1984 PLP 2914 (CLC)

(a) Co‑operative Societies Act (VII of 1925)‑‑ ‑‑S.70‑‑Civil Procedure Code (V of 1908), 0311, r. 11‑‑Suit against Society‑‑Notice under S. 70, held, mandatory. (b) Co‑operative Societies Act (VII of 1925)‑‑ ‑‑Ss. 70 b 70‑A‑‑Suit against Society‑‑Notice‑‑Provisions of S.70‑A, held, did not supersede provisions of S. 70 in my manner. (c) Cooperative Societies Act (VII of 1925)‑‑ ‑‑Ss. 70 b 70‑A‑‑Suit against Society‑‑Provisions of S. 70‑A,held,provided further protection to a society registered under Act for being sued in a Court of law in respect of a matter determinable by Provincial Government or its functionary. (d) Co‑operative Societies Act (VII of 1925)‑‑ ‑‑‑S. 70‑‑Suit against society‑‑Notice‑‑Non‑service of notice under S. 70, held, was fatal to maintainability of suit. (e) Civil Procedure Code (V of 1908)‑‑ ‑‑‑O.VII, r.11‑‑Co‑operative Societies Act (VII of 1925),5.70‑‑Suit against Society‑‑Notice under section 70 of served‑‑Plaint rejected. P L D 1976 Kar. 1107; A I R 1927 P C 176; A I R 1935 Mad.389; P L D 1957 Pesh. 241; P L D 1964 Dacca 748; Muhammad Ali Memorial Co‑operative Housing Society Ltd. v. Syed Sibtey Hasan Kazmi P L D 1975 Nr.428 and Muzafar Hasan and another v. Yousif and another P L D 1976 Kar. 1107 ref. Nasim Farooqi for Plaintiff. S.M. Sadiq for Defendant No.

1. Naushad Shafqat for Defendants Nos. 3 and

4. Plaintiff Mst. Frida's suit is that the defendants herein are promoters of Prince Apartments Co‑operative Housing Society, Nrachi, and they made agreement with her, on 9th March,1975, for providing her a flat in the complex at the fixed price of Rs.65,000 and she rude advance payment to them of a sum of Rs.10,

000. It is alleged that the defendants did not give effect to the agreement. The plaintiff initiated arbitration proceedings under section 54 of the Co‑operative Societies Act. The defendants denied the plaintiff's membership of the society and the arbitration proceedings were dropped. The plaintiff has, therefore, brought this suit for specific performance of the contract or in the alternative a decree against the defendants for the sum of Rs.1,50,000 wish interest at 18% per annum and costs of the suit. The plaintiff has simultaneously filed an application (C.M.A. 603/81) for adinterim injunction restraining the defendants, their servants, agents and privies from canceling realloting, transferring, selling the flat. The defendants hale resisted this application. They have also filed an application under order 7, rule 11, C.P.C. (C.M.A. No.1807/81) for rejection of plaint on the ground that the suit is barred on account of non‑compliance of notice rewired to be given under section 70 of the Co‑operative Societies Act.

2. The learned counsel for the parties have made submissions in respect of the application under Order VII, rule 11, C.P.C.Mr. S. M. Sadiq Advocate for the defendant No.1 has urged that the defendant No.1 is a registered Co‑operative Housing Society and it could rot be sued unless notice under section 70 of the Co‑operative Societies Act was served upon them. According to him no notice was served upon the defendant No.1 and the suit is not maintainable in law not only in respect of the defendant No.1 but also in respect of other defendants. He has placed reliance on P L D 1976 Kar.1107. He has also cited A I R 1927 P C 176 and A I R 1935 Mad. 389 as the supporting authorities. On the other hand, Mr.Nasim Farooqi Advocate for the plaintiff has contended that the provisions of section 70 of the Co‑operative Societies Act are not attracted in this case as the agreement was entered into between the plaintiff and the Prince Apartments, subsequently formed as Prince Apartments Co operative Housing Society. He has further contended that section 70 of the Co‑operative Societies Act has become redundant after insertion of section 70‑A on the Co‑operative Societies Act. He has advanced a plea that the plaint is not liable to be rejected even if no notice under section 70 of the Co‑operative Societies Act was served upon the defendant No.1. He has relied upon P L D 1957 P.241 and P L D 1964 Dacca 748.

3. As indicated above, rejection of the plaint is sought on the ground that notice under section 70 of the Co‑operative Societies Act, 1925 (hereinafter referred to as the "Act") was not served on the defendant No.1 which is a society registered under the provisions of the Act. Section 70 of the Act reads as under: "

70. Notice necessary in suits.‑‑No suit shall be instituted against a society or any of its officers in respect of any act touching the business of the society until the expiration of two months next after notice in writing has been delivered to the Registrar, or left at his office, stating the cause of action, the name, description and place of residence of the plaintiff and the relief which he claimed and the plaint shall contain a statement that such notice has been so delivered or left." It is evident that the requirement of notice of filing of the suit is mandatory. Admittedly, no such notice was served on the defendant No.1, the Prince Apartments Co‑operative Housing Society. The argument that no notice was required to be given as the agreement constituting the basis for the suit was entered into with Prince Apartments before it was trans formed into a Society is not tenable for more than one reason. Firstly, the suit has been filed against the Prince Apartments Co‑operative Housing Society and not against Prince Apartments: and Secondly that the Prince Apartments was registered as a Co‑operative Housing Society under the provisions of the Act and it has the protection of notice required to be given under section 70 of the Act reproduced above. The other argument that the provisions of section 70 have become redundant after the insertion, of section 70‑A also is not tenable. Section 70‑A was inserted in the Act by West Pakistan Ordinance, XII of 1956. It lays down that no Court or authority shall have jurisdiction to entertain or to adjudicate upon any matter which can be disposed of under the provisions of the Act by the Provincial Government, the registrar or his nominee, any arbitrator or liquidator, a society, a financing bank, a co‑operative bank or any other person as empowered by or under the Act or rules or bye‑laws framed there under. These provisions do not, in any manner whatsoever, supersede the provisions of section 70 of the Act. On the contrary, the provisions of section 70‑A provide further protection to a society registered under the Act from being sued in a Court of law in respect of a matter determinable by the Provincial Government or its functionaries mentioned above. Ink fact protection to the defendants rather than securing the interest of the plaintiff. The learned counsel for the plaintiff, also made reference to section 54 of the Act which provides for arbitration in respect of disputes. The plaintiff did invoke the provisions of this section 54 but his representation was turned down on the ground that he was not a member of the Society. Had the matter fallen within the provisions of section 54, the plaintiff could not have maintained a suit in view of the bar contained in section 70‑A of the Act already referred to above. In any case, the requirement of prior notice under section 70 of the Act for filing the suit does stand in the way of the plaintiff.

4. The effect of non‑service of notice under section 70 of the Co‑operative Societies Act was directly considered in the cases Muhammad Ali Memorial Co‑operative Housing Society Ltd. v. Syed Sibtey Hasan Kazmi P L D 1975 Kar. 428 and Muzafar Hasan and 'another v. Yousif and another PLD 1976 Kar. 1107 and it was held that the suit in respect of an Act touching business of a registered co‑operative society without service of r prescribed mandatory notice under section 70 of the Co‑operative Societies Act, 1925, was not maintainable. In the case Muhammad Yasin v. Riazuddin Ahmed, Registrar, Co‑operative Society, relied upon by the learned Advocate for the plaintiff, it was observed that the question of non‑service of the notice under section 80, C.P.C. should not stand in the way of the consideration of an injunction application under Order XXXIX, C.P.C. The question of service of notice in this case has not been raised in the consideration of an interlocutory application but it has been agitated in questioning the maintainability of the suit itself and it has not to be put aside for consideration at the hearing of the case. The other case reported in P L D 1964 Dacca 748 Pakistan v. Dr. Azizul Islam also does not advance the plaintiffs case. In that case, it was observed that mere omission in the plaint of service of notice under section 80, C.P.C., which had actually been served, did not impair the maintainability of the suit. But in this case it is an undisputed fact that the mandatory notice was not given at all. It follows that the non‑service of the notice under section 70 of the Co‑operative Societies Act is fatal to the maintainability of the suit.

5. The legal lacuna in the filing of the suit discussed above relates to the defendant No. 1 only. There are three other defendants. The defendants Nos. 2 and 3 have been sued as the promoters of the defendant "o.1. The defendant No. 4 has been sued as a pro forma defendant. In the circum stances, the suit failing in respect of the defendant No.1 on the legal ground of non‑service of notice cannot be maintained against the other defendants also.

6. In the result, the plaint is rejected under Order VII, rule 11, C.P.C. on the ground that the suit is not maintainable under law. No order is made for costs. M.Y.H. Plaint rejected.