ZAFAR AHMED RAJPUT , J.----This Civil Revision Application under Section 115 of the Civil Procedure Code is directed against the judgment dated 13.07.2010, whereby the learned Vth Addition al District Judge, Karachi-East, while dismissing Civil Appeal No. 260 of 2006 maintained the judgment and decree dated 25.09.2006 and 29.09.2006, respectively passed by the learned Vth Senior Civil Judge, Karachi-East in Suit No.480 of 2004.
2. Precisely , the facts of the case are that the respondent No.1/plaintif f filed the afore-mentioned civil suit for declaration, permanent injunction and possession, alleging therein that being an old member of the applicant/ defendant No.1/Society he was allotted a residential plot bearing No. 86-I-D, admeasuring 200 Sq. Yds., situated in Block-6, P.E.C.H.S. Karachi. It was further alleged that pursuant to the Allotment Order , the respondent No.1, on 11.10.79, paid through cheque Rs. 1,144/- towards premium and development charges and on receipt thereof, the applicant/ Society , on 20.7.80, issued Final Allotment Order to him in respect of subject plot. It was also alleged that the respondent No.1 earlier filed Consti tution Petition No. D-477 of 1984, wherein on 19.11.84, the Hon'able Division Bench of the High Court passed an order restraining Sindh Cooperative Housing Authority from allotting the subject plot to anyone till further orders. Later , vide order dated 12.12.1990, the Hon'able Division Bench of the High Court directed the respondent/defendant No.2 (Secretary , Ministry of Housing and Works, Government of Pakistan. Islamabad) to decide the questi on of allotment of the various plots, including the plot of respondent No.1, considering the case of the respondent/de fendant No:3 (Education Foundation) who had allegedly been granted in 1966 a lease of a plot, measuring about 39,500 sq. yds., for 99 years without any demarcation of the area. It was the case of the respondent No.1 that after the allotment of the subject plot to him, the applicant/Society or any other authority had no right to cancel the subject plot which continued to be on his name till date. It was further case of the respondent No.1 that on the failure of the respondent No.3 to establish itself within 10 years in accordance with the decision of the respondent No.-2, dated 19.7.1992, it remained as non-existence up to this time and thus the subject plot continued to be in the name of the respondent No.1 for all practical purposes as per the terms of allotment and; therefore, the respondent No.1 was entitled to the possession of the subject plot. Hence. the plaintif f filed the suit with following prayers: i. That, the plot in question bearing No. 86-1-D has been permanently allotted to the plaintiff on 27.07.1980 vide Allotment Order No. 6767 for residential purpose and he is entitled to its possessions and raise construction on it. ii. That, no other authority including the Society has any right to cancel die plaintiffs said allotment which stands ix his name as a permanent member of the Society . iii. That, a permanent injunction restraining the defendants and all others, their agents and employees or anyone who is working or acting on their behalf from interfering with or cancelling the plot in question which exists in the plaintiff's name for the least 20 years and directing the defendant No.1. to hand over the vacant possession of the plot in question to the plaintiff after demarcation.
3. Applicant/defendant No.1/Society contested the suit by filing its written statement, wherein it was stated that the subject plot was allotted to respondent No.1 provisionally in the year 1979, which was carved out of the land reserved for amenity purpose; however , conversion of the said land was not approved by the competent authorities i.e. Government of Pakistan and the K.D.A. It was further stated that the respondent No.3 has lost its existence; as such, lease in its favour has also become infructuous and in view of the recommendations of Martial Law Enquiry Commission, all residential/commercial plots allotted in the amenity land were cancelled by the Society in 1983 and, even otherwise, since the land was reserved for amenity purpose, the allotment of subject plot could not attain finality; as such, no legal rights of the respondent No.1 was created in the subject plot. It was also stated that the allotment of the plots were made to the members on nominal charges and it was not against any monitory transaction; hence, no cause of action was accrued to the respondent No.1 to maintain the suit. Applicant/Society also raised legal question in its written statement with regard to the jurisdiction of civil court to entertain the suit in view of Co-operative Societies Act, 1925 ("the Act") and maintained that the respondent No.1 should have approached the Registrar , Co-operative Societies for the redressal of his grievance. While, the respondents -Nos.2 and 3 failed to make their appearance before the trial Court, hence, they were debarred from filing written statement vide order dated 29.1 1.2005.
4. Out of pleadings of the parties and on the basis of proposed issues, the learned trial Court settled the following issues:-
1. Whether the plaintiff being a senior member of the society was ever allotted the suit plot?
2. Whether after nationalizing the land in 1972-73, defendant No. 3 had not been barred of the lease as made in 1966?
3. Whether the defendant No. 3 has ever taken the possession of the area demarcated either by Ministry of Housing and Works, Government of Pakistan, Islamabad or the Society or KDA for the purposes of Education Society?
4. Whether the defendant No. 3 is in existence?
5. Whether the cancellation of suit plot by the recommendations of Martial Law Enquiry Commission in the year 1983 was warranted under the Constitution or by any cannon of justice?
Whether the recommendation was made under MLO 1983 could effect retrospectively?
7. What should the decree be?
5. Learned trial Court on the basis of its assessment of evidence on record decreed the suit as prayed vide judgment and decree, dated 25.09.2006 and 29.09.2006, respectively . Against that, the applicant/Society preferred Civil Appeal No.260 of 2006, which was heard and dismissed by the learned Vth Additional District Judge, Karachi- East vide judgment, dated 13.07.2010 directing to applicant and respondent No.2 to allot alternate plot to respondent No.1 within 90 days from receiving of the order . It is against that findings of the Courts below , the instant Civil Revision Application has been preferred by the applicant/Society .
6. Heard the learned counsel for the parties and perused the material available on record.
7. Learned counsel for the applicant/Society has mainly contended that the judgments of Courts below are not sustainable in law as both the Courts below illegally assumed the jurisdiction; that both the Courts below have erred in interpreting the provisions of Section 70 of the Act in general and in particular in interpreting "any act touching the business of a Society"; that the suit is hit by Section 54 of the Act as the dispute is admittedly in- between the member and the applicant/ Co-operative Society governed under the Act and therefore the grievances, if any, was to be resolved through the process of arbitration as envisag ed in Section 54 of the Act; that the respondent No.1 never served any notice upon the Registrar , Cooperative Societies under Section 70 of the Act; that concurrent findings of the Courts below are not in accordance with the evidence on record as question of bar is absent from the record; hence the same is liable to be adjudged in the Civil Revision; that both the Courts below failed to consider that the suit was hopelessly time barred; that both the Courts below failed to appreciate that after decision of the respondent No.2 in the year 1992 made in compliance of order of the High Court of Sindh, passed in C.P No. 477 of 1984, the claim of the respondent No.1 was not tenable ; that the learned Courts below failed to consider that when the subject plot was allotted to respondent No.1, it was part of the land reserved for educational purpose and still it is an amenity/educational land and the offer and allotment of the subject plot to respondent No.1 was provisional and "subject to approval" which was accepted by the respondent No.1 with the same condition; as such, respondent No.1 cannot claim the plot when it was not approved by the competent authorities for residential purpose; that the Appellate Court had given the relief which was not claimed by the respondent No.1 i.e. allotment of alternate plot within 90 days, whereas the respondent No.1 claimed the possession of the original plot; hence, the learned appellate Court has exercised its jurisdiction illegally . In support of his contention, the learned counsel has relied upon the case of (i) Sal/ad Ahmed and others v. Muhammad Haneef Siddiqui and others (NLR 1989 Civil 541), (ii) Muhammad Ali Memorial Co-operative Housing Society Ltd. Karachi v. Syed Sibtey Hasan Kazmi (PLD 1975 Karachi 423), (iii) Al-Riaz (Shalimar Town) Ltd. v.
Muhammad Hassan Lpdho and another (1982 CLC 2167 ), (iv) Darul Aman Co-operative Housing Society Limited v. Secretary Government of Pakistan and others (1995 MLD 1553 ), (v) Muhammad Haroon Usman v.
Rizwan Co-operative Housing Society and 11 others (1991 CLC 1917 ), (vi) Zia-ur-Rehman Alvi v. Messrs Allahabd Co-operative Housing Society Limited and 2 others (PLD 1995 Karachi 399) (vii) The Life Insurance Corporation of Pakistan v. Messrs Cooperative Insurance Society of Pakistan Limited and 15 others (1992 CLC 1872 ), (viii) Moula Bux @ Nouman and another V. Governor of Sindh/Chancellor University of Sindh Jamshoro and others (2014 PLC (C.S.) 1217 ) (ix) Z.A. Qureshi v. Pakistan Defence Officers Housing Authority (1994 MLD 338), (x) Mst. Amtul Habib and others v. Mst. Musarrat Parveen and others (PLD 1974 SC 185 ) and (xi) Hayat Muhammad and others v . Mazhar Hussain (2006 SCMR 1410 ).
8. On the other hands, learned counsel for the respondent No.1 has maintained that the respondent. No.1 is a bona fide allottee of the subject plot, while the plot of respondent No.3, as observed by the learned trail Court while deciding Issues No.3, was never demarcated either by respondent No.2, or by the applicant/Society; hence, it cannot be assumed that the subject plot was demarcated as an amenity; that the learned trail Court while addressing Issue No.4 came to a conclusion that the respondent No.3 was/is a non-existing body , which fact the applicant/Society itself admitted in para No.7 of its written statement; that the plea that the subject plot is the part of the area belonged to respondent No.3 as amenity , is a fabricated and false plea raised by the applicant/Society to defeat the rightful claim of the respondent No.1; that the appellate Court scrutinized the judgment of the trial Court thoroughly and also came to a definite conclusion in favour of respondent No.1 and maintained the judgment of trial Court, ordering the respondents to provide and alternate plot within 90 days to the respondent No.1; that the concurrent findings of both the Courts below are based on the record which cannot be set aside by this Court under its revisional jurisdiction, as the High Court has very limited jurisdiction to meddle with concurrent findings of the Courts below while exercising its power under Section 115, C.P.C.; that the respondent No.3 is admittedly a non existing body , hence, it is not necessary to invoke Section 70 of the Act, even otherwise the judgment of the Courts below are in favour of respondent No.1 furnishing an additional proof of his bona fide claim. The learned counsel has placed his reliance in the case of (i) Falak Khurshid v. Fakhar Khurshid and others (2006 SCMR 595), (ii)
Rana Nazir Ahmed v. Mst. Azra Uzman and 5 others (2015 CLC 334), (iii) Rafaqat Ali and others v. Mst.
Jamshed Bibi and others (2007 SCMR 1076 ), (iv) Jetandar Kumar and 2 others v. Mst. Bibi Meena alias Ameerzaid through legal heirs (PLD 2000 Karachi 280), (v) Nizar Ali v. Noorabad Cooperative Housing Society Ltd. and others (PLD 1987 Karachi 676), (vi) The Gujranwala Co-operative Marking and Supply Society Ltd. Gujranwala v. The Rural Supply Co-operative Corporation Ltd. Lahore (1980 CLC 1721 ), (vii)
Pakistan Defence Officers Housing Authority Karachi through Secretary v. Syed Naseemuddin Alvi and another (2011 MLD 1969 Karachi) and (viii) Dr. Zahir Ansari and others v. Karachi Development, Authority and others (PLD 2000 Karachi 168 ).
9. In order to appreciate the contentions of learned counsel for the parties, I deem it appropriate to reproduce the provision of Sections 54, 70 and 70-A of the Co-operative Societies Act, 1925, as under:
54. Arbitration. If any dispute touching the business of a society other than a dispute regarding disciplinary action taken by the society or its committee against a paid servant of the society arises-
(a) between members or past members of the society or persons claiming through a member or past member , or
(b) between members or past members or persons so claiming and any past or present officer , agent or servant of the society , or
(c) between the society or its committee, and any past or present members of the society , or
(d) between the society or its committee, and any past or present officer , agent or servant of the society , or a surety of such officer , agent or servant, whether such surety is or is not a member of the society , or
(e) between a financing bank authorized under subsection (I) of Section 34 and a person who is not a member of a society , it shall be referred to the Registrar for decision by himself or his nominee, or if either of the parties so desires, to arbitration of three arbitrators who shall be the Registrar or his nominee and two persons of whom one shall be nominated by each of the parties concerned.
A dispute shall include the question whether a person is or was a member of a society and also claims by a ,society for debts or demands due to it from a member , part member or non-member or the heirs or assets of a past member or non-member whether such debts or demands be admitted or not: Provided that if the question at issue between a society and a claimant, or betw een different claimants, is one involving complicated questions of law and fact, the Registrar may, if he thinks fit, suspend proceeding, in the matter until the-question has been tried by a regular suit instituted by one of the parties or by the society . If no such suit is instituted within six months of the Registrar's order suspending proceedings, the Registrar shall take action as laid down in paragraph 1 of this section.
70. Notice necessary in suits. No suits shall be instituted against a society or any of its officers in respect of any act touching the business of the society until the expiration of two months next after notice in writing has been delivered to the Registrar , or left at his office, stating the cause of action, the name, description and place of residence of the plaintiff and the relief which he claims; and the plaint shall contain a statement that such notice has been so delivered or left.
70-A. Bar of Jurisdiction. (1) Notwithstanding anything provided in any other law for the time being in force, but save as expressly provided in this Act
(a) no Court or other authority whatsoever shall have jurisdiction to entertain,- or to adjudicate upon, any matter which the Provincial Government, the Registrar or his nominee, any arbitrator or liquidator , a society , a financing bank, a Co-operative bank or any other person is empowered by or under this Act, or the rules or by-laws framed thereunder , to dispose of or to determine; (b)the validity of anything done or an order passed by the Provincial Government, a society , a financing bank, a Co- operative bank, the Registrar or any other person referred to in clause (a), under this Act or the rules and by-laws framed thereunder , shall not be called in question in any manner whatever before or by any Court or other authority whatsoever; and
(c) no Court or other authority whatsoever shall be competent to grant any injunction or pass any other order in relation to any proceedings under this Act or any rules or by-laws framed thereunder before the Provincial Government, a society , a financing bank, a Co-operative bank, the Registrar or any other person referred to in clause (a).
(2) The provisions of subsection (1) shall be applicable to proceedings, appeals and revisions pending adjudication or disposal before or in any Court or other authority whatsoever on the date that the Co-operative Societies (Amendment) Ordinance, 1966, comes into force, and any order passed in such proceedings, whether before or after the coming into force of the said Ordinance, in regard to matters referred to in subsection (1), shall stand vacated and be without any force.
10. I am not impressed by the contention of learned counsel for the respondent No.1 that in the case of concurrent findings of the Courts below , the revisional jurisdiction conferred upon High Court under Section 115, C.P.C., is limited, for the reason that it is well settled by now that the concurrent findings of facts recorded by the Courts below cannot be treated as sacrosanct and can be interfered with by this Court under its revisional jurisdiction, when the findings are based on insuf ficient evidence, misreading of evidence , non-consideration of material evidence, erroneous assumption of facts, patent error of law, consideration of inadmissible evidence, excess or abuse of jurisdiction, arbitrary exercise of power and where unreasonable view on evidence has been taken.
Reliance in this regard may be placed upon the case of Major Rashid Bain v. Rehmat Ullah Khan and 4 others (PLD 2001 SC 443); Muhammad Bakhsh v. Ellahi Bukhsh and others (2003 SCMR 286) and Abdul Sattar v.
Mst. Anwar Bibi and others (PLD 2007 SC 609). It may be observed that where the trial Court erroneously ponders that it has, or has no jurisdiction to adjudicate a matter or to pass a particular order with regard to assumption of jurisdiction; there is either an illegal assumption of jurisdiction or a failure to exercise the jurisdiction which A it has. Where in such a case the order of trial Court as to its own jurisdiction is appealed against and the appellate Court either confirms such order or reverses it, the decision of the appellate Court is revisable under section 1 15 of the C.P .C.
11. In the case in hand, it is an admitted position that the respondent No.1 is a member of the applicant/Society and the dispute of allotment and cancellation of plot touches the business of the applicant/Society . Hence the presence of such elements altogether carries the case within the purview of Section 54 of the Act at once, ousting the jurisdiction of Court under section 70-A of the Act. It appears that the applicant/Society had in its written statement raised the very question of maintainability of the suit before the trial Court with reference to the Act indicating that a member may approach to. the Registrar , Co-operative Societies for the redressal of his grievances. The trial Court failed to frame any issue on such purely legal objection of the applicant/Society , and even no discussion was made by it in its judgment dated 25.09.2006. The applicant/Society again raised said legal question in grounds Nos. 4 and 5 of the Civil Appeal No. 260 of 2006, preferred against the said judgment of trail Court, but the appellate Court also failed to response the question of jurisdiction of the Court; therefore, the such question can be raised and adjudicated in the revision petition.
12. Section 54 read with section 70-A of the Act abdicates jurisdiction of the Court in respect of the matter in which jurisdiction to decide and dispose of the controversy rests either with Provincial Government, the Registrar or his nominee or any other person empowered under the Act or the Rules or By-La ws framed thereunder . All acts, deeds, orders and actions taken by any functionary under Act, which may' touch or relate to the business of Society and have direct bearing on any member or a person claiming through a memb er of the Society , if both such conditions are fulfilled, then effective remedy is provided under section 54 of the Act. Such bar of jurisdiction can effectively be invoked in a dispute, which relates or touches the business of Society , such dispute may be by and between the members, past members or any person claiming through or under such member or by such person against the past or present officer of the Society or inter se between Society and/ or its Committee. As observed by this Court in the case of Syed Mushtaq Hussain Shah v. Riaz Muham mad Hazarvi and another (PLD 1978 Karachi 612), it is now well-settled principle of jurisdict ion that where a Statute creates a right and also provides mechanism for the enforcement of that right, then resort must be had to the procedure prescribed in the statute creating the right for its enforcement and the jurisdiction of the general civil Courts is barred. Besides, the provision of section 70 of the Act renders it absolutely necessary on the plaintif f to serve a notice on the Registrar Co-operative Societies before filing a suit relating to a dispute touching the business of the Society , stating therein
(i) the cause of action, (ii) the name, description and place of residence of the plaintif f and (iii) the relief which he claims. It has been observed by this Court in the case of Zia-ur-Rehman Alvi (Supra) that "the language in which section 70 is worded, abundantly demons trates that the notice is mandatory and that the notice should be detailed all the three factors; the suit in its absence would not be maintainable." In the instant case, no notice under sectio n 70 of the Act was served on the Registrar . The suit of the respondent No.1; therefore, being barred by law was not maintainable and thus the learned trial Court illegally assumed its jurisdiction to entertain the suit.
13. So far the deliberation on the issues settled by the trial Court is concerned ; it can be made by this Court; however , the same may prejudice the case of either party before the Registrar , Co-operative Societies or his Nominee etc., as the remedy of approaching the Registrar for the redressal of his grievances is still available to respondent No.1 in terms of Section 54 of the Act; therefore, I am restraining myself from discussing the issues.
14. For the foregoing facts and reasons, I allow this Civil Revision Application by setting aside the judgments of Courts below i.e. Judgment and decree dated 25.09.2006 and 29.09.2006, respectively passed by the Vth Senior Civil Judge, Karachi-East in Suit No.480 of 2004 and Judgment dated 13.07.2010, passed by the Vth Additional District Judge, Karachi-East in Civil Appeal No. 260 of 2006; however , there will be no order as to costs.