Rajasthan High Court - Jaipur
Deep Darshan Grah Nirman Sahkari Samiti ... vs U.I.T. And Ors. on 9 January, 1997
Equivalent citations: 1997(1)WLC645, 1997(1)WLN336
JUDGMENT Shiv Kumar Sharma, J.
1. This revision concerns the interpretation of provisions contained in Order 7 Rule 11 of the Code of Civil Procedure. More particularly it raises two questions (i) whether Section 143 of the Rajasthan Co-operative Societies Act, 1965 (for short the Act) is merely a part of the adjudicative law and deals with procedure alone? (ii) where requirement of two months notice is attracted, a premature suit is not maintainable and can be dismissed at the out set?
2. The relevant facts of the case are for present purposes to be taken to be these. Plaintiff non-petitioner No. 1 (for short the plaintiff) on August 13, 1996, instituted a suit for declaration and permanent injunction against the defendant petitioner for short the defendant), the Life Insurance Corporation of India (for short LIC) and the State of Rajasthan (for short the State) in the trial court. It was pleaded by the plaintiff that land in question was allotted to the defendant by the State on April 25, 1991. The defendant, after dividing the said land into plots, further allotted it to as many as 64 persons, details of which were given in para 8 and 9 of the plaint. The plaintiff came to know about the allotment on July 29, 1995. It was prayed by the plaintiff that the allotment made by the defendant be declared null and void and defendant and LIC be restrained from proceeding further in respect of the said allotment.
3. The defendant moved an application under Order 7 Rules 11 CPC, in the trial court and urged that the suit be dismissed at the out set as statutory notice required under Section 143 of the Act was not served upon the defendant and the suit was not properly valued. The trial court dismissed the application vide order dated September 23, 1996.
4. Against the said order present action for filing the revision has been resorted to.
5. Before adverting to the submissions of the learned Counsel for the defendant, it is necessary to examine the statutory provisions.
6. Section 143 of the Act provides thus:
No suit shall be instituted against a cooperative 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.
7. A look at Section 80 CPC reveals that a plaintiff intending to institute a suit against the Government, has two options before him, either he may file a suit after serving two months notice or he may file the suit without serving the notice but in that event he must satisfy the court that an urgent and immediate relief is required. In that event of first course being adopted the suit cannot be filed before the expiry of the two months of giving the notice and this explains the reason for using the word "shall" in Sub-section (1) of Section 80 by the Parliament. However, in the second case he has the choice to file the suit without giving the requisite notice but only after obtaining leave of the court and it is for this purpose that the word "may" has been used in Sub-section (2) of Section 80.
8. The principle laid down in Section 143 of the Act is similar to that of Section 80 CPC but this section has not been amended and the plaintiff intending to institute a suit against the Cooperative Society does not have the choice to file the suit without giving the requisite notice and the plaintiff has to file the suit after serving two months notice, as the provisions contained in Section 143 of the Act are mandatory in nature.
9. In the case at hand though the plaintiff did not seek any relief against the state but impleaded it as party in the suit and instituted suit without serving the notice and after obtaining leave of the trial court under Sub-section (2) of Section 80 CPC.
10. Proviso appended to Sub-section (2) of Section 80 CPC provides that the Court if it is satisfied after hearing the parties that no urgent or immediate relief need be granted in the suit shall return the plaint for presentation to it after complying with the requirements of Sub-section (1). In the instant case the trial court has completely overlooked this proviso. Even according to para 18 of the plaint, cause of action arose to the plaintiff on March 1, 1994 and July, 1995 but the suit was filed on August 13, 1996. The learned trial judge granted leave under Sub-section (2) of Section 80 mechanically without going through the facts pleaded in the plaint which ex facie shows that it was not a case of 'urgent or immediate relief. Even after appearance of the parties, it was incumbent upon the trial judge to again have the satisfaction regarding such urgent and immediate relief in accordance with the proviso appended to Sub-section (2) but it was not done.
11. I am of the considered view that suit of the plaintiff was not maintainable in view of the provisions contained in Section 143 of the Act and even if it is held that Section 143 of the Act is amended by implication in view of Sub-section (2) of Section 80 CPC then also in accordance with the proviso appended to subsection (2), the plaint had to be returned for presentation to it after complying with the requirements of Sub-section (1).'
12. Therefore the suit appears from the statement in the plaint to be barred by Section 143 of the Act as well as by proviso appended to Sub-section (2) of Section 80 CPC and it ought to have been rejected under Order 7 Rule 11(d) CPC. In dismissing the application the trial judge has committed jurisdictional error and if the order is allowed to stand it would occasion failure of justice.
13. Consequently I allow the revision and set aside the impugned order. The plaint filed by the plaintiff is rejected under Order 7 Rule 11(d) CPC. No costs.