1 wp4444.sxw ssp IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELATE JURISDICTION WRIT PETITION NO.4444 OF 2010 Bharat Kantilal Dalal & Anr. ...Petitioners vs. Khusnuma Co-operative Hsg. Soc.Ltd. ...Respondent Mr.G.S.Godbole i/b Mr.Rajesh Patel for the petitioners Mr.R.R.Nagda for the respondent CORAM :A.S.OKA,J. DATE : AUGUST 23, 2010 P.C. 1 Heard the learned counsel for the petitioners and the learned counsel for the respondent. The petitioners are the opponent no.2 and 3 in a dispute under section 91 of the Maharashtra Co-operative Societies Act,1960 filed by the respondent. One Mrs.Zubeda K.Bhatri was the first opponent in the said dispute. In the dispute it is stated that the first opponent was the member of the respondent-society and by virtue of membership, she was alloted flat no.53. It is stated that the present petitioners were claiming under the said first opponent on the ground that they have agreed to purchase the shares and the said flat under an agreement in writing from the first opponent. It is stated in the dispute that the present petitioners are also in occupation of flat nos.51 and 52. Relief claimed in the dispute as originally filed is for declaration that the first opponent still continues to be a member. Another declaration is sought that the present petitioner has no right to make any changes in flat no.53. Relief of permanent injunction was sought restraining the opponents from shifting any wall in flat no.53. 2 wp4444.sxw 2 An application for amendment of the dispute was made by the respondent. By the amendment, a prayer was made for impleading two parties who according to the respondents were the owners of the flat nos.51 and 52. It is contended in the amendment that present petitioners have made an application to the respondent for grant of permission to carry out repairs/renovation in flat nos. 51,52 and 53 inter alia for interconnecting the said three flats. Apart from seeking to add material averments, by the said application, amendment was sought for adding prayers as regards flat nos.51 and 52 respectively. A prayer was sought to be added essentially for prohibiting the repairs to be carried out in flat nos.51 and 52. The learned Judge of Co-operative Court rejected the said application. Being aggrieved by the said order, a revision application was preferred by the respondent before the Co-operative Appellate Court. By the impugned order, the said revision application has been allowed. The Appellate Court permitted the respondent to carry out amendment. 3 The learned counsel for the petitioner submitted that by the impugned order, the name of the first opponent was ordered to be deleted by the consent of the respondent. He pointed out that the entire dispute has been based on the averment that the first opponent continues to be a member of the respondent-society and continues to be the owner of the flat no.53. He submitted that as the name of the first opponent is ordered to be deleted by consent, in fact, the dispute does not survive. He submitted that in such a dispute amendment could not have been allowed for adding the parties and for claiming reliefs in respect of the two other flats which are not subject matter of the original 3 wp4444.sxw dispute. He submitted that apart from the fact that the said amendment could not have been permitted in a dispute which does not survive on merits, it completely changes the nature of the dispute and if at all the respondent wants to claim any relief in respect of the other two flats, a remedy of filing separate proceedings is available. He pointed out that all these aspects have not been considered by the Appellate Court. 4 The learned counsel for the respondent stated that in terms of the impugned order, the respondent will delete the name of the opponent no.1. The statement is accepted. 5 I have given careful consideration to the submissions. The dispute as it originally stands is essentially filed to prevent the petitioners from making any changes in flat no.53. It is true that the challenge is on the ground that the first opponent to the dispute continues to hold the said flat and the present petitioners have no right to carry out repairs/renovation to the said flat. It is not in dispute that the application was made by the petitioners for carrying out repairs not only to the flat no.53 but to carry out repairs and renovation even in flat nos.51 and 52. In fact, the allegation of the respondent is that by the said application, the petitioners prayed for granting permission to carry out work for interconnecting the said three flats. 6 By the proposed amendment, the respondent desires to implead two parties who according to the respondent are the members who are entitled to hold the flat nos.51 and 52. The prayers are sought to be added for obtaining orders of restraint as regards carrying out work relating 4 wp4444.sxw to flat nos.51 and 52 apart from the flat no.53. 7 There is a common application made by the petitioners for carrying out renovation/repairs to the said three flats and they claimed to possess the said three flats. Therefore, to avoid multiplicity of the proceedings, amendment has been permitted. It is not possible to find fault with the impugned order as the same has been passed to ensure that there is no multiplicity of the proceedings. The contention of the petitioners as regards the legal effect of the respondent agreeing to delete the name of the first opponent always remains open notwithstanding the permission granted to carry out amendment. In fact, all contentions of the petitioners remain open including the contention that the dispute is not maintainable on account of deletion of the name of the first opponent and that there is a misjoinder of causes of action. Under the impugned order, the petitioners have been permitted to file additional written statement. 8 No case for interference is made out. Subject to what is observed above, writ petition is rejected. 9 It will be open for the petitioners to file additional written statement within a period of six weeks from the date on which a copy of the amended dispute is served to the petitioners. 10 Hearing of the dispute is expedited. The Co- operative Court will endeavour to conclude the hearing and decide the dispute before the end of year 2010. JUDGE