Muhammad Alam Khan, J.--The petitioner has called in question the judgment/order of learned Additional District Judge-II, Mardan in Civil Appeal No, 67/13 of 2006 dated 7.10.2006 through which the order/judgment of the learned Civil Judge-X, Mardan dated 15.6.2006 directing the return of plaint to the plaintiff/respondent, under the provisions of Order-7 Rule-10 CPC, for presenting the same before a competent forum.
2. Briefly stated that facts of the case are, that the plaintiff/respondents filed a suit for rendition of accounts of the loan obtained by the plaintiff respondent. It was averred in the plaint that the plaintiff obtained loan from the cooperative department and they are insisting for the return of the loan. In fact the plaintiff has paid some of the loan, which requires the rendition of accounts the plaintiff respondent has also challenged a notice -regarding the recovery of the said loan.
3. This Civil Suit Bearing No, 571/1 came for hearing before Ikramullah Khan, Civil Judge, Mardan and who after hearing the parties on the point of jurisdiction came to the conclusion that under Sections 51 and 70(A) of the Cooperative Societies Act, 1925 the Civil Court is bereft of jurisdiction and thus, on the assessm ent of the data available on the record ordered the return of the plaint, for presenting the same before the proper Court under the provisions Order-7 Rule-10 CPC vide order dated 15.6.2006 in Suit No, 571/1.
4. The plaintiff-respondent filed an appeal before the District Judge, Mardan which came for hearing before Additional District Judge-II, Mardan and who vide judgment, in Civil Appeal No 67/13 decided on 7.10.2006, not concurring with the learned trial Court, accepted the appeal and by setting aside the impugned order remanded the case back to the trial Court with direction to decide the same on merits. The petitioner/defendants Government of NWFP and other have come- up in revision to this Court challenging the last mentioned order of Additional District Judge-II, Mardan,
5. On behalf of the Register Cooperative Society NWFP, Peshawar Muhammad Khalid, Regional Manager, Frontier Provincial Cooperative Bank Limited and Fazal Rahim, Assistant Registrar who are the heads of the Cooperative Society addressed the arguments Muhammad Amin plaintiff/respondent could not be served inspite of the repeated notices and is placed ex parte.
6. The petitioner argued that the Civil Court lacked the jurisdiction in the cooperative matter as the matter involved in the present case is the recovery of loan advanced to the respondent under the Cooperative Societies Act, 1925 and the learned trial Court was right in holding that the Civil Court lacks the jurisdiction and has rightly ordered the turn of the plaint for presentation to the proper Court under the Provisions of Order-7 Rule 10 CPC, and the learned Additional District Judge had fallen into an error by setting aside the order and remanding the case to the learned trial Court for decision on merits and thus, it was prayed that the matter being financial one, which relates to the loan of cooperative society is solely amenable to the jurisdiction of functionaries constituted by Cooperative Societies Act, 1925.
7. I have given may anxious consideration to the facts and circumstances of the case, the ouster of jurisdiction has been provided in the Cooperative Society Act in Section 51 and in Section 70-A which for the sack of convenience is reproduced as under:
51. Bar of suit in winding up and dissolution matters.-- Save in so far as expressly provided in this Act no Civil Court shall take cognizance of. any matter arising out of any proceedings under Chapter _ VIII-A or connected with the winding up of dissolution of a society under this Act and when a winding up order has been made on suit or other legal proceeding shall lie or be proceeded with against the society except by leave of the Registrar and subject to such terms as he may impose.
70-A. Bar of jurisdiction.--(1) Notwithstanding anything provided in any other law for the time being in force, but save as expressly provided in this Act-
(a) no Court or other authority whatsoever shall have jurisdiction to entertain, or to adjudicate upon, any matter which the Provincial Government, the Registrar, or his nominee, any arbitrator or liquidator, a society, a financing bank, a co-operative bank or any other person is empowered by or under this Act, or the rules or bye-laws framed thereunder, to dispose of or to determine; (b)the validly of anything done or an order passed by the Provincial Government, a society, a financing bank, a co-operative bank, the Registrar or any other person referred to in clause (a), under this Act or the rules and bye-laws framed thereunder, shall not be called in question in any manner whatever before or by any Court to other authority whatsoever; and
(c) no Court or other authority whatsoever shall be competent to grant any injunction or pass any other order in relation to any proceedings under this Act or any rules or bye-laws framed thereunder before the Provincial Government, a society, a financing bank, a co-operative bank, the Registrar or any other person referred in clause (a).
(2) The provisions of sub-section (1) shall be applicable to proceedings, appeals and revisions pending adjudication or disposal before or in any Court or other authority whatsoever on the date that the Co-operative Societies (Amendment) Ordinance, 1966, comes into force and any order passed in such proceedings, whether before or after the coming into force of the said Ordinance, in regard to matters referred to in sub-section (1), shall stand vacated and be without any force.
The re-production of the above provision of the Act ibid, would show, that it bars the jurisdiction of Civil Court in the matter covered by the Act i,e, the winding-up proceedings and the matter pertaining and ancillary to the loans of the co-operative society. Under the provisions of CPC Section 9 the Civil Court has got over-all plenary jurisdiction to entertain all suits of civil nature until and unless, its jurisdiction is specifically or impliedly barred by a particular statute and in the instant case Sections 51 and 70-A of the Act bid are the barring provisions.
8. It is pertinent to note that the learned Additional District Judge was impressed by an order of this Court in W.P. No, 670/2005 decided on 15.9.2006, through which the writ petition filed by the plaintiff/respondent, subject-matter, of this suit was dismissed with a passing on remarks that the controversy involved in this writ petition is factual controversy which cannot be resolved by this Court and the proper forum would be the Civil Court. The writ was thus dismissed. The mentioning of the word Civil Court was just 'a passing remarks when a Court lacks the jurisdiction it cannot be conferred, by the consent of the parties, order of the Court or through passing remarks.
9. I am conscious of the fact and legal position that when there is bar of jurisdiction so the barring statute should be interpreted so as to lean in favour of conferment of jurisdiction on the Civil Court.
It is so because the functionaries created under the statute must Act within the four corners of their jurisdiction as conferred upon then by the statute the moment they skip over at travels beyond their jurisdiction the Civil Court will sit as a Court of corrective processes to undo the wrong done by those functionaries. As held in case of Abdul Hameed Khan vs. Government of West Pakistan and others reported in PLD 1969 Peshawar 324 and the case of Mian Muhammad Latif vs. Province of West Pakistan reported in PLD 1970 SC page 180 and in case Abbassia Cooperative Bank etc. vs. Hakim Hafiz Muhammad etc. PLJ 1996 SC 1697.
10.In order to attract and confer jurisdiction in view of the above rulings it has to be shown that the order passed by the functionaries acting under a particular statute is itself without jurisdiction and the same has been issued without any notice or hearing in which case, the corrective processes of the Civil Court will come into play and the bar of jurisdiction will not be attracted.
11.In the present case the Cooperative Societies Act, itself provided machinery for the redressal of such like grievances as the plaintiff/respondents had agitated in the suit before the Civil Court and the plaintiff did not at all surrender to the jurisdiction of the functionaries created under the Cooperative Societies Act, 1925 and in this case the barring provisions will be attracted ousting the jurisdiction of the Civil Court as held in case of Mst. Atia .Khanum vs. Messers Saadabad, Cooperative Housing Society Ltd., and others reported in 2002 MLD page 209.
12.In view of the facts and circumstances of the case narrated above, I accept the instant revision petition and set aside the order of Additional District Judge-II, Mardan in Civil Appeal No, 67/13 decided on 7.10.2006 and restore that of the Civil Judge in Civil Suit No, 571/1 E decided on 15.6.2006 directing the return of plaint to the plaintiff for presentation to the proper Court. The file is sent to the learned Senior Civil Judge, Mardan with direction to summon the plaintiff-respondent and return the plaint to him for presenting the same to the proper Court, no order as to costs.