[1] By way of this appeal, the appellant original defendant has challenged judgment and order dated 25.01.2012 passed by the learned Judge, Court No.12, City Civil Court, Ahmedabad in Civil Suit No.1849 of 2009 below Exh.7, by which learned Judge has allowed the application Exh.7 preferred by the respondent herein – original plaintiff. 2. Facts :
2.1 It is the case of the original plaintiff that plaintiff is owner and occupier of Bunglow No.20 of Girdharnagar society where she is residing with her family members. The Girdharnagar Cooperative Housing Society Ltd., has allotted share of the society to the plaintiff. Plaintiff is residing in the said bunglow since, 1982. Defendant is charitable trust and purchased bunglow no.21 and 26 in the name of the trust. The plaintiff had purchased bunglow in the Girdharnagar society with a view to live peaceful ife and for that purpose she invested money. It was agreed by the defendant that both the plots will be used for residential purpose. However, defendant started to use the said premises for business purpose. Defendant started letting out the premises as marriage hall. No permissions is taken by the defendant from the society to use the premises for commercial purpose. It is breach of undertaking given by the defendant to the society at the time of becoming member of the society. It is submitted that because of marriage function, crackers till late night, it is impossible for the plaintiff to sleep. Likewise loudspeakers are also used which is also against the rules framed by the police authorities. By way of injunction application, the plaintiff prayed to restrain defendant from using plot nos.21 and 26 of Girdharnagar Society for commercial purpose or for arrangement of marriage functions and such other functions by which nuisance and annoyance is created. Learned Trial Court vide order dated 25.01.2012 allowed the said application. Being aggrieved by the said order, appellant – original defendant has preferred this appeal.
3. It is submitted by Ms.Mandavia, learned advocate appearing for the appellant herein – original defendant that earlier the society had filed litigation before the Board of Nominees and before the Board of Nominees a compromise has taken place between the parties. In the said compromise the appellant had given undertaking that they will not use loudspeakers during school time and night hours and the litigation was disposed of in the year 1992. On the very ground suit is filed by the member of the society, which is not permissible. If any member wants to file any litigation then he should file before the Board of Nominees and the Civil Court cannot decide the matter. There is bar of resjudicata to the civil court. As per section 41(F) of the Specific Relief Act, the learned trial court cannot grant this type of injunction. It is also submitted that after getting necessary permission from the competent authority, loudspeakers are used by the appellant trust. The appellant has also given details in writing in the entire society number of bunglaws are doing commercial activities. Appellant has not violated any condition of compromise that had taken place in the year 1992. Learned trial court has allowed the application only on the ground that premises was given for function and ras garba. Therefore, it is requested to quash and set aside the impugned order and allow the appeal.
4. Appeal is opposed by Ms.Bhaya, learned advocate appearing for the respondent herein – original plaintiff. It is submitted that in the present matter, issue involved cannot be decided by Board of Nominees. Issue involved in the suit is with respect to nuisance and annoyance, therefore, civil court has jurisdiction to decide the issue. Fresh cause of action has arisen as defendant started using the suit premises for commercial purpose. It is submitted that present plaintiff has produced trust deed of the defendant and it becomes clear that trust is established to carry out only those activities which are mentioned in trust deed and nothing beyond that. Premises to be used for commercial purpose and to hold marriage reception and dance party is not stated in the trust deed. Therefore, it is requested to dismiss the appeal.
5. Heard learned advocates for the parties. This Court has perused the order passed by the trial court. Girdharnagar society is a housing society and it is registered with Registrar of cooperative societies as housing society. Therefore, in opinion of this court, no commercial activities can be allowed in the premises situated in the Girdharnagar society. As per the trust deed of the defendant trust is established to carry out only those activities which are mentioned in the trust deed in the premises and to hold marriage reception and dance party and to use for commercial purpose is not stated in the deed. Previously also suit was filed before the Board of Nominees and there was compromise between the parties. Undertaking was filed by the defendant before the Board of Nominees and it was stated that they will not use loudspeakers during school time and night hours. Resolution was also passed on 21.01.2004 wherein it was resolved that society shall not be allowed to be used for any other purpose except residential. Loudspeakers cannot be in the silence zone and society of the present plaintiff is situated in silence zone. So far as contention of the appellant herein that suit is barred by res judicata is concerned, compromise took place on 20.02.1992 between the society and Brahman Suvarnakar Charitable Trust, in which plaintiff was not party. Therefore, question of res judicata does not arise. As per section 96 of the Gujarat Cooperative Housing Act, there is no bar to try and decide the suit by the City Civil Court. The original defendants have travelled beyond the scope and object of the trust deed and the purpose specified by the trust is not to let out the premises on rent for marriage purpose or any other activities. All the contentions raised by the appellant herein are considered by the trial court and this Court is in agreement with the findings given by the trial court. It is clarified that present appellant original defendant is at liberty to carry out the activities as specified in the trust deed.
6. In view of above, the appeal form order fails and it is dismissed. No order in Civil Application and same is disposed of.
[M.D.Shah, J.] satish