maintainability of suit
Amar Jadhav
(Querist) 31 May 2013
This query is : Resolved
Pls guide me with relevant authorities. In my one matter the suit is filed for declaration and injunction. In present suit there are seven defs I m for society. Before this suit plaintiff has filed a suit against defs No.1(defs No. 2 to 7 are not party in it)on same cause of action and seeking same relief which he had sought in present suit. In previous suit status quo order was granted but the suit got dismissed and after that appeal was preferred and was allowed by order to restore the suit. But suit was not restored due to file misplaced def No.1 didn't hv any knowledge of above said except original suit dismissed. Now after 7 years plaintiff file fresh suit against def no.1and others I.e me a register society to whom deft no.1 sold property. Simultaneously pltf filed application for reconstruction of misplaced suit pending that application and fresh suit the lost suit file is found. Now plaintiff is conducting both suit in different court. I hv filed W.S and say and want to file application on ground of maintainability and jurisdiction so pls guide me. In this suit there are two plaintiffs and only one out of them hv sent statutory notice u/s 164 of Maharashtra Co-op Societies Act
Hemang
(Expert) 31 May 2013
When there is a dispute between a member of the society and a co-operative society, the Civil Court has no jurisdiction whatsoever. The jurisdiction of the Civil Court is expressly barred. The issue can be resolved through the reference under Section 96 of the Co-operative society's Act. Raise the preliminary issue.
Shantilal Pandya
(Expert) 03 August 2013
MrJadhav
your posting is not lucid and clear enough to offer a suitable reply,you need to state clearly the nature of the two suits in details. the identity and respective interests of the parties are also to be stated without winch it is difficult to express any opinion on the maintainability or otherwise of the suits or offer suitable comments.
prabhakar singh
(Expert) 03 August 2013
"Now plaintiff is conducting both suit in different court. I have filed W.S and say and want to file application on ground of maintainability and jurisdiction "
1.Two identical suits about the same subject matter can not go togather.An Stay of the subsequent suit can be sought under section 10 C.P.C.
2.If plaintiffs are members of the Co-operative society spoken by you, suits are barred as rightly spoken by Mr.Hemang.
3.But if plaintiffs are not members of the Co Operative Society then suit can be filled filled but not before serving statutory notice on the Co Operative Society as contemplated in s.164 of Maharashtra Co-op Societies Act .
So twofold remedies you have:
a)an application to stay subsequent suit; and/or
b)to press as preliminary issue that the civil court has no jurisdiction or to press that suit is barred for want of statutory notice,as the case may be,if the plaint contains no averment about service of notice before suit.
Amar Jadhav
(Querist) 01 September 2013
Thank u all of u. But still i hv one query that, in my present suit plaitiffs are not member of cooperative society. Only one plaintiff hv issued statutory notice u/s 164 of Mah.Coop Soc Act, the other plaintiff hv not issued said notice. So whether suit is maintainable by the plaitiff who hv not issued notice. Another query is that, plaintiff hv only made cooperative hsg socuety as defendant so whether the suit is maintainable against cooperative hsg society where its members/office bearers are not made party to suit.
pls resolve my abovesaid query wth relevant case law if any. Thnks once again
