2014 PLP 309 (MLD)

WAQAR AHMAD SETH, J.

Malik Muhammad Miskeen petitioner (in Writ Petition No.215 of 2004) seeks the constitutional jurisdiction of this Court praying for:-- "that on acceptance of the writ petition, the judgment and order dated 29-6-2004 passed by respondent No.1 may graciously be set aside being unlawful, without jurisdiction and based on "no evidence".

2. Whereas Rehmat Wali and Faqir Muhammad petitioners have filed Civil Revision No.170 of 2004 under section 115, C.P.C. against the judgment and order of learned District Judge, Kohistan dated 15-3-2004 whereby dismissing the appeal of petitioners maintained judgment and decree of trial Court.

3. Brief facts, as mentioned in the writ petition, are that Malik Muhammad Miskeen petitioner instituted a suit for declaration and permanent injunction against the respondents. The defendants Nos. 2 and 8 appeared and contested the suit by filing written statement and moved application under Order VII, Rule 11, C.P.C. for rejection of the plaint, which was dismissed by the trial court, however, on revision petition the said order was set-aside. The plaint was amended. The defendant No.2 moved another application under Order VII, Rule 11, C.P.C. for rejection of plaint, which was replied and both the applications were disposed of by the trial court on 10-10-2003. Defendant No.2 preferred revision petition, which after contest was accepted and suit of petitioner was dismissed vide judgment and order dated 29-6-2004. Hence, the writ petition.

4. Brief facts of Civil Revision No.170 of 2004 are that Malik Miskeen respondent No.1 instituted a suit for declaration and permanent injunction against the petitioners. The petitioners appeared and contested the suit by filing written statement and learned trial court recording pro and contra evidence and hearing the parties decreed the suit of respondent No.1. Feeling aggrieved, the petitioners preferred appeal, which after contested was dismissed vide judgment and decree dated 23-4-2009. Hence, the revision petition.

5. Learned counsel for the parties stated that since legal questions involved in both the matters are the same, therefore, they be clubbed and heard together, therefore, both the petitions were clubbed heard together.

6. Arguments heard and record perused. 7. perusal of record would reveal that the parties had entered into a settlement/exploitation agreement dated 7-9-1979, which is in respect of standing trees and exploitation. In this respect section 3(2)(a) of Ordinance No.VII of 1980 provides:-- "

3. Prohibition of private extraction of timber, etc. 3. (2) (a) all contracts, agreements or other instruments entered into or executed for the extraction of timber or other forest produce in the specified areas, subsisting immediately before the commencement of the Ordinance, shall, upon such commencement, stand terminated. "

8. Hence, the agreement dated 7-9-1979 is apparently hit by Ordinance VII of 1980. A similar question of law was decided by this Court in the case of Rab Nawaz Khan v. Shah Haneef in R.F.A. No.135 of 2003 decided on 1-2-2005, wherein it was held in para-9 as under:-- "Another legal aspect of the case is that there was imposed complete prohibition on the cutting and removal of forest timber from Anora Compartment under the N.-W.F.P. Conservation and Exploitation of Forest in Hazara Division Ordinance, 1980 as section 3 therein is coached with unambiguous words in this regard. This ordinance has been cited in PLD 1981 N.-W.F.P. Statute at page 74 and at S. No.243 of the schedule, the Anora Compartment is clearly mentioned to be the one included in the area the removal of timber there from was placed under prohibition. Keeping in view this legal aspect if the agreement was fully proved through evidence even then it was not enforceable being a void agreement as it was offending against the prohibition contained in the statutory law ".

9. The record is suggestive of the fact that before filing of such suit no notice as required under sections 70 and 70-A of the Ordinance was given, which is mandatory. Right from very start respondent has denied the receipt of such notice. At pages 51 and 52 are the said notices with the remarks `received copy' whereas per plaint and evidence of the petitioner he served the said notice through registered cover A.D. post. No such registered receipts were exhibited. The record is also suggestive that along with the plaint and list of witnesses no suck notices were attached, however, during evidence the same were placed on record, subject to legal and valid objections from the other side. Those notices arc mandatory before institution of suit.

10. In the case of Zia-ur-Rehman Alvi v. Messrs Allahabad Co-operative Housing Society Limited and 2 others reported as PLD 1995 Karachi 399, it was held as under:-- "Notice in terms of S.70, Co-operative Societies Act, 1925 was a pre-requisite before filing suit against registered cooperative society

Such notice should detail cause of action, name, description and place of residence of plaintiff; and relief which he claimed

Notice in terms of S.70, Co-operative Societies Act, 1925 being mandatory, suit in it's absence would not be maintainable against any registered co-operative society

Any notice which did not confirm with requirement of S.70, co-operative societies act, would not deemed proper notice in terms thereof

Suit in absence of such notice was not maintainable in circumstances".

11. A similar view was reiterated in the case of Lahore Cantt: Co-operative Housing Society Limited v. Messrs Builders and Developers (Pvt.) Ltd and others reported as PLD 2002 SC 660, wherein it was also held as under:-- "Non-issuance of statutory notice

Effect--Suit against a society or its officers in respect of any act touching the business of the society is not competent under S. 70 of Co-operative Societies Act, 1925 without issuing two months' notice prior to its institution".

12. The suit of the petitioner was rightly held not maintainable and petitioner filed to make out a case of misreading and non-reading of evidence on record, hence, needs no interference in constitutional jurisdiction.

13. Since in the writ petition, it is held that suit is based on an agreement under section 3 of the Ordinance, therefore, the civil revision is allowed and judgments and decrees dated 22-11-2003 and 15-3-2004 of the courts below stand set aside.

14. Consequently, Writ Petition No.215 of 2004 is dismissed whereas Civil Revision No.170 of 2004 is allowed and impugned judgments and decrees therein are set aside. No order as to costs. JJK/558/P Order accordingly.