1. In view of rejection of plaint under Order VII, Rule 11, C.P.C., this application has become redundant and is dismissed as under.
2. Defendant No.5 has filed this application under Order VII, Rule 11, C.P.C. For reaction of the plaint on the grounds (1) that the suit is barred under section 42 of the Specific Relief Act as the plaintiff though not in possession of the suit land has prayed only for declaration and not for the consequential relief for possession, (2) the Karachi Development Authority has been joined as a party without service of statutory notice under Article 131 of K.D.A. Order 1957 and (3) that the defendant No.2 is a Cooperative Housing Society and the suit has been filed without service of notice as required under section 70 of the Sindh Cooperative Societies Act, 1925.
1. Mr. M.G. Dastagir, the learned Advocate for defendant No.5 in respect of the first submission has relied on section 42 of the Specific Relief Act which reads as under:--- "42.Any person entitled to any legal character, or to any right as to any property, may institute a suit against any person denying, or interested to deny, his title to such character or right, and the Court may in its discretion make therein a declaration that he is so entiteld, and the plaintiff need not in such suit ask for any further relief- Provided that no Court shall make any such declaration where the plaintiff, being able to seek further relief than a mere declaration -of title, omits to do so."
2. For his contention the learned counsel has sought support from 1980 CLC 1483 Khawaja Muhammad Naeem and others v. Tasleem Jan and others, PLD 1973 Pesh. 80 Muhammad Saeed v.
3. Munawar Shah and others, PLD 1985 Kar. 481 Muhammad Azeem v. Pakistan Employees'
4. Cooperative Housing Society. All these authorities are on the proposition that the suit for declaration simpliciter in a case where the plaintiff is not in possession is barred by section 42 of the Specific Relief Act. However, learned counsel for the plaintiff has contended that the suit has been titled as the suit for declaration, permanent injunction and possession, and therefore, it could not be said that the suit is not for possession. He further submitted that the prayer for declaration will include the prayer of possession and it is the case of mere omission of prayer for possession, and therefore, such omission will not non-suit the plaintiff and moreso when he has paid the maximum court-fee. He further stated that such omission can be rectified by amendment of the, plaint. He alternately urged that the prayer be to be read in the context of the averments made in the plaint and the intention of the plaintiff whether the suit is for possession or not should be gathered from the contents of the plaint. Submission made by the learned counsel is novel innature.However, when this order was being dictated be came up with the request that he may be given time for making an application for amendment in the prayer clause. I do not think if any useful purpose will be served by giving him such opportunity at this stage as the suit apart from being barred under section 42 of the Specific Relief Act, is also barred under Article 131 of the KDA.
5. Order. 1957 and section 70 of the Sindh Cooperative Societies Act, 1925.
6. It is the requirement of the KDA. Order that "no suit shall be instituted against the Authority or any member or any person associated', with the Authority or against any servant of the Authority or any person or persons acting under the direction or authority of the Chairman or of any officer or servant of the Authority, in respect of any act purporting to be done under this Order or the rules or regulations made thereunder until the expiration of one month from the delivery of a written notice at the Authority Office or the place of abode of such member, officer, servant or person, station the cause of action, the name and place of the intending plaintiff, and the nature of the relief sought". It is also specifically provided that "in every such suit the complaint shall contain a statement that such notice has been so delivered". In Suit No.645/89 filed by defendant No.2 against K.D.A. And others including defendant No.5 K.D.A. Had agreed to provide alternate land to defendant No.2, which is the Cooperative Society of the employees of the plaintiff. There is no allegation of mala fides. Now, such an act has been performed by the K.D.A. In exercise of the powers given to it under the KDA. Order where under schemes is to be floated and lands are to be allotted by the Authority.
7. It is contended by Mr. S.H. Kizalbash, learned Advocate for the defendant No.1 that the order of substitution of the land and allotment thereof was made by K.D.A. Under Karachi Development Authority Allotment Regulations. 1965 framed under Article 151 of the KDA. Order, 1957.
8. The plaintiff has challenged the above act of the KDA. Which was I purportedly taken in exercise of the powers given to it. It is an admitted fact that no notice has been given by the plaintiff to KDA.
9. And consequently no such averment has been made in the plaint also. Learned counsel for the plaintiff relied on the case reported in PLD 1984 Kar.
34. In this case an observation was made that notice under Article 131 is not necessary in every case and is necessary only if the suit is filed in respect of any act purported to be done under Orders, Rules and Regulations made thereunder. As has already been observed earlier, the order of allotment of alternate land was passed by KDA.
10. Under the aforesaid Regulations and therefore, this is -not one of those cases where Article 131 will not be attracted. The suit is, therefore, obviously barred for want of notice under Article 131 of the K.D.A. Order, 1957.
11. It is lastly contended by the learned counsel for the defendant No.5 that the dispute is in respect of the act of the defendant No.2 pertaining to its business as a registered cooperative society.
12. According to him the defendant No.2 acquired the land as alternate land from defendant No.1 for the purposes of allotting the same to its members. The suit has been filed to get the aforesaid alternate allotment annulled and nullified. In the above context notice under section 70 of the Sindh Cooperative Societies Act VII of 1925 ought to have been served as required therein. No such notice having been given, the suit is barred under the said section.
13. The learned Advocate for the plaintiff has contended that the notice under the aforesaid section 70 is required only when the dispute between the parties be such as is referable for arbitration under section 54 of the Cooperative Societies Act. According to him the dispute in the suit cannot be referred and adjudicated upon under the aforesaid section, and therefore, the suit is maintainable in absence of notice under section 70 of the said Act. He has placed reliance on the case of Muhammad Sadiq etc. v. Shahabuddin etc. Reported in 1991 CLC Note 247 at p.192. The above quoted case was decided by a learned Single Judge of Lahore High Court.
14. The case of Muhammad Ali Memorial Cooperative Housing Society Ltd., Karachi v. Syed Sibte Hasan Kazini PLD 1975 Kar. 428 was referred to the learned Judge for the view that even a non-member was required to give such a notice. However, the learned Judge relied on the case. Of Muhammad Azim v. Pakistan Employees Cooperative Housing Society Limited PLD 1985 Kar. 481 for the view expressed by him. In the case of Muhammad Azim, the question under consideration was not that of non-maintainability of suit for want of notice under section 70 of the said Act, but that of ouster of jurisdiction of Civil Court under section 70-A of the Cooperative Societies Ac4 1925. While interpreting the said section it was held that where the dispute could be adjudicated under section 54 of the Cooperative Societies Act, 1925, the jurisdiction of the Civil Court would stand ousted under section 7&-A of the said Act. The rule laid down in the case of Muhammad Azim (supra) is not relevant, where the objection raised pertains to maintainability of suit for want of notice under section 70 of the Act.
15. In the case of Muzaffar Hussain and others v. Yousuf and 4 others PLD 1975 Kar. 1107 it was held that the suit in respect of an act touching the business of a registered cooperative society, without serving prescribed mandatory notice, is not maintainable against the co-operative society and similar view was expressed by another learned Judge of this Court in the case of Farida. v. Prince Apartment Cooperative Housing Society and 2 others reported in 1984 CLC 2914.
16. I, therefore, hold that the suit is also bad for want of notice under section 70 of the Sindh Cooperative Societies Act, 1925. Consequently the plaint is rejected.