- 1 - IN THE HIGH COURT OF JUDICATURE AT BOMBAY O.O.C.J. APPEAL NO.710 OF 2004 IN WRIT PETITION NO.2401 OF 2004 ... Mr.Arvind H. Shah & Anr. ...Appellants v/s. The Gul Bahar Co.operative Housing Society Ltd. ...Respondent ... Mr.A.Y.Sakhare i/b S.A.Shah for the Appellants. Mr.N.N.Bhadrashete for the Respondent. ... CORAM: D.K.DESHMUKH & A.A.SAYED, JJ. DATED: 26TH FEBRUARY, 2009 P.C.: 1. This appeal takes exception to the order dated 9-9-2004 passed in Writ Petition No.2401 of 2004. By that order the learned single Judge has allowed the writ petition filed by the Respondent-co.operative society and remanded the proceedings back to the Co.operative appellate court for deciding the matter - 2 - afresh on the sufficiency of the cause shown after hearing the parties. 2. The relevant facts are that the Appellants admittedly are the members of the Respondent-co.operative society. The first Appellant Mr.Arvind H. Shah was the tenant in respect of flat No.34 in the building ‘Gul Bahar’. Tenancy commenced when the building was owned by M/s.Sastu Sahitya Mudranalaya Trust. The landlord had filed a suit against the Appellant No.1 in Small Causes Court in Bombay. There were consent terms reached between the landlord and the tenant in that suit dated 22-6-1979. As result of the consent terms the landlord permitted the first Appellant to use the flat for residential and/or business purpose. According to the Appellant No.1, he was using the premises since 1979 for business purpose. According to the Appellant No.1, previous to that i.e. from 1977 he was using the premises as his office. It appears that the tenants of the building decided to form a co.operative housing society. There was an agreement reached between all the tenants who occupied the various premises in the building. That resolution is dated 22-1-1981. It was agreed between the parties that - 3 - the persons who were occupying the premises as tenants in the building will join in the formation of the co.operative society and that they will continue to use the premises for the purpose for which they were using them. It appears that, after the co.operative society was formed in the year 1981 the building was transferred by the landlord to the co.operative society. After the formation of the society, the actual cost to be paid for each flat was decided to be Rs.9,679/-, but because the Appellants were using the flat for commercial purpose they were required to pay Rs.14,500/-, that is one & half times more than what was paid by other tenants who were using the flats for residential purpose. The resolution was also passed by the general body of the society on 18-12-1981 noting that the Appellant No.1 is using the flat No.G/4 for commercial purpose. It appears that the general body, thereafter passed another resolution dated 20th July, 1982 saying that because the Bombay Municipal Corporation has not declared that the flat G/4 to be commercial, it cannot be used for the commercial purpose. Though, such a decision appears to have been taken by the society, the amount deposited by the Appellant No.1 was not refunded to him. It further appears that the - 4 - reason given that the Bombay Municipal Corporation has not permitted user of the premises for commercial purpose is also wrong because there is, on record, a letter dated 11-11-1982 from the Bombay Municipal Corporation addressed to the secretary of the Co.operative society informing that since the premises are being used for commercial purpose from August, 1979, no action can be taken against the Appellant for using the premises for commercial purpose. It appears that on the basis of the resolution passed by the society, the society was raising an objection to the Appellant using the premises for commercial purpose. Therefore, the Appellants filed a dispute before the Co.operative court, which was Dispute No.509 of 1988. In that dispute an application for temporary injunction was filed by the Appellants and an injunction was granted. Ultimately, that order was challenged in this court in Writ Petition filed in the year 1989. In the meanwhile, the dispute remained pending before the co.operative court. In the co.operative court, a written statement was filed on behalf of the society. It appears that nobody was appearing on behalf of the society before the co.operative court and they were remaining absent continuously. Therefore, an - 5 - application was filed on behalf of the disputants in November, 1999 requesting the court to proceed exparte against the society and permit the disputants to lead their evidence. That application was granted. The disputants led their evidence. The society remained absent. Ultimately, the co.operative court allowed the dispute by its order dated 29-4-2000. In short the order passed by the co.operative court was that the Appellant can continue to use the flat No.G/4 for commercial purpose, which they were doing, any way, from 1979. An application was made on behalf of the society on 14th August, 2000 for setting aside the exparte decree. There was also a prayer made for condonation of delay. It was opposed by the Appellants. The co.operative court by a detailed order rejected the application for condonation of delay finding that no sufficient cause was shown. An appeal was preferred against the order of the co.operative court before the co.operative appellate court. The co.operative appellate court by order dated 23rd April, 2004 dismissed the appeal holding that the trial court i.e. the co.operative court was justified in declining to condone the delay. - 6 - 3. Feeling aggrieved by the order passed by the co.operative court as also the co.operative appellate court, Writ Petition was filed in this court, which was registered as Writ Petition No.2401 of 2004 by the Co.operative society. That Writ Petition was allowed by the order dated 9-9-2004 by the learned single Judge of this court. The deciding paragraph of the order of the learned single Judge is paragraph 4. It reads as under:- 4. After having heard the learned counsel, I am of the considered opinion that the appellate court misdirected itself in deciding the issue of sufficiency of cause by considering the merits of the matter. It is true that in limited cases it is open to the appellate court to examine the matter on merits to find out whether delay should be condoned. It is not necessary to answer the said issue in the present case. Suffice it to say that there are rival contentions which require to be answered. In the light of that the judgment dated 23-4-2004 is set aside and the matter is remanded back to the Co.operative Appellate Court for deciding the - 7 - matter afresh on the sufficiency of the cause shown after hearing the parties. 4. It is clear from the order of the learned single Judge that according to the learned single Judge the co.operative appellate court could have considered the merits of the matter in order to find out whether the sufficient cause has been shown by the society for condonation of delay. 5. The learned Counsel appearing for the Appellants submitted that the dispute was filed in the year 1988. The only opponent in the dispute was the Respondent-society. It was served with the notice. Application for temporary injunction was decided. There was no question of anybody staying further proceedings of the dispute which was pending in the co.operative court. The society remained absent. The learned Counsel submitted that in the application filed for setting aside the exparte decree, the only explanation that was given for the society remaining absent before the Co.operative court right from 1989 to 2000, when the decree was passed, was that the lawyer appearing for the society informed the society that because the Writ Petition is pending in the High - 8 - Court against the order granting temporary injunction, the office bearer of the society need not attend the Co.operative court. The learned Counsel submits that no communication from the lawyer Shri Godbole to that effect addressed to the society is produced on record, and therefore, this averment is incapable of being believed. The learned Counsel submits that if this allegation is not believed, then there is no justification given for remaining absent before the co.operative court by the society right from 1989. The learned Counsel submits that in order to get the exparte decree set aside the society will have to first explain why it remained absent before the co.operative court. It has not been explained at all. The learned Counsel further submits that the Appellant No.1 is an advocate by profession. He is having his office in the premises. There are consent terms entered into with the landlord before the society was formed. There was an agreement reached between the tenants of the building, which is also on record, whereby it is agreed that the society will permit all the tenants to continue to use the premises for the same purpose for which they were using it. After formation of the society, the general body resolution was passed to the same - 9 - effect. More amount than what was paid by holders of the residential premises was paid by the Appellant. When the decision was changed by the society, firstly the amount was not refunded to the Appellant and secondly the only reason given for changing the decision was that there was no permission from the BMC for using the premises for commercial purpose. That reason was also not found to be correct. Because the Corporation has clearly informed that since the Appellant is using the premises for commercial purpose from 1979, the Corporation cannot raise objection. The learned Counsel submits that the whole attitude of the society is merely to harass the Appellant. 6. The learned Counsel appearing for the society, on the other hand, submits that the reasons that have been given by the trial court i.e. co.operative court as also the co.operative appellate court cannot be supported by record. The learned Counsel submits that the society came to know about the award when such statement was made in the petition in this court, which related to the passing of interim order by the cooperative court and therefore, from the date of knowledge there was not much delay involved in - 10 - approaching the co.operative court and therefore, the delay should have been condoned. 7. Now, it is an admitted position that since 1989 the society was not attending the proceedings in the co.operative court. In the application that was filed on behalf of the society for setting aside the exparte decree, the only reason that was given for the society not attending the proceedings before the co.operative court is to be found in paragraph 3 of their application. It reads as under:- "This Opponent states that in view of the said admission of Writ Petition the dispute herein was adjourned from time to time. The dispute herein was on board for hearing on number of occasions, however, in view of said pendency of Writ Petition, it was adjourned from time to time. This Opponent was under bonafide belief that since this Hon’ble Court is adjourning matter in view of pending Writ petition the dispute herein would not proceed unless said Writ petition is disposed of. This Opponent states that Shri W.S.Godbole, this Opponent’s Advocate had also informed - 11 - this Opponent that this Opponent and/or its officers need not attend the matter as it is not likely to go on and as and when matter is likely to go on he would inform us. In view of the same this Opponent did not attend the matter." 8. It is, thus, clear that according to above averments because the lawyer Shri Godbole informed the society that the office bearers of the society need not remain present in court, because the matter is not likely to go on, the society could not remain present before the co.operative court. This is the communication from the lawyer to the body corporate. Obviously, therefore, it has to be in writing. It is nobody’s case that the lawyer informed the society orally. Obviously, therefore, the communication must be in writing. The society has not produced this communication. It is stated that the affidavit of Shri Godbole could not have been produced by the society, because he had died in January, 1999. Though, it is a statement of the society that Shri Godbole, Advocate died in the year 1999, no document in support of that case is also produced. Thus, on record there is no document to establish the reason - 12 - why the society did not attend the proceedings before the Co.operative society. In our opinion, therefore, both the courts below were perfectly justified in declining to condone the delay in making the application for setting aside the exparte decree. 9. The learned single Judge has also observed in his order that the merits of the matter can be taken into consideration by the court while deciding whether the delay should be condoned. If we see the merits of the matter from that point of view, it is revealed from the record that admittedly the Appellant No.1 was the tenant in the building, when it was owned by the Trust. Therefore, the suit was filed by the landlord against the Appellant No.1. In that suit consent terms were arrived at between the landlord and tenant, which permitted the tenant to use the premises for business purpose. When it was decided by the tenants to form a co.operative society, an agreement between the landlord and tenants was reduced to writing dated 22-1-1981. That agreement in terms stated that the tenants who were joining the co.operative society can continue to use the premises for the purpose for which they are being presently used. Therefore, this will be the condition on which - 13 - the tenants joined the co.operative society. After the society was formed, the resolution was passed specifically permitting the Appellant No.1 to use the premises for commercial purpose and more money was also charged from him and recovered. 10. Now, the only reason that was given by the society objecting to the use of the premises for commercial purpose is that the permission of the Bombay Municipal Corporation has not been taken. Letter dated 11-11-1982 from the Bombay Municipal Corporation addressed to the society itself is on record, which shows that as Flat No.G-4 was being used for commercial purpose from August, 1979, no action can be taken by the Corporation against the occupant for using the flat for commercial purpose. It is, thus, clear that the BMC is not objecting to the use of the flat for the commercial purpose. Therefore, the reason that has been given by the society for changing the decision is a nonexistent reason. What is further to be seen is that even the learned Counsel appearing for the society, after taking instructions from the secretary who was present in court, admitted before us that two other premises in the society on the ground floor are also - 14 - being used for commercial purpose. The only reason given for permitting two other persons to use the premises for commercial purpose is that the landlord had permitted them to use the premises for commercial purpose and in the conveyance that is executed by the landlord in favour of the society it is so mentioned and in so far as Appellant is concerned, it is not so mentioned in the conveyance. The reason that conveyance executed in favour of the society does not mention that the premises occupied by the Appellant are being used for the commercial purpose can not be a ground for making discrimination between the occupants of those two premises and the Appellant. Because, admittedly the consent terms entered into between the landlord and Appellant shows that the Appellant was using the premises for business purpose and the landlord permitted him to continue to do so. There is also a written agreement on record between the tenants for permitting the Appellant to use the premises for commercial purpose. In our opinion, therefore, the co.operative society could not have discriminated against the Appellant, by objecting only the Appellant to use the premises for commercial purpose, when admittedly other two others are using the premises for commercial purpose. In our opinion, - 15 - therefore, the courts below are perfectly justified in not condoning the inordinate delay involved. 11. In our opinion, the order of the learned single Judge also suffers from non application of mind. He observes that the Co.operative appellate court has considered the merits of the matter. He also observes that the merits of the matter can be taken into consideration for considering the question whether the delay is to be condoned or not, but sets aside the order of the Appellate Court without indicating any reason why the order has been set aside. We find that the learned single Judge was not justified in interfering with the concurrent findings recorded by the courts below, specially because after perusing the record the manner in which the parties have proceeded, we find that the only objective was to harass the Appellant. In our opinion, the objection was taken with malafide intention and therefore interference in favour of the society at the hands of this court in its extra ordinary jurisdiction under Article 226 was not called for. 12. In the result, therefore, the present Appeal succeeds and is allowed. The order dated 9-9-2004 - 16 - passed in Writ Petition No.2401 of 2004 is set aside. That petition is dismissed. Rule in that petition is discharged. No order as to costs. (D.K.DESHMUKH, J.) (A.A.SAYED, J.)