C.M. No, 1210-C of 2010 ' For the reasons recorded therein, the C.M. Is allowed and the main civil revision is restored to its original number. C.M. Stands disposed of.
2. Let the main case be heard today.
' CH. MUHAMMAD TARIQ, J.---This civil revision has been directed against the judgment and decree dated 28-11-2000 passed by the learned Additional District Judge, Lahore who dismissed the appeal of the petitioner and maintained the judgment and decree dated 7-5-1995 passed by the learned trial Court.
2. Brief facts of the case as narrated in the plaint are that the respondent-plaintiff is a registered society who filed a suit for permanent and mandatory injunction against the petitioner-defendant society on the ground that the respondent-plaintiff society purchased land measuring 1300 kanals situated in Mauza Kamah in the year 1982 for the purposes of establishing a housing scheme known as Punjab Cooperative Housing Scheme No,1 . The respondent-Society was surrounded by land owned by other people. In order to build an approach road from Ghazi Road to the scheme of respondent-Society, necessary sanctions from the Cantonment Board and GHQ were obtained who issued NOCs to the respondent-Society to build pakka passage and convert it into a complete mettled road. The respondent-Society thereafter spending a huge amount completed the road.
The petitioner-Society also purchased the land for its Phase-1V and after purchase of the land, the defendant-Society got approved the plan. The disputed rc ad was shown in the plan of the society who claimed its ownership. When the petitioner-Society started development work of the scheme; it caused damage to the road and when it was objected by the respondent-Society, the petitioner- Society gave show-cause to the effect that the damage caused to the road of the respondent- Society will be made good after completion of development work of the petitioner-Society. But contrary to the commitment, the petitioner-Society dismantled the road and passage to the plaintiff-Society, so it was prayed by the respondent-Society that the petitioner be restrained from interfering with the approach road from Ghazi Road to the scheme of the respondent-Society, the petitioner-Society be also restrained from dismantling it or closing it in any way. The petitioner- defendant contested the suit by filing written statement. Out of divergent pleadings of the parties, as many as 12 issues were framed which are reproduced as under:-- "ISSUES:
(1) Whether the instant suit is hit by section 70 of the Cooperative Societies Act, 1925? OPD
(2) Whether this suit is barred by principle of res judicata? OPD
(3) Whether the plaintiff is estopped by its conduct to institute the suit? OPD
(4) Whether the plaintiff has no cause of action or locus standi to file the suit? OPD
(5) Whether the present suit is not maintainable in its present form? OPD
(6) Whether the suit is misconceived and as such is not maintainable? OPD
(7) Whether the suit is barred under the provisions of section 12(1) and Order IX, Rule 8, C.P.C..? OPD
(8) Whether the plaint has not been verified according to law, if so, its effect? OPD
(9) Whether the plaintiff has not come to this court with clean hands? OPD
(10) Whether this suit is false, frivolous, vexatious and as such the defendant is entitled to special costs under section 35-A, C . P. C . ? OPD
(11) Whether the, plaintiff is entitled to a decree for permanent and mandatory injunction as prayed for? OPD.
(12) Relief."
3. After recording of oral as well as documentary evidence adduced by the parties, the learned trial court vide judgment and decree dated 7-5-1995 decreed the suit of the plaintiff-respondent- Society. Feeling aggrieved, the petitioner filed an appeal which also met the same fate and on 28- 11-2000, it was also dismissed by the learned Additional District Judge, Lahore. Hence this civil revision.
4. Learned counsel for the petitioner contends that the suit of the respondent-Society was not maintainable under section 70 of the Cooperative Societies Act, 1925. The suit was also barred under the principle of res judicata because the respondent had also filed previously a suit for permanent .Injunction which was dismissed. Learned counsel has averred that despite the objections of the petitioner-Society, the learned trial court has not framed proper issues and both the learned courts below have not considered the important question of facts raised by the petitioner-Society. The impugned judgments and decrees passes by both the learned courts below are against the law and facts, The suit-land belongs to the petitioner-defendant-Society and the respondent-society has no title, right or interest, whatsoever, with the suit-land, therefore, the civil revision be accepted, the impugned judgments and decrees passed by both the learned courts below be set aside and the suit of the respondent-plaintiff be dismissed with costs throughout.
5. Conversely, learned counsel for the respondent has vehemently opposed the civil revision on the ground that objections raised by the learned counsel for the petitioner-Society are without any substance. There are concurrent findings of facts and law by two learned courts below in favour of the respondent-plaintiff Society. Learned counsel for the petitioner-Society has failed to point out any illegality, misreading/non-reading of evidence or jurisdictional error in the impugned judgments and decrees, therefore, the civil revision is liable to be dismissed with costs.
6. I have heard the arguments advanced by learned counsel for the parties and have also perused the record available on file.
7. The perusal of record shows that the respondent-plaintiff in support of his contention produced 11 witnesses and also produced documentary evidence in shape of Exh. P1 to Exh. P13 while the petitioner-defendant in rebuttal produced 4 witnesses and documentary evidence. The main emphasis of the learned counsel for the petitioner-Society is that the suit is barred under section 70 of the Cooperative Societies Act, 1925 and the learned trial court at the very outset would have rejected the plaint under Order VII, Rule 11, C.P.C. This argument of the learned counsel for the petitioner-society is not convincing because the plaintiff-Society and the defendant-society both are independent entities and have no link or concern whatsoever with the affairs of each other.
Section 70 of the Cooperative Societies Act, 1925 provides 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 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."
8. It is a dispute of piece of land which is being claimed by both the parties, therefore, neither provisions of section 54 nor section 70-A of the Cooperative Society Act, 1925 would obstruct the suit for permanent injunction because the provisions of sections 54, 70 or 70-A of the Act ibid relate to the disputes touching the business of the society. It is a suit for permanent injunction which is not barred by the provisions of Cooperative Societies Act, 1925. Reliance is placed on the law laid down in the case titled, "Mst. Sardar Begum and 5 others v. Delhi Mercantile Cooperative Housing Society Limited and 2 others" reported as 1997 CLC 962.
9. The other contention of the learned counsel for the petitioner-society is that the suit of the respondent-society is hit by the principle of res judicata as a previous suit for permanent injunction was filed which was dismissed for non-prosecution is also misconceived because the subsequent suit for permanent injunction is neither hit by section 11 nor by Order II, Rule 2, C.P.C. Because the suit for permanent injunction is a relief in relation to cause of action stated in the said suit. It is not a claim and further the question of res judicata would not arise in a case when a previous suit was dismissed for non-prosecution. The provisions of section 11, C.P.C. Would be applicable only if previous suit had been decided on merit regarding the same issues which were directly and substantially were in issue in the subsequent suit.
10. So far as the contention of the learned counsel for the petitioner-Society that the proper issues were not framed is incorrect as the learned trial court framed different issues which prima facie cover all the discrepancies between the parties. In the judgment passed by the learned trial Court as well as in the judgment by the learned first appellate court, all issues and discrepancies between the parties were dealt with in detail in the light of the evidence adduced by the parties.
There are concurrent findings of facts and law by the two learned courts below against the petitioner-society which cannot be interfered with in civil revision by this Court. Learned counsel for the petitioner-Society has failed to point out any illegality, infirmity, misreading/non-reading of evidence or jurisdictional error in the impugned judgments and decrees.
11. The outcome of the above discussion is that the civil revision fails which is accordingly dismissed.