' The plaintiff has filed a suit for declaration, permanent injunction and cancellation of documents namely Gift-deed, Power of Attorney, Transfer Order and Specific Performance. The plaintiff has impleaded P.I.B. Cooperative Housing Society, Mst. Shahjehan Begum and Mst. Shaheen Shamsi.
2. The defendants have submitted an application under Order 7, rule 11, C.P.C. Praying that the plaint may be rejected as this suit is barred under the provisions of sections 70 and 70-A of the Cooperative Societies Act, 1925, and is barred under section 11 of the C.P.C. Also on the principles of res judicata.
3. Heard Mr. Muhammad Amin Lakhani, learned counsel for the plaintiff, Mr. Muhammad Ali Jan, learned counsel for defendant No,1 and Mr. Jamilur Rehman, learned counsel for defendants Nos.2 and 3.
4. At the very outset, Mr. Muhammad Ali Jan, learned counsel for the defendant No,1, has frankly conceded that the principles of res judicata is not attracted to the facts and circumstances of this case. The main plank of arguments urged by the learned counsel for the defendants is that the suit is barred under section 70 of the Cooperative Societies Act. They have submitted that the plaintiff filed an earlier suit against the present defendants Nos.l and 2, in the High Court, being Suit No,19 of 1999 on the same cause of action and in respect of same property for specific performance and injunction. An objection was raised to the maintainability of the suit with reference to the bar contained in section 70 of the Cooperative Societies Act, which provides that no suit shall be instituted against the society or any of the officer 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, It was contended on behalf of the plaintiff in Suit No,19 of 1999 that two notices dated 1-12-1998 were served upon the Secretary of the society, which were replied to by the Secretary, through their Advocates' letter, dated 10-12-1998. It was pleaded that notice to the Secretary of the Society is notice to the Registrar, Cooperative Societies, as he represents the Registrar and the notice to the agent is deemed to be notice to the principal. The contention was not accepted by his Lordship Mr. Justice S.A. Sarwana. He observed that the learned counsel for the plaintiff could not show any provision of law or cite any judgment, wherein it has been held the Secretary of a Cooperative Society, is the agent of the Registrar. It was observed that the argument advanced by the learned counsel was highly imaginative and untenable. It was ultimately held that the plaintiff did not comply with provisions contained in section 70 of the Cooperative Societies Act, 1925 and consequently the suit was not maintainable.
Reliance in this behalf was placed on the judgments in the cases of Muhammad Ali Memorial Cooperative Housing Society Ltd. v. Syed Sibtey Hasan Kazmi PLD 1975 Karachi 428, Ziaur Rehman Alavi v. Messrs Allahabad Cooperative Housing Society 'Ltd. And 2 others PLD 1995 Karachi 399 and Farida v. Prince Apartments Cooperative Housing Society and 2 others 1984 CLC 2914.Ultimately the plaint was rejected under Order 7, rule 11, C.P.C. With costs of Rs,5,000. Suit No, 19 of 1999 was disposed of with the rejection of plaint on 5-9-2000. The present suit was filed on 3-6-1999, during the pendency of the earlier suit. The 'learned Advocates for the defendants have submitted that the facts and circumstances of the present suit are similar and admittedly it has not been shown that any notice under section 70 of the Cooperative Societies Act, 1925 was delivered to the Registrar.
5. Mr. M.A. Lakhani, learned counsel for the plaintiff has frankly conceded that no formal notice has been served on the Registrar, but has contended that the filing of earlier suit should be treated as notice under section 70 of the Cooperative Societies Act and it should be held that substantial compliance has been made with requirement of law. He has submitted that by the filing of earlier suit the defendants were put to notice and thus, they were sufficiently and fully aware of the contentions on behalf of the plaintiff and the relief sought by him. In support of his contention he has placed reliance on the Single Bench judgment of this Court in the case of Mrs. Naila Masood and 2 others v. Secretary, Food and Cooperation, Government of Sindh and others, PLJ 1999 Kar.
86. He has placed reliance on headnote 'A', which says that communication between the parties prior to filing of suit fulfilled requirements as provided in section 70 of Cooperative Societies Act, therefore, plaint was not liable to be rejected on that ground. However, the learned counsel was directed to read relevant findings in the judgment. A reading of para. 4 of the judgment on page 89 of the report shows that the headnote is misleading. It is contained in para. 4 of the cited judgment, that objection of non-serving a notice under section 70 of the Cooperative Societies Act,, was raised but in rebuttal the attention of the Hon'ble Judge was invited to two Annexures. After perusal of the Annexures it was held that the two notices fulfilled the requirements as provided in section 70 of the Cooperative Societies Act, 1925, and therefore, the plaint was not liable to be rejected on this ground. The relevant finding was given in the peculiar facts and circumstances of the cited case, and therefore, it is not attracted to the facts-and circumstances of the present case. Mr. Lakhani, has further placed reliance on another Single Bench judgment of this Court in the case of J.J.
Miranda v. Fishermen's Cooperative Society Ltd., Karachi and another PLD 1978 Karachi 990. In this case it was contended that a notice was already served under which the requirement of section 70 of the Cooperative Societies Act, were complied with. After examining case-law relating to service of notice under section 70 of Cooperative Societies Act, and section 80, C.P.C., it was held as follows:-- "20. From the discussion of the above rulings cited by the learned counsel for the parties, it is clear that the Courts have taken the view that the provisions relating to the services of the notice are mandatory and without complying with the same, a suit would not be competent. However, at the same time the Court particularly in the recent past have taken the view that the Courts should not insist upon compliance of the provisions of section 80, C.P.C., strictly. It has been further held that if the Government or the officer concerned has sufficient notice of the facts and the relief which is to be sought in the proposed suit, this would constitute sufficient compliance."
7. A perusal of the above rulings shows that service of notice under section 70 has been held to be mandatory and it has been held further that without complying with the same the suit would not be competent. It has been merely held that the Courts have started taking lenient view. It has been clearly held that the provisions relating to the service of notice are mandatory and without complying with the same, a suit would not be competent. However, at the same time Courts have taken the view that the Courts should not insist upon compliance of the provisions of section 80, C.P.C. Strictly. It has been further held that if the Government or the officer concerned has sufficient notice of the facts and the relief which is to be sought in the proposed suit, this would constitute sufficient compliance.
8. Mr. Lakhani, is not able to show as to how the filing of earlier suit, in which plaint was rejected for want of service of notice on the Registrar, under section 70 of the Cooperative Societies Act, amounts to substantial compliance of the requirements, when the Registrar was not a party at all.
Probably the contention has been raised by Mr. Lakhani, under the notion that notice under section 70 was required to be served on the society or a person who is to be joined as defendant, while in fact the notice under section 70 is required to be delivered to the Registrar, stating the cause of action, the name, description and place of residence of the plaintiff and the reliefs which he claims.
It was further pointed out to Mr. Lakhani that the requirement of section 70 is that the plaint should contain a statement that such notice has been so delivered or left. He was asked to show if it is contained in the plaint that any such notice was delivered or left at the office of Registrar or that any other notice should be deemed to be notice under section 70 of the Cooperative Societies Act.
The learned counsel submitted that he has not stated specifically in so many words that notice under section 70 has been served or should be deemed to have been served or the compliance of requirement under section 70 has been made but it is stated in para. 18 of the plaint that the plaintiff has filed a suit for specific performance and injunction against the defendants Nos.1 and 2 which is still pending before the High Court being Suit No,19 of 1999 and all these facts came into the knowledge of plaintiff when the defendant No,2, filed her written statement in the said suit. It is evident from the perusal of para.18 of the plaint that the present suit has been filed on the basis of facts disclosed by defendant No,2 in her written statement in Suit No,19 of 1999 and thus, the contention that the facts, cause of action and relief sought were fully within the knowledge of defendants, because of the filing of Suit No,19 of 1999, is not tenable.
9. I am in total agreement with the observations of my learned brother Mr. Justice S.A. Sarwana, in his order dated 5-9-2000 rejecting the plaint in Suit No,19 of 1999, with regard to the contention of the learned counsel for plaintiff in respect of the service of notice under section 70, that it is highly imaginative and untenable.
10. Consequent to the above discussion, the objection raised by the defendants to the maintainability of the suit for want of service of notice under section 70, on the Registrar, Cooperative Societies, is upheld and it is held that the suit is barred under the law. The plaint is, therefore, rejected under Order 7, rule 11, C.P.C., with no order as to costs.
11. The plaint was rejected by a short order in Court, today, and these are the detailed reasons in support thereof.
Plaint rejected.