* 1 * IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION FIRST APPEAL NO. 52 OF 2010 The Association of Villagers of Village Gavanpada, Koliwada, Mulund (East) & Ors. ...........Appellants V/S. Mukund Iron & Staff Co-op Hsg. Soc. Ltd & Ors. ...............Respondents --------- Mr. Deepak Chitnis i/by. Deepak Chitnis-Chiparikar & Co., adv.for the appellants. Mr. S.M. Oak, adv.for respondent no.1. Respondents no.2 to 4 absent. CORAM : SMT. R.P. SONDURBALDOTA, J. DATED : 22 nd MARCH, 2010. P.C. :- 1. This appeal arises out of the judgment and order dated 17th June, 2009 by which the Bombay City Civil Court dismissed Long Cause Suit No. 2576 of 2007. The suit was dismissed on the ground of it’s maintainability as well as on merits. 2. Considering the facts and circumstances of the case, the appeal is being disposed off finally at the stage of admission. Records and proceedings, as well as, the paper-book is dispensed with. * 2 * 3. Respondent no.1 which is a Co-operative Housing Society and respondent no.2-Mumbai Municipal Corporation had questioned maintainability of the suit for want of service of notice under Section 164 of the Maharashtra Co-operative Housing Societies Act, 1960 and under Section 527 of the Mumbai Municipal Corporation Act respectively. The trial court accepted the contention of respondent no.1 and rejected that of respondent no.2. The trial court has also rejected the case of the appellants on merits of the prescriptive right claimed by them of five village paths passing through the property of respondent no.1. 4. Section 164 of the Maharashtra Co-operative Societies Act, 1960 creates a bar against filing of suit against a Society or any of its officers in respect of any Act touching the business of the Society, until the expiration of two months next after notice in writing has been delivered to the Registrar or left at his office, stating the cause of action, the name and description and place of residence and other details required by the Section. This notice admittedly had not been served upon on the Registrar by the appellants. 5. Mr.Chitnis, the learned counsel for the appellants made an attempt to justify non-service of statutory notice under Section 164 by submitting that such a notice was not warranted as the dispute arising in the suit, does not touch the business of the Society. The submission advanced is difficult to accept. Respondent no.1 being a Co-operative Housing Society, its business is to construct houses for its members, manage its property. Managing the property includes maintaining and repairing the same. The right of way * 3 * claimed by the appellants, admittedly run through the property of respondent no.1. Besides, the appellants have also sought permanent injunction to restrain respondent no.1 from constructing compound wall around its property and/or from carrying out any repairs thereto. Construction of compound wall and repairing the same, undoubtedly touches the business of the society. In the circumstance, I find no infirmity whatsoever in the impugned order holding that the suit as filed against respondent no.1 is not maintainable for want of statutory notice under Section 164 of Maharashtra Co-operative Housing Societies Act. The appeal therefore is liable to dismissed on this ground alone without looking into the reasons for dismissal of the suit on its merits. Since the findings in a suit held to be not competent do not operate as res-judicata, it is open for the appellants to serve statutory notice upon respondent no.1 and file a fresh suit. 6. Mr. Chitnis, then submits, that the appellants be granted an opportunity to give notice to respondent no.1 under Section 164 of the Maharashtra Co-operative Housing Societies Act and file a fresh suit after expiry of the notice period. The appellants are always at liberty to take the proposed course of action. 7. Mr. Chitnis, also requests that the interim order passed in the suit by this court on 26 October, 2007 be extended for a reasonable period of time to enable the appellants to serve notice upon respondent no.1. Mr. Oak, the learned counsel for respondent no.1 objects submitting, that the claim of the * 4 * appellants of a right of way from the property of respondent no.1 has been rejected not only by the impugned judgment and decree, but, also by the Municipal Authorities to whom the appellants were directed to approach by to the order dated 24th March, 2006 passed by the Division Bench of this court. He also points out that the interim order ceased to operate on 17th June, 2009. 8. The record shows that for more than six months, there is no interim injunction running in favour of the appellants. In that circumstance, there cannot be any request for extension of any order. Any order to be passed, would be a fresh order of interim relief. In my opinion, in the facts of the case the same is not warranted. The interim order granted by this court on 26th October, 2007 passed in the Appeal from Order No. 736 of 2007 prevented respondent no.1 from constructing a wall at the entrance and exit point of the alleged access road, pending disposal of the suit. Even if respondent no.1 constructs the wall at the locations, the appellants can always seek a direction to have the portion of the compound wall demolished in the event they succeed in the suit that may be filed after issuing of notice to respondent no.1. Hence, the Appeal is disposed off. No order as to costs. [SMT. R.P. SONDURBALDOTA, J]