JUDGMENT :- The original - defendant has filed this writ petition challenging order dated 9.6.2005 passed by the 4th Joint Civil Judge, Senior Division, Nagpur, below Exh.12 and Exh.14 in Special Civil Suit No.223 of 2003. Said suit has been instituted by present respondent, an unregistered body i.e. proposed Co-operative Housing Society through its Chief Promotor for specific performance of contract against present petitioner. The present petitioner filed application in that suit for its dismissal on the ground that respondent/ plaintiff is not legal entity at all. Thereafter, the respondent filed application under Order 1, Rule 8 of Civil Procedure Code, seeking permission to sue on behalf of unincorporated body and its members. The said application was opposed by the petitioner. By common order mentioned above, the Court below has allowed application under Order 1, Rule 8 of C.P.C. and has rejected the prayer of the petitioner to dismiss the suit.

2. Considering the nature of controversy, at the request of parties', matter has been heard finally at the stage of admission itself and Rule is made returnable forthwith. I have heard Shri. Dhoble, learned counsel for the petitioner and Shri. Giradkar, learned counsel for the respondent.

3. First submission of Shri. Dhoble, learned counsel is that the suit ought to have been filed by a registered Cooperative Society and present respondent could not have instituted it at all. The second contention is that application under Order 1, Rule 8 of C.P.C. ought to have been filed along with suit itself and Court below could not have entertained such an application in a suit which was not validly instituted at later point of time and could not have allowed respondent - plaintiff to cure that defect. Lastly, he has argued that in any case the court below has not found that there was any community of interest, insofar as alleged members of respondent unregistered cooperative society are concerned. He contends that names and details of those members are also not disclosed and hence even on merits, impugned order shows non-application of mind. He has relied upon the judgment of this Court in the case of Mathura Bhuvan Co-op. Housing Society Vs. Official Liquidator, reported at 2004(1) Mh.L.J. 733 and judgment of Karnataka High Court in the case of Narayansa Vs. Ramakrishna, reported at 1998(2) Civil L.J. 850.

4. As against this, Shri. Giradkar, learned counsel for the respondent - plaintiff has contended that law does not require application under Order 1, Rule 8 of C.P.C. to be filed at the institution of suit itself. He states that the error of not filing such an application can be allowed to be rectified even later on because it is merely an irregularity. He has relied upon the judgment of Allahabad High Court in the case of Radhaswami Satsang Sabha Vs. Puttan, reported at AIR 1984 All. 198, in support of his stand.

5. In view of the arguments, the first question which arises for consideration is whether in a suit which is filed by unregistered body, application under Order 1, Rule 8 of C.P.C. must be filed along with the plaint itself and if it is not so filed, whether the Court can permit it to be filed later on. The Court below has found that there is no prohibition and after relying upon the judgment in Radhaswami Satsang Sabha Vs. Puttan (supra), has found that such permission can be granted even on application preferred later on. It has also considered the judgment of this Court in the case of Mathura Bhuvan Co-op. Housing Society Vs. Official Liquidator (supra). The said judgment states that a suit filed by an unincorporated association of persons is not maintainable. However, this Court has also stated that such an association cannot sue in its proposed name or through its Promotor/Chief Promotor without obtaining leave under Order 1, Rule 8 of C.P.C. From the judgment, it is clear that no such leave was applied for in that case. Here, admittedly, such leave has been applied for and ha

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