Bombay High Court
Pyarali H. Mavani (Deceased) Thr ... vs Vaishali Magaswargiya Co-Op. ... on 3 March, 2017
Bench: Z.A. Haq
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR
WRIT PETITION NO.1265/2017
Pyarali S/o Husenali Mavani (deceased),
through his legal heirs.
1. Sakkarkhannu Pyarali Mavani,
aged about 64 Yrs., Occu. Housewife,
R/o Vaishali Society, Behind Nandurkar
College, Yavatmal - 445 001.
2. Meena Ameen Dhammani,
aged about 44 Yrs., Occu. Housewife,
R/o Garden Society, Wanjari Fail Road,
Yavatmal - 445 001.
3. Rubina Karim Lalani,
aged about 42 Yrs., Occu. Housewife,
R/o Azad Chowk, At Armori,
Distt. Gadchiroli.
4. Rozina Raju Virani,
aged about 40 Yrs., Occu. Housewife,
R/o A/3, Salimbad Society, Near
Sandip Mangalam, Yavatmal - 445 001.
5. Nargis Asif Hirani,
aged about 38 Yrs., Occu. Housewife,
R/o "Aashish", C/9 Shahid Society,
Yavatmal - 445 001.
6. Salima Altaf Bhiwani,
aged about 32 Yrs., Occu. Housewife,
R/o Basera Colony, G.V. Tower Building,
Gadchiroli.
7. Amin Pyarali Mavani,
aged about 28 Yrs., Occu. Service,
R/o Vaishali Society, Behind Nandurkar
College, Yavatmal - 445 001.
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Presently residing at Saint Antonio USA
All the petitioners are being represented
through their Special Power of Attorney
Holder - Smt. Nargis Asif Hirani - The
petitioner No.5. ..Petitioners.
..Vs..
Vaishali Magaswargiya Co-operative Housing Society
Ltd., Yavatmal, Reg. No.632, through its President/
Secretary, Vaishali Society, Behind Nandurkar
College, Yavatmal - 445 001. ..Respondent.
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Shri S. O. Ahmed, Advocate for the petitioners.
Shri S.J. Kadu, Advocate for the respondent.
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CORAM : Z.A.HAQ, J.
DATE : 3.3.2017.
ORAL JUDGMENT
1. Heard Shri S. O. Ahmed, Advocate for the petitioners and Shri S.J.
Kadu, Advocate for the respondent.
2. Rule. Rule made returnable forthwith.
3. The learned Advocate for the petitioners has pointed out that the
application (Exh. No.12) filed by the petitioners under Order 41 Rule 27 read
with Section 151 of the Code of Civil Procedure and under Rule 17(2) of the
Maharashtra State Co-operative Tribunal Regulations has not been considered
by the Co-operative Appellate Court and the appeal is decided. It is argued that
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another application filed by the petitioners seeking permission to produce
documents is partly allowed, however, the substantive prayer seeking
directions to the Sub-Divisional Officer to produce original / certified copy of
map is not granted. It is submitted that the matter is required to be remanded
for deciding the application (Exh. No.12) and for reconsidering the application
(Exh. No.10). It is submitted that the petitioners are not protracting the
matter and to dispel this impression the petitioners are willing to deposit
Rs.50,000/- (Rs. Fifty Thousand Only) with the Co-operative Court to show
their bona fides.
Though the learned Advocate for the respondent has opposed the
prayer made on behalf of the petitioners, considering the nature of controversy
and the fact that the application (Exh. No.12) is not considered by the
Co-operative Appellate Court, in my view, the impugned judgment is required
to be set aside and the matter has to be remitted to the Co-operative Appellate
Court for fresh decision. As the matter is being remanded it would be
appropriate that the Co-operative Appellate Court considers the application
(Exh. No.10) afresh.
Hence, the following order:
(i) The impugned judgment passed by the Maharashtra State
Co-operative Appellate Court, Mumbai Bench at Nagpur is set aside.
(ii) The order passed by the Co-operative Appellate Court on 9 th June,
2016 on application (Exh. No.10) is set aside.
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(iii) The Appeal No.47/2015 is restored.
(iv) The Co-operative Appellate Court is directed to decide the appeal
afresh after deciding the applications (Exh. Nos.10 and 12).
(v) The petitioners and the representative of respondent shall appear
before the Maharashtra State Co-operative Appellate Court, Mumbai Bench at
Nagpur on 17th April, 2017 at 11 a.m. and abide by further orders in the
matter.
(vi) The Co-operative Appellate Court shall dispose the matter within six
months.
(vii) This order is passed accepting the submission made on behalf of the
petitioners that they will deposit Rs.50,000/- (Rs. Fifty Thousand Only) with
the Co-operative Appellate Court.
The amount shall be deposited before the Co-operative Appellate
Court till 10th April, 2017.
(viii) If the amount is not deposited till 10 th April, 2017 this order shall
stand recalled and the impugned judgment passed by the Co-operative
Appellate Court shall stand revived.
(ix) The disbursement of the amount which will be deposited by the
petitioners shall be as per the order to be passed by the Co-operative Appellate
Court at the time of disposal of the appeal.
JUDGE
Tambaskar.
