Back
2018 Supreme(Kar) 487
IN THE HIGH COURT OF KARNATAKA, KALABURAGI BENCH
B. VEERAPPA, J.
Nazir Ahamad, Abdularazak – Appellant
Vs.
Anwarpashya Sayyadmeera Mujwar – Respondents
RSA NO.7510 of 2010
Decided On : 27-02-2018
For the Appellant :Sri. Umesh V. Mamadapur, Advocate
For the Respondent:Sri. Sanganagouda V. Biradar, Advocate
Headnote:KARNATAKA CO-OPERATIVE SOCIETIES ACT, 1959 [K.A. No. 11/1959] - Section 125 - Notice under - It is mandatory - Suit filed without issuing notice is not maintainable - Plaint to be returned.
CODE OF CIVIL PROCEDURE, 1908 [C.A. No. 5/1908] - Section 100 - Second appeal - Concurrent finding-Suit for permanent injunction restraining defendant from evicting plaintiff without due process of law - Trial Court dismissed the suit - Lower Appellate Court decreed the suit - Defendant alleging plaintiff was put in possession against unregistered mortgage deed against loan borrowed by defendant - Trial Court dismissed the suit as not maintainable under Section 125 of Karnataka Co-operative Societies Act - Appeal against dismissed - Held, 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 of the business of the society, no such suit shall be instituted without issuing notice as mandatory under Section 125 of the 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. Admittedly in the present case, the act of society of its officer related 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, consequestly 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. A suit without notice is not maintainable. Courts below ought to have returned the plaint instead of dismissing the suit Judgement and decree of Courts below were set aside and plaint was directed to be returned to plaintiff.
1. 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 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 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 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 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.
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 ad
