1. ' SYED SAEEDUDDIN NASIR, J.---(1) Adjourned.
2. C.M.A. 3814/2008: This is an application under Order VII, Rule 11, C.P.C., read with 151, C.P.C. Filed by the legal heirs of Safia Nasreen, defendant No,4. Mr. Aasim Aziz Khan, Advocate for defendant No,4 inter alia contends that the plaint in suit is liable to be rejected inasmuch as the plaintiff has adopted wrong forum without exhausting the remedy available to the plaintiff under sections 64 and 64-A of the Cooperative Societies Act, 1925.
2. ' He next contended that the plaintiff is successor of defendant No,6 who was also member of defendant No,3, which is Cooperative Society registered under section 10 of the Cooperative Society Act, 1925. The plaintiff in para 13 and 14 of the plaint has admitted that the plaintiffs predecessor invoked the remedy under section 54 of the Cooperative Society Act, 1925 and filed ABN Case No, 84/2003 against the impugned cancellation of allotment by defendant No,3 Society.
3. ' He next contended that the plaintiff himself filed case ABN No, 112/2005 which in itself is sufficient ground for dismissal of the present suit, which is barred under section 70-A of the Cooperative Society Act, 1925. The proper course of law was not adopted by the plaintiff inasmuch as the plaintiff has challenged the order dated 14-6-2007 in the present suit without exhausting remedy under sections 64 and 64-A of the Cooperative Societies Act, 1925, ' Learned counsel for defendant No,4 further argues that merely the notice under section 70 of the Cooperative Societies Act, 1925 will not debar the plaintiff from getting the dispute resolved under section 54 of the Cooperative Societies Act, 1925 in order to change the forum for seeking remedy inasmuch as dispute relates to the touching the business of the society and the same is reflected in all the parts of the prayer clause, wherein order of defendant No,2 has been sought to be set aside, therefore, this Court has no jurisdiction to set aside the order of the Registrar Cooperative Society, which is impugned by way of this Suit. It is further contended on behalf of the defendant No,4 that the present suit is specifically barred under section 70-A of the Cooperative Societies Act, 1925 which bars the jurisdiction of Civil Court in respect of matter which relates to a Cooperative Society.
4. ' Mr. Asif Aziz, Advocate for Defendant No,4 has place reliance upon Abbasia Cooperative Bank (Now Punjab Provincial Cooperative Bank Ltd.) through Manager and another v. Hakeem Hafiz Muhammad Ghaus and 5 others PLD 1997 SC P/3 wherein it is held that the jurisdiction of the Civil Court is ousted by the provision contemplate by statutes either expressly or by sufficient implication. However, the action of the aforesaid tribunal would not be immune from being challenged before Civil Court if the same is tainted with malice and while taking action the Tribunal has violated the principles of natural justice, where, therefore, the Authority or Tribunal had acted in violation of Statutes which conferred jurisdiction on them or such action or order was made in access or in absence of jurisdiction or mala fide or was passed in violation of principles of natural justice such order could be challenged before Civil Court in spite of provisions in Statute barring jurisdiction of Civil Court.
5. ' The next case relied upon by the learned counsel for defendant No,4 was Mst. Aqua Begum and another v. Pakistan Employees Cooperative Housing Society Ltd., and others, PLD 2004 Karachi 1. In this case it is held that section 54 read with section 70-A of Cooperative Societies Act, 1925, abdicates jurisdiction of Court in respect of the matter in which jurisdiction to decide the dispose of the controversy rests either with Provincial Government, the Registrar or his nominee or any other person empowered under the Act of 1925 or the Rules of By-Laws framed thereunder.
6. ' The next case relied upon by the learned counsel for defendant No,4 was Pir Illahi Bux Co- operative Housing Society Ltd. v. K.B. Sanaullah and others, PLD 1968 Karachi 680. In this matter it is Division Bench of this Court held that by virtue of Section 70 of the Co-Operative Societies Act, 1925 jurisdiction of the Civil court barred in respect of any proceeding held in the Co-Operative Societies Act, ' The next case relied upon by the learned counsel for defendant No,4 was Syed Sultan All v.
7. Sahibzada Frogh Najam Najmi and 2 others 2003 YLR 2216. It is held in this case that by virtue of sections 70 and 70-A Co-Operative Societies Act, 1925 where any dispute touching the business of a Society arises between a member and past member of the Society or any person claiming through a member or past member, it has to be referred to the Registrar, Cooperative Society for its decision in view of Section 54 of the Cooperative Societies Act, 1925.
8. ' Turning now to the arguments extended by the learned counsel for the plaintiff Mr. Khawaja Shamsul Islam, Advocate, the learned counsel for the plaintiff vehemently opposed the present application under Order VII R.11 readwith section 151, C.P.C. In his counter-affidavit he has totally denied the contentions raised by the learned counsel for defendant No,4. At the very outset of his arguments learned counsel for the plaintiff has stated that the first case law relied upon by the counsel.For the defendant No,4 i,e, PLD 1997 SC P/3 supra favour the plaintiff's contention that when the exercise of the authority or Tribunal is tainted with malice the same could be challenged before Civil Court in spite of the provisions of statute barring the jurisdiction of Civil Court.
9. ' Learned counsel for the plaintiff has argued that the defendant No,2, registered Co-operative Society is acted illegally and without Jurisdiction inasmuch as the appeal filed by the defendant No,5 being Appeal No, 29/2004 after a lapse of about 1 year, was admittedly time barred under section 56 of the Co-Operative Societies Laws, which is as follows:-- "56. Appeal against award of arbitrator.---Any Party aggrieved by any decision of the Registrar's nominee made under section 54 [or subsection (3) of section 54-A] or an order passed under section 55 by the Registrar's nominee or Arbitrator may within one month of the date of the award of order [x x x] appeal to the Registrar and the Registrar shall decide the appeal."
10. ' The defendant No, 2/Registrar Coop. Societies in this particular case, has acted illegally without jurisdiction as the defendant No,5 filed Appeal No, 29/2004, almost after a lapse of one year, which was admittedly time barred, more particularly the same could not have been entertained by the Registrar as the ABN Award passed in case No,84/2003 had already attained finality in view of the certificate of the execution of award issued in terms of section 59(1-a) of Co-operative Societies Act, 1925 therefore, no appeal under section 56 of the Cooperative Societies Act, 1925 was maintainable except by filing the writ petition before this Court or by filing the suit. However, the defendant No,2's predecessor Mr. Shams Jasfrani illegally without jurisdiction and lawful authority, entertained the appeal under section 56 of the Cooperative Societies Act, 1925 filed by the defendant No,5, which appeal was registered as Appeal No, 29/2004, clearly showing that the same was time barred. However, the defendant No,2 neither issued any notice nor heard the defendant No,6. The defendant No,2 on 19-10-2005, without looking in to the fact that the award passed in ABN Case No, 84/2003 had attained finality and was duly executed, however, the defendant No,2 illegally without any lawful authority set aside the "Award dated 15-8-2004" and remanded the case for de novo trial. However, this made it clear that the actual award was dated 15-8-2003 and not 15-8-2004, hence in terms of law the Award dated 15-8-2003 passed in ABN Case No, 84/2003 still holds the field and admittedly neither the defendant No,4 nor the defendant No,5 have ever moved any application for correcting the date of the award therefore, the order dated 19-10-2005 passed by defendant 'No,2's predecessor in Appeal No,29 of 2004 preferred by the defendant No,5 was only applicable to Award dated 15-8-2004, which was never passed therefore, the entire super structure erected over that illegal order dated 19-10-2005 passed in Appeal No, 29/2004 has to fall down and the same shall be declared as having no value in the eyes of law, therefore, the plaintiff has every legal right to institute a civil suit seeking declaration regarding an order which has been passed by the defendant No,2 without any lawful authority and jurisdiction.
11. ' It is next contended by the learned counsel for the plaintiff that the order dated 14-6-2007 is a classic example of misuse of powers by the defendant No,2 who is also to the best of knowledge of the plaintiff was an officer of the Income Tax Department, with the collusion of defendant No,4 who never held any lawful title in respect of the suit plot at any point of time, therefore, the plaintiff through her Advocate sent a Notice under section 70-A of the Cooperative Societies Act, dated 6- 8-2007, to the defendants Nos. 2 and 3 notifying them that the plaintiff is going to have recourse to legal proceedings before this Hon'ble Court, against the aforesaid illegal order dated 14-6-2007.
12. ' Learned counsel for the plaintiff in order to substantiate his argument has placed reliance upon an unreported order dated 4-12-2012 passed in C.P. No, D-3635/2010, wherein it is held that there is a dispute over title of the property, the proper forum to decide the same is Civil Court and the plaint ought not to have been rejected summarily under Order VII Rule 11, C.P.C. When the objection is raised under section 54 of the Cooperative Societies Act, that the suit is barred under the said Section.
13. ' The next case relied upon by the learned counsel for the plaintiff was Amir All Hussain Shalwani v.
14. Ismaili Masalwala, 2001 YLR 2537, wherein it is held that the issue regarding determination of Benami transaction was a complicated question and was to be decided by the Civil Court and such cases could not be moulded as to bring them within the ambit of section 54 of Cooperative Societies Act, 1925 on the sole ground that defendants in the in the case were officers of the Society and one of them might be its member.
15. ' The next case relied upon by the learned counsel for the plaintiff was Abdul Ghaffar Mahenti and 2 others v. Kathiawar Cooperative Housing Society Limited and another, 2003 YLR 2635, in this application it was held that "application for rejection of plaint on the grounds that the plaint was barred by sections 70 and 70-A of the Cooperative Societies Act, 1925 and section 42 of the Specific Relief Act, 1877 as none of the plaintiffs had legal character to file the suit. Such grounds for rejection of plaint necessitated factual investigation and could be adjudicated upon only on the basis of evidence to be led by the parties, in support of their pleadings and the points urged and in given circumstances, therefore the jurisdiction of the Civil Court was upheld.
16. ' The next case relied upon by the learned counsel for the plaintiff was Karachi Parsi Cooperative Housing Society Ltd. v. MRs, Dina S. Hazari and others 2004 YLR 2071, in this matter it was held that when plaint could not be rejected, especially when several complicated questions of law were involved in the case which could be properly decided by the Court only and not by Registrar Cooperative Society.
17. ' The next case relied upon by the learned counsel for the plaintiff was Haji Shamsur Rehman and another v. Nadar Khan and 6 others, 2005 CLC 215 in this case it was held that suit filed by the plaintiff not falling within ambit of any clauses (a) to (e) of S.54 of Co-operative Societies Act, 1925 Civil Court had jurisdiction to entertain the suit-Order dismissing suit passed by Trial Court being not maintainable was set aside in appeal---Case was remanded with direction to decide afresh in accordance with law.
18. ' The next case relied upon by the learned counsel for the plaintiff was Mst. Agile Begum and others v. Pakistan Employees Cooperative Society Ltd., and others PLD 2004 Karachi, 1, in this case it was held that provisions of sections 54 and 70-A of the Co-operative Societies Act, 1925 could be invoked only when the plaintiff is the member or is claiming through a member, secondly, that the matter in controversy touches or relates to the business of society.
19. ' The next case relied upon by the learned counsel for the plaintiff was M. Wahidullah Ansari through legal heirs v. Zubeda Sherif and another, PLD 2002 Karachi 414, in this case it was held by the Division Bench of this Court that under sections 54 and 70-A of the Cooperative Societies Act, 1925, only in cases where such statutory functionaries have jurisdiction to entertain, adjudicate dispose of or determine any matter under the Cooperative Societies Act, 1925 and Rules or Bye- laws framed thereunder.
20. ' The next case relied upon by the teamed counsel for the plaintiff was Muhammad Khan and others v. Province of Punjab and others, 2007 SCMR 1169, wherein it is held that order of resumption of land was void ab initio, thus, no embargo could he imposed on jurisdiction of Civil Court.
21. ' The next case relied upon by the learned counsel for the plaintiff was Siddiqua Faiz and 2 others v.
22. Deputy Registrar, Co-operative Housing Society, Karachi, 2005 YLR 252, wherein the Division Bench of the Court declared that to usurp the jurisdiction of a competent Civil Court already seized of the matter is not the intention of the legislature.
23. ' The next case relied upon by the learned counsel for the plaintiff was Tanveen Afzal Khan v.
24. Federation of Pakistan through Secretary, Ministry of Works, Government of Pakistan, Islamabad and 6 others, 2007 CLC 864. Wherein it is held by the Division Bench of this Court that since the petitioner is not the member of the Society, the dispute between them should be referred to the Civil Court.
25. ' I have heard the arguments extended by the learned counsel for the parties, perused the material available on the record of the case and examined the case law cited by the learned counsel for the parties.
26. 'The Award dated 15-8-2003 passed by the Registrar nominee in arbitration case No, 84/2000 in favour of MRs, Saboohi Irtiza attained finality with certificate issued for execution of the same under section (1)(a) of Cooperative Societies Act, 1925 and on 22-1-2004 when the no demand certificate was issued by the defendant No,3 in favour of Saboohi Irtiza. It is an admitted position that the defendant No,2 wrongly assumed jurisdiction to adjudicate upon appeal and therefore the entire exercise undertaken by the Registrar by entertaining time barred appeal adjudicating upon the same and pronouncing the decision thereon is mala fide exercise with malice and without following the provision of statute, therefore in my view the plaintiff cannot be rejected under Order VII, Rule 11 of the C.P.C., 1908. I, therefore, dismissed the application filed by the plaintiff for rejection of the plaint. I am fortified in my aforesaid view by PLD 1997 SC 3, wherein it is held that when the Authority or the Tribunal has acted in violation of the statute and in contravention of the principles of natural justice, such order can be challenged before the Civil Court.
3. C.M.A. 914/2010: through this application the defendant No,4 has sought order for recalling the order for debarring the legal heirs of deceased defendant No,4 and grant/allow the legal heirs to file their written statement, ' Learned counsel for the plaintiff contended that the listed application is time barred and is liable to be dismissed. No cogent reason has been shown for such an inordinate delay, in the supporting affidavit of this application.
27. ' Therefore this application is also dismissed as time barred by one week.
28. ' Above are the reasons for short order 14-11-2014, by which I dismissed the applications C.M.As.
29. 3814/2008, and 914/2010.