' KHALIL-UR-REHMAN KHAN, J.---Petitioner, Ahmadali J. Merchant, seeks leave to appeal against the judgment/order of learned Division Bench of High Court of Sindh, Karachi, dated 18-3-1998 whereby order, dated 30-5-1997 passed by a learned Single Judge of the same High Court sitting on the original side, allowing application under Order VII, Rule, 11, C.P.C. Filed by the petitioner and rejecting the plaint, accepted the plea that the suit was not maintainable on account of failure of the respondent No.1 to give requisite notice under section 70 of the Cooperative Societies Act, 1925 to respondent No.2, the Ismailia Garden Cooperative Housing Society Limited, was set aside, and appeal filed by respondent No.1 Husseinali J. Merchant was accepted.
2. The factual background of the controversy as contained in the plaint is that in the year 1968, Husseinali J. Merchant, respondent No.1/plaintiff purchased from one Shamsuddin Allahrakhia his five shares of Rs.250 in the respondent No.2/Society alongwith Plot No.236, situated in the Society and so these were transferred in his name. A house was thereafter constructed on the said plot at the request of the plaintiff/respondent No.1 and the amount spent on the construction was paid for fully by the plaintiff/respondent No.1 exclusively. In 1972, the plaintiff/respondent No.1 claims to have transferred his aforesaid five shares in the name of present petitioner/defendant No.2 benami without any consideration. The house, however, continued to be the property of the plaintiff/respondent No. 1 . It is further asserted that the file containing the original documents of the said property was handed over by the plaintiff/respondent No.1 to his brother-in-law, from whom Mr. Ahmedali J. Merchant, the present petitioner unauthorizedly took away the file and refused to return the same to him, whereupon respondent No. 1/plaintiff lodged a complaint with the CIA Authorities, Karachi against the defendant No.2/present petitioner, Ahmedali J. Merchant:
3. It is the case of the plaintiff/respondent No.1 that the present petitioner, taking advantage of the possession of the original documents of the said property started making false claims to the said property in collusion with two officers of the Society and the plaintiff/respondent sensing foulplay in the matter, requested the respondent No.2/Society for permission to inspect the relevant file, but the request was not allowed. However, in January, 1993, the Chairman of respondent No.2/Society, for the first time informed the respondent No. 1/plaintiff that the present petitioner is the owner of the said property. It is asserted that by its letter, dated 1-9-1993, the plaintiff/respondent No.1 informed the Society/respondent No.2 that he has already cancelled/revoked the provisional transfer of the said five shares to the present petitioner, and therefore, requested the Society to give effect to such revocation and issue duplicate share certificates in the name of respondent No.1/plaintiff, but the latter did not comply. The reliefs claimed in the suit read as under:-- "(a) It may be declared that the plaintiff is the owner/allottee of the said Plot No.236 and the owners of the said bungalow/house on the said Plot at 236, Amynabad. The Ismailia Garden Cooperative Housing Society Ltd., Prince Amyn Mohamed Road, off Martin Road, Karachi-5 and that the defendant No.2 has no right whatsoever either to the said plot or to the said bungalow/house.
(b) It may be declared that the five shares of Rs.250 of the plaintiff bearing Nos.945 to 949 were transferred to the name of defendant No.2 for the same and as benami and the said transfer was only provisional. The said provisional transfer of the said five shares having been cancelled/revoked by the plaintiff by his letter, dated September 1, 1993, the said shares have reverted back to the plaintiff and the plaintiff is the owner of the said five shares bearing Nos.945 to 949.
(c) For costs of the suit.
(d) Such order and further reliefs may be granted to the plaintiff as the nature and the circumstances of the case may require."
4. The petitioner/defendant moved an application under Order VII, rule 11, C.P.C. For rejection of the plaint contending that the suit is not maintainable in view of the provisions of section 70-A of the Cooperative Societies Act, 1925 which bars the suit, and that the suit is also hit by provisions contained in section 42 of the Specific Relief Act and the Limitation Act. It appears from the order of the learned Single Judge that main emphasis was on the provisions contained in section 70 of the Cooperative Societies Act, 1925 which places an embargo against plaintiff filing a suit 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. The section further provides that the plaint shall contain a statement that such notice has been so delivered or left.
5. Learned Single Judge seized of the matter rejected the plaint vide order, dated 30-5-1997 taking the view that the relief claimed by the plaintiff directly touches the business of the Society. It was further observed by the learned Single Judge that "as regards the bar of jurisdiction contemplated by section 70-A of the Act, 1925, since the learned counsel for the defendant No.2 has not pressed into service this argument which may require determination of controversial facts I need not consider and discuss such contention rightly not urged at the hearing".
6. The plaintiff/respondent No.1 challenged the aforesaid order/judgment by filing an appeal which was heard by a Division Bench of High Court of Sindh at Karachi and the same was accepted and the order/judgment of learned Single Judge was set aside, and the plaint was directed to be restored.
7. Ahmedali J. Merchant, defendant has filed the present petition for leave to appeal against the judgment of the Division Bench restoring the plaint and rejecting the application under Order VII, Rule 11, C.P.C.
8. Learned counsel for the petitioner argued that the learned Judges of the Appellate Bench have erred in law in holding that the controversy raised in the suit cannot be considered to be touching the business of the respondent/Society and as such they have wrongly set aside the judgment of the learned Single Judge rejecting the plaint under Order VII, rule 11, C.P.C. It was next contended that the suit was hit by section 54 and section 70-A of the Cooperative Societies Act, 1925 and on that score alone the impugned order passed in appeal is not sustainable. Learned counsel referred to the averments contained in paragraphs 10 and 12 of the plaint wherein the letters addressed to the defendant/Society have been referred to alongwith action/non-action of the officers of the Society and on that premises it is also urged that the subject-matter of the suit concerns the business of the Society and the learned Single Judge of the High Court was right in coming to the conclusion that the plaint relates to the business of the Society and it cannot be, taken into consideration in isolation from the affairs of the Society.
' The Society, in its written statement refuted the assertions contained in the plaint and took the position that it has been incorrectly asserted that the shares were transferred provisionally as not only the shares but also the plot was transferred in the name of the petitioner/defendant and the petitioner/defendant who stands recorded as owners of the plot as well as the shares since 1972.
9. Learned Judges of the High Court of Sindh who were seized of the appeal gave the following reasoning for coming to the conclusion that section 70 of the Cooperative Societies Act, 1925 is not applicable:- "Basically the dispute involved in the suit is between the appellant and the respondent No.2 and pertains to the determination of their respective title, in the said property and is, therefore, quite independent of the Society's business. Transfer of the shares and the property in the records of the Society are merely incidental to the acts of the appellant and the respondent No.1, the Society itself having no particular interest in such transfer. In these circumstances, we are of the view that the provision of section 70 of the said Act would not be attracted in the case. But even if the said sections were to apply, then too, at best, the plaint could be rejected to the extent of the respondent No.1 Society alone and not in so far as the respondent No.2 was concerned against whom the suit could continue."
10. The contention of the petitioner's counsel that the suit was hit by sections 54 and 70-A of the Cooperative Societies Act, 1925 appear not to have been pressed before the learned Single Judge and the learned Division Bench of High Court in appeal as is apparent from the two judgments. As such the petitioner cannot be allowed to urge these contentions before us as the said pleas were consciously abandoned.
11. No doubt, the question of title in the plot and shares was raised in the suit but it is not denied that the transfer of the shares and the plot by the Society normally forms part of its business. In the instant case the plaintiff/respondent No.1 had himself transferred the shares in the name of the petitioner/defendant and acting on such a direction the Society effected the transfer. The dispute being raised is that the transfer of shares was provisionally made and the plot was never transferred whereas the plea taken by the Society/respondent No.2 is that the shares as well as the plot both were transferred in the name of the petitioner. It is in this context that question requires to be examined. Learned counsel have not been able to cite any judgment dealing with the situation in hand.
12. Leave to appeal is, therefore, granted to examine whether in the facts and circumstances noted above, the dispute raised can be said to be not touching the business of the Society.