- (1.) Heard Shri Kshitij Shailendra, learned counsel for the defendant-revisionist. Though notices were issued to the sole opposite party by registered post fixing 4 July 2019 and the office has reported that the notice was delivered, however, no one has appeared on behalf of the sole opposite party and neither any counter affidavit has been filed.
(2.) The defendant-revisionist is a Co-operative Society registered under the provisions of the U.P. Co-operative Societies Act, 19651. A suit bearing Original Suit No.779 of 2014 was filed by the plaintiff-opposite party seeking relief, inter alia, of a decree of mandatory injunction restraining the defendant-revisionist from interfering in his possession over the property in dispute. In the aforesaid suit, issue nos.7, 8 and 9 were framed, which were decided against the defendant-revisionist by means of the order dated 7 March 2019 passed by the Additional Civil Judge (Senior Division)/Judge, Small Causes Court, Moradabad, which order is under challenge in this revision. The issue nos.7, 8 and 9 were respectively to the following effect :- "(a) whether the plaintiff's suit is not maintainable under the provisions of Section 70 of the U.P. Co-operative Societies Act, 1965?; (b) whether the suit is not maintainable in view of the provisions of Section 9 of the Code of Civil Procedure? ; and (c) whether the plaint is liable to be rejected under the provisions of Order 7 Rule 11 of the CPC?" The court below considered the provisions of Section 70 of the Act of 1965 and held that since the provisions of Section 70 do not bar a suit for injunction, the suit aforesaid would be maintainable and the aforesaid issues were answered in favour of the plaintiff-opposite party and against the defendant-revisionist.
(3.) In the plaint, a copy of which has been enclosed as Annexure-1 to the affidavit, it is admitted by the plaintiff-opposite party that he is a member of the Co-operative Society (defendant-revisionist) which had allotted the plaintiff-opposite party Plot No.60 in the Mukarrabpur Ehatmali Scheme of the revisionist. It was alleged in the plaint that some unknown people were approaching the plaintiff on behalf of the respondent for purpose of illegally taking possession of the suit property and, accordingly, the suit was filed with the following reliefs:- "A- That a permanent injunction to this effect may please be issued against the defendant in favour of the plaintiff that the defendant either by himself or through his agent shall not encroach on or interfere with the rights of the plaintiff over plot no. 60, of which he is owner by way of a perpetual lease, and the details of which are shown in the Appendix "Ka". B- That through a mandatory permanent injunction in the nature of a decree, the defendant may please be directed that the lease deed of the additional land, due to the land in dispute being a corner land, which measures 261.19 square metre, be executed in favour of the plaintiff after receiving the amount as per the rules. C- That costs may please be awarded to be paid to the plaintiff by the defendant. D- That any other relief, which the court deems fit, may please be awarded to the plaintiff as against the defendant." (English translation by Court) On objections being raised on behalf of the defendant-revisionist, the issues were framed of which the aforesaid issue nos.7, 8 and 9 were adjudicated on a preliminary basis. ;