Bombay High Court
Dakshaben Ghisulal Rathod And Ors vs M/S. Stonehenge Construction ... on 7 February, 2023
Bench: Amit Borkar
32-CAF-3725-2013.doc
Ghuge
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
FIRST APPEAL NO.1362 OF 2013
Ghisulal S. Rathod (Since Deceased)
Through Legal Heirs Dakshaben
Ghisulal Rathod and Ors ... Appellants
V/s.
Stonehenge Construction Pvt. Ltd and
Ors ... Respondents
WITH
CIVIL APPLICATION NO.3725 OF 2013
IN
FIRST APPEAL NO.1362 OF 2013
Ghisulal S. Rathod (Since Deceased)
Through Legal Heirs Dakshaben
Ghisulal Rathod and Ors ... Applicants
V/s.
Stonehenge Construction Pvt. Ltd and
Ors ... Respondents
WITH
INTERIM APPLICATION NO.166 OF 2023
IN
FIRST APPEAL NO.1362 OF 2013
Stonehenge Construction Pvt. Ltd and
Ors ... Applicants
In the matter between
Ghisulal S. Rathod (Since Deceased)
Through Legal Heirs Dakshaben
Ghisulal Rathod and Ors ... Appellants
V/s.
Stonehenge Construction Pvt. Ltd and
Ors ... Respondents
1
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32-CAF-3725-2013.doc
WITH
INTERIM APPLICATION NO.18901 OF 2022
IN
FIRST APPEAL NO.1362 OF 2013
Dakshaben Ghisulal Rathod and Anr ... Applicants
In the matter between
Ghisulal S. Rathod and Ors ... Appellants
V/s.
Stonehenge Construction Pvt. Ltd and
Ors ... Respondents
WITH
CIVIL APPLICATION NO.3720 OF 2013
IN
FIRST APPEAL NO.1362 OF 2013
Ghisulal S. Rathod (Since Deceased)
Through Legal Heirs Dakshaben
Ghisulal Rathod and Ors ... Applicants
V/s.
Stonehenge Construction Pvt. Ltd ... Respondent
WITH
INTERIM APPLICATION NO.18568 OF 2022
Mr. Piyush Shah a/w Dishang J. Shah for the applicant.
Mr. Chirag Kamdar a/w Suraj Juneja i/b Wadia Ghandy
and Co. for applicant in I.A. No. 166/2023.
Mr. J.M Disilva for the applicant in IA No.18901/2022.
Ms. Tanaya Goswami AGP for the State.
Mr. Santosh Parad for respondent No.1/MCGM.
CORAM : AMIT BORKAR, J.
DATED : FEBRUARY 7, 2023
32-CAF-3725-2013.doc
P.C.:
INTERIM APPLICATION NO.166 OF 2023
1. The respondent No.1 has filed present Interim Application
seeking recall of order dated 10th December, 2022 allowing the
application of appellant Nos.1A to 1H to bring themselves on
record. The Registrar (Judicial-II) allowed the application mainly
on the ground that the appellant Nos. 1A to 1H are the legal heirs
of original appellant No.1.
2. It appears that the learned Registrar failed to adjudicate, as
to whether the appellant Nos. 1A to 1H are the legal
representatives of the appellant No.1. There is distinction between
the expression of legal heirs and legal representatives. Legal
Representatives are those persons who in law are entitled to
represent of estate of party to the litigation. Application to bring
the legal representatives on record can be allowed provided the
applicant demonstrates that right to sue survives in him/them.
3. On perusal of the plaint it appears that the predecessor-in-
title of applicant Nos.1A to 1H had filed suit in his capacity as
Secretary of a plaintiff No.2 society. On perusal of paragraph 1 of
the plaint shows that predecessor of appellant Nos.1A to 1H was
enforcing rights conferred on plaintiff No.2 as co-operative society
and not in his individual capacity.
4. According to the learned advocate for the appellant No.1A
being member of housing society is entitled to add himself as a
party to the First Appeal. It is well settled in view of Judgment of
Constitution Bench of Apex Court in the case of Damansingh Vs.
32-CAF-3725-2013.doc
State of Punjab and Ors reported in 1985 (2) SCC 670, and the
Division Bench of this Court in the case of Dinesh Kantilal Panchal
Vs. State of Maharashtra reported in 2008 (6) Mh.L.J 819, the
consistent view in relation to the rights of member to file
proceedings independent of Co-operative Societies has been
restricted by holding that once a persons becomes member of Co-
operative Society he loses his individuality qua the society and he
has no independent rights except those given to him by statute or
bye law. He must act and speak through Society. Appellant Nos.1A
to 1H has not pointed out any statutory right or right under bye
law as legal heirs to step into shoes of original plaintiff No.1. The
plaintiff No.1 was party to the suit in his capacity of Secretary of
plaintiff No.2 society and, therefore, any other person holding the
office of Secretary of plaintiff No.2 may be entitled to file such
application.
5. In that view of the matter, the order dated 10th October, 2023
is unsustainable.
6. For the aforesaid reasons, the Interim Application is allowed
in terms of prayer clause (a).
7. The Interim Application No.18568 of 2022 stands rejected.
INTERIM APPLICATION NO.18901 OF 2022
8. For the reasons stated in the Interim Application No.166 of
2023 this Interim Application does not survive.
(AMIT BORKAR, J.)
