cra202.07 1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD. CIVIL REVISION APPLICATION NO.202 OF 2007. 1. Gorakh Hilal Patil. age 40 years, Occu. Labour, r/o Shirpur, Tal.Shirpur, Dist. Dhule. 2. Smt. Shantabai Hilal Patil, age 52 years, occu. Household, r/o as above. ...PETITIONERS. (Ori. Respondents). VERSUS 1. Parit Samaj Seva Mandal, Shirpur, Tq. Shirpur, Dist. Dhule, through its President, Ramesh Shindu Saindane, age 47 years, occu. labour, r/o Patilwada, Lower Town, Shirpur, Tal. Shirpur, Dist. Dhule. 2. Suresh Bhila Kuwar, age 38 years, Occu. Service, r/o Near Datta Chitra Mandir, Shirpur, Tal. Shirpur, Dist. Dhule. ...RESPONDENTS. (Ori. Plaintiffs). ... Shri S.P. Shah, Advocate for petitioners. Shri S.P. Brahme, Advocate for Respondents. ... cra202.07 2 CORAM: S.S. SHINDE,J. RESERVED ON: 15th JUNE, 2011. PRONOUNCED ON: 21st JULY, 2011. JUDGMENT: 1. This revision application is directed against the judgment and order dated 21st September, 2007 passed by the Ad-hoc District Judge-1, Dhule in Regular Civil Appeal No.26/2006 dismissing the appeal and confirming the judgment and decree dated 7th February, 2006 passed by the C.J.J.D., Shirpur in RCS No.263 of 1992. 2. The facts of the case, in brief, are as follows: The respondent No.1 Parit Seva Samaj Mandal, Shirpur through its President and panchas filed R.C.S. No.263 of 1992 against deceased Hilal Natthu Patil - tenant, father of the present petitioner No.1 and husband of petitioner No.2 in the Court of Jt. C.J.J.D., Shirpur for recovery of arrears of rent and possession of residential cra202.07 3 premises bearing CTS No.1420 (for short, referred to as "the suit property"), on the ground of default and bona fide and reasonable use under the provisions of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 (for short, referred to as the said Act). The trial Court on completion of the trial, decreed the suit vide judgment and decree dated 7th February, 2006 only on the ground of bona fide and reasonable use but refused decree on the ground of default. This judgment and decree came to be challenged by filing Regular Civil Appeal No.26 of 2006 before the Ad-hoc District Judge-1, Dhule, which was dismissed by the said Court after hearing the parties vide its judgment dated 21st September, 2007. Hence, the present civil revision application. 3. The learned Counsel for the petitioners - original defendants submitted that the trial Court has decreed the suit of the respondents - plaintiffs on the ground of bona fide and cra202.07 4 reasonable use. However, the ground of default in payment of rent has been rejected by the trial Court. The lower Appellate Court has also confirmed the decree of eviction on the ground of bona fide requirements. 4. The learned Counsel for the petitioners further submitted that unregistered society or association of persons or a group of persons is not a legal entity which can institute a suit in its own name. Only a natural person or a juristic person can sue or be sued in its own name. The provisions of Section 36 of the Maharashtra Co- operative Societies Act, Section 34 of the Companies Act, Order 30 of the Civil Procedure Code are the illustrative instances of the provisions of law under which the status of a legal entity is conferred respectively on the Cooperative Society, registered company and the partnership firms. In his submission, the provisions of section 6 of the Societies Registration Act, 1806 also confers such status on a society only after its registration. An cra202.07 5 unregistered society or an association of persons is not conferred with the status of legal entity under any statute. As such, an unregistered society cannot sue in its own name. The Counsel for petitioners further submitted that in a lis, by or against an unregistered society, all the members are necessary parties. 5. In the submission of the learned Counsel for the petitioners, undisputedly the suit property is of the ownership of one "Parit Samaj Seva Mandal", as stated in paragraphs 1 and 2 of the plaint. Undisputedly, the Mandal is unregistered. Neither the Mandal is registered under the Societies Registration Act nor under the Cooperative Societies Act or as a Trust. It is claimed by the plaintiff that the Mandal has around 262 members, vide para 16 of the trial Court's judgment. He further submitted that all the members of the Mandal were necessary parties to the suit and the only alternative is to institute a representative suit after following a procedure prescribed under Order 1 Rule 8 of the cra202.07 6 Civil Procedure Code. In the present case, the suit was instituted in the name of Mandal itself and five other plaintiffs who are alleged to be the panchas of Mandal. He, therefore, submitted that the suit so instituted suffers from non- joinder of necessary parties. The defect in the institution of the suit is fatal to the maintainability of the suit itself. It is submitted that an objection to the maintainability of the suit was raised by the defendant vide para 2 of the written statement. However, despite the available opportunity the plaintiffs chose not to cure the defect by joining all the members as parties or by following the procedure prescribed under Order 1 Rule 8 of C.P.C. In support of his contention, the learned Counsel for the petitioners placed reliance on the following reported judgments: i) S.Nesumany Ngar vs Nidalam Government High School, reported in AIR 1978 MADRAS 383; (Paras 2 and 3). ii) Tamil Nadu Technical Education Department Staff Cooperative House-Building cra202.07 7 Society v/s The Secretary to Government, Housing & Urban Development, reported in (2010)4 CTC 129 (DB); (para 12). iii) Gandhabanik Mahasabha & Anr. v/s Gandhabanik Mahasabha, Bardhaman Sakha Samity & Anr., reported in (2010) 1 Chn 21 (DB); (para 5). iv) Sand Carriers Owners Association v/s Board of Trustees of Part of of Calcutta, reported in AIR 1990 CALCUTTA 176; and v) Chief Conservator of Forest, Govt. of A.P. v/s Collector and others, reported in 2003(3) SCC 472. (Para 12). 8. The learned Counsel further submitted that the suit property is, undisputedly owned by the society. However, the plaintiffs instituted the suit for eviction of the defendant, without any resolution by the society to terminate the tenancy or authorizing the plaintiffs to institute the suit, which is wholly unsustainable. The plaintiffs - respondents also do not have any authority or locus to recover the possession of the suit property which belongs to "Parit Samaj Seva Mandal." He submitted that it would be unsafe and against the interest of the Mandal also to hand over the possession of the suit property to the plaintiffs whose relation cra202.07 8 with the society is not established. 7. It is further submitted on behalf of the petitioners that the plaintiff Mandal could not prove the bona fide requirement. The suit for eviction on the ground of bona fide requirement was instituted on 19.12.1992, in the name of the Mandal through its alleged President Mr. Pandit Kapade and five other plaintiffs, who were alleged to be the panchas of Parit Samaj. During the pendency of the suit, all the five Panchas passed away and no steps were taken to substitute any other members of the society for the deceased plaintiffs. On 3.3.2005, one Ramesh Saindane filed examination-in-chief by way of affidavit claiming to be the President of the plaintiff Mandal. The fact that Ramesh Saindane is related to the plaintiff Mandal, in any manner, was disputed by the defendant. There is no evidence at all on record to show any relation of this witness with the plaintiff Mandal. Deposition of such a stranger cannot be considered at all for considering the bona fide requirement of the cra202.07 9 plaintiff Mandal. On 28.8.2005, one Suresh Bhila Kuwar filed his examination in chief by way of affidavit and claimed himself to be the Secretary of the society. The learned Counsel for petitioners submitted that though the witness stated that the suit premises are required by the society, his cross-examination revealed that the witness is unaware of any business of the society. This witness was not aware even about the size of the suit property or the source of acquisition of the property by the society. This witness denied that the suit property is received in gift by the society, which fact has been admitted by the earlier witness. 8. In the submission of the learned Counsel for the petitioners, the plaintiffs did not examine any witness who is proved to be the member as well as the office bearer of the society and also has knowledge about the business and activities of the society. In absence of any such witness examined by the plaintiffs, it cannot be said that the plaintiffs proved its bona fide cra202.07 10 requirement. He also submitted that it has come on record that the petitioners do not possess any other premises for their accommodation. The suit premises are being used by the petitioners for residence along with their family members. On the other hand, there is no evidence on record to show that the plaintiff Mandal is involved in any systematic and regular activity. It is submitted that the petitioners would be put to greater hardship in case decree for eviction is passed. The learned Counsel, therefore, prayed for quashing and setting aside the impugned judgment and decree. 9. On the other hand, the learned Counsel for respondents submitted that the suit was filed by the respondent Mandal for eviction u/s 12 and 13(1)(g) of the Bombay Rent Act. The subject matter of the suit is C.S. No.1420 situated at Shirpur let out to the petitioners for residence since 1986 on rent of Rs.100/- per month. The petitioners committed default from 1.8.1989 till 30.11.1992. On 6.7.1990 notice was issued cra202.07 11 terminating the tenancy of petitioners and demanding the arrears of rent. The respondent Mandal needed the premises for office, meeting, keeping record and residence for the Secretary. Petitioners could get house on rent. No hardship could be caused to the tenant. The suit was contested by the petitioners on the grounds that it was not maintainable. The rent was exorbitant, the standard rent was sought to be fixed. The petitioners were ready to deposit the arrears of rent. bona fide requirement of Mandal was challenged mainly on the ground that purpose was going to be changed. bona fide requirement was falsely shown. The petitioners examined one witness whereas respondents examined two witnesses. The trial Court decreed the suit on the ground of bona fide requirement but non suited on the ground of default. The suit was held to be maintainable by recording finding to the Issue No.9. The appeal preferred by the petitioners / tenant came to be dismissed confirming the decree. cra202.07 12 10. In his submissions, the learned Counsel for the respondents submitted that the suit filed by the respondents was maintainable. Both the Courts below have concurrently decided in favour of the respondents. Mandal is neither trust nor society. There is no statutory bar to file suit by an unregistered association or Mandal. The suit was filed by panch of the Mandal. It was representative suit filed on behalf of 262 members. All members of the committee i.e. Panchas brought the suit. No evidence was placed on record that any member of the committee was left out and not joined. The tenant did not dispute the ownership. Rent was paid to the plaintiff. Hence, the suit was tenable. 11. The learned Counsel for the respondents further submitted that The suit cannot fail for want of permission under Order 1 Rule 8 of C.P.C. The provision of O.1 R.8 are enabling provisions and procedural in nature. The permission under O.1 R.8(1)(a) of CPC is not mandatory. It is only directory clause. The Court has discretion under cra202.07 13 sub-clause (b) to direct one or more persons to sue on behalf of all persons. No specific objection for want of permission was raised in trial Court or in appellate Court. Hence, the proceedings cannot be vitiated on the technical objection of want of permission. In its discretion under sub-clause (b), the respondents were directed to file the suit by necessary implication. In support of his submission, the learned Counsel for respondents relied on the decision of Apex Court in the case of Kailas v/s Nanhku reported in AIR 2005 SC 2441. 12. It is further submitted on behalf of respondents that the permission under O.1 R.8 of C.P.C. to file suit by unregistered association is not the condition precedent or mandatory. To substantiate his submission, the learned Counsel for the respondents placed reliance on a reported judgment in case of Sanghai Lal Chand Jain v/s Rashtriya Swayamsewak Sangh, Panna [1996(3) SCC 149]. He further submitted that unless a case is made out by petitioners that interest of the cra202.07 14 Mandal was not properly represented, suit was collusive or decree was obtained by negligence, it is not permissible to quash the said decree. No grievance on above grounds was made by the petitioners or any third party before the trial Court. Hence, the decree based upon the concurrent findings of the facts cannot be upset. 13. The learned Counsel for the respondents vehemently submitted that the decree does not suffer from the vice of non-joinder of necessary party. The remaining members of the Mandal are not necessary party. There is no evidence on record to demonstrate that the controversy between the parties could not be decided effectively for the absence of those remaining members or any third party. O.1 R.9 of C.P.C. provides that a suit should not be defeated by reason of non-joinder of party. O.1 R.10(2) of the C.P. Code empowers the Court to direct any person to be added who ought to have been joined. He submitted that intention of legislature is laid down in the reported judgment in case of cra202.07 15 Devchand Constructions v/s Board of Trustees of the Port of Mormugao and another [2006(0)Bom C.R. 62]. He, therefore, submitted that the present suit cannot fail for non-joinder of parties. Neither an objection was raised by the defendant in the trial Court, nor the plaintiff was directed to add a party. Therefore, the decree cannot be reversed in view of the provisions of Section 99 of the C.P.C. He submitted that no prejudice has been caused to the petitioners by filing the suit by few persons of Mandal or for non-joinder of remaining members. The parties were given due opportunity of hearing and the findings are recorded on the basis of material brought on record. Hence the decree cannot be vitiated on technical plea of non-joinder of party and for want of permission of Court under O.1 R.8 of C.P.C. 14. It is further submitted that the suit on the ground of bona fide requirement is tenable. cra202.07 16 Section 25 does not operate bar to maintain the suit. The purpose is not changed. The landlord wants the premises for residence of Secretary and other non residential purposes. A landlord can demand the premises for any other purpose than the one for which it was let out to tenant. The absolute ownership and liberty of owner cannot be restricted by compelling him to claim possession for the purpose for which it was let out. Section 25 contemplates a situation when the Act came into operation i.e. 31.3.1998. If the premises were let out for residence on the date of commencement of the Act then only Section 25 is attracted. In support of this submission, the learned Counsel placed reliance on the reported judgment in the case of Kantilal vs. Saijarabai, [2002 (Suppl.2) Bom. C.R. 25]. 15. The learned Counsel further submitted that the respondents are entitled to decree for bona fide requirement and there is concurrent finding of fact on this issue. In support of his submission that it is sufficient for the landlord cra202.07 17 to assert that suit premises are reasonably and bona fide required by him and onus is on the tenant to show that suit premises are neither reasonably nor bona fide required by the landlord, the learned Counsel for respondents relied on the decision in case of Shankar Bhairoba Vadangekar since deceased though L.Rs. vs Ganpati Appa Gatare since deceased through L.Rs., reported in 2001(4) Bom.C.R. 806. Further relying on the decision in the case of Balwant P. Doshi v/s Shantaben Dhirajlal Shah and another, reported in 2003(2) Bom.C.R. 190, he submitted that Courts cannot ordinarily doubt bona fide need of landlord. He further submitted that decree on bona fide requirement cannot be faulted on the interpretation of words "own occupation or residential purpose". `Occupation' is interpreted to be not only residential purpose but also any non residential activity involving non-commercial purposes. In support of this submission, he relied on the decision in case of cra202.07 18 Umed Singh v/s Arya Samaj Sewa Sadan [(2006)5 SCC 437]. Relying on the decision in the case of Dwarkaprasad v/s Niranjan & another [2003(5) Bom.C.R. 649], he submitted that liberal approach needs to be adopted while interpreting the words of Sec.13(1)(g) of the said Act. The learned Counsel further submitted that the respondents would suffer more hardship than the petitioners. No evidence is brought on record by the petitioners to show that it was impossible to secure accommodation. The petitioners are liable for eviction. Inaction on the part of the tenant to search for alternate premises dis-entitled him to protect the possession as held in the case of Sulochanabai Kashinath Gujar v/s Krishnabai Dhaniram Ugvekar & others [2001(4) Bom.C.R. 789]. Lastly, relying on the reported judgment in the case of Rajaram Keshav Dhobi & anr. v/s Narayan Jairam Marathe {2011(1) Bom.C.R. 679], the learned Counsel for respondents submitted cra202.07 19 that the scope of the revision is very limited and re-appreciation of evidence is not permissible. All errors cannot be corrected. 16. I have heard the learned Counsel for the petitioners and respondents at length, perused the impugned judgments of the Courts below as also the reported judgments referred and relied upon by the learned Counsel for the parties. 17. The question which falls for consideration before this Court in the present application is whether the respondent No.1 i.e. Parit Samaj Seva Mandal, not registered society or association of persons or a group of persons or not registered under the Societies Registration Act nor under the Cooperative Societies Act or as a Trust, can institute a suit in its own name through its President and 4 panchas, though there are 262 members of the said Mandal, without following procedure under Order I Rule 8 of the Civil Procedure Code and in absence of any resolution by all members cra202.07 20 authorising 5 panchas to institute such suit ? Before going to the factual matrix and issues raised in the present Civil Revision Application, at this juncture, it would be appropriate to reproduce hereinbelow the provisions of Sections 6 and 36 of the Maharashtra Cooperative Societies Act, Section 34 of the Companies Act and Order XXX of the Civil Procedure Code, which would provide illustrative instances of the provisions of law under which the status of the legal entity is conferred respectively on the Cooperative Society, registered Company and the partnership firms. “6. Conditions of registration (1) No society, other than a federal society, shall be registered under this Act, unless it consists of at least ten persons or such higher number of persons as the Registrar may, having regard to the objects and economic viability of a society and development of the co-operative movement, determine from time to time for a class of societies each of such persons being a member of a different family, who are qualified to be cra202.07 21 members under this Act, and who reside in the area of operation of the society; Provided that, a lift irrigation society consisting of less than ten but of five or more such persons may be registered under this Act. Provided further that, the condition regarding residence of the members in the area of operation of the society shall not apply for registration of the society, being the co-operative credit structure entity. (2) No society with unlimited liability shall be registered, unless all persons forming the society reside in the same town or village, or in the same group of villages. (2A) No crop protection society shall be registered, unless the Registrar is satisfied, after such inquiry, as he thinks necessary, that a draft of the proposal made by the society for protecting the crops, structures, machinery, agricultural implements and other equipment such as those used for pumping water on the land, was duly published for inviting all owners of lands likely to be affected by the proposal and all other persons likely to be interested in the said lands to join the proposal or to send their objections or suggestions and that the objections and suggestions received, if any, have been duly considered by the society and that the owners in possession of not less than 66 per cent in the aggregate of the lands included in the proposal have given their consent in writing to the making of the proposal and cra202.07 22 that the proposal made is feasible. For this purpose, the society shall submit to the Registrar :- (a) a plan showing the area covered by the proposal and the surrounding lands as shown in the map or maps of the village or villages affected; (b) an extract from the record of rights duly certified showing the names of the owners of the lands and the areas of the lands included in the proposal. (c) statements of such of the owners of the lands as consented to the making of the proposal signed by owners before two witnesses; (d) a detailed estimate of the cost of implementing the proposal; (e) a detailed statement showing how the cost is proposed to be met. When such society is registered, the cost of implementing the proposal shall be met wholly or in part by contribution to be levied by the society from each owner of the land included in the proposal, including any such owner who may have refused to become a member of the society. The owner of every land included in the proposal shall also be primarily liable for the payment of the contribution leviable from time to time in respect of such land. (3) No federal society shall be registered unless it has at least five societies as its members. (4) Nothing in this Act shall be deemed to affect the registration of cra202.07 23 any society made before the commencement of this Act. (5) The word ‘limited’ or ‘unlimited’ shall be the last word in the name of every society with limited or unlimited liability, as the case may be, which is registered or deemed to be registered under this Act. Explanation:-- For the purposes of this section and section 8 the expression “member of a family” means a wife, husband, father, mother, son or unmarried daughter.” . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36. Societies to be bodies corporate The registration of a society shall render it a body corporate by the name under which it is registered, with perpetual succession and a common seal, and with power to acquit, hold and dispose of property, to enter into contracts, to institute and defend suits and other legal proceedings and to do all such things as are necessary for the purpose for which it is constituted.” Section 34, Companies Act “34. (1) On the registration of the memorandum of a company, the Registrar shall certify under his hand that the company is incorporated and, in the case of a limited company, that the company is limited. (2) From the date of incorporation mentioned in the certificate of cra202.07 24 incorporation, such of the subscribers of the