ATTAULLAH and 6 others vs SANAULLAH and 5 others

ORDER

1. ' NADEEM AZHAR SIDDIQI, J.---By this application the defendant No.1 has prayed for rejection of plaint.

2. ' The grounds for rejection of plaint are that the suit is barred under sections 54, 70 and 70(A) of the Cooperative Societies Act, 1925 (hereinafter referred to as "the said Act"). It was further stated in the application that the suit is hit by principle of res judicata.

3. ' The plaintiffs have filed this suit for rendition of accounts, administration, partition, cancellation and injunction in respect of the property left by his deceased father and mother. The property left by the deceased is situated in a Cooperative Society.

4. ' Learned counsel for the defendant No.1 states that the parties to the suit are the members of the society and in case of any dispute between the parties the matter has to be referred to the arbitration under section 54 of the said Act. He then submits that no suit can be filed against the Cooperative Society touching its business without first sending notice to the Registrar of the Cooperative Society. He then submits that mutation allowed by the Society- in favour of the defendant No.1 was challenged which could only be challenged by invoking section 54 of the said Act.

5. ' Learned counsel for the plaintiffs submits that the suit can be filed after sending notice to the Registrar and referred to the notice annexed with the plaint. He then submits that there are other reliefs also which cannot be adjudicated by the Registrar, Cooperative Societies.

6. ' Learned counsel for the defendant No,1 submits that the defendant No,1 is disputing the service of the said notice upon the Registrar Cooperative Societies and the burden is upon the plaintiff to prove the same.

7. The plaint can only be rejected under clause (d) of Order VII Rule 11, C.P.C. If from the statement in the plaint the Court comes to the conclusion that the same is barred by any law. For deciding an application under Order VII Rule 11, C.P.C. The contents of the plaint has to be taken as true on its face value and the pleas raised in defence cannot be looked into.

8. ' In Para. 23-A of the plaint the plaintiffs disclosed that notice under section 70 of the said Act was served upon the Registrar. This statement, for the time being subject to rebuttal at the appropriate stage, is sufficient to hold that notice was served.

9. ' The provision of section 70 of the said Act provides that no suit 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. In this matter as per the contents of the plaint the plaintiffs served notice upon the Registrar Cooperative Societies. Section 70 of the said Act does not bar the jurisdiction of the Court. Section 70-A, ousts the jurisdiction of civil Courts only in cases where such statutory functionaries have jurisdiction to entertain, adjudicate and dispose of or determine any matter, under the Cooperative Societies Act, 1925. If the dispute is of such nature that the same could not be referred to arbitration under section 54 of the said Act for adjudication and decision. Section 70-A does not bar the jurisdiction.

10. ' In the reported case of Lahore Cantu Cooperative Housing Society Ltd. v. Messrs. Builders and Developers (Pvt.) Ltd. (PLD 2002 SC 660) the Honourable Supreme Court while granting leave has observed that 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. The notice for filing a suit is only necessary if the suit is filed touching the business of the society and not otherwise.

11. ' In this suit the prayers made by the plaintiffs cannot be adjudicated and determined by the Registrar or his Nominee under section 54 of the said Act. Provisions of sections 54, 70 and 70-A of the said Act relate to the dispute touching the business of society and not otherwise. It is now well- settled principle of law that the plaint cannot be rejected in part and even if one prayer is maintainable the plaint cannot be rejected.

12. ' In another reported case of Imran Raza Shaikh v. Mst. Zarina Gul and 4 others (2003 YLR 934) a learned D.B. Of this Court has held that in a suit if there are more than one defendants and the suit is barred either under some law or otherwise against one of the defendants only such defendant can be struck off from array of defendants.

13. ' In the reported case of M. Wahidullah Ansari v. Zubeda Sharif and another (PLD 2002 Karachi 414) a learned D.B. Of this Court has held as under:-- "From bare reading of section 70-A above, it is clear that the jurisdiction of Civil Court and other authority is ousted only in cases where such statutory functionaries have jurisdiction to entertain, adjudicate, dispose of or to determine any matter, under the Act, rules or bye-laws framed thereunder; secondly if a dispute is between the parties as enumerated under section 54 thereof i.e, between the members or past members or persons so claiming and the committee of any officer of the society inter se and lastly, the dispute must be relating or concerning the business of the society."

14. The plaintiffs rightly or wrongly asked for the accounts and partition of the properties of the deceased parents and have also sought cancellation of oral gift under which the defendant No,1 claiming the said property. All these relief (s) cannot be adjudicated and granted by the Registrar or his nominee. Not every dispute between the persons mentioned in section 54 of the Act, could qualify to be a dispute touching the business of the society, merely because the subject property of the suit was managed and controlled by the society.

15. As far as res judicata is concerned, it is suffice to say that the earlier suit was filed for injunction only in respect of shop and that was withdrawn under Order XXIII, Rule 1, C.P.C. In the earlier suit there was no prayer for administration, partition and rendition of accounts. The conditions required for applying the principle of res judicata are not available in this case.

16. In view of the above, it is clear that the application is not maintainable and has been moved just to waste the precious time of the Court.

17. ' For the above reasons the listed application was dismissed with cost of Rs,10,000 to be deposited by the defendant No,1 by passing short order dated 24-9-2008.

18. ' These are the reasons of the said short order.