AZIZ-UR-REHMAN, J.---By means of this Constitutional Petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, the Petitioner upon feeling "aggrieved' and 'dis-satisfied' inter alia with order dated 15.01.2013, passed by learned 1st Addl. District and Sessions Judge, Malir Karachi, whereby, the Civil Revision Application No,01 of 2012 [Saadabad Cooperative Housing Society Ltd., v. Ghulam Rasool and others] was dismissed, the Petitioner inter alia is seeking setting aside of the 'Impugned Order' dated 15.01.2013, by allowing the instant Petition. The 'impugned order' of 15.01.2013 for ready reference is reproduced herein-below: "I have heard both the sides on this revision application and have gone through the record of the case, and unable to find out any illegality or irregularity in the impugned order which is passed by the executing Court on 05.11.2011. The learned Arbitration passed by the Award after detailed discussion on each and every disputed aspect in between the parties. The Civil. Execution in favour of the decree holder has rightly been allowed.
The applicant had been taken money regularly from the respondent for a plot which was non- existent in the lay-out plan. They are not supposed to take benefit of their own fraud.
I, therefore, in the present circumstances, find no merit in this revision application which is dismissed accordingly, with no order as to costs." [Underlining is ours] ...................
2. The facts essential for 'disposal' of this case are as follows:
3. The Civil Revision Application No,01 of 2012 [Saadat Co-Operative Housing Society Ltd., v. Ghulam Rasool], was filed by the Petitioner against Respondent No,1, before the Court of 1st Addl. District Judge, Malir Karachi, wherein, order dated 05.11.2011, passed by the Executing Court i,e, IInd Senior Civil Judge, Malir Karachi, whereby, the Ex. Application No,17 of 2005, arising out of ABN No,77 of 2005, [Ghulam Rasool Bhatti v. Saadabad Co-operative Housing Society Ltd.], was allowed by IInd Senior Civil Judge, Malir, Karachi. The relevant part of order dated 05.11.2011, is reproduced here- inunder:- ................... "Heard the learned counsel for their respective parties and perused the record of the case.
The J.D has filed objections, wherein he has submitted default and he is not entitled for any plot.
However, he has not produced any proof in respect of default allegedly made by the D.H.
Moreover, the award has attained finality and the same is liable lo be executed.
Under such circumstances, the Execution Application is allowed, as prayed. As such, issue writ of possession in respect of 2 plots, of 200 Sq. Yards each, or in the alternate, a plot of 400 square yards, through Nazir. Order accordingly." [Underlining is ours]
4. The Petitioner Society, namely, Saadabad Cooperative Housing Society Limited through its'
General Secretary, as averred, in 'Para 4' of the Memo. of Petition [In short MoP], had allotted a Residential Plot bearing No,36-B, Sector 45-A, KDA Scheme No,33, Karachi admeasuring 400 sq.yds to Respondent No,1 herein [hereinafter referred to as 'subject plot']. Respondent No,1, admittedly, was initially issued a `Provisional Allotment Certificate' No,0822 dated 25.07.1990, which was later on followed by a 'Final Allotment Order' of 12.08.1996.
5. Later on, as stated, upon removal of Ex-Secretary viz. Syed Sabir Ahmed a civil dispute was arisen in the year, 2005, between the Petitioner-Society [Judgment-Debtor] and the Respondent No,1 [Decree Holder], over and regarding the 'subject plot'. Resultantly, District Officer, Co-operative Societies, Karachi, referred the matter vide Order No,ABN 77/2005/121/2005 for 'ARBITRATION' to the Registrar's Nominee Arbitrator.
6. The Registrar's Nominee Arbitrator viz. Ms. Najma Hussain, thereafter, proceeded with the matter and issued summonses/notices of the ABN Case No,77 of 2005 [Ghulam Rasool Bhatti v. Saadabad Co-operative Housing Society Ltd.] for 20.08.2005 to the parties for appearance and 'Nomination of Arbitrators', if any. In response of `summons' and 'notices' for 20.08.2005, one Mr. Shamsher Hussain on behalf of the Respondent-Society [Petitioner herein] did appear along with the authority letter.
No one, however, effected appearance from the Applicant's side in Arbitration Case No,77 of 2005.
The Applicant [Respondent No,1 herein], however, after passing two dates of hearing did appear, on 26-08-2005 before the Registrar's Nominee Arbitrator, having office at Suite No,314, 3rd Floor, Frere Business Centre, Shahrah-e-Liaquat, Karachi.
7. The Registrar's Nominee Arbitrator viz. Najma Hussain, after perusal of records, documents, and evidence produced by both the parties, finally in the light thereof, came to the conclusion that not only Respondent No,1 [now Decree-Holder], is a member of the Petitioner's Society, but also allottee of 'subject plot' and, as such, the Petitioner's Society, under circumstances, cannot avoid/refuse the execution of 'lease documents' in favour of Respondent No,1 herein, merely and obviously on the basis of allegation[s] that the 'subject property', does not exist in the 'layout plan' though installments in respect of the 'subject plot' were duly received. The 'operative part' of the 'AWARD' dated 30th September 2005, reads as follows: "I am of the view that there is sheer negligence on the part of the society to conceal the facts that plot do not exist in the layout plan of the society which shows clear mala fide act of the society, since so many years society has extorted the money from the applicant and never disclosed to the applicant regarding non-existence of said plot, its' society responsibility to provide the said allotted plot to the applicant if the said plot is not existed in the layout plan then society is bound to provide alternate plot against the said plot. Furthermore, I am in opinion that society has no right to cancel the plot of their members on a just simple reason that no payment of only one installments out of 10 installments. Furthermore, the society did not adopt the ... mode of cancellation of plot. Therefore, the society is directed to provide alternate plot to the applicant/member in the society on payment of outstanding amount if any. And it is further directed to do the needful at their end for physical possession as well as in registration of lease documents in the name of applicant." [Underlining is ours]
8. The Petitioner's Co-operative Housing Society, despite passing of the 'Award', however, did not bother to question/challenge the 'Award' dated 30.09.2005 under section 54-A and/or Section 56 of the Co-operative Societies Act, 1925 [Act VII of 1925], within the stipulated time as provided under section 54-A or within one month, as provided under section 56 of the Co-operative Societies Act, 1925. It is significant to note, under 1st Proviso to section 54-A of the Act, 1925 i,e, Clause [a], after issuance of a 'CERTIFICATE' under section 59 for the execution of the Award, no order as referred to in clauses [a], [b] and [c] of section 54-A, however, can be passed, interalia, either to modify, remit, correct, or to set aside the 'Award', as provided under section 54-A of the Society Act, 1925. In the case in hand, the 'REQUISITE CERTIFICATE' per record, was issued on 18.02.2006. The 'Award' given by the Registrar's Nominee Arbitrator 'thus attained 'finality' in terms of section 57 of Co-operative Societies Act, 1925.
9. In view of the above position, the Execution Application No,17 of 2011 [Ghulam Rasool Bhatti v.
Saadabad Co-operative Housing Society Ltd.], was allowed vide order dated 15.01.2013, passed by 'Ind Senior Civil Judge, Malir Karachi. The 'WRIT OF POSSESSION' was issued vide order dated 05.11.2011. The Petitioner's Co-operative Housing Society Ltd., nonetheless, again, feeling 'aggrieved' and 'dissatisfied' has approached this Court against the 'Impugned Order' dated 15.01.2013, with the following prayers:- "i]. To hold and declare the impugned Order dated 15.01.2013 as illegal, invalid and nullity in the eyes of law. ii] To declare the Order dated 05.11.2011 passed by the learned lInd Senior Civil Malir Karachi as illegal, invalid and nullity in the eyes of law. ill] To hold and declare the Award dated 03.9.2011, as illegal, invalid and nullity in the eyes of law. iv] To declare that the allotment of plot No,36-B to Respondent No,1 is illegal as the same is violation of Government notification as well as the bye-laws of the society, hence no alternate plot can be allotted to him.
Vi Any other better relief this Hon'ble deem fit and appropriate in these circumstances may please be granted. ...................
10. Upon service on 20.02.2015, when the above petition came-up before the Court then, while, adjourning the matter for 12.03.2015, the following order was passed:- ................... "Learned counsel for the petitioner and the learned A.A.G. state that they have not received copy of the objections filed on behalf of respondent No,1 on 04.11.2013. Messrs Ahmed All and Zafaruddin Khan, advocates have filed power in this case on behalf of respondent No,1, but they are called absent today.
Let notice for the next date of hearing be issued to them along with copy of this order. They are directed to supply copy of objections filed by them to the learned counsel for the petitioner and to the learned A.A.G. before the next date. It is clarified that if none appears for respondent No,1 on the next date, this matter shall be heard and decided with the assistance of the learned counsel for the petitioner and the learned A.A.G. as well as on the basis of the material available on the record.
To come up on 12.03.2015." ...................
11.Somehow, on 12.03.2015, the instant Petition could not proceed and since then, is being adjourned, for one reason or the other. Lastly, on 17.11.2017, when this writ Petition came-up before us then, we heard Mr. Arshad Nawab, learned counsel for the Petitioner's Society and Mr. Asadullah Lashari, learned State Counsel and also gone through the record minutely with their assistance.
12.Per Mr. Arshad Nawab, learned counsel for the Petitioner's Co-Operative Housing Society Ltd., the 'impugned order' dated 15.01.2013, passed by the learned Additional District and Sessions Judge, Malir Karachi, is not only suffering from `mis-reading' and 'non-reading' of evidence/materials available on record, but also the same, as urged, is erroneous. According to the Petitioner's Counsel, the learned Additional District and Sessions Judge, Malir Karachi, has failed to appreciate the materials/evidence before him in its' true perspective.
13.Mr. Arshad Nawab, learned counsel for the Petitioner/ Judgment-Debtor, next contended that the 'impugned order' dated 15.01.2013, besides, being perverse, is a result of partial attitude of the learned 1st Additional District and Sessions Judge, Malir, Karachi. Moreover, the 'impugned order' dated 15.01.2013, per learned counsel for the Petitioner's Society, as urged, has been passed without applying judicial mind, as such, inter alia the 'impugned order' dated 15.01.2013, is liable to be set aside.
14.Conversely, the learned State Counsel while, arguing the case, contended that the 'impugned order' dated 15.01.2013 besides, being proper, needs no interference under the exercise of Constitutional jurisdiction of this Court, as the 'Award' given in the case in hand, has undergone un- challenged/un-questioned. Per learned State Counsel, the petition in hand being devoid of any merits is liable to be dismissed.
15.Heard.
16.Before proceeding further, it is significant to note, that an 'Award' given/delivered by an Arbitrator under the Co-operative Societies Act, 1925 [VII of 1925], is final under section 57 of the Co-operative Societies Act, 1925 and the same under law does not need to be made rule of the Court from the Civil Court, as required, in respect of an 'Award' delivered by an Arbitrator[s] under the Arbitration Act, 1940 [X of 1940]. Reference in this regard can be made to the case of Faiz Karim v. Multan Development Authority through Director-General and 4 others [PLD 1995 Lahore DB 429], wherein, it was observed as follows: - "9. The learned counsel for the appellant has contended that as the award was not made rule of the Court, it had no validity. This argument is wholly misconceived. The dispute had been referred to the nominee of the Registrar under section 54 of the Cooperative Societies Act, 1925 and not Arbitration Act, 1940. The award delivered by the Arbitrator under the Cooperative Societies Act, 1925 is final under section 57 of the Act and does not require any further validation from the Civil Court." [Emphasis supplied].
17.Admittedly, the Petitioner-Society in the year, 1990, allotted a Residential Plot No,36-B, measuring about 400 sq.yds Sector 45-A, KDA Scheme No,33, Karachi to Respondent No,1 herein.
Regarding 'subject plot' initially a 'Provisional Allotment -Certificate' No,0822 dated 25-07-1990 was issued. Subsequently, on 12th August, 1996 a 'final allotment certificate' No,692 in favour of Respondent No,1 was issued. Per record, each and every payment whenever demanded by the Petitioner-Society in respect of 'subject plot' has also been made. The Respondent No,1 herein upon getting the 'final allotment certificate' dated 12.08.1995, besides asking for handing over the 'physical possession' of the 'subject property' had also approached the Petitioner-Society for execution of the lease of 'subject plot' but the Management of the Society without any cause/justification, rather to say, mala fidely and in a calculated manner neglected and/or avoided to do the needful.
19. The Petitioner-Society in their 'written statement' has not only admitted the Respondent No,l's Membership of the Society but the factum of getting the 'subject plot' and receipt of 09 installments except the 10th installment, as alleged by the Petitioner-Society. The Petitioner nevertheless, declared Respondent No,1 as defaulter on account of non-payment of 10th installment. Per Petitioner's 'written statement' though notice[s] in This regard, were issued to Respondent No,1 but on the old address which was/were returned back with 'remarks' that 'there is no any person of the name at this address i,e, 578, 15-A/1'. The main contention of the Petitioner- Society is to effect and extent that the plot allotted to Respondent No,1 does not exist in the layout plan. If it was so, then why, provisional and final allotments were issued in favour of the Respondent No,1 herein and payment thereof was received. The issuing of the 'provisional' and 'final allotment certificates' belie the Petitioner-Society in its' stand that 10th installment, as alleged, was not paid by Respondent No,1 herein.
19.Moreover, the 'Award' admittedly, passed on 30th September, 2005, against the Petitioner- Society [Judgment-debtor] and in favour of Respondent-No,1 [Decree-holder], remained un- challenged, as per section 54-A or section 56 of Co-operative Societies Act, 1925, as such, the 'Award' which has already attained finality now, under the exercise of constitutional jurisdiction, could not be re-opened merely at the 'wish' and 'desire' of the Judgment-debtor/Petitioner-Society and that too on the basis of pseudo and after-thought pleas. The pleas now being raised by the Petitioner-Society have already been rejected by the Registrar's Nominee Arbitrator and this factum is quite evident from perusal of 'Award' which was passed long ago in the year, 2005.
20. It is needless to say, that a Constitutional Jurisdiction under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 can only be invoked where, law does not provide any other adequate and alternate remedy. In the case in hand, remedy of appeal is admittedly available under the Co-operative Societies Act, 1925 [Act VII of 1925], against the 'Award' passed on 13.09.2005 but the Petitioner-Society in its own wisdom has failed and/or neglected to avail such remedy. The 'Award' has thus attained finality and the Petitioner-Society now be deemed as having accepted the 'Award'. The Petitioner-Society for this reason as well has lost its' locus standi' to challenge the same through the instant petition inter alia as prayed for. Regarding finality 'Award' reference can be made to section 57 of the Societies Act, 1925, which reads as follows: "57. Finality of award in certain orders. The award of arbitrators or a decision by the Registrar or his nominee under section 54 or section 54-A or an order passed in appeal by the Registrar under section 56 shall subject to the provision of sections 64 and 64-A, be final and conclusive and shall not be liable to be called in question in any civil or revenue court."
21.As far as, the 'impugned order' dated 15.01.2013, is concerned, the same, in our view, has rightly been passed as the executing Court, under law, was not permissible to go beyond the 'Award'.
Manifestly, it is not the case of the Petitioner-Society that the executing. Court in any manner, has exceeded its' jurisdiction or otherwise, the executing Court has failed to exercise its' jurisdiction illegally or with some material irregularity. Since, the Executing Court has rightly exercised its' jurisdiction by allowing the Execution Application vide order dated 05.11.2011, therefore, now at this belated stage, the Petitioner-Society cannot plead that either the Execution Application was allowed' erroneously or otherwise, 'writ of possession' was issued wrongly. On the face of it, the order dated 05.11.2011 whereby, the Execution Application was allowed is not suffering from any mis- reading and non-reading. Even the erroneous conclusion of law or fact, if any, can only be corrected by way of an appeal and not through a Revision Application under section 115, C.P.C., which only applies to cases involving the illegal assumption, non-exercise or irregular exercise of jurisdiction.
22. Moreover, in a Civil Revision Application, the concurrent findings of law and facts are immune from interference until there appears gross illegality[ies], irregularity [ies], mis-reading and/or non-reading of evidence which, however, is not the case in hand. The case of the Petitioner, from any angle was/is not qualified to fall within the ambit of section 115, C.P.C. In our view, the same has rightly been dismissed. On this aspect of the matter, reliance_ can be placed on the case of Kanwal Nain and 3 others v. Fateh Khan and others [PLD 1983 SC 53]. The relevant observation therefrom is as follows: "Section 115 applies only to cases in which no appeal lies, and, where the Legislature has provided no right of appeal, the manifest intention is that the order of the trial Court, right or wrong, shall be final. The section empowers the High Court to satisfy itself upon three mattes, (a) that the order of the subordinate Court is within its jurisdiction; (b) that the case is one in which the Court ought to exercise jurisdiction; and (c) that in exercising jurisdiction that Court has not acted illegally, that is, in breach of some provision of law, or with material irregularity, that is, by committing some error of procedure in the course of the trial which is material in that it may have affected the ultimate decision. If the High Court is satisfied upon those three matters, it has no power to interfere because it differs, however, profoundly from the conclusions of the subordinate Court upon questions of fact or law. No such matters arose in this case, and the order of the High Court upon the petition was without justification." [Emphasis supplied] 23.Apart front the above, the instant petition has been filed by Honorary Secretary of Petitioner- Society but no authority whatsoever has been enclosed with the Memo. of Petition [in short MoP], to show his authority viz-a-viz. the filing/verifying of the instant writ petition. Even, in the 'BYE-LAWS', no authority has been conferred upon the Secretary or Joint Secretary specifically, regarding institution of any legal proceedings/the writ petition in hand. The learned Counsel for the Petitioner despite office objection to the effect has also failed to place on record any resolution/authority letter since, March, 2013.
24. For what has been stated above, we are of the considered opinion that the instant petition, as framed and filed besides, being in-competent in law, is devoid of any merits, as such, the same is dismissed at Katcha Peshi stage a/w all the pending application[s], however, with no order as to costs.