gst 1 ao384.10.sxw IN THE HIGH COURT OF JUDICATURE AT BOMBAY. CIVIL APPELLATE JURISDICTION. APPEAL FROM ORDER NO. 384 OF 2010 WITH CIVIL APPLICATION NO. 510 OF 2010. M/s.Jay Vijay Coop. Hsg. Soc. Ltd. ... .... Appellant. V/s Smt.Anusaya Kashinath Patil & Anr. ... Respondents. Mr.S.D.Patil, Adv. For the appellant. Mr.K.K.Malphatak, Adv. For R.No.1. Mr.A.R.Pitale, Adv. For R.No.2. CORAM: B.R.GAVAI, J. 25th Jan., 2011. PC: By consent appeal is taken up for final hearing. The appellant challenges the order dated 25.1.2010 vide which the application filed by the respondent for rejection of plaint under Order 7 Rule 11(d) of Code of Civil Procedure came to be allowed and the plaint was returned for being presented before the appropriate court i.e. Cooperative Court, Thane. 2. The plaintiff which is a cooperative society has filed a suit against the defendant No.1 who is a member of respondent No.2-Thane Municipal Corporation. In the said suit an application came to be filed by the respondent No.1 herein alleging that since the dispute was between the Society and its member the Civil Court had no jurisdiction. Said application came to be allowed. Hence the present appeal. 3. Shri Patil, learned counsel appearing on behalf of the appellant submits that the suit as filed by the present appellant did not pertain to the dispute gst 2 ao384.10.sxw between the appellant and the defendant No.1. It is submitted that the appellant had asked for substantial relief against defendant No.2. It is therefore submitted that since the dispute between the present appellant and the defendant No.2 was beyond jurisdiction of the Cooperative Court the suit filed by the present appellant was only remedy available to him. Learned counsel relies upon a judgment of the learned Single Judge of this Court in the case of Ramchandra Harischandra Vatkar V/s Jawaharnagar Cooperataive Housing Society Ltd. & Anr., 2003 (1) Mh.L.J. 54. Shri Malpathak, learned counsel appearing on behalf of respondent No.1 submitted that when a dispute was between the plaintiff and respondent No.1 and as such the suit was not tenable in view of section 91. He submitted that if for any petty things the plaintiff is permitted to implead Municipal Corporation as party-respondent then the very purpose of section 91 will be frustrated. Learned counsel further submits that the respondent-Municipal Corporation has also objected to the tenability of the suit in the absence of notice under section 487 of Bombay Provincial Municipal Corporation Act. He therefore submits that since the suit was not tenable against the Corporation only dispute that remained was between the plaintiff and the defendant No.1 and as such learned trial Court has rightly passed the order. Learned counsel relies upon judgment of Full Bench of this Court reported in the case of Vasant Ambadas Pandit V/s Bombay Municipal Corporation & Ors., 1981 Mh.L.J. 706 in this respect. 4. The plaintiff has sought the following reliefs: “(b) It be declared that the grills put by defendant No.1 on the common spaces of the plaintiff societies more particularly in front of shop no.4 & 5 area adm. 80 sq.ft. And also removal of the wall between the shop no.4 & flat no.4A is illegal & unauthorised and against the sanction plan and therefore by the order of mandatory injunction the defendant no.1 be directed to remove the grills put by them on the common spaces of the plaintiff societies more particularly in front of gst 3 ao384.10.sxw shop no.4 & 5 common area adm. 80 sq. ft. and hand over the vacant and peaceful possession of the said premises and also reinstate the wall between the shop no.4 & flat no.4A. (c) The defendant no.1 if failed to remove the said illegal structures and changes made between shop no.4 & flat no.4A contrary to sanction plan, then the defendant no.2 be directed to demolish the said illegal construction and alterations made by the defendant no.1 and get done as per the sanction plan by following due process of law. (e) Defendant no.2 be directed to initiate appropriate civil as well as criminal action under BPMC Act as well as MRTP Act against the defendant no.1 for their illegal and unauthroised construction and alterations made in the flat no.4A and shop and common areas of the building.” It can thus be seen that though the plaintiff had sought relief against defendant No.1 to remove the grills and other construction which is allegedly unauthorised has also sought direction to defendant No.2-Corporation to demolish the said illegal construction. The plaintiff has also sought declaration against the respondent-Corporation for initiating action against defendant no.1. Learned Single Judge of this Court in the case of Ramchandra Harishchandra Vatkar (supra) has held that unless both the parties to dispute are persons as notified in any of the clauses (a) to (e) of sub-section (1) of section 91, dispute before the Cooperative Court was not tenable. Undisputedly the defendant No. 2 is not party mentioned in the clauses (a) to (e) of sub-section 1 of section 91. As such the dispute before the Cooperative Court would not be tenable. I am of the considered view that the present case is squarely covered by the view taken by learned Single Judge of this Court. 5. In so far as the second contention regarding non-tenability of the suit against defendant-Corporation is concerned, it is settled law that for considering the jurisdiction what would be relevant is the averments made in gst 4 ao384.10.sxw the plaint. In so far as notice under section 487 is concerned, the plaintiff has specifically averred with respect to the same in para 17 of the plaint. Therefore the question as to whether the suit is tenable in the absence of notice under section 487 is not required to be considered by the learned trial Court at the stage. 6. In that view of the matter I find that the order dated 25.1.2010 is not sustainable in law. Hence appeal is allowed. The impugned order dated 25.1.2010 is quashed and set aside. Application filed by the defendant No.1 under Order 7 Rule 11 below Ex.22 stands rejected. gst 5 ao384.10.sxw IN THE HIGH COURT OF JUDICATURE AT BOMBAY. CIVIL APPELLATE JURISDICTION. CIVIL REVISION APPLICATION NO. 13 OF 2011 Smt.Anusuya Kashinath Patil.... ..... ...Applicant. V/s M/s.Jai Vijay Coop. Hsg. Soc. Ltd. & Anr. ..... ..Respondents. Mr.K.K.Malphatak, Adv. For the applicant. Mr.S.D.Patil, Adv. For the respondent No.1. Mr.A.R.Pitle Adv. For respondent No.2. CORAM: B.R.GAVAI, J. 25th Jan., 2011. PC: This civil revision application challenges the order dated 25.01.2010. By the reasons recorded in the Appeal from Order No.384/10 the said Appeal from order was allowed and the impugned order was quashed and set aside. In view of the order passed in AO 384/10 no orders are necessary in the present application. As such civil revision application stands disposed of.