KAMLA GOBINDRAM BUXANI Vs. BARDRIPRASAD PANDEY

JUDGEMENT

(1.) The petitioner is a member of the Co-operative Housing Society Known as "Usha Sadan Co-operative Housing Society Ltd. hereinafter referred to as 'the Society'. A flat No. 30-B in its building on the fourth floor is allotted to the petitioner as such member. Respondent No. 1 came to occupy the said flat apparently, at any rate under a leave and licence agreement dated 16th April, 1963. This licence was revoked in 1967 . The respondents'; occupation of the flat was not approved by the Society on various grounds and it was insisting on his dispossession by threatening action. The Society and the petitioner ultimately agreed to make a common cause to evict him for reason of their own and, therefore raised a dispute before the Registrar, Co-operative Societies, under Section 91 to 96 of the Maharashtra Co-operative Societies Act, 1961 (hereinafter referred to as the C. S. Act'), claming possession of the flat from respondent No. 1. Occupation of the premises in breach of the Bye-laws and Regulations of the Society was the basis of their claim in this dispute. The respondent inter alia claimed to be the tenant of the flat. The Officer on Special Duty (hereinafter referred to as the O. S. D.) to whom the dispute was k referred for disposal by the Registrar. rejected his plea of tenancy and passed an award on 23rd September, 1969 directing that the possession of the flat be handed over to disputant No. 1- the petitioner. The said award was confirmed in appeal on 29th September, 1970.

(2.) The unsuccessful respondent then instituted a suit being R. A. Declartory Suit No. 753/5128 of 1970 in the Court of Small Causes at Bombay. He claimed to be a lawful tenant of the flat in dispute and pleaded that the O. S. D. had no jurisdiction to adjudicate his plea of tenancy. Respondetn No. 1. in the meanwhile took out Interlocutory Notice No. 4640 of 1970 for such injunction pending the disposal of the suit restraining the defendant (petitioner) from executing the award. Ad-interim injunction was granted, but ultimately discharged by the trial Judge on 7th June, 1971, at the final hearing of the notice. On appeal by respondent No. 2 to the Appellate Bench, the said injunction was restored. It is this order dated 24th September, 1973 that is challenged in this Special Civil Application. Strangely enough, the Society is not impleaded to these proceedings though it is one of the award-holders.

(3.) Mr. khemani, the learned advocates appearing for the petitioner, contends that Court of Small Causes exercising powers under Section 28 of the Bombay Rents Hotel and Lodging House Rates Control Act, 1947 (hereinafter referred to as "the Rent Act"). has no jurisdiction to grants such injunction preventing the petition form proceeding to execute his award under Section 98 of the C. S. act from the City Civil Court or the High Court as these Courts are not subordinate to it within the meaning of Section 41(b) of the Specific Relief Act of 1963. Mr. Chabria, the learned advocate appearing for the respondent, has two fold answer to this contention. Section 41 (b) dealing with permanent injunctions. contends Mr. Chabria has no application to temporary injunctions, granting of which under Section 37 of the said Act is in terms governed by the Civil Procedure Code and Section 41 (b) also a cannot apply to the proceedings before Courts and authorities created under the special enactments, there being no standards to enactments, there being no standards to determine the subordination of one to the other. Decision on this question appears to me to be unnecessary in the view I am taking of Mr. Khemani's next contention.