BAKUBHAI KESHAVLAL SHAH Vs. BABULAL PRABHUDAS SHAH

JUDGEMENT

(1.) THE appeal arises out of the judgment and award passed by the learned Judge of the Co-operative Court No. 2, Pune on 29-8-1986. The impugned order is against the appellant for eviction of the appellant from the premises in favour of the respondent No. 1 and for payment of Rs. 7466/- with costs, with further mesne profits at the rate of rs. 200/- pet month from 1-12-1982. The facts of the case in brief are as follows; the respondent No. 1 initially filed the dispute against the appellant and the respondent No. 2. It was his contention that he is a member of the respondent No. 2 Society which is registered under the Maharashtra Co-operative Societies Act, 1960 and classified as Tenant Co-partnership Housing society and he holds the Block No. 352 in the building of the Society of the area of 796 sq. ft. as allottee member. Under the Bye-laws of the Society and so under the Regulations adopted by the Society every member is required to personally occupy the premises. He has to obtain permission of the society for allowing non-member to occupy the flat for a particular period the respondent No. 1 obtained permission in the year 1974 for allowing the appellant to occupy the flat for temporary period on compensation of rs. 200/- per month. In the year 1980 the respondent No. 1 felt necessity for the use of flat by himself. The appellant first orally agreed to hand, over possession, but later on refused to do so. The respondent No 1 gave notice to him with no consequence. Since the respondent No. 1 also info med his desire to occupy the premises to the respondent No. 2, the Repondent No. 2 resolved on 5-6-1982 to cancel the permission granted to the respondent No. 1 for use of the flat by the appellant. The Society is entitled to get the possession from the appellant for the benefit of the member for enforcement of it's Bye-laws. The Society was, therefore, initially joined as co-defendant. The respoadent No. 1 explained his difficulty of residence stating that at the time of filing of the dispute he was residing with his brother. in. law. The appellant also did not pay rent/licence fees from 1-8-1974 inspite of several demands. He also did not pay the other amounts of education cess, etc. even though agreed. The appellant also did not require the suit flat as his employers have already allotted suitable accom modation to him. Therefore, the dispute is filed for the eviction of the appellant ad for recovery of Rs. 24,129/- towards the arrears of monthly charges, education cess, maintenance charges, notice charges and future mesne profits.

(2.) IT seems that the dispute was filed by the Respondent No 1 alone somewhere on 26-10-1982. The respondent No. 2 on 13-2-1984 made an application to the Lower Court for transposition itself from the arrena of defendant from that of the plaintiff to help it's member-Respondent No l and lateron the Society was joined as co-disputant. The appellant denied the claims of the respondents. According to him the Society had allowed the respondent No. 1 to occupy the flat in the dispute by the appellant as a regular tenant on monthly rent of Rs. 200/- and, therefor, the relation between the appellant and the repondent No. l is purely that of Tenant and Landlord and, therefore, the dispute is not maintainable under the maharashtra Co-operative Societies Act. He has also denied the contentions of the respondent No. 1 that he requires the premises for personal use and occupation. The claim is said to be mala fide. The resolution of the Society dated 5-6-1982 is said to be illegal and not enforcible in law. The resolution amounts to forfeiting the implementation of the provisions of the Rent Act and, therefore, is objected under Section 23 of the Indian contract Act. On the point of arrears or non-payment of the amounts claimed by the respondent No. 1 it is contended that he has paid upto end of July, 1982 as he used to pay in advance but no rent receipts used to be issued by the Respondent No. 1. The relationship between the appellant and the respondent No. 1 were cordial and the appellant had full faith in the respondent No. 1. So he did not insist upon issuing of the receipts. Not a single receipt was ever issued, for payment of rent. It is also contended that the claim for amount on different counts is barred by law of limitation. After this written statement was filed on 27-12-1982 additional written statement was filed on 7-8-1985. By this written statement he contended that the respondent No. 2 and the appellant had no privity of conttact. The Society had permitted the member to let out the premises and, therefore, the subject matter was falling under the provisions of the Bombay rent Control Act.

(3.) THE parties went to trial with these pleadings. The evidence led by the respondents consists of oral evidence of Respondent No. 1 and his witness Pnnalal shah with whom the respondent No. 1 claimed to have been residing. The appellant also examined himself and the Society examined it's chairman one Ambalal Parekh. This evidence was recorded by the Judge who had earlier decided the matter on 30-7-1983 when the Society was codefendant along with the appellant. After that judgment was reversed the society was transposed as co-disputant and it seems that no fresh oral evidence was adduced after the remand order passed in Appeal No. 290 of 1983 oa 29-11-1983 though both the parties wers allowed opportunity to lead evidence further. The order of transposition dated 18-7-1984 was also challenged in the Revision Application No. 62 of 1984 which was dismissed on 3-5-1985. Oa 3-9-1985 the plaintiffs passed the pursh is of no further evidence. That was again confirmed by the purshis dated 20-11-1985.