1. ' SHABBIR AHMAD, J.--- The defendant has moved an application under Order VII, rule 11, C.P.C. For rejection of the plaint. From the affidavit in support of the said application, the ground for rejection has been urged on two counts, firstly, that notice under section 70 of the Cooperative Societies Act has not been served as required under the law, secondly, that the suit is barred under the provisions of section 70-A of the said Act for the reasons that the dispute touches the business of the Society and between the parties claiming through members of the Society.
2. ' The brief facts necessary for the disposal of the present application are that the plaintiff's husband purchased a plot in Rizwan Cooperative Housing Society, Karachi bearing No,A-76, Sector 38-A, Scheme No,33, Karachi measuring about 642 sq.Yds. From one Asad Ali son of Saadat Ali Ashrafi. The plaintiff's husband is in Saudi Arabia. The plaintiff visited the suit-plot and noticed that defendants Nos.1 to 3 were engaged in construction work by encroaching the plaintiff's plot.
3. Thereafter the plaintiff inquired from the Registrar's office about the record/title deeds etc. But no lease has been registered in respect of the aforesaid plot except in favour of the plaintiffs' husband.
4. After serving notice under section 70 of the Cooperative Societies Act as no action was taken, hence the suit was filed terming the defendants Nos.1 to 3 as land grabbers. Execution of any documents by defendant No,1 in favour of the defendants Nos.1 to 3 in respect of the suit property would be nothing but a fraud upon the plaintiff. The following reliefs have been claimed:--- "(a) Be pleased to declare that the defendants Nos.1, 2 and 3 or any other are encroachers, illegal occupants of plaintiff's Plot bearing No,A-76, Sector 38-A, Scheme No,33, Rizwan Cooperative Housing Society, Karachi, measuring 642 sq.Yds.
(b) Be pleased to declare that the acts and omissions of the defendants in relation to subject encroachment are mala fide, mischeivious, high-handed tortuous and amounted to tress-pass on the plaintiff's plot.
(c) Be pleased to order for the cancellation of any so-called fabricated title documents/if any obtained by the defendants and delivering the same for cancellation to the concerned Sub- Registrar of the District.
(d) Be pleased to direct the defendant/s or any other to deliver physical possession of the subject Plot bearing No,A-76, Sector 38-A, Scheme No,33, Rizwan Cooperative Housing Society, Karachi to plaintiff, occupied by them.
(e) Be pleased to direct the defendant or other encroacher to pay mense profit at the rate of Rs,40,000 per month w,e,f, September, 1997 jointly, severally.
(f) Be pleased to grant damages/compensation to the tune of rupees three crones from the defendants and other encroachers. As they have committed violation of law of the land and disregarded the entitlement/rights of the plaintiff in an illegal and unlawful manner.
(g) Be pleased to grant permanent injunction against the defendants and others, their workers, agents, attorneys, representative, relatives, and all those working for them and/or acting on their behalf, restraining them from disposing of, alienating, parting with portion of the subject property to any third person party and also from raising any further construction on any portion of the subject property."
5. ' In written statement filed by defendant No,1, the ownership of Plot No,A-75-C adjacent to the plot of the plaintiff has been claimed by him though purchase from the original allottee/lessee Mst.
6. Tasleem Khalil Siddiqi, on the basis of irrevocable general power of attorney.
7. ' The counsel for the defendant's contention was that the suit is barred by the provisions of section 54 and section 70 of the Cooperative Societies Act. She further contended that notice served under section 70 is also not in proper form, as this notice will not come in the rescue of the plaintiff. So far as the contention regarding the format of notice is concerned, there is no format for the notice under section 70 of the Cooperative Societies Act. The purpose of the notice is to bring the grievance to the notice of statutory authorities for their redressal.
8. ' The learned counsel for the plaintiff contended that the suit is not barred under the provisions of section 70-A of the Act, as the same do not touch the business of the Society.
9. ' Section 54 of the Act provides for reference of dispute to the Registrar or his nominee whereas section 70-A bars the jurisdiction of the Court in relation to matters, which have to be ,decided by the statutory functionaries under section 54. In fact, the two provisions are complementary. Section 70-A of the Act will only oust jurisdiction of the Civil Court. Only such matters, as are compulsory referable under section 54 of the Act, which reads as under:--- "Section 54. Arbitration.--- If any dispute touching the business of a society other than a dispute regarding disciplinary action taken by the society or its committee against a paid servant of the society arises--
(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, it shall be referred to the Registrar for decision by himself or his nominee, or if either of the parties so desires, to arbitration of three arbitrators who shall be the Registrar or his nominee and two persons of whom one shall be nominated by each of the parties concerned.
10. ' A dispute shall included the question whether a person is or was a member of a society and also claims by a society for debts or demands due to it from a member, past member, or non-member or the heirs or assets of a past member or non-member whether such debts or demands be admitted or not: ' Provided that if the question at issue between a society and a claimant, or between different claimants, is one involving complicated questions of law and fact, the Registrar may, if he thinks fit, suspend proceedings in the matter until the question has been tried by a regular suit instituted within six months of the Registrar's ing proceedings the Registrar shall take action as laid down in paragraph 1 of this section."
11. ' Under the above provisions, two essential conditions have to be fulfilled. The first is with regard to the nature of the dispute and second with regard to parties to dispute. The nature of the dispute must be such as touches the business of the Society. The parties through dispute must be either member or past members or contesting through members. The point came up for consideration before the Division Bench of this Court in the case of Azizuddin Ahmed v. Aziz Ahmed and another PLD 1959 Kar.
497. Late Mr. Justice Wahiduddin (as he then was) authored the judgment and explained the position as follows:--- "Under section 54 of the Bombay Cooperative Societies Act, two essential conditions must be fulfilled before its provisions can be invoked. The first is that it should relate to a dispute which touches the business of the society and the second that such a dispute must be between the society or its members or between the members or past members or those who claim through them. There is another class of cases which can also be referred and they are those which are mentioned in clauses (d) and (e), namely between the society and the surety of a member, whether he be a member or not or between a financing bank and a person who is not a member of this society.
12. ' Where the dispute was between two members of Society, to one of whom certain plots of land were allotted by the Society and the allotments under the rules had merged in a lease for 99 years granted by the Government of Pakistan, the lease deed having been duly signed on behalf of the Government as well as on behalf of the society but, the Society in the meantime, had allotted a part of the same land to the other: ' Held, that as the dispute was not confined to the question of allotment and really affected the lease deed, the Government of Pakistan was a necessary party to the dispute and as such the dispute was not covered by section 54 of Bombay Cooperative Societies Act and so could not be referred by the Registrar to arbitration."
13. ' In case of Siraj Farooqi v. Pir Elahi Bux Cooperative Society PLD 1956 Sindh 95 late Mr. Justice Muhammad Bakhsh also held that section 54 of the Cooperative Societies Act did not apply in a case in which some of the defendants are not members of the Society or claiming through them.
14. ' In the case of Ziaur Rehman Alvi v. Allahabad Cooperative Housing Society Limited and others PLD 1995 Kar. 399 Late Mr. Justice Hussain Adil Khatri opined as follows:--- "The bare reading of the plaint and particularly the prayer clause discloses that insofar as the first two and the fourth reliefs sought in the plaint are concerned, they disclose dispute between the plaintiff on the one, and the society on the other hand. The third relief is for recovery of compensation from the defendant No,1 the society and defendant No,3 a member of the Society.
15. The last relief discloses dispute between two members of the society that is the plaintiff and defendant No,3. The above disputes are, therefore, referable to the Registrar for decision by himself or by his nominee or arbitration. There cannot be two opinions that the above disputes touch the business of the society. It being so, the bar contained in section 70-A is attracted and this Court has no jurisdiction to entertain or to adjudicate upon the said disputes, no saving having been provided expressly under the said Act, with reference to the said disputes."
16. 'The case is to be examined in the light of the dictum given in the above cases. To invoke the bar of jurisdiction, two conditions have to be fulfilled. Firstly, that the dispute touches the business of the Society and between the members or persons claiming through past members.
17. ' In the present case, admittedly both parties are claiming through members namely Syed Asad Ali and Mst. Tasleem Khalil Siddiqi.
18. ' The perusal of the reliefs claimed in clauses (a) to (g) seeking declaration in respect of Plot No,A- 76, as well as, cancellation and possession against the defendant No,1 and Society and damages has been claimed against defendant. These reliefs do touch the business of the Society and come within the ambit of the provisions of section 54 of the Societies Act. Thus, the suit is barred under section 70-A of the Societies Act.
19. ' Consequently, the plaint of the suit is rejected, however, with no order as to costs. The pending applications are also dismissed.
20. Plaint rejected.