AGRA CO-OPERATIVE HOUSING SOCIETY LIMITED, KARACHI Versus Syed AKHTAR ALI

AJMAL MIAN, J.‑‑ By this common judgment we intend to dispose of the above two appeals, as the same are directed against a common order dated 8‑9‑1986 passed by a learned Single Judge of this Court in Suits Nos. 8 of 1972 and 11 of 1972.

2. The brief facts leading to the filing of the above appeals are that the present appellants filed Suit No. 8 of 1972 on 3‑12‑1971 against respondents Nos. 1,2,3 and 4 for specific performance and in the alternative for refund of the money paid and recovery of damages. It appears that respondent No. 1, Syed Akhtar Ali filed Suit No. 11 of 1972 against respondents Nos. 2,3 and 4 for specific performance of a sale'‑ agreement. Both the suits were consolidated as subject‑matter of the two suits was certain land in which both the. parties claimed interest. It appears that the appellants filed an application under Order 1, Rule 10 C.P.C. for impleading respondents Nos. 6 and 7 as the defendants on the ground that respondent No. 2 sold the subject‑matter of the suit in their favour under registered sale‑deed dated 23‑6‑1975 which application was granted by the learned Single Judge by an order dated 13‑5‑1982. It appears that after the above respondents Nos. 6 and 7 were impleaded as parties, they riled written statement in which they have raised a number of legal pleas. It further seems that respondent No. 7 filed an application under Order 7‑‑Rule 11. C.P.C. on 4th September, 1985 for the rejection of the plaint inter alia on the ground that no notice under section 70 of the Co‑operative Societies Act, 1925, hereinafter referred to as the Act, was served. It is the case of the respondent No. 7 that a number of other legal grounds were raised in the above application. Be that as it may, the above application has been allowed by the learned Single Judge by order under appeal on the ground of want of service of notice under section 70 of the Act. The appellants being aggrieved by the above order have filed the preset two appeals.

3. We have heard the learned counsel for the parties and we are inclined to hold that once respondent No. 7 was impleaded as a party upon an application under Order I, Rule 10, C.P.C. after hearing them, the question whether any relief could have been granted against them in the suit inter alia on the ground 1 that no notice was served under section 70 of the Act should have been decided at the regular hearing after framing of the issues as in fact it amounts to reviewing I the earlier order impleading the above respondent as a party upon an application, under Order 1, Rule 10, C.P.C.

4. We would, therefore, allow the above appeal and set aside the above order subject to the right of respondent No. 3 to urge the above point and other legal points.

The above appeals are disposed off in the above terms with no order as to costs.

H.B.T./A‑384/K

Appeal allowed.