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2013 DIGILAW 774 (MP)

Saphik @ Sahid Khan v. Nandlal Arora

2013-07-09

G.D.Saxena, U.C.Maheshwari

body2013
ORDER Maheshwari, J. 1. The applicants, some of the plaintiffs, have filed this review petition under Order XLVII Rule 1 of CPC for review and recalling the order dated 22.3.2013 passed by the Hon’ble Single Bench of this Court in Civil Revision No.162/2012, whereby allowing the revision of the respondent No.1 the order dated 31.10.2012 passed by the Additional Civil Judge, Class-II, Gwalior in Civil Suit No.53-A/2012 dismissing the application of the respondent No.1 filed under Order VII Rule 11 of CPC for dismissal of suit has been set aside and by allowing the said I.A. suit filed by the applicants and the respondents No.3 to 5 herein with respect of some plot for declaration and perpetual injunction has been dismissed on account of non-compliance of the provisions of section 94 of the M.P. Cooperative Societies Act, 1960 (in short “the Act”). 2. Shri Katare, learned senior advocate, after taking us through the averments of the petition as well as the papers placed on the record alongwith the impugned order passed by the Hon’ble Single Judge argued that the impugned suit was not filed on any of the cause of action which was related to the constitution, management or the business of respondent/society and, therefore, the applicants and the other plaintiffs were not bound to comply the provisions of section 94 of the Act and such mandatory provision was not applicable to the present matter although the suit was filed against the registered Cooperative Society-respondent No. 2. In support of his contention, firstly he referred the provisions of section 94 of the Act and also placed his reliance on a reported decision of this Court in the matter of Rashtriya Adarsh Grih Nirman Sahakari Sanstha Maryadit and Ors. v. Laxmikant Bharwaj, 1992 (2) MPJR, SN 39 and also on the decision of apex Court in the matter of Supreme Cooperative Group Housing Society v. M/s. H.S. Nag and Associates (P) Ltd., AIR 1996 SC 2443 and prayed to set aside the impugned order of the Hon’ble Single Bench by admitting and allowing this Review Petition. 3. Having heard the counsel and keeping in view his arguments, we have carefully gone through the papers placed on the record alongwith the impugned order, so also the aforesaid cited cases. 4. 3. Having heard the counsel and keeping in view his arguments, we have carefully gone through the papers placed on the record alongwith the impugned order, so also the aforesaid cited cases. 4. It is undisputed position between the parties that the impugned suit for declaration and perpetual injunction was filed by the applicants and the respondents No.3 to 5 herein in the trial Court without serving any statutory notice under section 94 of the Act and it is also undisputed position that in the relief clause of the plaint, some prayer is also made against the respondent No.2-registered cooperative society. It is also undisputed position between the parties that the respondent No.2-society is a registered housing society and the allegation is made against such society that it is trespassing on the land of the present applicants and respondents No.3 to 5. Keeping in view such factual matrix of the case in hand, we want to examine the matter in the light of section 94 of the Act, which reads as under:- “94. Notice necessary in suits.- No suit shall be instituted against a society or any of its officers in respect of any act touching the constitution, management or 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 claims, and the plaint shall contain a statement that such notice has been so delivered or left.” 5. In the aforesaid section it is mandatory provision that no suit shall be instituted against a society or any of its officers in respect of any act touching the constitution, management or business of the society until the expiration of two months-next after notice of the aforesaid section delivered to the Registrar or left at his office with the requisite information as per requirement as stated above. In view of the prayer clause if any prayer is made by the applicants / plaintiffs in their suit before the trial Court against the respondent No.2-society, then the society being involved in the housing development for its members, then in any case the applicants / plaintiffs were bound to issue statutory notice as per requirement of section 94 of the Act before filing the suit or in any case such notice should have been left at the office of Registrar of the Cooperative Society and in the lack of such notice, the civil Court was not having authority or jurisdiction to entertain the suit and taking into consideration such aspect if the Hon’ble Single Bench has passed the order, then such order does not appear to be contrary to any law or procedure. In such premises, we have not found any apparent error on the face of record in the impugned order, which requires any interference under the provisions of review enumerated under Order XLVII Rule 1 of CPC. 6. So far the case laws cited on behalf of applicants’ counsel are concerned, the case of Rashtriya Adarsh Grih Nirman Sahakari Sanstha Maryadit and Ors. (supra) was decided taking into consideration that the real dispute was between the two private parties and the society was joined as a party to the suit only incidently because of its being a original owner, under which the two contesting parties were claiming relief and in such premises, it was held that the notice of section 94 of the Act was not necessary to the society to file such type of suit, but in the case at hand the prayer against the society is also made by the applicants and the other plaintiffs, so such citation being distinguishable on facts is not helping to the applicants. So far the other case law is concerned, that is related to some contract matter between the society and its contractor and such matter was covered under the definition of dispute defined under section 64 of the Act and in such circumstances such citation is also not helping to the applicants in the present matter. 7. In view of the aforesaid, we have not found any merits in this Review Petition. Consequently, the same deserves to be and is hereby dismissed at the stage of motion hearing.