considered at this stage. The amendment has been challenged only on two grounds to which I would be making reference while dealing with the submissions of Mr.Sakhare, learned senior counsel for the society. The amendment application was partly allowed by the Co-operative Court vide the order dated 23.4.1986 against which, as stated earlier, three revision applications came to be filed before the Co-operative Appellate Court. In all three revision applications the order of the trial court had been modified which is being challenged in these two petitions. 5. I heard learned senior counsel for the firm and the society as also Mr.Sawant, learned counsel for respondent nos.2 to 9 at length. It may be noticed that respondent nos.2 to 9 have not challenged the order dated 21.7.1986 passed by the Appellate Court in their revision. With the assistance of the learned senior counsel for the parties I perused the impugned judgments and other material placed for my consideration. 8 8 8 5.1. Mr.Sakhare, learned senior counsel for the society at the outset submitted that he is not assailing the merits of the amendment and, therefore, confined his arguments only to the propriety and legality of the judgment by which substantial amendment has been allowed by the courts below. He challenged the amendment on two grounds. Firstly, there was inordinate delay in filing the application for amendment and secondly, that under the guise of subsequent events the firm has attempted to fill in the lacunas in the original pleadings. He further submitted that order of Co-operative Courts allowing amendment is without jurisdiction inasmuch as the Co-operative Courts have no powers to entertain the application seeking amendment of the dispute. 5.2. On the other hand Mr.Jahagirdar, learned senior counsel for the firm took me through the impugned judgment contending that respondent nos.10 to 16 being beneficiaries of the agreement of 1963 would be necessary party in the instant proceedings. In so far as the submission of Mr.Sakhare, learned senior counsel for the society, that amendment to the dispute under section 91 is 9 9 9 impermissible is concerned, he contended that principles of the Civil Procedure Code (for short "CPC") would apply whenever the Co-operative Courts find that the Act and the Rules are totally silent. He further submitted that there is no express power conferred on the Co-operative Courts to allow the amendment of the dispute or written statement and, therefore, they can allow the party to amend the pleadings by applying the principles of CPC. 5.3 Both the learned senior counsel appearing for the parties placed reliance on the judgments of this court and endeavoured to read them in support of their contentions. Heavy reliance was placed on the judgment of this court in Murlidhar Datoba Murlidhar Datoba Murlidhar Datoba Nimanka and Others Vs. Harish Balkrushna Latane Nimanka and Others Vs. Harish Balkrushna Latane Nimanka and Others Vs. Harish Balkrushna Latane and Others 2003(4) Mh.L.J. 196, Bharat and Others 2003(4) Mh.L.J. 196, Bharat and Others 2003(4) Mh.L.J. 196, Bharat Co-operative Bank Ltd. & Others Vs. R.K.Suvarna & Co-operative Bank Ltd. & Others Vs. R.K.Suvarna & Co-operative Bank Ltd. & Others Vs. R.K.Suvarna & Others 1997(1) ALL MR 193. Others 1997(1) ALL MR 193. Others 1997(1) ALL MR 193. In addition, Mr.Sakhare also placed reliance upon the judgments of this court in P & T Central Co-operative Society Ltd., P & T Central Co-operative Society Ltd., P & T Central Co-operative Society Ltd., Nagpur and Others Vs. Judge, Co-operative Court, Nagpur and Others Vs. Judge, Co-operative Court, Nagpur and Others Vs. Judge, Co-operative Court, Nagpur and Others 1987 Mh.L.J.232 Nagpur and Others 1987 Mh.L.J.232 Nagpur and Others 1987 Mh.L.J.232 and the judgment of the Apex Court in Rameshwar and Rameshwar and Rameshwar and Others V. Jot Others V. Jot Others V. Jot Ram and Others AIR 1976 SC 49 Ram and Others AIR 1976 SC 49 Ram and Others AIR 1976 SC 49. Mr.Sawant, learned counsel for respondent nos.2 to 9 adopted the 10 10 10 submissions of Mr.Sakhare and in addition placed reliance upon the judgment of the Apex Court in Sampath Kumar Vs.Ayyakannu and Anr. (2002) 7 Sampath Kumar Vs.Ayyakannu and Anr. (2002) 7 Sampath Kumar Vs.Ayyakannu and Anr. (2002) 7 Supreme Court Cases 559. Supreme Court Cases 559. Supreme Court Cases 559. 6. Firstly, I would consider the question of law raised by the learned senior counsel appearing for the parties as to whether the Co-operative Courts have powers to allow the parties to the dispute filed under section 91 of the Act to amend the pleadings i.e. the dispute and the written statement by applying the principles of CPC. In other words, whether the parties to the dispute under section 91 could be allowed to amend the pleadings by applying the principles laid down by the Apex Court and High Courts while dealing with the provisions of Order VI Rule 17 of the CPC since the Act and the Rules are totally silent in so far as the amendment to the pleadings is concerned. 7. This court in Murlidhar Datoba Murlidhar Datoba Murlidhar Datoba (supra) has elaborately considered the scheme of the Act while dealing with the question as to whether the Co-operative Courts are governed by the provisions of the CPC and whether in the absence of provisions similar to the CPC either in the Act or in the 11 11 11 Maharashtra Co-operative Societies Rules, 1961 (for short "the Rules") can the Co-operative courts exercise the powers of the Civil court specified under CPC. The aforestated issues arose for consideration before the learned Single Judge while dealing with the issue involved in the said case as to whether or not the provisions of Order 39 Rule 11 of CPC are applicable to the Co-operative Court in view of various specific provisions contained in the Act and the Rules. This issue was addressed by the learned Single Judge and while doing so he considered the entire scheme of the Act and ultimately answered the issue in negative holding that the Co-operative Courts are not armed with powers under Order 39 Rule 17 of CPC and in view thereof the impugned order in the said case was quashed and set aside by which the defence was struck off by the Appellate Court. 7.1. It is against this backdrop the learned Single Judge in paragraph 22 and 23 observed thus: "22. The Legislature in its wisdom has specifically avoided to apply the provisions of Civil Procedure Code to 12 12 12 follow the rules of procedure followed by the Civil Courts under Civil Procedure Code in specified situations and not in each and every case. Besides, it is to be noted that the reference to the manner relating to the enforcement of attendance of witnesses and the production of evidence similar to one in case of Civil Court has been made subsequent to the specific provision regarding the requirement of hearing the dispute in the manner as prescribed under the said Act". "23. Undoubtedly, merely because the section restricts the applicability of such principles only in relation to the enforcement of attendance of witnesses and recording of evidence oral or documentary, it cannot be also said that the principles of Civil Procedure Code would not apply even in case where the said Act or the said Rules are totally silent. Nevertheless, it will be only in relation to the procedure to be followed and when absolutely necessary for the purpose of disposal of the dispute and in the interest of justice, 13 13 13 some of the examples of applicability of principles of Civil Procedure Code to the proceedings before the Co-operative Courts can be in relation to power to frame and alter the issues in terms of Order XLV, amendment of award when any clerical or arithmetical mistakes or error arising therein from any accidental slip or omission is brought to its notice in terms of section 152 of Civil Procedure Code or following the procedure prescribed for the adjudication of main disputes, in case of miscellaneous proceedings therein in terms of section 141 of Civil Procedure Code. These are some of the some of instances in which general principles of Civil Procedure Code would be attracted and can be followed by the Co-operative Courts. However, it will not include the jurisdiction to exercise various powers specifically given to the Civil Court which otherwise are not normally available to any Tribunal or quasi judicial authorities. Inherent power which is available to the Civil Court under section 151 cannot be presumed to be available to the Co-operative Court in the 14 14 14 absence of specific provision in that regard under the said Act. Similarly, the Co-operative Court is not entitled to exercise the powers of review under Civil Procedure Code in the absence of specific provision in that regard in the statute under which it is constituted. Being so, merely because section 114 and Order 47 makes the provision for review power of the Civil Courts under the Civil Procedure Code, it cannot be said that the Co-operative Court would be entitled to exercise the same power in the absence of similar provision in that regard in the said Act and the Rules. It is settled law that the Courts which are constituted under special Statutes can function within the scope of the powers given to such Courts under the Act under which they are constituted and they cannot travel beyond such powers". 7.2 It is, thus, clear that merely because the section restricts applicability of the principles of CPC only in relation to the enforcement of the attendance of the witnesses and recording of the 15 15 15 evidence oral or documentary, it cannot be said that the principles of CPC would not apply even in case where the said Act or the said Rules are totally silent. However, it does not include the powers specifically given to the Civil Court which otherwise are normally not available to any tribunal or quasi-judicial authorities such as inherent power which is available to the Civil Court under section 151 cannot be presumed to be available to the Co-operative Court in the absence of specific provision in that regard under the said Act. 7.3 In Bharat Co-operative Ltd. Bharat Co-operative Ltd. Bharat Co-operative Ltd. (supra) this court was dealing with almost similar situation when the following issues were considered: (a) Whether an amendment, which alters the terms of reference forming the basic dispute put forward before the Co-operative Court, can be permitted ? and (b) Whether the Maharashtra State Co-operative Appellate Court has power to entertain an appeal and order of the Trial Court allowing or rejecting an amendment ?, and while dealing with these issues in paragraph 10 the learned Single Judge observed thus: 16 16 16 . "Section 91 of the Act envisages the raising of a dispute which is required to be settled in accordance with the procedure prescribed in Chapter IX of the Act. In a manner of speaking, the interference is the substratum of the dispute which is to be adjudicated by the Co-operative Court. Unless there is express power in the Co-operative Court to alter the terms of reference themselves, it must be held that any amendment which would touch the substratum of the dispute to be adjudicated under section 91 of the Act is impermissible. Section 94 of the Act indicates the procedure for settlement of disputes and power of the Co-operative Court. Some of the powers indicated in this section are comparable to the powers exercised by the Civil Court exercising jurisdiction under the Code of Civil Procedure. However, all powers exercisable by the Civil Court under the Code of Procedure are not vested in the Co-operative Court, since it is only a creature of statute and not a Court of plenary jurisdiction". 17 17 17 7.4 It is, thus, clear that unless there is express power in the Co-operative Court to alter the terms of reference themselves, it must be held that any amendment which would touch the substratum of the dispute to be adjudicated under section 91 of the Act is impermissible. In other words, the amendment which touches the substratum of the dispute or nature of the dispute is impermissible. 7.5 This Court in P and T Central Co-operative P and T Central Co-operative P and T Central Co-operative Society Ltd. Society Ltd. Society Ltd. (supra) has observed that there cannot be any doubt that a procedure provided in the CPC would apply to the proceedings before the Co-operative Court as far as it can be made applicable. 7.6 The Apex Court in R.C.Tiwari Vs. M.P.State R.C.Tiwari Vs. M.P.State R.C.Tiwari Vs. M.P.State Co-operative Marketing Federation Ltd. and Others Co-operative Marketing Federation Ltd. and Others Co-operative Marketing Federation Ltd. and Others (1997) 5 SCC 125 (1997) 5 SCC 125 (1997) 5 SCC 125 has clearly held that the principles of res judicata do apply to the Registrar under M.P.Co-operative Societies Act, 1960. Similarly, this court in unreported judgment dated 9.1.1976 in M/s.Bharat Sales Service and M/s.Bharat Sales Service and M/s.Bharat Sales Service and Another Vs. Shyam Co-operative Housing Society Another Vs. Shyam Co-operative Housing Society Another Vs. Shyam Co-operative Housing Society Ltd. and Others Ltd. and Others Ltd. and Others in paragraph 4 thereof observed 18 18 18 that the Co-operative Society can apply for transposition of the party to the dispute suggesting thereby that the principles of CPC are applicable to the proceedings before the Tribunal. 8. The provisions of the Act and the Rules are oblivious of amendment of the pleadings i.e. dispute and written statement. However, they do not specifically rule out or preclude Co-operative Courts from granting the amendment of the pleadings. Sub-section 3 of section 94 of the Act confers power on the court that if it is satisfied that a person whether he be a member of the society or not has acquired any interest in the property of a person who is a party to a dispute, it may order, that the person who has acquired the interest in the property may join as a party to the dispute; and any decision that may be passed on the reference by the Court shall be binding on the party so joined, in the same manner as if he was an original party to the dispute. Section 94, however, is silent about the powers of the Court to allow the parties to amend the pleadings. 8.1 In Murlidhar Datoba’s Murlidhar Datoba’s Murlidhar Datoba’s case (supra) this court after considering all the provisions relating 19 19 19 to the procedure to be followed by the Courts under the Act and the Rules observed "that they would lead to the conclusion that the same shall be necessarily as prescribed under the said Act and the said Rules, though in the specified circumstances it may be as far as possible in consonance with the procedure followed by the Civil Courts under the Code of Civil Procedure and in that connection, the principles of Code of Civil Procedure are to be borne in mind. Obviously, a specific provision in that regard was requried to be made since Legislature in the said section itself has stated that the procedure to be followed shall be as prescribed. Meaning thereby in the absence of specific provision regarding enforcement of attendance of witnesses and recording of evidence - oral or documentary being provided in the said Rules, the principles of Code of Civil Procedure in that regard will have to be applied. 9. The position that emerges from the above discussion is that in the absence of a specific provision in the Act and the Rule regarding amendment of the pleadings the principles of CPC in that regard will have to be applied and the Co-opertive Courts should allow an amendment of the 20 20 20 dispute under section 91 of the Act or the written statement if it is necessary for the purpose of determining the real question and controversies between the parties. Avoidance of multiplicity of the proceedings is also one of the relevant considerations. While allowing the amendment the Courts will have to bear in mind that it is not altering the terms of reference/dispute or it is not touching the substratum of the dispute to be adjudicated under section 91. The power of allowing or rejecting the amendment can be exercised at any stage of the proceedings, depending upon the facts in each matter, in accordance with the guidelines laid down by the High Courts and Supreme Court in the various judgments. It is true that the amendment cannot be claimed as a matter of right and in all circumstances. But it is equally true that the courts while deciding such