1 pps IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION FIRST APPEAL NO. 701 OF 2001 P.S.Bhamrah res. at Flat No.101, B Building, 1 st floor, Railwaymen s Apna Ghar CHS, Mogra Village, Andheri (East), Mumbai 400 069 ..Appellant versus 1. Smt. Kunjamma D Cruz, res. at Room No.55, B Block, J.R.Hospital, 6th Floor, Club Road, Bombay Central, Bombay 400 008. 2. K.B.Joshi Chief Promoter, Railwaymen s Apna Ghar Co-op. Hsg. Society (Proposed), 136 Shivtirth, Dr.M.B.Raut Road, Shivaji Park, Dadar, Bombay 400 028 3. Ramesh V.Pimple, 101, D Building, 1st floor, Railwaymen s Apna Ghar Co-op, Hsg. Soc. (Proposed) Mogra Village, Andheri (East), Bombay 400 069. 2 4. Smt Asha Anil Sonawane occupying flat No.101, D Building, 1 st floor, Railwaymen s Apna Ghar CHS, Mogra Village, Andheri (East), Bombay 400 069 ..Respondents Mr.Anil Y.Sakhare, Senior Counsel with Vishwajeet Mohite i/b.YKS Legal for the appellant. Shri Ram U.Singh for the respondent No.1 None for other respondents CORAM : R.Y.GANOO, J. DATE : 10th JUNE, 2009. P.C: 1. The respondent No.1 instituted suit against one Mr.K.B.Joshi, Chief Promoter, Railwaymen s Apna Ghar Co-op. Hsg, Society (Proposed) being Suit No. 4726 of 1986 for enforcement of agreement dated 31.3.1985 in regard to the flat No.101 more particularly descrined in the body of the said suit. 2. Said suit was filed in the City Civil Court at Bombay. The respondent No.1 approached the City 3 Civil Court on the ground that Mr.Joshi, the Chief Promoter, (hereinafter referred to as the said Promoter) had entered into agreement with respondent No.1 on 31st March, 1985 and agreed to allot suit flat on payment of Rs.97,000/- in accordance with the terms mentioned in the said agreement. According to respondent No.1 the membership of the respondent No.1 was terminated and therefore the respondent No.1 approached the Court for enforcement of the said agreement dated 31st March, 1985 contending that she has right to have the suit flat alloted in her favour. One Mr.Pimple, the present respondent No.3 was joined as party defendant No.2 as at some point of time respondent No.1 was informed that said Pimple was in occupation of said flat. It is seen from the record that the said suit was filed for enforcement of obligation by Respondent No.1 cast on him as per the provisions of Maharashtra Ownership Flats (Regulation of Promotion, Construction, Sale, Management and Transfer) Act, 1963. (For short Said Act). Record shows that in the course of time said Pimple went out of 4 litigation and had no concern with the suit flat. The learned Judge of the City Civil Court (hereafter referred to as the learned Trial Judge) decided the suit by Judgment and Decree dated 10th October, 1995 and decreed the suit in favour of respondent No.1 and ordered that possession of the suit flat should be handed over to the respondent No.1. That suit was decreed against the Chief Promoter and the said Mr.Pimple who was shown as defendant No.2 in the said suit. 3. As the decree for possession was passed in favour of respondent No.1, respondent No.1 filed application for execution of said decree and in the course of execution the present respondent No. 4 objected to the execution of the decree. The said objection was launched as according to respondent No.4, the present Appellant had inducted said respondent No.4 in possession of the suit flat and that the suit flat was claimed by the appellant and the said flat was under the control of the appellant. As a result of obstruction to the decree by the Appellant and 5 Respondent No.4, the respondent No.1 filed Chamber Summons No.440 of 1996 in the said suit in accordance with the provisions of Order XXI Rule 97 of CPC for the purpose of removal of obstruction put up by the respondent No.4 and the present appellant. The present appellant filed his affidavit in reply thereby putting his stand being affidavit dated 9th December, 1996. Since the Chamber Summons No.440 of 1996 was required to be tried as a suit in accordance with the provisions of Order XXI Rule 97 of CPC, the learned trial Judge afforded opportunity to both the parties to lead evidence before him and allowed the respective parties to put up their respective contentions. 4. The learned trial Judge thereafter considered the arguments passed by the respective sides and by Judgment and Order dated 14th June, 2001 made the said Chamber Summons absolute. 5. Being aggrieved by the said Judgment & Order dated 14th June, 2001, the appellant who was concerned 6 with the suit flat instituted the present appeal. The Court is informed that respondent No.4 Asha has not filed any appeal against the Order dated 14th June, 2001. It appears that said Asha was not interested in challenging the said Order dated 14th June, 2001 as she was holding the suit flat on behalf of the present appellant. 6. Before this Court, learned Senior Counsel Mr.A.Y.Sakhare, appearing on behalf of the appellant took me through the entire record and submitted that though a detailed affidavit was filed by the present appellant, the learned trial Judge did not frame appropriate issues as regards non applicability of the provisions of the said Act. He also pointed out that the learned trial Judge did not consider the point that the Court which passed the decree against the respondent No. 1 did not have jurisdiction. He also submitted that the learned trial Judge did not consider the point raised by the appellant as regards jurisdiction of the Court being taken away in accordance with the provisions of Section 91 of 7 the Maharashtra Co-operative Societies Act, 1960 (hereinafter referred to as the MCS Act). He also pointed out that the learned trial Judge did not consider the question raised by the appellant wherein it was contended that the decree which was sought to be executed by the respondent No.1 could not have been executed against the Respondent No.2 as on the date of passing the said decree, the Co- operative Society was registered. 7. Learned Senior Counsel Mr. Sakhare pointed out that the learned trial Judge raised only two issues, namely issue as to whether the present appelant was a bonafide purchaser of the suit flat without notice as per the allotment under Agreement dated 9th December, 1985 and as to whether the decree which was passed was as a result of collusion between the parties to the suit. Learned Senior Counsel Mr.Sakhare contended that since the learned trial Judge did not frame the necessary issues on the basis of the affidavit in reply filed by the appellant, the appellant suffered prejudice and all questions which were 8 required to be determined in accordance with the provisions of Order XXI Rule 97 of CPC were not considered. Learned Senior Counsel Mr.Sakhare submitted that the learned trial Judge only looked into the point as regards the relevant date on which agreements were entered into by the respondent No.2 Mr.Joshi, the promoter, namely Agreement dated 9.12.1985 between appellant and Mr.Joshi, the promoter and agreement dated 31.3.1985 between the respondent No.1 and Mr.Joshi, the promoter. Learned Senior Counsel Mr.Sakhare submitted that the learned trial Judge proceeded on the footing that the present appellant had the opportunity to investigate the relevant facts and then entered into agreement with Mr.Joshi and since the agreement dated 9th December, 1985 entered into with appellant was after the agreement was executed in favour of the Respondent NO.1, the appellant was not entitled to say that the appellant had better right than respondent No.1 in the suit premises. According to learned Senior Counsel Mr.Sakhare, the approach of the learned trial Judge in deciding the matter 9 was contrary to the provisions of Order XXI Rule 97 of C.P.C. and therefore the said impugned Order passed by the learned trial Judge impugned in this appeal is required to be set aside. 8. Learned Senior Counsel Mr. Sakahare took me through the provisions of said Act and the definition of the term Promoter and submitted that the flat situated in the building which was to be constructed in the name of Railwaymen s Co- operative Housing Society were not for sale as understood in accordance with the provisions of the term Sale used in the definition of the term Promoter and therefore the provisions of the said Act were not attracted and therefore the suit instituted by respondent No.1 taking the benefit of the provisions of the said Act was not maintainable. He further stated that once it is held that the provisions of the said Act are not attracted to the facts of this case, then the City Civil Court did not have pecuniary jurisdiction to try and entertain this suit as the appellant was required to pay Rs.97,000/- for getting the suit 10 flat. Learned Senior Counsel Mr. Sakhare therefore submitted that the submissions put up by him clearly go to show that the present appellant had raised the points to contend that the decree passed by the learned trial Judge in the suit was a nullity and that aspect ought to have been considered by the learned trial Judge while deciding the Chamber Summons. 9. According to Learned Senior Counsel Mr. Sakhare it was necessary for the learned trial Judge to decide whether the decree passed in the main suit was nullity and as if that point has not been decided, the judgment delivered by the learned trial Judge in the Chamber Summons is required to be set aside. It was submitted that the invalidity of a decree can be questioned even at the stage of execution and that the appellant had raised the point as regards invalidity of decree before the learned trial Judge and it was necessary for the learned trial Judge to decide that point. Judgment in the case of Kiran Singh & Others vs. Chaman Paswan and Others AIR 1954 SC 11 340 was relied upon in support of this submission by the learned Senior Counsel Mr. Sakhare. 10.Learned Advocate Mr.R.U.Singh appearing on behalf of respondent No.1 submitted that the learned trial Judge in the Chamber Summons had framed appropriate issues and no objection was raised by the appellant to the said issues and the appellant allowed the learned trial Judge to proceed to determine the said issues and passed an Order on the Chamber Summons. According to learned Advocate Mr.Singh, it is not now open for the appellant to make grievance that proper issues were not framed and proper opportunity was not given to the appellant to present his case. 11.Learned Advocate Mr. Singh therefore submitted that the learned trial Judge had attended to the Chamber Summons in the proper manner and no fault can be found in the manner in which the learned trial Judge attended the Chamber Summons. 12.Learned Advocate Mr.Singh further submitted that 12 the provisions of the said Act are attracted to the facts of this case because Mr.Joshi, the Promoter had agreed to receive Rs.97,000/- for and on behalf of the society which was proposed to be formed and alloted to the respondent No.1 the suit flat. According to him the provisions of said Act came to be enacted in order to protect the interest of the persons like respondent No.1 and in his submission the provisions of the said Act were rightly used by respondent No.1 for the purpose of instituting the present suit. He therefore submitted that the provisions of the said Act were rightly used and the learned trial Judge who passed the decree in the main suit had rightly observed that the City Civil Court had jurisdiction to try and entertain the said suit. 13.Learned Advocate Mr.R.U.Singh further submitted that since the agreement was entered into with the respondent No.1 by the Chief Promoter, the decree came to be passed by the City Civil Court against Respondent NO.1 because the responsibility about performing the agreement were primarily on the 13 Chief Promoter. Learned Advocate Mr.Singh submitted that the decree passed against the Respondent No.2 was just and proper and therefore it could not lie in the mouth of the appellant to say that the decree in the main suit was nullity. He further contended that if the argument that the provisions of the said Act were rightly applied to the facts of this case, the question of monetary jurisdiction would not arise as the institution of the suit will have to be treated as suit for enforcement of obligations under the provisions of the said Act. Learned Advocate Mr.Singh further submitted that the objections which are raised by the appellant by raising the point that the decree is nullity cannot sustain. 14.Learned Advocate Mr.R.U.Singh took me through the impugned judgment of the Chamber Summons and sub mitted that the learned trial Judge performed the job in a proper manner and has applied his mind for the purpose of determining whether the appellant had better right then the respondent No. 1. He submitted that since the agreement in 14 favour of the respondent No.1 was first in point of time and was registered, the learned trial Judge rightly observed that the appellant did not have better title than the respondent No.1 in regard to the suit flat. He therefore submitted that the learned trial Judge rightly considered the point as regards priority of respondent No.1 as regards the suit flat and rightly considered the same in favour of the respondent No.1. He submitted that the appeal be dismissed. 15.After having considered the rival submissions, I am inclined to observe that the learned trial Judge who decided the Chamber Summons restricted himself to only two points. First point pertained to the question whether the appellant was bonafide purchaser without notice of the transaction between the Chief Promoter Respondent NO.2 and the Respondent No.1. The second point pertained to the questions as to whether the decree passed was a collusive decree. It is seen that though in the affidavit in reply a specific stand was taken that the decree passed in the impugned suit is contrary 15 to the provisions of law, the learned trial Judge has not considered the said aspect of the matter. It is seen that at the argument stage the learned trial Judge was called upon the decide whether the provisions of said Act are attracted or not. It is also seen that in the affidavit in reply the stand was taken that the dispute between the respondent No.1 and Joshi was covered under Section 91 of the Maharashtra Co-operative Societies Act. It is also required to be noted that the learned trial Judge did not consider the question as to whether Mr.Joshi, the Promoter was obliged to continue with the affairs of the allotment of flats and putting various persons in possession of various flats, including the respondent No.1 when the Co-operative Society by name Railwaymen s Apna Ghar Co-operative Society came to be registered in the year 1993 i.e. Prior to passing of the decree. 16.In so far as the stand taken by the respondent No.1 before this Court that proper issues were framed and the appellant did not call upon the 16 Court to frame issues other than what were framed by the learned Judge and therefore today the appellant cannot say that proper issues were not framed cannot be accepted. In my view, if certain point was raised by the appellant before the learned trial Judge, it was necessary for the learned trial Judge to decide those points by framing issues. Merely because the appellant did not call upon the learned trial Judge to recast the issues cannot be a ground to say that the court cannot consider the submission as regards non framing of proper issues and fall out thereof. Now comes the question as regards various points on the basis of which the appellant has raised objection that the decree passed by the Court in the suit. In so far as this aspect is concerned, the judgment relied upon by the appellant in case of Kiran Singh & Ors.vs. Chaman Paswan (Supra) clearly goes to show that the invalidity of the decree could be set up at any stage including the stage of execution. If this be so, it was open for the appellant to put up his stand that the decree was nullity. If this be so, it was 17 necessary for the learned trial Judge to decide whether the said decree was nullity. It was also necessary for the learned Judge to decide whether the suit filed under the provisions of said Act was proper. It was necessary for him to decide whether provisions of Section 91 of MCS Act were applicable after the Co-operative Society was registered in 1993 and whether the decree can be passed against the Chief Promoter Mr.Joshi after the society came to be registered. In my view, all these points go to the root of the matter. In my view, in the interest of justice, it is better that the impugned Order passed in the Chamber Summons is set aside and the Chamber Summons is remanded to the City Civil Court for deciding it afresh. The Judge of the City Civil Court will have to decide the points which are referred to above. The appellant wanted this Court to hold that the decree passed in the main suit was nullity. In my view, it would be proper if the learned Judge decides those points and pass an Order afresh in the said Chamber Summons. Of course, if any of the party wants to lead 18 evidence, such opportunity will have to be given so that proper material is placed before the Court for the purpose of resolving the points raised by the appellant. 17.Keeping in view the aforesaid discussion, I propose to pass the following Order and dispose of this First Appeal. 18.For the reasons mentioned aforesaid, I pass the following Order. ORDER i. The Judgment and Order dated 14.6.2001 passed by the learned Judge of the City Civil Court in Chamber Summons No.440 of 1996 is set aside. The said Chamber Summons No.440 of 1996 is remanded to the City Civil Court, Bombay for rehearing on merits subject to the following directions. ii.The Principal Judge, City Civil Court shall assign this Chamber Summons No.440 of 1996 to 19 a Judge. The record and proceeding if received by this Court be sent to the City Civil Court, Bombay before 30.6.2009, Once the Chamber Summons No.440 of 1996 is assigned to a learned Judge for determination he shall decide the following questions, namely (1)whether the provisions of Maharashtra Ownership Flats (Regulations of the Promotion of Construction, Sale, Management and Transfer) Act, 1963 are applicable to the transactions namely agreement dated 31st March,1985 between the respondent No.1 and Mr.Joshi, the Chief Promoter. and Agreement dated 9th December, 1985 between the appellant and Mr.Joshi the Chief Promoter. If the learned Judge comes to the conclusion that the provisions of the Maharashtra Ownership Flats (Regulation of Promotion of Construction, Sale, Management and Transfer) Act, 1963 are not applicable to the said two agreements then the said Judge will also decide whether the suit instituted by the respondent No.1 in the City Civil 20 Court at Bombay for recovery of possession of the suit Flat No.101 and for enforcement of agreement dated 31st March, 1985 could not have been decided by the Court for want of pecuniary jurisdiction. The learned Judge shall also decide whether the decree could have been passed against Mr. Joshi, Promoter of Railwaymen s Apna Ghar Co-operative Housing Society (Proposed) after registration of the society in the name of Railwaymen s Apna Ghar Co-operative Housing Society in the year 1993, particularly when the main suit came to be decided by the City Civil Court on 10th October, 1995 and Whether the provisions of Section 91 of the MCS Act were applicable to the facts after the registration of the society namely Railwaymen s Apna Ghar Co- operative Housing Society Ltd. The learned Judge shall also decide other points raised by any of the party and decide the Chamber Summons afresh. iii.The learned Judge of the City Civil Court, shall 21 for the purpose of deciding these points as aforesaid, shall frame necessary issues. If any party to the Chamber Summons wants to lead evidence, an opportunity shall be given to said party. It is clarified that no views are expressed on the merits of the matter. iv.Chamber Summons No.440 of 1996 shall be decided by the Judge of the City Civil Court to whom it shall be assigned as expeditiously as possible and in any case before 30th January, 2010. v. The writ containing the aforesaid Order and record shall be sent to the Principal Judge, City Civil Court, as expeditiously as possible and in any cse on or before 17th August, 2009. vi.After the aforesaid Order is passed, learned Advocate Mr. R.U.Singh, appearing on behalf of the respondent No.1 prayed for stay of the Operation of the Order for some time. Learned Advocate Mr.Vishwajit Mohite present on behalf of the appellant objected. In my view, the respondent 22 No.1 will have to be given an opportunity to peruse this Order and do the needful in the matter. Accordingly, the operation of this Order is stayed till 31st July, 2009. (R.Y.Ganoo, J.)