( 1 ) THE appellant above named, has preferred this First Appeal against the judgment and decree dated 30. 10. 1982 recorded by the learned Civil Judge (SD), Bharuch in Special Civil Suit No. 75/80 under which the learned trial Judge dismissed the suit of the original plaintiff for specific performance of the suit agreement. However, the learned Trial Judge granted a decree in favour of the appellant-original plaintiff for the recovery of Rs. 25,000. 00 with interest at the rate of 9% per annum from 9. 6. 1980. The learned trial Judge further directed that the parties shall bear their own costs in the suit. The appellant-original plaintiff filed the aforesaid suit for specific performance of an agreement to purchase the property mentioned in the judgment impugned before this court. The trial court has dismissed the suit as aforesaid and, therefore, the appellant-original plaintiff has preferred this appeal before this court.

( 2 ) THE respondents above named have taken up a preliminary objection against the maintainability of the suit itself. It has been contended in written objections filed by the respondents that the suit was filed by the appellant-original plaintiff for specific performance in respect of an agricultural land owned and possessed by the respondents. That the suit was filed in the court of learned Civil Judge (SD), Bharuch and the same was dismissed. It is further contended that looking to the plaint itself, it becomes evident that the appellant-plaintiff Society was simply a proposed Coop. Society at the time of filing of the suit and at the time of the agreement to sale. That the appellant-original plaintiff society was not a registered society at relevant point of time. It is further contended that a suit by an unregistered cooperative Society was not maintainable and, therefore, when the suit by an unregistered cooperative society was not maintainable, the appeal would also be not maintainable and, therefore, the appeal may be dismissed on the aforesaid technical legal aspect alone.

( 3 ) COPY of the objection was supplied to the appellant. I have heard the learned Advocates for the parties and have perused the papers on the aforesaid aspects of the case.

( 4 ) LEARNED advocate for the appellant has contended that the aforesaid plea was not taken up by the respondent above named in the written statement filed by them before the trial court when the suit was pending. It is further contended that no such objection was taken when the matter was pending before this court at the admission stage when the appeal was admitted. It is further contended that since no such objection was raised before the trial court, the trial court did not frame issue on this aspect of the case. It is further contended that the aforesaid contention and dispute is pending before the Supreme Court and, therefore, this court may not decide this issue in this matter.

( 5 ) THE facts are not much in dispute. It seems that the aforesaid plea was not raised by the respondents above named before the trial court when they filed written statement. Therefore, no issue was framed by the trial court. It is also not much in dispute that the aforesaid issue does not appear to have been raised when the appeal was admitted. These facts are not seriously in dispute before me. At the same time, the aforesaid aspect of the case is not a question of fact. On the contrary, it is an admitted position and admitted question of fact. The plaintiff has tendered oral evidence of Devidas Patel at Exh. 57 before the trial court and there he has made it clear in the examination-in-chief that he is the Chief Promoter of the proposed Shivalaya Cooperative Housing Society. This means that even when the suit was filed and evidence was adduced, the appellant-original plaintiff was yet not registered as a Cooperative Society. Therefore, the fact that an agreement was entered into by an unregistered Cooperative Society and the fact that the suit was filed b