' RANA BHAGWAN DAS, J.---Short question involved in this suit for specific performance of contract and alternatively for award of compensation in the sum of Rs,61,76,000 is whether the plaint appears to be barred from the averments made in the plaint in terms of Order VII, Rule 11, C.P.C.
Read with section 70 of the Cooperative Societies Act, 1925 (hereinafter referred as Act, 1925).
2. M Case of the plaintiff in a nutshell is that Plots Nos. 33/1 to 33/7 in Block 'C', Gulshan-e-Faisal Cooperative Housing Society were allotted by defendant No, 1 Society to defendants Nos.3 to 9 who by an agreement of sale dated 26-11-1997 agreed to sell plots through their attorney Syed Raza Haider Bilgrami i,e, defendant No, 5 to him at the rate of Rs,8,000 per sq. Yds. And acknowledged the receipt of Rs,8,00,000 as advance money. According to the plaint the balance amount was payable after defendants Nos.3 to 9 got the revised lay out plan regularised by defendant No,2 i,e, Director Master Plan and Environmental Department. It is averred that thereafter plaintiff approached defendants Nos. 3 to 9 with a request to perform their part of contract but they avoided to do so. He thereafter approached defendant No, 1 Society and was surprised to know that Administrator of defendant Society as well as private defendants had been acting fraudulently and extracting money by selling the same plots of land to different persons including himself. The plaint mentions the changed numbers of the plots in para.9. It is the case of the plaintiff that Mr. Noor Ahmed Bhurt addressed letter dated 17-1-1998 to defendant No,2 alleging that the allotments of plots fraudulently made by his predecessor Hafiz Ishaque had been cancelled which in fact were made by him. The plaintiff then approached defendant No,5 for specific performance of the contract who in order to demonstrate his bona fides issued two cheques, dated 10th March, 1998 and 26th March, 1998 in the sum of Rs, 5.00,000 each which were bounced by the Bank. According to the plaintiff these cheques were issued by way of compensation for the delay caused by private defendants in the execution of agreement of sale. As defendants Nos. 1 and 3 to 9 failed, avoided and neglected to perform their part of contract (wrongly mentioned in the plaint to perform the agreement of sale) and were trying to create third party interest to the prejudice of the plaintiff, he approached defendant No, 1 through letter, dated 31st March, 1998 but no steps were taken by any of the defendants. Lastly plaintiff averred that he sent a notice under section 70 of the Act. 1925 to the Registrar, Cooperative Societies as well as defendants Nos. 3 to 9 informing the Registrar that he would file a suit for the relief. It may be pertinent to observe that while the notice itself appears to be dated 21-4-1998 postal registration slips placed on record are dated 22-6-1998 whereas slip in token of despatch of notice to defendant Society is dated 25-6-1998. Para. No, 15 relating to the cause of action tends to reflect that such cause of action for filing the suit arose on 26th November, 1997 when the agreement of sale was executed and it continued till the date of filing the suit on 27- 6-1998 and when (sic) the suit was being filed after expiry of the statutory period.
3. Rejection of the plaint was sought by defendant No, 1 Society for the reason that plaint was barred by mandatory and specific provisions of section 70 of Act, 1925. Besides' the plaint did not disclose any cause of action against the said defendant. This prayer was resisted through a counter-affidavit inter alia contending that the statutory notice was duly received in the office of Deputy Registrar, Cooperative Societies on 24-4-1998 whereas the suit had been filed after the expiration of two months next after the notice in writing had been delivered to the Registrar's Office at Karachi. Counter-affidavit further tends to show that the plaintiff had once again repeated the same notice on 22-6-1998 through registered A/D post. He ventured to file photo copies of notice purportedly bearing acknowledgment its receipt by a receipt clerk in the Office of Deputy Registrar, Cooperative Societies, Karachi on .22-4-1998 with the further variation in the nomanclature of the Registrar by overwriting word "Dy" before the expression Registrar at the top of the notice.
4. In order to comprehend the controversy raised in this suit and for the sake of convenience and ready reference provision of section 70 of Act, 1925 may be reproduced as under:-- "70. Notice necessary in suits.--- No suits 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."
5. Perusal of the aforementioned provision of law suggests that basic concept of making notice under section 70 of Act, 1925 compulsory was to afford opportunity to the Cooperative Society itself to make amends. But the same would be necessary only if it touches its business which in terms of section 5 of Act, 1925 could possibly be the promotion of economic interests of its members.
Furthermore, since societies or members thereof are compelled to have their dispute touching, the business of the Societies settled by arbitration under section 54, provision is also made against a non-member recklessly driving a Society or its officer into unnecessary Civil litigation by rendering it necessary to give two months' prior notice. Object of the notice required by law appears to be to provide an opportunity to the Registrar to examine the claims of nonmembers against the Societies and to settle the disputes between the parties before going into litigation. From the averments in the plaint it appears that the plaintiff was fully conscious of this legal position and fully aware of the legal consequences emanating from non-service of statutory notice. As evident from copies of the postal registration slips. The requisite notice was sent to the Society on 25-6- 1998 whereas the suit was brought on 27-6-1998 without waiting for expiration of two months' period which is fatal to the maintainability of the suit. Subsequent effort to adduce a copy of notice with modification in the nomenclature of Deputy Registrar with receipt in his office at Karachi on 22-4-1998 would not cure the defect which is inherent in its nature. In the first place requirement of law is that a suit shall not be filed until the expiration of two months after notice in writing has been delivered to the Registrar, or left at his office stating the cause of action, the name and other particulars of the plaintiff and relief which the plaintiff claims and the plaint shall contain a statement that the needful has been so delivered or left.
6. Upon perusal of the plaint as narrated in para.2 of this judgment it is obvious that instead of Registrar the plaintiff had sent the notice to Deputy Registrar, Ghafoor Chambers, Karachi which does not fulfil the requirement of law. Besides there is no averment in the body of the plaint that such notice was delivered to the Registrar or left in his office. Only averment in the plaint is that plaintiff ultimately sent a notice under section 70 to the Registrar as well as other defendants informing the Registrar that he would file a suit for the relief. The expression "Registrar" has been defined in section 2(f) of the Act, 1925 and means a person appointed to perform the duties of Registrar of Cooperative Societies under this Act. This interpretation clause would, therefore, clearly exclude a Deputy Registrar from the definition of Registrar inasmuch as Deputy Registrar performs functions as assigned and delegated to him by the Government under the law. Even otherwise perusal of the notice addressed to all the defendants tends to show that the plaintiff had called upon Registrar as well as all defendants to perform the agreement of sale and transfer the plots of land after regularisation from K.D.A. Conferring upon the plaintiff a clear title and in the alternative to pay a sum of Rs,61,76,000 being the difference of the price. Obviously by any stretch of reasoning and canon of law defendant Society was not bound by private transaction between the plaintiff and defendants Nos. 3 to 9 relating to sale in respect of certain plots purportedly allotted by the Society. In any event Society could not be compelled to perform the execution of contract, wrongly claimed by the plaintiff as agreement of sale, and transfer of the plots after regularisation by K.D.A.
In this view of the situation and the suit having been filed only after two days of the despatch of notice by registered post as against defendant No,1 is clearly barred by the provision contained in section 70 of Act, 1925.
7. I have already expressed this view in Dar-ul-Aman Cooperative Housing Society Limited v.
Secretary, Government of Pakistan 1995 M LD 1553. To the same effect are the decisions reported as Muhammad Ali Memorial Cooperative Housing Society Limited v. Sibtey Hasan Kazmi PLD 1975 Karachi 428 as well as J.J. Miranda v. Fishermen's Cooperative Society Ltd. PLD 1978 Kar. 990,
8. Learned counsel for defendant No,2 also contended that in fact no cause of action had been pleaded against the K.D.A. As no statutory notice in terms of Article 131 of the K.D.A. Order No,5 of 1957 had been served, therefore, the suit as against this defendant was also barred. He further submitted that in fact plots claimed by the plaintiff had not been carved out by K.D.A. And no revised plan in respect of creation of such plots had been submitted to K.D.A. For approval. K.D,A.
Has, thus, been unnecessarily dragged in the present suit which did not seek the enforcement of any right to property against the K.D.A. This contention could not be controverted by learned counsel for the plaintiff who persistently retied upon copy of notice bearing acknowledgment 'receipt of the office of Deputy Registrar, cooperative Societies, Karachi filed alongwith counter- affidavit to the C.M.A. Filed by defendant No,1 . In fact plaintiff in the absence of requisite averments in the plaint cannot be permitted to improve upon his case at a subsequent stage nor can rely upon a disputed document which even otherwise does not serve the requirement of mandatory provisions of law.
9. For the aforesaid facts and reasons at the conclusion of the arguments by short order I dismissed the suit as against defendants Nos. 1 and 2 for a plaint cannot be appropriately rejected in piecemeal. Aforesaid are the detailed reasons for the short order.