JUDGMENT Hon’ble Y.K. Sangal, J.—The instant revision petition has been filed by the defendant of original suit No. 660 of 2009, M/S Dubey Lands and Finance Limited v. Rishi Vashistha Sahakari Avas Samiti to set aside the order dated 21.08.2009 passed by the Civil Judge, Senior Division Lucknow. Plaintiff/respondent in his appearance and filed counter-affidavit. Rejoinder affidavit was also filed. 2. Heard learned counsel for the parties and perused the record. 3. Suit was filed by the plaintiff- respondent against the defendantrevisionist for issuing permanent injunction. Application under Order 39 Rule 1 & 2 and Section 151, C.P.C. was also moved. Against the application, objections were filed by the defendant-revisionist. A separate application in trial Court (Copy annexure No. 5 of the affidavit in revision petition) was also moved to dismiss the suit of the plaintiff. No objection and reply was filed in writing on this application on behalf of the plaintiff. 4. In objection against the application under Order 39 Rule 1 & 2 and Section 151, C.P.C., in trial Court in latter part of paragraph 12 of the annexed affidavit (copy filed) ,it was pleaded that the suit is not maintainable for want of notice under Section 117 of the U.P. Cooperative House Societies Act 1965 (hereinafter referred to as the ‘Act’). Learned counsel for the defendant/revisionist argued that this objection was neither considered nor any decision was taken by the trial Court . Section 117 reads as follows : “117. Notice necessary in suits.—No suit shall be instituted against a co-operative society or any of its officers in respect of any act relating to the constitution, management or 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 claim; and the plaint shall contain a statement that such notice has been so delivered or left.” 5. Learned counsel for the defendant/revisionist referred case (1996) 3 U.P.L.B.E.C. 1766 , Shripal and others v. Utter Pradesh Rajya Sahakari Vikash Bank. In paragraph 29 of this ruling another case was referred AIR 1984 SC 1043 , Bihari Chaudhari and others v. State of Bihar and others where it was held that absence of notice under Section 80, C.P.C., the suit will fail. In paragraph 29 of this ruling another case was referred AIR 1984 SC 1043 , Bihari Chaudhari and others v. State of Bihar and others where it was held that absence of notice under Section 80, C.P.C., the suit will fail. The Hon’ble Judge in Shripal case held that Section 117 of the Act is in the same terms as Section 80, C.P.C. In another case AIR 1961 AP 488 , the Court held that it was duty of the Court to scrutinize the aspect of the notice which was not sent before filing the suit which was pre-requisite to the institution of the suit. It was further laid down that when it is discovered that there was non-compliance of the mandatory provisions enacted under Section 80, C.P.C., with regard to the notice to be issued. Order of rejecting the plaint under Order 7 Rule 11, C.P.C., can be passed. It is said that this legal position was not even considered by the trial Court, clear form the impugned order. 6. Other point raised on behalf of the defendant-revisionist before the trial Court through an application (copy annexure 5 of the revision petition’s affidavit) where it was pleaded that the defendant is a cooperative housing society, registered under the provisions of the Act and the rules framed thereunder and the plaintiff himself has pleaded an agreement between the parties to the suit dated 29.11.1988 (copy of the same is also annexed with the the revision petition). This agreement relates to the business of the defendant Samiti which also shows that the plaintiff was working as an general agent of the defendant Samiti and the present suit has been filed respect of the dispute arising out of the said agreement. As the suit involved the dispute arising of the aforesaid agreement dated 29.12.1988 which pertains to the business of the defendant Samiti and the dispute relates to the business of the cooperative society, under Section 70/111 of the Act, there is provision for compulsory arbitration for settlement of the dispute relating to business of the society, so matter was to be referred to the Registrar and no Court shall have jurisdiction to entertain any suit or other proceedings in respect of any such dispute. It was further said that Section 70 of the act creates specific bar of the jurisdiction of a civil Court to entertain of suit involving a dispute which falls within the ambit of the Section 70 of the Act, hence the suit of the plaint is not maintainable. 7. On this point, the trial Court held that the suit is not between the member of the society on the one hand and the society on the other hand, so bar under Section 70/111 of the Act will not apply. Learned counsel for the defendant-revisionist argued that it may not be a dispute between the member of society on the one hand and the society on the other hand but it was a case of dispute between the society on the one hand and agent of the society on the other hand which is covered under Sections 70/111 of the Act and this aspect of the case was not considered by the trial Court. 8. From the perusal of the plaint, copy available on this file, it reveals as argued that plaintiff himself has based his case on the agreement dated 29.10.1988 said it was executed between the parties and as per case in paragraph 13 & 14 of the plaint, defendant has threatened to the plaintiff that it will sell the entire remaining property itself without giving any detail or taking an approval and sanctioned from the plaintiff which was being taken earlier in accordance with the agreement and there was threatening also that no development work shall be permitted to the plaintiff, although as per the agreement, plaintiff was entitled to do development on behalf of the defendant. It is said this act of the defendant was absolutely illegal and in breach of the terms and conditions agreed by virtue of the agreement mentioned above. As per paragraph 15 of the plaint, the cause of action to file the suit said has been accrued on 17.1.2008 when the sale-deeds were executed by the defendant in favour of the vendees without taking a prior approval and sanction of the plaintiff and when the defendant refused to give the detail of the transaction made by it with the vendees contrary to the agreement and also refused to take development work from the plaintiff. Learned counsel for the defendant-revisionist argued that case of agency, nowhere denied by the plaintiff in the trial Court. Nowhere it is said that he was not working as an agent of the defendant. Even in counter-affidavit in the revision petition, nowhere it is said that he is not the agent of the defendant. Through the counter-affidavit in the revision, plaintiff had tried to show that it was a disputed question of fact whether the plaintiff was agent of the defendant or not. From the perusal of the impugned order, it is clear that nowhere the trial Court has taken this question as disputed question of the fact and nowhere said that it requires evidence of the parties for decision. Learned counsel for the revisionist /defendant argued that plaint itself shows that there was a dispute between the parties in relation to the business of defendant in between the defendant’s society on the one hand and its agent plaintiff on the other hand and under Section 70/111 of the Act, it was to be referred to Registrar and the suit was not maintainable. Sections 70 and 111 of the Act reads as follows : “70. Disputes which may be referred to arbitration.—(1) Notwithstanding anything contained in any law for the time being in force, if any dispute relating to the constitution, management of the business of a co-operative society other than a dispute regarding disciplinary action taken against a paid servant of a society arises— (a)............................ (b)............................ (c) between the society or its committee and any past committee, any officer, agent or employee or any past officer, past agent or past employee or the nominee, heir or legal representative of any deceased officer, deceased agent, or deceased employee of the society; or (d)..................... such dispute shall be referred to the Registrar for action in accordance with the provisions of this Act and the rules and no Court shall have jurisdiction to entertain any suit or other proceeding in respect of any such dispute. [provided that a dispute relating to an election under the provisions of this Act or rules made thereunder shall not be referred to the Registrar until after the declaration of the result of such election.] (2).................................................................... (3).................................................................... “111. Bar of jurisdiction of Court.—Save as expressly provided in this Act, no civil or revenue Court shall have any jurisdiction in respect of— (a).................................................... (b).................................................... (3).................................................................... “111. Bar of jurisdiction of Court.—Save as expressly provided in this Act, no civil or revenue Court shall have any jurisdiction in respect of— (a).................................................... (b).................................................... (c) Any dispute required under Section 70 to be referred to the Registrar; and (d) any other order or award made under this Act.” 9. Learned counsel for the plaintiff-respondent argued that this application annexure 5 cannot be treated as application under Section 7 Rule 11, C.P.C., why this application cannot be treated under Order 7 Rule 11, C.P.C., it is nowhere explained on his behalf. Another argument was raised that the impugned order passed by the trial Court is an interlocutory order and no revision lies against it. Neither the dispute of sending notice was taken into consideration by the trial Court nor the matter was decided by the trial Court regarding dispute shown in the application annexure -5 of the revision petition. By the impugned order dated 21.8.2009, the trial Court has finally decided the objections raised on behalf of the defendant/revisionist regarding the maintainability of the suit holding that in the present case, the jurisdiction of the civil Court is not barred under Section 70 or 111 of the Act. If it would have been decided otherwise, the suit would have been dismissed. Both the questions raised on behalf the defendant-revisionist goes to the root of the matter. In case (2006) 7 SCC 452 , Vidyodiya Trust and others v. Mohan Prasad, the apex Court held that order passed by the District Judge on preliminary issue that suit under Section 92, C.P.C., filed by the respondent was maintainable, revision filed by the appellant there against before the Court rightly held maintainable since if the suit is held to be not maintainable, that would have the result of the final disposal of the suit. 10. Learned counsel for the defendant/revisionist argued that the trial Court had decided the issues in a casual way and requires reconsideration by the trial Court. What was the actual dispute between the parties, it was not considered by the trial Court. This argument of the learned counsel for the petitioner cannot be said without force. 11. Learned counsel for the plaintiff/respondent argued that written statement has not been filed and only to delay in the matter, this application (Annexure No. 5) has been moved. What was the actual dispute between the parties, it was not considered by the trial Court. This argument of the learned counsel for the petitioner cannot be said without force. 11. Learned counsel for the plaintiff/respondent argued that written statement has not been filed and only to delay in the matter, this application (Annexure No. 5) has been moved. Learned counsel for the defendant-revisionist argued that application was to challenge the maintainability of the suit under Order 7 Rule 11 (d), C.P.C., and on such application without filing the written statement, it can be seen by the Court whether the plaint filed was to be rejected or not. Under Order 14 Rule 1, 2 and 3, C.P.C., there are two types of issues. Issue of the law and issue of the facts. Issue of law can be taken as preliminary issue and such issue can be framed on the basis of the arguments raised by the counsel for the parties or raised by any person on behalf of the parties. Both these disputes raised on behalf of the defendant-revisionist relate to the jurisdiction of the Court and also maintainability of the suit in the civil Court. 12. From the above all discussions, it is clear that the trial Court has not considered the actual dispute between the parties. Important matter about the maintainability of the suit without service of notice under Section 117 of the Act was even not considered, hence the matter requires reconsideration by the trial Court. It is made clear that this Court has not given finding on both these disputes. The trial Court will be free to decide the matter without being prejudiced itself. Trial Court will also take into consideration the arguments raised by the counsel for the plaintiff that exclusion of jurisdiction of the civil Court has to be considered strictly. 13. Accordingly, the revision is hereby allowed. Order passed by the trial Court is set aside and the matter is sent back to the trial Court for deciding both the disputes raised on behalf of the defendant revisionist. 14. As matter is said of urgent nature, an application under Order 39 Rule 1 & 2 and Section 151, C.P.C., also pending, the trial Court will decide both these disputes expeditiously, if possible, within one month from the date when certified copy of this order/judgment is placed before the Court. 14. As matter is said of urgent nature, an application under Order 39 Rule 1 & 2 and Section 151, C.P.C., also pending, the trial Court will decide both these disputes expeditiously, if possible, within one month from the date when certified copy of this order/judgment is placed before the Court. No unnecessary adjournment shall be allowed to either party. 15. Certified copy of this order be supplied to parties counsel within three days on payment of usual charges. ————