TITLE: Madhuben Bharatkumar Kapadia V Govindbhai Khimjibhai Bharwad and Others
Decided On-: July 01, 2023
8783 of 2014
CORAM: Hon’ble Justice Mr. Ilesh Vora
INTRODUCTION- The petitioner in question Madhuben Kapadia had filed an application on behalf of the society, Vishal Industrial Cooperative Service Society Limited, which was duly registered with the Registrar, Cooperative Societies in Surat.
FACTS OF THE CASE
The members of the society defendant No. 4, or Vishal Industrial Cooperative Service Society Limited, sold plot Nos. 21 to 32 to the plaintiffs. Since the original owner Parwatiben Mohanlal etc. did not honour the financial assistance provided by Vaz Cooperative Society, the society defendant No. 4 acquired the entire parcel of land at a public auction. The defendant No. 4 society received the required approval from the Bhatar-Majura, Panchayat Office in Surat in the year 1981, and in accordance with the plan, the various plots, including the suit plots, were allotted to the respective members. The plaintiffs argue that the owner of the plots, including the society, is legally obligated to clear the title of the plots but failed to transfer possession in accordance with the approved plan. In these conditions, the plaintiffs respondents have asked that the defendant be ordered to clear the title of the purchased plots and turn over peaceful and vacant possession thereof. They have also asked for a permanent injunction, preventing the defendants from transferring, alienating, or establishing third party rights in the suit land. As there are many members of the society who share the same interest in the lawsuit, the lawsuit was filed in a representative capacity in accordance with Order 1 Rule 8 of the CPC.
As the lawsuit cannot be maintained in its current form before the Civil Court, defendant No. 4 Society raised this concern in its written statement. Furthermore, it is claimed that the plaintiff and the seller of the plots, who have been added as defendants in the lawsuit, carried out the sale transactions without the society’s approval and in collusion with one another.
COURT ANALYSIS AND DECISION
learned Senior Counsel testifying on the petitioners’ behalf claimed that the respondents Nos. 1 through 6 acquired the plots from the defendants Nos. 1 through 3 without the Society’s—defendant No. 4’s—NOC. The petitioner in this case moved an application for their inclusion as a party in the suit proceedings in response to the public notice, and they specifically stated before the trial Court that the suit was filed in collusion with the members who had sold the plots. The petitioners wished to contest the suit because it is against the interests of the defendants No. 4 society’s members and the relief sought is against those members’ interests.
To the contrary, learned counsel Mr. Viral Shah argued in opposition to the arguments that the contested order adding the petitioner as a co-plaintiff was made with sufficient justification, that it cannot be deemed perverse or arbitrary, and that it is not necessary for this Court to intervene. He argued that all members will benefit from the relief sought in the lawsuit because it is in the common interest of the petitioner third party and other plot holders.
For the aforementioned reasons as well as the unique facts and circumstances of this case, this Court is adamant that the common orders challenged below are not legal and are hereby revoked.
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Written by- Steffi Desousa
