Mumbai: In a significant ruling emphasising judicial discipline and the need for litigation finality, the Bombay High Court has set aside an order that permitted a housing society to withdraw a decades-old legal dispute and file a fresh one.
HC Allows Petition by Shree Champalal Kothari Trust Challenging Appellate Court Decision
Justice Amit Borkar allowed the petition filed by Shree Champalal Kothari Trust, challenging the Cooperative Appellate Court's decision which had affirmed the withdrawal and refiling permission granted to Rajhans Cooperative Housing Society Ltd. The order was passed on November 10, and was made available on Saturday.
Original Dispute Dates Back to 1979; Limited Remand Given in 2007
The dispute, originally filed in 1979 for possession and recovery of dues. The Appellate Court in 2007 had specifically sent the matter back to the Cooperative Court, "to decide it afresh in light of the observations made" and to allow the Society "to produce the four documents and lead oral evidence limited to proving those documents."
Society Sought Withdrawal Citing Defective Pleadings and New Evidence
The Society, however, sought to withdraw the entire dispute in 2016 under Order 23 Rule 1(3) of the Civil Procedure Code, citing reasons like defective pleadings, failure to claim proper reliefs (such as demolition for unauthorised construction), and the discovery of a sanctioned building plan in 2018.
Petitioners Argue Court Exceeded Jurisdiction; Withdrawal After 46 Years Unjustified
Advocate Arun Panickar, representing the petitioners, argued that the Cooperative Court had exceeded its jurisdiction, as the remand was strictly limited. He contended that allowing a fresh dispute after 46 years would only prolong the hardship to his clients.
Society Claims Need for Fresh Proceedings Over Encroachment and Unauthorised Construction
Rohan Sawant, counsel for the society, argued for a liberal interpretation of 'formal defect' and submitted that the discovery of the sanctioned plan necessitated a fresh proceeding to seek demolition and other appropriate reliefs, arguing,
"The issues now include encroachment and unauthorised construction. The society must file fresh proceedings seeking demolition and other reliefs."
Court Rejects Society’s Grounds, Says Issues Go to Substance, Not Form
Justice Borkar, however, strongly rejected the society's grounds. The Court observed, "These are not minor omissions that go to form. These are matters that go to substance," and that the Society was attempting "reconstruction, not rectification."
HC Says Trial Court Acted Beyond Remand Scope; Order 23 Cannot Give 'Fresh Innings'
The judge ruled that the Cooperative Court acted contrary to the Appellate Court's specific direction, stating: "The Trial Court could not travel beyond the four corners of the remand order. The appellate direction operated as a mandate."
He further noted that Order 23 Rule 1(3) "is not meant to give a fresh innings to a party who wants to improve its case after passage of several decades."
The judge added that courts must work toward finality: “Courts exist to resolve disputes, not to perpetuate them.”
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Withdrawal Order Quashed; Cooperative Court Directed to Proceed as per 2007 Remand
The HC quashed the withdrawal order and directed the Cooperative Court to proceed with the dispute "strictly as per the remand order dated 2 February 2007," confining the inquiry to the four documents and related evidence.
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