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Madhya Pradesh High Court · body

2010 DIGILAW 709 (MP)

Parivahan Nigam Karmachari Griha Nirman Sahkari Sanstha Maryadit, Indore v. Navjyoti Grih Nirman Sahkari Sanstha Maryadit

2010-07-16

S.K.SETH

body2010
ORDER 1. Applicant and the respondent both are registered cooperative societies. It seems, their main object is to develop residential plots and allot them to their respective members. Both Societies are governed by the provisions of M.P. Cooperative Societies Act, 1960 (hereinafter referred to as "the Act" for short). 2. Respondent herein has filed a civil suit for permanent injunction against the applicant. The subject matter of the civil suit is Survey No. 525 situated at village sirpur, Tehsil and District Indore. It was alleged in the plaint that the applicant society is trying to encroach upon the land of the respondent society. 3. The applicant society has filed its written statement. One of the objection taken in the written statement is about maintainability of the suit on account of omission to serve a prior notice u/s. 94 of the Act. On the basis of pleadings, trial Court framed issues and on 5.4.2007, an additional issue was framed on the point of maintainability of the suit for want of notice u/s. 94 of the Act. 4. Learned trial Judge by order dated 17.4.2007 held that the bar contained in section 94 is not attracted looking to the nature of the suit. Said order was challenged before this Court in Civil Revision No. 122/2007. Said revision was decided on 18.9.2007 directing the trial judge to take a fresh decision on the said additional issue either as a preliminary issue or along-with other issues. 5. After the aforesaid order was passed by this Court, learned trial Judge by order dated 11.4.2008 held that the additional issue i.e. issue No.7 is a preliminary issue and after hearing the parties on the said issue, negatived the contention of the applicant by the order impugned and held that the suit was maintainable even without the notice u/s. 94 of the Act. Hence, this revision. 6. Heard Shri Pawecha and Shri Sethi, learned senior counsel appearing for the parties at length. 7. According to Shri Pawecha, learned senior counsel appearing for the applicant, on a plain reading of section 94, it is clear that the said section is in two parts. The first part deals with the suit against a society and the second part deals with the suit against an officer of the society. 7. According to Shri Pawecha, learned senior counsel appearing for the applicant, on a plain reading of section 94, it is clear that the said section is in two parts. The first part deals with the suit against a society and the second part deals with the suit against an officer of the society. He submitted that irrespective of the nature of the suit, no suit is maintainable against a society without notice in writing to the Registrar disclosing the cause of action and other details as mentioned in the section itself. He submitted that section 94 of the Act is pari matria with section 80 of the Civil Procedure Code. He invited my attention to the decision of Supreme Court in the matter of Amalgamated Electricity Company v. Ajmer Municipality: AIR 1969 SC 227 . His second limb of argument is that the rule of last antecedent would apply while interpreting section 94 of the Act. According to him, the words "in respect of any not touching the constitution, management or business of the society" are applicable only to the officers of the society and not to the society. 8. On the other hand, Shri Sethi, learned senior counsel appearing for the respondent, submitted that if the suit is not in relation to any act touching constitution, management or business of the suit, then no notice is required u/s. 94 of the Act and the suit cannot be thrown out on this ground. In support of his contention, he invited my attention to the Full Bench decision of Karnataka High Court in the matter of Krishi Mattu Ksheera Utpadaka Vividhoddesha Sahakari Sangh v. Sohanlal : AIR 1993 Karnataka 20. 9. After having given considerable thought to the matter, I find that there is force in the submission of Shri Pawecha. In the case of Amalgamated Electricity Co. (supra), one of the points of consideration before their Lordships was - whether a suit against municipal committee without notice u/s. 233 of the Ajmer Merwara Municipality Regulation, 1925 was maintainable. Section 233 was reproduced in the judgment, which reads as under: "Section 233. In the case of Amalgamated Electricity Co. (supra), one of the points of consideration before their Lordships was - whether a suit against municipal committee without notice u/s. 233 of the Ajmer Merwara Municipality Regulation, 1925 was maintainable. Section 233 was reproduced in the judgment, which reads as under: "Section 233. -- Suits against Committee or its officers -- No suit shall be instituted against a Committee, or against any member, officer or servant of a Committee, in respect of any act purporting to be done in its or his officials capacity, until the expiration of one month next after notice in writing has been, in the case of a committee, delivered or left at its office, and in the case of an officer or servant, delivered to him or left at his office or place of abode, stating the cause of action and that name and place of abode of the intending plaintiff, and unless the plaint contains a statement that such notice has been so delivered or left; Provided that nothing in this section shall apply to any suit instituted under S. 54 of the Specific Relief Act, 1877 (1 of 1877)". Their Lordships compared section 233 with section 80 of Civil Procedure Code and observed in para 7 as under: "So far as suits against Governments are concerned, they cannot be validly instituted without giving a notice as required by section 80, Civil Procedure Code. But when we come to suits against public officers, section 80, Civil Procedure Code applies only to suits in respect of any 'act' purporting to be done by a public officer and that in his officials capacity. Hence before section 80 can be relied on in any suit against a public officer, it must be shown that it is a suit in respect of an 'act' purporting to be done by him in his officials capacity. In view of the provisions of the General Clauses Act, the expression 'act' also includes illegal omissions. Therefore, if the suit does not relate to any 'act' or 'illegal omission' purporting to be done by a public officer in his official capacity, section 80 will not have any application. Similar is the position under section 233 of the Ajmer Merwara Municipalities Regulation." 10. No doubt, society is a juristic person, but inanimate and having no life and soul of its own. Similar is the position under section 233 of the Ajmer Merwara Municipalities Regulation." 10. No doubt, society is a juristic person, but inanimate and having no life and soul of its own. Affairs of a cooperative society are always conducted through its office-bearers. Thus, it is clear that any suit touching the constitution, management or business of the society, may be in relation to an act of the office-bearers of the society. The rule of last antecedent also-lays down this. It is a well known rule of grammatical construction of the sentence. G.P. Singh, Former Chief Justice of this Court, in his famous book "Principles of Statutory Interpretation" (Eighth Edition, 2001) has observed as under: "As a corollary to the rule that phrases and sentences in a statute are interpreted according to the grammatical meaning, relative and qualifying words, phrases and clauses are applied to the antecedent immediately preceding. The rule is, however, subordinate to context and may be better stated by saying that a qualifying phrase ought to be referred to the next antecedent which will make sense with the context and to which the context appears properly to relate it." 11. In view of the foregoing discussion, the reliance placed on the Full Bench decision of Karnataka High Court in (supra) seems to me to be misplaced in view of the decision of the Supreme Court in Analgamated Electricity Co. (supra). Thus, I find that while passing the order impugned, learned trial Judge committed a jurisdictional error, which cannot be sustained. As a result, revision is allowed and the order impugned is hereby set aside. The trial Court is hereby directed to proceed, in the matter in accordance with law. However, there shall be no order as to costs.