Karnataka High Court
The Arogyanagar Co-Operative Housing ... vs Fakiragouda And Anr. on 21 March, 2003
Equivalent citations: ILR2004KAR1445
Author: B. Padmaraj
Bench: B. Padmaraj
ORDER B. Padmaraj, J.
1. Though the matter is listed for Admission, with the consent of both sides, the Revision Petition itself is taken up for final disposal and the same is accordingly disposed of by this Order.
2. Heard the arguments of the learned Counsel for the petitioners as well as the learned Counsel for the Respondents No. 1 and 2 at a considerable length and carefully perused the entire case papers including the judgments of both the Courts below.
3. This Revision Petition by the defendants is directed against an order made by the Lower Appellate Court reversing the Order made by the Trial Court on I.A. No. 1. According to the Trial Court, the suit filed by the Respondent/plaintiffs is bad for non-issue of notice under Section 125 of the Karnataka Co-operative Societies Act and accordingly it ordered for the return of the plaint. The Lower Appellate Court having reversed that Order of the Trial Court, the defendants are in revision before this Court.
4. Learned Counsel for the petitioners while assailing the impugned order made by the Lower Appellate Court has contended that the main relief sought for by the Respondents in their suit filed before the Trial Court against the society was that the Society be restrained from alienating any residential sites formed in the suit land unless and until it fulfills its obligations towards the plaintiffs as per the agreement dated 10.4.1995. He contended that the nature of the relief sought for by the Respondents is touching the business of the society in as much as the business of the Society was to form sites and disburse the same to its members. That being so, notice under Section 125 of the Act was a must and the same having been not issued prior to the suit, the Trial Court was right in ordering for return of plaint, which order of the Trial Court has been unreasonably reversed by the Lower Appellate Court and hence it warrants interference by this Court in revision.
5. In support of his submissions, the learned Counsel for the petitioners has relied upon the decisions (FULL BENCH) AND ILR 2001 KARNATAKA PAGE 3722.
6. As against this, the learned Counsel for the Respondents has vehemently contended before me that the Respondents are not at all the members of the society and the suit filed by them against the defendant society was only to enforce certain contractual rights entered into between the parties. That being so, he contended that Section 125 of the Act has no application. He contended that when the plaintiff are not the members of the society and when they are only enforcing the terms of the agreement entered into between the parties, they can certainly file a suit without issue of notice under Section 125 of the Act. He contended that this aspect of the matter has been rightly appreciated by the Lower Appellate Court and hence the order made by the lower Appellate Court warrants no interference in revision by this Court. In support of his submissions, the learned Counsel for the Respondents has relied upon the decisions , 1971(1) KLJ Short Note item No. 302 and an unreported judgment of this Court in C.R.P.No. 402/2001 dated 7.2.2003.
7. Having heard the submissions of both sides and having carefully perused the decisions relied upon by the learned Counsel on either side, the short question that would arise for consideration in this Revision Petition is "Whether Section 125 of the Karnataka Cooperative Societies Act is attracted to the relief sought for by the Respondent/plaintiffs?"
8. In the instant case, the Respondent/plaintiffs sought for permanent injunction against the defendant/Society restraining it from alienating any residential sites formed in the suit land unless and until it fulfills its obligations towards the plaintiffs as per the agreement dated 10.4.1995, The cause of action for seeking such relief as disclosed in the plaint is 28.11.1997, on which date they came to know of the sale of several plots by the defendant/society to its members. The plaintiffs have further averred in paragraph 4 of their plaint that now that the defendant/ society has developed the land sold to it in all respects as per the layout plan approved by HDUDA, but the defendant/Society without reconveying 29 guntas of developed land or 24 plots of 9 x 12 mts developed sites in favour of the plaintiffs has illegally started allotting sites to its members. The plaintiffs would further proceed to aver that without performing the obligations towards the plaintiffs, the defendant/ society cannot proceed with the allotment of sites to its members. It is in this context, the Respondent/plaintiff have sought for the above said relief of permanent injunction. It is pertinent to note that the relief of permanent injunction is sought for against the defendant/society not to disburse the residential sites formed in the suit property to its members unless of course the defendant/society fulfills its obligations towards the plaintiffs. It is to be seen therefore, that the Respondent/plaintiffs have sought for the relief of permanent injunction in respect of certain positive act intended to be committed by the defendant/society to its members.
9. The defendant/society resisted the suit of the plaintiffs by filing their written statement. One of the contentions that was raised by the defendant/society in their written statement was that the present suit filed by the plaintiffs is not at all maintainable as it is barred by the provisions of Karnataka Co-operative Societies Act. The defendant/ Society has further contended that though the plaintiffs are not the members of the defendant/society, the subject matter of the suit touches the very business of the Co-operative Society. The Trial Court accepted the contention of the defendant/Society and passed the order for return of plaint holding that the suit of the plaintiffs is not maintainable without issue of notice under Section 125 of the Karnataka co-operative Societies Act. Aggrieved, the plaintiffs preferred an appeal before the Lower Appellate Court. In the appeal, the Lower Appellate Court has reversed the Order of the Trial Court.
10. It is not in dispute that no notice as required by Section 125 of the Act was issued. Now the question is "whether the provisions contained in Section 125 of the Act are attracted to the relief prayed for by the Respondent/Plaintiffs in their suit filed against the defendant/ Society?" As I have already indicated, in the instant case, the Respondent/plaintiffs have sought for the relief of a permanent injunction restraining the defendant/society from alienating any residential sites to its members without of course fulfilling the obligations towards the plaintiffs. Looking to the nature of relief, it is very clear that the Respondent/plaintiffs wants to restrain the defendant/society from disbursing the sites to its members. No doubt, the relief has been couched in a very clever manner so as to appear as if the plaintiffs are enforcing the terms of the agreement, but infact, they are only trying to prevent the defendant/society from disbursing the sites formed by it to its members. This being the nature of relief sought for by the plaintiffs in their suit against the defendant/Society, in my view Section 125 of the Act is clearly attracted. Section 125 of the Act prescribes 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 to disburse the site formed by it to its members is sought to be restrained by means of a permanent injunction sought for by the plaintiffs against the defendant/society. Thus the Act which is sought to be restrained is one which relates to the business of the defendant/Society. Since the relief sought for by the plaintiffs against the defendant/Society relates to the business of the Society, it follows that the provisions of Section 125 of the Act are attracted to the nature of the reliefs sought for in the suit against the defendant/Society. In this view of the matter, I find that the Trial Court was right in passing the order of return of plaint for want of notice under Section 125 of the Act and the Lower Appellate Court was not justified in reversing such Order. What I find from the Order of the Lower Appellate Court is that it has not properly appreciated the nature of relief sought for by the Respondent/Plaintiffs in their suit against the defendant/Society. No doubt it was sought to be contended by the learned Counsel appearing for the Respondents that when the plaintiffs are not the members of the Society, they have no obligation for issue of notice under Section 125 of the Act. I find no merit in this contention. Not withstanding the fact whether the plaintiffs are members or not the members of the society, if they are seeking a relief against the society which touches the business of the Society, then the notice under Section 125 of the Act is a must. Hence, I find no merit in any of the contentions urged by the learned Counsel for the Respondents.
11. In the result, therefore, this Revision Petition filed by the Petitioners is allowed. The impugned Order made by the Lower Appellate Court is hereby set aside and the Order made by the Trial Court is restored. No costs.