KHADIM HUSSAIN M. SHAIKH, J.---This is a suit for mandatory injunction and damages filed on behalf of Messrs Sindh Govt. Employees Co-operative Housing Society Ltd. (hereinafter referred to as the plaintiff society) against the Karachi Development Authority (hereinafter referred to as the defendant authority).
2. Briefly the facts of the case are that on 21.10.1990, the above suit was filed on behalf of the plaintiff society for mandatory injunction and damages of Rs,2-Crores against the defendant authority. The case of the plaintiff is that the plaintiff is a Co-operative Housing Society registered under the Co- operative Societies Act, 1925. In the year 1970, Government of Sindh had launched its largest Co- operative Housing Scheme in the name of Gulzar-e-Hijri, Scheme No,33, Karachi. The plaintiff society acquired sufficient land to provide residential and as well as commercial plots to its members and started the development of its project in the name of Gulshan-e-Mehran. Apart from the plaintiff society, there are many other co-operative societies in the aforesaid scheme. The plaintiff society has spent millions of rupees on cost of the land, inner developments and construction of 4-under ground and 4-over head water tanks for supply of water to the entire population. The task of the outer development of the entire land of the Scheme No, 33 was assigned to the Defendant Authority. In the year 1986, the defendant authority started development work and dug out a water channel in Scheme No,33 with a view to protect land of the societies from the flooding water of seasonal rains, but it could not be completed. On the contrary, this channel has become trouble, causing damages to the catchments of the societies' lands, which has started deteriorating due to its faulty construction and abandonment of its work. The defendant authority had promised to construct seven culverts on the aforesaid channel, but only one culvert was constructed. The plaintiff society and the other societies approached the defendant authority and lastly on 14.04.1990, the plaintiff issued a legal notice to the defendant authority as contemplated under Article 131 of the KDA Order, 1957, whereby the defendant authority was called upon to pay a sum of Rs,2-Crores to the plaintiff society on account of damages and to complete/repair the disputed channel, but to no avail, hence the plaintiff society has filed the present suit with the following prayers:- a) For Mandatory Injunction that:- i) The defendants be directed to complete 7-culverts on the disputed water channel. ii) The defendants may also be directed to repair the damaged portion of the channel and to construct the channel at once. b) For Damages. i) For damages to the tune of rupees two crores.
(ii) For any other relief which this Honourable Court may deem fit and proper in the circumstances of the case. iii) For cost of suit.
3. On 12.08.1991, a written statement was filed on behalf of the defendant. authority (KDA) wherein all the allegation and claims leveled on behalf of the plaintiff society were denied. It is further the case of the defendant authority that the plaintiff has failed to disclose the exact area of the land acquired by the plaintiff society and so also the details of the development of its project alleged to have been carried by the plaintiff society in the name of Gulshan-e-Mehran. The plaintiff society did not get the plan approved regarding internal development from the defendant authority and paid only a sum of Rs,7.00 millions against Rs,59,682 millions to the Deputy Commissioner (East) towards outer development charges. The Scheme 33 is not a defendant's scheme, but it is the scheme of Board of Revenue, Government of Sindh. The work of outer development of the aforementioned Scheme 33 was entrusted to the defendant authority as a "deposit work". The outer development charges are being collected by the Deputy Commissioner (East) from the societies whose lands are in Scheme 33, at Rs,20/- per sq. yard in installments. The amount recovered by the Deputy Commissioner (East) from various societies under the Scheme 33 was transferred in installments to the defendant authority from time to time for the purpose of carrying out outer development work of construction of major roads, laying of water supply mains, laying of sewerage system and construction of water dam in the Scheme 33. The Government of Sindh has constituted an Advisory Committee consisting of representative of Co-operative societies, Deputy Commissioner (East), Registrar, Co-operative and Representative of defendant authority. The defendant always carried out works on the approval from the aforementioned Advisory Committee constituted by the Government of Sindh. The cost of the outer development works estimated by the defendant in the year 1980 is Rs,1297.00 millions whereas expenditure incurred on the outer development works upto 30.01.1991 is Rs,613.65 millions. The amount released by the Deputy Commissioner (East) upto 30.01.1991 to the defendant authority is Rs,428.55 millions and thus the defendant authority had spent Rs,185.10 millions over and above the receipted amount from the Deputy Commissioner (East). This inadequate release of funds is due to the fact that various co- operative societies including the plaintiff society has not deposited the development charges with Deputy Commissioner (East), Karachi. In fact the work was started on 29.10.1980 and the work of water channel was started on 14.06.1986, which was stopped in December, 1988 for want of funds and existence of stay order granted in various suits pending in the Court. The plaintiff has failed to serve legal notice as strictly required under Article 131 of KDA Order (Presidents' Order No,5 of 1957).
The claim of the plaintiff society is absolutely fabricated, bogus and the plaintiff is not entitled to receive any amount from the defendant authority. The plaintiff society has filed this suit without accrual of any cause of action and in utter violation and contravention of KDA Order (Presidents'
Order No,5 of 1957).
4. On 10.11.1991, the Court framed the following issues:-
1. Whether the suit is not maintainable in law?
2. Whether the suit is incompetent for want of statutory notice under Article 131 of K.D.A. Order?
3. Whether the plaintiff has paid the full charges towards the outer development? If not so, what is the effect?
4. Whether the development funds are released by Deputy Commissioner (East) Karachi adequately to enable the defendant to carry out the development work?
5. Whether any time was provided for completion of the outer development? If so, what is the effect?
6. Whether the suit is bad for non-joinder of necessary parties?
7. Whether any cause of action has accrued to the plaintiffs?
8. Whether the plaintiffs are entitled to the relief prayed for?
9.What should the decree be?
5. At trial, the plaintiff society examined one Ghyassuddin Ahmed Siddiqui by filing his affidavit-in- evidence dated 18.01.2003 and then he was cross-examined. He produced copies of the entries of Deh-Form-VII, as Ex-P-1 to P-4, photostats of the press clippings of daily 'Dawn' Karachi dated 04.09.1989 and of daily 'Hurriat' Karachi 15.09.1989 as Ex-P/5 and P/6 respectively, two fortnightly issues of 'Apna Ghar' as Ex-P/7 and P/8, and plaint of the suit as Ex-P/9. The defendant authority has examined one Abdul Shakoor Khan by filing his affidavitin-evidence and then he was also subjected to cross-examination. He produced written statement filed on behalf of the defendant as Ex-6.
6. Heard the learned counsel for the parties and have scanned the evidence adduced by the parties.
7. My findings on the issues are as follows:-- Issue No,1Affirmative Issue No,2Affirmative Issue No,3Negative Issue No .4Negative Issue No,5Negative Issue No,6Affirmative Issue No,7Negative Issue No,8Negative Issue No,9Suit is dismissed with no order as to costs.
8. Reasons Issue No,1.
9. Admittedly, the plaintiff is a Cooperative Housing Society registered under the Cooperative Societies Act 1925. According to Section 23 of the Cooperative Societies Act 1925 the registration of the society shall render it a body corporate by the name under which it is registered, with perpetual succession and a common seal and with power to hold property, to enter into contracts, to institute and defend suit and other legal proceedings and to do all things necessary for the purpose of its constitution. Thus society being a corporate body is capable of instituting and defending the suits and other legal proceedings. For the sake of convenience and ready reference, Section 23 ibid is reproduced below:-
23. Societies to be bodies corporate. ---The registration of a society shall render it a body corporate by the name under which it is registered, with perpetual succession and a common seal, and with power to hold property, to enter into contracts, to institute and defend suits and other legal proceedings and to do all things necessary for the purpose of its constitution.
10.Furthermore, as the plaintiff society is a registered body corporate, hence Order XXIX of the Code of Civil Procedure, 1908, applies to the plaintiff society, which postulates that in suit by or against a corporate body any pleading made be signed and verified on behalf of such corporate body by its Secretary or Director or other Principal Officer thereof. For the sake of convenience and ready reference Rue 1 of Order XXIX of Code of Civil Procedure, 1908, is reproduced below:--
1. Subscription and verification of pleading. - In suits by or against a corporation, any pleading made be signed and verified on behalf of the corporation by the secretary or by any director or other principal office of the corporation who is able to depose to the facts of the case.
11.From Rule 1 of Order XXIX of the Code of Civil Procedure, 1908, it would be seen that it only deals with the subscription to and verification of the pleadings in suits by or against the corporation, and does not deal with the frame of the suit. However, for a suit to be validly instituted, it must be instituted by a person authorized in this behalf, through a resolution passed in a meeting of the Managing Committee of a duly registered co-operative society and/or in accordance with bye laws thereof. In order to determine whether a suit has been instituted by a person competent to do so, reference will have to be made to the Articles of Association and/or bye-laws thereof.
12.Ghyassuddin Ahmed Siddiqui, alleged Office Secretary of the plaintiff society, who was examined on behalf of the plaintiff society, in his cross-examination has made material admissions such as he has stated that the plaint in the present suit has neither been signed nor verified by him. He is working in the capacity of the Office Secretary in the plaintiff society, since last three years. He was cross-examined on 23.01.2003, meaning thereby he was working as Office Secretary in the plaintiff society from the year 2000 and whereas the dispute involved in the matter in hand started from the year 1980 and this suit was filed in the year 1991. To a question he has further stated that he has been duly authorized by the Managing Committee of the society to depose in this case. He was authorized by the society through a resolution passed by its Managing Committee. To a further question he stated that he has not brought the resolution today. Although the period of more than 11 years has elapsed, but no such resolution or authority has been produced by the plaintiff society to establish that Ghyassuddin Ahmed Siddiqui was an authorized person to depose on behalf of the plaintiff society in this case nor bye-laws have been produced till date so as to appreciate if the suit in hand was instituted on behalf of the plaintiff society by a duly authorized and constituted person and hence the presumption about non-existent of the alleged resolution claimed by the above witness Ghyassuddin Ahmed Siddiqui in his favour and about incompetency of the suit can legitimately be drawn against the plaintiff society, according to Article 129(g) of Qanun-e-Shahadat Order, 1984. Thus the suit is not maintainable. Accordingly, this issue is answered in affirmative.
Issue No,2 13.A perusal of the record reveals that a photostat of the alleged notice under Article 131 of the K.D.A. Order 1951 is available on record, which has been specifically denied by the defendant authority in the written statement filed on its behalf. The plaintiff society has not produced any receipt to establish that in fact the alleged notice was delivered to the office of the defendant authority. Furthermore, the aforesaid photostat of the alleged notice, from face of it, is inadmissible in evidence as even the secondary evidence cannot be allowed unless conditions laid down in Article 76 of Qanun-e-Shahadat Order 1984, are satisfied by a party tendering such evidence. In my humble view the aforesaid photostat of the alleged notice being inadmissible cannot be taken into consideration. The .plaintiff society has failed to comply with the requirement of Article 131 of the K.D.A. Order 1951 and accordingly this issue is answered in affirmative.
Issue No,3 14.The plaintiff society's witness Ghyassuddin Ahmed Siddiqui, has stated in his evidence that it is correct that plaintiff society also has not deposited the full outer development cost. There are about 150 societies in Scheme-33 outer development work whereof was to be carried out.
Confronting with the statement made by Ghyassuddin Ahmed Siddiqui, examined on behalf of the plaintiff society, learned advocate for the plaintiff has conceded that the plaintiff society has not deposited the full development charges of the development work with the Deputy Commissioner
(East) Karachi, and that there is nothing on the record to establish that the other 150 cooperative societies, outer development work whereof was to be carried out, have deposited the full development charges with the Deputy Commissioner (East), Karachi. The learned advocate has also conceded that the outer development work of the Scheme -33 was not completed for want of funds. Accordingly this issue is answered in negative.
Issue No,4 15.The plaintiff society has not produced any evidence to establish that the Deputy Commissioner (East) Karachi has released the funds adequately for carrying out further outer development work to the defendant authority. Even the plaintiff has never made any attempt to examine any official from the office of Deputy Commissioner (East), Karachi to establish such fact.
Since there is nothing available on the record to prove that the development funds have been released by the Deputy Commissioner (East), Karachi adequately to enable the defendant to carry out further outer development work, hence this issue is answered in negative.
Issue No,5.
16.There is nothing on the record to establish that there was any contract between the plaintiff society and the defendant authority for outer development work of the scheme -33, hence the question of time for completion of such work did not arise. Thus this issue is answered in negative.
Issues Nos.6 and 7 17.Admittedly the Scheme No,33 is not a defendant's scheme, but it is the scheme of Board of Revenue sponsored by Government of Sindh; the work of the outer development was entrusted to the defendant as a "Deposit Work; the development charges are being collected by the Deputy Commissioner (East) Karachi from the plaintiff society and other 150 cooperative societies outer development work whereof was to be carried out in Scheme-33. The Government of Sindh had constituted an Advisory Committee consisting representative of Co-operative Societies, Deputy Commissioner (East), Karachi Registrar Co-operativeand the representative of defendant authority. Thus at the most the K.D.A. could be joined as proforma defendant, and the Province of Sindh and the Deputy Commissioner East, Karachi both were necessary parties in proceedings of this suit, but the plaintiff society has failed to implead them as party. A necessary party is the party, in whose absence no effective decree or order can be passed and it is well settled law that a suit cannot proceed in the absence of necessary party. In case of Vice-Chancellor and 3 others v.
Muhammad Shahzad Khalid (PLD 2001 SC (AJ&K) 21), it was held that:-- In view of the stand taken by the appellants in their written statement and the fact that a definite finding was recorded by the High Court against the Vice-Chancellor, he in our view was a necessary party to be arrayed as such in the writ petition. It is a celebrated principle of law that an adverse finding cannot be recorded against a person at his back. Even the findings of first Disciplinary Committee were set aside by the Vice-Chancellor and a new Disciplinary Committee was constituted by him, therefore, even on that score he was a necessary party. The High Court set aside the Order of Vice-Chancellor constituting a new Committee and directed the other appellants to declare the result of respondent on the basis of cancelled papers. This order couldn't have been given effect without impleading the Vice Chancellor as a party. It is a settled principle of law that where an effective order or decree could not be passed in absence of a particular party that party is a necessary party."
Accordingly, the suit is bad for non-joinder of necessary parties and no cause of action had accrued to the plaintiff to file this suit only against the defendant. Hence, the issue No,6 is answered in affirmative and the issue No,7 is answered in negative.
Issue No,8
18. Admittedly, there is no contract between the plaintiff society and the defendant for outer development work of the Scheme-33; which is not K.D.A's scheme; the development charges are being collected by the Deputy Commissioner (East) Karachi from the plaintiff society and other 150 cooperative societies outer development work whereof was to be carried out in Scheme-33; the Deputy Commissioner, Karachi East has been making payment to the defendant authority in installments on work by work basis; the plaintiff society and other 150 co-operative societies were responsible for non-completion of the work as they have failed to deposit the development charges with the Deputy Commissioner Karachi East; and the work was admittedly stopped for want of funds. There is no evidence on record to indicate that the defendant authority in any way is responsible for stopping the development work. The plaintiff society has failed to prove the claim of damages and its case for the relief sought for against the defendant authority, therefore, this issue is answered in negative.
19. In view of the foregoing findings and discussion. I am of the considered view that the plaintiff society has failed to prove its case against the defendant authority and the instant suit is liable to be dismissed. Accordingly, the suit is dismissed with no order as to costs.