Document Fragment View

Matching Fragments

(b) of the dispute filed by the respondent nos. 1 and 2 and declares that the respondent nos. 1 and 2 are entitled to park one car in the society building compound of the petitioner while deciding the said dispute under section 91 of the MCS Act, the co-operative court can issue incidental directions or grant ancillary reliefs to the order that may be passed under section 91. Learned counsel for the respondent nos. 1 and 2 distinguished the judgment relied upon by Mr.Samdhani, learned senior counsel for the petitioner on the ground that the facts before the courts in those judgments were different.

32. The respondent nos. 1 and 2 had filed a dispute under section 91 of the MCS Act before the co-operative court. A perusal of the original prayers in the said dispute filed by the respondent nos 1 and 2 clearly indicates that in prayer clause (b), the respondent nos. 1 and 2 had prayed for a declaration that they are entitled to park one car in the society building of the petitioner. Under prayer clause (c), the respondent nos. 1 and 2 had prayed for an award and decree against the petitioner to ppn 21 wp-9262.15(j).doc allot one of the parking space from the second parking in possession of the respondent nos. 3 and 4 herein who are opponent nos. 2 and 3 to the dispute. In prayer clause (d) of the said dispute, the respondent nos. 1 and 2 had prayed for a temporary injunction to allot them one of the parking space from the second parking space in possession of the opponent nos. 2 and 3 during the pendency of the said dispute. Under prayer clause (e) of the said dispute, the respondent nos. 1 and 2 had prayed for an interim relief by way of temporary order and injunction against the respondent nos. 3 and 4 from parking more than one car in the building compound of the petitioner.

ppn 22 wp-9262.15(j).doc

34. A question that arises for consideration of this court is whether in view of the deletion of the prayer clause (c) from the dispute which was for seeking award and decree against the petitioner to allot one of the parking space from the second parking in possession of the respondent nos. 3 and 4, whether the co-operative court could have passed a mandatory order of injunction against the petitioner to make open car parking space to the respondent nos. 1 and 2 or not. The question also arises for consideration of this court is whether the co- operative court was right in granting an order of mandatory interim injunction against the petitioner to create any additional parking space to accommodate the vehicle of respondent nos. 1 and 2 during the pendency of the said dispute filed by the respondent nos. 1 and 2 under section 91 o the MCS Act or not.

39. I shall now consider the issue as to whether the Co-operative Court could have considered the application for interim relief in favour of the respondent nos.1 and 2 at all in view of the respondent nos.1 and 2 having withdrawn prayer clause (c) from the dispute filed by them or not.

40. A perusal of the dispute filed by the respondent nos.1 and 2 clearly indicates that the respondent nos.1 and 2 had impleaded not only the petitioner herein but also the respondent nos.3 and 4 as the tenants in ppn 25 wp-9262.15(j).doc the said Dispute No.55 of 2013 filed under section 91 of the MCS Act. Prayer clause (b) was for declaration that the disputants are entitled to park one car in the petitioner society. Prayer clause (c) which is deleted by the respondent nos.1 and 2 was admittedly for grant of award and decree against the petitioner to allot one of car parking space from the second parking in possession of the opponent nos.2 and 3 to the dispute who are the respondent nos.3 and 4 herein. In addition to the respondent nos.2 and 3, other three members of the petitioner society have been allotted two car parking in the compound of the petitioner. The question that arises for consideration of this Court is that if the Co-operative Court comes to the conclusion that the respondent nos.1 and 2 are entitled to park one car in the society's building, whether such order passed by the Co-operative court can be executed or not in view of deletion of prayer clause (c) or not.