Bombay High Court
Jaihind Co-Op. Housing Society ... vs Rajendra Nivruti Raigude And ... on 28 October, 2021
Bench: V. V. Kankanwadi
ca-13130-2014 and others.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CIVIL APPLICATION NO.13130 OF 2014
IN SAST/26909/2014
JAYHIND CO-OP. HOUSING SOCIETY LTD. THROUGH ITS CHAIRMAN
VIJAY PITAMBAR PATIL
VERSUS
RAMESH BHURA PATIL AND ANR.
...
WITH
CIVIL APPLICATION NO.13131 OF 2014
IN SAST/26916/2014
JAYHIND CO-OP. HOUSING SOCIETY LTD. THROUGH ITS CHAIRMAN
VIJAY PITAMBAR PATIL
VERSUS
SUDHIR NARHAR ALANDE AND ANR.
...
WITH
CIVIL APPLICATION NO.13133 OF 2014
IN SAST/27110/2014
JAYHIND CO-OP. HOUSING SOCIETY LTD. THROUGH ITS CHAIRMAN
VIJAY PITAMBAR PATIL
VERSUS
HIMMAT KHANDU PATIL SINCE DECEASED THR. LRS. KAMALBAI
HIMMAT PATIL AND ANR
...
WITH
CIVIL APPLICATION NO.5373 OF 2015
IN SAST/26923/2014
JAYHIND CO-OP. HOUSING SOCIETY LTD. THROUGH ITS CHAIRMAN
VIJAY PITAMBAR PATIL
VERSUS
RAJENDRA NIVRUTI RAIGUDE AND ANR
...
Mr. S. P. Shah, Advocate for applicants in all the applications.
Mr. S. T. Kazi, Advocate for respondents in all the applications.
...
(1)
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ca-13130-2014 and others.odt
CORAM : SMT. VIBHA KANKANWADI, J.
Reserved on : 05.08.2021
Pronounced on : 28.10.2021
ORDER :-
. Present Civil Application Nos.13130 of 2014, 13131 of 2014 and
5373 of 2015 have been filed for getting the delay of 2545 days
condoned in filing second appeals and Civil Application No.13133 of
2014 has been filed for getting the delay of 2546 days condoned in filing
second appeal. The applicant - society is original plaintiff No.1 in all the
applications. The society, in all, had filed five suits, namely, Regular
Civil Suit Nos.209 of 1990, 210 of 1990, 211 of 1990, 212 of 1990 and
213 of 1990 for possession and mesne profits against the respondents in
respective second appeals. All the suits were partly decreed by the
learned Joint Civil Judge Junior Division, Dhule. In fact, Regular Civil
Suit No.209 of 1990 came to be partly decreed on 30.03.2001, whereas
other four suits were partly decreed on 06.10.2004. The appeals filed
by original defendant No.1 in respective matters, namely, Civil Appeal
Nos.189 of 2004, 190 of 2004, 191 of 2004 and 192 of 2004 came to be
allowed and the suits were dismissed. Hence, plaintiff No.1 - society
intends to file second appeals, however, there is delay. Hence, these
applications.
ca-13130-2014 and others.odt
2. Heard learned Advocate Mr. S. P. Shah for the applicant in all the
applications and learned Advocate Mr. S. T. Kazi for respondents in all
the applications.
3. It has been vehemently submitted on behalf of the applicant -
society that after the Regular Civil Suit No.209 of 1990 was partly
decreed, the defendants therein filed appeal and the said appeal came to
be allowed thereby dismissing the suit filed by present applicant and,
therefore, the society filed second appeal before this Court. The said
Second Appeal No.583 of 2006 came to be admitted by this Court on
14.07.2009. After the other four suits came to be partly decreed, as
aforesaid, the occupants filed appeals and the first Appellate Court has
reversed the decrees by common judgment on 20.07.2007. One Shri. Z.
B. Patil was the President of the applicant - society, who was looking
after the proceedings. He had exclusive knowledge regarding pendency
of five different suits. Said Shri. Z. B. Patil expired on 17.02.2006 and
thereafter, the applicant - society lost the track about the suits.
Thereafter, when it was noticed by the applicant that the respondents
have started construction work over the suit property, the society
revealed about the rights and came to know about the decision by the
first Appellate Court. The delay was unintentional. Further, after the
demise of Shri. Z. B. Patil, though there was a Managing Committee
ca-13130-2014 and others.odt
elected in the year 2007, yet that decision about the election was
challenged in election petition. In the said election petition, election of
the Managing Committee was set aside. Thereafter, the appeal was filed
challenging that decision, which is still pending. Thereafter, again a new
Managing Committee got elected in the year 2012 and then it was
unanimously decided that the Committee would persuade the
proceedings further. Under such circumstance, the delay has been
caused and the genuine reason is that the Committee with the election
was basically challenged before the Co-operative Courts. The learned
Advocate for the applicant, therefore, prayed for condonation of delay.
4. Per contra, the learned Advocate appearing for the respondents in
all the matters strongly objected the applications and submitted that, in
fact, the present Committee member i.e. Arun Zulalrao Salunke is the
son of said Z. B. Patil. It cannot be imagined that he would have had
knowledge about the decision by the first Appellate Court. In fact, the
learned first Appellate Court had assessed the case properly and has
taken into consideration all the law points involved. Under such
circumstance, there is no question of framing any substantial question of
law when there is no merit in the case and the delay is not required to
be condoned.
ca-13130-2014 and others.odt
5. At the outset, it is to be noted that the applicant is a Co-operative
society. It should have a proper and authenticated Committee or body,
then only it can take up the actions like filing any litigation. Though, in
this case, there is huge delay, the fact remains that the Committee, that
came into force after the election in the year 2007, was required to face
the election petition/dispute before the Co-operative Court. The
judgments in the said dispute have been produced on record. The Judge,
Co-operative Court, Jalgaon has allowed the said Dispute
No.CC/D/21/2007 on 21.09.2011. The elections held on 17.12.2006 for
the period of 2007-2012 were set aside. It appears that the same Court
by order dated 03.10.2011 stayed the execution and operation of the
judgment and award passed in the dispute till 10.10.2011 and it has
been stated that the appeal, that has been preferred by the elected
members, is still pending before the Appellate Co-operative Court. It is
stated that again the elections have been held in the year 2012 and the
new body appears to have taken up. This can be considered as a good
ground for the delay. Now, as regards one of the member, being son of
late Shri. Z. B. Patil, will not be a hurdle for the applicant, as the society
in general is required to be considered and further when the earlier
body was facing the dispute, the personal information may not be
necessarily to be attributed as negligence.
ca-13130-2014 and others.odt
6. Another fact that is in favour of the applicant is the order passed
by this Court in Second Appeal No.583 of 2006, wherein by order dated
14.07.2009, this Court has admitted the second appeal by framing
substantial questions of law. In fact, it is a surprising note that when
five suits were filed, only one came to be decided prior in time to the
decision of the other four and before the first Appellate Court in four
other matters could decide those appeals, the second appeal was filed
before this Court. When the action taken or involved in the matters was
same, all the suits ought to have been considered simultaneously.
Definitely, one chance is required to be given in view of the fact that the
Committee, in this case, was required to face the election petition and
then the said election was set aside with direction to hold fresh elections
and, then that order was stayed.
7. The inconvenience that would be caused to the respondents in all
these four matters is definitely required to be compensated in terms of
money while condoning the huge delay. Hence, the following order :-
ORDER
I) All the applications stand allowed and disposed of.
II) The delay caused in filing each of the second appeal in all
the matters stands condoned, subject to deposit of cost of
ca-13130-2014 and others.odt
Rs.20,000/- in each case within a period of four weeks from today.
III) After the amount is deposited, registry to verify and register
the second appeals.
IV) The amount so deposited be given to the respondents in
respective applications, equally.
[SMT. VIBHA KANKANWADI, J.]
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