1. ' The present suit has been filed by the plaintiff, who is member of M/s. Allahabad Cooperative Housing Society Ltd. Against the said Society (defendant No,1), Karachi Development Authority (defendant No,2) and Mst. Rehana Habib (defendant No,3), who is also a member of defendant No,1.
2. ' The facts narrated in the plaint briefly are that defendant No,1 owned 14,520 square yards of land in Survey No,521, situated in Deh Gujro, Tapo Songal, falling within Block No,13 of K.D.A. Scheme No,24, Gulshan-e-Iqbal, Karachi. Defendant No,1, Society got the lay out plan of the said land approved for town planning purposes. The plaintiff became member of defendant No,1 Society and was allotted Plot No, A-1/C, measuring 240 square yards under Allotment Order dated 31-7-1978. The allotment contained the endorsement that the said allotment order was subject to the approval of lay out plan by K.DA. The plaintiff claims to have made certain payments in respect of the aforesaid allotment. According to the plaintiff, defendant No,1 society got the lay out plan approved "twice".
3. The plaintiff was issued another allotment order dated 10-11-1983 in respect of the same plot, showing the area of the plot to be 200 square yards. It is then stated that the Town Planning Department of defendant No,2 on 2-6-1982, had delivered to the plaintiff the site plan and also delivered possession of the plot to the plaintiff.
4. ' The Society demanded a sum of Rs,42,780 from the plaintiff on account of outer development charges, corner charges, West open charges, after allowing adjustment of Rs,720. The said amount was paid by the plaintiff. On 29-11-1983, the Society executed a registered 99 years Lease in favour of the plaintiff. On 2-12-1985, he applied to the Society for the plot. In the end of November, 1985, the plaintiff visited the plot allotted to him and found that defendant No,3, the owner of the adjacent plot had encroached about 30 or 35 square yards of the plaintiffs plot by raising a boundary wall.
5. The plaintiff sent a criminal complaint dated 8-2-1986 to the Magistrate First Class, Complaint Cell, Karachi (East) and copy thereof was despatched to Deputy Registrar of Cooperative Societies Karachi with the endorsement that it be treated as a legal notice. The plaintiff thereafter has filed this suit claiming following reliefs:-- "(1) Declare that the size of the plot allotted to the plaintiffs was reduced deceitfully and dishonestly from 240 square yards to 200 square yards by unlawful manipulation of lay out plan worked out by defendant Nos.1 and 2;
(2) Declare that defendant No,1 Society was composed of family members of the owner of Survey No,521, who indulge in unfair exploitation of "private vested interest in flagitious activities beyond the scope of Cooperative Law." The enrolment of members of defendant No,1 Society be declared as shame arrangement;
(3) Grant of compensation of Rs,50,000 against defendant No,1 and equal sum against defendant No,3 with interest;
(4) Order defendant No,1 to refund the amount of Rs,42,780 to the plaintiff with interest from 10-11- 1983;
(5) For mandatory and permanent injunction against defendant No,3 for removal of encroachment, demolition of wall and confine herself to the area allotted to her."
2. Defendant No,3 has filed the above application under Order VII, Rule 11, C.P.C. For rejection of the plaint on the following grounds:--
(i) The suit is bad for want of notice under section 70 of the Cooperative Societies Act, 1925;
(ii) The suit is also barred under section 70-A of the aforesaid Act, dispute being between the plaintiff, a member of the Society and the Society in respect of area of land allotted, is to be dealt with under section 54 of the said Act; and
(iii) That the suit is . Barred under Article 131 of K.D.A. Order (Presidential Order V of 1957), for want of notice.
3. I have heard the learned counsel Mr. Malik Muhammad Saeed for defendant No,3, Mr. S.H.
6. Kizilbash for defendant No,2, Mr. Arif Bilal Sherwani for defendant No,1 and Mr. Faizuddin for the plaintiff. The learned counsel for defendants Nos.1 and 3, in respect of the first submission, have relied upon section 70 of the Sindh Cooperative Societies Act, 1925 (Act VII of 1925), which reads 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 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."
7. ' The learned counsel for the plaintiff has, however, relied on the complaint dated 8-2-1986, sent to the Magistrate First Class, copy whereof was endorsed to the Deputy Registrar of Cooperative Societies, Karachi. The said endorsement reads as under:-- "It is prayed that either an administrator be appointed or the society may be wound up by cancellation of its registration.
8. ' This may please be treated as a notice to the Society as undersigned is inclined to institute a suit in a regular Court for the redress of his legitimate grievances."
9. ' According to the learned counsel for the plaintiff, the above endorsement satisfies the requirements of above said section 70 of the Act.
10. ' The bare reading of the aforesaid section shows that the notice should state, (i) the cause of action, (ii), the name, description and place of residence of the plaintiff and (iii) the relief which he claims.
11. ' The question, therefore, needs to be determined is, whether the above notice fulfils the requirements of the aforesaid section? In so far as cause of action is concerned, if the notice is properly construed, it can be said that it discloses cause of action inasmuch as it contains an allegation with regard to entitlement of the plaintiff and the allegation that the Secretary and Treasurer of the Society had connived with each other and helped defendant No,3 in erecting a wall, to usurp a portion of the plaintiff's plot. The notice also discloses name, though not parentage of the plaintiff and so also his address is detailed in the notice. Therefore, second requirement is also fulfilled. However, the notice does not describe the reliefs claimed against defendants Nos.1 and 3. All that is stated in the notice is that the suit would be filed for redress of legitimate grievances, without describing them.
12. The language, in which section 70 is worded, abundantly demonstrates that the notice is mandatory and that the notice should detail all the three factors. The notice being mandatory, as held in Faqir Muhammad Dad Muhammad v. Mercantile Cooperative Bank Ltd (AIR 1940 Sindh 143), Muzaffar Hussain and another v. Yousuf and 4 others (PLD 1976 Karachi 1107), Farida v. Prince Apartment Cooperative Housing Society and 2 others (1984 CLC 2914) and Pakistan Railways v.
13. Karachi Development Authority and 5 others (PLD 1992 Karachi 71), wherein it has been laid down that the prescribed notice under the said section being mandatory, the suit in its absence would not be maintainable against a Registered Cooperative Society. The notice relied upon by the learned Advocates, cannot be treated in conformity of law, unless all the three prerequisites are mentioned therein. As the notice relied' upon by the learned Advocate for the plaintiff does not disclose the reliefs claimed in the suit, it cannot be treated as sufficient compliance of the said section and is to be ignored. The suit in absence of the notice is not maintainable against defendant No,1, as held in the aforesaid authorities, relied upon by the learned Advocates for defendants Nos.1 and 3.
4. The second submission is based on the bar of jurisdiction contained in section 70-A of the Sindh Cooperative Societies' Act, 1925. The said section, in so far as relevant, provides that notwithstanding anything provided in any other law for the time being in force, but save ,as expressly provided in this Act, no Court or other authority whatsoever shall have jurisdiction to entertain, or to adjudicate upon, any matter which the Provincial Government the Registrar or his nominee, any arbitrator or liquidator, a Society or any other person as empowered under this Act or the rules or bye-laws framed thereunder is empowered to dispose of or to determine.
14. ' Section 54 of the said Act enumerates the disputes which shall be referred to the Registrar for decision by himself or his nominee or if either of the parties so desire, 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. The said disputes are as under:-- "(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.
15. 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 ..."
16. The bare reading of the plaint and particularly the prayer clause discloses that in so far as the first two and the fourth reliefs sought in the plaint are concerned, they disclose dispute between the plaintiff on the one, and the society on the other hand. The third relief is for recovery of compensation from defendant No,1 the society and defendant No,3 a member of the Society. The last relief discloses dispute between two members of the Society that is the plaintiff and defendant No,3. The above disputes are, therefore, referable to the Registrar for decision by himself or by his nominee or arbitration. There cannot be two opinions that the above disputes touch the business of the society. It being so. The bar contained in section 70-A is attracted and this Court has no jurisdiction to entertain or to adjudicate upon the said disputes, no saving having been provided expressly under the said Act, with reference to the said disputes.
5. Sub-Article (1) of Article 131 of the Karachi Development Authority Order (Presidential Order 5 of 1957) provides 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 against 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 the Order or the rules or regulations made thereunder until the expiration of one month from the delivery of a written notice at the Authority's office or the place of abode of such member, officer, servant or person , stating the cause of action, the name and place of the intending plaintiff, and the nature of the relief sought.
17. Sub-Article (2) thereof specifically provides that in every such suit the complaint shall contain a statement that such notice has been so delivered.
18. It is neither stated in the plaint of the suit nor in fact any notice as required under the above Article has been delivered to defendant No,2. The reading of the aforesaid Article shows that service or delivery of notice on defendant No,2 is mandatory before the institution of the suit and in case the suit is filed without service or delivery of such notice as required under the said Article, it shall be barred under the said Article.
19. ' It is, therefore, held that the suit is barred by law for want of notices under section 70 of the Sindh Cooperative Societies' Act, 1925 and Article 131 of Karachi Development Authority Order, 1957 and so also is barred under section 70-A of the above Act.
20. ' The application under Order VII, Rule 11, C.P.C. Is accordingly allowed and the plaint is hereby rejected.
21. Plaint rejected.