1. The dispute that is brought before this Court by the present petition concerns approximately about 2/3rd area of a flat which is a part of the property of Mazgaon Terrace Co-operative Housing Society. Respondent Usha Tandon sought relief of possession under the summary procedure as was provided by Section 41 of the Presidency Small Cause Courts Act, 1882 (hereinafter called 'the Act'), as it stood prior to its amendment by Mah. XIX of 1976. She filed the present application dated November 29, 1966 asserting that the petitioner herein was a mere licensee and his licence had been put an end to by giving a notice of August 3, 1966. In reply to the summons, the petitioner raised the defence, including the protection as a tenant. It appears and it is not in dispute that under Section 42-A of the Act defence of tenancy was tried and by an order dated August 17, 1973 the same was negatived. An appeal taken under Section 42-A of the Act failed, as is evident from the order of October 18, 1977. After the preliminary issue was so decided when the matter was taken up the petitioner resisted the order before the Court of Small Causes, Bombay, on the ground that the respondent was not entitled to any such order, she having ceased to possess the entitlement by reason of the fact that the property belonged to the Mazgaon Terrace Co-operative Housing Society, which is a co-operative society. By the impugned order, the Court of Small Causes turned down that objection under Section 43 relying upon the earlier order made under Section 42-A of the Act. That order was made on July 17, 1978, after which the present petition has been filed in this Court giving challenge to all these orders, i.e. one made under Section 42-A as well as under Section 43 of the Act.
2. It is not necessary for the purpose of this petition and also for the purpose of making the eventual order to enter upon the detailed submissions made by both the learned Counsel in support of the petition as also in opposition of the claim in the petition. Suffice it to say that originally the building concerned where respondent claims to have a tenanted flat was the property of one Syed Abdul Hamid Kadri. The said property was mortgaged with the trustees of one trust, A suit came to be filed, being Civil Suit No. 3 of 1958 in which the property was taken charge of by the Court Receiver. That suit was decreed in 1962 and in execution of that decree, the property was put on auction on October 6, 1965, Before the date of auction, it appears that a cooperative society, i.e. Mazgaon Terrace Co-operative Housing Society Ltd. was registered some time on August 15, 1965. That society eventually gave a bid and purchased the property in auction. The respondent-original applicant, Smt. Usha Tandon, appears and claims to have been admitted to be a member of that society. It further appears that she is claiming that the entire property was allotted to her some time in November 1965. It may be mentioned that the petitioner is claiming that he was also entitled to be the member and he further asserts that he has paid the membership fees of that society. During the trial of the preliminary issue, one Danis Michael Patrao has been examined who appears to have stated that he was the secretary of the society. He has stated that the respondent herein was a member of the society since the beginning. In the cross-examination, he has stated that negotiations were started after September 1963 when the High Court put up the building for sale. He was not possessed of the minutes of the society and the record was with the Registrar. The flats were to be allotted to persons who were occupying as tenants as the first choice and then to the actual occupiers or licensees with tenants' permission. The intending members were asked to pay certain amounts.
3. Admittedly, the matter was taken by the respondent under Chapter VII of the Act which deals with recovery of possession of immovable property in summary proceedings contemplated by Section 41 of the Act. The proceedings herein are permissive and not compulsory, (See Bai Maherbai v. Pheros Shaw AIR Bom. 556 : 1927 19 Bom. L.R. 1220 By very nature of an application the same do not partake into the character of a suit nor the order sought be treated as decree (See Nulinakhya v. Shyam Sunder : 4SCR533 ). Under Section 43, the party is entitled to an order for possession only upon Court's satisfaction that such party is entitled to apply under Section 41 of the Act. The explanation to Section 43 shows that the occupant, against whom such an order is sought, can show that the person claiming an order for possession should not be granted the relief by reason of the fact that the initial title has been determined previous to the date of the application. It is implicit in Section 43 that not only the person claiming to apply under Section 41 should possess the initial entitlement to have that order but also the party against whom such an order is sought can show cause in summary manner that there is a change in that title so that summons should be discharged.
4. The nature of jurisdiction and the provisions of Section 43 of the Act and that of explanation to it were considered by this Court in the case of K.M. Motwani v. Albert Sequeira AIR Bom. 18. There, this Court has ruled that this jurisdiction is a special and limited jurisdiction entitling the party to recover possession in a summary procedure. The Explanation to Section 43 is to prevent the Small Cause Court, which is a Court of summary jurisdiction, from enquiring into and investigating into questions of fact. If an application under Chap, VII can be maintained by a person not under the original title but under a different or subsequent title, then the Small Causes Court would have to go into questions of titles, and that is exactly what the Legislature wanted to prevent.
5. In spite of this position when it appears the matter was raised under Section 43 of the Act before the Court of Small Causes, that Court by the impugned order merely relying on the earlier order turned down the objections of the petitioner. Indeed it is clear that the learned trial Judge while making that order did not keep in view the provisions of Section 43 nor that of the explanation to Section 43. These require not only that the party must satisfy the Court that his application was maintainable and that he was entitled to the order as provided by Chap. VII but these also entitle the opponent to show cause within the contemplation of the explanation (See K.M. Motwani v. Albert Sequeira, supra). That being the position of the order made eventually under Section 43 of the Act, the same is clearly unsustainable. It must be mentioned in the present petition that not only the order made under Section 43 is challenged but there is a challenge to the order made under Section 42-A of the Act also on the earlier occasion. But as the eventual order is found to be made not in keeping with the provisions of law, it is not necessary to consider the challenge with regard to the order made under Section 42-A of the Act. That can well be assailed in case the petitioner is required to challenge the eventual order required to be made under Section 43 of the Act.
6. As far as the concept of ownership of the flats allotted by a co-operative society is concerned, the principles have been laid down by this Court in the case of Bandra Green Park Co-op. Housing Socy. v. Dayadasi : AIR1982Bom428 . It was pointed out there that the ownership of flats in such cases vests partly in the society and partly in the members who are entitled to possession of the flats as an incident of their membership or share holding in accordance with the scheme of the bye-laws of such society. The petitioner, therefore, was entitled to raise the question with regard to the title on the basis of which the order for possession was being sought. Not only the entitlement to have such an order has to be established but also there has to be a consideration with regard to the cause shown by the opponent against whom the order is sought. It is not an ample answer that while deciding the matter under Section 42-A, some finding was recorded for the purpose of adjudicating the matters under Section 43 of the Act.
7. The whole controversy, therefore, has not been properly appreciated that was required to be appreciated under Section 43 of the Act before making the order. The ends of justice, therefore, will be met by setting aside the impugned order made on July 17, 1978 and directing the Court of Small Causes to permit the parties if they so choose to tender any further material and to hear them and to decide the matter according to law and keeping in view the position of co-operative societies and their allottees as: is settled by this Court. As the matter is pending for quite a long time, it is expected that the same would be decided as early as possible or at the latest by the end of January 1983, so that the parties know where they stand as far as their respective claims are concerned. The parties to appear before the Court of Small Causes on November 5, 1982 after which the Court will fix up a suitable date and try to dispose of as early as possible as indicated above the controversy between the parties. This remand does not shut out the challenge by the petitioner to the orders made under Section 42-A of the Act in case of his failure under Section 43 of the Act. It is made clear that this remanding of the proceeding is for considerations of all the matters that can be raised under Section 43 of the Act. Rule absolute in these terms with no order as to costs.