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Andhra Pradesh High Court
Judges : N.D.PATNAIK
Osmangunj Extension Co-operative Society Limited rep.by its Secretary, hyderabad - Appellant
Versus
Bhawarlal Bohra - Respondent
Decided On : 09-22-94
CO-OPERATIVE SOCIETIES - DISPUTE - JURISDICTION - CIVIL COURT - SECTION 61 OF THE A. P. CO-OPERATIVE SOCIETIES ACT - APPLICABILITY - SUB-LESSEES CLAIMING THROUGH MEMBER - MAINTAINABILITY OF SUIT - TRANSFER OF PROPERTY ACT, SECTION 115 - EFFECT OF SURRENDER AND FORFEITURE ON UNDER-LEASES - RIGHT OF APPEAL - CIVIL PROCEDURE CODE, ORDER 41 RULE 4 - APPEAL BY ONE OF SEVERAL PLAINTIFFS OR DEFENDANTS - PROPER INSTITUTION OF SUIT - CIVIL PROCEDURE CODE, ORDER 29 RULE 1 - SUIT BY OR AGAINST A CORPORATION - SIGNING AND VERIFICATION OF PLEADINGS.
Fact of the Case:
Plaintiff-society filed a suit for eviction of defendants 2 and 3, sub-lessees of defendant 1, a member of the society, from two shops allotted to defendant 1 on a temporary lease basis. The trial court decreed the suit, but the appellate court dismissed the appeal, holding that the suit was not maintainable in the civil court due to Section 61 of the A. P. Co-operative Societies Act. The plaintiff-society filed a second appeal.
Finding of the Court:
The court held that the dispute between the plaintiff-society and defendant 1, a member of the society, regarding the eviction from the shops fell within the scope of Section 61 of the A. P. Co-operative Societies Act and had to be adjudicated by the Registrar under the Act. The court also held that defendants 2 and 3, being sub-lessees of defendant 1, were claiming through a member of the society and, therefore, came within the scope of persons claiming through a member under Section 61(1)(b) of the Act. The court further held that the suit was not maintainable in the civil court as the dispute touched the business of the society and had to be decided by the Registrar under Section 61 of the Act. The court also held that defendants 2 and 3 had a right to file an appeal against the decree passed against them, even though defendant 1 had not filed an appeal, and that the suit was properly instituted as a member of the Managing Committee was competent to sign the plaint.
Issues: 1. Whether the dispute between the plaintiff-society and defendant 1, a member of the society, regarding the eviction from the shops fell within the scope of Section 61 of the A. P. Co-operative Societies Act and had to be adjudicated by the Registrar under the Act? 2. Whether defendants 2 and 3, being sub-lessees of defendant 1, were claiming through a member of the society and, therefore, came within the scope of persons claiming through a member under Section 61(1)(b) of the Act? 3. Whether the suit was maintainable in the civil court as the dispute touched the business of the society and had to be decided by the Registrar under Section 61 of the Act? 4. Whether defendants 2 and 3 had a right to file an appeal against the decree passed against them, even though defendant 1 had not filed an appeal? 5. Whether the suit was properly instituted as a member of the Managing Committee was competent to sign the plaint?
Ratio Decidendi: 1. Section 61 of the A. P. Co-operative Societies Act provides that disputes touching the constitution, management, or business of a society, including a claim by a society against a member for the delivery of possession of immovable property resumed by it for breach of conditions of assignment or allotment, shall be referred to the Registrar for decision. 2. The dispute between the plaintiff-society and defendant 1, a member of the society, regarding the eviction from the shops was a dispute touching the business of the society and, therefore, fell within the scope of Section 61 of the Act. 3. Defendants 2 and 3, being sub-lessees of defendant 1, were claiming through a member of the society and, therefore, came within the scope of persons claiming through a member under Section 61(1)(b) of the Act. 4. The suit was not maintainable in the civil court as the dispute touched the business of the society and had to be decided by the Registrar under Section 61 of the Act. 5. Defendants 2 and 3 had a right to file an appeal against the decree passed against them, even though defendant 1 had not filed an appeal. 6. The suit was properly instituted as a member of the Managing Committee was competent to sign the plaint.
Final Decision: The second appeal was dismissed, and the decree of the appellate court was upheld.
( 1 ) THIS Second Appeal is filed by the plaintiff in O. S. No. 2962 of 1977 in the Court of the IV Assistant Judge, City Civil Court, hyderabad. The plaintiff (appellant) is the Osmangunj Extension Co-operative society limited, which was formed for the purpose of construction of Shops and Godowns for its members in order to extend the existing Osmangunj market complex. It is alleged that as per the Scheme of the Society unless all the constructions are completed no permanent allotment of Shops and godowns is to be made to any share-holder of the Society. However, since the constructions could not be completed as per the scheme, it was decided by the plaintiff-society to let some shops to its member temporarily on rental basis for the time being, pending re-allotment on final and permanent basis, after completion of the entire construction. On 30. 7. 1976 one Sri Hiralal Kapadia, who was originally one of the members of the Society was allotted two shops, bearing Nos. 7 and 8 (new Nos. 19 and 20) temporarily on lease basis for six months. He sub-let the shops to defendants 2 and 3. Later on 30. 7. 1976 the said Hiralal Kapadia transferred his member ship in the Society including temporary lease to the first defendant and he informed defendants 2 and 3 to pay the rents to the first defendant. A fresh lease between the plaintiff and the first defendant took place from 1. 9. 1976. The plaintiff issued a notice dated 23. 12. 1976 terminating the lease in favour of the first defendant and asking him to hand-over vacant possession of the two mulgies in order to enable the plaintiff-society to make a permanent allotment of shops constructed by it to different share-holders. The copies of the notice were also sent to the defendants 2 and 3 but the defendants failed to deliver the vacant possession of the shops. The plaintiff alleged that though Hiralal Kapadia, who was a member of the plaintiff-society was paying rent of Rs. 173/- per months which was reduced to Rs. 104/-per month, the prevailing market rate of rent per each shop is Rs. 600/- per shop. The plaintiff, therefore, filed a suit for eviction of the defendants and for mesne profits at Rs. 1200/- per month.
( 2 ) THE first defendant filed written statement stating that though the plaintiff-society issued notice on 26. 12. 1976 directing him to vacate the premises he was helpless as defendants 2 and 3 were not inducted into the possession by him and as such he could not deliver possession of the said mulgies. He alleged that mesne profits claimed by the plaintiff at Rs. 1200/- per month is excessive but the plaintiff can claim mesne profits only at the rate of Rs 104/- per months from defendants 2 and 3 only and he has no objection for suit being decreed without any claim for mesne profits against him.
( 3 ) DEFENDANTS 2 and 3 filed two separate written statements but taking similar contentions and denying the plaint allegations that the allotment was made to Hiralal Kapadia purely on temporary basis and contending that the plaintiff has no right to ask for the mulgies as the same was alloted to Hiralal kapadia and that they are the lessees of the said Hiralal Kapadia. The third defendant has taken another contention that he purchased the mulgi in his occupation for Rs. 45000/- in the name of his wife and that the society received the sale consideration and since August 1978 he was in possession of the mulgi on behalf of his wife. They further contended that the suit is not maintainable in the Civil Court and the notice is bad and that the plaint is not properly instituted.
( 4 ) THE trial Court rejected the contention of the defendants and decreed the suit for eviction and possession with mesne profits at the rate of Rs. 225/- and Rs. 275/- per month for the two mulgies from 1. 12. 1987 till the date of delivery of possession. Defendants 2 and 3 filed an Appeal A. S. No. 84 of 1981 aggrieved by the judgment of the lower Court granting to give eviction; w
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