Bombay High Court
M/S. Essar Enterprises vs Vinayak Ashish Co-Op. Hsg. Soc. Ltd. And ... on 9 June, 2025
Author: N. J. Jamadar
Bench: N. J. Jamadar
2025:BHC-AS:22598
Priya Soparkar 1 cra 430-23-c
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
CIVIL REVISION APPLICATION NO.430 OF 2023
M/s Essar Enterprises
A registered partnership firm,
having its office at :Shop No.2,
Ambaji Dham Building ,
M.G.Road, Mulund (West),
Mumbai- 400080. ... Applicant
Vs.
1. Vinayak Ashish Co-op. Hsg. Soc. Ltd.
A Co-operative Housing Society,
Registered under the provisions of
Maharashtra Co-operative Societies Act, 1960
Having its address at :Vinayak Ashish Building,
Plot No.11B, Madan Mohan Malviya Road,
Mulund (West),Mumbai - 400080.
2. Dilip Gehimal Karia
3. Naveen Dilip Karia
4. Amit Dilip Karia
5. Hari Govind Karia
Respondents No.2 to 5
All residents of Mumbai
Indian Inhabitants
Carrying on business at :
Shop Nos. 1 to 7, Vinayak Ashish
CHSL, M.M. Malviya Marg,
Mulund (West), Mumbai 400080.
6. Hitesh G. Thakkar,
Indian Inhabitant, residing at,
PRIYA
Digitally
signed by
PRIYA RAJESH
Flat No.A-503, Vinayak Ashish
SOPARKAR
RAJESH Date:
SOPARKAR 2025.06.09
17:15:52
+0530
::: Uploaded on - 09/06/2025 ::: Downloaded on - 09/06/2025 22:40:13 :::
Priya Soparkar 2 cra 430-23-c
CHSL, M.M. Malviya Marg,
Mulund (West), Mumbai -400080.
7. Ajay Hariram Ramani
Indian Inhabitant, residing at,
Flat No.A-201, Vinayak Ashish
CHSL, M.M. Malviya Marg,
Mulund (West), Mumbai -400080.
8. Mitesh L. Raikundaliya
Indian Inhabitant, residing at,
Flat No.A-702, Vinayak Ashish
CHSL, M.M. Malviya Marg,
Mulund (West), Mumbai -400080.
9. Govind R. Naidu
Indian Inhabitant, residing at:
C-10, Shanti Bhuvan,
Dr. R.P. Road, Mulund (West),
Mumbai - 400080. ... Respondents
---
Mr. Divesh Chamboowala with Mr. Maulik Tanna, Mr. Krupesh Bhosle and
Mr. Tanish Ramani, Advocates for the Applicants.
Mr. Ranjit Thorat with Ms. Pratibha Shelke, Advocates for the Respondent
No.1.
Mr. Pradip Kadam, Advocate for the Respondents No.6 to 8.
---
CORAM : N. J. JAMADAR, J.
RESERVED ON : 5th MAY, 2025.
PRONOUNCED ON : 9th JUNE, 2025.
JUDGMENT :
1. This Civil Revision Application is directed against an order dated 2 nd
May, 2023 passed by the learned Judge City Civil Court, Greater
Mumbai in Notice of Motion No.97 of 2022 in Suit No.2483 of
Priya Soparkar 3 cra 430-23-c
2011, whereby the said Notice of Motion taken out by the
Defendant for rejection of the plaint under the provisions of order
VII Rule 11 of the Code of Civil Procedure, 1908 ("the Code") came
to be rejected.
2. For the sake of convenience and clarity the parties are hereinafter
referred to in the capacity in which they are arrayed before the City
Civil Court.
3. The Revision Application arises in the backdrop of the following
facts :-
3.1 The Plaintiff is a co-operative housing society of the flat
purchasers, registered under the Maharashtra Co-operative Societies
Act, 1960. The Defendant No.1-Applicant herein is a registered
partnership firm. The Defendants No.2 to 5 are the owners of the
shops in the suit building and Defendants No.6, 7 and 8 are the
members of the Plaintiff society. Defendant No.9 is the owner of one
shop in the suit building which has allegedly been erected by
illegally covering the stilt in the suit property.
3.2 M/s Nahur Udyog Premises Housing Society Limited was the
holder of a larger plot of land bearing CTS No.551/3 corresponding
to Survey No.94(part) and 119(part) situated at village Nahur. Two
plots were carved out of the said larger plot i.e. plot No.11A ad-
measuring 3441.75 sq. meters and plot No.11B ad-measuring
1295.45 sq. meters. M/s Nahur Udyog Co-operative Housing Society
executed a Development Agreement in respect of plot No.11B,
Priya Soparkar 4 cra 430-23-c
alongwith the balance FSI of plot No.11A in favour of Defendant
No.1. A Power of Attorney was also executed in favour of Defendant
No.1.
3.3 The Defendant No.1 obtained permission to develop the said
plot 11B vide an Intimation of Disapproval (IOD) dated 20 th June,
2000, inter-alia, to construct buildings known as "Vinayak Aashish"
consisting of "A" and "B" wings having 7 floors each. Occupation
Certificate came to be granted in respect of "A" and "B" wings.
3.4 The Defendant No.1 sold the flats in "A" and "B" wings by
executing registered Agreements for Sale. The Defendant No.1 had
agreed inter-alia that in case of any variation or modification of
building plan in future, the Defendant No.1 shall obtain written
consent of the flat purchasers; construct the building in conformity
with the building plan approved on 18 th July, 2000; to get a co-
operative housing society of the flat purchasers formed and
registered, and to convey the suit property to the society so
registered.
3.5 Despite assurances, the Defendant No.1 failed to get the
housing society of the flat purchasers registered, and committed
other breaches. Thus, the Plaintiff society was formed and
registered by flat purchasers themselves, on 15th April, 2008.
3.6 The Defendant No.1, the Plaintiff alleges, without the
knowledge and consent of the society and its members got
sanctioned amended building plans from the Mumbai Municipal
Corporation. Likewise though there were no garages in the
sanctioned plan, the Defendant No.1 without knowledge and
Priya Soparkar 5 cra 430-23-c
consent of the Plaintiff also got approval for the construction of
alleged three garages in the compulsory open space towards west-
side of the "B" building. The Plaintiff further asserts, the Defendant
No.1 illegally and unauthorizedly agreed to sell the said garages to
the Defendants No.6, 7 and 8 by entering into Agreements for Sale
dated 3rd April, 2008. Thus, the Plaintiff had instituted Suit No.2763
of 2008 against the Defendant No.1 and Mumbai Municipal
Corporation for declaration and consequential reliefs.
3.7 The Plaintiff avers, the Defendant No.1 illegally and
unauthorizedly sold two open stilts on the ground floor of the "B"
wing of the suit building to the Defendant No.9 under an
Agreement for Sale dated 5th December, 2003. The society office, as
shown in the original sanctioned plan, was also sold by the
Defendant No.1 to one Mrs. L. S. Jain and others who, in turn, sold
the same to the Defendants No. 2 to 5 illegally and unauthorizedly.
It is the assertion of the Plaintiff that though the alleged garages are
not in existence, the Defendant No.1 has sold the said three garages
to the Defendants No.6 to 8.
4. Alleging that there can be no modification or variation in the
building plans without written consent of each of the members of
the Plaintiff society, as mandated by Section 7 of the Maharashtra
Ownership of Flats Act, 1963 ("MOFA"), the Plaintiff has instituted
the suit for a declaration that the Defendant is not entitled to sell
open parking spaces/proposed garages, open stilt parking, that the
sale of the proposed garages to the Defendants No.6 to 8 and open
stilt parking to the Defendant No.9 and the society office to the
Defendants No.2 to 5 is in violation of the provisions of MOFA and
D. C. regulations and do not bind the Plaintiff and for the
Priya Soparkar 6 cra 430-23-c
mandatory injunction to hand over vacant possession of approved
and sanctioned society office premises alongwith adjoining open
spaces.
4.1 Initially, the Defendant had taken out a Notice of Motion
assailing the jurisdiction of the Court and the bar of limitation to the
suit. By an order dated 2nd May, 2013, the learned Judge decided
the preliminary issue of jurisdiction in the negative and thereby held
that the Co-operative Court would have jurisdiction to entertain, try
and decide the suit, and that the suit was otherwise not barred by
law of limitation.
4.2 In Writ Petition No.10498 of 2023 preferred by the Plaintiff-
Respondent No.1, this Court was persuaded to set aside the order of
the City Civil Court on the point of jurisdiction and the suit came to
be restored to the file of the City Civil Court for determination of all
the issues.
4.3 The Applicant took out the Notice of Motion now seeking the
rejection of the plaint primarily on the ground that the suit was
barred by the provisions of Order II Rule 2 of the Code of Civil
Procedure, 1908 ("the Code") as the Plaintiff had omitted to seek
the reliefs claimed in the instant suit in the previous suit No.2763 of
2008 and that the suit was barred by law of limitation.
4.4 By the impugned order, the learned Judge City Civil Court
returned a finding that the bar of the provisions contained in Order
II Rule 2 of the Code will not operate as the cause of action for the
instant suit was materially distinct from the previous suit, the facts
in both the cases were not identical nor there was identity of the
Priya Soparkar 7 cra 430-23-c
parties in the previous suit and the instant suit. Therefore, the plaint
was not liable to be rejected under the provisions of Order VII Rule
11 of the Code.
5. Being aggrieved, the Defendant No.1 has invoked the revisional
jurisdiction.
6. I have heard Mr. Divesh Chamboowala, learned counsel for the
Applicant, Mr. Ranjit Thorat, learned senior Advocate for the
Respondent No.1-Plaintiff, and Mr. Pradip Kadam, learned counsel
for the Respondents No.6 to 8, at some length. With the assistance
of the learned counsel for the parties, I have perused the material
on record including the averments in the plaint in the instant suit
and the previous suit.
7. Initially, Mr. Chamboowala made an attempt to canvass a
submission that the suit is barred by law of limitation as there was
no averment in the plaint as to when the Plaintiff learnt about the
alleged instruments in favour of the Defendants No.6 to 8 and 9 by
the Defendant No.1. The plaint, according to Mr. Chamboowala is
delightfully silent as to the date of knowledge of the alleged
instruments in favour of the Defendants No.6 to 8, who were none
other than the members of the Plaintiff society. A meaningful
reading of the plaint, according to Mr. Chamboowala, would
indicate that the suit is clearly barred by law of limitation.
8. However, subsequently, Mr. Chamboowala submitted that in view
of the earlier orders passed in the proceedings arising out of the
instant suit, the Applicant does not wish to press the issue of
limitation.
Priya Soparkar 8 cra 430-23-c
9. Suffice to note that in view of the objection raised by the Applicant-
Defendant to jurisdiction of the Civil Court, under Section 9A of the
Code, as it then stood in its application to the State of Maharashtra,
the Trial Court had framed two issues. First, bar of subject-matter
jurisdiction in view of the provisions contained in the Maharashtra
Co-operative Societies Act, 1960 as it was contended on behalf of
the Defendants that the Co-operative Court would have exclusive
jurisdiction to entertain and try the suit of the present nature.
Second, the bar of limitation.
10. As noted above, by an order dated 2 nd May, 2013, the learned
Judge, City Civil Court upheld the challenge to the tenability of the
suit on the count of the bar of jurisdiction. It was, inter-alia, held
that the dispute would lie within the exclusive province of the Co-
operative Court. By the judgment dated 25th August, 2015 in Writ
Petition No.10498 of 2013, this Court quashed and set aside the
said order of the learned Judge observing, inter-alia, that the City
Civil Court would have jurisdiction to entertain, try and adjudicate
the suit.
11. In the said order, it is pertinent to note, a categorical statement was
made (as recorded in paragraph No.7 of the said order) that the
Defendants were not aggrieved by the said findings of the Trial
Court on limitation and, therefore, had not filed any cross-petition
challenging the order passed by the Trial Court.
12. In view of the aforesaid development, Mr. Thorat, learned senior
Advocate for the Plaintiff, would urge that it is now not open for the
Applicant to again raise the ground of limitation.
Priya Soparkar 9 cra 430-23-c
13. Faced with the apparent difficulty in reagitating the ground of
limitation Mr. Chamboowala, learned counsel for the Applicant
submitted that the Applicant does not press the ground of
limitation. Even otherwise, in view of the aforesaid development, it
is impermissible to assail the tenability of the suit on the ground of
bar of limitation. The principle of res-judicata applies at different
stages in the same proceedings.
14. This propels me to the thrust of the submission of Mr.
Chamboowala that the instant suit is clearly barred by the
provisions of Order II Rule 2 of the Code as the foundation of the
cause of action in the previous suit and the instant suit is one and
the same, namely, the absence of consent of all the flat purchasers
for modification of the building plan as envisaged under Section 7
of the MOFA. A strenuous effort was made by Mr. Chamboowala to
urge that the prayers in the instant suit with regard to stilt, garage
and office premises could have been sought in the previous suit.
Since the plaintiff omitted to sue for those reliefs, without obtaining
the leave of the Court, Mr. Chamboowala would urge, the fact that
the Defendants No.2 to 5 and 7 to 9 in the present suit were not
parties to the previous suit is of no consequences as those
Defendants are claiming their rights through Defendant No.1.
15. Taking the Court through the pleadings in the instant suit and the
previous suit, Mr. Chamboowala urged with a degree of vehemence
that the cause of action in the instant suit and the previous suit is
the same as the Plaintiff had knowledge about construction and
enclosure of the office space and the stilt and that the Defendant
No.1 had no right in the open spaces. In such a situation, the bar
Priya Soparkar 10 cra 430-23-c
under Order II Rule 2 of the Code is clearly attracted, urged Mr.
Chamboowala.
16. To buttress these submissions, Mr. Chamboowala placed reliance on
the decisions of the Supreme Court in the cases of Dahiben Vs.
Arvindbhai Kalyanji Bhanushali1, Manratna Developers, Mumbai Vs.
Megh Ratan Co-operative Housing Society Limited, Mumbai 2, State
Bank of India Vs. Gracure Pharmaceuticals Limited 3 and decision of
the Privy Council in the case of Mohammad Khalil Khan Vs. Mehbub
Ali Main4.
17. As against this, Mr. Thorat, learned senior Advocate for the Plaintiff,
would urge that the instant Revision Application is a link in the
chain of the dilatory practices adopted by the Defendant No.1 to
delay the disposal of the suit, by filing applications one after
another. The issue of limitation, as noted above, has already been
determined by the Trial Court and the challenge thereto was
expressly given up by the Defendant. Yet, on that very ground the
application for rejection of plaint was premised. Likewise a bare
perusal of the averments and the prayers in the present suit makes it
explicitly clear that the instant suit is based on a completely
different cause of action. In such circumstances, there is no scope
for the application of the bar contained in Order II Rule 2 of the
Code, urged Mr. Thorat.
18. Order II Rule 2 of the Code plainly provides that where a Plaintiff
omits to sue in respect of or intentionally relinquishes any portion of
his claim, he shall not afterwards sue in respect of the portion so
1 AIR 2020 SUPREME COURT 3310
2 2009(2) Mh.L.J. 115
3 AIR 2014 Supreme Court 731
4 AIR 1949 PC 78
Priya Soparkar 11 cra 430-23-c
omitted or relinquished. The avowed object of Order II Rule 2 of the
Code is to preclude the Plaintiff from vexing the Defendant twice for
the same cause by splitting up the claim. For the applicability of the
bar contained in Order II Rule 2 of the Code, the identity of the
cause of action between the previous suit and the subsequent suit,
in which the said bar is set up, is of decisive significance. If the
cause of action on which the previous suit was based does not form
the foundation of the subsequent suit, there would be no scope for
the applicability of the bar contained in Order II Rule 2 of the Code.
It follows that if the Plaintiff in the previous suit could not have
claimed the reliefs which are sought in the subsequent suit, the
interdict would not operate.
19. To successfully sustain a bar of Order II Rule 2 of the Code, it has to
be established that the subsequent suit is in respect of the same
cause of action on which the previous suit was based; the Plaintiff
was entitled to seek more reliefs than the ones the Plaintiff had
sought in the previous suit, in respect of that cause of action, and,
yet, despite being entitled to more than one relief, the Plaintiff
omitted to sue for such a relief for which subsequent suit has been
instituted, without obtaining leave of the Court.
20. In the case of State Bank of India Vs. Gracure Pharmaceuticals
Limited (supra) on which reliance was placed by Mr. Chamboowala,
after adverting to the previous pronouncements in the cases of
Gurbux Singh Vs. Bhooralal5 and Sandeep Polymers Private Limited
Vs. Bajaj Auto Limited and ors.6, the Supreme Court enunciated
import of the bar contained in Order II Rule 2 of the Code and the
conditions for its applicability, in the following words:-
5 AIR 1964 SC 1810
6 AIR 2007 SC 2656
Priya Soparkar 12 cra 430-23-c
"11. The above-mentioned decisions categorically
lay down the law that if a plaintiff is entitled to seek
reliefs against the defendant in respect of the same
cause of action, the plaintiff cannot split up the claim
so as to omit one part of the claim and sue for the
other. If the cause of action is same, the plaintiff has
to place all his claims before the Court in one suit, as
Order 2, Rule 2, CPC is based o the cardinal principle
that defendant should not be vexed twice for the same
cause.
12. Order 2, Rule 2, CPC, therefore, requires the
unity of all claims based on the same cause of action
in one suit, it does not contemplate unity of distinct
and separate cause of action. On the abovementioned
legal principle, let us examine whether the High Court
has correctly applied the legal principle in the instant
case."
21. It is true absolute identity of the parties may not be peremptory. If it
could be shown that few of the parties who were not parties in the
previous suit are claiming through the parties who were the parties
in the previous suit, the bar under Order II Rule 2 of the Code can
be invoked, provided there is unity of the cause of action.
22. In the light of the aforesaid position in law, reverting to the facts of
the case, it becomes abundantly clear that there is no identity of the
cause of action in the instant suit and the previous suit. The thrust
of the previous suit was on the modification in the building plan
without the knowledge and consent of the flat purchasers. In fact,
the action of the Municipal Corporation in sanctioning the modified
plan was initially sought to be assailed and, later on, the said relief
was given up. In the instant suit, on the other hand, the Plaintiff has
assailed the purported agreements for allotment of garages
executed by the Defendant No.1 in favour of the Defendants No.6 to
8, the conveyance of the space meant for the society office and the
Priya Soparkar 13 cra 430-23-c
alleged unauthorized allotment of a premises unlawfully covering
the stilt.
23. It is true, the action of the Defendant No.1 in executing such
agreements and conveyances is assailed on the ground that the said
action is in breach of the agreements for sale executed in favour of
the flat purchasers and the provisions of Section 7 of MOFA.
However, the reference to historical facts in the previous suit as well
as the instant suit, does not by itself render the cause of action in
the previous suit and the instant suit one and the same.
24. From the perusal of the plaint in instant suit, it becomes evidently
clear that the reliefs claimed in the instant suit could not have been
sought by the Plaintiff in the previous suit. A reference to the
Agreement of Sale dated 3 rd April, 2008 in favour of the Defendants
No.6, 7 and 8 or the Agreement of Sale dated 5 th December, 2023 in
favour of the Defendant No.9 does not necessarily imply that the
Plaintiff had knowledge of all these instruments when the previous
suit was instituted. It is trite at the stage of the consideration for
rejection of the plaint, it is only the averments in the plaint
alongwith the documents annexed thereto that can be looked into.
The defence raised by the Defendant is wholly irrelevant at the
stage of the consideration for rejection of the plaint. The averments
in the plaint in the instant suit do not indicate that the foundation
of the cause of action in the previous suit and the instant suit is one
and the same and the Plaintiff could have claimed the reliefs sought
to be claimed in the instant suit in the previous suit, as the essential
condition of the identity of the cause of action is not satisfied. The
learned Judge, City Civil Court thus cannot be said to have
Priya Soparkar 14 cra 430-23-c
committed any error in rejecting the application for rejection of the
plaint.
25. For the foregoing reasons, no interference is warranted in the
impugned order in exercise of limited revisional jurisdiction.
However, it would be expedient in the interest of justice that the
previous suit and the instant suit are heard and decided by one and
the same Court, simultaneously. Hence, the following order:-
ORDER
(i) The Revision Application stands dismissed with costs.
(ii) L.C. Suit No.2763 of 2008 and S.C. Suit No.2483 of 2011 be,
however, heard and decided by one and same Court,
simultaneously, and as expeditiously as possible.
(iii) If the suits are listed before the different Courts, the learned
Principal Judge, City Civil Court is requested to assign both the suits
to one and the same Court for hearing and disposal in accordance
with law.
(iv) It is clarified that the aforesaid observations are confined to
determine the legality, propriety and correctness of the impugned
order and this Court may not be understood to have expressed any
opinion on the merits of the matter.
(N. J. JAMADAR, J.)
....
