MAHAVIRLAL SHAKERLAL JAIN Vs. NIRANJANBHAI MANILAL PANDYA

JUDGEMENT

(1.) CHALLENGE in this Appeal from Order preferred under Order 43 Rule 1(r) read with Section 104 of the Code of Civil Procedure is the order dated 23.09.2011 passed by the learned Judge, City Civil and Sessions Court, Ahmedabad in Civil Suit No.1064 of 2009 whereby, notice of motion Exh.6/7 taken out by respondent No.1 (original plaintiff) came to be partly allowed restraining the appellant (original defendant No.1) from using the disputed premises i.e. residential bungalow No.5-B situated in Ahmedabad Municipal Servants Co-operative Housing Society Limited for commercial purpose without obtaining prior permission from the competent authority.

(2.) BEING aggrieved and dissatisfied with the said order dated 23.09.2011, the appellant preferred the present Appeal from Order.

(3.) SO far as first contention as to maintainability of the suit before the Civil Court is concerned, this Court has no occasion to examine the by-laws of the Co-operative Societies Act so as to find out whether the dispute relates to the business touching to the society. Undisputedly, the respondent No.1 has made grievance as to change of user of residential premises into commercial purpose and, more particularly, for running a school in the residential building. So, the question whether the dispute is triable in the Civil Court or before the competent authority under the Co-operative Societies Act is mixed question of law and facts and without evidence on the issue, it cannot be decided whether the Civil Court has jurisdiction or not to entertain the present suit. So, no reliance can be placed on the observations made by this Court in the case of Dalpatbhai Bhimjibhai (supra).