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Judgment
Heard Sri K.H. Thimmaiah, learned Counsel for the petitioner.
This revision petition is directed against the order dated 29th of February, 1996, whereby the learned IV Additional City Civil Judge, Bangalore, rejected the petitioner''s application for permission to withdraw the suit against first defendant''s society and thereby reserving liberty to file fresh suit on same cause.
The suit was filed defectively, no doubt. The defect in the suit was, that no notice as required under Section 125 of the Karnataka Co-operative Societies Act had been issued prior to filing of the suit.
This is an admitted fact, and as stated in the affidavit. So the applicant wanted that he may be allowed to withdraw the suit with liberty to file the fresh suit. The Court below considered the matter and opined that such a defect could not be said to be formal defect, and really it was a defect of the nature that the suit itself could not be entertained or filed. It further observed, that therefore Order 23, Rule 1(3) of the Code of Civil Procedure (for short, ''CPC'') did not apply, as such a defect is not a formal defect. The Court below, therefore rejected the application and expressed the view that after the plaint is rejected, plaintiff may file a fresh suit. Taking this view, the Court below rejected the application under Section 23, Rule 1(3) of the CPC.
Feeling aggrieved from that judgment and order of the Court below, the plaintiff has come up before this Court by this revision under Section 115 of the CPC.
Sri Thimmaiah submitted, that failure to give notice was a formal defect, it was not a very material defect and it was a formal defect, the Court should have allowed the application for withdrawal of the suit with permission to file the suit a fresh. There cannot be any dispute, so far as the bare proposition of law is concerned, that the jurisdiction under Order 23, Rule 1(3) really applies to the suit formally instituted, where it suffers from some formal defect.
The question is, whether non-giving of notice under Section 125 of the Karnataka Co-operative Societies Act can be said to be a formal defect?
To answer this question it will be necessary to examine the provision of Section 125 of the Karnataka Co-operative Societies Act. It reads 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 a Society until the expiration of two months after notice in writing has been delivered to the Registrar or left at his office, stating the cause of action, the name, description and the place of residence of the plaintiff and the relief which he claims; and the plaint shall contain a statement that such a notice has been so delivered or left".
The language of section itself gives a negative mandate and directs that no suit shall be instituted without giving such a notice, as required under Section 125, and not earlier than expiry of two months period from the date of notice being delivered.
Thus in the matters of suits to be instituted against the Co-operative Societies and Officers, in respect of matters touching the constitution, business or management of a society, section itself, it appears or it may be said prescribes a mode or manner for institution of the suit and the condition-precedent to the institution of the suit, in giving of notice under Section 125. It further provides that plaint shall also contain an averment or statement that such notice has been delivered or left. The first part of the section, definitely very clearly provides that suit is not to be instituted without compliance of the requisite of giving notice and awaiting for two months, soon-after the date of delivery of notice.
It is one of the well-settled principles of law that when the mode of doing certain thing is prescribed, it has to be done in that manner or mode alone, and it means that the suit in such cases to which Section 125 applies cannot be instituted, without and otherwise than after serving or delivering of notice under Section 125 of the Act and thereafter awaiting for two months from the date of delivery of such notice and it is after expiry of two months period of said notice, the suit can be instituted. The effect is, that institution of the suit can be done only after due compliance with Section 125, that is of giving of requisite notice and awaiting for two months.
In the present case the admitted position is that no notice had been given. When the requisite condition has not been fulfilled before the institution of the suit and mandate is, that suit shall not be instituted, it means when a suit is instituted without compliance of the mandatory requirement which means that really the suit was properly not instituted, according to law, as the condition precedent to filing of suit has not be fulfilled. Thus considered defect of non-giving of notice really is fatal to the maintainability of the suit, no doubt in such cases what has to be done has been well-explained by this Court in the case of K.P. Arvind v Government of Karnataka, 1991(3) Kar. L.J. 213 (DB).
The Division Bench of this Court in K.P. Arvind''s case, supra, as mentioned above very clearly lays down the law on the subject, after having followed the earlier decision of their Lordships of the Supreme Court in the case of Gangappa Gurupadappa Gugwad v Rachawwa, AIR 1971 SC 442, already pointed out, as under:
"Plaint did not contain any averment that the notice in writing as required under Section 64 and Section 80 of the CPC had been served upon Bangalore Development Authority and the State Government respectively. Therefore, on the face of it the plaint was barred by Section 64 and Section 80 of the CPC. Hence, the Trial Court ought to have rejected the plaint under Order 7, Rule 11(d) of the CPC. In that event, it would have been open to the plaintiffs to file fresh suit on same cause of action after complying with Section 64 of the Act and Section 80 of the CPC, whereas the Trial Court has dismissed the suit which is not permissible in law".
These observations very clearly indicate that when a suit has not been filed, in accordance with the requirement of Section 125, it could not be said to be validly instituted and when it is not validly instituted suit, Order 23, Rule 1(3) may not apply itself, becasue of non-complying with the essential ingredients for filing the suit. Therefore, Court below rightly held that Order 23, Rule 1(3) could not be applied to the present case and rightly rejected the application. The Trial Court, thereafter, when it was an undisputed fact that notice under Section 125 of the Karnataka Co-operative Societies Act had not been given before the filing of the suit, can order return of plaint under Order 7, Rule 11 of the CPC, then no doubt plaintiff-revision petitioner can file the suit after complying with the requirements of Section 125 of the Act which course is always been open to him, in view of the law laid by the Supreme Court and the Division Bench of this Court.
Subject to the above observations, this revision petition, as such has got no merit, as the Court did not commit any error which may be come to said, to be an error amounting to jurisdictional error coming under Section 115(a), (b) or (c), as such the impugned order does not suffer from error either of jurisdiction or causing injustice or irreparable loss or injury to the revision-petitioner so this Court has no jurisdiction to interfere with the order of the Trial Court.
This revision petition is hereby dismissed subject to the above observations.
I may mention it, had the Court rejected the plaint and returned at that stage, thereafter 3 years time would not have been consumed from 18-3-1996, to date of this order in January 2000. It has only resulted in delaying the whole process. Anyway, the revision petition dismissed subject to the above observation and the revisionist may approach the Court for proper order.