MUHAMMAD FAISAL KAMAL ALAM, J. Petitioner is claiming, inter alia, ownership right in respect of a built-up Property, R-123, Block 'R', measuring 120 Square Yards, situated in Sector No.38-E, Scheme No.33, Rizwan Co-operative Housing Society, Karachi, which for the sake of reference be referred to as the 'Subject Property'.
2. It is stated in the Petition that initially above was the open Plot, alloted and subsequently leased out by Responding No.2 - Rizwan Co-operative Housing Society to one Muhammad Hassan, who sold the same to Mrs. Raunaq Ara Afridi through his Attorney Syed Sultan Ali, by way of a registered Conveyance Deed dated 04.09.1997.
3. It is further averred that erstwhile owner, the above named Mst. Raunaq Ara Afridi, in view of some dispute with present Respondent No.1 (Sikandar Ahmed Ghouri), has filed a Civil Suit No.219 of 1997 for Declaration and Permanent Injunction, which was subsequently decreed in her favour (Mst.
Raunaq Ara Afridi) against which a Review was preferred by present Respondent No.1 but the same was dismissed (copies of the Decree dated 06.07.1998 and Order passed on the Review Application dated 25.05.2008 are filed as Annexures "E-1" and "E-2" with the Petition, at pages 73 to 93 of the Court file). Subsequently, present Respondent No.1 invoked the Arbitration Proceeding under the Cooperative Societies Act, 1925, and obtained a favourable Award in respect of the Subject Property and it was held that Respondent No.1 was / is the genuine Member of present Respondent No.2-the Society and is the lawful transferee of the Subject Property. The Award was executed through Execution Application No.1 of 2005 vide Order dated 18.05.2007, which was later challenged by the present Petitioner by way of Application under Section 12(2) of C.P.C., but the same was dismissed vide Order dated 08.04.2017; the Decision on Award, Execution Application and on Application under Section 12(2) of C.P.C. along with the pleadings are available in record at pages 95 to 213 and 293 to 305, respectively.
In the intervening period, a Registered Lease Deed dated 20.04.2019 (the subsequent Lease Deed) was also executed by the Nazir of District and Sessions Court Malir at Karachi on behalf of Respondent's Society and Respondent No.1, thus, the Petitioner is seeking the following relief "a) to declare that the petitioner is legal, lawful and exclusive owner and in possession of House/Plot No.R-123, Rizwan Co-operative Housing Society, Scheme No.33, Sector 38-A, Karachi. b) To declare that the Award dated 27.03.2003 passed by the Respondent No.4 is illegal. c) To direct the Respondent No.5 to suspend the order of writ of possession till the final decision of this Hon'ble Court d) Lease Deed executed by the Nazir of District and Sessions Judge, Malir in favour of Respondent No.1 registered by the Respondent No.6 is illegal without prior notice to the original Lessee. e) To direct Respondent No.6 to cancel the lease deed registered in favour of Respondent No.1 on 20.04.2009. f) To grant any other relief which this Hon'ble Court deems fit and proper under the circumstances of the case."
4. In the Counter-Affidavit to the main Petition, the Respondent No.1 has denied the claim of ownership of Petitioner and stated that the Plot in question/Subject Property was purchased by Respondent No.1 from one Dr. Kamran vide Agreement dated 22.03.1995 and the Subject Property was subsequently transferred in the name of Respondent No.1 by the Respondent No.2-the Society vide Transfer Letter dated 25.04.1995. It is further stated, that above named Mst. Raunaq Ara Afridi has unlawfully occupied the Subject Property, which was lying vacant and the said lady was neither the allottee nor the transferee of the Subject Property and in order to give a legal cover to her illegal occupation she has obtained the ex-parte Judgment (ibid).
It is averred that the Subject Property is different from the Plot purchased by Respondent No.1. It is specifically mentioned in paragraph-4 of the Counter-Affidavit that the Plot of Muhammad Hassan / Subject Property is a corner Plot and has shown in the Site Plan, whereas, the Plot claimed by Respondent No.1 is not a corner Plot. In the Counter-Affidavit, Respondent No.1 has relied upon the Decision given by the Registrar in the above mentioned Arbitration Proceeding, which has attained finality, as present Petitioner did not file any Application tinder Section 64 of the Cooperative Societies Act, 1925.
5. Arguments heard and record perused.
6. In support of her stance, Ms. Naila Kousar, Advocate representing the Petitioner, has cited the Case Law reported in 2017 YLR 1816-Sindh, the Judgment handed down by learned Division Bench of this Court in Abdul Haq v. Thakumal and 4 others. She has specifically referred to paragraph-41 of the cited Decision, in support of her arguments, that a registered instrument/documents cannot be cancelled except either through another registered document or through a Declaration by a Civil Court; thus, the Award given in favour of Respondent No.1, which has adversely affected the Conveyance Deed in respect of the Subject Property, executed by Respondent No.2-the Society in favour of erstwhile owner of the Subject Property, viz. Muhammad Hassan is illegal and the subsequently Conveyance Deed between said Muhammad Hassan and above lady-Rounaq Aran Afridi, cannot be diluted through the purported Award. During proceeding, learned counsel for Petitioner has also produced a copy of the Plaint filed by Respondent No.2-the Society in Suit No.1982 of 2017 against many persons, including the erstwhile Secretary Mr. Mubarak Hussain Siddiqui and present Respondent No.1, who has been impleaded as Defendant No.14. It is averred by Society in the plaint that many illegal allotments were made by the erstwhile Secretary-Mubarak Hussain Siddqiui including the one to present Respondent No.1.
7. On the other hand, Mr. Shahanshah Hussain, learned counsel for Respondent No.1 has questioned the maintainability of the present Petition and has stated that the Judgment and Decree passed in favour of Mst. Rounaq Aran Afridi in the above Suit is of no consequence, because the proceeding itself was illegal, because if there was any dispute, it should have been resolved by invoking the Arbitration Proceeding as envisaged in the Cooperative Societies Act, 1925. In support of his arguments, he has cited the following Case Law. i. PLD 1992 Karachi 167 [Mubarak Hussain Siddiqui and another v. Sajjad Hussain Khan and another] ii. PLD 1995 Karachi 399 [Zia-ur-Rehman Alvi v. Messrs Allahabad Cooperative Housing Society Limited and 2 others] iii. 1980 SCMR 596 [Shahul Hamid v. Tahir Ali] iv. PLD 1973 Supreme Court 236 [Nawab Syed Raunaq Ali and others v. Chief Settlement Commissioner and others] v. 1989 SCMR 949 [Sh. Manzoor Ahmad and others v. Mst. Iqbal Begum and others]
8. Crux of the Case Law cited by learned counsel for Respondent No.1 is that mere execution of Sale Agreement is not itself a conferment of ownership or interest in favour of Vendee. Principle of Res judicata is mandatory and can only be avoided by any of the Parties to a proceeding, if it is shown that the Judgment was based on fraud, collusion or was in nullity / non-existent in the eye of law.
9. Case, Law cited in this regard by the counsel for Respondent No.1 is to support his contention, that the earlier decision obtained by above named lady Rounaq Aran Afridi will not adversely affect the Award passed by the. Registrar Nominee in favour of present Respondent No.1; order given in a writ of certiorari/mandamus is a discretionary order and the persons invoking the jurisdiction must show that orders sought to be set-aside had occasioned some injustice to the parties and if it does not cause any injustice to any party, rather it cured an illegality, then the extra ordinary jurisdiction ought not to be allowed. Section 70-A of the Cooperative Societies Act, 1925, is the ouster clause, thus dispute between a Member of the Society and the Society or between two Members, since touch upon the business of the Society, thus is referable to the Registrar or his Nominee for adjudication and not to a Civil Court.
10. Undisputedly a Registered Lease Deed has been executed by Respondent No.2-the Society in favour of Muhammad Hassan, who through another Registered instrument, viz. Conveyance Deed dated 04.09.1997, through his attorney, transferred the Subject Property in favour of Mrs. Rounaq Aran Afridi, who subsequently entered into Sale Agreement with present Petitioner. In the civil proceeding filed by said Mst. Rounaq Aran Afridi, present Respondent No.1 was Defendant No.1, who unsuccessfully contested the proceeding (as mentioned in the preceding paragraphs). The Judgment and Decree in Civil Suit No.219 of 1997 has attained finality on 25.05.2000 when the Review of present Respondent No.1 was dismissed. Subsequently, Respondent No.1 invoked the jurisdiction of the Registrar under the Cooperative Societies Act, 1925, and an Award was passed in his favour on 27.03.2003, which was subsequently although unsuccessfully questioned by present Petitioner by filing Application under Section 12(2) of C.P.C. (as stated in the foregoing paragraphs).
Admittedly, the Award is subsequent in time in which present Petitioner was not made party though it is observed in the Award itself that notices have been issued to her being a necessary party but she never came forward. The Case Law cited by the learned counsel for Respondent No.1 are distinguishable, inter alia, as Civil Courts have plenary jurisdiction to decide the matters, and it cannot be said that the first Judgment and Decree passed in above Civil Suit No.219 of 1997 was nullity in the eyes of law, for the reason, that it decided the matter on the basis of documentary evidence, particularly the afore referred Lease dated 11.3.1998 in favour of first allottee, namely, Muhammad Hassan. The consequence and effect of the said Judgment and Decree cannot be directly or indirectly diluted in the subsequent proceeding before the Registrar under the Cooperative Societies Act, 1925, specially, when two Registered instruments, viz. the afore referred Lease Deed and Conveyance Deed are also available in record in favour of first allottee Muhammad Hassan and Mst. Rounaq Aran Afridi. Therefore, to this extent contention of Petitioner's counsel is correct. The Rule of collateral proceeding is applicable to the case of Petitioner.
More so, undisputedly, present Petitioner impleaded the Respondent No.1 in her litigation (supra), whereas, the Respondent No.1 did not implead the Petitioner in subsequent proceeding before the Registrar (as already discussed above), hence the subsequent proceeding before the Registrar (Respondent No.4) is also tainted with mala fide and consequently, the Award impugned, cannot overrule a Civil Court Decree.
Secondly, it is mentioned in the Order dated 08.04.2017 passed in Civil Execution No.1 of 2005, on the Application under Section 12(2) of C.P.C., filed by Petitioner, which was dismissed, that an Application under Section 54-A of the Cooperative Societies Act, 1925, was sub judice before the Registrar. The same fact is also mentioned in the present Petition. This Application should have been decided by the Registrar in accordance with law and rules, but no information has been given during present proceeding about the final outcome of this Application. Thirdly, the Respondent No.1 himself has stated in the Counter-Affidavit, that physical location of his Plot is different from the Subject Property; if this is so, Respondent No.2 can conduct a demarcation in presence of Petitioner and Respondent No.1, to ascertain this fact and then can pass necessary orders.
11. In view of the above, we accept this Petition to the extent that the Award dated 27.03.2003 passed by Respondent No.4 is set-aside; Writ of Possession issued in pursuance thereof is quashed; and the subsequent Lease Deed of 20.04.2019 is of no legal effect.
12. In the meantime, Respondent No.2 can pass the necessary Orders as observed hereinabove by conducting a joint survey/demarcation.