Civil Miscellaneous Appeal No. 5048 of 1979 is an application under Order VII, rule 11, C. P. C. Moved by defendant No. 2 for rejection of the plaint. C. M. A. 5949/79 is a similar application under Order VII, rule 11, C. P. C. Read with section 70-A of the Co-operative Societies Act, 1925, for dismissal of the suit moved by defendant No. I:
2. This suit has been filed by the plaintiff for permanent injunction against the defendants.
According to the plaint, the plaintiff had been alloted a plot of land in P. E. C. H. Society Ltd. Karachi (hereinafter referred to as "the Society") in 1973, the allotment order was acted upon and a sublease was also granted to the plaintiff by the Society and the same was duly registered on 20- 10-1973, and the plaintiff was put in possession of the plot. According to the plaintiff, he has developed the said plot and raised a boundary wall, constructed a room on the said plot where his Chowkidar is living. According to the plaintiff, all dues of the Society including share money had been paid by him. In 1974 the Society gave a notice to the plaintiff that he was not eligible to be a member of the Society. The notice was replied and the matter was dropped, according to the plaint. However, after 4 years on 8-11-1977, Administrator of the Society by a single cyclostyled order cancelled allotments of 76 persons including the plaintiff. The plaintiff challenged the said order through Constitution Petition No. 1009j78, which was allowed by a Division Beach of this Court by judgment dated 16-10-1978. It appears from the plaint that the Society again cancelled the plot of the plaintiff without giving any notice to the plaintiff. The plaintiff has alleged that he was never intimated the reasons or the grounds on which the Society wanted to hold the plaintiff ineligible for the membership of the Society.
3. For the purposes of deciding the two applications under Order VII, rule 11, C. P. C. I consider it proper to reproduce here paras. 14 to 22 of the plaint :- "(14) That the plaintiff is in possession of the plot in question as its lawful owner. The plaintiff has filed case against the society under section 54 of the Co-operative Societies Act before Registrar which has been admitted and it has been ordered that the status quo should be maintained. Copy of the order of the Registrar is submitted and marked `C'.
(15) That when plaintiff filed case under section 54 before be came to know that one Major A. M.
Waquad (Rtd.) had filed claim against the society regarding the plot in suit which was referred by the Registrar, Co-operative Societies to his nominee who gave an award that the allotment of the plot in suit in the name of Mr. S. M. A. Zia stands cancelled and the society should allot the plot to Mr. A. M. Waquad. The society however filed appeal which is pending.
(16) That on 5-9-1979 the Chowkidar of the plaintiff informed the General Attorney of the plaintiff that since last few days some persons were threatening and harassing him to vacate the plot. The plaintiff's attorney made such a report to the Police. Copy of the application is submitted and marked 'D'.
(17) That on 5-9-19-9 some persons came on the plot in suit and wanted to take forcible "possession of the same but the attempt was thwarted. The plaintiff's general attorney has lodged such a report.
(18) That when the plaintiff's General Attorney lodged the report it came out that the men who had tried to take forcible possession were of defendant No. I who claims to be allottee of the plot in suit.
On enquiries the plaintiff has learnt the society had allotted the plot to defendant No. 1 on 27-6- 1978.
(19) That by virtue of the judgment of this Honourable Court in C. P. 1009/78 setting aside the order of cancellation against the plaintiff the allotment of the plot in suit in favour of the defendant No. 1 automatically stands cancelled. Defendant No. 1 has no right to the plot in question.
(20) That in any case the defendant No. 1 has no right to take the law in his own hands and forcibly dispossess the plaintiff.
(21) That to the best of plaintiff's knowledge no allotment in consequence to award has yet been made in favour of defendant No. 2.
(22) That the cause of action accrued to the plaintiff on or about 5-9-1979 when the defendant No. 1 attempted to take forcible possession of the plot in question."
4. The only prayer that the plaintiff has made in the present suit is as follows :- "Prohibit and restrain defendants from interfering with the plaintiff's possession of Plot No. 141-K, Block-2, P. E. C. H. Society, Karachi themselves or through any other agency by any process and/or means whatsoever."
5. I have heard learned counsel for the parties at length on these two applications. According to counsel for the defendants, the present suit is not maintainable and is barred by the provisions of sections 54 and 70-A of the Co-operative Societies Act, 1925. According to Mr. Mohammad Sharif, before section 54 becomes applicable to a case, two conditions have to be fulfilled, and these are
(a) There should be a dispute touching the business of the co-operative society ;
(b) The dispute should be between the categories of persons mentioned in section 54.
Mr. Mohammad Sharif, learned counsel for the plaintiff, admitted that the second condition was fulfilled in the present case as all the parties are member of the Society. However, according to him the dispute in the present suit is confined to the illegal threatened ejectment of the plaintiff from his property and this, according to learned counsel, cannot be considered a dispute touching the business of the Society.
6. When a Court considers an. Application under Order VII, rule 11, C. P. C., the argument proceeds on the assumption that the allegation contained in the plaint are true and correct and the Court rejects the plain under this provision of C. P. C. Only if it reaches the conclusion that eve if all the averments in the plaint are taken to be correct, the plaintiff will no be entitled to the relief claimed.
In this connection Mr. Mohammad Sharif, learned counsel for the plaintiff referred to the following reported judgments :-
(i) Phaloomal Mottuam v. Abdul Quddus Behari PLD 1971 Kar. 250.
(ii) Seven Stars Goods Transport Co. v. Administrator, K. M. C. PLD 1976 Kar. 21. .
(iii) Din Muhammad v. Mehar A.I Khan PLD 1978 Kar. 267.
(iv) Yousuf Mitha v. Aboo Baker PLD 1980 Kar. 492.
The aforesaid judgments confirm the well established principle that a Court while considering an application under Order VII, rule 11, C. P. C. Will assume the allegations in the plaint to be correct.
Learned counsel for the defendants have not challenged this principle and arguments have been addressed keeping this in view.
7. According to learned counsel for the defendants, perusal of the plaint in this case shows that there is a dispute about allotment of the plot and threats of dispossession that are being given to the plaintiff, according to the plaint itself, are connected with the question of allotment. The further contention was that the plaintiff in para. 14 of the plaint has himself admitted that he has filed a case before the Registrar, Co-operative Societies, which has been admitted and it has been ordered that the status quo should be maintained. 1n fact a copy of the order dated 3-9-1979 of the Deputy Registrar Co-operative Societies Karachi has been filed as Annexure "C" to the plaint.
The precise contention of the learned counsel, for the. Defendants was that as the dispute has been taken by the plaintiff himself before the Registrar under the provisions of the Co-operative Societies Act, 1)25, and that the dispute referred to in the plaint is connected with the question of allotment of the plot as would be evident from a bare reading of the plaint, the dispute in the present suit is within the competence and jurisdiction of the Registrar, Co-operative Societies under section 54 of the 1925 Act, and by virtue of section 70-A of the said Act, the present suit is not maintainable and is specifically barred.
8. Mr. S. Z. A. Qureshi, learned counsel for defendant No. 1, in support of his contention that the subject-matter of the plaint in this suit affects the business of the Society, referred to Bye-laws 54;i) and 54(q) of the Society. These two bye-laws are contained, in Chapter XI under the heading "Powers of Committee". These two bye-laws read as under :- "(i) to make, revoke and alter time to time and at all times enforce such regulations, terms and conditions relating to the tenants of the Society and the property of the (society) and the lending (including restrictions as to subletting) and sale thereof (including making and guaranteeing advances to members of the Committee think fit, provided that all such regulation, terms and conditions and any alterations thereof or addition thereto shall be previously approved in writing by the Registrar and shall not be acted on until so approved;
(q) To cancel any . Allotment of land or suspend any facilities or services provided by the society, if the allottee/member fails to pay development charges or any other dues of the Society after due notice ; ".------------------------------------------ Bye-Law 54(f) is a general bye-law giving power to the Committee of the Society to make, revoke, alter or enforce terms and conditions relating to the tenants of the Society. Bye-Law 54(q) gives power to the Committee to cancel any allotment of land or to suspend any facilities/services if the allottee/member fails to pay any charges or dues of the Society. In my view neither of these two bye-laws gives any power to the Committee of the Society to eject an allottee who is in' possession of his plot. These bye-laws do not assist the learned counsel.
9. Mr. Qureshi, learned counsel for defendant No. 1, had placed great reliance on Annexure "C" to the plaint which is the order dated 3-9-1979 of the Deputy Registrar, Co-operative Societies. Karachi.
On an observation from the Court that the -application under section 54 of the Co-operative Societies Act, 1925, of the plaintiff on which the Deputy Registrar has passed this order, had not been filed by the plaintiff alongwith the plaint, Mr. Mohammad Sharif, learned counsel for the plaintiff, produced a copy of the said application. A perusal of this application shows that the plaintiff, as applicant, has filed this application with the Society .As the only oppenent. In this application, the plaintiff has stated that he was the allottee in posses--sion of the plot, that the Society had accepted the order of the allotment in favour of the applicant and had acted upon it and recovered full dues of the plot, and that in fact the plaintiff was a registered member of the Society and share money had also been recovered from the plaintiff before the deed of lease was executed in his favour. In the said application, grievance was made that his allotment had been cancelled illegally and without notice to him; the plot had been alloted to another person whose particulars were not being disclosed by the Society, the plaintiff was informed about the cancellation of his allotment by letter dated 3-2-1979 of the Society. By this application the plaintiff challenged the proceedings of cancellation of his plot. He also complained that other allotees, whose names and particulars were kept a secret, were repeatedly harassing his Chowkidar and other men living on his plot and they were being threatened everyday. The following prayer was made in the application :- "It is therefore, requested that this hon'ble Court be pleased to decide this matter in accordance with law after hearing all the parties. In the meanwhile maintenance of status qno may kindly be ordered."
It was on this application that the Deputy Registrar, Co-operative Societies by his order dated 3-9- 1979 (Annexure "C" to the plaint) passed the order directing parties to maintain status quo. The contention of The Mr. Qureshi was that the plaintiff has himself chosen the forum under the Co- operative Societies Act, 1925, and the matter is pending before the Deputy Registrar from whom the plaintiff has even obtained an order of status quo, and, therefore, plaintiff's own case would be that this was a dispute covered by section 54 of the 1925 Act and the present suit would, therefore, be barred.
10. Mr. I. H. Zaidi, learned counsel for the defendant No. 3 supported the contentions of counsel for defendants Nos. I and 2. According to him, the dispute in the present suit touches the "business" of the Society and accordingly the suit was barred under section 70-A of the 1925 Act. Counsel referred to a Full Bench decision of the Madras High Court in the case of Madhava Rao v. Surya Rao AIR 1954 Mad. 103He invited my attention specially to the following passages at pages 107 and 108 of that report :- "We may now proceed to consider the meaning of the expression 'dispute touching the business of a registered society'. The words 'touching the business of a society' must be given their full import.
Here we should bear in mind that the object of the legislation, which brought into existence these corporations for a definite purpose, was not only to confer complete autonomy on them in matters of internal administration but as part and parcel of the scheme to set up a forum to settle what may be generally referred to as their internal disputes finally and without interference by the ordinary Courts of the land. The word `touching' does not present much difficulty, as its dictionary meaning is 'in reference or relation to, respecting, or concerning' thus indicating that the disputes need not directly arise out of the business of the Society but that it is enough that it should have reference or relation to or concern the business of the society. The word `touching' was clearly not intended to restrict the meaning of the word 'business'; it was designed to enlarge its scope. The disputes were not to be restricted to matters arising from and out of the business of the society, but were also extended to matters which are in some way con--cerned or related to the business of the society. The word "business" is used in different senses in different contexts. The dictionary meaning of the word includes 'activity, occupation, function and a person's business includes the work to be done on his behalf.' Vide Shorter Oxford English Dictionary, page 239. In some Acts, for example, the Companies Act, section 4 the word 'business' is used in a wider sense than the mere trade. Under the income-tax law, it may mean trade or occupation. excludes by the exception disputes regarding disciplinary action taken by the society or its committee against a paid servant of the society, thereby indicating that but for the exclusion it would have been a matter relating to the business of the society. It is no doubt true that some sections of the `Act' refer to the `affairs of the society' for example sections 14 and 16, while others refer to the business of the society. It was contended on behalf of the petitioners that the word `affair' is wider in its import than the word "business'. But we think there is no justification for this distinction. The dictionary meaning of the word `affairs' is: what one has to do or has to do with; business. The words `affair' and 'business' in our opinion have been used as interchangeable terms in the Act and are not intended to denote different concepts. The business has to be that of the society, i.e. the corporate activity of the society. What the permissible corporate activities of the society are have to be gathered from the sections of the Act, the rules framed under the Act and the bye-laws made by the corporation.
(15) The learned counsel for the petitioners restricted the meaning of the word "business" to all activity within the scope of the objects of the society, though he was willing to include matters necessary and incidental to carry out. The objects of the society. On this assump--petition he contended that the election of directors by the general body was not within the scope of business so defined. In order to find out the business of the society, one cannot confine oneself to the objects enumerated in the bye-laws; one has also to examine the provisions of the Act "and the rules and the bye-laws. All that is permitted to, be done by the bye-laws, which are 'intra vires' the Act, by the provisions of the Act and by the rules must be deemed to be the business of the society."
11. Relying upon this Full Bench judgment, Mr. Zaidi contended that the "business" in section 54 of the 1925 Act should be liberally construed. I am in agreement with the view of the Madras High Court to the effect that the "business" have to be that of the Co-operative Society i.e., the corporate activity of the Co-operative Society, and what are the permissible corporate activities of a Co-operative Society, according to Madras High Court Full Bench, have to be gathered from the sections of the Act, the rules framed under the Act and the bye-laws made by the co-operative society.
12. Mr. Zaidi then referred to a judgment of Qadeeruddin Ahmed, J. In the case of Sind-Baluchistan Provincial Co-operative Bank Ltd. v. Dilawar Khan (1). In this judgment, the learned Single Judge relying upon the case of Mian Mubarak Din v. Registrar Co-operative Society West Pakistan (2), held that an election dispute relating to the elections of a Co-operative Bank was a dispute touching the "business" of the Co-operative Bank and was, as a result, a matter within the jurisdiction of the Registrar Co-operative Societies. Injunction issued by a civil Court against holding of elections of the co-operative Bank was accordingly set aside. In my view this decision is of no help to the defendants. The decision in that case is not relevant to the point involved in this case.
(1) PLD 1970 Kar. 200(2) PLD 1957 Lah. 1913
13. Learned counsel also referred to a decision of the Supreme Court of Pakistan in the case of Lyallpur Motor Co. v. Standard Co-operative Bank Ltd. 1974 SCMR 226. The facts of that case were that a suit had been filed by the petitioner for the declaration to the effect that the defendant/respondent --Co-operative Bank (in Liquidation) acting through its liquidator was not entitled to recover from the petitioner a certain amount as arrears of land revenue. A permanent injunction was also prayed for to restrain the respon--dents from recovering the said amount. The Supreme Court, dismissing the Petition for Special Leave held that the liquidator was empowered under section 50(j) of the 1925 Act to issue a requisition under section 59 upon the Collector for the recovery as arrears of land revenue of any sum ordered by him to be recovered as dues from a member. According to the Supreme Court, the liquidator was performing an act or function which he was empowered to do by or under the Act and, therefore, the jurisdiction of the civil Court to entertain a suit against the said Act was barred under section 70-A. This judgment of the Supreme Court is also of no assistance as in the Supreme Court case the liquidator of the Co-operative Bank was performing an act or function for which he was empowered by or under the Act.
14. The real question which arises for consideration here is whether the dispute which is the subject-matter of the present suit touches the business of the Society. Mr. Qureshi conceded that in case there was no dispute about allottment of the plot and one member, on account of any private or personal reasons, was threatening to dispossess another member from the plot, such a dispute would not be covered by section 54 of the 1925 Act. His contention was that this dispute relating to possession was so connected with the allotment of the plot that it no longer remained a private dispute between the members but became a dispute touching the business of the Society.
I am, however, not impressed by this contention. The complaint of the plaintiff in the present suit is that he is in lawful possession of the plot and the defendants are threatening to dispossess him by taking the law in their own bands. Neither in the bye-laws of the Society nor in the 1925 Act, or the rules framed thereunder, is there any. Provision giving powers to the Society or any member of the Society to eject another member from a property by force. Nor do I find therein any provision giving powers to the Society or the Registrar to resolve disputes relating to threatened illegal dispossession. If a member is in possession of a plot and he is being dispossessed by another member by force thereby giving rise to a dispute, such a dispute cannot be considered as a dispute or matter touching the business of the Society. The corporate activities of the Societies, do no include the power or authority to resolve disputes of such a nature. Nor doe any provision of the Act of 1925 or rules framed thereunder confer any power B on the Registrar to resolve such disputes. Such disputes have to b.- resolved b the ordinary civil Courts and not by proceedings under section 54 of the 192 Act. It is significant to note that defendant No. t has himself filed connected Suit No. 276/80 in this Court against the plaintiff and defendant No. Claiming possession of the plot.
15. As regards the question of allotment, I am of the view that this is a matter which is covered by section 54 of the 1925 Act. In fact Mohammad Sharif, learned counsel for the plaintiff, made a clear statement that he was not seeking any relief in the present suit in relation to the allotment, for resolution of which dispute, according to learned counsel, the plaintiff has approached the Registrar,. Co-operative Societies for relief under the Act of 1925. According to Mr. Sharif, the only relief that he is seeking in the present suit is that the plaintiff, who is in possession of the plot in question, should not be dispossessed by the defendants except in accordance with law.
16. As regards the application made by the plaintiff under section 54 of the Act, I find that the application is in relation to the allotment of the plot and the filing of the said application does not debar the plaintiff from filing the present suit seeking an injunction against the defendants from interfering with the plaintiff's possession of the plot in suit which relief can only be granted by a civil Court. Mr. Sharif had further stated that he is not seeking an injunction from this Court that he cannot be dispossess.-d in accordance with law. According to him, the defendants are trying to eject the plaintiff in an arbitrary fashion by taking the law into their own hands. The relief that the plaintiff, therefore, claims is that he may not be ejected or dispossessed except in accordance with law. In my view for seeking such relief the present suit is maintainable and is not barred by any provision of the Co-operative Societies Act, 1915.
17. 1 may also mention here two provisions which were referred to by Mr. I. H. Zaidi, learned counsel for defendant No. 3. According to Mr. Zaidi, rule 32-A of the Co-operative Societies Rules, 1927, gave power and jurisdiction to the Registrar to grant the relief sought by the plaintiff in the present suit.
Rule 32-A reads as follows :- "32-A. Interlocutory orders. The Registrar or his nominee or the arbitrators, as the case may be, may in order to prevent the ends of justice being defeated, make such interlocutory order pending the decision in a dispute referred to under section 54, a$ appear to be just and convenient."
Rule 32-A gives power to the Registrar only to pass interlocutory orders. I have already held that the Registrar had no power to decide the dispute relating to threatened forcible ejectment of one member from property by another member. If the Registrar has no powers in respect o a dispute of such a nature, obviously he cannot have any interlocutory powerin this regard. Mr. I. H. Zaidi had also referred to section 59 of the 1921 Act in support of the contention that such disputes are covered by section 54 of the Act. According to learned counsel, section 59 gives such powers to the Registrar as are conferred upon a civil Court by Order XXI of the Code of Civil Procedure. Section 59 makes provision for implementation of the orders passed by the Registrar under section. 54 and other orders mentioned in section 59. If a dispute is not covered by section 54 naturally no question would arise of implementation of any order by the Registrar in respect of such a dispute. In any case section 59 does not add to the categories of disputes covered by section 54. As rightly put by Mr. I. H. Zaidi, section 59 only deals with execution of certain orders passed by the Registrar or a liquidator.
18. As a result C. M. .A. 5048/79 and C. M. A. 5049/79 are dismissed.