SUDHIR Vs. PANJABRAO SMURTI WARDHA DISTT

JUDGEMENT

(1.) This appeal is preferred against the judgment and decree passed by learned Principal District Judge, Wardha, in Regular Civil Appeal No. 76 of 2010 on 26-6-2012 upholding the judgment and decree passed against appellant/original defendant No. 2 by learned Joint Civil Judge, Jr.Dn., Wardha, in Regular Civil Suit No. 313 of 2005 on 19-1-2010. Heard Shri Anthony, learned counsel for the appellant and Mr. Patil, learned counsel for respondent No. 1. Respondent No. 2 is absent though served and none appears for him. With the assistance of learned counsel for the appellant and respondent No. 1, I have carefully perused memo of appeal and documents annexed to it including judgments of both the Courts below.

(2.) Shri Anthony, learned counsel for the appellant, submits that it was the case of respondent No. 1-society, which had filed a suit for possession against the appellant and respondent No. 2, that the suit premises were given on rent to respondent No. 2 and respondent No. 2 without consent and knowledge of respondent No. 1 had allowed the appellant to occupy the suit premises. This itself would show that basically the dispute between the parties was required to be adjudicated upon by the Co-operative Court as per section 91 of the Maharashtra Co-operative Societies Act. He further submits that even though respondent No. 2 was referred to as tenant in the pleadings taken by respondent No. 1 before the lower Court, such reference was only a loose reference for a member in the. society He places reliance upon the observations of this Court in the case of Contessa Knit Wear v. Udyog Mandir Co-op. Housing Society, 1980 AIR(Bom) 374 He also places reliance upon the case of M/s. Electrical Cable Development Association v. Arun Commercial Premises Co-operative Housing Society Ltd. and another, 1998 AIR(SC) 1988wherein Supreme Court has held that any dispute that touches upon the business of society has to be adjudicated upon by a Co-operative Court as per section 91 of the Maharashtra Co-operative Societies Act. He has also referred to the cases of Digambar Parshwanath Jain Mandir v. Valubai W/o. Revchand Mehta, 1961 AIR(Bom) 221, Chandrika Misir and anr. v. Bhaiyalal, 1973 AIR(SC) 2391and Ajit Mohinder Singh and ors. v. Smt. Bhani and anr., 1987 AIR(P&H) 167 in support of his contention that even though the plea of jurisdiction was not taken before the lower Court, same, if going to the root of the matter, can very well be taken even in the highest Court of the land or at any stage or in second appeal for the first time.

(3.) Shri Patil, learned counsel for respondent No. 1, on the other hand, submits that it was nowhere pleaded by respondent No. 1 before the trial Court that respondent No. 2 was a member of the society-respondent No. 1. It was only stated that the suit premises were given on rent to him and that he had without consent of society let them out to appellant who was nothing but a rank trespasser. According to him, when it was pleaded that the appellant was a rank trespasser and that respondent No. 2 was only a tenant, it could not by any stretch of imagination be said that the society was accepting the fact that respondent No. 2 was its member. Therefore, according to him, there was no application of section 91(3) to the facts and circumstances of the present case. He further submits that this case does not give rise to any question of law, muchless a substantial question of law and, therefore, this second appeal is not tenable.