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Before Abdu1 Qadeer Chaudhry, J
NIZAR ALI--Petitioner
versus
NOORABAD COOPERATIVE HOUSING
SOCIETY LTD and others--Respondents
Civil Revision Application No.223 of 1985, decided on 28th August, 1986.
(a) Co-operative Societies Act (VII of 1925)--
---S. 70--Suit against society without notice--Maintainability--Suit not relating to any act touching business of society nor plaintiff showing any dispute the nature of which could attract bar of jurisdiction--Suit without notice, held, was maintainable in circumstances.
Muhammad Ali Memorial Co-operative Housing Society Ltd. Karachi v. Syed Sibtey Hasan Kazmi P L D 1975 Kar. 428 and Azizuddin Ahmad v. Aziz Ahmad and others P L D 1959 Kar. 497 rel.
(b) Civil Procedure Code (V of 1908)--
---O. VII, R. 11--Rejection of plaint--Only facts stated in plaint, held, were to be considered for purpose of an order under O. VII, II--Written statement or some foreign matter could not be considered.
Pahloomal Motiram v. Abdul Qudus Behari and 8 others PLD 1971 Kar. 250 rel
(c) Specific Relief Act (I of 1877)--
---S . 54--Civil Procedure Code (V of 1908) , O. VII, R . 11--Suit for injunction--Maintainability--Plaint disclosing prayer for injunction and not for declaration of title--Plaintiff stating that he was owner of property and that defendant be restrained from disposing of same No mention made in plaint that defendant had denied his title--Suit of plaintiff for injunction, held, was maintainable even though no prayer was made therein for declaration of title.
1969 D L C 416; Muhammad Younus v. Akhtar Hussain and others 1981 S C M R 1049 and Badri Zaman v. Muhammad Ashraf and others 1984 S C M R 1013 ref.
Muthayyan Swaminatha Sastrial and others v. S. Narayanswami Sastrial and others A I R 1936 Mad. 936 rel.
(d) Civil Procedure Code (V of 1908)--
---O. VII, R. 11--Rejection of plaint--Plaintiff coming to Court with certain allegations which were denied by defendant in written statement--Respective contentions of parties, held, could only be decided by Court after framing issues at trial and deciding same after recording evidence of parties.
Nisarally for Petitioner. Zafar Hadi and Sultan A. Allana for Respondents. Date of hearing: 28th August, 1986.
The respondent No.1 instituted civil suit in the Court of learned Civil Judge, Karachi for permanent injunction against the petitioner and respondents No.2 and 3 in respect of flat No.G/1, situated on Ground Floor, Sub-Plots Nos. FL-10 to 14/G/2 of Plot No.FL 10 to 14 Block 14, Gulshan-e-Iqbal, Karachi wherein the plaintiff deposited the amount for residential flat with the defendant No.2 for its Noorabad Project situated at near Civic Centre Off Main University Road, Karachi in the name of defendant No.l as she had got love and affection and much confidence in defendant No.l as he is husband of the plaintiff. She used to pay the monthly instalments in the office of defendant No.2 personally and obtain the receipts. A compromise was made between the plaintiff and defendant when the plaintiff wanted to execute the lease in between the defendant No.2 and her real daughter Miss Noshaba as she wanted to gift the flat in question to her daughter but the defendant No.l assured the plaintiff through some respectables of her community that since their daughter is of minor age and the flat in question was allowed by the plaintiff to remain in the name of defendant No.1 till the maturity of their daughter, therefore, the lease was executed in between the defendants Nos. 1 and 2 and the possession of the flat in question was handed over to the plaintiff. The plaintiff claimed following reliefs in the suit:----
(a) To restrain the defendant No. l by granting permanent injunction from sale out or dispose of or mortgage the residential flat No.G/1, sub-Plot Nos. FL-10 to 14/G-2, in Plots Nos. FL-10 to 14 Block 14 Gulshan-e-Iqbal, Karachi-24 permanently.
(b) To restrain the defendants Nos. 2 and 3 not to allow the defendant No. 1 from sale out or dispose of or mortgage the flat in question/suit premises No. as mentioned in clause (a) of the prayer.
(c) To restrain the defendants Nos. 1, 2 and 3 from disturbing the peaceful vacant possession of the aforesaid suit premises particularly the defendant No.l be restrained from the tress pass the suit premises, and be restrained him not to disturb the plaintiff from collecting the rent of the suit premises permanently.
(d) Cost of the suit.
(e) Any other reliefs which this Hon'ble Court deems fit and proper under the circumstances of the case."
Alongwith the suit an application under Order XXXIX, Rules 1 and 2, C . P. C . was filed and ex parte interim order of status quo was passed. The Petitioner filed his counter-affidavit to application for temporary injunction and also submitted an application under Order VII, Rule 11 read with section 151, C.P.C. for rejection of plaint on the grounds stated therein. The learned trial Judge allowed the respondent's application for temporary injunction and confirmed the interim order of status quo. According to the petitioner the appeal against that order is pending in the Court of Additional District Judge, Karachi. The trial Court also dismissed the application. Hence the present petition.
The learned counsel for the petitioner has submitted that no cause of action accrued to the respondent No.l therefore, the plaint should have been rejected. The grounds on which the application under Order VII , Rule 11, C . P. C . for rejection of the plaint was moved are:- (1) non-service of notice under mandatory provisions of section 70 of Co-operative Societies Act, 1925 (hereinafter referred to as the Act), (2) The defendant No.l (present Petitioner) is in possession of flat in question in his own right, interest and title and the suit for injunction only, is not maintainable without first seeking the declaration of title of respondent No.l. These objections were rejected by the trial Court.
As regards the first objection about the rejection of the plaint, under Order VII, Rule 11, C.P.C. the plaint shall be rejected in the following cases:-
(a) where it does not disclose a cause of action;
(b) where the relief claimed is under-valued and the plaintiff, on being required by the Court to correct the valuation within a time to be fixed by the Court, fails to do so;
(c) where the relief claimed is properly valued, but the plaint is written upon paper insufficiently stamped, and the plaintiff, on being required by the Court to supply the requisite stamp paper within a time to be fixed by the Court, fails to do so;
(d) where the suit appears from the statement in the plaint to be barred by any law.
The learned counsel in support of such objections, has referred to section 70 of the Act which 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, or left at his office. Before an objection about the maintainability of the suit for want of notice under section 70 of the Act is taken, it must be shown that the dispute is in respect of any act touching the business of the society. In order to determine this fact the Court has only to consider the averments made in the plaint. The plaint does not disclose any dispute touching the business of the society. The Plaintiff has stated that the flat in question was purchased by her in the name of the petitioner and the entire payment had been made by her and the possession has been delivered to her. The reliefs claimed in the plaint also show that the plaintiff has not raised any dispute with the Society. The relevant provision of section 54(a) of the Act is that 'between members or past members of the Society or persons claiming through a member" or past member. The plaintiff /respondent is not a member or the society. She has also not claimed any right through member of past member. She has prayed that the petitioner/ defendant be restrained to take possession of the suit premises. The respondents 2 and 3 have not contested the matter and they have not raised any plea that the suit was barred by provision of the Act or that the mandatory notice under section 70 of the Act is a condition precedent for initiating the proceedings. When there is no dispute between the parties relating to the business of a society then the suit without any notice is maintainable.
The learned counsel has referred to the case of Muhammad Ali Memorial Co-operative Housing Society Ltd. Karachi v. Syed Sibtey Hasan Kazmi P L D 1975 Kar. 428. The operative part reads as under:-
"The award may, in proper proceedings, have to be found void and not enforceable but it does not follow that a suit for a declaration that the award is void is therefore, maintainable without notice. The requirement of the section that a notice shall be given before a suit can be entertained is not possibly affected by the consideration that the plaintiff has in truth a good and even an unanswerable case. Even on the assumption that the award was void, the requirement of notice under section 70 still remains."
There is no cavil with this proposition of law but the facts are distinguishable. As already observed notice was not necessary in view of the facts stated in the plaint. In the same authority, it has been observed, "it is not all suits instituted against a Society which require the service of a notice but only such as are "in respect "of any act touching the business of the Society". In the case of Azizuddin Ahmad v. Aziz Ahmad and others P L D 1959 Kar. 497 it has been observed that:-
Under section 54 of the Bombay Co-operative Societies Act, two essential conditions must be fulfilled before its provision can be invoked. The first is that it should relate to a dispute which touches the business of the society and the second that such a dispute must be between the society or its members or between the members .or past members or those who claim through them. There is another class of cases which can also be referred and they are those which are mentioned in clauses (d) and (e), namely between the society and the surety of a member, whether he be a member or not or between a financing bank and a person who is not a member of this society."
For the purposes of an order under Order VII, Rule 11, C.P.C. only the facts stated in the plaint are to be considered. The written statement or some foreign matter cannot be considered. The plaint does not show any dispute of the nature which bars the jurisdiction.
In the case of Pahloomal Motiram v. Abdul Qudus Behari and 8 others P L D 1971 Kar. 250 it has been observed that:----
"Under Order VII, rule 11, Civil Procedure Code 1908, a suit is not dismissed but the plaint is merely rejected. This makes a big difference with respect to the consequences that follow. Moreover, in asking the Court to reject a plaint under this provision the defendant must be taken to admit for the sake of argument that the allegations of the plaintiff made in the plaint are true in manner and form. The Court should reject the plaint under this provision only if it comes to the conclusion that even if all the allegations which are made in the plaint were proved to be correct, the plaintiff will not be entitled to get the relief. Here it is also important to distinguish Order VII, rule 11 from the locus standi of the plaintiff and the jurisdiction of the Court."
I, therefore, see no force in objection about the service of notice.
The next contention of the learned counsel is that the suit, as framed, in the present form is not maintainable because it is a suit for injunction only. She has not claimed any declaration. The Plaintiff has not made any prayer seeking cancellation of registered deed in favour of the applicant. It is further contended that the suit for injunction only is not maintainable without declaration of title or cancellation of registered deed. In the suit the plaintiff has stated that she is owner of the property and the defendant be restrained from disposing of the same. Under section 54 of the Specific Relief Act, a mandatory injunction can be issued even when there is a threat of invasion over the right of the plaintiff. The plaintiff does not say in the plaint that the defendant has denied his title. Though in the written statement the defendant has denied the title of the E plaintiff but the plaint is to be rejected on the averments made in the plaint. If the averments made in the plaint are controverted by the other side then that controversy can only be decided by framing issues and deciding them after recording of evidence of the parties. Where the title of the plaintiff is not denied by the defendant a suit for injunction is maintainable even though the prayer for declaration of title is not made.
The learned counsel for the petitioner has cited Ahmed Bhuiya 1969 D L C 416 wherein it has been held that "where a plaintiff is out of possession and is in a position to claim a decree for possession he should not be permitted to obtain merely a decree for the cancellation of the instruments according to which if genuine, he had no title to the lands. This authority is inapt because the plaintiff has alleged that she is in possession of the suit property. He has next referred to the case of Muhammad Younus v. Akhtar Hussain and others 1981 S C M R 1049. In this case, the tenant in earlier ejectment proceedings admitted that he was tenant of landlord. In such circumstances it was held that there was no merit in the claim set up by him that he had acquired title through adverse possession. It was also held that since the petitioner had not even prayed for grant of declaration of ownership through adverse possession, the suit filed by him under section 54 of the Specific Relief Act, for the grant of permanent injunction only was not maintainable. The facts of the present case are distinguishable. He has also referred to the case of Badri Zaman v. Muhammad Ashraf and others 1984 S C M R 1013. This authority is also not applicable.
In this respect I may refer to the case of Muthayyan Swaminatha Sastrial and others v. S. Narayanewami Sastrial and others A I R 1936 Mad. 936. It has been held that "where the allegations of the Plaintiff is that he is in lawful possession of the properties and that his possession is threatened to be interfered with by the defendants, he is entitled to sue for a mere injunction without adding prayer for declaration of his rights."
In the plaint, the plaintiff has stated that the possession of the flat in question was handed over to the plaintiff. The plaintiff has rented out the suit premises and received the rent from the tenant and she is in peaceful possession of the premises. She has received a notice from the petitioner. She has been advised not to claim the rent from the tenant and since she is entitled to receive the rent, she through her advocate informed the defendant. According to the plaintiff the cause of action has accrued as she wanted to execute the lease in favour of her daughter and she has been illegally advised not to collect the monthly rent from the tenant. All these facts clearly indicate that the plaintiff has come to Court with certain allegations. In the written statement all these allegations have been denied, but the respective contentions of the parties could only be decided by the Court after framing the issues. The pleadings of the parties have given rise to certain issues including the legal issues, which can only be determined after proper trial.
The above discussion would show that the present petition has no force and the same is dismissed with no order as to costs.
M.Y.H./N-47/K Petition dismissed.
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