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Suit No. 957 of 1953, Application for stay decided on 19th July 1954.

S. 54 Some of the defendants not members of Society or those Claiming through members‑Section, held, inapplicable‑Arbitration Act (X of 1940), S. 34‑Suit not stayed.

Section 54, Bombay Co‑operative Societies Act (VIII of 1925), does not apply in a case in which some of the defend ants are not members of the Society or those Claiming through them.

In such a case an application for stay of suit under section 34, Arbitration Act (X of 1940) was therefore, dismissed on the ground of inapplicability of section 54 of the Bombay Co‑operative Societies Act (VIII of 1925) as well as on the ground of the power under section 34, Arbitration Act being discretionary.

Dinkar Wasudeo Joshi v. The Registrar, Co‑operative Societies, Bombay A I R (1946) Bom. 346 ref.

Ali Ahmad Fazeel for Plaintiff.

Azmatullah, for Defendants.

‑This is an application under section 34 of the Arbitration Act for stay of the suit.

The plaintiff is a member of the Pir Illahi Bux Co‑opera tive Housing Society Limited which is defendant No. 1 in this case. Defendant No. 2 was the organiser and a member of the said Society. The plaintiff paid certain amounts to defend ant No. 2 and secured allotment of certain plots in his own name. He got some of those plots but not the others; and the other plots, the possession whereof he has not been able to get, are said to be in the possession of 'defendants 3 to 5, who are not members of the Society. The plaintiff has there fore filed this suit for possession of the quarters in question and also for a refund of Rs. 7,500 with interest and costs of the suit.

The learned advocate for the Society defendant No. 1 has now made this application under section 34 of the Arbitra tion Act for stay of the suit on account of the statutory provisions contained in section 54 of the Bombay Co‑operative Societies Act. This application has been vehemently opposed by the learned advocate for the plaintiff who relies on the ruling reported in the case of Dinkar Wasudeo Joshi v. The Registrar, Co‑operative Societies, Bombay (A I R (1946) Bom, 346). Under section 54 two conditions must be fulfilled. The first is that there should be a dispute touching the business of a Society and the second is that such a dispute must be between the Society or its committee or between the members or past members or those who Claim through them. Defendants 3 to 5 are alleged not to be members of this Society. The learned advocate for the Society is not able to say, although the records of the Society are in his possession, whether defendants 3 to 5 are members of the Society or otherwise. His argument is that since they are in possession of the plots they must be considered as members or those who Claim through mem bers otherwise they cannot come to be in possession of the plots in question. But the learned advocate quite forgets a third class of human beings who go by the name of tres passers. It may be that defendants 3 to 5 are trespassers only, and the greater likelihood is of that kind, looking to the state in which the Society defendant 1 stands to‑day. Defendants 3 and 4 have been debarred from defending the suit and defendant 5 and his advocate are not present to‑day. It shows that these people have very little interest in the plots which they are possessing. In these circumstances it is im possible to grant this application and stay the proceedings. In the first place section 54 does not apply to the facts of this case because defendants 3 to 5 are not proved to be the mem bers or those Claiming through the members; in the second place the power under section 34 of the Arbitration Act is discretionary and I think if this discretion is to be judicially exercised it should be exercised in favour of the plaintiff and not the Society.

I dismiss this application with costs.

A. H. Application dismissed.

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