' MALIK MUHAMMAD QAYYUM, J.---Feeling aggrieved of the judgment and decree dated 27-11-1995 passed by Ch. Badar-ud-Din, Civil Judge, Lahore, the appellant/defendant No,2 has preferred this Regular First Appeal which arises out of a suit for permanent injunction brought by M/s. Builders and Developers (Pvt.) Ltd., respondent No,1 herein, against Lahore Cantonment Cooperative Housing Society Ltd., appellant herein and Lahore Cantonment Board, Lahore, which has been impleaded as respondent No,2.
2. According to the contents of the plaint, respondent No,1/plaintiff was engaged in the business of developing sites for housing purposes and had purchased land measuring 77 Kanals, 1 Marla through a registered sale-deed dated 25-10-1989 for a consideration of Rs,1,34,83,750. This land is adjacent to the land belonging to the appellant-society. It is claimed that a housing scheme formed by plaintiff/respondent No,1 was duly sanctioned by the Cantonment Board. The grievance of the respondent No,1 is that the appellant has blocked the road leading to the scheme of the plaintiff illegally and unlawfully by constructing a boundary wall. According to respondent No,1, it had the right to pass over the road which was a public street and further that on account of easement of necessity, respondent No,1/plaintiff has right of access through the road which has been illegally blocked.
3. In the written statement filed by the appellant, various preliminary objections inter alia that no notice under section 273 of the Cantonments Act, 1924 had been served; that the plaint does not disclose any cause of action were raised. It was also submitted that the suit was barred by section 70 of the Cooperative Societies Act, 1925 and by section 91 of the Code of Civil Procedure as the permission of the Advocate-General, Punjab had not been obtained. It was asserted that the road in question is the private property of appellant society and belongs to it and respondent No,1 has no title or right of easement over it.
4. The parties went to the trial on following issues which were settled by the trial Court on 17-6-1991:
(1) Whether notice under section 273 of the Cantonments Act, 1924 has not been served by the plaintiff before institution of the suit, if so, its effect?
(2) Whether suit is liable to be rejected under Order VII, Rule 11, C.P.C.?
(3) Whether no notice as required under section 70 of the Cooperative Societies Act, 1925 has been served by the plaintiff upon defendant No,2 before the institution of the suit, if so, its effect?
(4) Whether the plaintiff has no cause of action to file this suit in view of preliminary objection No,2 of the written statement filed by defendant No,2?
(5) Whether suit of the plaintiff is .Not competent as plaintiff has not obtained any permission as required under section 91 of the C.P.C. From the Advocate-General, Punjab prior to the filing of this suit?
(6) Whether the plaintiff cannot assert his claim to easement right on the disputed road as right of easement as claimed by the plaintiff is barred under section 26 of the Limitation Act?
(7) Whether the plaintiff has not come in this Court with hands hence not entitled to get any discretionary relief?
(8) Whether the plaintiff has right to use road from point "A" to point "X" as mentioned in the plaint, if so, whether the plaintiff is entitled to get a mandatory injunction to demolish boundary wall constructed from point "A" to point "Z"?
5. The evidence of the plaintiff/respondent No,1 comprises of statement of Mushtaq Ahmad son of Maqbool Hussain, P.W.1, Taj Hussain son of Barkat Ali, P.W.2, Safique-ur-Rehman son of Ghulam Rasool, P.W.3, Muhammad Afzal son of Noor Din, P.W.4 and Sajid Saeed, General Manager of respondent No,1--Company, P.W.S.
6. In rebuttal, the appellant examined Abu Talah Khan Barki, its law officer as its solitary witness.
Respondent No,2, Lahore Cantonment Board produced its Assistant Land Superintendent as D.W.1.
After the evidence of the defendants was over, plaintiff/respondent No,1 examined Khurshid Ali son of Hafiz Muhammad Sadiq, Record Keeper, Lahore Cantonment Board as P.W.6 and Muhammad Rafi Khan son of Muhammad Shafi Khan, Assistant (Technical) in the Office of Registrar Cooperative Society as P.W.7.
7. On 27-11-1995, the learned trial Court found the preliminary objections raised by the appellant to be without force. It was held that service of notice under section 70 of the Cooperative Societies Act, 1925 or under section 273 of the Cantonments Board Act, 1924 was not necessary as respondent No, 1/plaintiff was not a member of the society and the suit was one for injunction. It was further observed that the permission for the Advocate-General, Punjab was not required and the suit was not hit by section 91 of the Code of Civil Procedure. On merits, the learned trial Court came to the conclusion that respondent No,1/plaintiff had a right of way and access through the road which had illegally been blocked. On these findings, the suit of the plaintiff/respondent. No,1 was decreed on 27-11-1995.
8. The first contention raised by the learned counsel for the appellant in support of this appeal is that the suit was barred by section 70 of the Cooperative Societies Act, 1925 as no notice as required by the said provision had been served upon the Registrar, Cooperative Societies 60 days before institution of the suit. It is to be noted in this behalf that admittedly plaintiff/respondent No,1 had served a notice (Exh.P-711) upon the Registrar, Cooperative Societies on 17-2-1990 whereas the present suit was filed on 26-2-1990 without waiting for the expiry of period of two months from the date of the notice. The learned counsel for the appellant contended that the law mandatorily provides that the suit can only be filed after the expiry of two months from the service of the notice and the suit which was filed much earlier was clearly barred.
9. On its plain reading, section 70 of the Cooperative Societies Act, 1925 comes into play only when there is a dispute between two members or between a member and the society or between an ex- member and the sitting member, as the case may be. It has nothing to do with the dispute arising between third party and the society. -Similarly, another condition for applicability of section 70 of the Cooperative Societies Act, 1925 is that the dispute must relate to the business of the society. In the present case, both these elements are lacking inasmuch as respondent No,1 is not a member of appellant society and the dispute is not between two members or between a member and the society or between ex-member and society or member nor does it touch the business of the society. On the other hand, what is being claimed by respondent No,1 in the suit is that the appellant has illegally and unlawfully deprived it of its right of way and use of the public road. This dispute cannot, in any manner, be said to be relatable to the business of the society.
10. In Nazir Ali v. Noorabad Cooperative Housing Society Ltd. And others PLD 1987 Kar. 676, it was held that the suit, not relating to any act touching business of society nor plaintiff showing any dispute the nature of which could attract bar of jurisdiction, without notice, was held to be maintainable.
11. In Muhammad Siddique and others v. Shahab Din and others 1991 CLC Note 247 at p.192, this Court took the view that notice prior to filing of the suit against a Cooperative Society by a non- member was not necessary if the suit was being filed by a non-member. In Muhammad Azim v.
Pakistan Employees Cooperative Housing Society Ltd., Karachi and others PLD 1985 Kar. 481, it was held by the Sindh High Court that a person who is not a member of the society could not be subjected to domestic jurisdiction of the society. It may be mentioned that in Muhammad Siddique's case (supra), the earlier view of Sindh High Court in Muhammad Azim's case (supra) and Muhammad Ali Memorial Cooperative Housing Society Ltd., Karachi v. Syed Sibtey Hassan Kazmi PLD 1975 Kar. 428 was not accepted. The learned counsel for the appellant has relied upon Messrs Sunshine Biscuits Ltd. v. Muhammad Hassan Lodhi and others PLD 1982 Lah. 189, which, however, is of no help to him inasmuch as the dispute raised in that case, according to the admission of the parties, related to the business of the society. Be that as it may, this view cannot be preferred to the later judgment of this case in Muhammad Siddique's case (supra) 1991 CLC Note 274 at p.192. Thus, there is no merit in the plea raised by the learned counsel for the appellant.
12. It was next urged by the learned counsel for the appellant that the suit was in any case barred by section 273 of the Cantonments Act, 1924 as no notice under the said provision had been served upon the society.
13. Section 273 of the Cantonments Act, 1924 reads as under:-- "273. (1) Notice to be given of suits.--No suit shall be instituted against any (Board) or against any member of board or against any officer or servant of a (board) in respect of any act done, or purporting to have been done, in pursuance of this Act or of any rule or bye-law made thereunder, until the expiration of two months after notice in writing has been left at the office of the (Board) and in the case of such member, officer or servant, unless notice in writing has also been delivered to him or left at his office or place of abode, and unless such notice states explicitly the cause of action the nature of the relief sought, the amount of compensation claimed, unless the plaint contains a statement that such notice has been so delivered or left.
(2) If the (Board), member, officer or servant has before the suit is instituted, tendered sufficient amends to the plaintiff, the plaintiff shall not recover any sum in excess of the amount so tendered, and shall also pay all costs incurred by the defendant after such tender.
(3) No suit such as is described in subsection (1) shall, unless it is an action for the recovery of immovable property or for a declaration of title thereto, be instituted after the expiry of six months from the date on which the cause of action arises.
(4) Nothing in subsection (1) shall be deemed to apply to a suit in which the only relief claimed is an injunction of which the object would be defeated by the giving of the notice or the postponement ' of the institution of the suit or proceeding."
13. As is evident from subsection (4) of section 273, it .Does not apply to suits for injunction.
Although originally in the plaint respondent No,1/plaintiff had prayed for declaration in addition to the relief of injunction but on 23-11-1995 a statement was made by the learned counsel for respondent No,1 giving up the relief for declaration. The suit therefore continued as one for injunction. The Supreme Court of Pakistan had the occasion to examine somewhat similar dispute in Muhammad Ilyas Hussain v. Cantonment Board, Rawalpindi PLD 1976 SC 785 and held that the plaintiff could drop and give up relief for declaration at any time during the course of proceedings and could confine his suit to the relief of injunction alone. To such a suit section 273 of the Cantonments Act, 1924 could not be applicable. The same view was taken in Haji Abdus Sattar Kotriwala v. The Cantonment Board, Hyderabad and others 1988 CLC 1182.
14. It may be stated that the learned counsel for the appellant has drawn the attention of this Court to the case of Lahore Cantonment Cooperative Housing Society Limited v. Khanzada Inamullah Khan 1996 SCMR 1195, but in that case the Supreme Court of Pakistan has only allowed leave to appeal against the judgment of the High Court to consider the questions arising therein but there is no finding by the august Court on any of the issues.
15. As would appear from a reading of subsection (1) of section 273 of the Cantonments Act, 1924, notice only is required where the suit is in respect of any act done or purporting to have been done by the Board in pursuance of the Act or any rule made thereunder. In the present case, the dispute is with respect to the closure of the road by the appellant and not by the Cantonment Board, the action of which was not challenged in the suit. In this view of the matter also no notice under section 273 of the Cantonments Act, 1924 was necessary.
16. The learned counsel for the appellant then urged that finding of the trial Court that respondent No,1 had right of way over the road in question is based on misreading of the evidence on the record and failure to consider the material evidence. He has made a particular reference to the cross-examination of P. W.1. He maintained that the road in question was a private property of the appellant as it had never been acquired by the Board nor was it being maintained by it. He referred to sections 2 (37), 108, 110 and 116 of the Cantonments Act, 1924.
17. It is common ground between the parties that the road in question is situate in the Lahore Cantonment Board. It is also not disputed by the appellant that the disputed place is a metalled road which is being used by the public-at- large. According to section 2(xxxvii) of the Cantonments Act, 1924 street includes any way, road, lane, square, Court, alley or passage in .a Cantonment, whether a thoroughfare or not and whether built upon or, not, over which the public have a right- of-way and also the road way or foot-way over any bridge or causeway. Section 108 of the Cantonments Board Act, 1924 while defining the property of the Board specifically provides in clause (g) that all streets and the pavements, stones and other materials shall be the property of the Board. In E view of these two provisions, it cannot be said that the road in question is the private property of the appellant or belongs to it. On the other hand, it is evident that in law the road belongs to the Cantonment Board and not the appellant. According to statement of Muhammad Ejaz, Assistant Land Superintendent Lahore Cantonment Board, D.W.1, the disputed place is situate within the limits of the Board and all roads and footpaths are maintained by the Board. According to the Master Plan of the Housing Scheme of the appellant itself, copy of which has been brought on record, the land owned by the plaintiff is shown to be adjacent to W Block of the said Housing Scheme. It may be true that at one time the land underneath the road was owned by the appellant but once the road was constructed and was being used by the public in general, the ownership stood vested in the Lahore Cantonment Board by operation of law, the appellant IF cannot under any dispensation claim to be the owner of the public road.
18. The right of a road-side owner to have access to the road is well recognized in law and this right cannot be taken away by any one. The case which may be cited in this behalf in M.C., Leiah v. Sh.
Zafar Iqbal 1986 CLC 2306 wherein at page 2309 it was held as follows:-- "As for Issue No,6, I am not inclined to agree with the contention of the learned counsel that since no specific law exists recognizing the right of frontage, therefore, the same cannot be accepted as a legal right and as such the constructions are not unlawful inasmuch as it is now, well settled that the right of access from private property to public road is a recognized legal right irrespective of whether the owner has proved special damages or not. It is also not less well-recognized that the owner of particular property can be granted mandatory injunction for removal of permanent structure which interrupts his right of access to the Highway. Even otherwise, the construction of the shops by the defendants therein was unlawful because admittedly the constructions have been raised without getting any plan sanctioned by the Municipal Committee. For all these reasons, there appears to be no force in the criticism of the learned counsel on the findings of the learned Courts below on Issue No,6."
' Also see Lt.-Col. Nawab Sir Muhammad Akbar Khan v. Provincial Government, N.-W.F.P. And others AIR 1942 Pesh. 1 and District Board of Mabhum v. Bengal Nagpur Railway Co. And another AIR 1945 Patna 200. It may also be mentioned that the road was closed without obtaining permission from the Cantonment Board as required by section 192 of the Cantonments Board Act, 1924. As such, the finding of the trial Court on this issue does not suffer from any illegality or infirmity and is therefore affirmed.
19. It was lastly maintained by the learned counsel for the appellant that the suit was barred by section 91 of the -Code of Civil Procedure as in any case the blockage of the public road amounts to public nuisance and no suit could be filed without .Obtaining the permission of the Advocate- General Punjab. This contention of the learned counsel is again misconceived. It is in evidence and as a matter of fact is not denied that the property belonging to respondent No,1 is adjacent to, and opens upon, the road. In these circumstances, cause of action accrued to respondent No,1 independent of others and it can seek the removal of the blockage. In Abdullah and another v.
Ahmad Khan and 10 others 1988 CLC 1301 Khalil-ur-Rehman Khan, J. (as his Lordship then was) on exhaustive survey of the case-law on the subject held at page 1305 that: "7. The perusal of the cases noted above would show that the Courts in the Sub-Continent have consistently held that a person in the immediate neighbourhood entitled to use a local public thoroughfare has a special cause of action irrespective of the fact that he has proved special damage or not. The principle is that a person of an immediate community or section of the public who is deprived of the amenity provided for that particular section may be deemed to have suffered loss without proof of such loss. The inhabitants of the vicinity of the thoroughfare or residents of the village are entitled to seek removal of the obstruction without proving special damages."
(See also Pakistan National Oils Ltd. And others v. Sattar Muhammad 1980 SCMR 686).
For all these reasons, this appeal fails and is dismissed leaving the parties to bear their own costs.