SUSHIL MITTAL Vs. R D BHARDWAJ

JUDGEMENT

(1.) These two appeals arise out of a common order of learned District Judge, Solan dated 12/10/2001 in Application No. 355-A/6 of 2000.

(2.) In order to appreciate the controversy, necessary facts may be noticed. It appears plaintiff-R. D. Bhardwaj laid a suit before the learned Sub-Judge Ist Class, Arki, for permanent prohibitory injunction with the allegations that he was a permanent resident of village Sehal in Pargana Sandhurt, Tehsil Arki, District Solan. He owned Truck No. HP-12-2009, HP-11-2209 and HP-11-4009. It was the case of the plaintiff that these trucks were deployed for lifting clinker from the factory of Gujarat Ambuja Cement Ltd., at Darlaghat (GACL, for short) sine April, 1997. The defendants-Sloan Distrit Truck Operators Co-operative Society Ltd., Darlaghat and Arki Tehsil Truk Operators Union, Darlaghat, used to provide clinker for transportation, on turn basis, to the plaintiff. The plaintiff had regularly been lifting the clinker on his turn, at par with the other truck owners of the residents of Tehsil Arki. The plaintiff was enrolled as Member with the defendant-respondent No. 2-Society on payment of necessary fees. It was his further case that the defendants stopped providing him clinker for carriage in his trucks on the ground that he was not the resident of Tehsil Arki. It was with these allegations that the plaintiff sought a permanent prohibitory injunction against the defendants from withdrawing the vehicles of the plaintiff or from stopping the plaintiff from lifting the clinker from the GACL Darlaghat.

(3.) Along with this suit, an application was moved by the plaintiff under O. 39, Rr. 1 and 2, C.P.C. praying for interim relief restraining the defendants from withdrawing the vehicle of the plaintiff from the "floor of the cement factory." The defendants opposed this application. It was the case of the defendants before the trial Court that application was filed without any cause of action and to cover up his lapses as certain requirements to be fulfilled under the bye-laws of the Society were not fulfilled by the plaintiff. It was the case of the defendants that the documents furnished by the plaintiff were forged/manipulated. It was alleged that the plaintiff misrepresented the facts when he obtained the membership of the Society. After scrutiny, his membership was found to be "under cloud" and the suit has been filed to pressurize the defendants. Another objection taken was that the suit was not maintainable as requisite notice under S. 76 of the Himachal Pradesh Co-operative Societies Act, 1969 was not served on the Society. It was also the case of the defendants that the dispute between the parties was regarding the membership of the Society, which could only be agitated before the Forum constituted under the "Co-operative Societies Act" of Himachal Pradesh ('Act' for short) and not by way of civil suit. In the circumstances, the jurisdiction of the Court to hear the suit was disputed. The defendants pleaded that the plaintiff was a resident of Nalagarh and there was a separate Union at that place. It was that Union, which could sponsor the plaintiff, provided there was any surplus work, which could be allotted to the plaintiff in their Society. The defendants alleged that plaintiff had neither a prima facie case nor the balance of convenience in his favour and was not entitled to any interim relief.