' This order seeks to dispose of C.M.A. No,518 of 1989 for rejection of the plaint and C.M.A.No,8453 of 1988 for issue of interim injunction restraining the defendant No,1 from raising any construction over the plot in suit.
' As per the plaint, plot in Suit No,253-A, Block-6, P.E.C.H.S., Karachi was allotted on 17-12-1950 to the plaintiff. The plaintiff had some correspondence with defendant No,2 Society about said plot while the plaintiff was posted at Peshawar. On his transfer to Karachi the plaintiff gave his Karachi address to the Society. Plaintiff received letter dated 6-2-1983, copy Annexure 'E' to the effect that the allotment of suit plot in his favour stood cancelled w,e,f, 1-7-1980. He made representation (copy Annexure F'), to the Martial Law Authorities on 6-2-1983. He moved an application (copy Annexure 'F') under section 54 of Cooperative Societies Act against defendant No,2 Society to the Deputy Registrar, Cooperative Societies on 27-9-1984. The matter proceeded before a nominee of the Deputy Registrar who gave awards, copy Annexure 'H' to the effect that cancellation of allotment of the plot from name of the plaintiff was illegal, void an initial, ultra ires and without jurisdiction. Defendant No,2 Society was directed under the wards to restore the plot in suit to the plaintiff. On 14-1-1986 the plaintiff moved the Registrar, Cooperative Societies for implementing the award and for restoration of suit plot to him. Defendant No,2 issued an order copy Annexure 'K' restoring allotment of the plot in name of the plaintiff.
3. Under a letter dated 30-12-1980 defendant No,2 had allotted the suit plot to the defendant No,1, who made necessary payments and subsequently on 13-12-1980 a deed entitled "Sub-license", copy filed with affidavit of Haji Abdul Ghafoor as Annexure 'B', was executed by defendant No,2 in favour of defendant No,1, permitting the defendant No,1 to occupy the plot and raise construction upon the same as licensee. Said deed was registered. It appears that there was an inquiry into the affairs of defendant No,2 and consequently the same was taken over by the Sind Cooperative Housing Authority under a notification dated 6-7-1982 issued by the Government of Sind, copy filed with the affidavit of Abdul Ghafoor as Annexure 'D'. Under another notification dated 8-7-1982 the Deputy Registrar, Cooperative Societies was appointed as Administrator of the defendant No,2 vide notification copy Annexure 'E'. The administrator issued a general notice through newspapers cancelling in general allotment of plots to various members of the defendant No,2 Society. Said action of the Administrator was challenged by the defendant No,1 under a Constitution Petition No,640 of 1988 filed by the defendant No,1 against the defendant No,2 and the Government of Sind, in this Court, where status quo was ordered, under an order dated 12-9-1988, copy Annexure 'F' filed with affidavit of Abdul Ghafoor.
4. In the back ground of above facts, the plaintiff in his plaint contended that cancellation of his allotment was illegal, because he was not given any prior notice and was not heard in person before the impugned cancellation. Plaintiff added that his allotment was legally restored, under the award dated 26-12-1984 given by Haji Akhtar Hussain nominee of the Deputy Registrar, Cooperative Societies, declaring cancellation of allotment of suit plot in favour of the plaintiff to be illegal, void ab initial, ultra vires and without jurisdiction and directing the defendant No,2 to restore suit plot to the plaintiff. Plaintiff moved the defendant No,2 and the Deputy Registrar for immediate restoration of the plot and the suit plot was restored to him under a letter dated 26-6-1988 copy Annexure 'K'. Plaintiff added that after restoration of the suit plot to him, he visited the same and found there some construction. Then he reported the matter to defendant No,3 who issued notice of demolition to defendant No,1 and then demolished the construction. This made the defendant No,1 file Suit No,1033 of 1988 in Court of the VIth Sr. Civil Judge Karachi East.
Defendant No,1 obtained ex parte ad interim injunction against the defendant No,3 and others, but later on his application for interim injunction was dismissed on 4-12-1988. Defendant No,3 was again approached by the plaintiff to demolish the construction raised in the meantime, but the former showed its inability to do so, as the defendant No,1 had obtained another stay order in another Suit No,1535 of 1988. It was alleged that the second suit was mala fide filed by the defendant No,1, without imploding the plaintiff as a party. It was complained that under the cover of "status quo" the defendant No,1 continued with construction over the suit property. Consequently the plaintiff filed this suit for declaration, possession and permanent injunction.
5. I have heard Mr.I.H.Zaidi, Advocate for the plaintiff and Mr.Shamsul Arfeen, Counsel for the defendant No,1 and Mr.Yagoob Baig, Counsel for the defendant No,3.
6. While arguing rejection of the plaint, learned Counsel for the defendant No,1 wanted this Court to take into consideration the documents filed with the plaint, besides contents of the plaint. Reliance for this was placed on the case of Haji Ahmed v. Abdul Karim and others PLD 1987 Kar. 219 decided by a Division Bench of this Court, which observed as below: "As to the contention that partnership agreement could be looked into by the Court while considering the appellant's application under Order VII, Rule 11, C.P.C., there was hardly any serious contest on the point, therefore we need not enter into the controversy at all."
' It was further observed, as follows. Since the partnership agreement had been filed with the plaint, the same could he looked into for the purposes of clause (d) of Rule 11 of Order VII, C.P.C."
' In the instant case there was serious contest on the point. Learned counsel .For the plaintiff was of the view that while considering rejection of a plaint the Court should apply its mind to the facts given in the plaint and not to any other matter. Similar view was taken in the case of Seven Stars Goods Transport Co. (Regd.) v. Administrator K.M.C. PLD 1976 Kar. 21 cited by the Counsel for the defendant No,1. Learned Counsel for the plaintiff himself made reference to certain documents filed with plaint, while opposing rejection of the plaint. There does not appear to be any harm in looking into the documents filed with the plaint, but no order of rejection of plaint can be based on such documents.
7. Learned counsel for the defendant No,1 arguing on C.M.A. No,518 of 1989 submitted that the present dispute between the plaintiff and the defendant No,1 was covered by section 54 of the Cooperative Societies Act, as both were members of the defendant No,2 Society and as such the same was determinable under the said Act and consequently the same was not determinable in a Civil Court, in view of Section 70-A of the said Act. He conceded that with the defendant No,3 as a party, the matter was not covered by section 54 of the said Act, but contended that the defendant No,3 was neither a necessary party nor a proper party to the suit. He wanted this Court to strike off defendant No,3 as a party and then to reject the plaint. It was alleged that the plaintiff had mis- stated the facts in para 30 of the plaint. Reference was made to written statement of defendant No,2 Society in Arbitration Case No,56 of 1984, where (copy Annexure 'G' to the plaint) defendant No,2 took position that the plot in suit was re-allotted to the defendant No,1 and that allotment might have been made after cancellation of allotment of the plot from name of the plaintiff.
Learned Counsel for the defendant No,1 further argued that the plaintiff had suppressed facts in the plaint and had intentionally omitted to implead the defendant No,1 in the proceedings under section 54 of the Cooperative Societies Act to obtain one sided award dated 26-12-1984 which was not binding upon the defendant No,1. That the plaintiff was conscious of this and hence he avoided to have recourse to a Civil Court under section 59 of said Act. Bar of Section 70 of said Act was also pleaded as no prior statutory notice was issued to the defendant No,2 Society. It was added that the plaintiff should have invoked the provisions contained by section 12(2) of C.P.C. It was further argued that the plaintiff could have sought cancellation of the registered sub-licence existing in favour of the defendant No,1 within a period of three years from the date of registration. In support learned Counsel for the defendant No,1 cited the cases of (i) Seven Stars Goods Transport Co.
(Regd.) v. Administrator, K.M.C., Karachi PLD 1976 Kar. 21, (ii) Pahlomal Moti Ram v. Abdul Quddus Bihari and others PLD 1971 Kar. 250, on the point about rejection of the plaint. In respect of striking off defendant No,3, learned counsel for the defendant No,1 cited, (iii) Razia Begum v. Iqbal Begum and others PLD 1957 Lah. 1040, (iv) Mia Muhammad Abdul Malik v. Sadruddin Hashwani and others 1988 CLC 1339, (v) Muhammad Kaleem Khan and others v. Muhammad Farooq Khan and others PLD 1987 Kar.
38.
8. Learned counsel for the plaintiff argued that the defendant No,3 was a necessary and a proper party to the suit and his name cannot be deleted from the plaint. That the defendant No,3 was charged with demolition of illegal constructions as the one raised at the disputed plot. It was argued that the plaint of this suit did not merit rejection because it disclosed a definite cause of action and trial of the suit was not barred by any law. Learned counsel for the plaintiff further argued that Section 54 of the Cooperative Societies Act did not apply to the instant case and that the affidavit of Abdul Ghafoor attorney of defendant No,1 filed with C.MA. No,518 of 1989 showed that a factual inquiry was necessary before taking a decision in this case. That the provisions contained by section 12(2) of C.P.C. Or Section 70-A of the Cooperative Societies Act had no application to this case where defendant No,3 was a necessary party, as he had to answer certain allegations. It was added that the allotment made in favour of the defendant No,1 was cancelled and such cancellation was not challenged before the proper forum. In support learned Counsel for the plaintiff put reliance on the cases of (i) Abdul Rahim v. K.D.A. 1988 CLC 1207, (ii) Syed Khadam Ali Shah v. S.M.Zia and others PLD 1981 Kar. 604, (iii) Azizuddin v. Aziz Ahmad and others PLD 1959 Karachi 497.
9. The law with regard to rejection of a plaint is discussed in a number of authorities which lay down principles of law to be considered while dealing with such a point. In the case of Pahloomal v.
Abdul Quddus and others PLD 1971 Kar. 250 cited by learned counsel for the defendant No,1, the view taken was that in asking the Court to reject a plaint under Order VII, Rule 11 of C.P.C. The defendant must be taken to admit for the sake of argument that the allegations of the plaintiff made in the plaint are true in manner and form. That the Court should reject the plaint only if it comes to the conclusion that even if all the allegations which are made in the plaint were proved to be correct, the plaintiff will not be entitled to get the relief. In the case of Seven Stars Goods Transport Co., (Regd.) v. Administrator, K.M.C. PLD 1976 Kar. 21 cited from defendant No,1's side, it was observed as below:-- ' "It is an axiomatic principle of law that while considering the question of cause of action the Court should apply its mind to the facts given in the plaint and not to any other matter and it has to presume that every allegation made in the plaint was true. It could therefore, reject the plaint if it came to the conclusion that if all the allegations are proved, the plaintiff would not be entitled to any relief whatsoever."
' In the case of Abdul Rahim v. K.DA. 1988 CLC 1207 cited by plaintiff's Counsel, the view taken was that the Court can reject the plaint under Order VII, Rule 11 of C.P.C. Only if the plaint appeared to be barred under some law on the basis of the averments made in the plaint. That the Court could not reject the plaint on the basis of pleas raised by the defendant in his defence or in the application under Order VII, Rule 11 of C.P.C. In the case of Khadim Ali Shah v. S.M. Zia and others PLD 1981 Kar.
604 cited by plaintiff side it was observed as below:-- ' "When a Court considers an application under Order VII Rule 11 of C.P.C. The argument proceeds on the assumption that the allegations contained in the plaint are true and correct and the Court rejects the plaint under this provision of C.P.C. Only if it reaches the conclusion that even if all the averments in the plaint are taken to be correct, the plaintiff will not be entitled to the relief claimed."
' In the light of the case-law discussed above it is to be seen if plaint of this suit merits rejection.
10. It is to be determined if the dispute between the parties is covered by section 54 of the Cooperative Societies Act, which reads as below:- "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 member 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 authorised under subsection (1) 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."
In the instant case the main dispute is over the plot in suit. No doubt it comes within business of a Co-operative Society to allot its plots to any of its members. In the instant case the Society (defendant No,2) discharged its duty by allotting the suit plot to the plaintiff. Later on it cancelled the allotment standing in favour of the plaintiff. Such cancellation was declared to be illegal, void an in to, ultra vires and without jurisdiction by a nominee of the Deputy Registrar, Cooperative F Societies under section 54 of the Cooperative Societies Act. This has given rise to many questions of law and fact, which cannot be determined by the Registrar, Cooperative Societies, because some of the questions are not "disputes touching the business of a society", for purposes of section 54 of the Co-operative Societies Act. Hence section 54 or section 70-A of said Act does not apply to the instant case. Case of Azizuddin Ahmed v. Aziz Ahmed and others PLD 1959 Karachi 497 cited by learned Counsel for the defendant No,1 does not help the defendant No,1. In cited case the allotments by the Society had merged in a lease granted by the Government of Pakistan for 99 years and it was held that the dispute was not covered by section 54 of the Co-operative Societies Act, as the dispute between the parties was not confined to the question of allotment and it really affected the lease deed and the Government of Pakistan was a necessary party to the dispute.
Government of Pakistan had nothing to do with the allotment of the suit plot. In any case the cited decision, does not carry any further the point raised, on behalf of the defendant No,1. The instant suit does not appear to be barred by section 54 or section 70-A of the Co-operative Societies Act.
11. There is no manner of doubt about powers of this Court under Order I, Rule 10 of C.P.C. To strike off any party to the proceedings. In the case of Razia Begum v. Iqbal Begum and others PLD 1957 Lah.
1040 cited by learned Counsel for the defendant No,1, the view taken was that a Court was vested with the G jurisdiction of striking off the name of a party only on the condition that such a party was "improper" in the suit, inasmuch as it had no interest in the suit and had no connection whatsoever with the reliefs claimed in the suit. In the case of Mia Muhammad Abdul Malik v. Sadruddin Hashwani and others 1988 CLC 1339 cited on behalf of defendant No,1, the defendants against whom the plaintiff had made no allegation, were ordered to be struck off from the plaint. In the case of Muhammad Kalim Khan v. Muhammad Farooque PLD 1987 Kar. 38 cited for defendant No, 1, it was observed that merely because a person claimed a particular right it did not become necessary to join him as a party in a pending I suit. This authority discourages joining of new parties in a pending suit. It does not deal with striking off name of a party from a pending suit. Even the case of Mia Muhammad Abdul Malik v. Sadruddin and others would not apply to this case, where definite allegations have been made against the defendant No,3. The Lahore authority could apply if defendant No,3 had no connection whatsoever with the relief calimed in the suit. Defendant No,3 is very much a proper party to the suit, as he is responsible for every illegal construction in any plot. Hence I decline to strike off name of the defendant No,3. Thus trial of this suit is not barred by any provision of law and no case is made out for rejection of the plaint. Hence C.MA. No,518 of 1989 stands dismissed.
12. In respect of C.MA. No,8453 of 1988 learned counsel for the plaintiff argued that lie had a prima facie case in his favour, as the suit plot was initially allotted to the plaintiff. He added that cancellation of plot from name of the plaintiff was declared to be illegal, void ab initio and ultra vires and that restoration of plot to the plaintiff was ordered. It was added that in such circumstances if there was any construction over the plot in suit, it would change its nature and create complications.
13. Learned counsel for the defendant No,1 opposed the application and J argued that after cancellation of suit plot from name of the plaintiff, it was allotted to the defendant No,1, who was licensee of the plot under a registered deed and hence defendant No,1 had a better case. In order to preserve the property in its present shape, it is essential that no construction be raised on the same. Admittedly the plaintiff is earlier allottee of the suit plot. If the cancellation of allotment had not taken place, the suit plot could not have been given to the defendant No,1. There are, however, triable issues and as such the plaintiff has a prima facie case. The balance of convenience also lies on the plaintiff. I, therefore, accept C.MA. No,8453 of 1988 and issue the interim injunction as prayed, to remain effective till decision of this suit.