MALATI MURTHY Vs. ASHA V GUPTA

JUDGEMENT

(1.) THESE 3 appeals arise out of the judgment and award passed in the dispute bearing No. C-IV/460/2964/78/1986 dated 29-5-1987. The Respondent Society namely Sai Lata Co-operative Housing society Ltd. , filed the dispute in the year 1978 against Mrs. Malathi Murthy the appellant in the first appeal and Mrs. A. V. Gupta, the appellant in the last appeal i. e. Appeal No. 398 of 1987 for the reliefs on the facts that the said Society is a Tenant Co-partnership Co-operative Housing Society registered under the Maharashtra Co-operative Societies Act, 1960 and Mrs. Malathi Murthy was a tenant-co-partner member of the said Society holding flat No. 16 on the 3rd floor of Shri Laxmi Building of the said Society, while the opponent No. 2 i e. the appellant in Appeal No. 398 of 1987 was alleged to be in actual possession and allegedly inducted by Mrs. Malati Murthy without authority from the Society. Since Mrs. Asha V. Gupta was claiming through the member namely Mrs. Malathi Murthy it was averred in the plaint that the dispute against both the opponents was maintainable under section 91 of the M. C. S. Act as they were proper and necessary parties. For the purpose of causes of action the contentions were that the allottee namely Mrs. Malathi Murthy was required under the Society's Bye-laws, rules and Regulations to occupy and use the said premises in accordance with the Bye-laws and Tenancy Regulations, herself and members of her family and the allottee is prohibited from allowing the premises to be used by strangers and that too without the permission of the Society. Then it is alleged that Mrs. Malathi Murthy the member had without the Society's consent, unlawfully and illegally sublet and/or parted with possession to mrs. Asha V. Gupta, the opponent No. 2. Against the opponent No. 2 the allegations are made that she has been a source of nuisance to all the residents in the Society's building. Since the member Mrs. Malathi Murthy is not interested in residing in the suit premises, therefore, she had let out the same unlawfully and without the Society's consent and did not care to comply with the requisition made by the Society from time to time for removal of opponent No. 2 i. e. Mrs. Asha V. Gupta from the said premises. The member was also alleged to be irregular in payment of society's dues and inspite of repeated demand for the payments, did not pay a sura of Rs. 5,498. 95 as their dues, as on 1-8-1978. She also did not make the monthly contribution which was Rs. 275. 90. Therefore, the Society terminated her interest in the suit premises including the tenancy rights and called upon her to hand over possession of the premises to the Society at the end of the month next after one month of the receipt of the notice which was of 2-5-1978 in the form of a letter. Therefore, it was prayed for an award for ejectment against Mrs. Malathi Murthy and also for the amount of Rs. 5,498. 94. They also asked for an award against Mrs. Asha V. Gupta as an occupant without their permission. In the said letter-cum-notice the society informed the member Mrs. Malathi Murthy that her rights of tenancy were terminated as she was a tenant co-partner member of the Society and she was called upon to deliver possession and to pay Rs. 4,335. 34 towards the outgoings due upto 31-3-1978. The Society's Managing Committee resolved to take action on 18-8-1978. The dispute application was filed on 15-11-1978 which was registered on 12-12-1978 by the Court.

(2.) ON 23-9-1980 the award was passed by the Co-operative Court no. I, Bombay. The effective order is as "the decree and award between the disputant-Society and the opponent No. 1 in terms of consent terms signed by them and filed in these proceedings on 17-9-1980. No order as to costs, between them. Decree for possessioa against opponent No. 2. The opponent No. 2 to vacate and hand over vacant possession of the suit premises to the disputant-Society on or after 31st October, 1980. No order as to costs against the opponent No. 2. " It is observed in this judgment that on evidence of one R. Jairam the Treasurer of the disputant-Society recorded on 16-9-1980, the gardes namely thre opponent No. 1 and the society sought adjournment to next day. On 17-9-1980 the Consent Terms were filed settling the dispute between the Society on the one band and the opponent No. 1 on the other hand. The opponent No. 1 submitted to the decree for possession, but it is provided that if she would pay to the Society outstanding dues and costs as there in provided subject to certain undertaking recorded in the consent terms the decree was not to be executed. The consent terms further provided that in the event of the opponent No. 1 paying off the dues in full, the Society would help the opponent No. 1 to recover possession of the suit premises from the opponent No. 2 in the manner provided therein. The Court recorded further that the opponent no. 2 had not cared to file written statement nor she contested the matter. Mr. Jairam, the witness for the Society deposed that the opponent No. 2 had been inducted into the suit premises by the opponent No. 1 without society's consent and further such statements have been made. It is noted in the roznama of the proceedings in the Lower Court that on 22-8-1979 for the opponent No. 2 Vakalatnama was filed i. e. somebody on behalf of opponent No. 2. There is no name of the Advocate who has filed Vakalatnama, in the roznama of 22-8-1979. Thereafter the matter was adjourned to 24-9-1979, 9-10-1979 and 14-11-1979 which the last shown for settlement. All the parties were absent on 14-11-1979. They were declared ex-parte and last date for settlement was fixed as 31-12-1979. On 4-2-1980 the opponent no. 2 and Advocate were recorded absent. It was again adjourned to 8-44980. On 8-4-1980 the opponent No. 2 and her Advocate were again abseat. So declared ex-parte, as no written statement was filed. OB subsequent dates these was no mention of presence or absence of opponent No. 2, except on 14-8-1980 where except the disputant others were noted as absent. First time on 16-9-1980 we find that the roznama is written as, opponent no. 2 absent though served and already declared ex-parte on 8-4-1980. On 17-9-1980 consent terms were filed between the opponent No. 1 and the society. The consent terms were for recording certain material facts which are also relevant for reconsideration amongst others. So decree against the opponent No. 1 as prayed for in Clause (a) of the dispute application. However the prayer Clause (a) of the dispute has nothing to do with granting of any relief to the plaintiffs. It shall be Clause (b), which relates to decree and award against the opponent No. 1 for money as well as possession of the suit premises and Clause (c) is specifically for directions to hand over vacant and peaceful possession of the suit premises to the disputant. The consent terms recorded further that, the Society, however, undertakes to the Court that they would not execute such a decree for possession for a period of 8 months from the date hereof. ' The opponent No. 1 undertook to pay the amount of arrears of monthly contributions Rs. 16,983. 50 with interest thereon due upto 31-8-1980 by convenient instalments recorded therein, to pay Rs. 1,400/- towards reimbursement of Court expenses to the disputant-Society. In compliance with the abovesaid undertakings, the society would not execute, permanently, decree for possession against the opponent No. 1 against the premises in question. Then it is said that if the society obtains decree for possession in respect of the suit premises against the opponent No. 2 in these proceedings and if the opponent No. 1 deposits, in advance, the amount required to be spent for execution proceedings against the opponent No. 2. the Society either by itself should take steps or authorise the opponent No. 1 to take such steps on it's behalf, for executing the award for possession and to recover the same from the opponent No. 2 and on recovery of possession, hand over possession to the opponent No. 1 for personal occupation by her and the members of her family. The opponent No. 1 would be allowed to occupy and use the premises by herself and by the members ox her family as a tenant co-partuer member of the society. They also provided for eventuality of taking another proceedings, if required, for eviction of the opponent No. 2 mutually assisting for that purpose. The opponent No. 1 undertook that, on restoration of possession she would occupy the premises by herself and by the members of her family and would not allow any person to occupy and use the suit premises on any basis whatsoever except with the Society's prior permission in writing.

(3.) THE learned Judge while passing the award on 23-9-1980 passed the award against the opponent No. 2, the appellant in the last appeal treating her as ex-parte. So according to the undertaking the award was not to be executed for a period of 8 months against the opponent No. 1. On 31st July, 1981 it was executed against the opponent No. 2 and she was dispossessed