C.R. No. 7062 of 2009 -1- IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH C.R. No. 7062 of 2009 (O&M) Date of decision : 12.01.2010 ... Hari Shankar Sharma ................Petitioner vs. Ashish Aggarwal .................Respondent Coram: Hon'ble Mr. Justice K.C. Puri Present: Sh. Lokesh Sinhal, Advocate for the petitioner ... K.C. Puri, J. (Oral) This is a petition under Article 227 of the Constitution of India for setting aside the order dated 16.11.2009 (Annexure P-4) passed by Civil Judge (Junior Division), Gurgaon, whereby application filed by the present petitioner under Order 7 Rule 11 CPC, was dismissed. Ashish Aggarwal, plaintiff-respondent filed a suit for permanent injunction and mandatory injunction with the allegation that plaintiff is allottee in possession of residential flat bearing No. 1528 situated at Saraswati Vihar, Chakarpur, Gurgaon, on the ground floor, while defendant No.1 is in possession of the residential flat bearing No. 1528-A, situated on the first floor, practically on the roof of the flat of the plaintiff. The flat in question was allotted to the C.R. No. 7062 of 2009 -2- plaintiff vide allotment letter dated 1.11.1991. Defendant No.2 is the house building society. It is further alleged that defendant No.1 is about to raise construction in violation of sanctioned plan and for that suit for permanent injunction has been filed. Defendant No.1 filed an application under Order 7 Rule 11 read with Section 151 CPC for rejection of the plaint and for dismissal of the suit being not maintainable. The main grievance ventilated by defendant No.1 is with the aid of Section 124 of the Haryana Cooperative Society Act, 1984 (hereinafter to be referred to as 'the Act'). It is submitted that in view of Section 124 of the Act, no suit shall be instituted against a co- operative society or any of its officers in respect of any act touching the business of 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 other ground on which the application has been filed is that in view of Section 102 of the Act, the dispute is to be referred to the arbitrator. That application was resisted by the plaintiff. Learned trial Court, vide order dated 16.11.2009, dismissed the application under Order 7 Rule 11 CPC. Feeling dissatisfied with the above said order, the present petition has been filed by the petitioner. Learned counsel for the petitioner has again repeated the argument raised before the trial Court seeking the aid of Sections 102 and 124 of the Act. In this case, the plaintiff has claimed the relief that defendant No.1 should not raise construction in violation of the sanctioned plan. C.R. No. 7062 of 2009 -3- I am of the considered view that provisions of Sections 102 and 124 of the Act are not attracted in these circumstances. Only Civil Court can adjudicate such a claim. Learned trial Court has rightly relied upon the authority reported as Gurdev Singh vs. Kura Singh, 1981 PLJ 251. Learned counsel for the petitioner has submitted that in Gurdev Singh's case (Supra), Society was not a party and as such the said authority is distinguishable to the facts of the present case. I have carefully considered the said submission. The main relief claimed by the petitioner is against defendant No.1 that he should not raise the construction in violation of the sanctioned plan. So, in these circumstances, the above said argument is without any substance. In view of the above discussion, no ground for interference is made out. Consequently, the petition stands dismissed. ( K.C. Puri ) 12.01.2010 Judge chugh