Notice of Motion No. 2271 of 2010,Notice of Motion No. 471 of 2012,Notice of Motion No. 496 of 2012,Notice of Motion No. 1564 of 2012,Suit No. 1894 of 2010

14th September, 2012

Petitioner Counsel: Mr. K.T. Kukreja,Mr. M.B. Bhagat
Respondent Counsel: Mr. V.A. Thorat,Pradeep thorat,Shamima Taly,Mallika Taly,S. Mahomedbhai & Co.

Cases Cited:
Ramgauri Virani Vs. Om Walkeshwar Triveni Co-operative Society Ltd., AIR 1999 Bom. 385 [Para 8]
O. N. Bhatnagar Vs. Smt. Rukibai Narsindas & Ors., AIR 1982 SC 1097 [Para 10]
Marine Times Publications Pvt. Ltd. Vs. Shriram Transport and Finance Co. Ltd. & Anr., AIR 1991 SC 626 [Para 12,23]
Narendra Kumar Kochar Vs. Sind Maharashtra Co-operative Housing Society Ltd. & Ors., 1998(4) ALL MR 563=1998 (4) Bom. C. R. 638 [Para 14]
(M/s.) Modi Spinning & Weaving Mills Ltd. Bombay Vs. The Shreyas Co-operative Housing Society Ltd. Bombay & Ors., 1993 C.T.J. 58 [Para 16]
Menka Chinnayya Shetty Vs. Satyam, Shivam, Sunderam Co-operative Housing Society Ltd. & Ors., 1992 Co.op. C. 330 [Para 18]
Shyam Co-operative Housing Society Ltd., Vs. Ramibai Bhagwansing Advani & Ors., AIR 1952 BOMBAY 445 [Para 22]
Margret Almeida & Ors. Vs. Bombay Catholic Co-operative Housing Society Ltd. & Ors., 2012(7) ALL MR 825 (S.C.)=(2012) 5 SCC 642 [Para 23,25]
Ramesh Chand Ardawatiya Vs. Anil Panjwani, 2003(4) ALL MR 1193 (S.C.)=AIR 2003 SC 2508 [Para 24]
Sweet Home Co-operative Housing Society Ltd. Vs. Himanshu Khurana, 2010(6) ALL MR 864=2011(3) Bom. C. R. 168 [Para 25]
Vinay s/o Ambadas Kaikini & Anr. Vs. Court Receiver, High Court of Judicature at Bombay, 2010(6) ALL MR 1=2010(6) Mh.L.J. 407 [Para 26]
Meher Singh Vs. Deepak Sawhny & Anr., 1998(4) ALL MR 536 [Para 28,36]
Meena Ramesh Lulla & Ors. Vs. Shri Omprakash A. Alreja & Ors., Appeal No.616/2011, Dt.21/9/2011 [Para 46]

JUDGMENT

JUDGMENT :- The plaintiff-society has filed this Suit in respect of an encroachment by defendant Nos. 6 & 7 in the compound of the premises of the society which is meant for the use of all the members. The encroachment, as described in the plaint, consists of an annexe block of 3 parking lots and a bathroom admeasuring 400 sq. ft., an open space having a garden admeasuring 2000 sq. ft., a closed garage of 250 sq. ft. (the suit premises). The open space including the garden is a compulsory open space of the society which is to be kept compulsorily open under the D.C. Rules, 1991 of the Municipality. The plaintiff has also sued in the Co-operative Court for reliefs in respect of the flat of defendant No.6 herein being flat No.1 in the plaintiff-society. The plaintiff-society has applied for various interim reliefs for the protection and enjoyment of the suit premises by all its members.

2. The builders sold flat No.1 to the predecessor-in-title of defendant Nos.1 to 5 who sold it to defendant Nos.1 to 5. Defendant Nos.1 to 5 sold flat to defendant Nos.6 & 7 who are the real contesting defendants. They shall be referred to as 'the defendants'. The plaintiff claims that defendant No.6 is their member in respect of flat No.1 but not in respect of suit premises and that Defendant Nos.6 & 7 have encroached upon, the suit premises. Defendant Nos.6 & 7 are trespassers in suit premises. The dispute between the plaintiff-society and the defendants is as a member only in respect of flat No.1. Hence for the dispute between the Co-operative society and its member in respect of one of the premises of Co-operative society, the dispute has been filed in the Co-operative Court. Though it would have been more convenient for the Co-operative society to sue the defendants in respect of the suit premises also in the Co-operative Court, because the defendants are not members of the society in respect of the suit premises, the dispute could not be filed and has not be filed with the regard to the suit premises in the Co-operative Court. That dispute of trespass is filed in the Civil Court as this civil suit.

3. The defendants' claim in the Co-operative Court was that that Court did not have jurisdiction. The defendants have claimed in this suit that this Court does not have jurisdiction. We are concerned with the claim of the defendants in this suit and with regard to the suit premises only.

4. The defendants have applied for framing of the issue of jurisdiction, dismissal of the plaintiff's suit as having been filed in the court without jurisdiction, rejection of the plaint under O 7 R 11 of the CPC and stay of the suit under Section 10 of the CPC. The defendants' Notices of Motion shall have to be first decided before the Notice of Motion No. 2271 of 2010 of the plaintiff is decided.

5. The defendants contend that the suit is barred under Section 91 of the Maharashtra Co-operative Societies Act, 1960 (MCS Act).

6. The issue of jurisdiction raised by the defendants is framed as follows:

Whether this Court has inherent jurisdiction to try the suit in view of the bar contained in Section 91 of the Maharashtra Co-operative Societies Act, 1960.

The relevant part of Section 91 of the MCS Act runs thus :

91. Disputes.- (1) Notwithstanding [anything contained] in any other law for the time being in force, any dispute touching the constitution, [elections of the committee or its officers other than elections of committees of the specified societies including its officer], conduct of general meetings, management or business of society shall be referred by any of the parties to the dispute, or by a federal society to which the society is affiliated or by a creditor of the society, [to the Co-operative Court] if both the parties thereto are one or other of the following:

(a) a society, its committee, any past committee, any past or present officer, any past or present agent, any past or present servant or nominee, heir or legal representative of any deceased officer, deceased agent or deceased servant of the society, or Liquidator of the society; [or the Official Assignee of a deregistered society];

(b) a member, past member or a person claiming through a member, past member or a deceased member of society, or a society which is a member of the society [or a person who claims to be a member of the society];

(c) ...... (d) ...... (e) ...... (f) .......

7. The suit has been filed on trespass and it would have to be seen whether under Section 91 of the MCS Act, the dispute in this suit touches the management or business of the society and whether it is against a member of the society.

8. The admitted facts are to be seen with regard to these questions. The management or business of the society is only in terms of and to advance the objects of the society. It is not the business of the society to recover possession of properties from trespassers and/or encroachers. There is only one such suit filed by the society. The suit is filed against an encroacher as per the case of the society. The suit premises has not been sold by the society to any of the defendants or even to the predecessor-in-title of any of the defendants. No such sale or purchase is shown by any of the defendants. The sale or purchase is only of flat No.1 in the plaintiff-society. To that extent and for that property the defendants are the members of the society. For any other property the defendants are not the members of the society. Such property belongs to the society and is meant for the benefit of all the members of the society. A builder cannot allot any such property to any of the members. This is inconsonance with what has been held in the case of Ramgauri Virani Vs. Om Walkeshwar Triveni Co-operative Society Ltd. AIR 1999 Bombay 385 that the terrace of a society is meant for the benefit of all the members of the society. Hence a builder cannot allot the terrace to anyone as that would curb the rights of the members over the terrace. The same analogy would apply to an open space, garden or car parking space or garages. Though in this case the suit premises consisting of such premises has not been sold to anyone, even if it was sold, it would fall within the mischief of the property held not entitled to be sold in the judgment in the case of Om Walkeshwar Society (supra).

9. Mr. Thorat drew my attention to certain judgments to show how a suit of this kind would touch the business of the society or would be the management of the society or would be against the members of the society and, therefore, would be excluded from the Civil Court's inherent jurisdiction.

10. In the case of O. N. Bhatnagar Vs. Smt. Rukibai Narsindas & Ors. AIR 1982 SC 1097 it is observed that a tenant co-partnership type housing society was formed with the object of providing residential accommodation to its tenant members. It was observed in para 19 of the judgment that the business of the society was to be ascertained from the object for which the society was constituted. It was further observed that what logically followed therefrom was that whatever the society did in the normal course of its activities such as initiating proceedings for removing acts of trespass by a stranger from a flat allotted to its member would be a business of the society. Flats allotted to the members are in their possession in accordance with the bye laws. When another person is in unauthorized occupation the society as also the member would want to secure the possession of the premises. The society together with such members would make a claim of ejectment of that person who had become a nominal member of that flat. He would be ejected upon revocation of the licence for such an action. The Civil Court's jurisdiction would be barred as it would become a dispute within the purview of Section 91 of MCS Act.

11. Mr. Thorat would claim that this is one such suit. It is not. That suit is for recovery of the premises which was allotted lawfully to a member. That was the flat in the possession of the member. That was the same flat which was given to a licensee. The society as well as the members wanted possession of the flat itself from the licensee whose licence was terminated and who held the flat as trespasser. For ejectment of such a person the dispute falls under Section 91 of the Act. That is the dispute much like the dispute filed by the plaintiff-society against these very defendants in the Co-operative Court. Hence with regard to the dispute in respect of flat No.1 only the Co-operative Court would have jurisdiction. There is not only subtle but a distinct difference between flat No.1 and the suit premises adjoining flat No.1. Suit premises is a compulsory open space of the society. It is meant for the enjoyment of all the members. It has to be kept compulsorily open. It cannot be purchased by any member. It cannot be sold by the society to anyone. It is, therefore, not a residential accommodation provided by the society as per its objects. It is a premises which does not fall within any business of the society. It is distinct and different. An action in law for such premises is, therefore, maintained by the society distinctly and separately in this Court. It would have been more convenient for the society to join the suit premises in the dispute filed in the Co-operative Court itself. But that could not be done as it is not a dispute excluded from the Civil Court's inherent jurisdiction.

12. In the case of Marine Times Publications Pvt. Ltd. Vs. Shriram Transport and Finance Co. Ltd. & Anr. AIR 1991 SC 626 it is observed that the agreement was entered into between the owner, a member of the society and a non member. The plaintiff's suit was for specific performance of that agreement. The suit was held maintainable not in the Co-operative Court even though the society was to be directed to give approval to the agreement because the main relief for specific performance was within the jurisdiction of the Civil Court.

13. The relief in this case is on trespass for protection and enjoyment of the suit premises. That also similarly would be only within the Civil Court's jurisdiction.

14. In the case of Narendra Kumar Kochar Vs. Sind Maharashtra Co-operative Housing Society Ltd. & Ors. 1998 (4) Bom. C. R. 638 : [1998(4) ALL MR 563] it is observed that a tenant co-partnership society held land and building and allotted parts thereof to members who were loosely referred to as tenants. It was observed that a co-partnership society has dual ownership; the management and authority to enforce obligations was vested on the society. The right to accommodation subject to the bye laws was vested in the members. There were mutual rights and obligations. They were regulated by the bye laws. Consequently the right of accommodation was restricted. The members had to comply with certain obligations to induct third party in their premises. The bye laws did not admit occupation of the flat by the persons other than members. There was restriction for executing leave and licence agreement without the prior permission of the society. The licensee had to be made a nominal member. No stranger could be inducted in the premises without the procedure prescribed by the bye laws. This was to ensure that the flats were in occupation of its members in accordance with the bye laws framed by the society. Hence a claim by the society for ejectment of the member who permitted a stranger to occupy the flat in violation of the bye laws was a dispute under Section 91 of the Act. It was, therefore, held that for the dispute with regard to such property the Co-operative Court would have jurisdiction though the members are referred to as tenants and the licensee claims to be sub-tenant.

15. This dispute is not with regard to the flat of the defendants. The reasoning, therefore, would not apply to this Suit as it would apply to the dispute filed by the plaintiff-society against this very defendants in the Co-operative Court with regard to flat No.1.

16. In the case of (M/s.) Modi Spinning & Weaving Mills Ltd. Bombay Vs. The Shreyas Co-operative Housing Society Ltd. Bombay & Ors. 1993 C.T.J. 58 it is observed that the dispute between the parties was already adjudicated in the Rent Court. The proceedings were initiated under Section 91 of the MCS Act. Thereafter it was sought to be argued that to recover possession a suit must be filed in the Civil Court. It was held that "now" a separate civil suit was not required to be filed.

17. This was since the suit was already filed for the premises of the member of the society where an outsider was inducted. It was not for the property appurtenant to the premises of the member.

18. In the case of Menka Chinnayya Shetty Vs. Satyam, Shivam, Sunderam Co-operative Housing Society Ltd. & Ors. 1992 Co. op. C. 330 it is observed that the concept of the business of the society came to be considered. The occupation of third party was in the premises granted by the society. He was conducting the business of running a Coffee shop in front of gate of the shop and he put up an encroachment. The encroacher claimed to be the tenant. The encroachment causes hindrances and obstructions to the peaceful enjoyment and occupation of the shop premises which was allowed to the members. Hence the dispute was held to be within Section 91 as it referred to the premises allotted to the members and the encroachment thereupon. It related to the member himself wanting to remove the encroachment and the society assisting the member in removing it. That action against the wrongful occupants was held to be the business of the society.

19. In this case the wrongful occupant himself contends that it is the business of the society to remove him from the suit premises which is not shown to be allotted or sold to him by the society and for which he cannot claim to be a member though he may claim to be a member in respect of flat No.1 upon an order of the Registrar.

20. It can, therefore, be seen that each of the judgments relied upon by Mr. Thorat are distinguishable and relate to any action to be taken by a society as a part of its business or management from its member. In this case of removal of a mere encroachment in the property of the society, no business or management of the society in the course of their business is seen. The Civil Court's jurisdiction cannot be, therefore, seen to be barred.

21. However Mr. Kukreja has also relied upon a number of judgments which may be equally considered.

22. Since the earlier Co-operative Societies Act viz. The Bombay Co-operative Societies Act, 1925 what is the business of the society and who is the member of the society being the twin requirements for granting jurisdiction to the Co-operative Court were laid down by Chief Justice Chagla and Justice Bhagwati in the case of Shyam Co-operative Housing Society Ltd., Vs. Ramibai Bhagwansing Advani & Ors. AIR 1952 BOMBAY 445. It is held that for the jurisdiction of the Co-operative Court to apply the dispute must touch the business of the society and must be between the society and its members. The member must be interested in the dispute as a member. In that case the dispute was in respect of a loan. The society took a loan from member. It was observed that the society could have taken the loan from outsiders or from a stranger. Taking loan from the member did not make it a dispute between the society and its members. There was no obligation upon the society to raise loan only from its members and there was no obligation upon the members to advance loan to the society. The coincidence that it happens had nothing to do with the rights and obligations of the members or the society. Hence the civil jurisdiction was held not barred.

23. In the case of Margret Almeida & Ors. Vs. Bombay Catholic Co-operative Housing Society Ltd. & Ors. (2012) 5 SCC 642 : [2012(7) ALL MR 825 (S.C.)] it is observed that suit was filed for declaration with regard to resolution of a society and for declaration that the conveyance was invalid and void against certain tenant members. The Supreme Court held referring to the Marine Times case (supra) that both the subject matter as well as the parties to the dispute must be as specified in Section 91. If either of the 2 requirements is not satisfied, the dispute cannot be adjudicated by the Co-operative Court. Hence it was held that if one of the parties to the dispute is not the society or its members (or any other person mentioned in Section 91 of the MCS Act), the subject matter of the dispute could not fall within the jurisdiction of the Co-operative Court. Similarly if any subject matter is not covered under Section 91 (as being management or business of the society or other acts specified in Section 91) it does not matter who are the parties. This sets out the parameters of the bar of jurisdiction of the Civil Court.

24. The Supreme Court held that the suit for declaration, possession and injunction against encroachment fell within the domain of the Civil Court in the case of Ramesh Chand Ardawatiya Vs. Anil Panjwani AIR 2003 SC 2508 : [2003(4) ALL MR 1193 (S.C.)]. This judgment dealt with Section 75 of the Rajasthan Co-operative Societies Act. The suit was filed under the Specific Relief Act. The Supreme Court observed in para 21 that the defendant was not shown to be the member of the society. The question of jurisdiction was determined upon the averments in the plaint. The plaint was for declaration of title as the owner and in the alternative for the possessory title. It sought restoration of possession and consequential injunction against encroachment. The Supreme Court held that such a dispute did not fall within Section 75 of the Rajasthan Co-operative Societies Act. This was on the premise that a Suit against removal of an encroachment could not be the business of the society and the encroacher cannot become a member of the portion of the society encroached by him.

25. In the case of Sweet Home Co-operative Housing Society Ltd. Vs. Himanshu Khurana 2011(3) Bom. C. R. 168 : [2010(6) ALL MR 864] it was held that the suit for possession under Section 6 (1) of the Specific Relief Act was similarly not outside the jurisdiction of the Civil Court merely because a society files it against its members. Such a suit would not comply with the twin requirements as to the subject matter and the parties as held in the case of Margret Almeida, [2012(7) ALL MR 825 (S.C.)] (supra), the subject matter being outside the purview of Section 91 of the MCS Act. Hence possession taken in a high handed manner has to be restored only by the Civil Court.

26. Similarly in the case of Vinay s/o Ambadas Kaikini & Anr. Vs. Court Receiver, High Court of Judicature at Bombay 2010(6) Mh.L.J. 407 : [2010(6) ALL MR 1] it was held that the suit against the trespasser could only be in the Civil Court.

27. The judgments need not be multiplied. It is absolutely clear that the Civil Court's jurisdiction cannot be barred in this Suit which is by a society against an encroacher upon an encroachment of the premises belonging to the society which can never belong to any member.

28. Mr. Thorat contended that the defendants desire to lead oral evidence and must be allowed to do so as per the mandate contained in Division Bench Judgment in the case of Meher Singh Vs. Deepak Sawhny & Anr. 1998(4) ALL MR 536.

29. The Judgment considers Section 9A which is a departure from the procedure for deciding a preliminary issue under Order 14 Rule 2 of the CPC. The order considers that the issue may be a mixed question of law and facts and that the parties may require to lead evidence. If it is an issue of law it can be decided without leading evidence. If it is an issue of fact, evidence should be permitted to be led on the facts of the case. Parties would be entitled to lead evidence, oral as well as documentary. The issue would have to be tried and adjudicated finally by the Court. It cannot be decided on prima facie determination without proper adjudication. Hence opportunity to lead evidence to both parties must be given. The evidence would be oral as well as documentary.

30. It is contended by the plaintiff that this application is frivolous, mischievous and misconceived because it is only made to protract the litigation and to delay the interim reliefs to be granted to the plaintiff.

31. The defendants must be entitled to lead their evidence. Leading evidence does not need only filing affidavit of examination-in-chief and cross-examining the other party. Admitted facts need not be proved. Admitted facts have to be considered. That also is consideration of the evidence of the parties. Similarly documentary evidence is to be considered. Admitted documents have to be read and interpreted.

32. I called upon Mr. Thorat to show me the points on which the evidence is required to be led and shown. Mr. Thorat stated that the defendants would rely upon the bye-laws of the society, the kind of the society, the pleadings of the plaintiff, the status of defendant No.6 as a member of the society under various judicial orders, the agreement entered into by and between defendant Nos.1 to 5 on the one hand and Defendant Nos.6 & 7 on the other, the business of the society as shown in the bye-laws and the period of possession of the defendants in the suit premises.

33. The bye-laws have to be read and considered. They are read and argued upon. The defendants rely upon the bye-laws to show the kind of the society and the object of the society. The defendants claim that the suit is covered under object No. (b) in the bye-laws of the society which shows the dispute between the society and a member. The objects of the society in the bye law No.2 are :

(a) to purchase the suit plot and construct the building Punam on the said plot,

(b) to invest and deposit money except deposit and raise loan,

(c) to advance a guarantee loan,

(d) to establish educational, physical, social recreative activity for the benefits of the members and tenants,

(e) to frame rules from meetings and to establish provident fund and gratuity fund for members and employees of the society

(f) to do all other necessary things and

(g) not to act beyond the scope of the objects without the previous approval in writing of the register. This is an accepted position.

The defendants contend that the plaintiff society is a tenant partnership society. There are 2 types of societies under Rule 10 of the Maharashtra Co-operative Societies Rules, 1961. In either of these societies the land belongs to the society. There is no dispute about the kind of society that the plaintiff-society is.

The pleadings of the plaintiff in the Co-operative Court or in this Court cannot be denied by the plaintiff and must be read in evidence.

The status of the defendant as a member is under the order of the Registrar of the Co-operative Court. The fact of the passing of the order is admitted by the plaintiff.

The agreement between the parties is also an admitted fact with regard to its execution and can be read in evidence.

34. The only disputed fact is that the plaintiff-society has stated that the defendants put up a lock and encroached upon the society's premises on 14.04.2008 and thus trespassed thereupon, whereas the defendants state that even their predecessor-in-title was in possession of the suit premises from their predecessor-in-title. The defendants have relied upon one clause in their agreement dated 30.05.2007 and a certificate of the first member. The plaintiff has denied this aspect. However, the Court may accept that the suit premises was purchased by and consequently in possession of the defendants from the date of the purchase of their flat being flat No.1 in plaintiff-society.

35. Mr. Kukreja on behalf of the plaintiff however contends that even if that is true and even if the predecessor-in-title of defendant Nos.6 & 7 or defendant Nos.1 to 5 were in occupation of the suit premises, they would be trespassers. They were not given possession by the society who alone could have put them in possession. The fact that the first member was given the suit premises by the plaintiff-society or had purchased it from the plaintiff society is not shown by the defendants. They have not shown their title to the suit premises which is open land in the society's compound and which is for the use of all the members of the society. Hence it does not make any difference that they have been sold the property by any subsequent member who had no title thereto. None can transfer a better title what he has. Defendant Nos.1 to 5 had no title to the suit premises. Their predecessor-in-title also had no title to the suit premises.

36. The defendants must first show their document of title in respect of the suit premsies. That having not been shown and all other facts and documents being admitted no further oral evidence is required to be considered. The plaintiff has no oral evidence to lead aside from the above admitted facts. Mr. Thorat demands to confront the plaintiff's witness. There is nothing shown to confront the plaintiff with. There is also no further evidence required to be led by the defendants. Incidentally on all the above points, Mr. Thorat has argued about the exclusion of jurisdiction. Nothing further could be done in the absence of the seminal requirement of the defendants' document of title in respect of the suit premises. Defendant Nos.6 & 7, as any other encroacher, have no document of title for the suit premises. His predecessor-in-title also had none. The very first member had title only to flat No.1. She transferred flat No.1 to defendant Nos.1 to 5. Defendant Nos.1 to 5 had title only to flat No.1. They transferred flat No.1 to defendant No.6. This suit is not in respect of flat No.1. The suit in the Co-operative Court is in respect of flat No.1. That is the dispute between the society and its members. That would be covered under the bye-laws. That would form the business of the society. That dispute is filed in the correct Court which is the Co-operative Court. Similarly this dispute is also filed in the correct civil Court. Hence there is a lot of substance in the argument of the Kukreja that the demand of confronting or cross-examining the plaintiff's witness in evidence or even examining defendant Nos.6 & 7 themselves by leading oral evidence without his document of title is frivolous. The judgment in the case of Meher Singh (supra) can be applied only where oral or documentary evidence on disputed facts is prima facie shown and is required to be proved. It cannot be applied to a case as this where the defendants' facts are proved and the contentions in law can be considered on arguments without having to lead any other evidence to prove the basic requirement of title.

37. This suit is only on trespass. It is a common law action. It is on tort. It is for reliefs against an encroacher or a trespasser without authority of law since the inception. In Black's Law Dictionary, Eighth Edition at page 1541 a trespass is defined as an unlawful act committed against the person or property of another; esp., wrongful entry on another's real property. The plaintiff has sued defendant Nos.6 & 7 as trespassers.

38. This suit is in respect of land of the society. It is not in respect of premises of any member. Hence the suit is not filed by the society against a member.

39. The business of the society is not to litigate upon encroachment. The suit on trespass is not, therefore, upon the business of the society. The defendants' contention that this suit is upon the business of the society is upon the argument that it is against a member for its premises. That would be for the premises lawfully let by the society. That is flat No.1. The suit is not in respect of flat No.1. The dispute in the Co-operative Court is in respect of flat No.1.

40. All the above facts are, therefore, admitted. Based upon this above facts, the issue of jurisdiction is to be decided. That would constitute oral as well as documentary evidence of defendant Nos.6 & 7 which this Court is bound to consider. Hence the Court would certainly consider the evidence. Leading further evidence is, therefore, not required. The defendants' application that oral evidence be led really becomes as frivolous as the evidence itself would become redundant and, in fact, excluded by Section 45 of the Indian Evidence Act.

41. It is seen that the civil Court's inherent jurisdiction is not barred and hence the plaintiff's suit cannot be dismissed as per prayer (b) in the defendants' Notice of Motion No. 1564 of 2012. The issue that the defendants have called upon the Court to frame and then dismiss the suit is framed has been answered to consider the second prayer of the defendants. It may be mentioned that the requirement of Section 9A enjoins the Court not only to frame, but to frame and answer the issue framed so as to decide the Court jurisdiction. No defendant can demand the Court to only frame the issue and then to proceed as he directs. The prayers relating to framing of the issue contains in it the implicit prayer to determine the issue framed.

42. The contention of defendants that the plaint is required to be rejected under the provision of O 7 R 11(d) of the CPC as being barred by the Law of Cooperation is also therefore required to be rejected.

43. The defendants also seek to contend that this suit is filed after the suit in the Co-operative Court is filed and must, therefore, he stayed until the disposal of that suit. This contention is not only mischievous, but wholly erroneous. Section 10 of the CPC requires to stay of the trial of a second suit in which the matters are directly and substantively in issue in the first suit between the parties. In this case, as aforesaid, the first suit is with regard to flat No.1 and this suit is with regard to the open spaces of the society which is the suit property in this suit. No matter of that suit can ever be in issue in this suit. It does not relate to the same subject matter at all. Hence the matters in issues are wholly different.

44. The issue of jurisdiction framed as above is answered in the affirmative. The plaintiff's suit is not dismissed. It shall proceed to trial. The plaint is also not rejected under O 7 R 11 of the CPC. The suit is also not stayed. It shall proceed in accordance with law. Notices of Motion Nos. 1564 of 2012, 471 of 2012 and 496 of 2012 are disposed of accordingly.

45. Notice of Motion No. 2271 of 2010 is adjourned to 3rd October, 2012. High on board for hearing. The defendants shall file their affidavit-in-reply to the Notice of Motion, if required.

46. Defendant Nos.6 & 7 have been represented. Hence the writ of summons is deemed to have been served upon defendant Nos.6 & 7. [See. Meena Ramesh Lulla & Ors. Vs. Shri Omprakash A. Alreja & Ors. in Appeal No. 616 of 2011 dated 21st September, 2011.]

47. The defendant Nos.6 & 7 shall file their written statement within 30 days. The plaintiff shall show the writ of summons served upon the other defendants.

Ordered accordingly.