1. ORDER C.M.A. No.8942 of 2010 SYED HASAN AZHAR RIZVI, J.--This is an application under section 151, C.P.C. Filed on behalf of the defendant No.7 seeking permission to complete the existing/continued shuttering civil work. The application is duly supported by affidavit of defendant No.7.
2. Syed Shujauddin, learned counsel for the defendant No.7 contended that the defendant No.7 is a bona fide purchaser of Plot No.B-22, situated at Sector 36-A, KDA Scheme No.33, Gulzar-e-Hijri, in Central Information Employees Cooperative Housing Society Ltd., Karachi and purchased the suit plot from one Adeeluddin, the defendant No.5, through a sale agreement, who submitted the required documents for transfer of the same to his name to defendant No.10. He also contended that the suit plot was mutated in the name of defendant No.7 in the society record, possession of the suit is with him and he is constructing his house over it. He submitted that the dispute is between plaintiff, defendants Nos.4 and 10 and defendant No.7 has no concern with it. He further submitted, that due to restraining order the defendant No.7 is suffering heavy financial losses on day to day basis due to incompletion of civil work, stock of cement is going destructive, Iron Rods going to be rusted, Bajri and gravels which are lying in street are spoiling with the passage of time and so also there is likelihood of them of the' said material. He urged that cost of construction is rising day to day and if the construction is delayed, the defendant No.7 will suffer loss on future construction too. He, therefore, prayed that defendant No.7 he allowed permission to complete the civil work at his on risk and cost.
3. Dr. Khalid Ali Z. Qazi, learned counsel for the plaintiff vehemently opposed the grant of present application and stated that if the defendant No.7 is allowed to raise construction the very purpose of interim order passed in this suit will be frustrated. He also contended that the defendant No.7 has alleged in the written statement. That he purchased the suit plot from defendant No.5 through sale agreement and lease deed was executed in his favour but he has failed to file any sale agreement or registered lease deed' in his favour. He further contended that defendant No.7 has also not filed any approved building plan of Cantonment Board for raising construction at the suit plot. He, therefore, prayed that application is liable to be dismissed.
4. It appears from the record that similar application has been filed by defendant No.7 bearing C.M.A.
5. No.7735 of 2010 seeking the same relief, which is pending for adjudication. The defendant No.7 instead of pressing the said application filed present application. On inquiry, learned counsel for the defendant No.7 stated that the defendant No.7 has applied for approval of building plan, but at present he has not approved building plan. Not only this but the defendant No.7 has not filed any sale agreement or registered lease deed to prove that he purchased the suit plot. There is no material available on record to show that the defendant No.7 is the bona fide purchaser for value.
6. Resultantly, the listed application is dismissed.
7. C.M.A. No.6508 of 2010:---This is an application under section 94 r/w Order XXXIX Rules 1 and 2, C.P.C. Filed by the plaintiff seeking restraining order against the defendants from preparing forwarding and approving of the building plan in respect of Plot No.B-22, Central Information Employees Cooperative Housing Society Ltd. Admeasuring 400 sq. Yards situated in Sector 36- A, Scheme No.33, Gulzar-e-Hijri, Karachi and raising the construction or creating any third party interest on the suit plot and to demolish the unauthorized construction raised on the plot without approval of building plan by the defendant No.2 till the final disposal of the suit. The application is duly supported by an affidavit of plaintiff Tanzeem Ahmed Khan.
8. Dr. Khalid Ali Z. Qazi learned counsel for the plaintiff in support of application for grant of injunction has argued that plaintiff is one of the legal heirs and nominee of Laddan Khan, who was founder member of defendant No.10. He argued that plaintiff father was allotted the suit plot in the defendant No.10 Society vide allotment order dated 3-4-1986. He further argued that defendant Government of Sindh officials have superseded the said Society and has appointed the defendant No.4 as Administrator of the said Society in the year 2009, which was challenged through C.P. No.D -664 of 2010, wherein this Court was pleased to pass order dated 16-3-2010 directing the respondent not to create third party interest in respect of property of Society till next date, that order is still in the field. He urged that defendant No.10 has made all the necessary correspondence with the plaintiff as a Member in respect of suit plot. He also urged that plaintiff has deposited all the remaining balance of cost of land through Pay-Order dated 1-12-2009. He further urged that in response to advertisement published by defendant No.10 in daily jang' dated 13-12-2009, the plaintiff again provided all the record along with all other requirement to the Administrator in respect of defendant No.3 on 17-12-2009.
9. Learned counsel for the plaintiff contended that plaintiff shocked to read advertisement published in daily 'Ling' and 'Nawa-e-Waqt' dated 17-3-2010, whereby objection were invited by the defendant No.6 in respect of completion of sale transaction with the defendant No.5 in respect of the suit plot by showing as allottee owner of the suit plot. He contended that the plaintiff immediately filed written objections in the office of defendant No.4, who refused to accept the same, thereafter the plaintiff sent the same through TCS which was also refused by defendant No.4. He contended that the defendant No.4 in connivance of defendants Nos.1, 3, 5 6, 7 and 9 has misused the authority And cancelled the plot of the plaintiff. He further contended that the defendant No.4 not only misused the power and authority but also violated the order passed by this Court in C.P. No.D-664 of 2010.
10. He further contended that the plaintiff has filed an application before the Ombudsman of Sindh dated 18-3-2010 and notice of personal appearance was issued to the defendants for hearing but the defendants Nos.3 and 4 were not appeared before learned Ombudsman Sindh, Karachi. He, therefore, submitted that in the peculiar facts and circumstances of the case, listed application may be allowed as prayed for. In support of his submissions, learned counsel has placed reliance on the cases of DR. SEEMA MALIK V. GOVERNMENT OF PUNJAB AND 2 OTHERS (2006 YLR 2346), AMIR ALI HUSSAIN SHALWANI V. ISMAILI MASALWALA AND OTHERS (2001 YLR 2537) AND HAJI KHUDA BUX AND OTHERS V. DEPUTY REGISTRAR, COOPERATIVE SOCIETIES, PUNJAB AND 2 OTHERS (PLD 2007 Lahore 341).
11. Objections/counter-affidavit has been filed by defendants Nos.4 and 10 Mr, Azizur Rehman's Akhund learned counsel for the defendants Nos.4 and 10 urged that the application is not maintainable as no cause of action accrued to the plaintiff against the defendants Nos.4 and 10.
12. He submitted that the suit is hit by section 70 of the Cooperative Societies Act, 1925 as the required 60 days prior written notice has admittedly been not served by the plaintiff upon the defendant No.4 as well as defendant No.10 before filing the present suit. He further submitted that this Court has no jurisdiction to entertain the above noted suit in view of bar contained in section 70-A of the Cooperative Societies Act, 1925, as the remedy for the reliefs sought in this suit is available to the plaintiff under sections 54 and 54-A of the Cooperative Societies Act. For convenience sake, sections 70 and 70-A of the Cooperative Societies Act are reproduced below:-- "70. Notice necessary in suits.---No suit shall be instituted against society or any of its officers in respect of any act touching the business of the society until the expiration of two months next after notice in writing has been delivered to the Registrar, or left at his office, stating the cause of action.
13. The name, description and place of residence of the plaintiff and the relief which he claims; and the plaintiff shall contain a statement that such notice has been so delivered or left.
14. 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 as empowered by or under this Act or the rules or bye-laws framed thereunder, to dispose of or to determine;
(b) the validity of anything done or an order 'passed by the Provincial Government, a society, a Financing Bank, Co-operative Bank, the Registrar or any other persons 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 or 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 to in clause (a).
(2) The provisions of subsection (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 Cooperative Societies (amendment) Ordinance, 1960, 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 subsection (1), shall stand vacated and be without any force."
15. Learned counsel also stated that actually the plaintiff was not allottee of the Central Information Employees Cooperative Housing Society, but his father was having provisional allotment in respect of the suit plot, which was subject to confirmed allotment after payment of dues in time. He submitted that neither the father of the plaintiff nor the plaintiff himself paid the dues of the society after the death of his father, though time and again notices were sent. He further submitted that after cancellation of the suit plot with the approval of the - competent authority allotted the same to the next society member on waiting list namely Adeeluddin on 3-3-2010, who after acquiring the right, title and interest into the said plot has sold the same to one Muhammad Ashfaque through sale agreement and submitted the required documents for transfer of the same to his name, which record was mutated in the society's record by making him member of the society and plot was transferred in the name of defendant No.7 Muhammad Ashfaque. He, therefore, submitted that plaintiff has no prima facie case, balance of convenience does not lie upon him and he will not suffer any irreparable loss if injunction is refused.
16. Counter-affidavit to the listed application has been filed by the defendant No.7. Syed Shujauddin learned counsel for the defendant No.7 contended that the defendant No.7 is a bona fide purchaser of the suit plot and the Society has executed lease deed in his favour and no violation of whatsoever has been committed by the defendant No.7. He urged that due to interim order the work has been stopped due to which the defendant No.7 is suffering heavy financial losses. He prayed that defendant No.7 be allowed to complete existing/current construction at his on risk and cost.
17. In rebuttal, Dr. Khalid Ali Z. Qazi learned counsel for the plaintiff has controverted the submission raised by the learned counsel for the defendants Nos.4 and 10. He submitted that sections 70 and 70-A are not applicable in the present case as the. Suit is not relating to any act touching business of society nor plaintiff showing any dispute the nature of which could attract bar of jurisdiction. In support of his submission, learned counsel has placed reliance on the case of NIZAR ALI V.
18. NOORABAD COOPERATIVE HOUSING SOCIETY LTD. AND OTHERS (PLD 1987 Karachi 676).
19. I have heard Dr. Khalid Ali Z. Qazi, learned counsel for the plaintiff, Mr.- Azizur Rehman's Akhund counsel for the defendants Nos.4 and 10, Syed Shujauddin learned counsel for the defendant No.7 and examined the material available on record. It is an admitted position that the defendant (A No.7 is raising construction over the suit land without approved building plan, which was stopped due to interim order. Neither the Society nor the Cantonment Board has taken any action against the construction so raised by the defendant No.7 without any approved building plan. The defendant No.2 Cantonment Board is duty bound to take action against illegal and unlawful construction, but the defendant No.2 instead of taking any action has filed application for deleting their name from the array of defendants., It is. Also an admitted fact that this Court has granted interim order in respect of the property of the society on 16-3-2010, which is in the field, but the defendants Nos.4 and 10 despite interim order transferred the suit plot in favour of defendant No.7, who started construction over the suit-land without any approved building plan. The defendant No.7 has not filed any sale agreement or any receipt with his written statement to show that he is a bona fide purchaser for value. When confronted Syed Shujauddin A learned counsel for the defendant No.7 frankly conceded that defendant No.7 is/was raising construction without any approved building plan. On a query as to how many plots were cancelled by the Society on account of non-payment of dues, learned counsel for the defendants No.4 and 10 has failed to give any plausible explanation and submitted that at present he has no knowledge as no record is available with him. There is no material available on record that the defendant No.7 has purchased the suit plot from defendant No.5 on payment of consideration. The plaintiff who is one of the legal heirs and nominee of the original allottee Laden Khan has paid all the dues of the Society as is evident from Pay-Order dated 1-12-2009 sent to the defendant through TCS, which is available on record.
20. Thus, I have come to a conclusion that the controversy involved in the suit cannot be resolved without recording of evidence. The plaintiff is made out a good prima facie case in his favour to justify grant of injunction. Balance of convenience also appears to be in favour of the plaintiff who shall suffer irreparable loss if injunction is refused. Resultantly, this application is granted and interim order granted on 11-6-2010 is hereby confirmed.
21. C.M.A. No.10028 of 2010. ---Since the counsel for the defendant No.2 is not in attendance, therefore, the hearing of listed application is deferred..