C G LALWANI Vs. NEW WESTERN BUILDING

JUDGEMENT

(1.) by this petition filed under article 227 of the constitution of india, the petitioner is challenging the legality of the judgment dated September 20, 1979 passed by the appellate bench of the small causes court holding that the suit insti- tuted by the respondents in small causes court was maintainable.

(2.) the respondent no. 1 is ths builder and respondent no. 2 is a co-operative housing society. The petitioner purchased flat no. 27 in building no. 1 on September 9, 1959 from respondent no. 1 the purchasers of the various flats constituted a society which was registered on march 20, 1963- the petitioner declined to join as a member of the society. The petitioner was liable to pay the charges towards the ground rent, maintenance of lifts common lights, sanitary, water charges etc. The respondents instituted a suit for recovery of the amount of petitioner's share in the charges in the court of small causes at bombay.

(3.) the petitioner resisted the suit, inter-alia, contending that the court of small causes had no jorisdiction because the dispute between the parties was one within the provisions of section 91 of the maharashtra co-operative societies act, 1960 (hereinafter referred to as the "act") and was exclusively triable by the registrar of the co-operative societies. The trial court framed a preliminary issue about the jurisdiction of the court and dismissed the suit holding that the small causes court had no jurisdiction. The respondents carried an appeal before the appellate bench and the judgment of the trial court was reversed with the finding that the trial court had jnrisdiction to entertain the suit. The appellate bench held that the petitioner was not a member of the society and the provisions of section 91 of the maharashtra co-operative societies act had no application. The judgment of the appellate bench is under challenge in this petition.