The Trial Court exceeded its jurisdiction by allowing withdrawal of a dispute with liberty to file a fresh one, contradicting the appellate court's specific remand order aimed at limiting the inquiry.

JUDGMENT:

AMIT BORKAR, J.

1. This petition is filed under Article 227 of the Constitution of India. The petitioners challenge the judgment dated 1 October 2019 passed by the Cooperative Appellate Court in Revision Application No.16 of 2020. By that order, the Appellate Court confirmed the order of the Cooperative Court permitting respondent to withdraw the dispute with liberty to file a fresh dispute on the same cause of action, subject to limitation.

2. The facts are as follows. The respondent filed Dispute No.14 of 1986 in the year 1979 against petitioner No.1 and its trustees. The respondent sought possession and recovery of Rs. 58,580.22 as arrears of society dues. In the year 2004, the respondent amended the dispute and sought recovery of recurring outgoings as per the society resolutions. The Cooperative Court dismissed the dispute by judgment dated 30 November 2005. The respondent filed Appeal No.24 of 2006. In that appeal, the respondent filed an application under Order 41 Rule 27 of the CIVIL PROCEDURE CODE seeking permission to produce additional documents. The Cooperative Appellate Court, by order dated 2 February 2007, set aside the judgment of the Cooperative Court. The Appellate Court remanded the matter to the Cooperative Court to decide it afresh. The Appellate Court also permitted the respondent to produce four documents named in the application under Order 41 Rule 27 and to lead oral evidence.

3. The operative part of the remand order reads as follows:

“2. The matter is remanded back to the trial court to decide it afresh in light of the observations made. The parties are permitted to produce the four documents and lead oral evidence limited to proving those documents.”

4. During the pendency of the remanded proceedings, the respondent filed Long Cause Suit No.3906 of 1997 before the City Civil Court in respect of the garage premises. The City Civil Court dismissed that suit by judgment dated 16 September 2011. The respondent has filed First Appeal No.756 of 2012 challenging that judgment. The appeal is pending.

5. In the application dated 20 August 2018, the respondent stated that it had tried to obtain the approved building plan, but the documents were not available until the filing of the application.

6. In the year 2016, the respondent filed an application under Order 23 Rule 1(3) of the CIVIL PROCEDURE CODE seeking permission to withdraw the dispute with liberty to file a fresh dispute. The application relied on several grounds, summarized as follows:

(i) the original draftsman failed to seek proper reliefs. The pleadings and reliefs are defective

(ii) no proper relief is claimed based on the four documents

(iii) the sanctioned plan discovered on 9 June 2018 cannot be produced without proper pleadings

(iv) unauthorized construction is not pleaded. No relief for demolition is claimed

(v) several facts came to light over 39 years. Amendment will not cure the defects. The existing pleadings and reliefs are ineffective

(vi) opponents suppressed the sanctioned plan. It became available only on 9 June 2018

(vii) best evidence could not be produced earlier due to absence of proper pleadings

(viii) the dispute may fail for non-joinder of the Builder as a necessary party

(ix) description of the suit property in the 1966 Agreement and the sanctioned plan does not match

(x) monetary claim must be based on unauthorized construction. Relevant resolutions must form part of pleadings

(xi) filing a fresh proceeding is necessary after discovery of the sanctioned plan to avoid multiple proceedings

7. The petitioner