HILLARY NEWNES Vs. LAXMI T GURBAXANI

JUDGEMENT

(1.) BY this petition filed under Article 227 of the Constitution of India, the petitioner challenges the order dated 21 9.1996 passed by a Division Bench of the Small Causes Court at Bombay in Appeal No.109/1984. That appeal was filed by the respondents challenging the order dated 15.12.1983 passed by the Small Causes Court at Bombay in R.A.D. Suit No.3335/1969. That suit was filed by the petitioner. It is to be seen here that the suit premises are Apartment No.8 on the ground floor of Mistry Chambers, Opposite Strand Cinema, Colaba, Bombay. It appears that one Devi Tejumal Gurbaxani, of whom the present respondents are the legal representatives, filed a dispute before the Registrar of Co-operative Societies under the Maharashtra Co-operative Societies Act, 1960 claiming therein that she is a member of the Apollo Co-operative Housing Society Ltd and that the petitioner is a licensee in respect of the suit premises. She claimed that she had entered into a leave and licence agreement dated 3.10.1966 with the petitioner. She therefore claimed an award directing the petitioner to vacate the suit premises as the licence had come to an end. The Registrar, it appears, finding that it amounts to a dispute under section 91 of the Co-operative Societies Act, referred the dispute to his nominee under the provisions of the said Act as they existed then. On this reference being made, the proceedings were registered before the nominee of the Registrar as ABN/332/1968. It appears that in those proceedings an award dated 19.12.1968 passed treating the petitioner as a licensee of the suit premises and directing him to vacate the suit premises within a fortnight of the passing of the award, i.e. 15.1.1989. The petitioner thereafter filed R.A.Declaratory Suit No 3335/1969 before the Small Causes Court at Bombay and there is no dispute before me that this suit was filed under Section 28 of the Bombay Rent Act. In the civil suit, the award passed by the nominee of the Registrar under the Co-operative Societies Act was referred to and it was stated that by that award the petitioner has been directed to vacate the suit premises. In paragraph 4 of the plaint, the petitioner averred that the award of the nominee of the Registrar is without jurisdiction and a nullity. In the suit, the petitioner-plaintiff claimed a declaration that he is a lawful tenant of the suit premises and he also claimed an injunction restraining the landlady from executing the award passed by the nominee of the Registrar under the Co-operative Societies Act. As stated above, the civil suit was decided by the trial court by its judgment 15.12.1983 and the trial court declared that the petitioner is a lawful tenant of the defendant in respect of the suit premises. Against this order, an appeal was preferred before the appellate court by the legal representatives of the original landlady, who are the present respondents. By order dated 31.7.1987, the appellate court framed additional issues in the suit. They are :

(2.) SHRI Shah, learned counsel appearing for the petitioner, urged before me that the dispute between the landlady and the petitioner regarding the suit premises was not a dispute touching the business of the society and therefore a dispute under section 91 could not have been entertained by the Co-operative Court. For this proposition, he relied on a judgment of the Supreme Court in the case of Sabharwal v. Guna Amrit AIR 1972 Supreme Court 1893. In the submission of Shri Shah, as the dispute was not within the jurisdiction of the nominee as it did not touch the business of the society, it was a nullity and therefore the bar under section 163 of the Co-operative Societies Act will not operate. In so far as this contention urged by Shri Shah is concerned to the extent that he says that the award passed by the nominee would be a nullity as the dispute between the parties did not touch the business of the society, it appears to be well founded. In my opinion, he is also right in submitting that if the award passed by the nominee is a nullity, then the bar of section 163 of the Co-operative Societies Act would not operate. However, then the question that still arise is: if the award passed by the nominee is a nullity and if the bar of section 163 does not operate, then whether the civil court under section 28 of the Bombay Rent Act will still have jurisdiction to entertain a suit where a declaration is claimed in relation to award that it is a nullity. Shri Shah, however, conceded before me that a suit merely seeking a declaration that the award passed by the nominee is a nullity would not lie before a court under section 28 of the Bombay Rent Act because then it would be the main question to be decided in the suit. However, in the submission of Shri Shah where the question of nullity of the award does not arise as a main question but if it arises as a question incidental for deciding the main question in the suit, then the court under section 28 of the Rent Act will have jurisdiction to entertain that suit. Therefore, the real question that is to be considered and decided in this petition is whether the award passed by the nominee of the Registrar is a nullity or not was an incidental question in the suit or was it the main question in the suit.

(3.) IN the result, therefore, the petition fails and is dismissed. Rule discharged with no order as to costs.