1 ao282-10 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION rpa APPEAL FROM ORDER NO. 282 OF 2010 IN NOTICE OF MOTION EXHIBIT – 6 OF 2009 ALONGWITH CIVIL APPLICATION NO. 368 OF 2010 Chakala Pragati Co-Operative Housing Society Ltd. & Anr. .. Appellants v/s. Andheri Saraswati Co-operative Housing Society Ltd. & Anr. .. Respondents. .... Mr. G. S. Godbole i/b. M/s. A. Bharat & Co. for the Appellants. Mr. P. M. Shah for Respondent No.1. Mrs. K. R. Soraan for Respondent No.2, BMC. .... CORAM : R.C. CHAVAN, J. DATE : JULY 20, 2010. P.C. This Appeal is directed against the order passed by the learned Judge, City Civil Court, Dindoshi, Mumbai, whereby he issued an injunction directing the appellants to remove the debris and construction materials and other obstacles left by the appellants on the approach road, and to allow the plaintiffs-society 2 ao282-10 to make use of the said access for ingress and egress to their property, till the disposal of the suit. 2. The appellant is a neighboring society of the plaintiffs. In suit No. 8960 of 1980, between the appellants-society and builder who had constructed tenements which are now occupied by members of plaintiffs-society, a consent decree came to be passed, whereby the appellants-society agreed that the purchaser, tenants and/or occupiers of and other premises constructed on the said plot and also their agents, representative, servants, etc. and persons authorised by them, could along and under the strip of land 18th feet in width, marked by letters ABCD on the plan annexed to the consent terms for access to the defendants therein i.e. the predecessor of the plaintiffs society. That decree has not been modified. The learned counsel for the appellants may be right in submitting that the reasons for seeking such an access existing at that time, may not exist now, since a big Ghatkopar-Andheri road has came into existence abutting the plaintiffs property towards north, and therefore this 18 feet wide road will not be necessary 3 ao282-10 for the plaintiffs-society. All the same, there is a decree which is still inforce, and it has not been modified. 3. The appellants took up reconstruction of their own building at one point such reconstruction encroaches on this 18 feet wide access road. The structure has risen to 7th floor. Debris of construction material is also placed on this access road. The plaintiffs-society, therefore, approached the City Civil Court, Mumbai, for an injunction directing the appellants society to remove all obstacles from this access road. After hearing the parties, the learned trial Judge has passed the impugned order. 4. The learned counsel for the appellants submitted, first that the decree in City Civil Court Suit No. 6202 of 1980 has not been registered, and therefore, could not have created any rights in the plaintiffs. This does not help the appellants. Even without registration of the decree, since it is interpartes, the appellants cannot deny the consequences flowing from the decree. The learned counsel next submitted that, in view of the existence of the 4 ao282-10 decree, the proper course for the plaintiffs was to seek execution of the decree and not file a suit. This is also really a technical objection and not material for deciding an application for temporary injunction. 5. The learned counsel next submitted that construction of flats by the appellants society for its members was an act touching the business of the society, and therefore without issuing a notice under Section 164 of the Maharashtra Co-operative Societies Act, 1960 (hereinafter referred to as 'the Act', for short), a suit could not have been filed. For this purpose it placed reliance on the Judgment of this Court in Suprabhat Co-operative Housing Society Ltd. & Anr v/s. Span Builders & Anr., 2002(6) Bom.C.R. 257. In that case, the appellants co-operative society was a tenant and co-partnership housing society and the object of the society included buying or taking on lease a plot or plots and to construct flats thereon for allotment to the members of the society for their own use. The society had entered into a construction contract with the respondents in pursuance of the basic object of the society. 5 ao282-10 The dispute was about performance of contract, and therefore, the Court held that since the suit was in respect of an act touching the business of the society, notice under section 164 of the Act was necessary before the suit could be filed. Now, in the present case, appellants-society has been involved in constructing tenements for its members, but, the act complained of is not related to construction of tenements, but causing an obstacle in a right to use a road which has been created by a decree. Could a society claim that even if it encroached upon some one else's house, such act would be touching its business, and therefore without issuing a notice suit would not be filed since the society has constructed houses for its members by such encroachment ? Therefore, this is not an act touching the business of the society, since no society would be entitled to legitimately claim it to be its business to transport or commit breach of a decree which binds it. 6. The learned counsel for the appellants next submitted that since both the plaintiffs as well as the appellants are co-operative societies, they could have their dispute resolved under section 91 6 ao282-10 of the Act, and remedy by way of suit is not the only remedy available. This too is a technical argument but could be led at the time of arguments. 7. When the act complained of by the plaintiffs is erection of a pillar in the right of way, which has been conceded by the appellants themselves to the predecessor of the plaintiffs, without modifying the decree, it would not be possible for the appellants to say that merely because the plaintiffs have another access, this right of way should not be enforced by the plaintiffs. In this view of the matter, it cannot be said that the learned trial Judge erred in directing the appellants to remove the debris as well as the other obstacles created by them on the access which has been granted by a decree in suit no. 6202 of 1980, though it may mean considerable hardship to the appellants. They should have considered the existence of decree before raising their construction to such a height, and should have got the question of access resolved before erecting a structure on the way decreed. In view of this, the impugned order does not call for any interference. 7 ao282-10 Appeal is dismissed. 8. The learned counsel for the appellants submitted that the appellants may be permitted to continue with the construction by putting the appellants to stringent condition and also asking the appellants to deposit a sum of Rs.10,00,000/- till the disposal of the suit, since, according to the learned counsel for the appellants, the loss on account of the restriction of passage is compensable in terms of money. The learned counsel for the respondent society states that the society has considered this aspect, and it does not accept this suggestion. This suggestion could have been made an order of the Court if the right of way had only been claimed by plaintiff society, but not decreed. This is not a case of easement of necessity. The trial Court has granted the injunction after considering all aspects. Since, the respondents are not ready to accept this suggestion, I am not inclined to impose such terms on the parties. [ R. C. CHAVAN, J. ]