1. MAHMOOD A. KHAN, J. On 07.11.2023 observing the present matter as well as the same question faced in other cases it was ordered that learned counsel may provide assistance in regard to the Sindh Cooperative Societies Act, 2020 (hereinafter referred to as "said Act") having been enacted whether these proceedings are liable to be ordered or the same are to continue before this Court.
2. Today although numerous applications are present, however on account of question of jurisdiction as referred above the same is liable to be considered in the first instance whereafter all these matters fixed in the order sheet are liable to be considered. Accordingly the matter was heard.
3. Plaintiff No.1 who is himself an advocate contends that Rule 53 of the Sindh Cooperative Societies Rules, 2020 defines, the dispute. For a ready reference, said Rule 53 is quoted as follows;--
53. Disputes.----(1) 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 of servant to the society; or
(c) between the society or its committee and past of present member of the society; or
(d) between the society or its committee and any past or present officer, agent or servant of the society, of a surety of such officer, agent or servant, whether such surety is or is a member of the society or surety of such officer, agent or servant, whether such surety is or is not a member of the society;
(e) between a society authorized under subsection (1) of section 45 and a person who is not a member of a society, it shall be referred to Cooperative Court established under section 117 established by Government with the concurrence of the Chief Justice of the Sindh High Court, by notification,
(2) Any party aggrieved by any decision, order or judgment of the Special Court for Cooperatives may within 30 days of the date of such decision, order or judgment, appeal to the High Court of Sindh.
4. (underlining by me for emphasis only)
5. He further contended that the subject of the present suit does not fall within the definition of dispute hereinabove. It is also contended that damages have also been prayed for in the plaint which are outside the framework of the above referred and are not covered by the said Act. That the payments were made in the matter by the plaintiffs to Wirsa Construction and not to the Society. It is also contended that the matter is not liable to be sent to the Special Court/Co- operative Court as the same amounts to arbitration and in 'this regard he relies upon the case of M. Wahidullah Ansari through legal heirs v. Zubeda Ashraf and another reported as PLD 2002 Karachi Page 414. That the link between the said Wirsa Construction and the Society was considered in the reported case of Abdul Waheed Siddiqui v. The State reported as 2007 YLR Karachi Page 3314 wherein to the officials of said Wirsa Construction bail was refused as fraudulent acts of the said defendant are as such apparent. He concludes that the matter may not be referred to anywhere and be proceeded by/before this Court.
6. Learned counsel for defendant No.1 however has referred to Section 116(2) of the said Act contending that the proceedings are liable to be adjudicated accordingly by transfer to the Special Court/Co-operative Court as dealing of the pending proceedings are dealt with as provided in the said section and Section 117 Subsection (2) of the said Act; same stands quoted as follows for a ready reference:- Section 116:
(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 Government, the Registrar, officer or liquidator, a society, a financing bank, a Cooperative bank or any other officer or person is empowered by or under this Act, or the rules or by-laws framed there under, to dispose of or to determine;
(b) the validity of anything done or an order passed by 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 there under, 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 relation to any proceedings under this Act or any rules or by-laws framed there under before 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 this Act, comes into force, and any order passed in such proceedings, whether before or after the coming into force of this Act, in regard to matters referred to in subsection (1), shall stand vacated and be without any force.
7. Section 117 Subsection (2):
(2) On establishment of Special Courts under subsection (1), the cases falling within the purview of this Act pending in any court shall be transferred to the Special Court for trial, (underlining by me for emphasis only)
8. Learned AAG present refers to Section 73 of the said Act contending that the dispute in the matter is liable to be sent to the Special Court.
9. SECTION 73:
73. Disputes referred to the Cooperative Court.---- All disputes (other than a dispute regarding disciplinary action taken by the society or its committee against a paid servant of the society and liquidation disputes) shall be tried by the Cooperative Court established under section.
10. (underlining by me for emphasis only)
11. Having heard the learned counsel and gone through the record. Although the suit is tilted for declaration, directions, specific performance, possession, rendition of accounts, mandatory and permanent injunction and damages of Rupees 40 Million, the contents thereof summarized for present question is that the plaintiffs having paid amounts and/on failure of the promises made claims the reliefs as prayed. The defendants were working under the business name of "Imran Town". However Cooperative Housing Society Limited is found shown along with Wirsa Construction in the annexures present with the plaint. Following prayers are made in the plaint; i) Relief of specific performance by directing the defendant No.1 vendor to execute sub-lease deeds/sale deeds and get the documents registered before Sub-Registrar Karachi of suit properties/Plot Nos. B-36 and B-39, all admeasuring 400 sq. yards, situated in Rub Razi Cooperative Housing Society Ltd. A housing Project (lmran Town) Sector 37-A, Scheme No.33, Gulzar-e-Hijri, Plot No.A-78, Near Sadi Town, Karachi, fully mentioned in paras Nos. 2 and 3 of the plaint for the said/purpose the plaintiffs shall pay all necessary expenses in respect of purchase stamp papers/stamp duties preparation of conveyance deeds and regisiration fees and plaintiffs shall pay the balance of the above mentioned sale consideration/sale price to the defendant No.1/vendor and in case of failure of the defendant No. 1/vendor to do so, Nazir of this Honourable Court or any other responsible officials of this Honourable Court may be appointed/directed to do the needful and get conveyance deed executed and registered in respect of the suit properties in favour of the plaintiffs/purchasers and they shall bear the necessary costs and fees. ii) The plaintiffs be put in vacant possessions of the suit properties by ejecting the defendant No.1 and his any employees agents and any one claiming through him therefrom. If the defendant has illegally transferred the suit property to any other person the alleged documents may kindly be cancelled and unauthorized alleged vendee/purchasers may be dispossess if the building have been constructed by any one on the said suit plots it may be demolished. iii) Perpetual injunction be issued against the defendant No.1/vendor restraining him from selling alienating, transferring in any manner or gifting the suit properties to any other person or party or mortgaging it to any other person or partly or any institution or handing over its possession to any other person or party or inducting any tenant or licensee thereon and unauthorized constructions on suit properties. iv) To direct the defendant Nos.1 and 2 to produce all the original title documents (lease deed, sale deed, layout plan No. C etc) of the suit properties before this Honourable Court and complete statement of accounts of payments made by the defendant No.1 to the defendant No.2 on account of suit land/properties.
12. Awar a money decrees for damages of Rs.40 M. in favour of plaintiffs Nos.1 and 2 each on account of damages and/or compensation due to mental tortures/agony and compensatory costs on account of increase in costs of construction of build and other misc, expenses. vi) Award costs of the suit to the plaintiffs. vii) Any other relief which this Honourable Court may deem fit and proper in the interest of justice.
13. Apparently in this case the person having paid the amounts require to be treated as Member of the Cooperative Housing Society as it cannot be imagined that there can be any plot available for a non-member in a Co-operative Housing Society, as such the plaintiff (irrespective to any shortcoming to the drafting of the plaint and the inclusion of the society as a defendant) require to be treated as a member and entitled to the promised or in alternative damages whether against the present defendants or where the said Housing Society is subsequently impleaded therein. As such depending upon the facts as may be proved by him and the defense/proof from the other sides it is required to be decided as to what if any the plaintiff is entitled to in accordance with law.
14. The plaint as such is found to be coming well within the definition of dispute.
15. As to the status of the defendants the relied upon case of the plaintiff "Abdul Waheed Siddiqui v.
16. The State" reported as 2007 YLR Karachi Page 3314 the proceedings arising under Anti-Corruption laws not available for personal disputes and relating to co-operative society on account of public money involved only supports the matter of the plaintiff to be dealt with the Co-operative Court.
17. The said Act pertains to new as well as old disputes. Section 116(2) of the said Act as referred hereinabove is referring to the pending proceedings whereas the arbitration agreement of the plaintiff is found misconceived for the present law.
18. It is further observed that appeal in the said Act is also provided before this Court in Rule 53(2)
19. Notification No. SO(SA)II(11)/2017(Pt.-1) dated 1 October, 2020, (without any comments being made to the provision of appeal in the rules and that so without any direct support from the statute itself, being a discussion not required for the present controversy and may be dealt as and when so found required). The same for a ready reference also quoted below.
20. RULE 53(2)
(2) Any party aggrieved by any decision, order or judgment of the Special Court for Cooperatives may within 30 days of the date of such decision, order or judgment, appeal to the High Court of Sindh.
21. This Court naturally cannot hear the appeal from an order passed by itself.
22. The saving clause was also looked into as present in Section 119, for a ready reference the same is quoted as follows:-- SECTION 119: 119, Repeal and Saving.---The Cooperative Societies Act, 1925 (Act VII of 1925), hereinafter referred to as the repealed Act, in its application to the Province of Sindh is hereby repealed,
(2) Notwithstanding the repeal under subsection (I), everything done, orders passed, action taken, obligation, liability, penalty or punishment incurred, enquiry or proceeding commenced, officer appointed or person or officer authorized, jurisdiction or power conferred, rules or regulations made or notification issued, under any of the provisions of the said Act, shall continue to remain in force and shall be deemed to have been done, passed, taken, incurred, commenced, appointed, authorized, conferred, made or issued under the provisions of this Act.
23. The said saving clause apparently only protects the orders and the acts etc. only and not the earlier Cooperative Societies Act, 1925 (Act VII of 1925) which accordingly stands repealed.
24. The only element left is the statutory jurisdiction as to the claim i.e. whether the special court for Co-operative Societies will be restricted to its normal pecuniary jurisdiction along with the adjudication as to claim arising therefrom. In the present case the claim of damages. This element apparently also described in Section 117 whereby the words used are "Civil Judge/Assistant Sessions Judge". The said Court acquiring its jurisdiction under Section 9 of the Civil Procedure Code, 1908 empowers it to determine all civil matters which are not barred. For a ready referencest section 9, C.P.C. is quoted below. The bar not being present the availability of adjudication is not found prejudiced even for the claim of damages and may be considerable for claim having similar status.
25. Section 9, C.P.C:
9. Courts to try all Civil Suits unless barred:--The Courts shall (subject to the provisions herein cone tamed) have jurisdiction to try all suits of a civil nature excepting suits of which their cognizance is either expressly or impliedly barred, Explanation.- A suit is which the right to property or to an office is contested is a suit of a civil nature, notwithstanding that such right may depend entirely on the decision of questions as to religious rites or ceremonies.
26. It shall however remain available for the Special/Co-operative Court to determine whether the claim of damages arises out of dispute as referred in the special law or otherwise.
27. Apart from all of the above it is also liable to be considered that when the special forum is provided and available the proceedings therein require to be concluded within 120 days by way of day-to- day hearing the same is to be efficacious and being a special law prevails over the general law.
28. Considering the foregiven it is as such concluded that the present matter being found covered by the said Act it is to be dealt accordingly. Learned AAG has made a statement that Co-operative Court is functional. Accordingly, it is ordered that the present matter be sent to the concerned/Co- operative Court to be tried and decided in accordance with law.
29. In this regard in case this order passed on the original side remain intact and it is not found set aside. It is further directed that the Addl. Registrar (O.S) may look into the availability of a reference for required order from the Honble Chief Justice for similar matter's having disputes as defined in the said Act to be sent to said/relevant Special/Co-operative Court for disposal in accordance with law.