Case Note & Summary
The appellant, Samuel Nadvi, filed a suit in the City Civil Court, Greater Bombay, seeking declaration of title and permanent injunction against Umerkhadi Cooperative Housing Society Limited (respondent no.1), the Assistant Municipal Commissioner of BMC (respondent no.2), and other members (respondent nos.3-5). The trial court, by order dated 10 February 2012, returned the plaint under Order VII Rule 10 of the Code of Civil Procedure, 1908 (CPC) for presentation to the proper forum, accepting the contention of respondent nos.2-5 that the dispute was covered under Section 91 of the Maharashtra Cooperative Societies Act, 1960 (MCS Act). The appellant challenged this order in the High Court. The High Court observed that the plaint sought reliefs not only against the society and its members but also against the municipal corporation, which is not a member of the society. The court noted that the suit involved a declaration of title and injunction against the corporation, which could not be adjudicated by the cooperative court. The High Court held that the bar under Section 91 of the MCS Act applies only to disputes touching the business of the society between members or between a member and the society. Since the suit involved a non-member and sought reliefs beyond the scope of the MCS Act, the civil court had jurisdiction. The court set aside the impugned order and directed the trial court to decide the issue of jurisdiction afresh after considering the plaint as a whole, without being influenced by the earlier observations. The appeal was allowed, and the civil application was disposed of.
Headnote
A) Civil Procedure - Return of Plaint - Order VII Rule 10 CPC - Jurisdictional Bar - The trial court returned the plaint for presentation to the proper forum on the ground that the dispute fell within the purview of Section 91 of the MCS Act. The High Court held that where the suit involves reliefs against a non-member (municipal corporation) and seeks declaration of title, the civil court's jurisdiction is not ousted. The order of return was set aside and the trial court was directed to decide the issue of jurisdiction afresh after considering the plaint as a whole. (Paras 1-8)
B) Cooperative Societies - Jurisdiction of Civil Court - Section 91 Maharashtra Cooperative Societies Act, 1960 - The bar under Section 91 applies only to disputes touching the business of the society between members or between member and society. Where the suit also involves a third party (municipal corporation) and seeks reliefs like declaration of title and permanent injunction, the civil court has jurisdiction to entertain the suit. (Paras 4-8)
Issue of Consideration
Whether the civil court has jurisdiction to entertain a suit seeking declaration of title and injunction against a cooperative society and its members, as well as against a municipal corporation, in light of Section 91 of the Maharashtra Cooperative Societies Act, 1960.
Final Decision
The High Court allowed the appeal, set aside the impugned order dated 10 February 2012, and directed the trial court to decide the issue of jurisdiction afresh after considering the plaint as a whole, without being influenced by the observations made in the impugned order. The civil application was disposed of.
Law Points
- Jurisdiction of civil court
- bar under Section 91 of Maharashtra Cooperative Societies Act
- 1960
- Order VII Rule 10 CPC
- return of plaint
- declaration of title
- injunction against non-members
Case Details
2013 LawText (BOM) (10) 66
Appeal from Order No. 550 of 2012 with Civil Application No. 1217 of 2013
Mr. Prabhanand Sawant for the Appellant, Mr. Avinash Joshi for Respondent No.1, Mr. S.K. Sonawane for Respondent No.2-Corporation, Mr. Manek J. Kalyaniwalla i/by M/s. Mulla & Mulla and CBC for Respondent Nos. 4 and 5
1. Umerkhadi Cooperative Housing Society Limited, 2. Assistant Municipal Commissioner, 'B' Ward, Brihanmumbai Municipal Corporation, 3. Sara D. Awtade, 4. Daniel K. Ovichegan, 5. Mr. Mary K. Ovichegan
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Nature of Litigation
Appeal from Order against return of plaint under Order VII Rule 10 CPC
Remedy Sought
Setting aside of the order dated 10 February 2012 returning the plaint and direction to the trial court to proceed with the suit
Filing Reason
The trial court returned the plaint on the ground that the dispute fell under Section 91 of the MCS Act and the civil court lacked jurisdiction
Previous Decisions
The trial court (City Civil Judge, Greater Bombay) passed an order on 10 February 2012 returning the plaint for presentation to the proper forum
Issues
Whether the civil court has jurisdiction to entertain a suit seeking declaration of title and injunction against a cooperative society, its members, and a municipal corporation, in light of Section 91 of the MCS Act.
Submissions/Arguments
Appellant argued that the suit involves reliefs against the municipal corporation (a non-member) and declaration of title, which are not covered by Section 91 of the MCS Act, and thus the civil court has jurisdiction.
Respondents argued that the dispute touches the business of the society and is covered under Section 91 of the MCS Act, ousting the civil court's jurisdiction.
Ratio Decidendi
The bar under Section 91 of the Maharashtra Cooperative Societies Act, 1960 applies only to disputes touching the business of the society between members or between a member and the society. Where the suit involves a non-member (such as a municipal corporation) and seeks reliefs like declaration of title and permanent injunction, the civil court has jurisdiction to entertain the suit. The trial court must consider the plaint as a whole to determine jurisdiction.
Judgment Excerpts
The learned Judge returned the plaint for proper presentation by accepting the case of Respondent Nos. 2 to 5 revolving around Section 91 of the Maharashtra Cooperative Societies Act, 1960.
The plaint is not only against the Society and its members, but also against the Corporation. The reliefs claimed are declaration of title and permanent injunction against the Corporation.
The bar under Section 91 of the MCS Act is not attracted in the present case as the dispute is not only between the members or between the member and the society.
The trial court is directed to decide the issue of jurisdiction afresh after considering the plaint as a whole.
Procedural History
The appellant (original plaintiff) filed a suit in the City Civil Court, Greater Bombay. The trial court, by order dated 10 February 2012, returned the plaint under Order VII Rule 10 CPC for presentation to the proper forum, accepting the respondents' contention that the dispute fell under Section 91 of the MCS Act. The appellant filed an appeal from order before the Bombay High Court, which was allowed on 1 October 2013.
Acts & Sections
- Code of Civil Procedure, 1908 (CPC): Order VII Rule 10, Order VII Rule 10A
- Maharashtra Cooperative Societies Act, 1960 (MCS Act): Section 91
