NILESH SANGODKAR Vs. LAXMI ROHIDAS CALANGUTKAR

JUDGEMENT

(1.) The parties were put to notice that the matter would be finally heard at the admission stage. Rule. Learned Counsels appearing for the parties waive service.

(2.) The applicant has challenged in revision the legality and propriety of the order dated 13/12/2017 passed by the Civil Judge, Junior Division, 'F' Court, Mapusa pursuant to which she dismissed the application for the rejection of the plaint under Order VII Rule 11(b),(c) & (d) of the Civil Procedure Code. The impugned order was unjust, illegal and arbitrary and would cause gross miscarriage of justice if allowed to stand. The learned Judge had failed to consider the case of the applicant that on the basis of the statements made in the plaint the same appeared to be barred by law and therefore ought to have rejected the plaint under Order VII Rule 11(d) of the Civil Procedure Code. The impugned order constitutes an illegal exercise of discretion/jurisdiction by the Trial Court inasmuch as the learned Trial Court failed to appreciate that in terms of the statements made in the plaint, the same appeared to be barred by law in view of the specific provisions contained in the Multi-State Co-operative Societies Act, 200 The impugned order was illegal inasmuch as the learned Trial Judge failed to appreciate that on the basis of the statements made in the plaint, the same appeared to be barred by law although the prayers in the suit were styled in such a manner so as to camouflage the actual relief, which was otherwise barred by law. The impugned order had therefore to be quashed and set aside and the application for rejection of plaint under Order VII Rule 11(b),(c) & (d) had to be allowed.

(3.) Heard Shri P. Lotlikar, learned Advocate for the applicant who submitted that the suit filed by the respondents no.1 to 8 for declaration and injunction was barred by the Multi-State Co-operative Societies Act and in that context invited attention to Rule 37 sub-rule (14) thereof. He further invited attention to the pleadings in the plaint and submitted that there was no question of any fraud being played on the respondents no.1 to 8. They were duly served as evident from the pleadings in the plaint but had not participated thereafter. In case there was any objection to the same, the remedy lay by recourse to Rule 37 of the Multi-State Cooperative Societies Act, 2002 and the Rules framed thereunder ('The Act' and 'the Rules' for short) and therefore the impugned order as passed was liable to be quashed and set aside. He placed reliance in Madanuri Sri Rama Chandra Murthy V/s. Syed Jalal, (2017) AIR SC 2653 and that in State Bank of India V/s. Mr. Aurelia Jose Da Costa and Others. [CRA No.13/2013] and submitted that the plaint was liable to be rejected.