P. B. MAJMUDAR, J.

( 1 ) BY filing this Revision Application under Sec. 115 of the Civil Procedure Code, original defendant No. 2 has challenged the order passed by the 2nd Joint Civil Judge (Senior Division), Vadodara below Exh. 26 in Regular Civil Suit No. 160 of 1997.

( 2 ) THE respondent herein is the original plaintiff of the aforesaid suit. The said suit was filed for a declaration and injunction on the ground that an agreement was entered into between the plaintiff, who was doing advertising business, and original defendant No. 2 (the petitioner herein) to allot some place for placing the advertisement hoardings in the premise of defendant No. 2 for which, according to the plaintiff, a considerable amount was also paid. According to the plaintiff, in spite of the fact that the agreement was executed between them, defendant. No. 2 is not allowing the plaintiff to place such hoarding. Plaint of the suit is annexed with this revision application at page 1. In the prayer clause of the plaint, the plaintiff has sought for declaration and injunction. A declaration is sought for in the suit to the effect that defendant has no right to remove or damage the hoarding or board displayed by the plaintiff at the site and permanent injunction to that effect is also sought for. In the said suit, an injunction was sought to the effect that defendant No. 2-Society be restrained from removing the hoardings placed by the plaintiff.

( 3 ) IN the aforesaid suit, an application Exh. 26 was filed by defendant No. 2-Society, on the ground that defendant No. 2 being a Co-operative Society, the suit against it is not maintainable as it has been instituted without giving a statutory notice as required by Sec. 167 of the Gujarat Co-operative Societies act, 1961 (hereinafter referred to as the Act ). It was also prayed in the application that the plaint may be rejected under Order 7, Rule ll (a) (d) of the civil Procedure Code. It was also averred in the application that the suit is not maintainable as per the provisions of Sec. 58 of the Contract Act. It was, therefore, prayed that the plaint is required to be rejected on the aforesaid grounds.

( 4 ) THE learned trial Judge, by her impugned order dated 10-9-1997, came to the conclusion that the plaintiff being a third party, is not required to serve any notice under Sec. 167 of the Act before institution of such suit. The observations of the learned trial Judge in this connection are as under :"going through the facts of this case, Exh. 1 reply of the defendant and also the documents produced by both of the parties, in this case, the plaintiff is a dash Publicity-Proprietor Nanubhai R. Shah and the defendant is Sterling Centre co-operative Society Limited. As per the facts of this case, the plaintiff is a third party and is not a member of the Sterling Centre Co-operative Housing society and the contract is between the plaintiff and defendant Sterling Co-operetive housing Society, and the plaintiff is a third party and he has nothing to do with the internal business of the Co-operative Society Act, the dispute which is mentioned in the plaint does not come within the purview of Sec. 97 of the co-operative Societies Act, 1961 which should be referred to the Registrar under sec. 96 of the Gujarat Co-operative Societies Act, 1961. Therefore, in my opinion mandatory notice under Sec. 167 of the Gujarat Co-operative Societies Act, 1961 is not necessary to be given to the Registrar in this case because the plaintiff of this case is a third party and he has filed this suit against the defendant co-operative Society. Further, Sec. 166 is also not applicable in this case, therefore, the application of the defendant No. 2 which he has filed under Order 7, Rule 11 (a) (d) is liable to be dismissed with costs. "

( 5 ) HEARD learned Advocate appearing in the matter and perused the order. In my view, the learned trial Judge has exhibited total non-application of mind while passing the impugned order. So far as

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