The plaintiff Society has brought this suit for declaration, possession and damages in respect of amenity Plot No.19, Blocks 7 and 8 Karachi Cooperative Housing Societies Union, admeasuring 3040 Sq. Yards seeking a declaration that cancellation of allotment in their favour and its allotment and lease in favour of defendant No.4 be declared as illegal, void and inoperative. Besides praying for restoration of possession, the plaintiffs have asked for damages to the tune of Rs.25,000 with 12% interest against the defendants. Mesne profits at the rate of Rs.1,000 per month from the date of the suit have also been claimed against defendant No.4 with interest at 12% per annum.
2. Plaintiffs as well as defendants Nos.2 and 3 are the registered cooperative societies under the Cooperative Societies Act. (hereinafter referred as Act). Defendant No.1 entered into an agreement dated 14-1-1954 with defendant No.2 whereby 1175 acres of land in Karachi was placed at the disposal of defendant No.2 with specific provision regarding the plots reserved for public amenities.
In pursuance of this agreement, defendant No.2 allotted lands to various member societies for residential as well as commercial purposes and was bound to ear-mark 5% of the total area so allotted in the form of amenity plots. In the first instance plot in suit was allotted by defendant No.2 to plaintiffs vide letter dated 8-11-1958 as amenity plot, who obtained approval of a building plan thereon. It is the case of the plaintiffs that they started construction of a room for office purposes in order to construct the main building as per approved plan when on 10-7-1976, defendant No.4 went to the site and demolished the construction raised by the plaintiffs and took away their property. It is alleged that later, defendant No.4 forcible trespassed on the plot in suit and occupied the same.
For this purpose, the plaintiffs assessed the damages at Rs.25,000. Plaintiffs averred that they did not receive any notice of cancellation of allotment nor were they provided an opportunity of hearing before the cancellation of allotment in their favour while defendant No.4 claimed that he had been allotted and leased out the plot in suit in July, 1975 by defendants Nos.1 and 3. After service of a legal notice through their Advocate on all defendants and receiving no response plaintiffs filed this suit asserting that the allotment and execution of lease in respect of the plot in suit in favour of defendant No.4 by defendants Nos.1 and 3 is illegal, void and inoperative.
3. While defendants Nos.1 and 3 did not contest the suit, defendants Nos.2 and 4 filed separate written statements resisting the suit. It is the case of defendant No.2 that in the first instance, plot in suit was allotted to the plaintiff and later without cancellation of the allotment, the said plot was allotted to defendant No.3, who in turn allotted the same to defendant No.4 for amenity purposes.
According to this defendant, subsequent allotment in favour of defendant No.3 by the management of the society was illegal and unjust as the plot in suit was already elected in favour of the plaintiffs who were put in possession therefore and had a vested right in it. Consequently, allotment and lease of the plot in favour of defendant No.4 was equally illegal and ultra vires. It is further the case of this defendant that after promulgation of Martial Law Order 34 they cancelled the allotment of all amenity plots including the plot in suit vide cancellation order dated 13-12-1977.
A detailed report with regard to cancellation of amenity plots was sent to Martial Law Authorities for confirmation of action which appointed a high official committee for confirmation of the action taken which was subsequently confirmed. Decision dated 17-7-1979 taken with the approval of the Governor of Sindh/Martial Law Administrator, Zone C was communicated to the Secretary of this defendant which was also sent for compliance to the Registrar, Cooperative Societies on 23-7- 1979.
4. The case of defendant No.4 as reflected in his written statement is that the plot in suit belonged to defendant No.3, who allotted this plot in his favour and .On their recommendation defendant No.2 demarcated boundaries of the plot and delivered its possession to him in May, 1976 which was followed by execution of a sub-lease in his favour. This defendant, as per terms of the lease and understanding with defendant No.2 society, raised certain construction on the above plot for the purposes of community interest and invested a sum of Rs.200,000 on earth filling work and construction. According to thisdid not take any action for cancellation of the lease, any other remedy till July, 1976 when for the first time Maqbool Ahmed Khan, Secretary of the plaintiff society, forcibly occupied the plot of land. Matter was reported to police and apprehending adverse action the said Maqbool Ahmed Khan abandoned possession of the plot which was taken over -by defendant No.4 under intimation to S.H.O. Ferozeabad Police Station. Subsequently, Maqbool Ahmed Khan, started threatening this defendant to dispossess him by force with the result that he filed Suit No.1340 of 1976 in the Civil Court in which an order of interim injunction was passed.
Thereafter, the plaintiffs served defendant No.4 with a notice dated 27-7-1976 raising their claim with regard to allotment of the plot in their favour and questioning the allotment and lease in favour of this defendant. Pleas with regard to lack of jurisdiction, misjoinder of parties, under- valuation of suit and non-maintainability thereof were also raised.
5. On the pleadings of the parties, following issues were settled by consent:---
(1) Whether the plaintiff is entitled for the declaration that the cancellation of the allotment order in favour of the plaintiff as well as the allotment and lease in favour of the defendant No.4 is illegal, void and inoperative and the allotment with possession in favour of the plaintiff still subsists?
(2) Whether the plaintiff is entitled for the restoration of the possession of the plot of land in dispute?
(3) Whether the defendants are liable jointly and severally to pay damages of Rs.25,000 to the plaintiff?
(4) Whether the defendant No.4 is liable to pay mesne profit at the rate of Rs.1,000 per month from the date of the suit till vacant and peaceful possession of the disputed plot is handed over to the plaintiff?
(5) Whether the suit is bad for misjoinder of parties and causes of action?
(6) Whether the suit is under valued?
(7) Relief?
6. In support of its case, the plaintiff society examined Muhammad Laiq, Chairman of the Society P.W.1, Muhammad Munawar, Chief Officer of defendant No.2 P.W.2 and Maqbool Ahmed Khan, Secretary of the plaintiff society P.W.3. On the other hand, defendant No.4 Muhammad Ashfaq appeared as his own witness and examined Hamza A.I Mangrio Chief Officer D.W.2. A number of documents including a deed of cancellation dated 20-1-1980 with regard to cancellation of lease executed in favour of defendant No.4 as well as execution of lease deed in favour of the plaintiff society dated 1-2-1984 were produced by the parties which shall be discussed later on.
7. I have heard learned counsel appearing for the parties and gone through the relevant evidence on record. My findings on each issue with reasons therefor are as under:
8. FINDINGS ISSUE NO.1Negative ISSUE NO.2Negative ISSUE NO.3Negative.
ISSUE NO.4Negative.
ISSUE NO.5Not maintainable for want of statutory notice.
ISSUE NO.6Not pressed.
ISSUE NO.7Suit dismissed with costs.
9. REASONS ISSUE NO.5 This issue was raised by defendant No.4. Mr. Mubarrak Hussain Siddiqui, learned counsel for defendant No.4 contended with vehemence that the prayer of the plaintiff society was directed against the defendants Nos. 2 to 4 whereas defendant No.1 has been joined unnecessarily because Government of Pakistan is neither a necessary nor proper party to the suit. It appears that no cause of action arose to the plaintiff Society against the Federal Government and undoubtedly no relief has been sought against the said defendant, I am however of the view that the suit shall not fail for misjoinder of this defendant who have advisedly not contested the suit.
10. However in the context of this issue, a legal question has been raised as to the non- maintainability of the suit for want of statutory notice under section 70 of the Cooperative Societies Act which is mandatory in nature. This provision of law renders it absolutely necessary on the plaintiff to serve a notice on the Registrar before filing a suit relating to a dispute touching the business of the Society which can only be referred to Registrar for arbitration under section 54 of the Act.
11. This provision of law reads as under:--- "70. Notice necessary in suit.---No suit 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 relief which he claims and the plaint shall contain a statement that such notice has been so delivered or left."
12. In the present suit, plaintiff Society was conscious of this legal position and fully aware of the legal consequences emanating from non-service of statutory notice. In fact it had served notice dated 27th July, 1976 on all the defendants intimating them that the proposed suit shall be filed in Court of law for the reliefs claimed in the suit after the expiry of statutory period. It is however, strange to note that no care was taken to see that notice was given to the Registrar, Cooperative Societies which was absolutely necessary within the meaning of the provision of law referred to above. It is admitted that the plaintiff Society as well as defendants Nos.2 and 3 are Societies registered under the provisions of the Act and the plaintiff Society is seeking to enforce its claim not only against defendant No.4 but also against both the Societies in relation to an act of defendants Nos.2 and 3. This act certainly touches the business of the Society and no suit can be filed until the expiration of two months after the delivery of notice to the Registrar stating the cause of action, the name, description and place of residence of the plaintiff and the relief which he claims. The language of law not only insists upon the mandatory service of statutory notice on Registrar but also envisages that the plaint shall contain a statement that such notice has been so delivered or left at the office of the Registrar. There is no dispute as regards the status of plaintiff Society and defendants Nos.2 and 3 although defendant No.4 is not a member of the plaintiff Society. In these circumstances it was imperative on the plaintiffs to serve the statutory notice on the Registrar which was not actually served, therefore, the suit cannot be maintained. Had this point been raised at initial stage of the suit, proper course for the Court would have been to reject the plaint under Order VII, Rule 11, C.P.C. But after the conclusion of evidence and hearing arguments on all issues only course open to this Court would be to dismiss the suit for want of statutory notice and I hold accordingly.
13. I am fortified in this view by the judgments in the case of Muhammad A.I Memorial Cooperative Housing Society Ltd. Karachi v. Syed Sibtey Hasan Kazmi PLD 1975 Kar. 428 and Sajjad Hussain Khan and 126 others v. Muhammad Hanif Siddiqui and 3 others 1989 MLD 4250.
14. In the case at Serial No.1, the view taken was that the provisions of section 70 are mandatory and failure to comply with the requirements of that section that notice must be given would render the suit not maintainable.
15. In the case at Serial No.2, a similar view was taken and the plaint was rejected by reason of bar of jurisdiction under sections 54 and 70-A of the Act.
16. Learned counsel for the plaintiff was not in a position to controvert the aforesaid position in law emerging from the facts of the suit except saying that the Registrar or his nominee would not have been able to adjudicate upon the dispute between the parties. There is no merit in the stand taken on behalf of the plaintiff who have not been able to cite any law to the contrary though sufficient time and opportunity was allowed to them for this purpose.
ISSUE NO.1
17. From the evidence on record it transpires that in the first instance an area of 3040 Sq. Yards bearing survey number amenity plot 19 was allotted to the plaintiff Society alongwith a lay out plan by defendant , No.2 Society. Plaintiff had desired the conversion of this amenity plot into commercial plot which was referred and recommended by defendant No.2 to defendant No.1 who however, declined to accept the proposal vide letter Exh.5/10 dated 12-1-1973. It further appears that thereafter plaintiff Society expressed their inability to utilize this area as amenity and acquired an alternate site as amenity area in Block No.3 of defendant No.2 Society but consequent upon refusal by defendant No.1 to convert the plot in suit into commercial, allotment of the plot in favour of plaintiff Society was cancelled and the area stood reverted to defendant No.2. A letter to this effect dated 27th November, 1973 Exh.10/1 and its copy Exh.Ll/1 were produced in evidence. No doubt, plaintiffs have denied the receipt of this letter conveying the cancellation of allotment of plot in their favour there is satisfactory and sufficient evidence of Hamza A.I Mangrio who was serving as Chief Officer of defendant No.2 at the relevant period to show that the allotment in their favour was cancelled.
18. Learned counsel for the plaintiffs referred to para. 8 of the plaint in which it was averred that plaintiff society did not receive any notice for. Cancelling its allotment by defendant No.2 nor were they given any opportunity of hearing by defendants Nos.1 and 2 in respect of the cancellation of the allotment. He also attempted to rely on the contents of written statement filed by defendant No.2 in which it was stated that the plot in suit was allotted to defendant No.3 without cancellation of the allotment in favour of the plaintiffs. Be that as it may mere statement in written statement by an Officer of a Cooperative Society would not by itself be sufficient to contradict the documentary evidence brought on record. In fact Mr. Hamza A.I Mangrio serving as Chief Officer in Karachi Cooperative Housing Societies Union from 1973 to 1977 unequivocally stated that after the rejection of the request of the plaintiff Society for conversion of amenity plot into commercial by the Ministry of Works original allotment in favour' of plaintiff Society was cancelled and the plot resumed by the Union. Later, it was allotted to defendant No.3 Society who subsequently allotted it to defendant No.4 and possession was handed over to him by defendant No.2 vide Certificate Exh.6/3 dated 29- 5-1976 of handing over and taking over possession. He produced photo-copy of letter Exh.10/1 addressed by the then Administrator to the Secretary of the plaintiff Society showing that original allotment in respect of the plot had been cancelled on account of refusal to allow commercialisation of the plot.
19. It further transpires from the evidence that during pendency of the suit lease in respect of the plot in suit executed in favour of defendant No.4 was cancelled by defendant No.2 and a deed of cancellation Exh.5/23 was executed on 20-1-1980 before the Sub-Registrar. Later, a lease deed Exh.5/24 in respect of the plot in suit was executed in favour of plaintiff Society on or 1-2-1984. It may be pertinent to observe here that despite these material developments indicating the cancellation of lease deed in favour of defendant No.4 and execution of lease deed in favour of plaintiff, none of the parties cared to amend their respective pleadings. I am of the view that after the change in circumstances prayer of the plaintiff Society to the extent of declaratory relief having been granted it was incumbent upon them to amend the plaint but for the reasons best known to the parties neither the plaintiff nor defendant No.4 came forward for amendment of pleadings.
20. A serious question of law at this stage would arise whether these transactions are not hit by the principle of `lis pendens' as enshrined in section 52 of the Transfer of Property Act. This provision of law bars the transfer or encumbering aright to immovable property during the pendency of a suit or proceeding before a Court of law. "Lis pendens" 'iterally means a pending suit or. Cause and the doctrine of "lis pendens" has been defined as jurisdiction, power or control which a Court acquires over property involved in a suit, pending the continuance of the action and until final judgment therein. It denotes those principles of rules and laws which define and limit the operation of the Common Law Maxim to the effect that nothing relating to the subject-matter of a suit can be changed while it is pending. One who with actual or constructive notice of the pending action, acquires from a party thereto an interest in the property, involved in litigation in a Court and of the person or the one from whom the interest is acquired, takes subject to the rights of the parties to the litigation as finally determined by the judgment, order or decree. It has been observed that the effect of "lis pendens" is in its nature, the same as that of registration since it is only a different example of the operation of the rule of constructive notice. Its not effect would be to maintain status quo. No interest which is created during the pendency of the suit can affect any decree passed in the suit.
21. In the case United Bank Ltd. v. Azizunnisa PLD 1956 SC (Pak.) 274 it was held that a plea of lis pendens will be allowed to be raised even though the point is not taken in the pleadings or raised as an issue.
22. However a strange argument was advanced on behalf of plaintiff Society that lease in favour of defendant No.4 had been cancelled under the provisions of Martial Law Order 34 promulgated on 30-9-1977 by Martial Law Administrator Zone-C directing the cancellation of all allotments of plots reserved for roads, hospitals, schools or amenity purpose but were subsequently un-authorisedly or by political manoeuvres converted into residential or commercial plots and on which no construction had been made. This M.L.O. Was reconstituted as Martial Law Order 89 promulgated on 19-4-1979. In the reconstituted order an aggrieved person was given a right of appeal to Government within 15 days of the promulgation of the Order. No doubt argument on the face of it is highly attractive, but there is hardly any evidence to show that lease in favour of defendant No.4 was cancelled under the provisions of M.L.O. 34 as assumed by the plaintiffs. In this connection, reliance was placed on notice dated 30-9-1979 purportedly published by defendant No.2 in the Sindh Government Gazette dated October, 4th 1979 stating that defendant No.2 had already cancelled the allotment of amenity plots in pursuance of Martial Law Order 34 and had notified the same in daily `Jang' and `Dawn' in the month of January, 1979. It was further notified that Martial Law Administrator Zone-C and Governor of Sindh had confirmed the orders of cancellation.
23. A serious reservation was taken to this action taken by defendant No.2 during the pendency of the suit for a number of reasons, firstly; that MLO 34 or MLO 89 did not confer jurisdiction to cancel allotment of amenity plots on defendant No.2, secondly; that both the Martial Law Orders covered the cases of allotment whereas there was a valid registered lease deed in favour of defendant No.4, 'thirdly; that the notice published by defendant No.2 in daily `Jang' Karachi dated 27-1-1979 did not incorporate the plot in suit or the name of defendant No.4 and lastly there is no evidence to show that the plot in suit had been used for commercial or residential purposes or obtained by political manoeuvres. The argument advanced questioning the validity of action purported to have been taken under the two M.L.Os. Is not without force and has much substance in it'. Defendant No.2 being a party to the suit could not in law change the situation by effecting transfer of the property in suit in favour of plaintiffs after cancellation of lease in favour of defendant No.4 and certainly the action would be hit by the doctrine of `lis pendens'. There is absolutely no evidence to show that defendant No.2 were authorised to exercise the powers vested in Martial Law Administrator Zone-C.
24. Taking a strict view of the matter, I am of the view that subsequent events affecting the rights of the parties may be of no significance. The fact however, remains that the plaintiff Society has failed to establish its entitlement to the plot in suit or a declaration to the effect that allotment and lease in favour of defendant No.4 was illegal, void and inoperative.
ISSUE N0.2
25. It is admitted position that defendant No.4 is in possession of the plot in suit. For the purpose of deciding this issue, it is not necessary to dilate upon the circumstances under which he obtained the possession of the plot in suit. As a necessary corollary of the finding in Issue No.1, I hold that the plaintiff Society is not entitled to possession of the plot in suit.
ISSUES NOS.3 AND 4
26. Plaintiffs having failed to establish their right, and title to the property in suit, both the issues must fail and are answered in negative.
ISSUE NO.6
27. Learned counsel for defendant No.4 has not pressed this issue which is rendered redundant.
ISSUE NO.7
28. In view of the aforesaid discussion and findings on the foregoing issues, there is no merit in the suit which is accordingly dismissed with costs.