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Judgment
N.K. Kapoor, J.—This is unsuccessful plaintiffs regular second appeal.
Plaintiffs society filed a suit for declaration to the effect that they are entitled to recover various amounts advanced to Dharam Singh, defendant No. 1, on his executing ''Tamasak'' in favour of the society on payment of interest at the rate of 13-1/2 per annum. The plaintiff further averred that the sale deed executed by defendant No. 1 in favour of defendant No. 2 and 3 on 13.7.1978 with respect to the land detailed in the heading of the plaint is illegal and void and thus ineffective qua the rights of the plaintiff. It was further averred that defendant No. 1 with a view to avoid payment of the loan amount due has suffered this sale deed in favour of defendant No. 2.
Defendant No. 1 did not contest the suit. However, the suit was contested by defendant Nos. 2 and 3, filed written statement and took preliminary objections in the nature of non-maintainability of suit; suit being bad for non issuance of any notice; suit as framed is not maintainable etc. Reply was filed on merits as well.
On the pleadings of the parties, following issues were framed:-
1/ Whether the suit has been filed by the duly authorised person ? OPP
2/ Whether there has been a valid award in favour of the plaintiff and against the defendants ? OPP
3/ Whether there was a charge of the amount loaned by the plaintiff to defendant on the land mentioned in the plaint. If so, what is the effect thereof on the sale of this land made by the defendants ? OPP.
4/ Whether the suit is not maintainable in the present form ? OPD.
5/ Whether the suit is bad for want of notice ? OPD.
6/ Whether the suit is properly valued for the purpose of court fee and jurisdiction ? OPD.
7/ Whether the Court has not no jurisdiction to try this suit ? OPD.
8/ Whether the plaintiff is entitled to the declaration prayed for ? OPD
8-A/ Whether the defendant has executed the alleged Tamasaks. If so, to what effect ? OPP.
9/ Relief.
Under issue No. 1 the trial Court came to the conclusion that the suit has not been filed by a duly authorised person. Under issue No. 2, it was held that there is no valid award in existence. Under issue No. 3, it was held that there is no proof on record that the loan advanced was a charge upon the property in dispute. Under issue No. 4, it was held that the suit as framed is not maintainable. Issues No. 5 to 7 were decided in favour of the defendants whereas issue Nos. 8 and 8-A were decided against the plaintiff. Resultantly, the suit of the plaintiff was dismissed.
Before the lower appellate Court the counsel for the appellant challenged the finding of the trial Court in respect of all issues. With a view to seek reversal of the decision of the trial Court in respect of issue No. 1, the learned counsel for the appellant relied upon section 37 of the Punjab Co-operative Societies Act, 1961, and so urged that there was no requirement in law to prove the original resolution authorising the Socretary to institute the suit or to produce any one of the signatories who allegedly authorised him to institute the present suit, the appellate Court after carefully perusing the relevant provision referred above found no merit in the contention of the appellant and so affirmed the finding of the trial Court in respect of issue No. 1. Similarly, under issue No. 2 it was held that there does not exist any valid or legal award in favour of the society. During the course of appeal, an application under Order 41 Rule 27 of the CPC for adducing additional evidence was filed with a view to prove that award has now been given by the Assistant Registrar Cooperative Societies and same may be allowed to be placed on record and the matter examined in the light of the same. The lowar appellate Court found no merit in this contention of the plaintiff also for the reason firstly that the alleged award is already under challenge in appeal and even otherwise in case a valid award exist in favour of the society, the same can be executed and for which no such declaration as sought by the plaintiff is essential. Examining the matter further, the Court held that simple suit for declaration (as in the instant case) does not lie as consequential relief for recovery of the amount has not been sought. This is perhaps for the reason that for a suit for recovery of the amount due, one has to fix ad valorem court fee upon the amount claimed. Resultantly, the appeal too was dismissed.
Before me, almost identical pleas have been raised which did not find favour with the Courts below. Plaintiffs suit is wholly misconceived. As per averments in the plaint, defendant No. 1 took loan by executing Tamasak in favour of the Co-operative Agricultural Service Society which amount has not been paid by the defendants i.e. to say the claim of the plaintiff is, in fact, for recovery of the amount due. On these facts, the Courts below rightly came to the conclusion that the suit as framed is legally not maintainable. Not only this, even the suit has not been instituted by a duly authorised person. This being the position, no error is discernible in the well considered judgments of the Courts below. The appeal is wholly devoid of merit and is consequently dismissed. No costs.