TMI Blog2019 (1) TMI 2009X X X X Extracts X X X X X X X X Extracts X X X X ..... set aside by the Maharashtra State Co-operative Appellate Court. The Hon'ble Supreme Court in case of RAVEESH CHAND JAIN VERSUS RAJ RANI JAIN [ 2015 (2) TMI 1386 - SUPREME COURT] has after construing Order XII Rule 6 of the Code of Civil Procedure, 1908 has held that a bare perusal of the said provision makes it clear that it confers wide discretion on the Court to pass a judgment at any stage of the suit on the basis of admission of facts made in the pleading or otherwise without waiting for the determination of any other question which arose between the parties - It is held that since the said provision permits the passing of judgment at any stage without waiting for determination of other questions, it follows that there can be more than one decree that may be passed at different stages of the same suit. The principle behind Order XII Rule 6 is to give the plaintiff a right to speedy judgment so that either party may get rid of the rival claims which are not in controversy. The Maharashtra State Co-operative Appellate Court held that the appeal thus filed by the society was not tenable. The Cooperative Appellate Court accordingly directed the society to consider the c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h a direction to hand over possession of the suit flat to the plaintiff and allow the plaintiff to occupy the flat as an agent of the Court Receiver. 3. The plaintiff has filed a suit inter alia praying for an order and decree to hand over vacant and peaceful possession of the suit flat to the plaintiff and prayed that in all the record of the defendant no.1 society, the plaintiff be shown as the owner of the suit flat and seeking temporary order and injunction against the defendant no.1, their servants and agent from creating any third party rights for redevelopment or otherwise in respect of the suit flat, for appointment of the Court Receiver and for an order and direction against the defendant no.1 to pay an amount of Rs.14,40,000/- towards compensation and further amount of Rs.40,000/- per month or as per the market rent with respect to future compensation till the defendant no.1 society hands over the suit flat to the plaintiff along with interest @18% from the date of filing the suit till realisation. The plaintiff has also prayed for damages of Rs.24,00,000/- along with interest @18% from the date of filing the suit till realisation, for civil contempt made by the defend ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed of by the First Cooperative Court, Bombay by an order dated 22nd November 1982. The learned Judge of the Co-operative Court rejected the prayer of the defendants with regard to the declaration that the plaintiff had no right in the suit flat. The Co-operative Court held that the Will dated 4th January 1968 tantamount to nomination under the provisions of the Maharashtra Co-operative Societies Act and Rules and the plaintiff herein was duly nominated to succeed to the shares and the flat in dispute after the death of both Smt.Shamibai Punwani and Mr.Issardas Punwani and that the defendant no.1 was bound to transfer the shares and the flat in dispute in the name of the plaintiff herein (opponent no.2 in the said dispute). 7. In so far as the plaintiff is concerned, it is held that tenancy does not stand terminated against him as he had always offered to pay all the arrears, if the flat and the shares were transferred to his name. Non-payment of the society's dues by the plaintiff was not without sufficient cause. The plaintiff himself had not committed any breach of regulations of the society as the said Mr.A.Rajam was put in possession not by the plaintiff but by Smt.Shami ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e same did not survive. 12. Being aggrieved by the said order dated 28th October 1985 passed by the Maharashtra State Co-operative Appellate Court, the said Mr.A.Rajam filed a writ petition bearing no.4853 of 1985 before this Court. In the said writ petition, the society as well as the plaintiff herein were impleaded as the respondents. The said Mr.A.Rajam and the society filed consent terms on 21st July 1999 in the said writ petition. The plaintiff was not a party to the said consent terms. 13. Under the said consent terms, the said Mr.A.Rajam and the society agreed that decree for eviction against the said Mr.A.Rajam in respect of the suit flat was confirmed subject to the deletion of the directions that the plaintiff do pay jointly or severally the sum of Rs.2543.29 to the society with interest and society's charges as per their bills from time to time. It was also agreed by them that if the said Mr.A.Rajam vacates the suit flat on or before 31st December 1999, the said Mr.A.Rajam will not be liable to pay any amount whatsoever as awarded by the two Courts below and/or otherwise. It was further recorded that the said clause did not affect any liability of society and t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... It is the case of the plaintiff that during the period when the said dispute was pending before the Co-operative Court, parties were sent for mediation of Advocate P.V. Joshi. The matter however could not be settled between the parties before the learned mediator. 19. On 17th January 2015, the plaintiff filed a suit bearing No.750 of 2015 for recovery of possession and for various reliefs. The plaintiff also filed the aforesaid two notices of motion for various reliefs. 20. Learned counsel for the plaintiff made various submissions in Notice of Motion No.735 of 2016 followed by the submissions in Notice of Motion No.1559 of 2015. Learned counsel for the plaintiff invited my attention to various documents, pleadings, orders passed by the Maharashtra State Co-operative Court, the Maharashtra State Cooperative Appellate Court and this Court in various proceedings filed by the parties against each other. 21. It is submitted by the learned counsel that the said Smt.Shamibai Issardas Punwani had executed a Will 4th January 1968 thereby bequeathing the suit flat in favour of the plaintiff by giving life interest in the said flat to her late husband. This Court had already grante ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing that the said deceased Shamibai had not only nominated her husband by separate application for nomination but also she had executed a Will in favour of her husband. The said deceased Shamibai made a subsequent Will to the effect that in case of the death of her husband, the said flat should be transferred in the name of the plaintiff herein. The Co-operative Appellate Court accordingly held that the nomination can be made by a document which is signed by a member or the nomination can be made by a statement which can be entered in a book which is separately kept for that purpose. 25. It is held that the society could have called upon for the original Will or the original writing on which the plaintiff had relied upon and could have satisfied itself about the genuineness of the documents. However, the society did not follow the procedure laid down under Section 30 of the Maharashtra Societies Act or Rule 20 of the Rules. It is held that if the society entertained any genuine doubts about the documents produced by the plaintiff herein, the society could have published a notice and could have considered the claims of rival parties. 26. It is held that if the society is satis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rticular paragraphs 5 and 6 in support of his submission that the defendants not having raised the issue of jurisdiction of civil court in the earlier round of litigation though had filed an application under section 9A of the Code of Civil Procedure, 1908 and more particularly before the Maharashtra State Co-operative Court in a dispute filed by the plaintiff, the said issue of jurisdiction of a civil court now raised is barred by the principles of constructive resjudicata. He submits that the power of court to pass a judgment under Order 12 Rule 6 of the Code of Civil Procedure, 1908 is very wide and can be exercised at any stage of the suit on the basis of the admission of facts made in the pleadings or otherwise without waiting for the determination of other questions which arose between the parties. 30. It is submitted that the principles laid down by the Hon'ble Supreme Court in case of Raveesh Chand Jain(supra) would clearly apply atleast in respect of the prayer clause (a) for seeking recovery of the vacant and peaceful possession of the suit flat by the plaintiff from the defendant society. It is submitted that the plea of adverse possession or claim of tenancy/lice ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... antial amount of expenditure on filing the proceedings for eviction of the said tenant and also in defending the proceedings filed the said Mr.A.Rajam and the plaintiff and thus the demand raised by the plaintiff for recovery of the possession in these circumstances is not an equitable demand. The defendant no.1 society has been already in continuous possession of the said flat since 1999 and has been using the said premises for the purpose of holding its meetings in the said flat and has been using the same as an office of the society. It is submitted that the provisions of Order 12 Rule 6 of the Code of Civil Procedure, 1908 does not apply to the facts of this case. 34. Insofar as the judgments relied upon by the learned counsel for the plaintiff are concerned, it is submitted by the learned counsel that the principles of law laid down by the Hon'ble Supreme Court in those judgments are not in dispute. She submits that though a right is conferred upon the plaintiff to execute the grant of Letters of Administration granted by this court, the plaintiff has to follow the requisite procedure of law in accordance with the Letters of Administration. She submits that though the s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt did not want to go for redevelopment. There is no conveyance deed executed in favour of the defendant society. If any redevelopment proposal in future, the same would be then only after obtaining prior permission of this court. She submits that this court has already granted an order of status-quo in the said notice of motion which would protect the interest, if any, of the plaintiff in the suit flat. 39. Learned counsel for the plaintiff in rejoinder submits that the so-called plea of lack of jurisdiction of this court raised by the defendant in the written statement and in the affidavit in reply to the notice of motion is not a bonafide plea and has been raised only with an intention to delay the outcome of the result of the notice of motion filed by the plaintiff under Order 12 Rule 6 of the Code of Civil Procedure, 1908. He invited my attention to the plea already raised under section 9A by the defendant before the Co-operative Court in Dispute No.131 of 2011 filed by the plaintiff raising issue of jurisdiction of the Co-operative Court to grant relief of possession sought by the plaintiff in the said dispute and raising a plea that the civil court only had jurisdiction t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s that the plaintiff had demanded possession from the defendants from time to time. The plaintiff had filed a dispute before the co-operative court within three years from the date of such demand and had filed this suit within 9 years from the date of obtaining grant of Letters of Administration from this court. 43. Insofar as judgment of the Hon'ble Supreme Court Rame Gowda (Dead) by LRs. (supra) relied upon by the learned counsel for the defendants is concerned, learned counsel for the plaintiff distinguished the said judgment on the ground that the present suit filed by the plaintiff for recovery of the possession from the defendants itself is due process of law. The said judgment of the Hon'ble Supreme Court thus would not assist the case of the defendants but would assist the case of the plaintiff. REASONS AND CONCLUSION :- 44. I shall first deal with the issue of jurisdiction belatedly raised by the defendants under section 9A of the Code of Civil Procedure,1908 in the written statement filed on 10th September,2015. It is not in dispute that the plaintiff had filed a dispute bearing no. 131 of 2011 against the defendant society before the Maharashtra Co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the suit flat and even in that situation the dispute against the encroacher i.e. the opponent no.1 society was not cognizable in the co-operative court and only civil court can dispose of the said dispute. A perusal of the said order clearly indicates that it was not the case of the defendants before the co-operative court that the defendants had become the owner by adverse possession or that the defendants was the tenant or gratuitous licensee in respect of the suit flat. In my view, the plea now raised that this court has no jurisdiction to try the plea of tenancy/gratuitous licensee raised by the defendants in this suit is not a bonafide plea but is a dishonest plea. The said plea of jurisdiction ought to have been raised before the co-operative court which was not raised admittedly by the defendants. The co-operative court accepted the plea of jurisdiction raised by the defendants on the ground that only the civil court could have entertained the said relief and having accepted the said order, in my view the society cannot be allowed to raise a plea of jurisdiction under section 9A of the Code of Civil Procedure, 1908. The defendant no.1 had raised a plea in the dispute filed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt of the Hon'ble Supreme Court in case of Tayabbhai M. Bagasarwalla vs. Hind Rubber Industries Private Limited, (1997) 3 SCC 443 which provided that the trial Court is not helpless merely because of a preliminary issue is sought to be raised under section 9A. It is held by the Division Bench that in order to ensure that section 9A is not susceptible to grave abuse at the behest of an unscrupulous defendant, it would be within the jurisdiction and authority of the trial Judge to consider as to whether the objection as to jurisdiction arises bonafide or whether it is wholly frivolous. 50. The Division Bench further made it clear that abuse contemplated a minimal enquiry by the Court, since if at that stage comprehensive adjudication were to be contemplated that would factually defeat the provisions of section 9A. It is further clarified that the provisions of section 9A would not be inconsistent with the trial Judge exercising a minimal enquiry at the threshold to satisfy the conscience of the Court that the objection of jurisdiction has been raised bonafide and is not frivolous or irrelevant exercise meant only to delay or defeat the process of the Court. 51. A perusal of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... admission of the other party can press for judgment, as a matter of legal right however, the Court always retains its discretion in the matter of pronouncing the judgment. It is held that in Order XII Rule 6, the expression or otherwise , is much wider in view of the words used therein, viz. admission of fact ..... either in the plea or otherwise, whether orally or in writing . The Hon'ble Supreme Court held that since the question of ownership was already decided in the earlier suit filed by the appellant in that matter, the said issue need not have to be decided afresh and hence on the basis of the finding of the ownership decided in favour of the plaintiff, the suit has to be decreed so far as recovery of possession is concerned. In my view, the principles laid down by the Hon'ble Supreme Court in case of Raveesh Chand Jain (supra) squarely applies to the facts of this case. The defendant in this case had specifically raised a plea under section 9-A of the Code of Civil Procedure, 1908 in the dispute filed by the plaintiff and had alleged that the Co-operative Court has no jurisdiction to grant relief of possession and determination of title and only the Civil Court h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... th the society with her husband Shri Issardas Hirasingh Punwani in respect of the suit flat. Upon the death of the Smt.Shamibai Issardas Punwani, the suit flat vested in Shri Issardas Hirasingh Punwani in pursuance of the said nomination which was not revoked. Before the suit flat could be transferred in the name of Shri Issardas Hirasingh Punwani, who had approached the society for transfer of the suit flat in the name of said Shri Issardas Hirasingh Punwani he died on 21st June, 1972. 58. The plaintiff herein thereafter had requested the society to transfer the said flat in dispute in his name on the ground that the said Smt.Shamibai Issardas Punwani had lodged with the society a copy of her Will dated 4th January,1968 with the consent of her husband assigning the said flat in dispute and relating share to the plaintiff herein and on the date of her death to herself and her husband. The society however did not accede to the said request of the plaintiff herein on the ground that the plaintiff was neither the nominee of the said Smt.Shamibai Issardas Punwani nor by her husband Shri Issardas Hirasingh Punwani in accordance with the provisions of bye-laws nor had produced any pro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by the Co-operative Court that the plaintiff had shown that his father Bhagwandas Chaudhry was adopted by Shri Issardas Hirasingh Punwani and Smt.Shamibai Issardas Punwani as their son. The Co-operative Court rendered a finding that after considering the totality of the case, it was obvious that the plaintiff was clearly named by Smt.Shamibai Issardas Punwani and Shri Issardas Hirasingh Punwani to succeed to the shares and flat after their death. The writing dated 4th January,1968 though described as the Will could also be termed as a document within the meaning of section 30 of the Maharashtra Co-operative Societies Act, 1960, the purpose of which is to transfer the interest of the deceased member according to the wishes expressed in the writing which requires to be deposited with the society during the lifetime of the member in order to safeguard the manipulation after the death of the member. 62. The Co-operative Court accordingly held that the Will dated 4th January,1968 tantamounted the nomination under the provisions of the Maharashtra Co-operative Societies Act, 1960 and the Rules. The plaintiff herein was duly nominated to succeed to the shares and the flat in dispute, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the society as per the provisions of law. The society could have called upon the original Will or the original writing on which the plaintiff herein relied upon and could have been satisfied itself about the genuineness of the document. The Co-operative Appellate Court accordingly held that the said document could be treated as an application for nomination and the society could very well admit the petitioner as a member. However, if the society entertain any doubt about the claim in writing of the plaintiff, the society could very well direct the plaintiff to produce the probate. 66. The Maharashtra State Co-operative Appellate Court held that the appeal thus filed by the society was not tenable. The Cooperative Appellate Court accordingly directed the society to consider the claim of the plaintiff herein on merits. In the operative part of the said order, the Maharashtra State Co-operative Appellate Court dismissed the Appeal No.41 of 1983 filed by Mr.A.Rajam and also the Appeal No.208 of 1983 filed by the society. It is thus clear beyond reasonable doubt that various direction issued by the Co-operative Court were upheld in the said two appeals filed by the said Mr.A.Rajam a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and this court in respect of the suit flat. The plaintiff has thus made out a case for grant of relief insofar as possession of the suit flat is concerned in this notice of motion under Order 12 Rule 6 of the Code of Civil Procedure, 1908 on the basis of various admissions in the pleadings and various orders binding on parties insofar as judgment for recovery of possession is concerned by applying the principles laid down by the Hon'ble Supreme Court in case of Raveesh Chand Jain (supra). 69. I am thus inclined to grant the relief sought in the Notice of Motion No.735 of 2016 in terms of prayer clause (a). 70. I, therefore, pass the following order :- (i) Notice of Motion No.735 of 2016 is accordingly made absolute in terms of prayer clause (a). The defendant society is directed to handover the vacant and peaceful possession of the flat described in prayer clause (a) to the plaintiff within four weeks from today and shall comply with this order within the same period. (ii) Insofar as other reliefs sought by the plaintiff in Suit No.750 of 2015 are concerned, those reliefs would be considered by this court on its own merits at the stage of hearing of suit. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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