Wandrekar, Gumasthe & Mhatre ... vs Abhijit Co-Operative Housing ...
2002 Latest Caselaw 541 Bom

JUDGMENT

A.M. Khanwilkar, J.

1. This writ petition takes exception to the order passed by the Maharashtra State Co-operative Appellate Court, Mumbai dated January 24, 1990 in Appeal No. 204/1989. By this order the Appellate Tribunal allowed the appeal preferred by the respondent No. 1-society, as a consequence of which the dispute instituted by respondent No. 1 society which was dismissed for default by the First Court came to be restored. Briefly stated, the dispute was filed by the respondent No. 1 against the petitioner sometime in 1975. The said dispute was dismissed for default by the Co-operative Court on 24th July 1984 on the ground that when the dispute was called out the disputant was absent. The order also records that even on the last occasion the disputant was absent when the case was for recording of evidence. In the circumstances, the said dispute

came to be dismissed for default. Although this order was passed on 24th July 1984, the restoration application came to be filed only on 27th September 1985. The plea taken by respondent No. 1 vide affidavit of G.M. Telang, who was authorised to pursue the dispute on behalf of respondent No. 1 society is that, originally Mr. Bhide was pursuing the dispute on behalf of society, but subsequently the Managing Committee appointed him (i.e. Mr. Telang) and one Mr. Marathe to attend the case. The affidavit further asserts that he (Mr. Telang) presumed that Advocate appointed by the society Mr. Railkar would pursue the matter. However, it appears that Mr. Railkar had already withdrawn his appearance. It is the specific case of the disputant in this affidavit that the disputant society learnt about the dismissal of the dispute in February 1985. However, the explanation for not filing of the subject application for restoration was that the general body of the society was convened and it took decision on 16-6-1985. It is after the resolution passed in the general body, the restoration application came to be filed i.e. on 27-9-1985. Besides that, the affidavit asserts that the affiant's wife was unwell which prevented him from diligently pursuing the proceedings before the Co-operative Court. He also admits in this affidavit that there has been inordinate delay due to unfortunate circumstance that confronted him. Although Mr. Telang filed affidavit giving explanation as to non-filing of the restoration application within the statutory period, but he candidly conceded that besides him one Mr. Marathe was also authorised by the Managing Committee to pursue the matter. There is no explanation forthcoming as to what prevented Mr. Marathe to pursue the matter when Mr. Telang was unable to pursue the same. Be that as it may, the fact remains that the affidavit also candidly concedes that the society learnt about the dismissal of the dispute in February 1985. However, the society thought it appropriate to convene general body only in June 1985 in which it was resolved to file restoration application. Such matters obviously could have been decided even by the Managing Committee and there was no necessity of waiting till the convening of the general body. In any case, even when the general body resolved on 26th June 1985, authorizing filing of restoration application, there is nothing on record nay no explanation has been offered as to what prevented the respondent No. 1 society or the authorised persons to file requisite application immediately thereafter. Whereas, the admitted position is that the restoration application came to be filed only on 27th September 1985, virtually three months after the resolution passed by the general body.

2. The trial Court examined the rival contentions and essentially took the view, in its order dated 22-8-1986, that the application preferred by the society was not bona fide. There was obvious inaction on the part of respondent No. 1 society in filing the application and that the explanation offered by respondent No. 1 was not sufficient and convincing. Accordingly the First Court rejected the restoration application. Being dissatisfied, the respondent No. 1 society preferred appeal before the Maharashtra State Co-operative Appellate Court being Appeal No. 204/89. The said appeal was instituted some time in October 1986, but once again the respondent No. 1 did not pursue the appeal with diligence and allowed the same to remain pending for removal of objection for almost two years. The appeal was resisted by the petitioner by filing a detailed affidavit inter alia,

pointing out at least two crucial facts that would belie the cause shown by respondent No. 1. The respondent No. 1 society was, at the relevant time, pursuing some other dispute before the Co-operative Court and, therefore, it was wholly inappropriate to contend that the society was unable to pursue the present matter. It was also highlighted that much before the dispute was dismissed, Mr. Railkar, Advocate, who had appeared for respondent No. 1 society before the Cooperative Court, had already withdrawn his appearance on 1st December 1983 in the presence of the authorised persons of respondent No. 1 society as is recorded in the Minutes of the Co-operative Court. Thereafter at least on two dates none appeared for the disputant and no arrangement was made by respondent No. 1 to espouse their cause. In the circumstances, the Co-operative Court had dismissed the dispute on the ground of default. The reply further highlights the fact that the petitioner was a partnership firm and had undergone re-constitution. It is also stated on affidavit that all the papers pertaining to this case were not available with the petitioner due to passage of time and have been discarded in view of the fact that the dispute has already been dismissed. The Appeal Court by the impugned order dated January 24, 1990, however, allowed the appeal and restored the dispute to the file of the Co-operative Court. The Appeal Court mainly relied on the decision of this Court reported in C.T.J. 1989 page 339, wherein it has been held that to obviate causing of gross injustice which would entail in mockery of justice and result in legalizing injustice on technical grounds, it will be necessary to condone the delay. The only reason that has weighed with the Appeal Court can be discerned from para 7 of the judgment, which reads thus :

"Now taking into consideration the judgments in cases referred to above and the fact that the society could not file the restoration application within time due to the illness of the wife of Shri Telang and also taking into consideration the contention of the applicant that there was no proper information about the withdrawal of vakalatnama by Shri Railkar and also the fact that there is an issue framed by the trial Court in respect of the respondent firm and taking into consideration the legal aspect of the case and the legal trend that ex parte judgment should not be allowed to go unattended I feel that this is proper case to be restored to file. However, it will be necessary to saddle costs on the society and, therefore, in the present case I pass the following order:--"

This decision is the subject matter of challenge in the present writ petition.

3. Although the respondents have been served, none appears for the respondents. No reply has been filed opposing this writ petition.

4. Having considered the submissions made on behalf of the petitioner, I am of the view that the impugned order cannot be sustained either on facts or in law. To my mind, the Appeal Court has completely misdirected itself in deciding the appeal on the basis of general legal principles without making reference to the fact situation of the present case. On the other hand, it is seen from the reasons recorded by the First Court, which not only refer to the various contentions and the facts on record to return a finding of fact that the application for restoration was not bona fide and that it also suffers from inaction and that the explanation offered for the delay was not sufficient or convincing. The Appeal Court has not

overturned either of these findings recorded by the trial Court. On this count alone the decision of the Appeal Court of allowing the appeal of the respondent No. 1 cannot be sustained. In any case, on close examination of the facts on record, it would be seen that the dispute came to be dismissed on 24th July 1984 mainly because even in the past the disputant remained absent although the case was for recording of the evidence. The order sheet indicates that Advocate for respondent No. 1 had withdrawn from the case on 1-12-1983 for want of instructions. This withdrawal was permitted by the Co-operative Court in the presence of the authorised person of respondent No. 1. Thereafter on 16-1-1984 the respondent No. 1 appeared through its authorised person before the Cooperative Court, but thereafter on two dates did not remain present. This fact is not in dispute. The application, on the other hand, filed by respondent No. 1 society was sought to be supported by the affidavit of one Mr. G.M. Telang. The contents of this affidavit as mentioned earlier concedes the fact that besides Mr. Telang one Mr. Marathe was also authorised by the respondent No. 1 society to pursue the matter before the Co-operative Court. There is no explanation forthcoming as to what prevented Mr. Marathe to pursue the matter when Mr. Telang was unable to do so due to certain circumstances referred to in para 6 of his affidavit. In any case, what is relevant to note is that the affidavit filed on behalf of respondent No. 1 squarely concedes that the order of dismissal of dispute came to the knowledge of the society in February 1985, but the society chose to wait till the holding of general body in June 1985. There is no explanation as to why the Managing Committee did not take up the issue to take the decision for filing of the restoration application which it was otherwise competent to do. In any case, the general body decided to file restoration application and authorised some persons to take necessary steps on 26th June 1985. However, the application came to be filed only on 27th September 1985. There is absolutely no explanation in the affidavit or any other material on record to show as to what prevented the respondent No. 1 from filing the restoration application immediately after 26th June 1985. These facts would only indicate that there was complete inaction on the part of the respondent No. 1 society. The petitioner would be justified in making grievance, which has gone uncontroverted, that the restoration application has been filed at the behest of Mr. Teleng who was not on good terms with the petitioner. As rightly contended by the petitioner during the relevant time other matter before the Co-operative Court was being pursued by the respondent No. 1 society. If this be so, then it necessarily follows that the plea taken in the affidavit of Mr. Telang is false. Suffice it to hold that it is not a sufficient cause. No doubt the Courts should take a liberal view, but the fact situation would not permit that approach - for there is complete inaction and negligence on the part of the respondent No. 1. Moreover, the plea taken on affidavit obviously seems to be afterthought and false. In any case, there is nothing on record to doubt the correctness of the findings recorded by the First Court in its order dated 22-8-1986. Those findings are the basis for refusing to exercise discretion in favour of the respondent No. 1. If those findings cannot be doubted, it necessarily follows that the Appeal Court completely misdirected itself and exceeded jurisdiction in allowing the Appeal preferred by respondent No. 1.

5. In the circumstances, this writ petition would succeed and the same deserves to be allowed with costs all throughout. Accordingly, the impugned order passed by the Appeal Court is set aside and instead the order passed by the First Court dated 22-8-1986 is restored. As a consequence of this order the application for restoration filed on behalf of respondent No. 1 stands dismissed. Order accordingly. Rule made absolute in the above terms with costs.

The parties may be provided with ordinary copy of this order duly authenticated by Private Secretary of this Court.