1996 PLP 1195 (SCMR)

MUHAMMAD ILYAS, J.

This petition for leave to appeal relates to a passage being used by the petitioner, namely, Lahore Cantt. Cooperative Housing Society Limited. It is not disputed that the petitioner is a housing society. After acquiring/purchasing land, it converts it into plots, which are allotted to persons applying therefore. It also develops those plots by constructing roads, etc., to enable the purchasers thereof to construct houses/commercial centres, etc., thereof. Plea of the respondent, Khanzada Inamullah Khan is that the said passage, which is being used by the petitioner; is, in fact, the land owned by him and the petitioner has no right to utilize it as such.

2. In order to establish his title to the passage in question, the respondent brought a suit against the petitioner but the plaint thereof was rejected by a Civil Judge on the ground that notice under section 70 of .the Cooperative Societies Act, 1925, hereinafter referred to as the said Act, had not been served on the petitioner before the institution of the suit. The respondent filed appeal before an Additional District Judge. His appeal was accepted with the result that the order of the learned Civil Judge was set aside and the suit remanded to him for fresh decision.

3. Feeling aggrieved by the judgment of the learned Additional District Judge, the petitioner went in revision before the Lahore High Court but without success. Hence this petition for leave to appeal against the judgment of the learned Single Judge who had dismissed the civil revision.

4. Section 70 of the said Act reads as follows:-- "

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 claims; and the' plaint shall contain a statement that such notice has been so delivered or left." Another provision of the said Act which has been referred to by the learned Single Judge in the impugned judgment is section 54 thereof. It is in the following terms: "

54. Arbitration.--If any dispute touching the business of a society (other than a dispute regarding disciplinary action taken by the society or its committee against a paid servant of the society) arises (a) between members or past members of the society or persons claiming through a member or past member, or (b) between members or past members or persons so claiming and any past or present officer, agent or servant of the society, or (c) between the society or its committee, and any past or present member of the society, or (d) between the society or its committee, and any past or present officer, agent or servant of the society, or a surety of such officer, agent or servant, whether such surety is or is not a member of the society, or (e) between a financing bank authorised under subsection (1) of section 34 and a person who is not a member of a society." it shall be referred to the Registrar for decision by himself or his nominee, or if either of the parties so desires, to arbitration of three arbitrators who shall be the Registrar or his nominee and two persons of whom one shall be nominated by each of the parties concerned. A dispute shall include the question whether a person is or was a member of a society and also claims by a society for debts or demands due to it from a member, past member or non-member or the heirs or assets of a past member or non-member whether such debts or demands be admitted or not: Provided that if the question at issue between a society and a claimant, or between different claimants, is one involving complicated question of law and fact, the Registrar may, if he thinks fit, suspend proceedings in the matter until the question has been tried by a regular spit instituted by one of the parties or by the society. If no such suit is instituted within six months of the Registrar's order suspending proceedings the Registrar shall take action as laid down in paragraph 1 of this section."

6. While assailing the impugned judgment, it was contended by learned counsel for the petitioner that since notice under section 70 of the said Act was not served on the petitioner before filing the suit, the plaint was rightly rejected by the learned trial Court. This plea was also advanced before the learned Judge in Chamber and, in reply, it was submitted before him that the matter involved in the suit did not relate to the business of the society (petitioner) and that the respondent, being not a member of the society, could not obtain the relief prayed for in the suit, by invoking the provisions of section 54 of the said Act and, therefore, it was not necessary for the respondent to serve the petitioner with a notice under section 70 of the said Act. Learned counsel for the petitioner inter alia, cited Al-Riaz (Shalimar Town) Ltd. v. Muhammad Hassan Lodhi and another 1982 CLC 2167) to support his contention while learned counsel for the respondent relied on Muhammad Siddique etc. v. Shahab Din etc. 1991 CLC Note 247 at p.192 to fortify his arguments. ;

7. Following the dictum in the case of Muhammad Siddique etc. it was held by the learned Judge in Chamber that the matter in dispute did not relate to the business of the society (petitioner) and that the respondent, being not a member of the society, could not get relief under section 54 of the said Act and, therefore, his suit was not hit by section 70 of the said Act. In this view of the matter, he upheld the judgment of the learned Appellate Court and dismissed the revision petition.

8. Both the precedent cases referred to above were decided by the Lahore High Court. Learned counsel for the parties were unanimous that there is no judgment of this Court on the question whether section 70 of the said Act would apply to a plaintiff who is not member of a cooperative society. Learned counsel for the respondent was, therefore, very keen to have an authoritative pronouncement by this Court on the subject.

9. While we were hearing this petition, we were also informed that the plaint in the respondent's suit was dismissed by the learned trial Court when the period of two months (mentioned in section 70 of the said Act) had expired. What was the effect of this development also deserves to be examined.

10. In view of the above discussion, therefore, we accept this petition and allow leave to the petitioner to appeal against the impugned judgment of the learned Judge in Chamber so that the following question may be thoroughly considered and decided by this Court:- (a) Whether the dispute involved in tile respondent's suit touches the business of the society (petitioner)? (b) Whether it is only the suit filed by a member of a cooperative society, without serving notice as contemplated by section 70 of the said Act, which would be hit by the said provisions of law or they would also operate as bar to a suit brought by a person who is not a member of such society? (e) If a suit cannot be filed without serving notice under section 70 of the said Act, can the plaintiff therein be non-suited on the strength of section 70 ibid even when a period of two months has elapsed after the filing of the suit?

11. Since the above questions are of general public importance, office should fix this appeal for hearing at an early date. A.A./L-97/S Leave granted.