-1 - R IN THE HIGH COURT OF KARNATAKA AT DHARWAD DATED THIS THE5H DAY OF OCTOBER, 2023 BEFORE THE HON’BLE MR. JUSTICE SACHIN SHANKAR MAGADUM W.P NO.104393 OF2023BETWEEN: RAJEEV GANDHI GRUHA NIRMANA SAHAKARI SANGHA REPRESENTED BY ITS PRESIDENT BY NAME SRI. ABHIMANYU S/O NEELAPPA MADIWALAR AGE:
65. YEARS OCC: BUSINESS R/O: BASAMMA BUILDING BEHIND BVB BOYS HOSTEL VIDYANAGAR HUBBALLI - 25 …PETITIONER (BY SRI.V.M.SHEELAVANT, SRI.M.L.VANTI AND SRI.R.L.SHEELAVANT, ADVOCATES) AND: SMT.SULOCHANA W/O GANAPATI PAVUSKAR (PAVANNAVAR) AGE:
70. YEARS OCC: HOUSE HOLD R/O: MIG NO.133 NAVANAGAR HUBBALLI - 25 …RESPONDENT (BY SRI.SHIVASAI M.PATIL, ADVOCATE) THIS WRIT PETITION IS FILED UNDER ARTICLES226AND227OF THE CONSTITUTION OF INDIA PRAYING TO ISSUE A WRIT IN THE NATURE OF CERTIORARI OR ANY OTHER -2 - APPROPRIATE WRIT, ORDER
OR DIRECTION AND QUASH THE ORDER
DATED1703.2023 PASSED BY THE III ADDITIONAL CIVIL JUDGE AND JMFC, HUBBALLI IN O.S.NO.273/2020 ON I.A.NO.5 PRODUCED AT ANNEXURE-F IN THE INTEREST OF JUSTICE AND EQUITY. THIS PETITION HAVING BEEN HEARD AND RESERVED FOR ORDER
S ON2609.2023, COMING ON FOR PRONOUNCEMENT OF ORDER
S THIS DAY, THE COURT MADE THE FOLLOWING: [ ORDER
The captioned petition is filed by the plaintiff assailing the order of the learned Judge passed on I.A.No.V filed under Order VII Rule 11(d) read with Order VIII Rule 6(c) read with Section 151 of CPC to reject the counter claim filed by the defendant.
2. The facts leading to the case are as under: Petitioner/plaintiff has instituted a suit in O.S.No.273/2020 seeking the relief of declaration of cancellation of registered lease-cum-sale deed dated 31.7.1993. The respondent/defendant on receipt of summons has filed written statement and has also set up a -3 - counter claim seeking an injunction not to interfere with defendant’s peaceful possession and also sought for a direction to direct the plaintiff-society to execute a registered sale deed.
3. The plaintiff having filed rejoinder to the counter claim has filed the present application in I.A.No.V seeking rejection of the counter claim on the ground that counter claim is not maintainable for want of statutory notice under Section 125 of Karnataka Co-Operative Societies Act, 1959(for short “the Act, 1959”. The learned Judge on examining the rival contentions was not inclined to accede to the objections raised by the plaintiff in regard to maintainability of counter claim for want of notice under Section 125 of the Act, 1959. The learned Judge while rejecting the application has held that since the plaintiff has filed the suit seeking cancelation of lease-cum-sale deed, there is no need to issue fresh notice.
4. Heard the learned counsel appearing for the petitioner and the learned counsel for the respondent.-.4 - Perused the prayer sought in the plaint as well as in the counter claim. I have also examined the order under challenge.
5. Before I advert to the facts, it would be necessary to examine the relief sought in the plaint by the plaintiff-Society and the counter claim set up by defendant. The prayer sought in the counter claim by the plaintiff’s Society reads as under: “1. That, the Opponent Society be directed not to interfere in peaceful possession and enjoyment of the described suit property.
2. That, the Opponent may kindly be directed to execute the registered regular sale deed in the name of the Defendant/Counter claimant in respect of the suit property.
3. The cost of the suit may kindly be awarded.
4. That, such other and further reliefs as deemed fit in the circumstances of the case be granted to the Defendant/Counter claimant, in the interest of justice and equity.” -5 - 6. Section 125 of Karnataka Co-Operative Societies Act is culled out as under: “125. Notice necessary in suits.- No suit shall be instituted against a co-operative 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. On reading Section 125 of the Act, 1959 the said section clearly imposes an embargo in instituting a suit against a co-operative society or its officers in respect of any act touching the constitution, management or the business of the society until expiry of two months of notice addressed to a jurisdictional Registrar.
8. Section 125 of the Act, 1959 is akin to Section 80 of CPC. On reading Section 125 of the Act, 1959 it becomes obvious that same is enacted as a measure of -6 - public policy with the object of ensuring that before a suit is instituted against a Co-Operative Society, the jurisdictional Registrar should be afforded an opportunity to scrutinize the claim in respect of which the suit is proposed to be filed. The intent of Section 125 of the Act, 1959 is to enable the concerned authority to take immediate action and thereby avoid unnecessary litigation and save public time and money.
9. In the present case on hand, it is the Society which has filed a comprehensive suit seeking cancellation of registered lease-cum-sale deed dated 31.7.1993 executed by the plaintiff’s society in favour of defendant. Defendant as a counter is seeking enforcement of registered lease-cum-sale deed and has sought a direction against the plaintiff’s society to execute a registered sale deed. If plaintiff has already approached the competent Civil Court seeking comprehensive reliefs, this Court is of the view that a statutory requirement under Section 125 of the Act, 1959 mandating a two months’ prior notice has no application to the counter claims if the matter is seized -7 - before a competent civil Court at the instance of the Society. The Registrar even otherwise has no jurisdiction to adjudicate the claim of defendant nor he has any authority to call upon the plaintiff’s society to execute a registered sale deed. The fact that the plaintiff’s society has approached the civil Court presupposes and indicates that the claim of defendant is seriously disputed and the rights emanating through the registered lease-cum-sale deed are denied by plaintiff’s society. Therefore, statutory requirement under Section 125 of the Act, 1959 has no application to counter claims.
10. Section 125 of the Act, 1959 provides regulation and machinery by means of which the Courts may do justice between the parties. It is therefore, merely a part of adjective law and deals with procedure alone and must be interpreted in a manner so as to subserve and advance the cause of justice rather than to defeat it. Therefore, the terms of notice contemplated under Section 125 of the Act, 1959 should not be scrutinized in a pedantic manner or in a manner completely divorced from -8 - common sense. As was stated by Pollock, C.B., in Jones .vs. Nicholls1, “we must import a little commonsense into notices of this kind.” Beaumont, C.J., also observed in Chandu Lal Vadilal .vs. Government of Bombay2“one must construe Section 80 with some regard to common-sense and to the object with which it appears to have been passed.
11. The next question that needs consideration at the hands of this Court is as to whether the plaintiff’s society having approached the competent civil Court can insist of statutory notice on the counter claim set up by the defendant. My answer is emphatically “No”. It is difficult to see any logical basis for plaintiff’s society to insist a two months’ prior notice to the Registrar having instituted a suit against the defendant. Therefore, plaintiff’s society has no right to seek rejection of counter claim for want of notice under Section 125 of the Act,1959. This ground of attack is not available to the plaintiff’s society. The plea of want of notice is available to 1 (1844) 13 M & W361= 153 ER1492 AIR1943BOM138-9 - the authority and in the present case on hand, the Registrar is the competitive authority under Section 125 of the Act, 1959. The requirement of Section 80 of CPC as well as 125 of the Act, 1959 of giving notice is express and explicit, mandatory and admits of no implications or exceptions. However, these statutory notices have to be construed with some regard to commonsense and to the object with which it appears to have been passed. Our laws of procedure are based on the principle that “as far as possible, no proceedings in the Court of law should be allowed to be defeated on mere technicalities
12. Considering the object of such enactment, a Society registered under the provisions of the Act, 1959 having instituted a suit against the defendant seeking cancellation of the registered lease- cum-sale deed is not entitled to raise the plea of want of notice under Section 125 of the Act, 1959.-.1 0 - 13. For the reasons stated supra, I proceed the following: ORDER
The writ petition is dismissed. Sd/- JUDGE *alb/-.