SABHARWAL BROTHERS & ANOTHER versus SMT. GUNA AMRIT THANDANI OF BOMBAY

Mitter, J.-This is an appeal by special leave from a judgment and order of the Bombay High Court in a Special Civil Application from a decision of the Court of Small Causes Bombay in exercise of its revisionary jurisdiction. The revisional court had rewrsed the decision of the trial court and remanded the matter-for disposal of the issues other than issues 2 to 8 tried as preliminary issues and decided in favour of the plaintiffs before the Court of Small Causes.

p. 54, margin E

The facts are as follows. Respondent No. 1 was the owner of a fiat on the second floor of Block No. 8 'Shyam Niwas', Warden Road, Bombay. · She was a member of a Co-operative Housing Society and had acquired the fiat from the said society. In 1959 she had put the appelll!nt Sabharwal Brothers in possession of the fiat for a period of 11 months on payment of Rs. 510 /- per month. There was an agreement in writinl!; which purported to show that the possession was to be on leave and licence !lasis. This agreement was signed by a partner of Sabharwal Brothers who also became member of the said Co-operative Society. There were repl(ated renewels of the said agreement until 25th October, 1962 when the first respondent asked the '.appellants to vacate possession Qn the ground that she required the fiat for her personal occupation. As this was not complied with, she filed a statement of claim before 1he Registrar of Co-operative Societies on ~he ground that there was a dispute within the meaning of s. 91 (1) of th~ Manarashtra Cooperative Societies Act (hereinafter referred to as the ·Act') which require-d adjudication. There was a challenge to the jurisdiction of the nominee of the Registrar to whom it was reforrcd by the appellants. The proceedings before the aiominee went on for some time on July 3, the nominee made an award to the effect the appellants were occupying the flat on leave and licen~e basis. Anticipatin~ the award the appellants filed a suit in the Court of Small Causes Bombay stating that they were in occupation of the !lat 'as tenants and as such entitled to protection under the Bombay Rent Act. 194 7 and the first respondent had no right to evict them. In her written statement the defendant denied that the plaintiffs were tenants contending, inter alia, tb'at the plaintiffs were occupying the flat only on leave and licence basis etc.; that the dispute between the parties had ]:ieen referred to the Registrar of Co-operative Societies for disposal and finally that the Cour! '.lf S'.ll:,;J C'au~~, '1Cld no jurisdiction to entertain and try a suit involving such a disputr. The Small Causes Court .framed no less than twelve issues of which issues 2 tc 8 related to the maintainability of the suit :and the jurisdiction of the court in view of the provisions of s. 91 (1) ( d) of the Act. The Small Causes Court held that the suit was maintainable and answered the other preliminary issues in favour of the plaintiff. The matter was taken in revision to a Bench of the said Small Causes Court. The Bench took-a different view holding that the Registrar's nominee did have jurisdiction to try the dispute between the parties and remanded the proceedil!lgs to the trial court for disposal of the suit after deciding on issue as to res judicata by reason of the award o.f the nominee.

pp. 54–55, margin F

The High Court dismissed the Special Civil Application of the plaintiffs holding that the revisional court of the Small Causes was justified in coming to the conclusion that it was not open to the plaintiffs to contend that the Registrar or his nominee had no jurisdiction to entertain the dispute on the two grounds on which it was challenged.

p. 55, margin D

Before us the main points urged on behalf o.f the appellants we1e: first whether there was any dispute between the parties touching the business of the Co-operative Society which c0uld be decided by the Registrar or referred by him to a nominee for disposal; and, secondly, whether the suit filed in the Small Cau~es Court was maintainable having regard to the nature of the rehef sought.

p. 55, margin F

The central question, therefore, is, whether the dispute between the parties is capably of reference under the Act. The relevant portion of s. 91 ( 1) (b) o.f the Act runs as follows :-

p. 55, margin G

"(1) Notwithstanding anything contained in any other law for the time being in force, any dispute touch" ing the constitution, ........ management or business of a society shall be referred l:i}' any of the parties to the dispute ........ if both the parties thereto are one or other of the following :- (a) ( b) a member, past !llember or a person claiming

pp. 55–56, margin H

through a member etc. " s. 91 ( 3) provides :

p. 56, margin A

"Save as otherwise provided under sub-section (3) of section 93 .. court shall have jurisdiction to entertain any suit or o · ·~· proceedings in respect of any dispute

p. 56, margin A

reierred to in >uh-section (1). We may also note the relevant portion of s. 163 ( 1) which provides:

p. 56, margin C

" ( 1) Save as expressly provided in this Act, •no civil or revenue court shall have any jurisdiction in respect of- (a) (b) any dispute required to be referred to the Regis--

p. 56, margin D

trar, or his nominee, . . . . . .

p. 56, margin D

(c)

p. 56, margin D

Before the Court of Small Causes reference was made to byelaw No. 2 of the Society to show that the objects of the society were inter alia to carry on the trade of buying, selling, hiring ·and letting land in accordance with the co-operative principles and under Regulation No. 5 in fonn 'A' printed at 1he end of the bye-laws

p. 56, margin F

"No tenant shall assign, underlet, vacate or part with the possession of the tenement or any part thereof without the consent in writing of the society."

p. 56, margin G

The Bench of the Court of Small Causes referred 1o the above provisions and observed that the bye-laws of the society constituted an ·'!greement between the members of the society and a breach thereof would affect the defaulting member's rigin of membership oithe ~ociety and consequently a dispute relating to the letting of the fiat was a dispute which touched the business of the society.

p. 56, margin G

The High Court referred to s. 91 of the Co-operative Societies Act ands. 28 of the Bombay Rent Act and observed:

p. 57, margin A

"There is a competition between two authorities, a court and the Registrar's nominee, both exercising exclusive jurisdiction in respect of matters coming within their

p. 57, margin A

jurisdiction." and concluded that on general principles of law it would not be proper to allow the same question to bie agitated again under a different guise. It also observed that the decision taken hy the Assistant Registrar and the nominee could have been decided by an appeal and as no appeal had been filed the provisions of law mus! have their effect with the result that the decision oLthe dispute by the nominee of the Registrar had become final.

p. 57, margin B

With all respect to the High Court, it seems to us that there was a fundamental error in the above approach. No doubt it was the business of the society to let wt premises and a member had no unqualified right to Jet out hiS fiat or tenement to another by virtue of the bye-laws and a 'Qreach of the bye-laws could affect the -defaulting member's right to membership. · But we are n•t able t6 see how letting by a member to another member would touch the business o( the society which included inter alia the trade of buying, selling, ·hiring and letting land in accordance with· co-operative principles. The lettir:g of fiat by respondent No. 1 was a transaction of the same nature as the society itself was empowered to enter into but such letting by itself did not concern the business of the society in the matter of its letting out fiats. Nothing w11s btought to our notice to show that such a letting would affect the business of the aociety once it had sold the fiat io the respondent No. 1. The position might have been different if the latter had himself been a tenant of the fiat under the society. ''To touch" means "to come in contact with" and it does not appear that there is a point of contact between a Jetting by the respondent No. 1 ll!lld the business of the society when the society was not itself the landlord of the fiat.

p. 57, margin C

Reference was made at the Bar to Deccan Merchants Co-operative Bank Ltd. v. Ml s Dalichand Jugraj Jain and others(1'). The facts there were very different from those of the instant case.

p. 57, margin G

(I) l $.C.R. 887. 5-Ll208 Sup C I/72 But the Collrt had to con$jder the quel>tion of competing jurisdiction under the lloml:!ay Rent. Act ·~ the Act ai.W it is pertinentto note the observations at p. 902 "that the two Acis can be harmonised best by holding that in matters covered by the Rent Act, its provisions, rather than the provi,ions of the Act, should apply."

pp. 57–58, margin H

Jn the result we allow the appeal, set aside the judgment and order of the High Court ~nd of the Bench of the Court of Causes. The matter is now to go back to the Court of Small for disposal according to }aw. The appellants will have the incurred in this Court. G.C. Appeal all~cl.

p. 58, margin B