Rajendra Kumar Sabharwal vs Smt. Lila K. Jagtiani and others

Deshpande, C. J.

The petitioner-appellant is the original non-disputant. A flat in a building belonging to disputant No. 2-Co-operative Society, was held as a member by disputant No. 1. The same was given on leave and licence basis on 1st Oct. 1962. A joint application was made to the Society by disputant No. 1 and the non-disputant for making the latter a nominal member of the Society. By-laws 66, 67 and 68 of the Society prevented a member from leasing out the flat or giving the same on leave and licence basis to any person who is not enrolled first as a nominal member and previous permission for such tenancy or leave and licence agreement is not taken from the Managing Committee of the Society. It is pursuant to these by-laws that the non-disputant appears to have been enrolled as a nominal member of the Society on the joint application of disputant NO. 1 and the non-disputant. It is also not in dispute that the Managing Committee did pass a resolution according its permission to allow the disputant No. 1 to enter into a leave and licence agreement with the non-disputant.

The present proceedings were initiated by disputant No. 1 in the month of April 1969 against the non-disputant claiming his eviction from the flat and arrears of compensation unpaid till that date and future compensation till the date of vacating the said flat. In the written statement the non-disputant claimed to be a tenant of the said flat and denied his liability to vacate the same. He also contended that the tenancy was created with the permission of the said Society and he was enrolled as a nominal member of the said Society with that view.

By his order dated 22nd Aug. 1978 the learned Judge of the 1st Cooperative Court, Bombay, passed an award in favour of the disputants and directed the non-disputant to deliver possession of the said flat to the disputants and also pay arrears of compensation and future compensation till the date of vacating it. The claim also was decreed with costs.

Before the award was passed on 22nd Aug. 1978, disputant No. 2-Co-operative Society, also was impleaded as a co-disputant and for that purpose the plaint raising a dispute was amended with the leave of the Court. An application to that effect was made on 29th Nov. 1973 and the order allowing the same was passed on 22nd Feb. 1974. It also appears that during the pendency of the dispute before the Co-operative Court, by-law 68 (a) was amended. In addition to becoming a nominal member it also became necessary for a licensee nominal member to pay a sum of Rs. 500/-by way of security deposit. According to Mr. Punwani, the learned Advocate appearing for respondents Nos. 1 and 2 the non-disputant was not called upon to pay the said amount of Rs. 500/-, but the ''B'' share money was converted into cash and the non-disputant continued to be a nominal member because of his having paid Re. 1/- initially. It is unnecessary to go into this question as the decision thereon does not appear to us to be relevant to the point raised in this case.

Against the award of the Cooperative Court, the non-disputant preferred an appeal to the Maharashtra State Co-operative Appellate Court. Bombay. The said appeal was dismissed by the order dated 30th Aug. 1979. The validity of this judgment of the Appellate Court was challenged before a single Judge of this Court in a writ petition on the Original side of this Court. The same was dismissed summarily by the learned single Judge. Hence this appeal under clause 15 of the Letters Patent.

We are unable to see any force in this appeal. The contention of Mr. Dhanuka. the learned Advocate for the appellant, is that notwithstanding the amendment of the plaint during the pendency of the dispute before the Co-operative Court in the year 1973 and notwithstanding the impleading of the Co-Operative Society as disputant No. 2, the Society has not indicated any interest in the proceedings initiated by disputant No. 1 against the non-disputant or in the possession of the flat for which the proceedings were initiated. Mr. Dhanuka, therefore, contends that the Society being in the circumstances merely an idle party, the dispute essentially remains between member-licensor and the licensee and is not cognizable by the authorities contemplated under Sec. 91 of the Maharashtra Go-operative Societies Act, 1960. Both the trial Court as well as the Appellate Court have held that the said Society became a co-disputant to ensure possession of the flat for its member as occupation by member alone is contemplated under the by laws of the said Society. It is pertinent to note that the amended plaint indicated how the Society also was interested in evicting the non-disputant and ensure possession of the flat for the occupation by its member. Admittedly, the non-disputant-appellant did not even care to file a written statement and challenge the averments made in that regard. Both the Courts below have accepted the disputants'' case to that effect. If it is found that the Society as a co-disputant is interested in taking possession of the flat from the non-disputant and see to it that it remains in possession of its own member, disputant No. 1, then the dispute becomes not only between a member and the licensee but also between the Society and its member, on the one side, and the non-disputant, who admittedly was inducted in the flat by disputant No. 1. on the other. These facts found are sufficient to meet the challenge of lack of jurisdiction under Sec. 91 of the above Act.

The contention of Mr. Dhanuka that the Society has no cause of action also is liable to be rejected on the same ground. If the by-laws contemplate that ordinarily the flat should be in possession of its member and if the Society is a party to the proceedings for eviction against such non-tenant for the sake of making the said flat available for the occupation of its member, the Society cannot be said to have no cause of action against the actual occupant of the flat. This contention is, therefore, devoid of any substance.

Mr. Dhanuka then contends that the non-disputant continued to occupy the said flat with the previous permission of the Society, and as long as breach of the by-laws is not alleged, the Society or the member cannot claim eviction of the non-disputant-appellant The underlying assumption that no breach of the by-laws is alleged is based on the contention that the Society has accorded its sanction or permission for inducting the non-disputant as the licensee in the said flat. The assumption is ill-founded. Unfortunately, this point does not seem to have argued before the fact finding Courts below at all. but the same was sought to be argued before us. There is, however, no dispute about the facts in the present case. There does exist a resolution of the Managing Committee of the Society according its sanction to disputant No. 1 to enter into leave and licence agreement with the non-disputant. Mr. Dhanuka is right in contending that the said resolution does not contemplate fixing any period during which the leave and licence agreement was to remain effective. It is, however, not in dispute that the first leave and licence agreement was for eleven months. It is open to the fact finding Courts to construe the said resolution of the Managing Committee in the light of the contemporaneous leave and licence agreement and hold that permission was intended to be for the period during which that leave and licence agreement was to operate. Looked at from this point of view, the possession of the non-disputant must be deemed to have been without permission after the expiry of the first eleven months and consequently in breach of by-laws 66 and 67 of the Society the Society was entitled to the possession of the flat on this ground also.

It is true that this ground is not spelt out in so many words in the pleadings. Unfortunately, the non-disputant has not cared to file any written statement after the pleadings were amended on impleading the Society as a co-disputant. The case of the Society that it wants possession of the said flat for the occupation of its own member implies also the claim that the person actually in possession such as the non-disputant was remaining in possession in breach of the by-laws.

Mr. Dhanuka then strenuously argued that the fact-finding Courts have not applied the test laid down by the Supreme Court to determine the true relationship between the non-disputant-appellant and the disputants-respondents Nos. 1 and 2. We do not think it necessary to go into the larger question as to when the lease agreement can be said to have come into existence and when the agreement turned out to be one of mere leave and licence. Suffice it to note that admittedly the building belongs to a Co-operative Society as also the flat in dispute there. The non-disputant does not claim to be a tenant of the Society nor does he claim the Society as his landlord. It is well-settled that the members of the Society in such cases are entitled to personal possession of the flats as such members of the Society, and they can claim to remain in possession only in accordance with the by-laws of the Society. Once the co-disputant Society is not claimed to be the landlord by the non-disputant, the question of his being a tenant of the said Society cannot arise. His claim to be a tenant even of disputant No. 1 cannot arise as long as the said tenancy is not shown to be with the permission of the Society. We have already seen how even the leave and licence agreement lacked previous sanction of the Society subsequent to the expiry of the first leave and licence agreement.

There is thus no merit in this appeal and the same is dismissed with costs.

Mr. Dhanuka applies for leave to appeal to the Supreme Court. Leave refused.