- (1.) This Appeal by special leave is directed against the judgment and order dated 9th August 1983 passed in Writ Petition No. 1907 of 1983 by the High Court of Judicature at Bombay dismissing the. writ petition and confirming the judgments and orders by the Maharashtra Co-operative Appellate Tribunal made in Appeal No. 280 of 1978 and by 2nd Co-operative Court, Greater Bombay allowing the application of respondent Co-operative Society filed under See. 91(l) of Maharashtra Co-operative Societies Act, 1960 directing eviction of the respondent No. 2, member of the Society as well as the appellants Nos. 1 and 2 who are trespassers from its flat No. 7 in the building of the disputants "Fairfield," Churchgate Reclamation, Bombay 20. The facts giving rise to the present appeal are that the respondent "Fairfield Co-operative Housing Society" which is a "Tenant Co-partnership Housing Society" under Registration No. B 1412 of 1955 owned the suit premises. The respondent No. 2 Smt. Vishni J. Kalwani as a member of the Society was allotted Flat No. 7 in the 1st Floor of the suit premises for residing therein with members of her family. The respondent No. 2 permitted the appellant No. 1 M/s. A.V.R. and Co. to possess and occupy the said flat as a licencee without the consent of the Society and in breach of bye laws and Regulation No. 4 of the Society's Regulations contained in Form No.A of the Society's bye-laws. It has been alleged in the dispute application that the respondent No. 2 obtained the flat as a member only for investment purposes and she was profiteering by letting out the flat to other persons contrary to the Bye-laws and Regulations of the Society.
(2.) The respondent No. 2 Smt. Kalwani did not file any written statement and remained absent. The appellant No. I M/s. A. V. R. and Co. who was opponent No. 2 in the dispute application filed a written statement contending inter alia that the dispute was barred by jurisdiction as the opponent No. 1 Smt. Kalwani was a tenant of the Society, that the appellant No. I was in exclusive occupation of the said flat as the licencee of the respondent No. 2 and now, their sister concern M/s. J.R. Enterprises, the appellant No. 2, were in occupation of the premises as licencees. It was due to this the Society subsequently impleaded the appellant No. 2 as opponent No. 3 in the dispute application. It was further contended that their occupation of the suit premises was under the leave and licence agreement which continued even after 1st February, 1973 and so the appellant No. 2 are protected under the provisions of Bombay Rent Act as amended. They denied that they were causing any nuisance or annoyance to other mmbers of the Society. They also denied knowledge about the respondent being a defaulter in payment of Society's dues. They contended that the right, title and interest of Smt. Kalwani were not determined and the Society could not ask for the possession of the suit premises. The appellant No. 2 also filed a written statement adopting all the contentions raised by the appellant No. 1 in their written statement.
(3.) The Judge, Co-operative Court after hearing the parties and considering the evidences has made an award in favour of the Society holding inter alia that the opponent No. 1 is a member of the disputant society, that the opponents Nos. 2 and 3 are not their members but claiming through the opponent No. 1, that the dispute touches the business, management and constitution of the Society, thus failing within Sec. 91 of the Maharashtra Co-operative Societies Act. It was also held that the opponent No. I committed breach of Bye-laws, Rules and Regulations of the Society by inducting opponents Nos. 2 and 3 in the suit premises without the consent and permission of the society. The opponents Nos. 1 to 3 have been directed to hand over possession of suit premises to the disputants. The opponent No. I was also directed to pay Rs. 10,004.38 p. to the society with interest thereto @ 9% from the date of filing of the dispute.;