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Gujarat High Court

Parshvnathnagar (Chandkheda) ... vs Jay Jogani Jantanagar Vepari ... on 22 February, 2016

Author: S.H.Vora

Bench: S.H.Vora

                   C/SCA/20067/2015                                             ORDER




                   IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                      SPECIAL CIVIL APPLICATION NO. 20067 of 2015

         ==========================================================
            PARSHVNATHNAGAR (CHANDKHEDA) CO-OPERATIVE HOUSING
                          SOCIETY LIMITED....Petitioner(s)
                                     Versus
          JAY JOGANI JANTANAGAR VEPARI ASSOCIATION & 1....Respondent(s)
         ==========================================================
         Appearance:
         MR PK SHUKLA, ADVOCATE for the Petitioner(s) No. 1
         ==========================================================
          CORAM: HONOURABLE MR.JUSTICE S.H.VORA

                                      Date : 22/02/2016


                                       ORAL ORDER

1. Draft amendment taken on record. Amendment to be carried out accordingly.

2. By way of this petition under Article 227 of the Constitution of India, the petitioner (original defendant No.2) challenges order passed below application Exh.28 by the learned 4th Additional Civil Judge, Gandhinagar in Regular Civil Suit No.353 of 2011, whereby the application preferred by the petitioner under the provisions of Order 7 Rule 11(d) of the Code of Civil Procedure, 1908 came to be rejected.

2. Having heard the submissions made at bar, it appears that respondent No.1 - original plaintiff filed a suit against respondent No.2 - original defendant No.1, inter alia praying for declaration and perpetual injunction in terms of plaint para 5. In the said suit, present petitioner - original Page 1 of 3 HC-NIC Page 1 of 3 Created On Sun Feb 28 05:24:58 IST 2016 C/SCA/20067/2015 ORDER defendant No.2 moved an application below Exh.23 under Order 1 Rule 10 of the Code of Civil Procedure, 1908, inter alia, making a request to the learned trial Judge to implead it as party in the above suit. As per order dated 14.11.2014, present petitioner came to be impleaded as party - defendant No.2. Thereafter, the petitioner - defendant No.2 filed an application below application Exh.28 under the provisions of Order 7 Rule 11(d) of the Code on the ground that the suit is not maintainable as per the provisions contained in sections 166 and 167 of the Gujarat Cooperative Societies Act on the ground that respondent No.1 - original plaintiff has not served statutory notice to petitioner - defendant No.2 and therefore, the plaint should be rejected as barred by law. While making such prayer, the petitioner forgets one important fact that the plaintiff has not filed suit against the present petitioner, but the petitioner - Society itself moved an application below Exh.23, inter alia, praying to implead it as party defendant No.2 and therefore, it is now not befitting in the mouth of the petitioner to say that the suit is barred by provisions contained under sections 166 and 167 of the Act. It also appears that the petitioner itself moves an application to join it as party defendant No.2 and after it is joined as party defendant No.2, the plaintiff filed an application below Exh.28 to reject the plaint as suit is barred by law.

3. Considering such fact and also the observations made by the learned trial Judge in the impugned order, no ground is made out to entertain the present petition as no perversity or illegality is committed in the impugned order and therefore, present petition stands rejected.

HC-NIC Page 2 of 3 Created On Sun Feb 28 05:24:58 IST 2016 C/SCA/20067/2015 ORDER (S.H.VORA, J.) shekhar Page 3 of 3 HC-NIC Page 3 of 3 Created On Sun Feb 28 05:24:58 IST 2016