ORAL ORDER

1. At the joint request of learned advocates for the parties, the present First Appeal is taken up for final hearing.

2. By way of the present First Appeal, the appellant – original plaintiff has challenged the judgment and order dated 28.12.2023 passed by the learned City Civil & Sessions Court, Ahmedabad in Civil Suit No.606 of

2021, wherein the plaint is rejected under Order VII Rule

11 of the Code of Civil Procedure.

2. Heard learned advocates for the parties.

3. Learned advocate for the appellant has submitted that the present appellant is the Chairman of Aman Apartment Owners Association. The said association is registered on 24.09.1992 under the Bombay Non-trading Corporation Act bearing registration No.NTCG5404. The residential flats were constructed by the said association on the land bearing T.P. Scheme No.20, Final Plot No.233 of Sub-plot No.9 & 13 admeasuring about 753 sq.mts.

3.1 It is further submitted that the defendant was allotted Flat No.3 and became a member of the said association. The terrace over the flats is a common terrace. However, defendant has occupied the common terrace illegally and restrained the other members of the association to use the common terrace. It is further submitted that the respondent placed a solar system on the said common terrace. A legal notice was also given by the plaintiff on 28.02.2021. Since the defendant did not remove the solar panel, the plaintiff – appellant was constrained to file the suit for declaration and removal of the solar panel from the common terrace. A declaration was also sought for to the effect that, the members of the association have a right in the disputed property i.e. the common terrace.

3.2 It is further submitted that the defendant - Respondent appeared and filed an application Ex.25 under Order VII Rule 11(d) of the Code of Civil Procedure. The learned trial Court after hearing the parties allowed application Ex.25 and rejected the plaint.

3.3 Learned advocate for the appellant has relied upon the decision passed by this Court in Appeal From Order No.216 of 2013 and allied matters on 08.07.2013.

4. Learned advocate Mr.Manv Mehta for the respondent has submitted that the learned trial Court has not committed any error by rejecting the plaint. It is submitted that the suit has been filed by the plaintiff as a Non-trading Corporation registered under the Non-trading Corporation Act, 1959. The Non-trading Corporation Act, 1959 stood repealed by Act No.06 of 2005. Therefore, Arvindsinh K. Rehever has no right to represent himself as a Chairman of Aman Apartment Owners Associations. After the repeal of the Non-trading Corporation Act, 1959 plaintiff is not entitled to file any such suit for and on behalf of Non Trading Corporation. Since the suit itself is not maintainable, the provisions of Order VIII Rule 11(d) of the Code are applicable, and the learned trial Court has rightly rejected the plaint.

4.1 It is further submitted that when the suit was filed, there was no existence of Non-trading Corporation. Hence, the rejection of the plaint was sought for by the defendant.

4.2 Learned advocate for the respondent has relied upon the following decisions:-

(i) Mohsin Habibkhan Malek Vs. Asanskar Owners Association (Paldi) & 7 passed by this Court in Appeal From Order No.189 of 2013 with allied matter on 08.08.2013.

(ii) Gujarat Institute of Housing & Estate Developers & 2 Vs. Gujarat Institute of Housing & Estate Developers Ltd & 7 passed by this Court in Appeal From Order No.21 of 2010 on

21.04.2010.

5. This Court has considered the submissions and the averments made in the plaint. The suit is for the declaration and permanent injunction. The allegation of the plaintiff is that the defendant has committed a tress-pass and occupied the common terrace of Aman Apartment and the defendant has installed a Solar panel in the common terrace without any permission from Association. It is also the case of the plaintiff that no prior permission was sought for by the