IFTIKHAR MUHAMMAD CHAUDHRY, J.---This petition calls in question concurrent findings of learned Lahore High Court, Lahore vide judgment, dated 9th February, 1999 and judgment and decree of Civil Judge First Class, dated 27th November, 1995 respectively.
2. Briefly stating facts giving rise to instant petition are that the respondents instituted a suit against the petitioner for declaration, mandatory and permanent injunction with averments that it is a private limited company engaged in the business of developing sites for housing purposes. It has purchased a piece of land situated adjacent to Phase III of the land of petitioner but the petitioner by constructing a boundary wall had completely blocked the access of the respondent towards its land. It was also the case of the respondent that under the Cantonments Act, 1924 (hereinafter referred to as the "Act"), all the roads and streets in the Cantonment Area belong to and vest in the Cantonment Board, therefore, petitioner has no authority in law to block the access from the respondent/plaintiff's land to the road which vests in and belong to Lahore Cantonment Board, Lahore Cantt. Therefore, the construction of the boundary wall by the petitioner to block the road of Cantonment Board is absolutely illegal and it tantamounts to deprive the plaintiff/respondent from the use of the land belonging to it etc. Ultimately a decree was claimed in the following terms:- "In the circumstances it is respectfully prayed that this suit may kindly be decreed and it may kindly be declared that the plaintiff has a right in law to use the roads from. Points 'A' to 'X' in the plan annexed and to the user of the other roads shown as Gray in the plan annexed herewith. It is further prayed that the defendants be directed by issuing a mandatory injunction to demolish the boundary wall constructed from points 'A' to 'Z'. It is also prayed that the defendants be permanently restrained from interfering with the plaintiff's user of the roads shown as gray in the plan attached. The costs of the suit may also be awarded."
4. Petitioner resisted the suit filed by plaintiff/respondent by raising preliminary objections including non-service of notice under section 70 of the Cooperative Societies Act, 1925. On merits the case of the petitioner was that it being as both corporate having perpetual succession and common seal with power to acquire and hold property and to construct, therefore, it is competent to make such use of the property owned and possessed by it as it thinks fit particularly the rights of respondent/plaintiff were never infringed nor there is any likelihood of any infringement by construction of any wall on the property owned by it, inasmuch as there existed no obligation in favour of plaintiff breach of which could be prevented.
5. Learned trial Court in order to resolve the controversy between the parties framed issues including the following:-- "(1) Whether the plaintiff has no cause of action to file the suit in view of preliminary objection 2 of the written statement filed by defendant No,2? OPD
(2) Whether 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'? OPP Parties led evidence for and against and vide judgment, dated 21st February, 1997 learned trial Court summed up its conclusions on Issues Nos.4 and 8 as follows:-- "Both these issues are inter-connected to each other, as such these are being taken up jointly. The main controversy between the parties has been converted into Issue No,8. Onus to prove this issue was on the plaintiff, who examined Mushiaq Ahmad P.W.1, Taj Din P.W.2, Shafiq-ur-Rehman P.W.3, Muhammad Afzal P.W.4, and Sajjad Saeed, General Manager of plaintiffs company appeared as P.W.S. Master Plan of Phase III of Housing Scheme of defendant No,2 also showing location of land purchased by the plaintiff finds place on record as Exh.P-5/1.
7. In rebuttal, Muhammad Ijaz, Assistant Land Superintendent, Lahore Cantonment Board, Lahore appeared as D.W.1. This witness was appeared on behalf of defendant No,1, whereas defendant No,2 examined Abu Tahla Khan Burki, Assistnat Law Officer D.W.2. In order to prove sending of a notice to defendant No,1, the plaintiff has examined, Khurshid Record-Keeper P.W.6 and Muhammad Rafi Khan, Assistant (Technical), Office of Registrar, Cooperative Society, Lahore as P.W.7. P.W.1, had conducted survey of land owned by the plaintiff which is adjacent to 'W' Block of Housing Scheme of defendant No,2. According to P.W.1, a road of Housing Scheme of defendant No,2 joins Ferozpur Road. Similarly, the roads of said Housing Scheme also join Bhutta Chowk, Badian Road, Walton Road and Neshat Colony, R.A. Bazar. P.W.2 is a retired Patwari who deposed that land owned by the plaintiff is adjacent to the Housing Scheme of defendant No,2, which had blocked the road by raising a boundary wall. He further deposed that the roads of Housing Scheme of defendant No,2 are open for general public towards Neshat Colony and Ghazi Road. P.W.
Deposed that the only passage available for the land owned by the plaintiff is adjacent to 'W' Block of the Housing Scheme of defendant No,2 and that the latter had blocked the access to the road by raising a boundary wall. P.W.4 has made a similar statement to that of P.W.1 to P.W.3. On behalf of plaintiff Company its General Manager namely Sajjad Saeed appeared as P.W.5 and supported the contents of the plaint. He states that there is a road on the south of land owned by the plaintiff and access to the said road has been blocked by, defendant No,2 by raising a wall in the road. He further deposed that the said road was owned by the Cantonment Board Lahore and that no passage was existing for the land owned by the plaintiff due to raising of said wall. During cross- examination, he explained that the plaintiff could not construct roads in its land due to blocking of road. A copy of Master Plan Phase III of Housing Scheme of defendant No,2 finds place on record as Exh.P-5/1 wherein the land owned by the plaintiff is shown adjacent to 'W' Block of said housing scheme. A public road of housing scheme is adjacent to the land owned by the plaintiff but the same has been blocked by raising a wall by defendant No,2 whereby access to the said road has been blocked for the plaintiff. The statement made by D.W.1, who is an employee of defendant No,1 is relevant for the case of the plaintiff D.W.1 deposed that the disputed land comes within the limits of Cantonment and its road, footpath etc. Are being maintained by the Lahore Cantonment Board, Lahore. During cross-examination on behalf of defendant No,2 he stated that the land underneath the disputed wall was owned by the defendant No,2. No -doubt the road adjacent to the land owned by the plaintiff was constructed by defendant No,2 on its own land, yet defendant No,2 is not justified in blocking a public road. Learned counsel for the plaintiff has submitted that the said road was being used by the public at large and the plaintiff could not be deprived from using the same by raising any wall in the road. Due to blockage of the said road by defendant No,2, the land owned by the plaintiff is lying vacant. It could only be developed into a housing scheme if its access to the public road of the housing society (defendant No,2) is restored. Learned counsel for the plaintiff further submitted the act of blocking the road by defendant No,2 is also violative of the Constitutional guarantees provided by the Constitution of Islamic Republic of Pakistan, 1973, in respect of right to property and right to enter into a public place. On the other hand learned counsel for the defendants argued that the road was constructed by defendant No,2 on its own land. No doubt, the roads in the housing schemes are being constructed on the land owned by the respective society, yet once a road is made open for the use of public at large that it could not be reserved for the particular use of members of the society (defendant No,2). The contention of defendant No,2 that it being owner in possession of land underneath the road in question had to provide safeguards against encroachment carries no weight because once a road is made for the use of members of the society as well as for the public at large then a particular person such as the plaintiff could not be deprived from its user."
6. Petitioner preferred appeal being R.F.A. No,37 of 1997, which has been dismissed, vide impugned judgment. As such instant petition for leave to appeal has been filed.
7. Learned counsel appearing for the petitioner emphasized as follows:-- "1. Suit filed by the respondent against petitioner registered Coorperative Society was not maintainable without serving notice upon it within the contemplation of section 70 of the Cooperative Societies Act, 1925. Reliance was placed on the judgment reported in 1996 SCM R 1195.
2. The conclusion of the High Court that as respondent's counsel has not pressed for the relief of declaration, therefore, non-service of notice upon the Cantonment Board under section 273 of the Act is not sustainable in law because without getting deleted the relief of declaration from the plaint by means of amendment departure from compliance of mandatory provision of law was legally impossible.
3. Petitioner Cooperative Society being the exclusive owner of the land acquired by it for the construction of the housing scheme and the roads, therefore, learned High Court had not interpreted the provisions of section 108 of the Cantonments Act, 1924 in its real perspective.
4. Petitioner has constructed the private roads for the use of their Members, therefore; the same cannot be treated as public roads for the use of respondent/plaintiff society as well.
5. The respondent/plaintiff is not entitled legally to use the road because no right of easement is available to it.
6. The concurrent findings recorded by both the Courts are based on misinterpretation of section 70 of the Cooperative Societies Act, 1925 and sections 108 and 273 of the Act, therefore, interference is called for by this Court.
7. Learned counsel for respondent No,1 contended as under:--
1. That the suit filed by respondent No,1 without service of notice under section 70 of Cooperative Societies Act, 1925 was competent in view of the fact that there was no dispute between the members or the society and relief sought for does not relate to the business of the society.
2. No notice was required to be issued by the respondent to the Cantonment Board according to the provisions of section 273 of the Act because the relief of declaration was not pressed before the trial Court. As such a suit seeking injunction can proceed without issuing such notice.
3. Admittedly roads/streets constructed by the petitioners are maintained/managed and looked after by the Cantonment Board out of the local funds, therefore, the Cantonment Board by virtue of provision of section. 108 of the Cantonments Act has acquired proprietary rights over the land on which the roads/streets etc. Have been constructed as such general public including the respondent can use the same as a matter of right.
4. Petitioner being registered cooperative society is legally bound to extend the benefit of the roads which have been constructed for the members of the society in view of the provision of section 13 of the Easements Act.
5. Learned High Court has correctly interpreted the provision of section 108 of the Act.
6. The concurrent findings of fact recorded by the trial Court and confirmed by the Appellate Court admit no interference by this Court under Article 185(3) of the Constitution of Islamic Republic of Pakistan as petitioner has failed to make out a case involving substantial question of public importance.
8. Learned counsel appearing for Cantonment Board subscribed to the version of counsel for respondent No,1 and prayed for dismissal of the petition being devoid of force.
9. We have examined the respective contentions put forward by both the sides. In instant case interpretation of section 70 of the Cooperative Societies Act, 1925 seems to be one of the most important questions. There are divergent views in this behalf depending upon the pleadings of the parties but we think that essentially the decision of this point is relatable to the business of the society because a suit against a society or its officers in respect of any act touching the business of the society will not be competent without issuing notice two months prior to its institution. Prima facie we are of the opinion that the expression "business" has to be interpreted comparatively in a broader sense because ordinarily this word includes all those activities, which are carried out by a particular party to achieve its object for which it has been incorporated. Similarly significance of the interpretation of section 108 of the Act can also not be denied. It may be noted that petitioner's case throughout had been that proprietorship of the land underneath the roads vests in the society and roads have been constructed over there by it by spending funds from its own resources with a view to provide better facilities of communication to its members to whom it has persuaded for making investment by constructing houses for one of the reason that it provides better services including construction of roads etc. To its inhabitants. Whereas according to the petitioner's case all streets and the pavements etc. Vest in the Cantonment Board. Although one of the witnesses appeared on behalf of the Cantonment Board and stated that roads etc. Vested in it but he failed to explain whether the construction of the road was carried out by it of the local funds or investment was made by the petitioner. Likewise the provisions of section 273 of Cantonments Board-Act, 1924 has its own importance because whenever a declaration is sought against it a notice is required to be issued. Therefore, the question for examination would be as to whether without seeking amendment in the relief clause respondent No,1 could have been allowed to delete the prayer clause of declaration, if so, what would be its effect?
10. We may also observe that as far as respondent No,1 is concerned it has got its own entity, as such there was heavy burden on it to establish its legal right either under the Easements Act or under any other provision of law to contend that the roads constructed by the petitioner situate beyond the boundary wall which exist between both the societies can be used by it as a matter of right and the Court without giving declaration can direct the petitioner to demolish the wall.
11. To examine inter alia above aspects of the case we grant leave to appeal and direct that pending decision of appeal arising out of this petition operation of impugned judgment shall remain suspended. However, keeping in view the importance of the matter we would observe that let the office fix the appeal within three months subject to soliciting necessary approval from Hon'ble Chief Justice.