ORAL ORDER
1. At the joint request of learned advocates for the parties, the present First Appeal is taken up for final hearing.
2. By way of the present First Appeal, the appellant - original plaintiff has challenged the judgment and order dated 28.12.2023 passed by the learned City Civil & Sessions Court, Ahmedabad in Civil Suit No.606 of
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2021, wherein the plaint is rejected under Order VII Rule 11 of the Code of Civil Procedure.
2. Heard learned advocates for the parties.
3. Learned advocate for the appellant has submitted that the present appellant is the Chairman of Aman Apartment Owners Association. The said association is registered on 24.09.1992 under the Bombay Non-trading Corporation Act bearing registration No.NTCG5404. The residential flats were constructed by the said association on the land bearing T.P. Scheme No.20, Final Plot No.233 of Sub-plot No.9 & 13 admeasuring about 753 sq.mts.
3.1 It is further submitted that the defendant was allotted Flat No.3 and became a member of the said association. The terrace over the flats is a common terrace. However, defendant has occupied the common terrace illegally and restrained the other members of the
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association to use the common terrace. It is further submitted that the respondent placed a solar system on the said common terrace. A legal notice was also given by the plaintiff on 28.02.2021. Since the defendant did not remove the solar panel, the plaintiff - appellant was constrained to file the suit for declaration and removal of the solar panel from the common terrace. A declaration was also sought for to the effect that, the members of the association have a right in the disputed property i.e. the common terrace.
3.2 It is further submitted that the defendant - Respondent appeared and filed an application Ex.25 under Order VII Rule 11(d) of the Code of Civil Procedure. The learned trial Court after hearing the parties allowed application Ex.25 and rejected the plaint.
3.3 Learned advocate for the appellant has relied upon the decision passed by this Court in Appeal From
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Order No.216 of 2013 and allied matters on 08.07.2013.
4. Learned advocate Mr.Manv Mehta for the respondent has submitted that the learned trial Court has not committed any error by rejecting the plaint. It is submitted that the suit has been filed by the plaintiff as a Non-trading Corporation registered under the Non-trading Corporation Act, 1959. The Non-trading Corporation Act, 1959 stood repealed by Act No.06 of 2005. Therefore, Arvindsinh K. Rehever has no right to represent himself as a Chairman of Aman Apartment Owners Associations. After the repeal of the Non-trading Corporation Act, 1959 plaintiff is not entitled to file any such suit for and on behalf of Non Trading Corporation. Since the suit itself is not maintainable, the provisions of Order VIII Rule 11(d) of the Code are applicable, and the learned trial Court has rightly rejected the plaint.
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4.1 It is further submitted that when the suit was filed, there was no existence of Non-trading Corporation. Hence, the rejection of the plaint was sought for by the defendant.
4.2 Learned advocate for the respondent has relied upon the following decisions:-
(i) Mohsin Habibkhan Malek Vs. Asanskar Owners Association (Paldi) & 7 passed by this Court in Appeal From Order No.189 of 2013 with allied matter on 08.08.2013.
(ii) Gujarat Institute of Housing & Estate Developers & 2 Vs. Gujarat Institute of Housing & Estate Developers Ltd & 7 passed by this Court in Appeal From Order No.21 of 2010 on
21.04.2010.
5. This Court has considered the submissions and the averments made in the plaint. The suit is for the declaration and permanent injunction. The allegation of the plaintiff is that the defendant has committed a tress-pass and occupied the common terrace of Aman Apartment and the defendant has installed a Solar panel in the common
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terrace without any permission from Association. It is also the case of the plaintiff that no prior permission was sought for by the defendant before installation of the solar system. It is also the case of the plaintiff that the other members of the association have equal right to use the common terrace and defendant has illegally occupied the common terrace. It is also averred in the plaint that, in the terrace portion, common water tank and gearbox of the lift is also installed which is part of common amenities. The learned trial Court has while deciding the application under Order VII Rule 11(d) of the Code of the Civil Procedure has taken into consideration the fact that the Non-trading Corporation has been repealed and the plaintiff has no locus standi to file the suit. In my opinion, whether the plaintiff has locus standi/ right to file a suit is a question of fact. The contention raised by the defendant that, Mr.Arvindsinh K. Rehevar, has no right to represent himself as a Chairman of Aman Apartment Owners
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Associations, is also question of fact which cannot be decided by invoking the provisions of Order VII Rule 11(d) of the Code of Civil Procedure. The Repealed by Act No.06 of 2005 also does not speak about any bar to file the suit. The question of fact which is involved in the present case that whether Arvindsinh K. Rehevar can represent himself as a Chairman of the Aman Apartment Owners Association cannot be gone into by invoking the provisions of Order VII Rule 11(d) of the Code. Order VII Rule 11(d) speaks about that when from the averments and statements made in the plaint, it appears that the suit is barred by any law.
6. In the present case, nothing could be pointed out from the learned Advocate for respondent that there is a bar in filing a suit under the Repealed Act. Thus, the averments made in the plaint requires a trial to be undergone. Whether plaintiff has a right to represent Chairman of a Non Trading Corporation is a matter of
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evidence and thus, outside the scope of Order VII Rule 11(d) of the Code. Right to represent a Non Trading Corporation, which has been repealed by Act No.06 of 2005 is a question of fact in absence of any specific bar under the Repealed Act. More particularly, the plaintiff is required to prove the association made in the plaint during the trial. Thus, in the totality of the facts and circumstances of the case, I am of the opinion that the learned trial Court has committed an error by misreading the provisions of Order VII Rule 11(d) of the Code and also by committed an error by holding that the plaintiff has no locus standi to file the suit. Locus to file a suit is a pure question of fact.
7. In view of the above, the present First Appeal, is allowed accordingly. The judgment and order dated 28.12.2023 passed by the learned City Civil & Sessions Court, Ahmedabad in Civil Suit No.606 of 2021, is hereby
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quashed and set aside. Hence, Civil Suit No.606, is restored to its file.
8. The learned trial Court shall not be influenced by the observations made hereinabove and shall decide the suit strictly in accordance with the law and the evidence that may be adduced by both the parties.
9. This Court has not gone into the rival contentions of the parties on facts. Order in Civil Application
In view of the order passed in the main matter i.e. First Appeal No.1067 of 2024, the present Civil Application, does not survive and stands disposed of accordingly.
(D. M. DESAI,J)
MANOJ
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