R.C.S. No.
61/2024
Plateau View Annex v.
1 Kabir Rashid Chaudhary
MHST100004252024
ORDER BELOW EXHIBIT 5
(Passed on this 31st day of July, 2025)
_______________________________________________________________
1. This is an application for temporary injunction by the plaintiff
under Order XXXIX Rule 1 of the Code of Civil Procedure, 1908.
2. The plaintiff in the present suit seeks permanent injunction
against the defendant. The subject matter of this application pertains to
Unit No. 2A out of Plateau View Annex Cooperative Housing Society
Ltd., Tal. Panchgani, Dist. Satara. It is hereinafter referred to as the suit
property.
3. The case of the plaintiff in a nutshell is as follows:
The Plateau View Annex Cooperative Housing Society Ltd. is
a registered cooperative housing society under the Maharashtra
Cooperative Societies Act, 1960. Both the plaintiff and the defendant
are the residents of the said society. The plaintiff submits that, except
for the defendant, all the members of the society have been using their
respective apartments exclusively for residential purposes. However, for
the past 12 years, the defendant has been using the suit premises for
R.C.S. No. 61/2024
Plateau View Annex v.
2 Kabir Rashid Chaudhary
MHST100004252024
commercial activities. The defendant has listed the premises on various
short term rental platforms such as Airbnb and has been regularly
letting it out to tourists. This continuous commercial use has allegedly
caused disturbances to the peaceful enjoyment of other members of the
society. It is the case of the plaintiff that such use is in violation of the
society’s rules. Therefore, through the present application, the plaintiff,
being the authorised representative of the society, seeks a temporary
injunction restraining the defendant from continuing such use of the
premises.
4. The defendant has resisted the present application vide his
reply below Exh. 16. He has stated that the present application is based
on fabricated facts and is false in nature. He has categorically denied all
the adverse allegations made against himself. The defendant claims that
the suit property was originally owned by Kusum Nana Kasurde who
later sold it to Husani Abubakar Basrai. Upon the death of Husani
Abubakar Basrai, the suit property property devolved upon his legal
heir, Nafisa Husaini Malbari. Due to her advanced age, she was unable
to continue the short term rental business conducted at the suit
property. Consequently, the entire suit property, including the ongoing
business and its goodwill was sold to the defendant on 16-12-2019.
Accordingly, the defendant asserts that he has been running a
hospitality business from the suit property since then without any
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Plateau View Annex v.
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MHST100004252024
interference and without causing inconvenience to any member of the
society. He further alleges that the plaintiff has fraudulently registered
the Plateau View Annex Cooperative Housing Society Ltd. under the
Maharashtra Cooperative Societies Act, 1960 by misusing his signature.
Additionally, he claims that the said society has charged him excess
maintenance fees. After raising concerns regarding the society accounts,
the plaintiff, with malafide intent, initiated the present proceedings.
Therefore, the defendant has prayed for the dismissal of the application.
5. Heard Shri. S.I. Inamdar, learned advocate for the plaintiff
and Shri. S.S. Bamane, learned advocate for the defendant. Perused the
application and the documents on record.
6. The following points arise for determination and my
findings thereon and reasons thereof are as follows:
SR. NO. POINTS FINDINGS
Whether the plaintiff has a prima facie
1. Yes
case ?
Whether the balance of convenience lies
2. Yes
in favour of the plaintiff ?
Whether the plaintiff will suffer
3. irreparable loss, if interim injunction is Yes
refused ?
4. What order ? As per final order
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REASONS
AS TO POINT NO. 1
7. At the outset, it would not be out of milieu to refer here that
one cannot go into the merits of the suit at this stage of the suit. What is
to be considered is the prima facie case and whether the same is in
favour of the plaintiff.
8. In order to prove prima facie case the plaintiff has relied on
several documents in the nature of society certificate of registration
dated 10-10-2023, general meeting notice dated 23-03-2024, general
meeting proceeding book dated 10-04-2024, notice dated 01-06-2024,
reply to the notice by the defendant dated 29-06-2024, police complaint
dated 18-02-2023 and letter to the collector dated 19-09-2022, etc.
9. The perusal of the aforesaid documents showcase that it is
not in dispute that the Plateau View Annex Cooperative Housing Society
Ltd. is a registered housing society under the Maharashtra Cooperative
Societies Act, 1960. In this background, the bye laws of cooperative
housing societies mandate that residential units are to be used solely for
residential purposes unless permitted otherwise. The defendant through
his reply to the present application as well as reply to the notice of the
plaintiff dated 29-06-2024 has admitted to run a hospitality business
over the suit property which in turn falls under the category of
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Plateau View Annex v.
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MHST100004252024
commercial business. At this juncture, the defendant has not placed any
document on record to showcase that the society had granted him
permission to run such commercial business from the suit property or
that such commercial use is permissible under the bye laws.
10. Furthermore, the meeting notice dated 23-03-2024
showcase that the society followed due procedure in calling a general
body meeting. The proceeding book of the said meeting contains
Resolution No. 4, wherein the members of the society by majority
consensus resolved that all units within the building must be used
exclusively for residential purposes and any commercial or non
residential use shall not be permitted. The said fact prima facie
establishes the collective intent and policy of the society.
11. Furthermore, the plaintiff has filed on record a copy of
notice dated 01-06-2024 sent to the defendant cautioning him against
any continued commercial use of the suit property. In response, the
defendant through his reply dated 29-06-2024 while denying some of
the allegations, has clearly admitted that he is running a hospitality
business from the suit property. He seeks to justify the same by referring
to historical usage and raises unrelated grievances regarding drainage
pipelines and society accounts. However, such justifications do not
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override the express resolution of the society or cure the violation of its
rules.
12. The defendant has not placed on record any permission,
license or no objection certificate from the society authorising him to
run a commercial business from the suit property. Nor has he shown
that the original owners had obtained such permission or that such use
was legally permissible under the applicable development control
regulations or bye laws. His mere assertion that he purchased the
goodwill of the business from the previous owner does not entitle him
to continue any activity that contravenes the rules of the society.
13. Thus, the material on record tilts in favour of the plaintiff
and discloses a prima facie case of violation of society rules through
unauthorised commercial use of residential premises. Accordingly, the
Point No. 1 is answered in the affirmative.
AS TO POINT NO. 2
14. The Hon’ble Supreme Court in (Dalpat Kumar And Anr. v.
Prahlad Singh And Ors, (1992) 1 SCC 719) observed that,
“The phrases “prima facie case”; “balance of
convenience” and “irreparable loss” are not rhetoric
phrases for incantation, but words of width and
elasticity, to meet myriad situations presented by man’s
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ingenuity in given facts and circumstances, but always
is hedged with sound exercise of judicial discretion to
meet the ends of justice. The facts are eloquent and
speak for themselves. It is well nigh impossible to find
from facts prima facie case and balance of
convenience.”
15. As per the ruling of the Hon’ble Supreme Court, the balance
of convenience lies in favour of the plaintiff. The society, through its
resolution, has expressly prohibited commercial use of residential
premises. Allowing the defendant to continue such unauthorised
commercial activity would undermine the collective will of the members
of the society and disturb the residential character of the premises. On
the other hand, restraining the defendant temporarily would merely
prevent him from continuing a use that is prima facie in breach of
society rules without affecting his rights of ownership. Hence, the Point
No. 2 is answered in the affirmative.
AS TO POINT NO. 3
16. At this stage of the suit what is to be considered is the
prima facie case and whether the same is in favour of the plaintiff. The
end result of the suit does not depend on the present application. An
irreparable injury means such injury which cannot be adequately
remedied by damages. The remedy by damages would be inadequate if
the compensation ultimately payable to the plaintiff in case of success
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MHST100004252024
in the suit would not place him in the position in which he was before
injunction was refused.
17. If the defendant is allowed to continue running a hospitality
business from the suit property, it is likely to cause irreparable harm to
the peaceful enjoyment and residential environment of other members
of the society. The influx of tourists, security concerns and increased
wear and tear of common facilities may lead to disturbances that
cannot be adequately compensated in money. Thus, the Point No. 3 is
answered in the affirmative.
AS TO POINT NO. 4
18. The discretion of the Court is exercised to grant a temporary
injunction based on the following three basic principles:
a. Existence of a prima facie case as pleaded,
necessitating protection of plaintiff's right.
b.When the need for protection of plaintiff’s rights is
compared with or weighed against the need for
protection of defendant’s right or likely infringement
of defendant’s rights, the balance of convenience tilts
in the favour of the plaintiff.
c. Clear possibility of irreparable injury being caused
to the plaintiff if the temporary injunction is not
granted.
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Plateau View Annex v.
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19. The plaintiff in the present application has satisfied this
Court that the material placed on record show that he has a prima facie
case in his favour. Moreover, the rejection of the present application
would possibly cause inconvenience and irreparable injury to him.
Therefore, based on the above aspects the following order is passed :
ORDER
1. The application is allowed.
2. The defendant or any other person claiming under him, in any
manner, is hereby temporarily restrained from using the suit
property for commercial purposes, including conducting
hospitality business or listing the premises on short term rental
platforms until disposal of the suit.
3. No order as to costs.
Digitally
signed by
UDAY UDAY SOPAN
IVARE
SOPAN Date:
Date: 31-07-2025 IVARE 2025.07.31
14:09:52
+0530
(Uday S. Ivare)
Civil Judge Junior Division,
Mahabaleshwar, Satara
R.C.S. No. 61/2024
Plateau View Annex v.
10 Kabir Rashid Chaudhary
MHST100004252024
Certificate
The contents of the PDF file are same, word to word correct
as per original order.
: Shri. U. S. Ivare
Court Name Civil Judge Junior Division,
Mahabaleshwar.
Order date : 31-07-2025.
Order signed date : 31-07-2025.
: Shri. S. S. Kadam,
Name of Stenograpuer
Stenographer L.G. - 3
Order uploaded date : 31-07-2025.
