' FAZL-UR-REHMAN KHAN, J.--- As both Regular First Appeal No,44 of 2001 and Civil Revision No,39 of 2001 arise out of the same civil suit brought by Haji Shams-ur-Rehman and one another appellants, these are, therefore, disposed of by this common judgment.
2. The brief facts giving rise to this Regular First Appeal and Civil Revision are that Haji Shams-ur- Rehman and one another, appellants herein, brought a suit in representative capacity against Nadar Khan, respondent No,1 herein (petitioner in C.R.) and 6 others, for the recovery of Rs,65,00,000 as their share in the sale proceeds of Forest and in the alternative, for rendition of account. It was averred in the plaint that the appellants along with others are "Guzara" owners in Compartments No,4(i) and (ii) of Kotli Forest while respondent No,1 is a Managing Director of the Society; that by a letter No,1765/GB dated 20-10-1996, the exploitation (marking, cutting, felling and conversion) of Compartment No,4(i) was sold to respondent No,1 as Managing Director of the Society for a sum of Rs,75,97,386 and similar exploitation of Compartment No,4(ii) was also sold to him; that out of the sale proceeds, respondent No,1 was bound to disburse 60% of the sale proceeds to the owners of the Forest and 20% was to be spent on the development of the Compartment but he neither paid any money to any co-owners nor spent any amount on improvements of the Compartment. The appellants, therefore, prayed for the recovery of Rs,65,00,000 which amount includes 20% to be spent on the improvement and in the alternative for rendition of accounts.
3. Respondent No,1 contested the suit while respondents Nos.2 to 7 almost admitted the claim of the appellants. Out of the pleadings of the parties the learned trial Court framed as many as 12 issues.
4. On the issues framed, the evidence of the appellants was recorded and closed on 4-1-2001 and the case was adjourned to 8-2-2001 for evidence of respondent No,
1. However, on that date, the learned Presiding Officer of the trial Court was on leave and the case was adjourned to 21-2-2001 on the Note Reader. On the date fixed, the evidence of respondent No,1 was not available and the case was adjourned to 8-3-2003 with a note of warning to respondent No,1 that if on the next date of hearing, he failed to produce his evidence, his defence will be closed but on this date the evidence of respondent was again not in attendance. Accordingly, his evidence was closed under Order 17, rule 3, C.P.C. Vide order dated 8-3-2001. After passing of the impugned order and after hearing the learned counsel for the parties, the learned trial Court vide. Its judgment/decree dated 14-4-2001 dismissed the suit of the appellants mainly on the ground that under sections 54 and 70- A of the Cooperative Societies Act, 1925 (Sindh) Act VII of 1925 as adapted by the N.-W.F.P.
Adaptation of Laws Order, 1975), the Civil Court has got no jurisdiction to entertain the suit vide issue No,5. The appellants are aggrieved by the judgment/decree of the learned trial Court and have filed the present appeal while respondent No,1 is aggrieved by the order dated 8-3-2001 and has filed the revision petition.
5. We have heard Mr. Muhammad Anwar Khan Lughmani, learned counsel for the appellants and Mr. Muhammad Saleem Awan, Advocate for respondent No,1 and have also perused the record.
6. In support of the appeal, the learned counsel for the appellants contended that the finding of the learned trial Court on issue No,5 that under section 54 and section 70-A of the Cooperative Societies Act, 1925, Civil Court lacks jurisdiction to try the suit is wrong and illegal because under section 70-A, read with section 54 of the Act, only those suits are barred which pertain to disputes between the Society and its members present or past and not to the suit between the Society and the outsiders and the appellants and other co-owners, being outsiders, the learned trial Court has wrongly dismissed the suit. In support of his argument, he placed reliance on PLD 1985 Kar.
481.
7. On the other hand, the learned counsel for respondent No,1 contended that some of the co- owners in the Forest are members of the society, as such, it is a dispute between the members and Society and the same has to be decided under section 54 of the Act by the arbitration of Registrar and no other Court or authority has jurisdiction to decide the same. The impugned judgment of the learned trial Court is,- therefore, correct and calls for no interference. He placed reliance on 1990 MLD 1137.
8. We have carefully gone through the provisions of section 54 and section 70-A of the Act, and on plain reading of the same, we find that section 54 of the Act speaks of disputes:-
(a) between members or past members of the society or persons claiming through a member or past member; or
(b) between members or past members or persons so claiming and any past or present officer, agent or servant of the society; or
(c) between the society or its committee, and any past or present member of the society; or
(d) between the society or its committee, and any past or present officer, agent or servant of the society, or a surety or such officer, agent or servant, whether such surety is or is not a member of the society; or
(e) between a financing bank authorised under subsection (1) of section 34 and a person who is not a member of a society. ' but does not speak of any dispute between the Society and an outsider. In the case reported in PLD 1961 SC 215, their Lordships of a Full Bench of the Honourable Supreme Court held:-- "We are, therefore, in agreement with the High Court that the enlargement of the definition of a 'dispute' did not also operate to enlarge the category of persons between whom the dispute must exist. In our view, the dispute must still relate to some kind of transaction in which the categories of persons mentioned in clauses (a) to (e) of the said section have interest in that capacity. The accident merely of a person also falling under any one of the said categories is not sufficient to bring a dispute between him and a cooperative society within the ambit of the said section. To hold otherwise would amount to rendering clauses (a) to (e) of section 54 nugatory. It is, furthermore, inconceivable that the. Legislature intended that any or every kind of dispute, if it merely touched the business of the society, should be dealt with in the manner provided in the said section, for then anyone, dealing with a Cooperative Society will have to do so at the peril of being deprived of his ordinary remedies under the general law of the land. Such an intention we cannot possibly impute to the Legislature."
9. In the authority reported in PLD 1985 Kar. 481, it was held that:-- "A plain reading of section 70-A of the Act clearly indicates that jurisdiction of the Civil Court is barred only in such cases which are to be decided by the statutory functionaries under the Act by virtue of the provisions of the Act or the Rules or bye-laws framed thereunder. If the dispute could not be referred under section 54 of the Act to Arbitration section 70-A does not bar the jurisdiction of the Civil Court."
' Even the case cited by the learned counsel for the respondent No,1 (1990 MLD 1137) supports the above proposition, wherein it has been held that 'in a dispute which does not touch the business of the Society within the meaning of section 54 and section 70-A of the Act, Civil Court has jurisdiction to entertain the suit".
10. The argument of the learned counsel for respondent No,1 the Civil Court had got no jurisdiction to entertain the suit as some of the co-owners in the Forest are members of the society is without force because it is neither the case of the respondent nor any evidence to that effect is available on the record and the authority cited by him is not relevant at all. Even if some of the co-owners in the forest are members of the Society, in the case reported in PLD 1956 Sindh 95, it was held that section 54 of the Act did not apply in a case in which some of the defendants are not members of the Society or claiming through them. Not only from a plain reading of the provisions of section 70- A read with section 54 of the Act but also from the authorities cited above, we are of the firm view that the present suit, not falling within the ambit of any of clauses (a) to (e) of section 54 of the Act, the Civil Court had the jurisdiction to entertain the suit and the impugned order of the learned trial Court is not maintainable.
11. Now coming to the revision petition, we find that the learned trial Court has given only one full opportunity to the petitioner for producing evidence and on his failure has closed his evidence under Order 17, rule 3, C.P.C. Which is not justified, as such, the impugned order, dated 8-3-2001 is set aside.
12. As a result, both the appeal and revision are accepted, the impugned order, dated 8-3-2001 and the judgment/decree dated 14-4-2001 of the learned trial Court are set aside and the case is remanded back to it with the direction that after giving respondent No,1 an opportunity to produce his evidence as he wishes to adduce, it shall decide the case afresh on merits. There will be no order as to costs.