Bombay High Court
Shabnam Mohd Sami Shaikh vs Maharashtra Housing And Area ... on 19 October, 2023
Bench: Amit Borkar
2023:BHC-AS:31366
907-wp-6531-2022.doc
Nikita
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO.6531 OF 2022
Rizwana Mohd Sami Shaikh Thr. Her
Constituted Attorney Shabnam Moh.
Sami Shaikh ... Petitioner
V/s.
Maharashtra Housing and Area
Development Authority and Ors. ... Respondents
WITH
WRIT PETITION NO.6534 OF 2022
Shabnam Mohd Sami Shaikh ... Petitioner
V/s.
Maharashtra Housing and Area
Development Authority and Ors. ... Respondents
Mr. Hussain Dholkawala a/w Mr. Eshaan Borikar i/b
Mr. Firoz Shaikh, for the Petitioner.
Mr. Baugwala Yusuf Suleman for Respondent No.19
and 20.
Mr. Santosh Parad i/b Ms. Aruna Savla a/w Mr. Vikas
Kumavat for Respondent No.2.
CORAM : AMIT BORKAR, J.
DATED : OCTOBER 19, 2023
P.C.:
1. The order impugned in these writ petitions allow application
of member of a cooperative society to join them as defendant in a
suit filed by the petitioner seeking following reliefs:
"A) That this Hon'ble Court be pleased to pass a
declaratory Decree setting aside the Compromise Decree
907-wp-6531-2022.doc
dated 23rd September, 2011 passed in Long Cause Suit
No.904 of 2009 after holding that the Consent Terms dated
24th June, 2011 constituting the compromise on the basis of
which the said Compromise Decree dated 23rd September,
2011 came to be passed was void, illegal and not lawful;
B) That this Hon'ble Court be pleased to pass a permanent
Order and Injunction restraining the Respondents from in
any manner acting in pursuance of the Compromise Decree
dated 23rd September, 2011 passed in Long Cause Suit
No.904 of 2009;
C) That during the pendency of the present Suit this
Hon/'ble Court be pleased to pass a temporary Order and
Injunction restraining the Respondents from in any manner
acting in pursuance of the Consent Decree dated 23 rd
September, 2011 passed in Long Cause Suit No.904 of 2009;
D) That during the pendency of the present Suit this
Hon'ble Court be pleased to pass a tempoary Order and
Injunction restraining the Respondents from proceeding with
the Execution Application No.253 of 2012 in L.C. Suit
No.904 of 2009 filed before this Hon'ble Court;"
2. On perusal of the reliefs, it appears that the plaintiff is
seeking setting aside of compromise decree executed between the
developer and the cooperative society. According to the petitioner,
in a general body meeting dated 10 April 2021, flat was allotted in
his favour; however, without his consent the cooperative society
entered into compromise with the developer.
3. In such a suit, the Court is required to adjudicate as to
whether the plaintiff has enforceable right to claim relief, or not. In
such a suit, the relief claimed by the plaintiff needs to be defended
by the cooperative society and the developer.
907-wp-6531-2022.doc
4. It is well settled that once a person become member of a
society, he looses his identity to pursue the cause which can be
pursued by the cooperative society (see Daman Singh v. State
of Punjab reported in (1985) 2 SCC 670 ) and Dinesh Kantilal
Panchal Vs. State of Maharashtra reported in 2008 (6) Mh.
L. J. 819.
5. Learned advocate for the respondent relies on judgment of
Apex Court in the case of Razia Begum v. Sahebzadi Anwar
Begum reported in AIR 1958 SC 886. He relies on paragraph
No.13(2) of the said judgment. There cannot be dispute about the
legal preposition laid down by the Apex Court, however, in the
facts of the case, the relief sought by the plaintiff assails the
compromise decree in L.C. Suit No.904 of 2009, based on consent
terms executed between the Co-operative Housing Society and the
Developer. The respondent is member of the Co-operative Housing
Society. Therefore, whatever grievance respondent has against the
Co-operative Housing Society needs to be agitated and prayed
before the appropriate forum created under the relevant act. In a
suit for enforcement of civil rights filed by the petitioner is not a
forum where a dispute between the petitioner and a proposed
respondent can be adjudicate. The scope of the suit is limited only
to the extent to ascertain whether the plaintiff is entitled to relief
as prayed for in the suit.
6. Learned advocate for the respondents submitted that the
society is not contesting the suit. In that case, the remedy of
respondent is to take appropriate steps for enforcement of rights
confirmed by the provisions of the Maharashtra Cooperative
907-wp-6531-2022.doc
Societies Act, 1960 and the Indian Contract Act, 1872 before the
appropriate forum by adopting the appropriate remedy as is
available in law.
7. However, the respondents being member of Co-operative
Housing Society and beneficiaries of consent terms, cannot be
termed as necessary party. Therefore, the Trial Court erred in
allowing the application.
8. In that view of the matter, the applicant who claims to be
beneficiary of compromise deed and claims right based on order
passed by this Court on 11 October 2017 in Writ Petition No.1564
of 2014 along with connected matters shall have remedies as are
available in law. However, the petitioner being dominus litis, it is
his choice to whom he wants to make defendant as a party.
9. Making such defendant and opposing the impleadment of
the present respondent shall be at the risk of the petitioner.
10. In that view of the matter, in my opinion, defendant No.20
who applied under Order 1 Rule 10 of the Code of Civil Procedure,
1908 was not a necessary party. Hence, the impugned order needs
to be quashed and set aside.
11. The impugned order is quashed and set aside.
12. Both the writ petitions stands disposed of in above terms. No
costs.
(AMIT BORKAR, J.)
