1. The petitioner is a member of the Co-operative Housing Society Known as 'Usha Sadan Co-operative Housing Society Ltd. hereinafter referred to as 'the Society'. A flat No. 30-B in its building on the fourth floor is allotted to the petitioner as such member. Respondent No. 1 came to occupy the said flat apparently, at any rate under a leave and licence agreement dated 16th April, 1963. This licence was revoked in 1967 . The respondents'; occupation of the flat was not approved by the Society on various grounds and it was insisting on his dispossession by threatening action. The Society and the petitioner ultimately agreed to make a common cause to evict him for reason of their own and, therefore raised a dispute before the Registrar, Co-operative Societies, under Section 91 to 96 of the Maharashtra Co-operative Societies Act, 1961 (hereinafter referred to as the C. S. Act'), claming possession of the flat from respondent No. 1. Occupation of the premises in breach of the Bye-laws and Regulations of the Society was the basis of their claim in this dispute. The respondent inter alia claimed to be the tenant of the flat. The Officer on Special Duty (hereinafter referred to as the O. S. D.) to whom the dispute was k referred for disposal by the Registrar. rejected his plea of tenancy and passed an award on 23rd September, 1969 directing that the possession of the flat be handed over to disputant No. 1- the petitioner. The said award was confirmed in appeal on 29th September, 1970.
2. The unsuccessful respondent then instituted a suit being R. A. Declaratory Suit No. 753/5128 of 1970 in the Court of Small Causes at Bombay. He claimed to be a lawful tenant of the flat in dispute and pleaded that the O. S. D. had no jurisdiction to adjudicate his plea of tenancy. Respondent No. 1. in the meanwhile took out Interlocutory Notice No. 4640 of 1970 for such injunction pending the disposal of the suit restraining the defendant (petitioner) from executing the award. Ad-interim injunction was granted, but ultimately discharged by the trial Judge on 7th June, 1971, at the final hearing of the notice. On appeal by respondent No. 2 to the Appellate Bench, the said injunction was restored. It is this order dated 24th September, 1973 that is challenged in this Special Civil Application. Strangely enough, the Society is not impleaded to these proceedings though it is one of the award-holders.
3. Mr. khemani, the learned advocates appearing for the petitioner, contends that Court of Small Causes exercising powers under Section 28 of the Bombay Rents Hotel and Lodging House Rates Control Act, 1947 (hereinafter referred to as 'the Rent Act'). has no jurisdiction to grants such injunction preventing the petition form proceeding to execute his award under Section 98 of the C. S. act from the City Civil Court or the High Court as these Courts are not subordinate to it within the meaning of Section 41(b) of the Specific Relief Act of 1963. Mr. Chabria, the learned advocate appearing for the respondent, has two fold answer to this contention. Section 41(b) dealing with permanent injunctions. contends Mr. Chabria has no application to temporary injunctions, granting of which under Section 37 of the said Act is in terms governed by the Civil Procedure Code and Section 41(b) also a cannot apply to the proceedings before Courts and authorities created under the special enactments, there being no standards to enactments, there being no standards to determine the subordination of one to the other. Decision on this question appears to me to be unnecessary in the view I am taking of Mr. Khemani's next contention.
4. Mr. Khemani's main contention is that the Appellate Bench misunderstood the facts and the ratio of the Division Bench judgment of this court D/- 26-4-1973 in Special Civil Appln,. No. 1699 of 1969 76 Bom LR 718 in the case of Kalavati Ramchandra v. Shankarrao, in holding that the award in this case is a nullity. I find substance in this contention. The learned Judges of the Appellate Bench extensively relied on Kalavati's judgment in support of their conclusion that the O. S. D. had no jurisdiction to entertain (1) the dispute between Licensor -the petitioner and his Licensee- the respondent: and (2) to entertain and decide the plea of tenancy raised by the respondent before him, in view of the exclusive jurisdiction of the Court under Section 28 of the Rent Act.
5. In kalavati's case 76 Bom LR 718 the dispute was exclusively between the member of the Society and his Licensee. According to certain decided cases of this Court, such a dispute was cognizable by the Registrar or his Nominee under the C. S. Act. However, authority of these precedents was shown to have been shaken by the judgment in the case of D. M. Co-op. Bank v. Dalichand, : 1SCR887 . Following the ratio of another Supreme Court judgment in the case of Sabharwal v. Guna Amrit. : 1SCR53 , the Division bench held that such a dispute (1) does not touch the business of the Society and (2) the capacity of the member as such member, does not come into picture while granting such licence and the dispute therefore, was no more cognizable by the Registrar or the O. S. D. The facts of the present case are materially different. A copy of the plaint (dispute) is enclosed along with the Special Civil Application, the authenticity of which is not disputed before me by Mr. Chabria. Firstly, the society also is a co-disputant in the present case along with its Licensor. It is incorrect, therefore, to assume that dispute is merely between member and his licensee. Secondly. claim to resume possession of the flat is based on the Bye-Laws and Regulations of the Society breach of which is the core of the grievance. There are several observations in Kalavati's case, indicating what difference it would make to the approach when the society steps in the dispute and seeks to resume possession of its premises by enforcing its Bye-laws. Decision in the case of Smt. Chandra Chetanram Shivdasani v, Chandre Shakhar Sheth. D/- 16-12-1971 in Special Civil Appln,. No. 1446 of 1971 (Bom) was distinguished mainly on this very ground. The learned Judges have obviously missed this important point of distinction.
6. Unfortunately, the scarcity of accommodation in city has given rise to spate of litigation with regard to possession of flats in a building constructed. owned or managed by Co-operative Housing societies. Intensity generated in this litigation, has on the other hand given rise to case and case decisions therein lacking uniformity at least in appearance, due to the different situations, shades of problems as also subtleties and niceties of law involved and raised therein. Complexities of the relevant provisions and differences in interpretation thereof have rather created more problems than solved. Subordinate Courts have indeed very difficult task to perform. On has still to ascertain the ratio of the decision carefully by reference to the context and the precise point arising for decision therein. There is real danger of missing the wood for the trees if one allows himself to be swayed by some observations here and there without reference to the context. This is what precisely seems to have happened in the present case. The dispute raised before the O. S. D. in the plaint essentially is between the Society and the respondent and his occupation of the flat in breach of its regulation is the cause of the dispute. Petitioner's being co-disputation does not make any difference. It should be difficult to hold that it does not touch the business of the society. The capacity of the member in such a transaction would assume different complexion when considered against the claim of the Society. prima facie the averments in the plaint (dispute) before the O. S. D. did attract the provisions of Section 91 of the C. S. Act and also the jurisdiction of the authority thereunder. Award passed. therefore, cannot be said to be a nullity.
7. Mr. Chabria contends that the society is just an idle party and is impleaded as co-disputant merely to choose the form of the O. S. D. and make a pretence of conferring jurisdiction on him. This, says Mr. Chabria, cannot alter the nature of the dispute and confer jurisdiction, where there was none. Reliance was placed on the judgment of this Court in the case of Mrs. N. Pareira v. The Swastik Chambers Co-operative Housing Society Ltd., (Special Civil Appln. No. 1457 of 1967 decided on 10-12-1970 (Bom). This, however, is not what the Appellate bench has found or said, though reference to this case is made by it while quoting from Kalavati's case, : (1974)76BOMLR718 . Secondly, decision in Mr.s Pareira's case to the above effect is based on the cumulative effect of facts found therein. Writ jurisdiction of this Court was invoked therein directly against the orders of the authorities under the C. S. Act in award proceedings. Therein the issue of jurisdiction was decided on facts found on the trial thereof in proceedings under S. 91 of the C. S. Act; that is not what is found in his case by these authorities and this writ matter does not arise directly out of the said proceedings. Court hearing declaratory suit and this Court exercising writ powers there against has no jurisdiction to review or correct the findings or orders of such authorities so collaterally. It may, however, ignore such orders if the same can be held as nullity due to patent lack of jurisdiction, by reference to the plaint or perhaps to the facts found in the award. No such conclusion, however, is possible either from the plaint to which reference is already made or from the award or from the mere circumstances that award contemplates delivery of flat to the petitioner alone. Mr. Chabria did not so much rely on the plaint averments or findings recorded by the said authorities as on some material claimed to have been produced therein. This is simply impermissible, declaratory suit not being the proper remedy. Not only that the award and findings cannot be reviewed but the issues decided cannot be tried afresh in view of the finality attached to the same under section 163 (3) of the C. S. Act.
8. Reliance was placed by Mr. Chabria on Sabharawal's case, : 1SCR53 (supra) in support of his contention that such an issue can be tried afresh in a declaratory suit. Superficial reading of this judgment of the Supreme Court may create such an impression. Close scrutiny thereof, however, should dispel such impression. The Appellate Bench in that case held that the award under the C. S. Act operated as res judicate for the points raised therein and this Court confirmed the same view holding that the award barred the trial of the same issues including issue of tenancy in declaratory suit. The Supreme Court treated the question of application of Section 91 of the C. S. Act as the 'central question' in paragraph 5 and held in paragraph 9 that the said section was not attracted by the kind of dispute raised. implying thus that the O. S. D. had no jurisdiction and, therefore, the trial of such issues was not barred in declaratory suit. In that case on the disputant's own admission in plaint averments before the O. S. D. to was a dispute exclusively between member and his licensee with regard to the 'letting' and the Supreme Court held that such a dispute did not touch the business of the Society to attract Section 91 of the C. S. Act. In other words, the award was virtually found to be a nullity for want of jurisdiction and, therefore, found to have ceased to be effective to operative as resjudicata. The word 'letting' in paragraphs 7 and 9 in the context refers to the act of giving flat on leave and licence basis as alleged by the disputant member and referred to in paragraph 2 of the judgment. The ratio of this judgment is irrelevant where as here award cannot be said to be a nullity.
9. Another inference drawn by the Appellate Bench from the judgment of Kalavati's case : (1974)76BOMLR718 is equally unwarranted. The judgment in kalavati's case nowhere lays down that the plea of tenancy if raised by the defendant (non-disputant) cannot be adjudicated by the authority under the C. S. Act even when it becomes necessary for it to do so to decide the case set up by the disputant or that such plea of tenancy can be decided by the Court under the Rent Act exclusively without regard to the occasion oat which and the party by whom the same is raised. It is one thing to say that the dispute between the landlord and the tenant is cognizable only by a Court under Section 28 of the Bombay Rent act and quite another to say that plea of tenancy can be decided exclusively by such Court even if raised in defence. The question whether any such dispute is covered by Section 91 of the C. S. Act or Section 28 of the Bombay Rent Act has to be determined by reference to averments in the plaint and not by reference to what defendant says in his defence. It is well settled that the defendant cannot displace the jurisdiction of any forum by his plea in defence. If otherwise plaint averments are enough to clothe such forum wit the required authority. This is what is held by the Supreme Court in Raizada Topandas v. Gorakhram, : 3SCR214 . A suit by licensor against his licensee was held to be triable by the City Civil Court plea of tenancy of defendant notwithstanding. There was no question of the application of the C. S. Act in that case., Referenced to the judgment of the Supreme Court in the case of Vasudeo v. Board of Liquidators reported in (1964) 66 Bom LR 205 (SC) would be of some significance in the present context. award in favour of a society under the C. S. Act was challenged as being a nullity by the defendant in execution proceedings on the ground that the Registrar had no jurisdiction to pass the award by adjudicating in his plea of tenancy. It was urged that the issue of tenancy can be exclusively tried by the Court under the Rent Act. Supreme Court overruled this contention and held that the Registrar or his Nominee is competent to decide even this issue raised by the defendant, when it became incidentally necessary to do so and award does not become nullity merely because the plea of tenancy raised by the defendant was tried and rejected by such authority.
10. Mr. Chabria tried to derive support for his contention to the contrary, from the observations of the Supreme Courting paragraphs 7 and 9 of the judgment in Sabhawwal's case. : 1SCR53 . Implication of these observations cannot be correctly understood unless prices point raised and decided in that case is borne in mind. firstly. there was no question that issue of tenancy can be tired by the Court of Small Causes in a declaratory suit under Section 28 of the Rent Act. Only question was as to the effect of the rejection of such plea by the O. S. Cs. award under the C. S. Act. The High Court and the Appellate Bench had held in that case that the award barred in the trial of such an issues in declaratory suit. In support of its view, this Court relied on the ratio of the Supreme Court judgment in Vasudev's case (1964) 66 Bom LR 205 (SC)(supra). Rather than challenging the validity of this view directly, the attack in the Supreme Court in Sabharwal's case was entirely concentrated on the validity of the award itself. The Supreme Court reversed the judgment of this High Court on the ground as discussed earlier, that the dispute raised by the Licensor against the Licensee was outside the scope of Section 91 for the Act and that the award passed on such dispute itself was a nullity and not on the ground that the O. S. D. had no jurisdiction to try the issue of tenancy raised by the defendant. After having formed its view as to the nature of the dispute form the disputant's own plaint, next question, whether the O. S. D. was competent to adjudicate plea of tenancy when raised by defendant therein did not arise for consideration thereafter. Any contrary view on such second question could not have been possible without overruling the ratio in Vasudey's case. This judgment is liable to be misunderstood and its true ratio missed if this is not kept in mind. Arguments at the bar in this case and in other cases indicate the extent to which this judgment has been in fact misunderstood. The discussion in paragraph 9 of the judgment is concentrated to examine k the scope of Section 91 of the C. S. Act with reference to the 'central question' posed in paragraph 5, which in turn refers to the dispute specified in para 2 of the judgment. It has no reference to the dispute raised by the respondent either in his written statement before the O. S. D. or the plaint in his declaratory suit. it cannot be so construed or assumed, without grossly misunderstanding the said judgment.
10-A. This is all about the reasoning of the Appellate Bench. Plaintiff can still claim injunction if prima facie case for its issuance can be said to have been made out in spite of what is discussed. It is true that the Court of Small Causes cannot be said to have no jurisdiction to entertain such declaratory suit and decide all incidental questions. But finality attached to the award and the findings therein would stand in the plaintiffs way. Inherent limitations of the holder of the flat in a building of the Co-operative Society to create tenancy, implicit in the very scheme of things also would create another hurdle, though decision thereon would depend on evidence as to the kind of the Society and circumstances in which the tenancy was created. Mrs. Pareira's case, Wpl. Civil appln, No. 1457 of 1967D/- 10-12-1970 (Bom) (supra) is a typical instance where owner of the flat could create a valid lease. lease was created therein 1953 long before the owners of the flat in the building formed a Society and the society became the owner thereof, Chandra Shivadasani's case , Spl, Civil Appln, No. 1446 of 1971, D/- 16-12-1971 (Bom) (supra) is another typical contrary instance where the lease could not have been created. In between there are societies and societies and transactions and transactions which would necessitate close examination. It is not known how the Respondent seeks to get over these hurdles in the present case. Mr. Chabria could not satisfactorily explain. No prima facie case is made out and prayer for injunction shall have to be rejected. I have tried to limit my observations strictly to what was necessary at this interlocutory stage refraining from prejudicing anything that i not already judged under the binding authorities.
11. Rule is accordingly made absolute.
12. The order passed by the Appellate Bench is set aside.
13. In the circumstances of the circumstances of the case, there will be no order as to costs.
14. Petition allowed.