' MUHAMMAD ALI MAZHAR, J.--- The plaintiff has filed this suit for declaration, direction, cancellation and injunction whereby two notifications issued by the defendant No,4 on 17-5-2012 under subsections (2) and (2-A) of section 6 and another notification issued under. Section 7 of the Sindh Cooperative Housing Authority Ordinance, 1982.
2. The brief facts of the case are that the plaintiff is cooperative society, registered under the Cooperative Societies Act, 1925 and is also Union of 25 societies. The plaintiff is functioning under its own byelaws and also performing their functions in accordance with Cooperative Societies Act and the rule framed thereunder. On 17-5-2012 the defendant No,4 issued a notification in which it was stated that the Registrar Cooperative Societies Sindh has recommended that the action may be taken against the plaintiff under section 6(2) of the Sindh Cooperative Housing Authority Ordinance, 1982 and in the concluding paragraph it was stated that with prior approval of competent authority and in exercise of powers under section 6(2-A) of the Sindh Cooperative Housing Authority Ordinance, 1982 directions were issued to Sindh Cooperative Housing Authority to take over the charge and control of the plaintiff with immediate effect. This notification was issued on the different charges of irregularities, mismanagement, maladministration and misuse of powers and funds of the society. For ready reference the notification is produced as under:--- "GOVERNMENT OF SINDH COOPERATION DEPARTMENT Karachi, dated the 17th May, 2012 NOTIFICATION ' No,SO(C-I)II(41)/2002(Pt-IV):--- WHEREAS, the Registrar, Cooperative Societies, Sindh reported that the Managing Director of Karachi Cooperative Housing Society Union Limited Karachi is involved in various irregularities, acts of mismanagement, maladministration, misuse of powers and funds of the society AND: ' WHEREAS, the Registrar, Cooperative Societies, Sindh Karachi submitted report that the following irregularities are committed by the management of the society:--- ' The management of the Karachi Cooperative Housing Society Union Ltd., collected more than Billion rupees from the members of Karachi Cooperative Housing Society Union Ltd. And instead of depositing the same to M.D.A. Misappropriated and deposit a huge amount into personal account No,08777900021603 HBL-Adamjee Nagar Branch, Karachi.
2. The management illegally leased out a portion of Cooperative Housing Shaheed-e-Millat Road, which is an amenity plot allotted to Sindh Provincial Cooperative Housing Society Union Ltd. In the name of M/s.Zubaida Muhammad Younus and obtained Bank loan of Rs,18,46,04,235.75.
3. The management prepared forged papers of Plot No, SNCC 3/3 admeasuring 1000 sq.Yds.
Originally allotted to Mr.Khursheed Anwar in the name of Mrs. Shamim Bano.
4. The Anti-Corruption Establishment launched F.I.R. No,6/2012 dated 2-4-2012 against Mr. Sharif Bhaiji, Managing Director, Karachi Cooperative Housing Society Union Ltd., under sections 420, 468, 471/34 of Pakistan Penal Code read with section 5(2) Act-II-1947 regarding fraud/forgery regarding illegal transfer of Shop No,SW-7E-26, SE-7E-28.
5. The management of Karachi Cooperative Housing Society Union Ltd. Has failed to perform its duties in accordance with the provisions of registered Bye-Laws of the society, Cooperative Societies Act, 1925 and Cooperative Societies Rules, 1927.
6. That the management of the society wilfully did not produce the record of the society with respect to the each development has not been produced.
7. The management of the society is involved in mismanagement, maladministration, misuse of powers and funds of the society and acts against the provision of registered Byelaws of the society, Cooperative Societies Act, 1925, Cooperative Societies Rules, 1927.
' WHEREAS the Registrar, Cooperative Societies, Sindh has recommended that action under section 6(2) of the Sindh Cooperative Housing Authority Ordinance, 1982 may be taken against the society in the larger interest of the society and its members AND: ' NOW THEREFORE, I, Ali Azhar Khan Baloch, Secretary, Cooperation Department/Chairman Sindh Cooperative Housing Authority with prior approval of the honourable Minister for Cooperation (In charge)/Chief Minister, Sindh. (Competent Authority) and in exercising the power vested in me under section 6(2-A) of the Sindh Cooperative Housing Authority Ordinance, 1982 do hereby direct the Sindh Cooperative Housing Authority to take over the charge and control of the affairs of Messrs Karachi Cooperative Housing Society Union Ltd. With immediate effect.
' ALI AZHAR KHAN BALOCH SECRETARY TO GOVERNMENT OF SINDH/ Chairman, Sindh Cooperative Housing Authority"
' In addition to the above, on the same date another notification was issued by the same defendant No,4 whereby in exercise of powers allegedly vested in him under section 7 of the Sindh Cooperative Housing Authority Ordinance, 1982 Mr. Amir Khursheed was appointed Administrator with the direction to perform duties of managing committee subject to the conditions imposed by the department. For ready reference this notification is reproduced as under:--- "GOVERNMENT OF SINDH COOPERATION DEPARTMENT ' Karachi, dated the 17th May, 2012 NOTIFICATION ' No,SO(C-I)II(41)/2002(Pt-IV): With the approval of Competent Authority and in exercise of powers vested under section 7 of the Sindh Cooperative Housing Authority Ordinance, 1982, the Authority is pleased to appoint Mr. Amir Khursheed son of Khursheed Ali, CNIC No,42301-3841762-5, as Administrator of Messrs Karachi Cooperative Housing Society Union Ltd.
' He will perform the duties of the Managing Committee subject to the condition imposed by the department.
' ALI AZHAR KHAN BALOCH SECRETARY TO GOVERNMENT OF SINDH /Chairman, Sindh Cooperative Housing Authority"
3. The injunction application was placed before the learned Single Judge of this court on 19-5-2012 (C.M.A. No,5013 of 2012) for orders on which date the operation of both the impugned notifications was suspended. The record reveals that on 5-6-2012 another learned Judge of this court ordered that the Nazir will keep on paying salaries of the staff of the society as well as necessary day to day expenses and besides Nazir no one would operate the accounts of the society. It was further ordered that the record of the society shall remain in the custody of the Nazir and day to day working shall be undertaken by the Nazir and he would be at liberty to take assistance of the plaintiff's staff. However, transfer allotment or mutation would only be effected after notice to Mr.Zubair Hashmi and with the permission of the court.
4. Initially Dehli Mercantle Cooperative Housing Society Ltd. Was not defendant in the society, however, vide order dated 20-9-2012 their C.M.A. No,5142 of 2012 filed under Order I, Rule 10, C.P.C.
For impleading them as party was allowed with the consent of plaintiff's counsel and the amended title was filed. Since Nazir was allowed to process mutation/transfer matters vide order dated 5-6- 2012, therefore, under the series of orders he undertook to process mutation/transfer cases under the orders of the court which were piled up and being delayed due to pendency of this matter and since the plaintiff is not only a cooperative society but also a union of 25 societies, therefore, various members of the different societies had approached for the approval and forwarding their mutation cases by the union and since powers were virtually with the Nazir of this court, therefore, he complied with the directions and processed the cases and also filed various reports. At present the Nazir is also operating bank accounts and maintaining the record and also submitted various reports in the court.
5. The defendants Nos.1(ii) to (iv) filed their written statement in which they vehemently refuted the allegations raised in the plaint and also stated that. The defendant No,2 received various complaints against the plaintiffs management and being the supervisory authority they have rightly issued both the notifications and they fully supported the appointment of administrator and the supersession of union under the provisions of Sindh Cooperative Housing Authority Ordinance, 1982.
6. Learned counsel for the plaintiff in his arguments challenged the constitutionality of Sindh Cooperative Housing Authority Ordinance, 1982 as according to him it was lapsed. He further argued that the said Ordinance is violative of Articles 4, 8 and 17 of the Constitution of Pakistan. He further argued that the allegations levelled in the notifications issued by the defendant No,4 are already subject matter of various pending litigations in which no definite judgment or findings against the plaintiff have come on the record, hence, during the pendency of issues in different courts of law both the notifications were issued unlawfully. He further argued that there is no case of maladministration, mismanagement or the misuse of funds. The accounts are properly audited and the main focus is against the Managing Director of the plaintiff that he is allegedly involved in the misuse of powers and funds of the society.
7. In the midst of his arguments the learned counsel for the plaintiff produced a copy of order passed by this court in C.P. No,233 of 2013, which was filed by Shamsi Cooperative Housing Society Ltd Karachi against the Province of Sindh, Registrar Cooperative Societies, Minister Cooperation Department and Deputy District Officer Cooperative, Karachi. In this petition the Shamsi Cooperative Housing Society Ltd. Karachi impugned the similar notifications issued on 15-1-2013 whereby the Administrator was appointed and the society was superseded. It was prayed in the above C.P. That both the notifications be declared illegal and directions be issued to the respondents to deseal the premises of the petitioner's society and restore its management. The learned Division Bench of this court considered both the notifications vis-a-vis sections 6 and 7 of the Sindh Cooperative Housing Authority Ordinance, 1982. The core issue raised before the learned Division Bench was that the notifications were incompetently issued' as the authority constituted under section 4 of the Sindh Cooperative Housing Authority Ordinance, 1982 does not exist as all of its members have either relinquished their positions as member thereof except the Chairman, Secretary Housing and Town Planning, Government of Sindh, Registrar Sindh Cooperative Housing Society and the Managing Director, Sindh Cooperative Housing Society, which membership is by succession. The relevant portion in which the aforesaid legal position was dilated upon is reproduced as under :--- "Mr. Ahmed Ali Ghumro has in response to the objection raised by the learned counsel for the petitioner relied upon the notification dated 1-3-2001 at page 219 of the file, whereby the Authority was re-constituted by the Secretary Cooperation Department, Government of Sindh; he submits that though out of ten members, members at serial Nos.4, 5, 6, 7, 8 and 9 are no more the members of the Authority, however, the Secretary Cooperation, Secretary Housing and Town Planning and the Registrar, Cooperative Housing Societies, Government of Sindh and so also Managing Director, Sindh Cooperative Housing Societies Authority are still there by virtue of their offices. However, the learned counsel has perhaps ignored subsection (4) of section 4 of the Ordinance, which provides that an official member appointed by virtue of his office shall cease to be a member on vacating such office. As noted above, the notification relied upon by Mr. Ahmed Ali Ghumro is of 1st March, 2001, and since then the offices of the various officers, as nominated members of the Authority, have been vacated and filled up many times, whereas, as noted above, upon vacating the offices such officers have ceased to be the members of the Authority and despite repeated opportunities granted by us and adjournment sought by Mr. Ghumro he has not been able to place before us any notification of substitution of the officers who held their posts at the time of notification dated 1-3-2001 although the officers holding their posts and who were by virtue of such posts became members of the Authority have, in the meanwhile, vacated their offices been replaced by other officers and as such in view of subsection (4) of section 4 of the Ordinance they cannot be deemed to be the members of the Authority and in their place the other officers should have been nominated, to which effect no notification has been placed before us, therefore, it cannot be said that even the official members continued to hold their position as members and/or Chairman of the Authority and thus in fact no Authority now exists or is functional and therefore, the impugned notification is without authority and/or jurisdiction. We are thus constrained to vacate the same."
8. The learned counsel for the plaintiff relied upon the same Division Bench's judgment in which the principle of law was enunciated which goes to the roots of the case. Learned counsel argued that in the case in hand also the notification was unlawfully issued as the authority did not exist, therefore, in this case also both the impugned notifications are liable to be set aside and the plaintiff's society/union deserved restoration of its management at par. When confronted, Mr. Ahmed Ali Ghumro, Advocate who was appearing for the defendant Nos.1 to 4 candidly conceded to that this issue has already been decided by the learned Division Bench of this court in which he was himself appearing and representing the same defendants/respondents in the above C.P. On 9-5-2013 Mr.Ghumro further informed this court that in the impugned notification Mr. Amir Khursheed defendant No,5 was appointed Administrator of the union and since he has been assigned job of Registrar Cooperative Societies hence, he will not be able to perform the responsibilities of Administrator. On 15-5-2013 Mr. Ahmed Ali Ghumro filed a statement in court in which he clearly stated that the present suit may be disposed of in terms of judgment passed by this court in Constitutional Petition No,D-233 of 2013. The statement is reproduced as under:--- "I, undersigned do hereby submit before this hon"ble court that the captioned suit may be disposed of and previous management may be restored, according to the judgment passed by Divisional Bench of this hon'ble court in Constitution Petition N.D-233 of 2013 (Shamsi Cooperative Housing Society v. Province of Sindh 86 others).
' Karachi, Advocate for the official respondents Dated 15-5-2013 Cooperation Department " 1 ' After filing this statement learned counsel for the plaintiff also conceded to that in terms of Division Bench's Judgment entire suit may be disposed of with all pending applications. Mr. Faisal Siddiqui, Advocate, who was appearing for defendant No,5 also stated in the court on 15-5-2013 that though he was representing defendant No,5 (proposed Administrator) but in view of the statement filed by the defendants Nos.1 to 4 nothing is required to be added except to say that the suit may be disposed of in terms of Division Bench Judgment. However, Mr. Haseeb Jamali appearing for defendant No,6 requested for time to argue the case.
9. During pendency of the suit the plaintiff's counsel filed C.M.A. No,3702 of 2012 under Order I, Rule 10, C.P.C. To implead six persons more as plaintiffs on the ground that they are not only proper and necessary party, but also duly elected directors of the plaintiff No,1 as well as also elected President and Secretary of their respective Cooperative Housing Societies. However, after filing the statement by the official defendants in which they agreed to the disposal of this suit in view of the Divislon Bench Judgment, the learned counsel for the plaintiff did not press this application. He further argued that all other pending applications filed by the plaintiff be also disposed of accordingly as after filing the statement by the official defendants, there is no necessity to pursue the lis any more and the bone of contention or the sticking point involved, in this case has already been decided by the learned Division Bench.
10. On 24-5-2013 the suit was fixed for the arguments of Mr.Haseeb Jamali, Advocate for the defendant No,6, when he filed application in Court under Order I, Rule 10, C.P.C. And prayed that the present plaintiff be transposed as the defendant and his client the defendant No,6 be transposed as plaintiff in the present suit. He further requested that the Managing Director Sharif Bhaiji be also added as defendant in the suit. Let me first clarify that earlier the same defendant No,6 has filed a Suit No,27 of 2010 against the plaintiff and its Managing Director, Sharif Bhaiji and in that suit, the defendant No,6 being plaintiff sought the declaration that the society, is allowed and entitled to 211.98 acres of land in Scheme No,45 Taiser Town, Karachi and directions were also sought against the Malir Development Authority to issue allotment letters in favour of said plaintiff with peaceful physical possession. It was also claimed in the suit that the Managing Director Sharif Bhaiji is not entitled to run the aforesaid union who usurped the office of Managing Director. Restraining orders were also prayed against him not to act as Managing Director of the union and mandatory injunction was sought against him to give complete details of his present bank accounts. The suit was disposed of by consent on 12-9-2012 on the terms and conditions mentioned in paragraph 7 of the judgment.
11. Mr.Haseeb Jamali argued that the Suit No,27 of 2010 was disposed of by consent but while disposing of the suit, this court allowed the present defendant No,6 to take up pending issues in the Suit No,545 of 2012 and since the official defendants have clearly given their statement the matter be disposed of in terms of Division Bench Judgment, therefore, the defendant No,6 feels it appropriate to be transposed as plaintiff in the suit and the plaintiff be transposed as defendant.
The purpose of filing this application is not to dispose of the suit in which the present plaintiff has challenged the notifications and even the defendant No,6 was not made defendant on institution of suit but they were arrayed as defendant No,6, later on i,e, after disposal of Suit No,27 of 2010. The relevant portion of the judgment rendered by me in Suit No,27 of 2010 which is roaming around the present controversy is reproduced as under:--- "viii. The learned counsel for the plaintiff argued that though matter has been amicably resolved but his prayer clause (c) with other ancillary and incidental prayers is still intact in which declaration was sought that the defendant No,4 is not entitled to run the affairs of defendant No,2.
Mr. Shams argued that Suit No,545 of 2012 is pending in this court in which the notifications superseding the defendant No,2 is under challenge and operation of both notifications has been suspended. Mr. Haseeb Jamali submits that in that suit, he has also filed application under Order I, Rule 10, C.P.C. On behalf of the plaintiff (Dehli Mercantile Cooperative Housing Society) for impleading them as party. Let the said application be decided in that suit on its own merits.
However, keeping in view the pendency of above application in Suit No,545 of 2012, the learned counsel for the plaintiff does not press the prayer clauses in this suit which-are related to the defendant No,4".
' In support of his arguments Mr. Haseeb Jamali, Advocate has relied upon the following case-law:- --
(1) PLD 1992 Supreme Court 590 (Central Government of Pakistan and others v. Suleman Khan and others. Order I, Rule 10, C.P.C. Is very wide in its scope. The power to transpose is derived amongst others, from the said provision which has always been interpreted liberally so as to achieve the complete adjudication of all the questions which are involved in the lis, one of the purposes being to avoid multiplicity of the proceedings. In other words the power to transpose is to be exercised liberally and no technical hurdle is considered so strong as to override the considerations of "adjudication" or right to justice. It is in that very context that when a defendant/respondent is transposed as plaintiff/appellant no question of limitation as such is involved. Order I, Rule 9. C.P.C.
Gives also, very strong support for the foregoing approach regarding interpretation and application of Order I, Rule 10, C.P.C. This provision (Rule 9) is in a mandatory negative form; namely, that no suit shall be defeated by reason of the misjoinder or non-joinder of parties and the Court may in every suit deal with the matter in controversy so far as regards the rights and interests of the parties are concerned. What is applicable to the plaintiff and defendant at the trial stage can also apply in appeal, to the appellant and the respondent.
(2) PLD 1998 Lahore 441 (Rafaqat Ali v. Government of the Punjab and others). Plaintiff was entitled in terms of Order XXIII, Rule 1(1), C.P.C. To withdraw his suit/appeal or abandon his part of claim against all or anyone of defendants. Such right of plaintiff being indefeasible, no Court would have right to clog the same and keep unwilling plaintiff in arena of litigation. Where plaintiff had moved such application in Court, it had no option but to accede to his request. Plaintiff's such right was, however, subject to two limitations. Firstly, that where plaintiff had withdrawn his suit or had abandoned part of his claim, he would be precluded from instituting any fresh suit in respect of same subject-matter or same part of claim; secondly, that plaintiff was not entitled to withdraw his suit when preliminary decree had been passed under which rights had accrued to other side or some right had been decided in favour of that side. Appellant on the same analogy would have unconditional right to withdraw his appeal and constitutional petition out of which appeal had arisen and whereby parties were directed to first avail of remedies provided in contract in question, which was agreed and signed by parties. Respondent, thus, had not acquired any vested right whatsoever under impugned order of High Court. Appellant, therefore, had unfettered right to withdraw his Intra-Court Appeal as well his constitutional petition, there being no legal impediment/ prohibition in his way.
12. There is no cavil to the well-settled proposition of law that in appropriate cases transposition of the parties may be made but for that reason each case and its facts have to be examined separately with aims and objectives as to what purpose will be served in case of transposition of parties. In the present case defendant No,6 wants to be transposed as plaintiff with the prayer that the plaintiff be transposed as defendant. If I see pith and substance of the plaint, no benefit will be achieved by the defendant No,6 even after transposition, as in the present case the bone of contention is confined to the effect of two notifications issued by the official defendants against the plaintiff for inquiry and supersession of the society with the appointment of administrator. If the defendant No,6 is transposed as plaintiff then by all means after becoming plaintiff they will be espousing the cause of plaintiff and the matter will remain within the framework of challenging two notifications and if after transposition, application for amendment is made then the entire plaint will require to be amended, so in my view mere transposition will not serve the purpose. The grievance of the defendant No,6 is basically against the. Managing Director of the plaintiff against whom no allegation is mentioned in the plaint and rather being an office-bearer of the plaintiff he claims to be one of the affectees and also filed application for becoming a party so that he may support the cause of plaintiff. Learned counsel for the defendant No,6 relied upon para (viii) of order rendered by me in Suit No,27 of 2010, which was disposed of with the consent of the parties.
The said paragraph, which has already been reproduced in para 11 of this judgment only speaks that application under Order I, Rule 10, C.P.C. Is pending in this case and this application, will be decided on its own merits and on the strength of this order the defendant No,6 was impleaded in this suit with the consent of plaintiff's counsel.
13. Learned counsel referred to the case of Central Government of Pakistan (supra) in which the hon'ble Supreme Court held that the power to transpose is derived amongst others, from the said provision which has always been interpreted liberally so as to achieve the complete adjudication of all the questions which are involved in the lis. It was further held that no technical hurdle is considered so strong as to override the considerations of adjudication or right to justice. The facts and circumstances of this case are distinguishable as controversy involved in the said case was that whether the appeals filed by the Central Government before the High Court were competent and relying on Well-known case of Pir Khan v. Military Estate Officer reported in PLD 1987 SC 485 the court held that appeals were not competent. The applications made by Collector, who was respondent in all the appeals before the High Court for transposition as Collector with a view to remove the defect, were also dismissed therefore, the hon'ble Supreme Court transposed the Collector to the position of an appellant. The next case cited by the learned counsel is the case of Rafaqat Ali in which the learned Division Bench of Lahore High Court held that the plaintiff is entitled in terms of Order XXIII, Rule 1, C.P.C. To withdraw his suit and when plaintiff moved such application in court, the court has no option but to accede to his request subject to two limitations. Firstly, where the plaintiff had withdrawn his suit or had abandoned part of his claim, he would be precluded from instituting any fresh suit in respect of same subject matter or same part of claim, secondly, that plaintiff was not entitled to withdraw his suit when preliminary decree had been passed under which rights have accrued to other side or some rights had been decided in favour of that side. Neither in this case the plaintiff is withdrawing the suit nor preliminary decree has been passed in this case rather the official defendants have themselves given statement in writing that in terms of aforesaid C.P. The suit may be disposed of. So this case-law is also distinguishable to the facts and circumstances of the present case.
14. The most important aspect of this case is that the official defendants while filing the statement in no way suggested or agreed that on disposal of this suit in view of the above C.P.'s order they will relinquish, abandon and or withdraw the action but after rectifying and curing the pointed out defects they will take appropriate action for which the learned D.B. Has also given 45 days to them for passing an appropriate order by the competent authority and the learned D.B. In the case of Shamsi Society Cooperative Housing Society restored the management with the embargo that the management shall neither sale and or allot any land of the society nor shall it effect any mutation in favour of any party and shall make only such expenses which is inevitable to run the day to day affairs of the society and this embargo shall remain in force till 45 days from the date of order or till such time an appropriate order is passed by the competent authority. In fact the learned D.B.
Allowed 45 days' time so that the defendants may initiate appropriate action against the cooperative society in accordance with law.
15. Learned counsel for the defendant No,6 also highlighted the previous audit reports of the plaintiff to show some irregularities by the society and its Managing Director Sharif Bhaiji. Filing application for transposition will not serve any purpose without amendment in the plaint and if the plaint is amended it will change the entire complexion of the suit so it would be better to file fresh suit against the illegalities or misdeeds if any, rather than to become a plaintiff in this suit.
Consequently, application filed in court under Order I, Rule 10, C.P.C. For transposition is dismissed.
Office is directed to mark C.M.A. Number on this application, however, this order will not affect the defendant No,6 's rights if any, to file fresh suit against the plaintiff and its office- bearers.
16. Learned counsel for the defendant No,6 also pointed out C.M.A. No,6700 of 2012, which was filed by defendant No,6 under Order XXXIX, Rule 2(3), C.P.C. Learned counsel argued that vide order dated 29-5-2012 this court directed the plaintiff's counsel to file statement of all the bank accounts in which the plaintiff's society has funds and such statement may be duly certified by the concerned bank. The matter was adjourned to 5-6-2012 on which date again the counsel for the plaintiff undertook to file accounts during the course of the day. Learned counsel argued that the plaintiff's union is holding billion of rupees of its member societies including the defendant No,6 but they only disclosed four accounts with meagre sum. In this application the alleged contemnor is Noman Razzak, who is allegedly real nephew of plaintiff's Managing Director Sharif Bhaiji who was performing duties of acting Managing Director of the plaintiff. Counter-affidavit was filed by the alleged contemnor in which he denied to have committed any contempt. However, it was submitted in the counter-affidavit that the plaintiff's union is holding interest worth of billions of rupees in the shape of investments, immovable properties and land. Learned counsel argued that the matter of contempt is between the court and the contemnor and despite disposal of this suit this application shall remain pending so that this court may examine whether court's orders were complied with or flouted by the alleged contemnor. In my view this argument of the learned counsel for the defendant No,6 seems to be reasonable and logical, therefore, it is necessary to see whether the alleged contemnor should be tried and for that issues are required to be framed but after hearing the counsel for the alleged contemnor and defendant No,6 whether any case of contempt is made out or not. This application will remain pending for decision in accordance with law despite disposal of the suit.
17. One Muhammad Riaz has also filed two applications under Order I, Rule 10, C.P.C. (C.M.A. No,1724 of 2013) and another application (C.M.A. No,5170 of 2013) under section 151, C.P.C. In these applications the intervener Muhammad Riaz stated that he is lawful owner of Plot No,56-C/ 1, Al- Riaz Cooperative Housing Society, which was transferred in his favour by the Administrator Al-Riaz Cooperative Housing Society. In paragraph 6 the intervener stated that recently he came to know through a public notice dated 15th and 16th March of 2012 published in daily Jassarat Karachi that one Muhammad Mohsin wants to purchase the said plot from Muhammad Junaid. In another application he prayed that the plaintiff and Syed Amjad Shafqat may be called in person to unveil the truth. In the present controversy where the plaintiff has challenged only the legality of two notifications issued against them, the question of any individual plot or its allotment or transaction between the two private parties is not the subject matter of this lis. Counsel for the intervener Mr. Irfan Aziz also argued that he wants to become a party in this case as an abundant caution while their separate C.P. Is already pending in this court. In my view neither intervener is proper party nor necessary party in this case where the dispute is only between the plaintiff and official defendants in relation to the supersession of the plaintiff and the appointment of administrator. Both the applications are dismissed, however, the intervener may initiate his independent legal action in accordance with law.
18. One more application (C.M.A. No,6108 of 2013) has been filed under Order I, Rule 10, C.P.C. By the Section Officer (Ground Rent Section), Ministry of Housing Works, Government of Pakistan, which is supported by affidavit of Sohail Sarwar Jaura. The intervener stated in his application that being owner of the area handed over to the plaintiff for planning and development of the same under the conditions contained in main license agreement executed between the plaintiff and Government of Pakistan, the intervener is proper and necessary party. Keeping in view the present controversy, I have no hesitation in my kind to hold that the Section Officer has nothing to do with this case. If the Ministry of Housing and Works, Government of Pakistan has any grievance or they feel any violation of main license agreement, they may initiate their own independent action as mere impleading them as one of the defendants in this suit will serve no purpose, as the controversy involved in the present suit is altogether different. This application is also dismissed.
19. Now I would like to revert back to the order passed by learned Division Bench in C.P.No,D-233 of 2013. The C.P. Was disposed of in the following terms:- "We would, however, direct the Secretary Cooperation Department, Government of Sindh to, if there is sufficient material against the deposed management, proceed against them in accordance with Law and in the meanwhile the deposed management, as a consequence of the above, stands restored. They may function in accordance with Law till such time an appropriate order is passed by the competent authority in accordance with Law, however, subject to the condition that the restored management shall neither sale and/or allot any land of the society nor shall it effect any mutation in favour of any party and shall make only such expense which is inevitable to run the day to day affairs of the society. This embargo shall remain till 45 days from today or till such time an appropriate order is passed by the competent authority.
' The petition along with the pending applications stands disposed of in the foregoing terms."
20. Though the plaintiff and the official defendants agreed the disposal in the above terms, That one more important aspect needs to be addressed which cannot be ignored lightly that in the present case the plaintiff is not only a cooperative society but it is also a union of various societies and all cases of mutations and transfers are forwarded to them for approval in accordance with the law and bye-laws of the union as well as the societies concerned. So it is necessary that this suit may be disposed of on some additional terms of which if due care is not given it will seriously affect the interest of union/plaintiff, members societies and their members and public at large. It is also a fact that initially both the impugned notifications were suspended by the learned Single Judge of this court but subsequently another learned Judge of this court modified the order to an extent that Nazir will keep on paying salary of the staff of the society as well as all necessary day to day expenses and besides Nazir no one would operate accounts of the society. It was further ordered that the record of the society shall remain in the custody of Nazir and the day to day working shall be undertaken by the Nazir which would be at liberty to take assistance of the plaintiff's staff. In view of the modified rather merger of two orders, the Nazir processed many cases of mutations and transfers through his office and submitted various reports. Nazir in his report submitted that in view of the court's order dated 7-3-2013, the Acting Managing Director deposited ten cheque books of different banks accounts to the Nazir of this court on 6-9-2013. Nazir also took various steps in view of the judgment passed 'by me in Suit No,27 of 2010 under which the defendant No,6 being plaintiff handed over' cheques to the Nazir of this court for compliance of consent decree. Since Nazir has taken various steps for the mutation and transfer, therefore, it would be in the larger public interest that this process shall continue with intimation and approval of the defendant No,2, who is the Registrar Cooperative Societies. Mr. Ali Ahmed Ghumro, Advocate and Mr. Imdad Mughal, Section Officer (Technical) Cooperation Department referred to bye-law No,19 of the plaintiff which provides that the executive management of the affairs of the union (plaintiff) shall be vested in the board of directors constituted as under:---
(a) One Director from each Member Society as per bye-law No,12(a);
(b) One will be the Registrar or his nominee;
(c) One will be the Secretary of the Ministry of Works or his nominee.
21. When this bye-law was referred to Mr. Ahmed Ali Ghumro he clearly stated that the Registrar is one of the members of the Board of Directors and as an interim measure the mutation and transfer cases may be processed with the consultation and approval of the defendant No,2 or his nominee.
It is also a fact that when the management will be restored in view of the C.P.'s order, as a consequence thereof, Nazir has to deliver or return back all the cheque books to the restored management with complete accounts including receipts/evidence of payment made by the Nazir to MDA in pursuance of decree passed in Suit No,27 of 2010 for which the defendant No,6 has also a vested right to know and have the copies and evidence of entire payment made by the Nazir on their behalf to MDA
22. For the foregoing reasons the suit is decreed in the following terms:---
(i) In view of the judgment passed by learned D.B. In C.P. No,D-233 of 2013, the impugned notifications are declared to have been issued without lawful authority and or jurisdiction, hence the same are set aside. Consequently, the management is restored.
(ii) Since the management has been restored, they may function in accordance with law till such time appropriate order is passed by the competent authority in accordance with law, however, subject to the conditions that the restored management shall neither sell nor allot any land of the society to any party and shall make only such expenses which is inevitable to run the day to day affairs of the society and shall also maintain proper accounts of all such expenses. This embargo shall remain in force till 45 days from the date of this judgment or till such time appropriate order is passed by the competent authority. The Secretary, Cooperation Department, Government of Sindh may proceed against the plaintiff if there is sufficient material against the management.
(iii) Since I have already observed that the plaintiff is a union of cooperative societies and under their bye-laws various cases of transfer and mutation of different plots are processed through them, therefore, for members societies cases of transfer and Mutation; the restored management may process the cases in the larger public interest subject to the intimation and approval of Registrar Co-operative Societies, who is ex-officio member of the board of directors of the union/plaintiff. The plaintiff shall maintain proper accounts and copy of accounts will also be supplied/ delivered to the Registrar of Cooperative Society for the fee/charges received against transfer/mutation.
(iv) Nazir of this court shall return back the cheque books to the restored management with complete accounts of expenses and the payment if any received or made by him on behalf of plaintiff in view of the orders dated 5-6-2012.
(v) Nazir will also supply copies of accounts along with the latest bank statements of all the accounts operated by the Nazir on behalf union to the counsel for the defendant No,6 and the Registrar Cooperative Societies (defendant No,2).
(vi) The defendant No,6 has already filed an execution application No,12 of 2013 for the satisfaction of decree passed in Suit No,27 of 2010. It is clarified that this judgment will not affect the execution application or the judgment and decree passed in Suit No,27 of 2010, which will proceed in accordance with law and if court deems fit, the notice will also be issued to the Registrar Cooperative Societies, so that the judgment may be implemented and the decree may be satisfied with his knowledge and information.
(vii) Though 45 days' time has already been allowed to the official defendants for passing an appropriate order by the competent authority in view of the aforesaid order. Of C.P. But at the same time and in addition thereto the Registrar Cooperative Societies is also at liberty to initiate action under section 43 of the Cooperative Societies Act, 1925 in view of the judgment rendered by me in the case of Delhi Mercantile Cooperative Society Ltd. v. Registrar Cooperative Societies reported in 2011 YLR 2121. viii) The C.M.As. Filed by the plaintiff which are listed at Sr.Nos.1, 2, 4, 5, 6, 9 and 10 and civil miscellanous applications listed at Sr.No,7 filed by the defendant No,6 are disposed of in the above terms.
(ix) The C.M.As. Listed at Sr. Nos.11, 12 and 25 filed by the interveners are dismissed in terms of paragraphs 17 and 18 of this judgment. One more application Tiled by defendant No,6 in court under Order I, Rule 10, C.P.C. For transposition is also dismissed in terms of paragraph 10 to 15 of this judgment.
(x) So far as C.M.A. No,6700 of 2012 filed by defendant No,6 is concerned, it will remain pending for further proceedings in view of paragraph 16 of this judgment. Office is directed to fix this application for hearing in court according to roster.
(xi) All Nazir reports are taken on record.