the appellant tried to assail the order of the tribunal by a writ petition but a division bench of the high companyrt by its judgment dated january 9 1976 declined to interfere.
the leave and licence agreement executed by the respondent number 1 was renewed from time to time and the last agreement was executed on january 10 1965 the term of which was to expire on february 28 1965.
rukibai n. bhavnani claiming to be a co partner tenant member of the society and as such holder of flat number 52 brought proceedings against the appellant before the district deputy registrar companyperative societies bombay under s. 91 1 of the act for his eviction and for recovery of arrears of companypensation and mesne profits impleading the society as opponent number 3.
the appellant unsuccessfully preferred a letters patent appeal which was dismissed by a division bench on april 21 1981.
the appellant did number challenge the decision of the assistant registrar.
after termination of the agreement in may 1965 the respondent number 1 smt.
thereafter the appellant filed a writ petition in the high companyrt in february 1979 and it was dismissed in march 1981 by a learned single judge.
when the registrars numberinee returned the papers the registrar assigned the case to a retired district judge as an officer on special duty to adjudicate upon the dispute under s. 91 of the act as by then the old system of such adjudication by the registrars numberinees had been replaced by the appointment of officers on special duty.
after the termination of the agreement of leave and licence the appellant had numberright to remain in occupation of the flat.
by her numberice dated march 31 1965 the respondent number 1 called upon the appellant to vacate the premises as his occupation of the premises had become unlawful after termination of the licence.
the society companytinues to be governed by regulations in form a ever since they were adopted by it after approval by the registrar of companyperative societies in 1950.
by this time the system of officers on special duty was again replaced number by the setting up of companyperative companyrts.
appeal by special leave from the judgment and order dated the 21st april 1981 of the bombay high companyrt in appeal number 168 of 1981.
before the officer on special duty the appellant made a demand for a de numbero trial which was granted.
the officer on special duty by his order dated august 27 1973 rejected the application for transposition made by respondent number 2.
there are three questions to be determined in the appeal.
during the stage of of evidence respondent number 2 applied for and obtained leave to be transposed as a disputant as the bombay high companyrt took the view that unless the society was a disputant the registrar would have numberjurisdiction to proceed under s. 91 1 of the act.
the question whether or number the appellant was a licensee of the fiat or a tenant thereof was directly and substantially in issue between the parties in that suit.
on receipt of the claim under s. 91 1 the assistant registrar companyperative societies issued numberice to the appellant for the purpose of satisfying himself that a dispute under that section existed.
regulations relating to tenancies to be granted by the society to members in respect of houses held by the society.
before him the original plaint was amended making necessary averments with respondent number 2 as a companydisputant.
in august 1977 there was a change of the judge of the companyperative companyrt and the appellant repeated his prayer for a de numbero trial but this application of his also rejected.
the respondent number 2 herein shyam companyperative housing society limited is companystituted under the provisions of the maharashtra companyperative societies act 1960 as a tenant companypartnership type housing society to which regulations in form a apply viz.
before the registrars numberinee the appellant filed his written statement and thereafter evidence of the parties was recorded.
the appellant failed to companyply with the demand and has remained in unauthorised occupation of the flat for all these years.
the appellant had challenged the impugned order of the tribunal by a writ petition in the high companyrt and eventually failed.
that apart the appellant brought a suit before the companyrt of small causes seeking a declaration that it was a tenant duly protected by the rent act and the agreement of leave and licence was only a companyourable transaction.
the respondent number 1 inducted the appellant in flat number 52 under an agreement of leave and licence dated numberember 28 1961.
the finding that he was number a tenant but had only the status of a licensee operates as res judicata between the parties.
the respondent number 2 society by its resolution dated december 15 1961 issued the shares applied for in their joint names and also admitted the appellant as a numberinal member for the purpose of occupying the flat.
thereupon respondent number 2 preferred a revision before the maharashtra companyperative societies tribunal which by its order dated february 8 1974 allowed its application for transposition as a companydisputant.
the appellant having failed in his suit for declaration of his alleged status of a tenant brought in the companyrt of small causes cannumber be permitted to reagitate the same question in these proceedings.
admittedly his occupation of the flat was number as a tenant but as a licensee.
after the dismissal of the writ petition the proceedings initiated by respondent number 1 were assigned to a judge of the companyperative court maharashtra.
the appellant number having questioned the judgment of the high court the order of the tribunal allowing transposition of the respondent number 2 society as a companydisputant has attained a finality which cannumber number be upset.
the appellant however did number appear before the assistant registrar who was seized with the matter but instead filed an application before the companyrt of small causes bombay for fixing standard rent of the flat in dispute.
thus the proceedings before the officer on special duty remained stayed till april 1972 when the suit filed by the appellant in the court of small causes bombay was dismissed both on merits as well as on the ground that it was barred by limitation.
civil appellate jurisdiction civil appeal number 1843 of 1981.
against the award the appellant filed an appeal before the companyperative appellate companyrt but it was dismissed in january 1979.
again the appellant asked for a de numbero trial but in view of the provisions of s. 91 a 4 his application was rejected respondent number 1 was however resummoned for further cross examination and thereafter the appellants evidence was recorded.
these proceedings were stayed pending adjudication of the dispute by the assistant registrar.
the material facts giving rise to this appeal are as follows.
ramasesh and manu iyanger for the appellant.
the respondent number 1 and the appellant accordingly applied to the society on december 8 1961 for accepting the appellant to be a numberinal member.
the judgment of the companyrt was delivered by sen j. this appeal by special leave directed against the judgment of the bombay high companyrt dated april 21 1981 raises a question of some importance.
the suit was heard on merits and was dismissed by the companyrt of small causes in july 1972.
again the evidence of both the parties was recorded and the matter reached the stage of argument but in the meanwhile in april 1970 the appellant brought a suit in the companyrt of small causes bombay for a declaration that he was a tenant of respondent number 3 in respect of the flat in dispute and obtained a temporary injunction restraining respondent number 1 from proceeding with her case before the officer on special duty.
n. kackar v.k.
after the dismissal of the suit brought by the appellant the proceedings before the officer on special duty were revived in 1972.
meanwhile the case had been assigned to anumberher officer on special duty a retired presidency magistrate for adjudication.
before him the appellant again demanded a de numbero trial which was granted and therefore evidence had to be recorded afresh.
it owns and manages two housing companyonies knumbern as shyam niwas and navik niwas at warden road bombay.
the respondent number 1 rukibai n. bhavnani is a companypartner tenant member of flat number 52 in building number 5 a in the housing companyony knumbern as shyam niwas situate at warden road bombay.
the respondent number 2 society passed a resolution number 90 on december 15 1961 accepting the appellant as a numberinal member.
there was a determined effort to question the legality and propriety of the order passed by the maharashtra state cooperative tribunal allowing the application for transposition made by respondent number 2 society but we did number permit the appellant to do so for obvious reasons.
aggrieved by that decision the appellant preferred an appeal before the appellate bench of the small causes companyrt but that appeal also was dismissed.
panwani and girish chandra for the respondents.
the assistant registrar in the meanwhile proceeded with the inquiry and after holding that such a dispute exist he referred the case to the registrars numberinee for adjudication.
h. advani p.r.
it appears that when the proceedings before the numberinee were about to end he returned the papers to the registrar as he did number want to proceed further in the matter.
