As per case facts, the petitioners challenged a Maharashtra State Cooperative Appellate Court order that allowed a dispute (seeking declaration, injunction, and direction for a joint lease deed) to proceed, ...
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AGK
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO.18770 OF 2024
1.Murlidhar Govind Takawale,
Age 82 years, Occupation Retired,
R/at: 41, Shamshilpa, Jedhe Nagar,
Bibvewadi, Pune 411 037
2.Vasundhara Shivraj Powar,
Age 53 years, Occupation Business,
R/at: 1573, C Ward, Yashwant Krupa
Building, Bindu Chowk, Shaniwar
Peth, Kolhapur 416 002
3.Vaidehi Subhashish Ghosh,
Age 45 years, Occupation Housewife,
R/at: Flat No.T1, Nirupama Apartments
167, Diamond Harbour Road,
Kolkata South 24, West Bengal 700 063
4.Vrushali Rajarshi Das,
Age 43 years, Occupation Service,
R/at: 15/22, Near Kasba Police
Station, Bose Pukur Road, Kolkata,
South 24, Wsest Bengal 700 063… Petitioners
Vs.
1.Deepali Pradeep Takawale,
Age 64 y ears, Occupation Homemaker,
R/at: E-604, Reelicon Garden Grove,
S/N/39 15B & 16 Ambergaon Budruk,
Pune 411 046
2.Mahendra Pradeep Takawale,
Age 41 years, Occupation Service,
R/at: E-604, Reelicon Garden Grove,
1
ATUL
GANESH
KULKARNI
Digitally signed by
ATUL GANESH
KULKARNI
Date: 2026.05.05
11:29:47 +0530
wp18770-2024-J.doc
S/N/39 15B & 16 Ambegaon Budruk,
Pune 411 046
3.Shri Chhatrapati Rajaram Cooperative
Housing Society Limited, having its
registered office at Survey No.682 A,
Bibvewadi, Pune 411 037
through it’s Chairman and Secretary
a)Chairman: Amit Ursal,
Age Adult, Occupation Business,
R/at Survey No.682 A, Bibvewadi,
Pune 411 037
b)Secretary: Ravindra Mane,
Age Adult, Occupation Business,
R/at Survey No.682 A, Bibvewadi,
Pune 411 037… Respondents
Mr. Shrivallabh S. Panchpor for the petitioners.
Mr. Shailendra S. Kanetkar for respondent Nos.1 and 2.
CORAM :AMIT BORKAR, J.
RESERVED ON :APRIL 29, 2026.
PRONOUNCED ON:MAY 5, 2026
JUDGMENT:
1.By way of the present writ petition instituted under Articles
226 and 227 of the Constitution of India, the petitioners have
assailed the legality, propriety, and correctness of the judgment
and order dated 10 October 2024 rendered by the Maharashtra
State Cooperative Appellate Court (Mumbai), Bench at Pune, in
Appeal No. 40 of 2024.
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2.The factual matrix, as set out by the petitioners and forming
the foundation of the present proceedings, is briefly stated thus.
The petitioners are the original opponents in Dispute No. 88 of
2023 instituted by respondent Nos. 1 and 2 seeking reliefs of
declaration, injunction, and a direction against respondent No. 3
to execute a joint lease deed in favour of respondent Nos. 1 and 2.
The said dispute came to be filed before Cooperative Court No. 2
at Pune. It is the specific case of the petitioners that respondent
Nos. 1 and 2, by employing concise yet artful drafting, have sought
to camouflage the real nature of the reliefs claimed, which, in
substance, fall outside the ambit of adjudication permissible under
Section 91 of the Maharashtra Cooperative Societies Act, 1960.
Respondent Nos. 1 and 2 have, inter alia, sought a declaration that
they are entitled to the execution of a joint lease deed. According
to the petitioners, such a relief, though couched in the form of a
declaratory claim, in effect seeks adjudication upon rights akin to
ownership in respect of the suit property, purportedly founded
upon a document described as a “family arrangement deed.” It is
contended that the said dispute does not pertain to or arise out of
the management or business of the concerned housing society and
therefore falls beyond the jurisdictional scope of Section 91 of the
Maharashtra Cooperative Societies Act, 1960. The petitioners
further submit that the very validity, character, and legal effect of
the alleged family arrangement deed are themselves contentious
issues requiring adjudication, which cannot be undertaken by the
Cooperative Court in exercise of its limited jurisdiction. It is thus
urged that the claim set up by respondent Nos. 1 and 2, even if
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traced through an associate membership, and predicated upon
what is alleged to be a legally untenable arrangement, does not
constitute a dispute touching the business of the society.
Consequently, the controversy between the parties is asserted to be
one lying outside the purview of Section 91 of the said Act.
3.Upon service of summons and notice issued by Cooperative
Court No. 2 at Pune, the petitioners entered appearance in the said
dispute proceedings. Contending that the dispute as framed was
devoid of jurisdiction and failed to disclose a cause of action
within the meaning of law, the petitioners preferred an application
at Exhibit 24 seeking rejection of the plaint/dispute under Order
VII Rule 11 of the Code of Civil Procedure, 1908. Respondent Nos.
1 and 2 filed their reply at Exhibit 25 opposing the said
application. The Trial Court, upon consideration of the pleadings,
the application, and the reply thereto, and after affording an
opportunity of hearing to both sides, proceeded to adjudicate upon
the said application. By its judgment and order dated 26 April
2024, the Trial Court was pleased to allow the application and
rejected the dispute, holding that it suffered from lack of
jurisdiction and absence of a cause of action, as contended by the
petitioners.
4.Being aggrieved thereby, respondent Nos. 1 and 2 carried the
matter in appeal. The Appellate Court, by its judgment and order
dated 10 October 2024, allowed the appeal and reversed the
findings recorded by the Trial Court. The Appellate Court set aside
the order of rejection passed by the Trial Court, observing that the
Trial Court had committed an error in law in its approach to the
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application and had arrived at an erroneous conclusion by
overlooking the peculiar facts and circumstances of the dispute. It
is in these circumstances that the petitioners, being dissatisfied and
aggrieved by the reversal of the Trial Court’s order, have invoked
the writ jurisdiction of this Court by filing the present petition.
5.Mr. Panchpor, learned counsel appearing on behalf of the
petitioners, submits that a dispute between a member of a
cooperative society and the society, provided it pertains to or
touches upon the business or management of the society, would
fall within the ambit of Section 91 of the Maharashtra Cooperative
Societies Act, 1960. However, it is contended that a dispute purely
inter se between members does not satisfy the jurisdictional
requirement under the said provision and, therefore, cannot be
entertained or adjudicated by the Cooperative Court. It is further
submitted that the question relating to the validity, enforceability,
and legal effect of a so-called family arrangement agreement lies
beyond the scope of jurisdiction conferred upon the Cooperative
Court under Section 91. According to the learned counsel, a
housing society cannot be compelled to act upon such an
agreement, particularly when its legality is itself under challenge
by rival claimants. It is thus urged that, in the absence of prior
adjudication regarding the legality and binding nature of the said
agreement inter se between the contesting parties, the society
cannot be directed to confer membership rights or to execute a
joint lease deed in favour of respondent Nos. 1 and 2 along with
the petitioners.
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6.Developing his submissions further, learned counsel contends
that where, by means of artful or clever drafting, an illusion of a
cause of action is created, it becomes the duty of the Court to
examine such pleadings at the threshold and to reject the same at
the earliest stage. It is submitted that a legitimate cause of action
for instituting such a dispute would arise only in a situation where
all parties to the alleged agreement, or those claiming through
them, jointly seek execution and registration of a lease deed and
the society refuses to act upon such a request. In the absence of
such circumstances, no cause of action can be said to exist. It is
further submitted that the provisions of Order VII Rule 11(a) to (f)
of the Code of Civil Procedure are attracted only in cases where
the plaint fails to disclose a cause of action or where the suit is
barred by law as contemplated under clauses (b) to (f). It is
contended that the power of rejection under the said provision is
to be exercised strictly in accordance with the conditions
prescribed therein. In particular, where rejection is sought under
Order VII Rule 11(d), the Court is required to identify the specific
provision of law under which the suit is barred. It is also urged
that, while deciding such an application, the Court is not expected
to undertake a detailed scrutiny of the evidence or to test the
merits of the defence raised by the defendants, as such an exercise
would amount to conducting a mini trial at a preliminary stage,
which is impermissible in law.
7.Placing reliance upon the settled legal position as enunciated
by the Supreme Court as well as this Court, learned counsel
submits that, upon a plain reading of the plaint, it becomes evident
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that the disputants have asserted their status as legal heirs of an
associate member in respect of Suit Plot No. 41 situated within the
respondent No.1-society. In support of this assertion, the
disputants have produced, inter alia, a copy of the share certificate
at Exhibit 3. A perusal of the said document, according to the
learned counsel, prima facie indicates that the name of one Mr.
Pradeep Govind Takwale, being the predecessor of the disputants,
came to be recorded as an associate member pursuant to a
resolution passed by the managing committee of the society in its
meeting dated 24 April 1980, acting upon a written request made
by the original member, Smt. Sushila Murlidhar Takwale. It is,
therefore, contended that the very foundation of the claim of the
disputants rests upon such associate membership.
8.In support of the aforesaid submissions, learned counsel for
the petitioners has placed reliance upon the judgment of this Court
in the case of
Alok Agarwal and Others vs. Punam Cooperative
Housing Society Limited & Others
,
2025 SCC OnLine Bom 5358.
9.Per contra, Mr. Kanetkar, learned counsel appearing for
respondent Nos. 1 and 2, submits that, upon a plain reading of the
statutory definition of “associate member,” it is evident that the
society had, in fact, recognized the rights of the predecessor of the
disputants in respect of the suit property by admitting him as an
associate member and thereby acknowledging his status as a joint
shareholder. It is contended that, in view of such recognition, and
upon the demise of the said associate member, the disputants,
being his legal heirs, are entitled to assert their rights and possess
the necessary locus to institute the dispute against the society. It is
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thus submitted that the parties to the present proceedings squarely
fall within the categories contemplated under Section 91(1)(a) to
(e) of the Maharashtra Cooperative Societies Act, 1960.
10.Learned counsel further submits that, insofar as the subject
matter of the dispute is concerned, the same pertains to the
entitlement of the disputants to seek execution of a joint lease
deed in respect of the suit plot. It is urged that, in the case of a
tenant ownership type housing society, it forms part of the
statutory and functional obligations of the society to execute lease
deeds in favour of its members in respect of the plots allotted to
them. In that view of the matter, the dispute raised by the
disputants directly relates to and touches upon the business and
management of the society within the meaning of Section 91(1) of
the Act. Consequently, it is submitted that the Cooperative Court
possesses the requisite jurisdiction to entertain and adjudicate
upon the dispute, and that the same has been rightly held to be
maintainable.
REASONS AND ANALYSIS:
11.I have heard the learned counsel for the parties at some
length and I have also gone through the pleadings, the orders
passed by the Courts below, and the material placed on record.
The dispute, in substance, arises from the order of the Cooperative
Court rejecting the dispute under Order VII Rule 11 of the Code of
Civil Procedure, and the later order of the Appellate Court setting
aside that rejection and permitting the dispute to proceed.
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12.The petitioners submit that the controversy is between
private claimants inter se, and not a dispute touching the business
or management of the society. Their submission is that Section 91
of the Maharashtra Cooperative Societies Act, 1960, cannot be
stretched to cover a claim founded on a family arrangement.
According to them, the society cannot be made to act upon a
document whose legal force is not tested between the contesting
parties. It is said that the disputants are only trying to convert a
family claim into a society dispute by a manner of clever drafting.
It is further urged that if the plaint does not disclose a real cause of
action against the society, the Court must reject it at once, because
a false appearance of cause of action cannot be allowed to survive.
13.The said argument of the petitioners cannot be accepted. It is
true that a pure family contest, may not become a dispute under
Section 91. It is also true that a cooperative court cannot be
allowed to travel beyond the statute. But the Court must see the
substance of the averments. The dispute here is not filed by total
outsiders. The disputants claim through a predecessor who was
shown as an associate member. They rely upon the share certificate
and the resolution of the society. If the society itself has recorded
such association, then at least prima facie the matter cannot be
said to be outside the society framework. The question whether
the claimed rights are legally sound, or whether the family
arrangement has binding effect, is a matter which may require
proof. It cannot be concluded in a casual manner only from the
petitioners’ objection.
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14.The learned counsel for the petitioners has relied upon the
principle that a cause of action created by clever drafting must be
nipped in the bud. That principle is not in dispute. But the same
principle does not mean that every case containing a disputed
factual foundation should be rejected without trial. Order VII Rule
11 is a drastic power. It can be exercised only when the defect is
clear from the plaint itself. If the Court has to travel into facts,
examine the effect of documents, or decide contested legal
consequences of a document, then the matter ordinarily goes
beyond the narrow compass of rejection at threshold. The Court is
not required to weigh evidence as if deciding the dispute. The
petitioners’ submission would have merit only if the plaint by itself
showed an absolute bar.
15.The petitioners have also argued that the legality of the
family arrangement deed cannot be decided by the Cooperative
Court. If the dispute were to turn only upon the declaration of title
as between family members, with no nexus to the society’s
obligations, then the question of jurisdiction may indeed arise. Yet
in the present matter the pleadings show something more. The
disputants assert that the society has recognized their predecessor
as an associate member. They seek execution of a joint lease deed.
The relief is to compel the society and connected parties to act in a
particular manner regarding the suit plot. Whether the disputants
succeed on merits is separate question. At this stage, it is enough
that the plaint discloses a dispute which cannot be dismissed as
wholly foreign to the society.
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16.The petitioners have further relied on the judgment in Alok
Agarwal and Others
. The said authority indeed supports the broad
proposition that the jurisdiction of the Cooperative Court is not
unlimited and that disputes must answer the statutory description.
However, every authority must be applied to its facts. If the plaint
in the present case contains an averment that the predecessor was
inducted as associate member by resolution of the society, and if a
share certificate is produced, then the matter cannot be treated as
one where there is no society relationship. The ratio of any
judgment cannot be used to short circuit factual controversies
which are unresolved.
17.The respondents submit that the society had recognized the
predecessor of the disputants as an associate member, and
therefore the legal heirs of such member have sufficient locus to
maintain the dispute. The share certificate, as referred in the
pleadings, indicates that the society passed a resolution and
recorded the name of the predecessor as associate member. That
document may not conclude every question. Yet it is enough to
show that the dispute does not arise in a legal vacuum. Once such
association is pleaded and supported by a document, the issue
whether the heirs can step into the shoes of the deceased member,
and to what extent, becomes a matter which demands
examination.
18.The respondents have also submitted that the subject matter
of the dispute relates to entitlement for execution of a joint lease
deed in respect of the suit plot, and that such matter falls within
the business and management of a tenant ownership housing
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society. If the plaint asserts that the society is bound to execute a
joint lease deed in favour of the disputants by reason of
membership and family arrangement, then the dispute does touch
the functioning of the society. Whether the society is in fact bound,
and whether the claim is enforceable, are matters to be decided
after evidence. But the jurisdictional objection cannot be accepted
merely because the pleadings also involve a family arrangement.
19.As explained in Bank of India Staff Panchsheel Cooperative
Housing Society Limited
, there is a distinction between jurisdiction
and maintainability. Jurisdiction and statutory bar are not the
same. A plaint can be rejected under Order VII Rule 11(d) only
when the bar is clear on the face of the plaint. If the Court has to
examine evidence, or if the question is mixed of law and fact,
rejection is not the proper course. This principle applies with force
here. The petitioners’ objection is not founded upon a statutory
prohibition appearing plainly from the plaint. It is founded upon a
contested understanding of the status of the predecessor and the
effect of the society’s own resolution. These are not matters that
can be disposed of on a bare reading of the plaint.
20.The said distinction becomes important because the
petitioners seek rejection not on the ground that the society has no
relation at all with the dispute, but on the ground that the rights
claimed are concealed behind drafting. Even if that argument is
accepted to some extent, it still does not answer the threshold test
under Order VII Rule 11. Concealment may be exposed after the
parties lead evidence and the Court examines the true character of
the claim. It is not enough that the petitioners raise a strong
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defence. A strong defence is not the same as a clear bar. The law
requires more. The plaint must itself reveal the defect beyond
doubt. Here, the plaint rather discloses a document, a society
resolution, an associate membership, and a claim for joint lease.
Therefore, the matter had to be permitted to go forward.
21.The Trial Court accepted the petitioners’ objection in a
manner which went too far at the initial stage. The Appellate Court
was therefore right in interfering. The order of rejection could not
have been sustained because the Court below treated disputed
questions as if they were admitted facts. It assumed that the family
arrangement was ineffective and that the dispute was outside
Section 91. Such conclusions could not be recorded on an
application under Order VII Rule 11. The Appellate Court correctly
noticed that the Trial Court had erred in law by not confining itself
to the plaint averments and the limited scope of the provision.
22.In the totality of the matter, the picture which emerges is
this. The petitioners have raised arguable questions on jurisdiction,
on the nature of the dispute, and on the effect of the family
arrangement. The alleged bar is neither express nor self-evident
from the plaint itself. The case therefore does not fall within the
narrow limits of Order VII Rule 11(d). The proper course is trial,
not rejection.
23.For these reasons, the overall assessment goes against the
petitioners. The order passed by the Appellate Court does not
suffer from such illegality or perversity as would justify
interference in writ jurisdiction. The writ petition, therefore,
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deserves to fail. The dispute may proceed before the Cooperative
Court in accordance with law, and all contentions of the parties on
merits are kept open to be decided on the basis of evidence and
final hearing.
24.In view of the foregoing discussion and reasons recorded
hereinabove, the following order is passed:
(i) The writ petition stands dismissed;
(ii) The judgment and order dated 10 October 2024 passed
by the Maharashtra State Cooperative Appellate Court,
Mumbai, Bench at Pune in Appeal No. 40 of 2024 is hereby
upheld;
(iii) The order dated 26 April 2024 passed by the
Cooperative Court No. 2 at Pune rejecting Dispute No. 88 of
2023 is set aside, and the said dispute is restored to the file
of the Cooperative Court for adjudication on merits in
accordance with law;
(iv) It is clarified that all observations made in the present
judgment are prima facie in nature and confined to the
adjudication of the application under Order VII Rule 11 of
the Code of Civil Procedure, 1908, and shall not influence
the Cooperative Court while deciding the dispute on its own
merits;
(v) All contentions of the parties on merits are expressly
kept open;
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(vi) The Cooperative Court shall proceed with Dispute No.
88 of 2023 expeditiously and in accordance with law;
(vii) There shall be no order as to costs.
(AMIT BORKAR, J.)
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