(1.) THE short facts of the case appear to be that the petitioner, Jugalkishore Ramnaresh Ray, claiming himself to be the President of Murli (Satellite) Owners' Association (hereinafter referred to as "the Association" for the sake of convenience), which, as per him, is a registered non-trading Association, has preferred the present petition for challenging the order passed by the Tribunal dated 27. 7. 1994 in below Application for leave to prefer appeal being Misc. Application No. 4/1994.
(2.) IT appears that five members of Rushvina Park Cooperative Housing Society Limited filed a Lavad Suit No. 544 of 1992 under Section 96 of the Gujarat Cooperative Societies Act (hereinafter referred to as "the Act") for the declaration and the perpetual injunction to the effect that the transaction of the society, if any, be declared as illegal and void and the Society and one Nathabhai Patel be restrained from making any construction over the land of common plot of the Society and it was also prayed in the said suit that the Society be restrained from admitting any person as member other than the original 404 members of the Society and the Society be further restrained from creating in interest of any third party over the land. In the said suit, it appears that as neither Society, nor Defendant No. 2 therein, namely Nathabhai Patel had filed any reply, the matter proceeded ex parte and the learned Nominee, based on the evidence available on behalf of the plaintiff, passed the judgement and award dated 18. 8. 1992, whereby the suit was decreed. The petitioner, claiming in capacity as the President of the Morbi (Eralite) Owners' Association (which is, as stated by Mr. Shah, learned Counsel for the petitioner, a typing mistake and it should be treated as 'murli (Satellite) Owners' Association), preferred Appeal No. 40 of 1994 against the judgement and award of the learned Nominee dated 18. 8. 1992. However, as the appellant therein was not party in the suit proceedings before the learned Nominee, Misc. Application No. 4 of 1994 was also preferred for leave to prefer appeal on the ground that the petitioner was aggrieved by the aforesaid decision of the learned Nominee. The Tribunal, after hearing both the sides, passed the order dated 27. 7. 1994, whereby on merits, the Tribunal found that there was no interest of the appellant - applicant and, therefore, leave could not be granted and, therefore, the applicant has been dismissed. It is under these circumstances, the petitioner has approached this Court by preferring the present petition.
(3.) THE learned Counsel for the petitioner mainly contended that as the petitioner was admitted as a nominal member vide Resolution of the Society dated 29. 11. 1991 and the contribution was also accepted by the Society vide Receipt dated 28. 1. 1992, copy whereof is produced at Annexure A and B respectively, the Tribunal ought to have granted leave to prefer appeal to the petitioner, since the petitioner could be said as aggrieved by the judgement and award of the Nominee, which as per the petitioner was collusive or ex parte. He submitted, that the Tribunal has committed error in not granting leave to prefer appeal and, therefore, this Court may quash the order of the Tribunal and may direct the appeal to be heard on merits.