1. ' Civil Miscellaneous Application No,9220 of 1999 is moved by defendant No,1 under Order VII, Rule 11, C.P.C. Seeking rejection of the plaint in this suit on the ground of non-compliance of service of notice under section 70 of the Cooperative Societies Act, 1925.
2. ' Brief facts of the case are that plaintiff instituted the present suit of 21-10-1999, initially against 13 defendants, by a subsequent amendment in the plaint presented on 8-3-2001, plaintiff dropped defendants Nos.8, 9, 10, 11 and 13 and at present the number of defendants is reduced to eight.
3. ' Plaintiffs purchased the land sold by Messrs KESC Employees Cooperative' Housing Society Ltd.
4. Defendant No,7 to the suit. This was the surplus land beyond actual requirement of defendant No,7 comprising of "I, Survey No, 26, Deli bazar z' Tapp Gadap, Taluka and District Malir, Karachi admeasuring 13 acres and 1 Guntas (hereinafter referred to as the said land). Sale agreement was executed on 4-7-1978 a sum of Rs,4,00,000r paid,i1rj plaintiff to defendant No =7 teWardAhe sale consideration %' through pay ozders: Plaintiffs claim that at the time of agreement )34efendnt No,7 was short of funds. TheLzunotnn was needed for payment of cost of the entire land purchased by defendant No,7 for development, Defendant No,7 had to complete the sale formalities after, making payment of the sale consideration. The said land sold to plaintiff is a portion of the land purchased by them. After receiving payment against the t said land defeidint 1415.7' made payment of -1 the balance artieurn of sale consideration to the original owners and executed sale-deed of the entire land on 18-1-1979 followed by mutation to the extent of 012-11,3/5 share in the 'record of rights 'to the Village Form 1 NoNII. Thereafter, on 11-5-1980 Vie said-land was transferred by defendant No,7 under a register of lease deed registered in the office of the Sub-Registrar, T-Division, Karachi, defendant No,8 to this suit. The mutation in the Revenue Record was to follow ,uhsequently. Plaintiff claims to have launched his own Housing Scheme under the name of Saharanpur Township and made allotments of plots carved out of the said land to numerous allottees from time to time against consideration. However, before the plaintiff could develop the land. The said land alongwith the adjacent lands owned by defendant No,7 were acquired by the Government for the purpose of the Master Plan of the Karachi Development Authority and alternate land was provided against the acquired land. Plaintiffs land was adjusted in Sector No,35-A of KDA Scheme No,33 and was also approved by KDA vide letter, dated 3-5-1983. Photo copies whereof are annexed to the plaint. The plaintiff was given an area of 10 acres and 13 Guntas in Sector 35-A of KDA Scheme No,33 against the original 13 acres and 10 Guntas. Plaintiff claims that in spite of reduction in area, defendant No,5, who is an office-bearer of defendant No,7 raised an arbitrary demand of Rs,48,00,910 and although the plaintiff was not liable, yet he made payment of a sum of Rs,50,000 vide Pay Order, dated 20- 10-1997. To pursue the adjustment of the said land. Thereafter, defendant No, 7 passed a resolution on 22-2-1997 empowering defendant Nos.5 and 6 to execute fresh Power of Attorney in favour of the plaintiff. In pursuance to the resolution a General Power of Attorney was executed and registered on in favour of the plaintiff by the defendant No,7 to ,defendant Nos. 5 and 6 on 29-4- 1997 and plaintiff received physical possession of his share of land in Sector 35-A of Scheme No,33.
5. Plaintiff claims that defendants Nos.1 to 4 are part of an organized gang of land grabbers with administrative influence. These defendants prepare forged documents of properties belonging to others, occupy the same and then justify their occupation before various forums on the basis of their fraudulent and coercive actions. In pursuance of their evil design, they at the earliest opportunity dispose of the land unlawfully grabbed by them. Plaintiff further claims that defendant No,3 provided official cover and protection to defendant Nos.1 and 2 to pursue their illegal objective and a case pertaining to the illegal occupation of 53 plots occupied by defendants Nos.1 to 4 is already challenged in a separate Constitutional petition pending before this Court. Plaintiff claims to be the exclusive owner of the Housing Scheme under the name and style of Saharanpur Township Phase-II. He is threatened by the illegal acts of defendants Nos.1 to 4 who, in collusion with defendants Nos.5, 6 and 7 are attempting to deprive the plaintiff of the said land. Under these circumstances the plaintiff instituted the above suit with the following prayers:
(a) That declaration may be granted to the effect that the sale of Land Survey No,26, Deh Dozan, Tappo Gadap, Taluka and District Malir, Karachi by the defendant No,7 to the plaintiff in the name of Messrs Saharanpur Township Phase II as its sole proprietary by Agreement of Sale, dated 4-7-1978 accompanied by delivery of its physical Possession and adjustment of the said land by KDA in Sector 35-A of Scheme No,33, Karachi in lieu thereof had become absolute and cannot be challenged or interfered with by any of the defendants in any manner whatsoever.
(b) Declare that registered General Power of Attorney, dated 25-2-1979 in respect of Survey No,26, Deh Dozan Tappo Gadap, Taluka and District Malir, and further General Power of Attorney, dated 29-4-1997, duly registered in respect of its adjusted land in Sector 35-A of Scheme No, 33, Karachi in favour of the plaintiff were executed by defendant No,7 for valuable consideration and as such had become irrevocable and defendants Nos.5 and 6 are not entitled to cancel or revoke the same and the purported attempt: to cancel the said power of attorney vide notice, dated 7-10-1999 published in daily Quami Akhbar is of no legal effect and consequence.
(c) That the defendants Nos.1 to 7 may be permanently restrained from interfering in the physical possession and beneficial enjoyment of the aforesaid land in any manner whatsoever either directly or through any of their servants, agents, representatives or employees,
(d) The defendants Nos.1 to 7 may be permanently restrained from alienating, selling, transferring and disposing of any of the plots of the said land any part or portion of the said land belonging to the plaintiff land executing or registration any lease of any of the plots or the said land, which, if done by any of the defendants Nos.1 to 7, shall be deemed to be invalid, ineffective, illegal and void.
(e) That the plaintiff be awarded damages against the defendants Nos.1 to 7 jointly and/or severally to the extent of Rs,20 million for having caused interruption in the beneficial enjoyment of the said land by their overt and irresponsible actions and levelling unfounded and false imputations and thereby having caused injury to the plaintiff in body, mind and reputation, (0 That costs of the suit be awarded to the plaintiff as against the defendants Nos.1 to 7; and
(g) That such other relief (s) in addition to the above in the circumstances of the suit may also be awarded to the plaintiff as deemed fit and proper by this Hon'ble Court.
6. ' On 22-2-2000 when this case was fixed before the Additional Registrar of this Court, an appearance was made and power was filed on behalf of defendants Nos.5, 6 and 7, they were allowed four weeks time to file their written statements. However, as no written statement was filed by them on the case coming up on 27-4-2000, 15-3-2001, vide Order, dated 25-4-2001 defendants Nos.5, 6 and 7 were debarred from filing their written statements.
7. ' Heard the learned Advocates and perused the record of this suit. Mr. Aziz Khan, learned Advocate for defendant No,1 argued that suit pertains to matter touching the business of the Society. He referred to paragraph No,21 of the plaint which is reproduced as follows:-- "The cause of action for the suit arose to the plaintiff on or about 11-7-1999 when defendants Nos.!
8. To 4 encroached upon a portion of the amenity plot of the said land and on 6-10-1999, when the defendant No,7 through defendant No,6 threatened to cancel the Power of Attorney and lastly on 7- 10-1999, when the public Notice purported to be the cancellation of the plaintiff's Power of Attorney was published in daily Qaumi Akhbar."
9. ' Learned counsel argued that service of notice under section 76 of the Cooperative Societies Act is a mandatory requirement. In the present case notice was not served prior to institution of this suit but prior to the filing of amended plaint as disclosed in paragraph 24 thereof and reproduced as under:- "The plaintiff, out of abundant caution has also served upon the Registrar, Cooperative Societies Sindh, Hyderabad a notice, dated 27-5-2000 under section 70 of Cooperative Societies Act, 1925. A copy of the said notice was also sent to Deputy Registrar, Cooperative Societies, Karachi."
10. ' He further, contended that the subsequent of service of notice under section 70 does not cure the patent defect of failure to meet the requirement of service of mandatory notice in this suit. The notice served by the plaintiff under section 70 can at best be availed for purpose of institution of another suit that may be filed on that cause of action but the patent defect cannot be cured by service of a belated notice. In support of his contention learned counsel relied upon the cases of JJ . Miranda v. Fishermen's Cooperative Society Ltd. And another PLD 1978 Karachi 990 and Mehar Alvi v. Pakistan and 5 others PLD 1980 Karachi 609. Learned counsel for the plaintiff has refuted the arguments and contended that defendants Nos.1 to 4 are not members of the Society. Actions of defendants Nos.1 to 4 do not constitute "any act touching the business of the Society". The deal of sale of land was finalized on execution of the lease deed in favour of the plaintiff. Subsequent event of acquisition of land for purposes of the Master Plan of KDA and allocation of land in lieu thereof is not the result of any act of Society and does not constitute "any act touching the business of the Society". Neither defendants Nos.1 to 4 nor the plaintiff are members of the Society and the suit is maintainable as instituted by the plaintiff in view of the threatened action at the time of institution.
11. That the amendment in the plaint was made with the permission of this Court and under the circumstances of this suit service of notice under section 70 of the Cooperative Societies Act, 1925 was not a requisite in the light of the cases of Kassamali v. Mst. Shakra Begum, PLD 1968 Karachi 307, Syed Khadim Ali Shah v. S.M. Zia and 2 others PLD 1981 Karachi 604, Muhammad Azam v.
12. Pakistan Employees Cooperative Housing Society Ltd., Karachi and 4 others PLD 1985 Karachi 481, Nazar Ali v. Noorabad Cooperative Housing Society Ltd. And others, PLD 1987 Karachi 676, Lahore Cantt. Cooperative Society Limited v. Muhammad Asif 1998 MLD 1850 (Lahore), (1) Government of West Pakistan (2) Faiz Muhammad Awan v. (1) Wali Muhammad Habib, (2) The Zamindari Cooperative Bank Ltd., Nawabshah PLD 1961 SC 215.
13. ' In the instant case the admitted position is that neither the plaintiff nor defendants Nos.1, 2, 3, 4 and 8 are the members of the Society against whom specific statements are made in the plaint.
14. The transaction pertaining to the said land has already been completed after execution of the registered document by defendant No,7 in favour of the plaintiff by which the title to the said land stood transferred in favour of the plaintiff, delay in mutation of record has resulted in the present situation for which the power of attorney was executed on the basis of consideration already received. The plaintiff also claims to be in physical possession of the land. The plaintiff has alleged a cause of action against the specific acts of the other defendants in the plaint. The land has already been sold out and transferred by defendant No,7 and on their part the transaction stood closed and completed on execution of the registered deed of conveyance by them favour of the plaintiff no further act remained to be performed by defendant No,7 to complete that transaction.
15. The acts of acquiring of land by the Government and the allotment of alternate land which lead to the controversy in the present suit are not act touching the business of the Society. They are the act of State and State functionaries. These unforeseen acts were not even within the knowledge of the parties. It is the result of the acts of the authorities in allotting the entire alternate land in the name of defendant No,7 which led to the present situation, this has no nexus with the business of the Society. It is not an act touching the business of the Society as held in the case of Nisar Ali v.
16. Noorabad Cooperative Housing Society Ltd. PLD 1987 Karachi 676. The provision of section 70 of the Cooperative Societies Act, 1925 is attracted only to the acts touching the business of the Society related to the business normally carried on by the Society. It is a special provision of law which is to be strictly construed and cannot be stretched in favour of any party. It is the settled law that only the averments made by the plaintiff in the plaint, which are treated as true and correct, are to be looked into for the purpose of deciding an application under Order VII, Rule 11, C.P.C. As held in the case of Allah Bukhsh v. Abdul Rehman 1995 SCMR 459.
17. ' From the averments made in the plaint the plaintiff has disclosed a cause of action against the defendants and the plaint is not hit by the provisions of section 70 of the Cooperative Societies Act, 1925. The suit is maintainable. Under the circumstances the application under Order 7, Rule 11, C.P.C.
18. Bearing C.M.A. No,9220 of 1999 is dismissed.