HIRAMAN NATHUJI VAIDYA Vs. DEWAKRIPA SAHAKARI GRIHA NIRMAN

JUDGEMENT

(1.) The original-defendant has filed this writ petition challenging order dated 9. 6. 2005 passed by the 4th Joint civil Judge, Senior Division, Nagpur, below exhs. 12 and Exh. 14 in Special Civil Suit No. 223 of 2003. Said suit has been instituted by present respondent, an unregistered body i. e. proposed Co-operative Housing Society through its Chief Promoter for specific performance of contract against present petitioner. The present petitioner filed application in that suit for its dismissal on the ground that respondent - plaintiff is not legal entity at all. Thereafter, the respondent filed application under Order 1, Rule 8 of Civil Procedure Code, seeking permission to sue on behalf of unincorporated body and its members. The said application was opposed by the petitioner. By common order mentioned above, the Court below has allowed application under Order 1, Rule 8 of c. P. C. and has rejected the prayer of the petitioner to dismiss the suit.

(2.) Considering the nature of controversy, at the request of parties, matter has been heard finally at the stage of admission itself and Rule is made returnable forthwith. I have heard Shri Dhoble, learned Counsel for the petitioner and Shri Giradkar, learned Counsel for the respondent.

(3.) First submission of Shri Dhoble, learned counsel is that the suit ought to have been filed by a registered Cooperative Society and present respondent could not have instituted it at all. The second contention is that application under Order 1, Rule 8 of C. P. C. ought to have been filed along with suit itself and Court below could not have entertained such an application in a suit which was not validly instituted at later point of time and could not have allowed respondent - plaintiff to cure that defect. Lastly, he has argued that in any case the court below has not found that there was any community of interest insofar as alleged members of respondent unregistered co-operative society are concerned. He contends that names and details of those members are also not disclosed and hence even on merits, impugned order shows non-application of mind. He has relied upon the judgment of this Court in the case of (Mathura Bhuvan Co-op. Housing Society Vs. Official Liquidator) , reported at 2003 (5) Bom. C. R. (O. O. C. J. ) 481 : 2004 (1) Mh. L. J. 733 and judgment of Karnataka High Court in the case of (Narayansa Vs. Ramakrishna) , reported at 1998 (2) Civil L. J. 850.