Point of law : If a suit is instituted before a Civil Court against a co-operative society touching the business of the Society, then notice under Section 167 of the Act is mandatory.

ORDER :

1. The Regular Civil Suit No.1335 of 2019 came to be instituted by the respondent herein (original plaintiff) with the following prayers :-

“(A) Your Honour may be pleased to award the decree in favour of I-Plaintiff and against the Respondents by declaring that, the Respondents or their agents, servants or other third parties have no right to obstruct in the suit property occupied by me.

(B) Your Honour may be pleased to award the decree in favour of I-Plaintiff and against the Respondents that, the Respondents of this case or their servants, agents or third party accomplices shall not do or cause to do any act which may damage the property owned and occupied by I-Plaintiff and which may obstruct the road accessing to the property and the essential service like water, sewage or light.

(C) Please grant any other relief which may deem fit to the Hon’ble Court.

(D) Please grant the cost of this Suit.”

2. The appeal from order filed under Order 43 Rule 1 of the Civil Procedure Code alongwith civil application for stay wherein the appellant seeks to challenge the order dated 28.9.2021 passed by the City Civil Court No.5, Ahmedabad in Civil Suit No.1335 of 2019 below notice of motion Ex.6/7 by which the prayer in terms of para-10(A) came to be granted i.e. the appellant herein (original defendant No.1) came to be restrained from entering into the suit property and with a further direction not to disconnect the water, light and drainage connection till final disposal of the suit. The operative para of the order passed by the lower Court below Ex.6/7 is produced thus :-

“The notice taken out by the plaintiff is hereby allowed. The relief sought in para 10-A of this application is hereby allowed against the defendants and in favour of the plaintiff as prayed for till final disposal of the suit.”

3. The appellant has approached this Court being aggrieved and dissatisfied by the order dated 28.9.2021 passed by the learned City Civil Court, Ahmedabad below Ex.6/7.

4. The facts giving rise to this appeal are summarized as under :

4.1 It appears that the respondent No.1 (original plaintiff) is a member of the Flat No.B/6 in the Cooperative Housing Society known as “New Asiyana Apartment Cooperative Housing Society Ltd.,” (for short ‘society’) which is registered on 6.5.1978 under the Cooperative Societies Act. There are in all 66 flats which were constructed before around 40 years and the said building is in a dilapidated condition. The Chairman and Secretary of the Society called general meeting of the members of the society on several occasions and passed resolutions and accordingly entered into an MoU with Art Nirman Ltd., and/or Dhara Developers for the redevelopment of the society. The appellant here is one of the partners of Art Nirman Ltd. In the said suit the respondent herein (original plaintiff0 has joined the appellant in the individual capacity and not in the capacity of Company or partnership firm.

Submissions on behalf of the appellant (original defendant No.1) :-

5. Mr. Apurva Kapadia, the learned counsel appearing for the appellant vehemently submitted that the suit filed by the respondent herein is not maintainable inasmuch as the jurisdiction of the Civil Court itself is barred as the suit property is registered under the provisions of the Gujarat Cooperative Societies Act, 1961 and the respondent (original plaintiff) has not joined the New Asiyana Apartment Cooperative Housing Society Ltd., as party to the proceeding. The suit is filed against the private person and, therefore, the Civil Court has no jurisdiction to deal with the subject matter of the suit and the injunction ought not to have been granted. It is submitted that the issue involved in the suit is to be decided by the Cooperative Societies Tribunal as the dispute is between the members of the Association. The learned Civil Court has no jurisdiction to entertain such suit and, therefore, the lower Court ought not to have granted injunction as prayed for by