Nishigandh Sahaniwas Co-Op. ... vs Mr. Vithal R. Saudagar And Ors.
2002 Latest Caselaw 1169 Bom

JUDGMENT

A.M. Khanwilkar, J.

1. The petition under Article 227 takes exception to the order passed by the Co-operative Court No. 1 Bombay dated 19.4.2001 below Application dated 1.3.2001 and dated 23.4.2001. Briefly stated S.R. Saudagar/Respondent No. 2 instituted dispute under Section 91 against the petitioner society being case C.C.1/73/90 (CC II/374/80). In that dispute Respondent No. 2 filed an application dated 1.3.2001 for permission to withdraw the dispute. That application was opposed by Respondent No. 1 contending that he has acquired interest in the suit property and, therefore, the should be joined as party to the dispute and be permitted to pursue the remedy claimed in the dispute. Notably, Respondent No. 1 is one of the son of Respondent No. 2. Respondent No. 1 took that stand on the premise that the suit property originally belonged to Respondent No. 1's father Ramnath viz. husband of Respondent No. 2. After his demise in the year 1983 the suit property was transferred in the name of Respondent No. 2 nominee of original member Ramnath. He further contended that the said Ramnath has executed a Will as well as irrevocable power of attorney in his favour. Relying on those documents, Respondent No. 1 claims that he has acquired interest in the suit property by virtue of the said Will as well as irrevocable power of attorney and was entitled to pursue the remedy against the petitioner society in respect of the subject flat. The co-operative court has accepted that contention having found that the Will as well as irrevocable power of attorney have been produced on record. The Respondent No. 2 however, resisted the claim of Respondent No. 2 however, resisted the claim of Respondent No. 1 on the ground that the Will as well as irrevocable power of attorney executed in favour of Respondent No. 1 have been revoked and therefore, the Respondent No. 1 has no right in the disputed property. The court below has examined that position and applying the settled legal position, found that once an irrevocable power of attorney is executed in respect of immovable property, it was not open to be revoked and even if that was done, it would not defeat the right of Respondent No. 1. Accordingly, the Co-operative court has found that presence of Respondent No. 1 in the dispute was imperative. In the circumstances, the co-operative court although permitted Respondent No. 2 to withdraw the dispute, by the same order, in exercise of power under Section 94(3) of the Act, directed that the Respondent No. 1 be added as party to the dispute and he may appear as disputant by filing separate application to the dispute. That is the first order which is impugned in the present petition. Pursuant to the above order the Respondent No. 1 filed application on 19.4.2001 (Exh. K) praying that he may be allowed to delete the name of Respondent No. 2 as disputant and instead add his name as disputant. In that application reply was filed by the petitioner society contending that in that case all the heirs of the deceased member should be brought on record. The co-operative court has allowed the application filed by the Respondent No. 1 but kept the question regarding adding of other heirs of deceased member as party to the dispute to be decided at a later stage. That is the second order which is assailed in this petition.

2. Mr. Godbole for the petitioner contends that the order passed by the co-operative court permitting Respondent No. 1 to be joined as disputant in the dispute originally filed by the Respondent No. 2 is not permissible under the scheme of Section 94(3) of the Act. He contends that the Respondent No. 1 could have been allowed to be joined as party only if he had acquired interest in the property of a person who is party to the dispute. He submits that since Ramnath original member was not party to the dispute right, if any, acquired by the Respondent No. 1 through Ramnath, would be of no consequence and that cannot be the basis to allow Respondent No. 1 to be joined as party to the dispute filed by Respondent No. 2. On the other hand, Counsel for the Respondent No. 1 contends that it is not open to the petitioner society who is one of the defendant in that dispute to take this plea. According to Respondent No. 1 the petitioner society is in fact espousing the cause of Respondent No. 2 who has not herself challenge the impugned order though she alone can be said to be party affected by that order. Besides, learned Counsel submits that on plain language of Section 94(3)(a) the argument advanced on behalf of the petitioner cannot be sustained.

3. Having considered the rival submissions. I have no hesitation in taking the view that there is no infirmity in the conclusion reached by the Co-operative court in allowing the Respondent No. 1 to be joined as party to the dispute and also permitting him to espouse the remedy as filed by Respondent No. 2, though the name of Respondent No. 2 was allowed to be deleted at her own request. There is no dispute that the Respondent No. 1 has produced on record documents, namely. Will and irrevocable power of attorney executed in his favour in respect of the suit property. Respondent No. 1 is therefore, prima facie, justified in contenting that he has acquired interest in the suit property. Even the petitioner society concedes the position that Ramnath was the member of the petitioner society and was allotted the suit property though according to the petitioner, Respondent No. 2 was also a member and joint allottee in respect of the flat in question. The fact remains that Ramnath had interest in the suit property and he has executed a Will and irrevocable power of attorney in favour of Respondent No. 1. That would clearly indicate that some right has been acquired by the Respondent No. 1 in respect of the suit property. According to Mr. Godbole, that is not sufficient to permit Respondent No. 1 to be joined as party to the dispute because Respondent No. 1 had not acquired any right in the property from the disputant as such i.e. Respondent No. 2 herein. It is not possible to countenance this submission. The language of Section 94(3) would not permit such a pedantic interpretation. Section 94(3)(a) to Section 94(3)(c) reads thus:-

"94(3)(a) If the cooperative court is satisfied that a person whether he be a member of the society or not has acquired any interest in the property of a person who is a party to a dispute (it may order) that the person who has acquired the interest in the property may join as a party to the dispute; and any decision that may be passed on the reference by (the co-operative Court) shall be binding on the party so joined, in the same manner as if he were an original party to the dispute.

(b) Where a dispute has been instituted in the name of the wrong person, or where all the defendants have not been included, (the Co-operative Court) may, at any stage of the hearing of the dispute, if satisfied that the mistake was bona fide order any other person to be substituted or added as a plaintiff or a defendant, upon such terms as (it thinks just)

(c) (The Co-operative Court may), at any stage of the proceedings, either upon or without the application of either party, and on such terms as may appear to (the Co-operative Court), to be just, order that the name of any party improperly joined whether as plaintiff or defendant, be struck out, and the name of any person who ought to have been joined whether as plaintiff or defendant or whose presence before (the Co-operative Court), may be necessary in order (to enable the Co-operative Court), effectually and completely to adjudicate upon and settle all the questions involved in the dispute, be added."

Much stress was placed on the language of Clause (a) above by Mr. Godbole to support his contention. However, if that contention was to be accepted, it would amount to re-writing the provision and doing violence to the legislative intent. To my mind, on fair reading of the above provision when a person who is either a member of the society or otherwise acquires any interest in the property which is subject matter of dispute that would entitle him to be joined in the dispute filed before the cooperative court and not only when the person acquires right through the disputant as contended. In the circumstances, I am not inclined to accept the plea taken by the petitioner society that the respondent No. 1 was not competent to be joined as party to the dispute.

4. Once it is held that Respondent No. 1 was competent to be joined as party to the dispute, it necessarily follows that the court in exercise of powers under Section 94(3) of the Act can also permit him to be transposed as disputant in the said dispute, if the fact situation of the case so required. In the present case the Respondent No. 2 wanted to withdraw the dispute-whereas the Respondent No. 1 claims that that attempt is with purpose so as to defeat the right enured in favour of the Respondent No. 1. It is in that background the co-operative court though it appropriate to allow the Respondent No. 2 to withdraw from the dispute and instead permitted the respondent No. 1 to join himself as disputant so as to pursue the remedy against the petitioner society.

5. Although Mr. Godbole is also assailing the later part of the order dated 23.4.2001 which, for the time being has rejected petitioner's submission of joining all other heirs of deceased member, however, to my mind, no fault can be found with the view taken by the cooperative court in that behalf. Respondent No. 1 has approached the court with a specific plea that he has acquired right in respect of suit property by virtue of the Will and irrevocable power of attorney. If the Respondent No. 1 fails to establish that position, then he would not be entitled for the relief as claimed by him and in that case it will have the same effect of allowing the prayer made by the respondent No. 2 for withdrawing the dispute.

6. Mr. Godbole then contends that the question of validity of the Will will have to be examined by the cooperative court before deciding any other aspect put in issue by the Respondent No. 1. To my mind, this submission is also devoid of merits in as much as the question regarding validity of the Will cannot be gone into by the cooperative court. The co-operative court is invested with limited jurisdiction only to decide matters which would come within the purview of Section 91 of the Act. The Cooperative court while deciding those mattes, cannot usurp authority which is outside those issues. If the Respondent No. 2 or any other heir of deceased Ramnath intends to take objection to the Will relied upon by the Respondent No. 1, it will be open to them to take recourse to appropriate remedy permissible by law. Suffice it to observe that no fault can be found with the view taken by the co-operative court in so far as the objection regarding impleadment of all other heirs, for that will be considered at a later stage, if and when an occasion arise.

7. Accordingly, this petition fails and the same is dismissed with costs.

Parties to act on ordinary copy of the order duly authenticated by the Court Sheristedar.