J.R.VORA - (1.) This Revision Application is preferred against an order passed by learned Civil Judge (SD), Baroda, on 11.2.2003 below Application Exh. 33 in Regular Civil Suit No. 74/2003.
(2.) History of litigation reveals that present opponent No.1 Rajendrakumar Shankerbhai Bhagiya filed a Regular Civil Suit No. 74/2003 against (i) present petitioner - Vimal Cooperative Housing Society Ltd., (ii) Vadodara Municipal Corporation, (iii) City Survey Superintendent, (iv) Talati-cum-Mantri, (v) Mamlatdar, and (6) Shri Ratilal C. Shah. Plaintiff Rajendrakumar Shankarbhai Bhagia filed the above said suit stating that he became member of Vimal Cooperative Housing Society Limited in 1980 and was allotted a plot of land admeasuring 10000 sq. feet. There was some construction in the said plot. In 1986-87, the plaintiff intended to erect a construction in the said plot of land which was numbered as Plot No. 71-72 at the relevant time and he was granted permission by concerned competent authority. Necessary documents were produced along with the plaint. The plaintiff could not construct on the plot for his own reason but thereafter plaintiff came to know that around 7th of January, 2001 that Cooperating Housing Society was constructing a temple on Plot No.71 allotted to him. Some averments are made in the plaint that he tried to contact Secretary and President of the Society in this respect who informed that the plaintiff could not have any objection in construction of building of temple. While thereafter plaintiff verified the revenue record, he found that within the plot of the plaintiff in revenue record one plot was demarcated and allotted to original defendant No.6 Mr. Ratilal C. Shah admeasuring 3072 sq. feet of land. The plaintiff, according to him, was never given an opportunity of being heard in making these changes in revenue record. The plaintiff also alleged that the changes made in the revenue record is against the law established and against the provisions of the Bombay Land Revenue Code. It is the allegation of the plaintiff that the suit plot which he has more particularly described in para 5 of the plaint is owned by him and the action of original defendant No.1 present petitioner to construct temple in his property is illegal and incontravention of law. The plaintiff asked for diverse reliefs against Cooperative Society for declaration that the said Society had no authority or right to construct in his plot and other reliefs against other defendants as to the changes made in the revenue record.
(3.) In the above said suit, after filing, perhaps reply of an application for temporary injunction filed by the plaintiff - original defendant No.1, present petitioner - Vimal Cooperative Housing Society filed Application Exh. 33 under Order 7 Rule 11(D) of the Civil Procedure Code. It was stated in the application that the suit is filed by the plaintiff against the registered cooperative society in the capacity of the member of the said society and the averments made in Paras, 1, 2, 5, 7, 10 and 16 to the plaint indicate that the averments pertain to the touching of the business of the Cooperative Society. It was further stated by the petitioner in the above said application at Exh.33 that the dispute raised by the plaintiff is in respect of business and management of respondent Cooperative Society because the dispute pertains to the plot of member and allotment of land made by the Cooperative Society. It was also stated that there is no conveyance deed in respect of the plot mentioned in the plaint in favour of the plaintiff nor any evidence that the plaintiff has paid amount of consideration in respect of said plot. It was further stated that the dispute which has been referred in plaint is clearly covered by Section 96 and Section 167 of the Gujarat Co-operative Societies Act,1961 and ultimately it was prayed that since the Civil Court had no jurisdiction to hear the dispute covered under section 96 and since the suit was barred under Section 167 of the Gujarat Cooperative Societies Act, 1961, the plaint was liable to be rejected under provisions of Order 7 Rule 11(D) of the Code of Civil Procedure.;