' MRS. ASHRAF JAHAN, J.--- Being aggrieved by the order dated 5-10-2007 passed by the learned Single Judge dismissing the application of the appellant under Order VII, Rule 11, C.P.C. Filed in Suit No.1352/99, she has invoked the appellate jurisdiction of this Court with the prayer to set aside the above order and to reject the plaint under Order VII, Rule 11, C.P.C. In the above suit.
2. The case of the appellant is that the respondent No. 1 has filed Suit No.1352/99 against her and the respondents Nos.2 and 3 for Declaration, Injunction, Possession, Cancellation, Mesne Profit and Damages with following prayers:--- "(a) Declaration that the plaintiff is a bona fide allottee/sub-lessee in respect of Plot No. 93, Block- E, Scheme 31-D, measuring 1000 square yards situated in Korangi Township, Karachi and the lease registered No.3808 on 16-9-1997 subsists and is binding.
(b) For possession of the suit plot with structure thereon.
(c) Injunction restraining the defendants their servants, agents and persons working at their instance from reallotting the said plot to any other person and creating any third party interest on the suit plot prejudicial to the interest of the plaintiff
(d) Declaration that show-cause notice dated 26-7-1999 and the letter dated 27-7-1999 cancelling the allotment of the plaintiff in respect of the suit plots are illegal, bad in law and to no legal effects.
(e) Declare that any other documents creating any right, title and interest in respect of suit plot in favour of the defendant No.2 and/or in favour of any other person are illegal, bad in law and to no legal effect.
(e) Mesne profit Rs.500/- per day from the date the plaintiff is in the alternative dispossessed from the suit plot till the possession is restored.
(1) Damages in the sum of Rs.50,00,000/-.
(g) Any other relief under the circumstances this Hon'ble Court may deem fit and proper."
3. The appellant filed her written statement in the suit, delaying the case of the respondent No.
1. On 25-6-2004 she also filed an application under Order VII, Rule 11, C.P.C. For rejection of plaint on the ground that notice, as required by section 70 of the Cooperative Societies Act 1925, (hereinafter referred to as "Act") had not been delivered to the Registrar, but to the Deputy Registrar, which is not proper compliance of this mandatory provision of law. The above application was argued before the learned Single Judge, who was pleased to dismiss the same vide order dated 5-10-2007, which is impugned before this Court.
4. We have heard Mr. Mansoorul Arfain learned counsel for appellant, Mr. Abdul Muqtadir Khan learned counsel for respondent No.1 and Mr. Saifullah learned A.A.-G. It is contended by the learned counsel for appellant that learned Single Judge has passed an erroneous order in the present case, as it has been wrongly held that objection of non-compliance of section 70 of the Act can be taken only by the Society. The above issue was neither raised by the respondent No.1 nor it was argued before the learned Single Judge and yet without hearing the appellant on this point impugned order has been passed, which is against the principles of natural justice. It is further contended that any party to the suit in which the Cooperative Society is a party can raise the objection of non-compliance of the mandatory provision of section 70 of the Act. He emphasized that it is a mandatory requirement for filing any suit against the society that a notice is to be delivered to the Registrar or left at his office before filing the suit, but in the present case notice was given to the Deputy Registrar, therefore, there is clear violation of the mandatory provision of law.
Section 2(f) of the Act defines the word "Registrar" and it does not include the Deputy Registrar therefore service of notice upon the Deputy Registrar is in clear violation of mandatory provision of law. In support of his contentions he relied upon the case of LAHORE CANTT. COOPERATIVE HOUSING SOCIETY v. MESSRS BUILDERS AND DEVELOPERS PVT. LTD. AND OTHERS, PLD 2002 SC page 660, whereby Hon'ble Supreme Court had granted leave to appeal against the concurrent findings of learned Lahore High Court and judgment and decree of Civil Judge First Class respectively. He further relied upon the case of HAJI SHAFI MUHAMMAD JAMOT v. FISHERMAN COOPERATIVE HOUSING SOCIETY LTD.
AND 6 OTHERS, 1999 M LD 1668, wherein it has been held by the learned Single Judge that question of jurisdiction could be raised at any time as the court has inherent power to examine, either to return the plaint under Order VII, Rule 10, or to reject the same under Order VII Rule, 11, C.P.C. If the circumstances so required. Lastly he also relied upon the case of MST. QADRI BEGUM v. PROVINCE OF SINDH, 1999 CLC 2023, wherein it has been held that suit against the cooperative society without service of notice was not maintainable.
5. On the other hand it is argued by Mr. Abdul Muqtadir Khan on behalf of respondent No.1 that notice dated 16-7-1999 as required under section 70 of the Act has duly been served upon the Deputy Registrar which fact is disclosed in para 11 of the plaint. Not only this but the Deputy Registrar has advised vide reply dated 30-8-1999 to seek remedy from the civil court as complicated questions of law and facts were involved, therefore, the suit was filed on 27-9-1999. In support of his case he also relied upon a Notification dated 4-11-1968 issued by the Government of Pakistan whereby the powers of the Registrar under the Act were delegated to the Deputy Registrar except the power under section 64-A thereof. He has further contended that as such powers of Registrar had been delegated to the Deputy Registrar therefore the purpose of service of notice upon the Registrar has been served and the suit is very much maintainable in the eyes of law and the application under Order VII, Rule 11, C.P.C. Has been rightly dismissed by the learned Single Judge. In support of his contentions he has relied upon the following case law:---
(1) MESSRS SUPER BUILDERS v. GULSHAN-E-FAISAL COOPERATIVE HOUSING SOCIETY AND OTHERS, 2000 YLR 1385.
(2) MUHAMMAD ZAMAN AND OTHERS v. SHAH VAZIR KHAN, PLD 2002 PESHAWAR PAGE 45.
(3) ABDUL GHAFFAR MAHENTI AND 2 OTHERS v. KATHIAWAR COOPERATIVE HOUSING SOCIETY LIMITED AND ANOTHER, 2003 YLR 2635.
6. Learned A.A.-G. Mr. Saifullah has submitted that if sections 54 and 70 of the Act are read as a whole it clearly bars the jurisdiction of civil Court, therefore the plaint should have been rejected in the present case.
7. We have considered the arguments advanced before us and perused the case record. In order to comprehend the controversy raised in this appeal, for the sake of convenience and ready reference section 70 of the Act is hereby reproduced as under:- "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 the claims; and the plaint shall contain a statement that such notice has been so delivered or left."
8. Admittedly, in the present case rejection of plaint is sought for want of service of notice as required under section 70 of the Act upon the Registrar. In the case in hand it is the case of respondent No.1 (plaintiff in Suit No.1352/99) that notice as required under section 70 of the Act was sent to the Deputy Registrar, who had advised to approach the civil court for redressal of grievance as complicated questions of fact and law were involved. The above facts are not disputed by the appellant side, whose case is that service of notice upon the Deputy Registrar does not fulfill the mandatory requirement of law and for this reason the plaint is liable to be rejected under Order VII, Rule 11, C.P.C. The perusal of impugned order goes to show that learned Single Judge in his order has accepted this legal position but did not reject the plaint on the ground that respondent No. 2 (defendant No.1 in Suit No.1352/99), who is the Society has not raised such objection and had such objection been raised by it, plaint would have been rejected or suit would have been dismissed against it.
9. Be that as it may, we have examined the respective contentions put forward by both sides. In the instant case interpretation of section 70 of the Act seems to be the most important question. The case-law reflects that there are divergent views in this behalf depending upon the pleadings of the parties.
10. It is settled legal position that while deciding the application under Order VII, Rule 11, C.P.C. Only averments of the plaint are to be taken into consideration, and every case is to be decided as per its own peculiar facts and circumstances. In the case in hand suit has been filed against the society as well as the appellant. As per plaint the plaintiff (respondent No.1) has alleged serious allegations of dispossession and collusion. Against the defendants therefore, it appears that matter requires evidence. Further averments of the plaint reveal that several complicated questions of fact and law are involved which can be properly decided by the civil court only and not by the Registrar Cooperative Society. It may not be out of place to mention that the Deputy Registrar in this case in reply to the notice sent by the respondent No.1 has already shown its inability to resolve the controversy between the parties. Reliance in this regard is placed upon the case of KARACHI PARSI COOPERATIVE HOUSING SOCIETY LTD. v. MRS. DINA S. HAZARI AND OTHERS, 2004 YLR 2071, and the case of MEHAR ALI MEMON v: FEDERATION OF PAKISTAN through CHAIRMAN PAKISTAN RAILWAY AND 13 OTHERS, PLD 2012 SINDH PAGE 425.
11. To our understanding the object of delivery of notice under section 70 of the Act and making it mandatory is to afford an opportunity to the aggrieved parties in the Cooperative Societies to resolve their disputes through the Registrar of the Society before going into litigation. In the present case from the averments of the plaint it transpires that respondent No.1 was aware of this legal position and conscious of its legal consequences, emanating due to non-delivery of the notice.
Thus, as evident from the record that notice was not only sent but its reply was also received whereby the Deputy Registrar had directed him to approach the civil court. The society throughout before the trial Court or before this court has not disowned the reply of notice sent by Deputy Registrar advising the plaintiff to approach the court of law. In our humble view under such circumstances the learned Single Judge was justified in holding that as no objection was raised by the society itself in this regard, therefore, plaint cannot be rejected on this ground.
12. It is also well-accepted principle for deciding an applications under Order VII, Rule 11, C.P.C. That plaint in a suit cannot be rejected' in piecemeal. In the present case the main relief claimed by respondent No.1 is against the appellant which could be considered and decided independently on the basis of pleadings and evidence of the parties. Therefore rejection of plaint for want of notice under section 70 of the Act cannot be ordered. This legal position becomes more clear from the H language of section 70 (ibid) which bars the institution of suit only against the Society and its officials and not against private individuals.
13. The perusal of the impugned order reveals that learned Judge has passed a speaking order, after discussing the relevant provision of law and the cited case-law. Thus, in view of above legal position we are of the opinion that the impugned order does not call for any interference, consequently present High Court Appeal is hereby dismissed with no order as to costs.