vss IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.7583 OF 2008 WRIT PETITION NO.7583 OF 2008 WRIT PETITION NO.7583 OF 2008 Rakesh Sacheti & Anr. ... Petitioners V/s. Doordarshan Employees Cooperative Housing Society Ltd. & anr. ... Respondents Mr.Sanjay Jain a/w Lalit Jain, Ms.Sarika Mehra i/b L.J. Law for Petitioners Mr.N.V. Walawalkar with R.M. Haridas for Respondent No.2 CORAM: SMT.NISHITA SMT.NISHITA SMT.NISHITA MHATRE, J MHATRE, J MHATRE, J. DATED: DECEMBER 16, 2008 DECEMBER 16, 2008 DECEMBER 16, 2008 P.C.: P.C.: P.C.: . The petitioners challenge the orders passed by the Cooperative Court on 30.3.2007 decreeing the dispute filed by Respondent No.2 and by the appellate Court on 17.9.2008 confirming the order of the Cooperative Court. Respondent No.2 is a member of the Respondent No.1. He was allotted flat No.502, 5th floor, A-Wing, Doordarshan Employees Co-operative Housing Society Limited, Dindoshi, Goregaon (East), Mumbai. Respondent No.2 was removed as a member of the society for alleged defaults in payment of certain amounts towards the aforesaid flat. The allotment of the flat in his favour was cancelled and it was allotted to the petitioners. Such a letter was issued to the petitioners on 24.12.2000 by the respondent No.1 society. Thereafter, Respondent : 2 : No.2 was expelled from the membership of the society. He challenged that order before the appropriate authority and it was held that his expulsion was illegal. The order was challenged before the appellate authority and finally in this Court. The finding that Respondent No.2 is a member of the Respondent No.1 society has been confirmed by this Court. 2. Since the flat was allotted to the petitioners by the society, Respondent No.2 filed a dispute before the Cooperative Court contending that the allotment in favour of the petitioners was illegal and that he was entitled to the said flat, being a member of the society. The petitioners were parties to that dispute, besides the society. Several issues were framed by the Cooperative Court. It has been found that the disputant i.e. Respondent No.2 had proved that he had paid the entire cost of construction and that he was therefore entitled to the aforesaid flat. The Cooperative Court found that the Society had not proved that Respondent No.2 had been validly expelled from the membership of the society and that the allotment of the flat in his favour was legal and valid. The Cooperative Court has answered the issue as to whether the petitioners had proved that they were bonafide purchasers of the aforesaid flat, in the negative. The appellate Court has confirmed the view taken by the Cooperative Court. : 3 : In addition, the appellate Court has directed that an enquiry be conducted under Order 20 Rule 1C of the Civil Procedure Code with respect to mesne profits. 3. Mr.Jain, appearing for the petitioners, has raised several contentions. The principal contentions are: (i) that the Cooperative Court has committed a grave irregularity by permitting Respondent No.2 to produce documents on record after the matter was closed for judgment; (ii) that the appellate Court has failed in its duty to decide the appeal on merits by reappreciating the evidence on record; and (iii) that the petitioners in any case were bonafide purchasers of the flat and they had no knowledge about the disputes between the society and the respondent. 4. The learned Counsel relied on the judgment of the Supreme Court in the case of Arjun Singh v/s. Mohindra Kumar & Ors., AIR 1964 SC 993 AIR 1964 SC 993 AIR 1964 SC 993 in support of his first contention. He has pointed out that the Cooperative Court has permitted the documents to be produced by Respondent No.2 although the evidence was closed, arguments were heard and the matter was closed for judgment. 5. Mr.Walawalkar, on the other hand, has submitted that the petitioners had not come to this Court with : 4 : clean hands. He has in reply to the contentions raised by Mr.Jain, submitted that the documents which were produced by Respondent No.2 were original receipts of the payments made by him. They were proved through the affidavit of evidence filed by Respondent No.2 and no objection was raised by the petitioners at any stage regarding the admissibility of photocopies of the receipts as evidence. He submits that merely because the originals were produced, it would not mean that Respondent No.2 had produced new documents which were never placed before the Court prior to the matter being closed for orders. He distinguishes the judgment of the Supreme Court in Arjun Singh (supra) by pointing out that in that case, an order had been passed for deciding the matter ex-parte. He points out that it is in these circumstances it was held by the Court that once the arguments are closed, no new evidence can be submitted as it is only for the Court’s convenience that the matter is adjourned as the Court is unable to deliver the judgment immediately. 6. Mr.Walawalkar, then points out that in any event no prejudice has been caused to the petitioners by production of the original receipts. He draws my attention to the fact that the Cooperative Court had given an opportunity to the petitioners to file their say before the documents were accepted. The petitioners : 5 : chose not to do so and in fact were delaying the matter before the Cooperative Court for one reason or the other. He submits that in such circumstances, the contentions raised on behalf of the petitioners should not be countenanced. The learned Counsel then points out that the contention of the petitioners that they were bonafide purchasers is not borne out from the facts in this case. They were aware of the letter dated 24.12.2000 issued by the society to them indicating that the allotment of the flat to Respondent No.2 had been cancelled because the general body had passed a resolution to cancel the allotment of flats to defaulting members. The learned Counsel points out that a false statement is contained in para 6 of the petition to the effect that the petitioners had no knowledge of the claim of Respondent No.2 prior to the purchase of the flat. He also contends that the affidavit in reply of the petitioners before the Cooperative Court is false as there is an averment that the petitioners had no knowledge about any controversy or dispute between the disputant and the society, despite which he has relied on the allotment letter dated 24.12.2000. 7. The learned Counsel then relies on the provisions of section 55 r/w section 3 of the Transfer of Property Act. He points out that the petitioners would have to prove that they were persons who had no : 6 : notice of the transaction or the disputes between the society and respondent No.2 which led to them buying the premises. He points out that the petitioners had notice of the dispute between the respondent Nos.1 and 2, despite which they chose not to make any effort to enquire into the matter. It is submitted that but for their gross negligence they would have known the nature of the dispute and perhaps refrained from purchasing the flat. 8. In my opinion, the facts and circumstances of this case indicate that the petitioners were aware that the photocopies of the receipts showing that payment had been made to the society were on record. These photocopies were proved by respondent No.2 through his affidavit of evidence. Respondent No.2 was not cross-examined on behalf of the petitioners. In these circumstances, it can hardly be said that the petitioners were prejudiced because the originals of the receipts were produced. The photocopies, having been produced with the affidavit of evidence, were marked as exhibits and therefore, unless their admissibility was objected to, they would be treated as proved. Mr.Walawalkar has relied on the judgment of the Supreme Court in P.C. Purushothama Reddiar v/s. S. Perumal, AIR 1972 SC 608 AIR 1972 SC 608 AIR 1972 SC 608 in which it has been held that once a document is admitted, the contents of the documents is : 7 : also admitted in evidence, though the contents may not be conclusive evidence. In the present case, as I have already noticed, the documents were on record, there was no objection regarding their admissibility and therefore, the mere production of the originals of the receipts would not in any manner be fatal to the dispute filed by the Respondent No.2 The irregularity, if at all, is mere procedural in nature and does not in any manner prejudice the petitioners. 10. In any event, the submission of the learned advocate for the petitioners that the appellate Court has abdicated the jurisdiction vested in it by not dealing with evidence on record cannot be accepted. The appellate Court has on the basis of the evidence led before the Cooperative Court; found that the order of the Cooperative Court is correct and must be sustained. The appellate Court has taken note of the fact that the Petitioners and their advocate were absent consistently throughout the trial. The Respondent No.2 was not cross examined by the Petitioners, nor did they lead any evidence in rebuttal. The appellate Court has therefore rightly upheld the order of the Cooperative Court. The submission of the learned advocate that the Petitioners were bonafide purchasers for value, also is not borne out from the material on record. They were well aware of the circumstances in which the allotment in favour of : 8 : Respondent No.2 was revoked and the manner in which he was expelled from the membership of the society. The controversy between the Respondent No.2 and the Respondent No.1 society did not deter the Petitioners from purchasing the flat and they cannot now claim that they were bonafide purchasers. 11. In my opinion, no case has been made out for interference under Article 227 of the Constitution of India. The Petition is therefore rejected. 12. The learned advocate for the petitioners applies for a stay of this order for 12 weeks. Stay granted for eight weeks. Further, since the Receiver has taken symbolic possession of the aforesaid flat, the Receiver will be discharged after eight weeks from today.