Final Order 1

Order Details: Copy of Judgment
Pdf Text: Presented on : 07.11.2019.
Registered on : 18.11.2019.
Decided on : 07.09.2026.
Duration : 06 10 00
Years Months Days
Exh.14
IN THE BOMBAY CITY CIVIL COURT, AT BOMBAY
SUIT NO.2973 OF 2019
(CNR NO.MHCC01-011382-2019)
Mrs. Lata Canser w/o Narendra Canser,
Age about : 51 years, of Bombay, Adult,
Indian Inhabitant, being in use, occupation
and possession in respect of the premises
being Shop No. 2, Ground Floor, situated at
Vivekanand CHS, T.H.Kataria Marg, Mahim,
Mumbai-400016. …. Plaintiff
Versus
Vivekanand CHS Ltd.,
A Society having its office at Vivekanand
CHS, T.H.Kataria Marg, Mahim,
Mumbai-400016. …. Defendant
CORAM : HIS HONOUR JUDGE R. S. ARADHYE
C.R.No..
: 01
DATE : 07.09.2026
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Appearance :-
Adv. Neha Pandey along with Adv. Ashok Saraogi for plaintiff.
None present for defendant.
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Claim :- Suit for Declaration and Mandatory Injunction.
JUDGMENT
Plaintiff has claimed the relief of declaration that like any other
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shop owners she is also entitled to have necessary water and sewerage
facility to be made available by the defendant to other shop owners and
to issue a permanent mandatory direction to forthwith provide the said
facilities for her Shop No.2 situated on the Ground Floor of building
known as Vivekanand CHS, T.H.Kataria Marg, Mahim, Mumbai-400016.
2. It is in brief the case of plaintiff that she has lawfully purchased
Shop No.2 and is accepted by the defendant as member of the society,
accordingly Share Certificate also came to be issued in her favour.
Plaintiff is in use, occupation and possession of the Shop No.2 so
according to her she is also entitled for necessary facilities as enjoyed by
the other members of the Society. However for one and the other
reason, Society has prevented the plaintiff from letting her shop on
Leave and Licence basis and for that one suit was filed in this Court
which is now sub-judiced.
3. It is further the contention of plaintiff that she was declined to
provide water and sewerage facilities for her Shop No.2 and that is why
she approached to the Registrar of Co-operative Societies seeking
thereby directions against defendant to issue 'No Objection Certificate'
so as to enable her independent water and sewerage line. The Registrar
of Co-operative Societies has accordingly passed the order in favour of
plaintiff and defendant was directed to provide necessary Certificate for
enabling the plaintiff to apply for both the connections. Against the said
Order, defendant has preferred an Appeal bearing No.71/2017 which is
still pending for hearing and no any kind of Stay Order has been passed
in the said proceeding. Besides this, plaintiff has filed one Contempt
Petition before the Hon'ble High Court having lodging No.18879/2019
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Suit No.2973 of 2019
Mrs. Lata Canser w/o Narendra Canser Vs.
Vivekanand CHS Ltd.
for disobeying the Order of Registrar of Co-operative Societies by the
defendant. This Writ Petition is also sub-judiced before the Hon'ble High
Court. The facilities of Water and sewerage lines as per the plaintiff
both are essential facilities and every citizen is entitled for those
facilities irrespective of right, title and interest in the premises in
question. But defendant is not providing the same as like other
members of the Society so plaintiff constrained to approach this court
for getting necessary orders against defendant.
4. The present suit filed by the plaintiff is under Section 9 of Civil
Procedure Code, 1908 so it does not fall under the purview of
Commercial Court Act and even it is not touching the business of
defendant Co-operative Housing Society. It is therefore this Court has
jurisdiction to try and entertain the suit accordingly plaintiff prayed that
it may kindly be decreed in terms of prayer clause (a) and (b) of the
Plaint.
5. Despite of service of Writ of Summons defendant failed to appear
and file their Written Statement so the matter is proceeded without
Written Statement vide order dated 18.10.2023.
6. The following points arise for consideration and my findings
thereon along with the reasons are as under :-
Sr.No. Points Findings
1) Whether Plaintiff is entitled for the relief of
Declaration and Mandatory injunction as
sought ?
- No -
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2) What order and decree ? Suit is dismissed.
REASONS
As to Point Nos.1 and 2
7. There is no written statement of the defendant and only plaintiff
has filed her evidence to substantiate the claim, so as to avoid repetition
of facts I have discussed both these points in together. Plaintiff has
reiterated the same facts which she pleaded in the plaint that why she is
entitled for the relief of declaration and mandatory injunction. Apart
from the oral evidence, plaintiff has relief upon two documents i.e.
Original Share Certificate (Exh.10) and Certified Copy of Appeal Memo
(Exh.11).
8. No doubt, documents on record shows that plaintiff has
purchased the Shop No.2 from the wife of erstwhile owner viz.
Parmanand Phatnani and let it to one Mehul M. Shah on Leave and
License basis. However, averments made in paragraph No.4(b), (c), (f),
(g) and (h) of the Plaint is itself evident and bring on record that
whatever the relief claimed by the plaintiff in the Suit which is already
been granted by the Registrar of Co-operative Societies and issued
directions to the defendant to issue 'No Objection Certificate' in favour
of the plaintiff so as to enable her for making application for
independent Water and Sewerage line.
9. It also came on record that the Order of Registrar of Co-operative
Societies has been challenged by the defendant by way of an Appeal
No.71 of 2017 and same way plaintiff filed the Contempt Petition
Against the defendant in the Hon'ble High Court for disobedience of the
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Suit No.2973 of 2019
Mrs. Lata Canser w/o Narendra Canser Vs.
Vivekanand CHS Ltd.
order of the Registrar Co-operative Society. Certainly the reliefs claimed
in the Suit touching the business of defendant Co-operative Housing
Society so for want of issuance of mandatory notice under Section 164
of Maharashtra Co-operative Societies Act, 1960 suit is not maintainable
in the eyes of Law. Therefore in view of the facts narrated above, I am
of the view that plaintiff has already been obtained the reliefs claimed
in this Suit by the order of Registrar, Co-operative Housing Societies so
she will not find entitled for the declaration and mandatory injunction
as sought against defendant. In the result, point No.1 is answered by me
in the negative and for point No.2 passed the following order :-
O R D E R
1. Suit is dismissed.
2. Parties to bear their own costs.
3. Decree be drawn accordingly.
4. Dictated and pronounced in the open court.
Date : 07.09.2026
Place : Mumbai.
(R. S. ARADHYE)
Judge,
Court Room No.01
City Civil & Sessions Court,
Greater Mumbai.
Dictated and typed directly on computer : 07.09.2026.
Signed on : 07.09.2026.
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"CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL SIGNED
JUDGMENT/ORDER"
DATE : 07.09.2026, AT 04.15 P.M. MAHESH KESHAV SAKHARKAR
STENOGRAPHER GRADE-I
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
Name of the Judge (with Court no.) : SHRI R.S. ARADHYE, C.R.NO.01.
Date of pronouncement of
judgment/order
: 07.09.2026.
Judgment/order signed by the P.O. on : 07.09.2026.
Judgment/order uploaded on : 07.09.2026, AT 04.15 P.M.
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Suit No.2973 of 2019
Mrs. Lata Canser w/o Narendra Canser Vs.
Vivekanand CHS Ltd.
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