Mst. Fakhrunnissa, the original appellant in above appeal, being aggrieved by judgment and decree dated 27th February, 1971 of the learned District Judge, Karachi, by which the said appeal of the appellant was dismissed and judgment and decree dated 30-3-1968, passed by learned Civil Judge 1st Class Karachi, in Original Suit No. 803/67 was upheld, filed the above appeal, on the following facts and grounds
2. The property involved in this appeal is Plot No. 440 Block III, Bahadurabad No. 1, Karachi, of an area of about 921 square yards, hereinafter referred to as the plot. The said plot was under the control of Bahadur Yar Jung Co-operative Housing Society Ltd., which is hereinafter referred to as the Society.
3. On 8-11-1955 the appellant paid to the Society, whereof she was and is a member. Rs 4,909/8/0 as the price of the plot etc. And obtained a receipt No. 63, dated 8-11-1955 in respect thereof. The Executive Com--mittee of the Society at its meeting held on 9-11-1955 allotted the plot to the appellant and a letter No. 3594, dated 10-11-1955 was sent to her informing of this fact.
4. The appellant paid demarcation charges in respect of the plot to the Karachi Co-operative Housing Societies Union Ltd. Hereinafter called the Union Society, per receipt No. 118, dated 14-11- 1955. Thereafter on 30-6-1956 the possession of the said plot was given to the appellant. This possession was confirmed by the Union Society, who issued a receipt.
5. The respondent was a member of the Society and held only two shares. Under the rules of the Society he was not entitled to the plot which was of 921 Sq. Yds. On the shares then held by him.
Nevertheless, after more than a year from the time the appellant was given possession of the plot, the respondent moved an application on 19-12-1956 before the Registrar, Co-operative Societies, Karachi under section 54 of Bombay Co-operative Societies Act, 1935, to initiate arbitration proceedings against the Society, and also prayed, that the said plot (in the possession of the appellant) be allotted to him. This case was registered as ABN No. 5 of 1957.
6. In the said ABN No, 5 of 1957. Case, the respondent deliberately did not make the appellant a party to the proceedings, even though from the written statement of the Society filed and the replication of the respondent filed, it was apparent, that the respondent knew, that the appellant claimed the plot as an allottee.
7. Without the knowledge of the appellant and in her absence, the respondent obtained an award in his favour in the case ABN No. 5 of 1957, and the plot was allotted to him, without any notice to the appellant.
8. Thereafter the respondent waited for some months, and. On 19-2-1958 obtained from the Registrar, Co-operative Societies, Karachi, a certificate for execution of his decree against the society, on the ground of non-satisfaction of the decree.
9. On 20-3-1958, the respondent made an application for the execu--tion of his decree praying that possession of the plot be given to him. No attachment of any property was asked for by the respondent nor made in these execution proceedings. - - --
10. On or about 27-3-1958, the appellant for the first time came to know, that the respondent had applied for arbitration, and an award was given in his favour and a non-satisfaction certificate was issued to him. As such in early April, 1958, the appellant moved an application purport--ing to be under Order XXI, rule 58 and section 151, C.P.C. In the Court of IV Civil Judge, First Class, Karachi in execution application No. 104 of 1967. Ahmaduddin v. Bashir Yar Jung. Co-operative Housing Society. However, the respondent obtained possession of the plot, through bailiff on 14-4-1958.
11: In April; 1958, before the objections of the appellant under Order XXI, rule 58 and section 151, C.P.C.
Could be disposed of, the appellant applied to the Registrar, Co-operative Societies, Karachi, for arbitration in regard to the said plot. This was case ABN No: 58 of 1958. In this case the respondent was also made a party along with the society.
12. In the case ABN No. 58 of 1958,. The Registrar, Co-operative Societies appointed his nominee for the arbitration, who gave his award on 26-9-1958 in favour of the appellant. He also gave reasons for his award separately. The respondent was duly informed of this award.
13. On 6-12-1958 the objections of the appellant purporting to be under Order XXI, rule 58 and section 151. C.P.C. Were dismissed in the absence and due to the failure of the advocate for the appellant to appear.
14. In view of the award in favour of the appellant in A B N No. 58 of 1958 she obtained a certificate for the execution of the decree on13-2-1959, and on 6-5.1959 moved an execution application No. 6 of 1959 against the Society and the respondent, praying for possession of the plot and for attachment of movable of the respondent and their sale to recover costs. In these execution proceedings. Possession of the plot was given to the appellant on 9-7-1959, and on 10-7-1959 a writ of attachment of movable was issued against the respondent.
15. It appears from the record of the case that on or about 24-10-1960. The respondent paid Rs.
6,500 to the Society (presumably to obtain qualifying shares for the allotment of the plot of an area of 921 , sq. Yards) and thereafter obtained a demarcation certificate on or about 5-11-1960
16. The respondent did not thereafter taker possession of the plot, and the possession remained with the appellant from the time when she was given on 9-7-1959.
17. The respondent thereafter instituted his suit on 18-I1-1960. It was No. 803 of 1967 and was for declaration, that the award in favour of the appellant and the subsequent proceedings in pursuance thereof were void, illegal, inoperative and without jurisdiction. He also claimed in that suit perpetual injunction against the appellant from interfering with his alleged possession of the said plot.
18. The appellant filed her written statement in that and issues were framed, as mentioned in the copy of the judgment of the learned trial Court marked 'C'. . The decision of the learned trial Court was mainly based on the findings, that the award in favour of the respondent was final and the later award in favour of the appellant was without jurisdiction, and that the matter was concluded, as after the dismissal of the objections of the appellant under Order XXI, rule 58, C.P.C, no suit was filed by her under Order XXI, rule 63, C.P.C. By consent of parties no, oral evidence was adduced in the case. ,
19. The learned Civil Judge Ist Class Karachi decreed respondents suit as prayed, as mentioned in the preceding para. Vide its judgment dated 30-3-1961. Original appellant aggrieved by the said impugned judgment and decree passed in Suit No. 803/67 fled first Appeal No. 148/68, in the Court of District Judge, Karachi, which was dismissed, vide judgment and decree dated 27th February, 1971, filed the above 1Ind appeal in this Court. Pending disposal of above appeal original appellant expired and as such present appellants were brought on record, as her legal representatives.
20. I have heard the learned Advocate for the appellants as well as learned Advocate for respondent and have gone through the impugned judgments dated 30- 3.1963 of Civil Judge 1st Class, Karachi as well as impugned judgment dated 27th February, 1971 of the learned District Judge, Karachi, as well as through the various authorities cited by the learned advocates of the parties.
21. The learned Advocate for the appellants, in support of above appeal submitted as under :.--
(a) The first award dated 17-5- 1957 lxh. A page 5 of P. B. Obtained in ABN No. 5/57 was void ab anitio and not binding on the original appellant, as she was not made party to the proceedings and as such. Award dated 26-91958 obtained by original appellant in ABN No. 58/58, was legal and void award, and binding on respon--dent, who was party to the said proceedings. In view of this judgment and decree dated 30-3-1968 passed in Suit No. 803/67, filed by the respondent, is illegal and contrary to law and as such liable to be set aside, along with judgment and decree dated 27- 2-1971 passed in 1st Appeal No. 148/68 by the learned District Judge, Karachi, by which original appellants said appeal was dismissed. In support of this contention, the learned Advocate for the appellants relied upon cases reported in PLD 1971 SC 516, PLD 1974 Kar. 375, PLD 1980 Kar. 345, PLD 1979 Kar.
195. PLD 1967 SC 458, AIR 1954 Tra-Co 60 and AIR 1960 Kar. 332.
(6) That in Ext. Appeal No. 104,/58 filed by the respondent for execution of first award dated 17-5- 1957, no attachment order was sought and/or passed and as such application under O. 21, rule 58, C.P.C. Filed by the original appellant in the said proceedings was misconceived and consequently on dismissal of the said appli--cation of original appellant, it was not necessary and binding on original appellant to file suit under Order XXI, r. 63, C.P.C. And consequently proceedings initiated by original appellant by way of ABN 58/58, which resulted in award dated 26-9-1958, were valid and legal proceedings, as award dated 17-5-1957 was not at all binding on the original appellant, as she was not party to the said appellant relied contention, the learned advocate for Advocate for the appellant relied upon case reported in PLD 1976 Kar. 144 and AIR 1928 P C 139.
(c) That as respondent was party to arbitration proceedings in ABN 48/58, his remedy if any was by wax, of appeal under section 54 (A) or Revision under section 64 (A) (of the Co-operative Societies Act 1925 and as such suit No. 803/67 filed by the respondent in the Court of Civil Judge 1st Class, Karachi was not maintainable in view of the provisions of Arbitration Act and Co-operative Socie-- ties Act, 1925, namely sections 70-A and 57 thereof. In support of this contention, learned Advocate for the appellants relied upon case reported in PLD 1971 SC 51 21.The learned Advocate for the respondent on the other hand submitted as under :-
(a) That since original appellant filed objections under Order 21, rule 58 C.P.C. In execution proceedings No. 104/58, filed by the res--pondent and on dismissal of his said proceedings, the only remedy which was available to the original appellant to challenge the first award dated 17.5- 1957 was by means of suit under Order 21, R. 63 C.P.C. And not by fresh reference to arbitration under the pro--visions of Co-operative Societies Act, 1925 as the award dated 17-5-1957 became binding on hire, as she became party to the said proceedings, by filing objection under O. 21, R. 58, C.P.C. And consequently the contention of the learned Advocate for the appel--lants, that award 17-5-1957 is void ab initio on account of the fact that original appellant was not made party before Nominee of the Registrar, in the said arbitration proceedings, has no force at all. The learned Advocate for the respondent in support of this conten--tion relied on case reported in AIR 1962 Andh. Para. 469 and commentary in para. 13 of Chitley C.P.C.; 7th Edition, pp. 30, 33.
(b) The second contention that was urged by learned Advocate for respondent before me, was that even if first award dated 17-5-1957 is held to be void, the remedy of original appellant was to challenge the same as plaintiff and not as defendant in Suit No. 803/67, which was filed by the respondent in view of the legal effect of dismissal of her objections under O. 21, r. 58 C.P.C. In support of these contentions learned Advocate relied on cases reported in AIR 1957 Andh. Pra. 61, AIR 1955 Bom. 397, AIR 1966. Tripura 1, A-I R 1936 Sind 2, AIR 1945 Patna 485 and Chitley's commentary 3061-3071 and 3075, 7th Edn. The learned Advocate further submitted that since first award dated 17-5-1957 has not been set aside by competent civil Court, and as such the said award became final and consequently respondents Suit No. 803/67 was rightly decreed as prayed, by the learned Civil Judge 1st Class, Karachi and original appellant's appeal No. 148/69 was also rightly dis--missed by learned District Judge, Karachi.
(c) The third contention that was urged by the learned Advocate for the respondent before me was, that original appellant on coming to know about award dated 17-5-1957 filed no appeal or revision against the said award, which remedy was available to her and as such fresh reference made by original appellant was not competent. In support of this contention learned Advocate for respondent relied upon commentary in Amir Hamza's C.P.C., II Edn., p. 208 and on cases reported in AIR 1935 Lab. 631 and AIR 1936 Lah. 901.
(d) The fourth contention that was urged by the learned Advocate for the respondent before me was, that since no ground of non-attach--ment of the property in Ext. No. 104/58 was taken in written statement by original appellant in Suit No. 803/67, it could not be considered at appellate stage. In support of this contention, the learned Advocate for the respondent relied upon cases reported in AIR 1940 P C 97, A 1 R 1934 P C 217, PLD 1956 Pesh. 19, AIR 1938 Lab. 677.
23. In view of his above submissions, the learned Advocate for the respondent submitted that impugned judgment and decree dated 30-3-1968 of the learned Civil Judge 1st Class, Karachi passed in Suit No. 803/67 and impugned judgment and decree dated 27th February, 1971 of the learned District Judge, Karachi passed in 1st App. 148/68, are in accordance with law and cannot be set aside in this second appeal.
24. The first question, that requires consideration in this appeal is, whether award dated 17-5-1977 Exh. A page 5 of P. B. Passed to ABN No. 5/57, by Registrar's Nominee, in which admittedly original appellant was not a party was binding on her, in view of the fact, that her objections under O. 21, R.
58, filed in Ext. App. i04/58, were dismissed for default and thereafter original appellant faded to file suit as contemplated by Order XXI, R. 63, C.P.C, which was only remedy available to her, as held by the learned Trial Court not 1st appellate court by impugned judgments or the award dated 17-5- 1977 was void ab initio and as such not at all binding on original appellant, in spite of dismissal of her objections under O. 21, rule 58 C.P.C. And non-filing of suit under O. 21, r..63, C. P. C. By the original appellant and consequently her filing arbitration proceedings under the provisions of Co-operative Societies Act, 1925 were competent and award dated 26-9-1958 passed in said proceedings, in which respondent was party was a valid and legal award and was binding on the respondent, as urged by the learned Advocate for the appellants.
25. The second question which in my opinion requires consideration in this appeal is, whether Suit No. 803/67 filed by the respondent was barred under section 57 of Co-operative Societies Act, 1925, as appellant did not challenge the award dated 26-9-1958 by way of appeal under section 56 of the said Act, although he was party and appeared to the said proceedings.
26. I would take up first question for consideration at first. The learned Advocate for the respondent admitted before me, that original appellant was neither made party in arbitration proceedings No. 5/57 nor he appeared before Registrar's Nominees in the said proceedings. It is also admitted position, that up to 14-4-1958, original appellant was in possession of the plot in question on the basis of alleged allotment etc. In his favour, on which date original appellant was ejected in pursuance of Ext. 104/58, on the basis of award dated 17-5-1957 passed in favour of res--pondent.
In view of this admitted position and since award dated 17-5-1957 did affect the alleged rights of the original appellant, the said award passed at her back, without giving her opportunity of being heard and to defend the said proceedings, the said award in my opinion was not at all binding on her. Both the learned lower courts have wrongly mentioned in their respective judgments, that original appellant was party to these proceedings, which resulted in award dated 17-5-1957.
27. In view of above conclusion of mine, the second question which requires consideration is whether filing of objections under Order 21, rule 58, by original appellant in Ext. No. 104/58 and dismissal of the said objections for default, original appellant become party to original award proceedings, as urged by the learned Advocate for the respondent and as such the only remedy available to original appellant was by. Way of suit Order 21, rule 63, C . P. C. Which she did not avail of and consequently instituting of arbitration proceeding. Under A.B.N. 58/58 by her, in the face of this legal position, was illegal and void or the submissions of the learned Advocate for appellants, that as no attachment orders of the property in question were prayed for and/or passed by executing court in Ex. No. 104/58, the filing of objections by original appellant were misconceived and as such dismissal, of the said objections had no effect on the legal rights of the original appellant to ignore award dated 17-7-1957 completely as nullity and consequently filing of arbitration proceedings ABN 58/58 by original appellant were legal and maintainable, in which respondent was made party and appeared. In connection with this legal position, I repeatedly asked the learned Advocate for respondent to point out, if orders of attachment were passed i& Ext.
No. 104/58, before original appellant filed her objections, the learned counsel was unable to make specific reply, but stated that under Order 21, rule 54,-C. P. C. Attachment have been made and it ought to be presumed. I am afraid, there is nothing on record, on the basis of which such presumption could be raised, as suggested by learned counsel for respondent an as such I have no alternative but to hold, that objections filed under Order 21, rule 58, C. P. C. In the absence of attachment orders of the property in question, were misconceived and as such their dismissal would not attract the provisions of Order XXI, rule 63, C. P. C. In this view of mine, I am supported by cases reported in AIR 1925 P C 139 and A 1 R 196 Kar. 332.
28. Above legal position has not at all been considered by both the learned lower courts in their impugned judgment's and consequently both the learned lower courts have arrived at erroneous conclusions and held that award dated 17-5-1957 became final and was binding on the original appellant as original appellant failed to file suit under Order 21, rule 63, C. P. C. On dismissal of her objections under Order 21, rule 58, C. P. C. And consequently award dated 26-9-1968 and execution proceedings therefor were nullity and decreed respondents suit as prayed.
29. In view of my finding that award dated 17-5-1957 was not binding on the original appellant and was nullity as far as original appellant was concerned, in my opinion, there was no legal necessity for the original appellant to file any suit for declaration to get, the said award declared as void and consequently the original appellant had full legal right to raise such plea in her written statement in defence, in the Suit No. 803/1967 filed by respondent and as such the said plea sought to have been considered by both the learned lower Courts as provisions of Order 21, rule 63, C. P. C. Were not bar to consideration of such plea, in the said suit. However since both the learned lower Courts came to conclusions, that only remedy available original appellant, after dismissal of her objections under Order 21, rule 58, C. P. C. Was to file suit under Order. 21, rule 63, C.P.C. They came to erroneous conclusion that award dated 26-9-1968 and Ext. Proceeding filed in pursuance of said award were illegal and without jurisdiction and as such I am afraid in view of my above findings, I cannot agree with these conclusions of both the learned lower Courts.
30. I would now take up the second question, which in my opinion has become important in view of my above findings, namely maintainability of Suit No. 803/67 file by the respondent, without first availing right of appeal under section 56 of the Co-operative Societies Act, 1925. Even if 1 hold that sections .57 and 70-A of the Co-operative Societies Act, 1925 were not complete bar to filing of S. No. 803/67 still said suit could not have been filed before respondent exhausted all the remedies which were available to him, under the provisions of Co-operative Societies Act, 1925. In view of this conclusion of, mine, in my opinion Suit No. 803/ 1967 filed by the respondent, without first filing of appeal under section 56 of Co-operative Societies Act 1925, against award Gated 26-9-1958, was not maintainable at all as he was party to the said proceedings.
31. In view of my above conclusions and findings I allow the above appeal and set aside impugned judgments and decrees of both the learned lower courts, with no orders as to cost and dismiss the respondent's Suit No. 803 of 1967, as not maintainable, with no orders as to cost.