Bombay High Court
Rajarshree Shahu Maharaj Magaswargiya ... vs Maroti Kundalik Bodkhe And Another on 29 July, 2025
2025:BHC-AUG:20136
910-WP-3996-2016.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO. 3996 OF 2016
Rajarshree Shahu Maharaj Magaswargiya Audyogik Utpadak
Sahkari Sanstha Maryadit Thru Sec. K M Bodkh
VERSUS
Maroti Kundalik Bodkhe And Another
***
• Mr. N. K. Tungar, Advocate for the Petitioner
• Mr. Y. G. Somani, Advocate for the Respondent No. 2
***
CORAM : R. M. JOSHI, J
DATE : JULY 29, 2025
PER COURT :
1. By consent of both sides, heard finally at the
stage of admission.
2. This Petition takes exception to the order
passed vide Exh. 19 dated 19.01.2016 in RCS No. 46/2013
whereby the Trial Court dismissed the suit for want of
jurisdiction.
3. The facts which led to the filing of this
Petition can be narrated in brief as under:
Petitioner/Plaintiff filed suit bearing RCS
No. 46/2013 seeking cancellation of the sale deed dated
18.06.2012 and declaration that the Plaintiff is the
owner of the suit property. Defendant filed application
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under Section 9A of the Code of Civil Procedure raising
objection to the maintainability of the suit on the
ground that the provision of Maharashtra Cooperative
Societies Act, 1960 (for short "the Act") would have
application to the present case and in view of Section
91 thereof, civil Court has no jurisdiction to
entertain the suit. The said contention of the
Defendant is accepted by the Trial Court by passing
order vide Exh. 19. It is held that the main relief is
of declaration of the correctness of resolution dated
01.06.2012 and the decision of the suit depends upon
the findings recorded against the said issue. It is
held that since there is a bar created by Section 91 of
the Act for entertaining a suit in respect of a dispute
between member and non member the suit is held to be
without jurisdiction.
4. Learned Counsel for the Petitioner submits
that the Cooperative Court has no jurisdiction to
cancel any instrument including the sale deed. It is
his submission by referring to the judgment of Division
Bench of this Court in case of Alok Agarwal and Others
vs. Punam Co-operative Housing Society Ltd. And Others,
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2013 (1) Mh.L.J. 104 that civil Court is vested with
the power to cancellation of the written instrument
under Section 31 of the Specific Relief Act, 1963. It
is his contention that in view of the said judgment,
the order passed by the Trial Court of dismissal of the
suit for want of jurisdiction is not sustainable.
5. Learned Counsel for the Respondent/Original
Defendant sought to support the impugned order by
contending that unless the resolution dated 01.06.2012
is declare to be null and void, it would not be within
jurisdiction of the Civil Court to give declaration in
respect of these sale deeds. It is his further
submission that the issue of correctness of the
resolution is beyond jurisdiction of the Civil Court.
Thus, it is his submission that there is no infirmity
in the order impugned.
6. In order to ascertain the jurisdiction of the
Court, the Court will have to consider the reliefs
prayed by the Plaintiff. Undisputedly, the Plaintiff is
seeking cancellation of the sale deed in question
including between Plaintiff and Defendant. No doubt,
there are pleadings in respect of the correctness or
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otherwise of the resolution dated 01.06.2012. However,
as a matter of fact the relief is sought is only of
declaration of the sale deed.
7. Now question arises as to whether the
Cooperative Court has jurisdiction to give such
declaration and to cancel written instrument. In this
regard, reference can be made to judgment of the
Division Bench in case of Alok Agarwal (supra) and more
particularly paragraph 16, which reads thus:
16. The real bone of contention, however,
is whether the reliefs which have been
sought before this Court are of a nature
that would fall within the jurisdiction of
the Co-operative Court under sub section
(1) of Section 91. The co-operative
society, which is the Plaintiff before this
Court, has among the reliefs sought claimed
a declaration to the effect that the
agreement dated 30 May 2007 under which the
Appellant claims title is null and void and
unenforceable as against the society.
Declaratory relief of this nature cannot be
granted by the Co-operative Court. Section
31 of the Specific Relief Act 1963 provides
that any person against whom a written
instrument is void or voidable, and who has
reasonable apprehension that if such
instrument is left outstanding may cause
him serious injury, may sue to have it
adjudged void or voidable; and the Court
may, in its discretion, so adjudge it and
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order it to be delivered up and cancelled.
The power which is conferred upon the Civil
Court under Section 31(1) of ordering
cancellation of a written instrument is
evidently not vested in the Co-operative
Court constituted under the Maharashtra Co-
operative Societies Act 1960. It is well
settled that the jurisdiction which is
conferred on a Civil Court under Section 9
of the Code of Civil Procedure 1908 to try
all suits of civil nature can be abrogated
only by an express provision of the statute
or where it is impliedly barred. The
provisions of Section 91 of the Maharashtra
Co-operative Societies Act 1960 do not
either expressly or by necessary
implication confer jurisdiction on the Co-
operative Court to grant declaratory relief
especially of the nature referable as in
the present case to Section 31 of the
Specific Relief Act 1963.
xxx
8. From the above judgment, it is clear that the
Cooperative Court while exercising powers under Section
91 of the Act would have jurisdiction to grant any
declaratory relief in the nature which is referable to
Section 31 of the Specific Relief Act.
9. In view of the above settled position of law,
it cannot be said that the Civil Court has no
jurisdiction to entertain suit. It is immaterial as to
whether the Plaintiff will succeed in getting relief or
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not and such possibility of success would not become
ground to decide issue of jurisdiction of civil Court.
Suit filed by Plaintiff, therefore, is certainly
maintainable and hence, could not have been dismissed
for want of jurisdiction. In the result, Petition
stands allowed in terms of prayer clause 'B'. Impugned
order is set aside. Trial Court is directed to decide
the suit in accordance with law.
10. Parties are directed to appear before the
Trial Court on 18.08.2025. No separate notice shall be
issued to the parties.
(R. M. JOSHI, J.)
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