Karnataka High Court
Nazir Ahmad, Abdularazak Lakshari vs Anwarpashya Sayyadmeera Mujawar Anr on 27 February, 2018
Equivalent citations: 2019 AIR CC 499 (KAG), 2019 (1) AKR 159, (2018) 3 KCCR 1955, (2019) 1 RENTLR 641, (2019) 3 ICC 178
Author: B.Veerappa
Bench: B.Veerappa
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R
IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 27TH DAY OF FEBRUARY, 2018
BEFORE
THE HON'BLE MR. JUSTICE B.VEERAPPA
RSA NO.7510/2010
BETWEEN:
Nazir Ahamad, Abdularazak,
Lakshari, Age: 67 years, Occ: Service,
R/o. Kamankhan Bazar
Behind KSRTC Depot,
Bijapur
... Appellant
(By Sri Umesh V. Mamadapur, Advocate)
AND:
1. Anwarpashya Sayyadmeera Mujwar,
Age: 43 years, Occ: Agriculture,
R/o. Kamankhan Bazar
Behind KSRTC Depot, Bijapur
2. The Manager
Sri. Siddeshwar Co-Op. Bank Ltd.,
Head Office, S.S. Road, Bijapur
... Respondents
(R-1 served, By Sri Sanganagouda V. Biradar, Advocate for
R2;)
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This RSA filed under Section 100 of CPC praying to
allow the appeal and to set aside the judgment and decree
dated 11.01.2008 passed in R.A. No. 199/2006 on the file of
the Prl. Civil Judge (Sr. Dn) Bijapur and set aside the
judgement and decree dated: 22.09.2006 passed in O.S. No.
97/2005 on the file of the Prl. Civil Judge (Jr. Dn) Bijapur
and also allow this appeal thereby decreeing the suit in O.S.
No. 97/2005 file by the appellant seeking decree of
permanent injunction, before the trial court.
This appeal coming on for Admission this day, the
Court delivered the following:
JUDGMENT
The unsuccessful plaintiff has filed the present regular second appeal against the judgment and decree dated 11.01.2008 made in R.A.No.199/2006 on the file of the Principal Civil Judge (Sr.Dn.), Vijayapur dismissing the appeal, confirming the judgment and decree dated 22.09.2006 made in O.S.No.97/2005 on the file of Principal Civil Judge (Jr.Dn.), Vijayapur dismissing the suit with cost of Rs.5,000/- mainly on the ground that the suit filed by the plaintiff was not maintainable in view of the provisions of Section 125 of 3 the Karnataka Cooperative Societies Act, 1959 (for short 'the Act').
2. The present appellant was the plaintiff before the Trial Court filed a suit for permanent injunction restraining the defendants from evicting him from the suit house property bearing CTS No.915/1A2 measuring 117.58 sq. meters of Ward No.V of Vijayapur city without due process of law contending that the first defendant is the owner of the suit property and he was in financial difficulty during the year 2001. Therefore, he approached the plaintiff and requested him to advance loan of Rs.80,000/- to meet the legal necessities. The first defendant offered to let the suit property on rent till the amount is repaid. Accordingly, on 28.06.2001 the plaintiff paid a sum of Rs.80,000/- to the first defendant and later executed the unregistered mortgage deed on the same day and put the plaintiff in possession of the suit property. It was also contended 4 that the first defendant had obtained loan from the second defendant and charge was created in respect of the suit property and the first defendant became defaulter. Hence, the second defendant initiated recovery proceedings by visiting the suit property and threatening the plaintiff to dispossess him from the suit property. Therefore, the plaintiff has filed the suit for the relief sought for.
3. The first defendant remained absent in spite of service of summons and he was placed exparte. The suit was resisted by the second defendant by filing written statement and contended that the suit was not maintainable and the Civil Court has no jurisdiction to entertain the suit and no statutory notice was caused by the plaintiff before filing of the suit. The second defendant has denied that the first defendant had borrowed a sum of Rs.80,000/- from the plaintiff, who 5 in turn executed the mortgage deed etc., and sought for dismissal of the suit.
4. Based on the pleadings, the Trial Court framed the following issues:
1. Whether plaintiff proves his possession over the suit property as on the date of suit?
2. Whether he further proves alleged interference caused by the defendants?
3. Whether 2nd defendant proves suit is not maintainable under the Karnataka Cooperative Societies Act?
4. Whether plaintiff is entitled for relief of permanent injunction as prayed?
5. What order or decree?
5. In order to establish the plaintiff's case, the plaintiff examined himself as PW.1 and other two witnesses were examined as PWs.2 and 3. On the other 6 hand, the second defendant in support of its case examined its General Manager as DW.1 and no documents were marked.
6. The Trial Court considering the entire material on record answered issue Nos.1, 2 and 4 in the negative and issue No.3 in the affirmative holding that the second defendant proved that the suit was not maintainable under the provisions of the Karnataka Cooperative Societies Act,1959. Accordingly, the Trial Court by the judgment and decree dated 22.09.2006 dismissed the suit with cost of Rs.5,000/-.
7. Being aggrieved by the said judgment and decree, the plaintiff filed an appeal in R.A.No.199/2006 before the Principal Civil Judge (Sr.Dn.), Vijayapur who after hearing both the parties by the impugned judgment and decree dated 11.01.2008 has dismissed the appeal.
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8. Being aggrieved by the concurrent findings of fact recorded by the Courts below did not deter the appellant from preferring the present regular second appeal as last ditch attempt.
9. This Court while admitting the present appeal on 27-02-2018 has framed the following substantial questions of law:
1. Were the Courts below justified in dismissing the suit of the plaintiff for want of notice under Section 125 of the Karnataka Cooperative Societies Act, 1959?
2. Were the Courts below ought to have returned the plaint to the plaintiff for non-
compliance of the provisions of Section 125 of the said Act?
10. I have heard the learned counsel for the parties to the lis.
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11. Sri Umesh V. Mamadapur, learned counsel for the appellant contended that the Trial Court has erred in dismissing the suit as not maintainable for want of notice under Section 125 of the Karnataka Co-operative Societies Act. He would further contend that in a suit for permanent injunction, the plaintiff has to prove his possession over the suit property as on the date of filing of the suit. Admittedly, under the mortgage deed - Ex.P2, the recitals of the document clearly depicts the possession was delivered and in pursuance of the said mortgage deed, the revenue entries were also made as per Ex.P1 - RTC extracts of PR card of Sy.No.915/1A2. Therefore, the Trial Court was not justified in dismissing the suit. He would further contend that, both the courts below failed to notice if the plaintiff filed the suit without following procedure as contemplated under section 125 of the Karnataka Co-operative Societies Act, at most the Courts below can return the plaint and cannot dismiss 9 the suit. Therefore, he sought to set aside the impugned Judgment and decree of the Courts below by allowing the present appeal.
12. Per contra, learned counsel Sri.Sanganna V.Biradar appearing for second respondent sought to justify the impugned Judgment and decree and contended that Ex.P.2 though unregistered mortgage deed could not have been marked, even if it is marked the same cannot be looked into in view of the provisions of 59 of the Transfer of Property Act, since the Ex.P.2 was not registered document. He would further contend that, Section 125 of the Karnataka Co-operative Societies Act is mandatory before filing the suit. The plaintiff ought to have issued notice to the second respondent -society and therefore the very suit itself was not maintainable. He would further contend that, both the Courts below have concurrently held that the suit filed by the plaintiff without notice under section 10 125 of the Karnataka Co-operative Societies Act to the second defendant is not maintainable and as such finding of fact, cannot be interfered by this Court under the provisions of 100 of C.P.C. Therefore he sought for dismissal of the second appeal.
13. Having heard the learned counsel for the parties and in view of the substantial question of law framed by this court stated supra, the point for consideration in the present appeal is:
1) Whether section 125 of the Karnataka Co-operative Societies Act, 1959 is attracted to the relief sought for by the plaintiff/appellant in a suit for injunction against the defendants.
14. To understand better, the provisions of section 125 of the Karnataka Co-operative Societies Act, 1959 is extracted as under:
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125: Notice necessary in suits: No suit shall be instituted against the Co-operative society or any of its officers in respect of any act touching 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 claims; and the plaint shall contain a statement that such notice has been so delivered or left.
15. Admittedly in the present case, the plaintiff has sought for permanent injunction restraining the defendants from interfering with his possession of the suit schedule premises raising various contentions, the same is disputed. The provisions of section 125 of the Karnataka Co-operative Societies Act clearly depicts that when in suit, relief is in respect of any act committed by the society where its officer touching constitution, management or the business of the society, no such suit shall be instituted without issuing notice as mandatory under section 125 of the 12 Karnataka Co-operative Societies Act. The word under Section 125 of the Karnataka Co-operative Societies Act described as "shall" therefore issuing notice is mandatory on the part of the plaintiff before filing any suit.
16. Admittedly in the present case, the act of society or its officer relates to recovery of amount of Rs.5,00,000/- with interest. Thus the act complained of relates to the business of the society, since it relates to the recovery of the amount due under the award, consequently it follows that the provisions under section 125 of the Karnataka Co-operative Societies Act are attracted to the relief sought for in the suit.
17. It is well settled that whenever a statute prescribes that a notice shall be issued before the institution of the suit, a suit brought without issuing such notice is bad in law and the court will have no jurisdiction to entertain such suit. A suit without 13 issuing notice to the Government / Authorities not maintainable. What applies to the suit field without issuing notice under section 80 of Code of Civil Procedure will equally apply to the suit instituted without issuing notice under the provisions of Section 125 of Karnataka Co-operative Societies Act, 1959.
18. Admittedly in the present case, a specific issue was raised on the defense taken in the written statement of the second defendant that, whether the second defendant prove that the suit is not maintainable under section 125 of the Karnataka Co-operative Society Act. Both the Courts below concurrently held that the suit filed by the plaintiff for want of notice under section 125 of the Karnataka Co- operative Soceity Act was not maintainable, if that is so, the Courts below ought to have returned the plaint instead of dismissing the suit, because it is still open for the plaintiff to issue notice and to file the suit. The 14 same has not been done in the present case. My view is fortified by the dictum of this Court in the case of (Mahadevaiah V/s Sales Officer) in I.L.R 1990 KAR. 151 wherein it is held as under:
12. Section 125 of the Act specifically provides that when in any suit, the relief is in respect of any act committed by the society or its Officers touching the Constitution, management or the business of the society, no such suit shall be instituted without issuing the notice as required by Section 125 of the Act. In the instant case, the act of the Society and its officers relates to the amount due under the Award. Thus the act complained of relates to the business of the society since it relates to the recovery of the amount due under the award. Consequently it follows that the provisions of Section 125 of the Act are attracted to the reliefs sought for in the suit. In Somwarpet Nad Agricultural Produce Marketing Co-operative Soceity Ltd. Case, what was challenged was the failure on the part of the society in not paying the amount due to the plaintiff. The Court has held that as long as the omission was not illegal, it did not result in an 'act' within the meaning of the Mysore General Clauses Act, therefore, Section 125 of the Act was not attracted.
The relevant portion of the Judgment reads thus: 15
"Section 125 of the Act follows the words of Section 70 of the Bombay Co-operative Societies Act, 1925. Section 70 of the Bombay Act reads thus:
'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, 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.' Section 70 of the Bombay Co-operative Societies Act came up for consideration before this Court in The ANKOLA URBAN CO-OPERATIVE BANK LTD. V/S LAXMI BAI (1959 My.L.J BALWANT VENKATESH POTDAR (1961 Mys.L.J 397) In Ankola Urban Co-operative's case, the question was whether a suit for rent due by notice under Section 70 of the Bombay Co-operative Societies Act. Sri.S.R.Das Gupta, learned Chief Justice held that the non-payment of rent which is an omission connot be said to be an 'act' within the meaning of Section 70 of the Bombay Act and that an omission to constitute an act within the meaning of the Bombay General Clauses Act must amount to any illegal 16 omission and that an act becomes illegal when it is forbidden by law.
The said decision was followed by a Bench of this Court (Hegde and Mir Iqbal Hussain JJ) in the Bank of Citizen's case. In that case, a suit was brought on a mortgage by the Bank of Citizens Ltd., Belgaum against the Belgaum Poineer Urban Co-operative Credit Bank Ltd., had purchased the mortgaged properties subject to the suit mortgage. The contention of the Belgaum Poineer Urban Co-operative Credit Bank Ltd., was that the suit was bad for want of notice under Section 70 of the Bombay Act. Following the earlier decision, the Bench held that no notice was necessary to enforce the mortgage even though one of the defendants was a Co-operative Society.
Sri.A.C. Nanjappa, learned counsel Counsel for the appellant invited out attention to the decision of the Supreme Court in WARNA SAHAKARI SAKKARE KARKHANA LTD. v/s VITHALRAO ANNADRAO DESHMUKH (1969 (1) Unreported decision of S.C. 517 (Civil Appeal No.2687 of 1966 decided on 20-08-1969). In the said decision, the Supreme Court was considering the meaning of the expression touching the business of the society, and it was observed that the word touching is very wide and would include any matter which relates to or concerns the business of the society. The said decision does not deal with the 17 question in issue in the instant case. The decision in Citizen's Bank case is binding on us:
The society was due to the plaintiff the price of the goods sold. The non-payment of the said sale price, which is an omission cannot be said to the an 'act' within the meaning of Section 125 of the Act. An omission of the Mysore General Clauses Act must amount to an illegal omission. Therefore, the suit for recovery of the sale price due from the society is not a suit in respect of an 'act' touching the business of the society. Consequently, it has to be held that no notice under Section 125 of the Act was required preceding the suit. The reasoning of the learned trial Judge for holding that no notice under Section 125 of the Act was necessary however cannot be supported. In his view, notice is necessary only with regard to a dispute or transaction between the society and a member of the Society and it does not apply to a non-member who files a suit for arrears due from a society. That view is wholly erroneous but his conclusion can be supported for the reasons already stated.
Thus it is clear that the decision in Somwarpet Nad Agricultural Produce Marketing Co-operative Society Ltd., is not applicable to the case on hand inasmuch as in this case, it is the positive act of the defendants that has been challenged in the suit. Therefore, it was all the more 18 necessary for the plaintiff to issue a notice as required by Section125 of the Act.
14. The lower Appellate Court having held that the suit should not have been instituted without issuing a notice under section 125 of the Act, it should have simply set aside the Judgment and decree of the lower Appellate Court and directed the return of the plaint instead of dismissing the suit because it is still open to the plaintiff to issue notice and file a suit. Therefore, the lower Appellate Court, to the extent it dismissed the suit is not justified. Accordingly, point No.2 is answered in the affirmative.
19. For the reasons stated above, the first substantial question of law framed in the present second Appeal has to be held in the negative holding that the Courts below were not justified in dismissing the suit for want of notice under section 125 of the Karnataka Co-operative Societies Act and second substantial question of law framed has to be answered in the affirmative holding that the Courts below ought to have returned the plaint.
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20. For the reasons stated above, the regular second appeal is allowed. The impugned Judgment and decree dated: 11th January 2008 made in R.A. No.199/2006 on the file of Prl. Civil Judge (Sr.Dn.) Bijapur confirming the Judgment and decree dated:
22nd September 2006 made in O.S. No.97/2005 on the file of Prl. Civil Judge (Jr.Dn.) Bijapur are set aside and the plaint is directed to be returned to the plaintiff.
Ordered accordingly.
Sd/-
JUDGE Srt /Mws.