- 1 - IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION APPEAL FROM ORDER No. 674 of 2009 WITH CIVIL APPLICATION No. 844 OF 2009 Mrs. Sujata Patil & Anr. ... Appellants Vs. Padmaza Co-Op. Hsg. Soc. ... Respondent *** Mr. Anil Singh with Mr. Ashwin R. Singh i/b Mr. D. R. Tiwari, for the appellants. Mr. B. P. Shukla, for the respondent. *** CORAM : R. V. MORE, J. DATE : JULY 10, 2009. PC :- 1. Heard the counsel for the respective parties. The appellants are original defendant Nos. 1 and 2. S. C. Suit No. 488 of 2009 in City Civil Court, Mumbai was filed for permanent injunction restraining the appellants from interfering with respondents & their members’ use, occupation and possession of terrace of the respondent’s building i.e. Padmaza Cooperative Housing Society, situated at plot No.6, R.S.C.-1, Mhada Layout, Ganesh Nagar Road, Kandivali (West), Mumbai 400 067. The - 2 - respondents took out Notice of Motion No. 27 of 2009 for temporary injunction in terms of permanent injunction. By the order impugned in the present appeal, learned trial Court restrained the appellants by an order of temporary injunction from obstructing the members of the respondent Society while using or occupying the terrace of respondent’s Society building in front of flat Nos. 601 and 602 in any manner. 2. There is no dispute that appellants are members of the respondent Society. There is also no dispute that they own flat Nos. 601 and 602 respectively in the Society’s building. The dispute is about the terrace in front of flat Nos. 601 and 602. It is case of the respondent that the said terrace is a common property of the Society and that the appellants cannot use, terrace in exclusion of other members of the Society. The appellants on the contrary, claim ownership to the said terrace. The trial Court found that appellants could not produce any document showing their ownership to said terrace. The appellants before me also could not produce any documents to show their entitlement to possess the said terrace exclusively. 3. The learned counsel for the appellants submits that since the dispute is between Society and its members, the same is required to be filed before the Cooperative Court under section 91 of the Cooperative Societies Act and City Civil Court has no jurisdiction. This submission in my view is without any merit. The - 3 - dispute is about the use of open terrace of the Society. By using the said terrace for personal use, the appellants are prohibiting the other members of the Society from using the said terrace and therefore, this dispute cannot said to be touching the business of the Society, and therefore, the Civil Court has jurisdiction. 4. The learned counsel for the appellants also submits that appellants being members of the respondent Society, are entitled to have access to the said terrace along with the other members. The learned counsel for the respondent has fairly conceded that appellants can have access to the said terrace along with other members of the Society. In view of this statement of the counsel for the respondent, objection of the appellants in this regard will not survive. Taking totality of the circumstances into consideration, I am not inclined to interfere in the order impugned in this appeal. Appeal is therefore, dismissed. 5. In view of dismissal of present appeal, Civil Application No. 844 of 2009 does not survive for consideration and the same is accordingly disposed of. Sd/- [ R. V. MORE, J.]