ORAL ORDER

1. Heard Mr.Dhaval Vyas, learned advocate for Mr.D.A.Sankhesara, learned advocate for the petitioners and Mr.H.M.Tahiliani, learned advocate for the respondent.

2. In this petition under Articles 226 and 227 of the Constitution of India, the petitioners have made the following substantive prayers.

“(B) The Hon’ble Court be pleased to quash and set aside the order dated 02.03.2019 passed below Exh.28 at Annexure : A to this petition.

(C) Pending final hearing and disposal of the Special Civil Application, YOUR LORDSHIPS may be pleased to stay the order, operation and implementation of the order dated 02.03.2019 passed below Exh.28 in Regular Civil Suit No.480 of 2015 at Annexure:A to this petition.

(D) Pending final hearing and disposal of the Special Civil Application, YOUR LORDSHIPS may be pleased to stay the proceedings of the Regular Civil Suit No.480 of 2015 pending before Learned Principal Senior Civil Judge, Mirzapur, Ahmedabad (Rural).”

3. The facts giving rise to the present petition are not many and in narrow compass. The respondent is the original plaintiff, whereas petitioners are the original defendants in Regular Civil Suit No.480 of 2015 pending in the court of learned Principal Senior Civil Judge, Ahmedabad (Rural). The respondent has filed the aforesaid suit for seeking declaration that the petitioners are not entitled to raise height of common wall and construct temporary shed in tenement No.61. The respondent has also taken out an application Exh.5 for restraining the petitioners from making any construction. The petitioners submitted an application Exh.28 for raising preliminary issue regarding jurisdiction of the trial Court as the petitioners and the respondent are members of the Cooperative Housing Society and under section 166 of the Gujarat Cooperative Societies Act 1961, the Civil Court has no jurisdiction to try the suit between the members of the cooperative society. Learned trial Judge by the impugned order dated 2.3.2019 rejected the application.

Therefore, the present petition is peferred.

4. Mr.Dhaval Vyas, learned advocate for the petitioners has submitted that learned trial Judge has discussed the merits of the case while rejecting the application which is not permissible in view of the decision of this Court in the case of Bharat Heavy Electricals Limited Vs General Contract Company, reported in 1995 (2) GLH 1029. It is his further submission that ordinarily, the Civil Court has no jurisdiction even in deciding dispute inter-se between the members of the cooperative society. To butress his submission, he has relied upon the decision in the case of Manjulaben Dahyabhai Trivedi Vs Pushpaben Mangaldas Patel and another, reported in 2007(2) GLR 1269. He, therefore, urges that the order impugned may be set aside and the matter may be remanded to learned trial Court for fresh consideration.

5. Mr.H.M.Tahiliani, learned advocate for the respondent submits that issue of easementary right is involved in the suit and it is the Civil Court alone which can decide the issue of easementary right. He further submits that the petitioners have taken contradictory statement in the written statement and therefore also, the Civil Court has jurisdiction to try the suit. He has drawn attention of this Court to the averments made on pages 69 and 70 of the paper book which contain the written statement of the petitioners. According to his further submission, learned trial Court has already raised issues and one of the issues raised by the learned trial Court is, whether the defendant proves that the suit is false and is not maintainable ? He, therefore, submits that when the issue regarding maintainability of the suit has already been framed by learned trial Court, now there is no necessity to frame preliminary issue regarding maintainability of the suit. He has relied upon paragraphs 10, 11, 16, 17 and 19 of the reply affidavit to submit that dispute raised in the suit does not fall under section 96 of the Gujara