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Suit Nos. 8 and 11 of 1972 and Civil Miscellaneous Appeals Nos. 2996 and 2967, decided on 8th September. 1936.

---S.70--Suit against cooperative society--Non-serving of prior notice--Effect--Suit against Cooperative Housing Society, held, could rot be instituted unless prior notice of intimation of institution of suit required under mandatory provision of S.70, Act VII of 1925 was given to Registrar of such cooperative society--Suit instituted by plaintiff against society being one of defendants without giving prior, notice--Court striking off name of defendant society from plaint, ordered suit to be proceeded against remaining defendants in circumstances.

Muhammad Ali Memorial Cooperative Housing Society Ltd. Karachi v. Syed Sibtey Hassan Kazmi P L D 1975 Kar 428; Muzaffar Hussain and another v. Yusuf and 4 others P L D 1976 Kar. 1107; Farida v. Prince Apartment Cooperative Housing Society through its President and 3 others 1984 C L C 2914; Messrs Sunshine Biscuits Ltd. v. Muhammad Hassan Lodhi and another P L D 1982 Lah. 189; S.S. Valayudham Pillai v. The Governor-General-in-Council, South, Indian Railway, represented by the General Manager A I R ( ) Mad. 783 and Hayat and others v. Amir P L D 1982 S C 167 ref.

Khalid Habibullah for Plaintiff.

Syed Sami Ahmed for Defendants Nos.2(a) to 2(k).

Salahuddin for Atash Mirza for Defendant.

Shaikh Abdul Aziz for Defendant

These are two suits bearing No.8 of 1972 and 11 of 1972 in which two applications under Order VII rule 11 CPC (C.M.A. 2966/85 and 2967/85) have been filed by defendant No.7 for rejection of the plaint.

2. The sole ground as urged by Mr. Syed Sami Ahmad, learned counsel for the applicant is that no notice as required under Section 70 of the Cooperative Societies Act, 1925 has been served on the Registrar Cooperative Societies, Karachi.

3. The fact of the nor service of the notice is not denied by the other side.

4. Mr. Syed Sami Ahmed in support of his submission has placed reliance on the following cases namely (i) Muhammad Ali Memorial Cooperative Housing Society Ltd. Karachi v. Syed Sibtey Hassan Kazmi (P L D 1975 Kar. 428), (ii) Muzaffar Hussain and another v. Yousuf and 4 others (P L D 1976 Karachi 1107), (iii) Farida v. Prince Apartment Cooperative Housing Society-through its President and 3 others 1984 C L C 2914 and (iv) Messrs Sunshine Biscuits Ltd. v. Muhammad Hassan Lodhi and another (P L D 1982 Lahore 189). The above case-law , as cited by Mr. Syed Sami Ahmed supports his submission particularly the case reported in P L D 1976 Karachi 1107 which is applicable on all fours.

5. It has not been disputed that the purchase of the land is an act touching the business of the applicant society in both the suits and so the mandatory provision as contained in Section 70 was necessary. It is, however, contended by M/s. Khalid Habibullah and Salahuddin that the plaints in both the suits were presented on 3-12-1971 against the defendants without impleading defendant No. 7. However an application filed by the Plaintiff in Suit No. 72, defendants Nos. 6 and 7 were added by order dated 13-5-1982. Mr. Khalid Habibuilah, learned counsel submitted that there was no defect in suit originally instituted but since the interest of defendant No. 2 devolved on defendant No. 7 by transfer of land in question through a Registered sale-deed, it became necessary to implead defendant No. 7 as co-defendant and as such there was no necessity for serving a notice under Section 70 on defendant No. 7. Reliance was placed by him on -a decision reported as S.S. Valayudham Pillai v. The Governor-General-in-Council, South, Indian Railways, represented by the General Manager (AIR ( ) Madras 783).

6. Mr. Salahuddin while adopting the arguments of Mr. Khalid Habibullah submitted that in his Suit No. 11 of 1972 defendant No. 7 was impleaded as co-defendant on the application filed by defendant No. 4 and not the plaintiff. The filing of the amended plaint 'by him impleading the said co-defendant was an act in obedience to the Court's order.

7. The question has arisen in these suits is that whether, impleading of a party under Order I, rule 10 C.P.C. amounts to an institution of a suit Mr. Syed Sami Ahmad referred to Section 22 of the Limitation Act 1908 and submitted that it amounts to institution of the suit from the date the party has been impleaded as a plaintiff or a defendant. In support of this submission he placed his reliance on a decision of Hon'ble Supreme Court reported as A. Hayat and others v. Amir (P L D 1982 S C 167) the relevant portion whereof reads as under:

7. Now according to this section (S.22 of Limitation Act 1908), when a new person is substituted or added as a party in a suit already pending, then the suit as regards him shall be deemed to have been instituted only from the point of time when he is so made a party. In other words, for purpose of determining whether the suit qua him is barred by limitation, the time shall be computed as if the suit had been filed by him (if he is a plaintiff), or against him (if he is a defendant), on the date on which he was "so made a party". The word 'so' used here evidently refers to his being made a party by substitution in place of another party or by 'addition' as a new party."

8. In the case relied on by Mr. Habibullah the question arose as to the service of notice under Section 80 CPC on the Government which was made a party to the suit subsequently. It is, however, distinguishable inasmuch as in that case the interest had devolved on the Government by operation of law, whereas in the instant case the interest has devolved on defendant No. 7 by an act of the parties. It is true that defendant No. 7 was impleaded as co-defendant on the application under Order 1 Rule 10 CPC, but it makes little difference, so far as compliance of the mandatory provision of Section 70 of the Cooperative Societies Act is concerned, because the relief has been claimed against all the defendants including the applicant defendant No. 7 which is a cooperative society.

9. I am, therefore, clear in my mind that the suit could not be instituted against defendant No. 7 viz. Pakistan Post Offices Employees Cooperative Housing Society Ltd., unless a prior notice of intimation of the institution of the suit was given to the Registrar, Cooperative A Societies, as required under Section 70 referred to above. I, therefore, strike out the name of the said defendant No. 7 from the plaint. The suit will, however, proceed against the remaining defendants. The applications are disposed of accordingly.

10. Before parting with the case I would like to observe that the plaintiffs or any other defendants in the above suits will be at liberty to take such steps as available to them in law either by filing separate suits against or making an application for joining, M/s. Pakistan Post Offices Employees Cooperative Housing Society Ltd. a party to these suits, if advised after the service and expiry of two months notice to the Registrar, as required under Section 70 of the Cooperative Society Act, 1925.

H.B.T./A-225/K Order Accordingly.

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