Case Note & Summary
The petitioner, M/s. Vinayak Ashish Cooperative Housing Society Ltd., filed a suit in the City Civil Court at Bombay against the respondents, who are members and tenants of the society, seeking recovery of possession of certain shops and flats and mesne profits. The trial court framed preliminary issues regarding jurisdiction and limitation. By order dated 02/05/2013, the learned Judge held that the City Civil Court does not have jurisdiction to try the suit in view of Section 91 of the Maharashtra Cooperative Societies Act, 1960, which bars civil courts from entertaining disputes touching the business of a cooperative society. The court directed return of the plaint for presentation to the proper court. The society challenged this order by way of a writ petition. The High Court considered the nature of the dispute and held that the suit essentially involves a dispute between the society and its members/tenants regarding possession of property belonging to the society, which squarely falls within the ambit of Section 91 of the MCS Act. The court noted that the trial court had correctly decided the issue of jurisdiction as a preliminary issue without recording evidence, as the facts were admitted. The High Court dismissed the writ petition, upholding the trial court's order and directing the plaint to be returned for presentation to the Cooperative Court.
Headnote
A) Civil Procedure - Jurisdiction - Bar under Special Statute - Section 91 Maharashtra Cooperative Societies Act, 1960 - The suit filed by a cooperative housing society against its members and tenants for recovery of possession and mesne profits is a dispute touching the business of the society and is exclusively triable by the Cooperative Court. The Civil Court has no jurisdiction to entertain such a suit. (Paras 2-10)
B) Civil Procedure - Preliminary Issue - Order XIV Rule 2 CPC - The trial court can decide the issue of jurisdiction as a preliminary issue without recording evidence if the facts are admitted or can be decided on the basis of pleadings. (Para 8)
C) Cooperative Law - Dispute - Section 91 Maharashtra Cooperative Societies Act, 1960 - The term 'touching the business of the society' includes disputes between the society and its members or tenants regarding possession of property belonging to the society. (Paras 5-7)
Issue of Consideration
Whether the City Civil Court has jurisdiction to entertain a suit filed by a cooperative housing society against its members and tenants for recovery of possession and mesne profits, given the bar under Section 91 of the Maharashtra Cooperative Societies Act, 1960.
Final Decision
The High Court dismissed the writ petition and upheld the order of the City Civil Court dated 02/05/2013, directing return of the plaint for presentation to the proper court (Cooperative Court).
Law Points
- Jurisdiction of Civil Court barred under Section 91 of Maharashtra Cooperative Societies Act
- 1960
- Dispute between society and members/tenants exclusively triable by Cooperative Court
- Preliminary issue of jurisdiction can be decided as a preliminary issue under Order XIV Rule 2 CPC
Case Details
2015 LawText (BOM) (08) 39
WRIT PETITION NO.10498 OF 2013
Mr. R A Thorat, Senior Advocate i/by mr. P J Thorat for the Petitioner, Mr. P M Shah a/w Mr. M K Tanna for the Respondent No.1, Mr. P R Kadam for the Respondent Nos.6 to 8, Mr. D S Chamboowala for the Respondent Nos.
M/s. Vinayak Ashish Cooperative Housing Society Ltd.
M/s. Essar Enterprises & Ors.
Subscribe to unlock Case Details (Citation, Judge, Date & more)
Subscribe Now
Nature of Litigation
Writ petition challenging the order of the City Civil Court returning the plaint for lack of jurisdiction in a suit for recovery of possession and mesne profits.
Remedy Sought
The petitioner sought to set aside the order dated 02/05/2013 and to direct the City Civil Court to proceed with the suit.
Filing Reason
The trial court held that it had no jurisdiction to entertain the suit in view of Section 91 of the Maharashtra Cooperative Societies Act, 1960.
Previous Decisions
The City Civil Court decided the preliminary issue of jurisdiction against the petitioner and ordered return of the plaint.
Issues
Whether the City Civil Court has jurisdiction to entertain a suit filed by a cooperative housing society against its members and tenants for recovery of possession and mesne profits.
Whether the trial court could decide the issue of jurisdiction as a preliminary issue without recording evidence.
Submissions/Arguments
The petitioner argued that the dispute does not touch the business of the society and is not covered by Section 91 of the MCS Act.
The respondents contended that the dispute is between the society and its members/tenants regarding possession of society property, which is a dispute touching the business of the society and is exclusively triable by the Cooperative Court.
Ratio Decidendi
A dispute between a cooperative housing society and its members or tenants regarding possession of property belonging to the society is a dispute touching the business of the society within the meaning of Section 91 of the Maharashtra Cooperative Societies Act, 1960, and is exclusively triable by the Cooperative Court. The Civil Court has no jurisdiction to entertain such a suit.
Judgment Excerpts
The writ jurisdiction of this Court is invoked against the order dated 02/05/2013 passed by the learned Judge of the City Civil Court for Greater Bombay by which order the learned Judge has decided the preliminary issues relating to the jurisdiction of the City Civil Court and limitation, it is held that the City Civil Court does not have the jurisdiction to try and entertain the suit in question and has accordingly directed return of the plaint for being presented to the proper court.
The dispute in the present case is between the society and its members and tenants regarding possession of the property belonging to the society. Such a dispute would squarely fall within the ambit of Section 91 of the MCS Act.
Procedural History
The petitioner filed a suit in the City Civil Court for recovery of possession and mesne profits. The trial court framed preliminary issues on jurisdiction and limitation. On 02/05/2013, the court held that it lacked jurisdiction and ordered return of the plaint. The petitioner challenged this order by filing a writ petition in the High Court.
Acts & Sections
- Maharashtra Cooperative Societies Act, 1960: Section 91
- Code of Civil Procedure, 1908: Order XIV Rule 2
