RASHEED A. RAZVI, J.- This is a suit filed by registered Association seeking declaration, permanent injunction and refund of the amount realised by the defendants as Central Excise Duty from the members of plaintiff Association, ln their written statement, defendants raised several objections to the maintainability of the suit including locus standi and competency of the plaintiff to maintain this suit. In reply to such objections, plaintiff filed an application under Order I, Rule 8, C.P.C, read with section 151,' C.P.C, with the following prayers:-
(a) clarify that the plaintiff, a registered body, can enforce the rights of its members and seek injunction/declaration on their behalf without the necessity of impleading the same or converting the suit into a representative cause;
(b) without prejudice, in default of (a) above and if so required, this Hon'ble Court may kindly be pleased to allow the plaintiff/applicant to convert the instant suit into a representative suit by impleading the members of the plaintiff as co-plaintiffs as specified in the attached list (Annexure X-l) after compliance of necessary formalities."
2. By consent of the parties, it was decided that the above application along with legal objections raised by Mr. Makhdoom Ali Khan be heard first.
3. The case of the plaintiff is that it is a duly registered body and its members are owners of several marriage halls, lawns and gardens which they are running for the purpose of holding functions, ceremonies, parties and other gatherings on commercial basis. It is claimed in the plaint that the owners of such premises in no manner render services to their respective customers while arranging functions of marriages or of like nature; that in furtherance of powers conferred on defendant No. 1 under section 37 of the Central Excises and Salt Act, 1944 (hereinafter referred to as the Act 1944), the Rule 176 of the Central Excise Rules, 1944 (hereinafter referred as the Rules 1944) was amended and SRO 651 (l)/90, dated 26.6.1990 was issued through which marriage lawns and gardens were equated with hotels and restaurants and excise duty was imposed on marriage halls situated within Metropolitan Corporation at the rate of Rs. 10,000/- (rupees ten thousand only) per year; that the defendant No. 1 again issued another SRO 590(1 )/93, dated 15.7.1993 levying fixed amount of Central Excise Duty; that on 11.10-1994, through Notification SRO 1015 (l)/94, the defendant No. 1 prescribed fixed amount of Central Excise Duty on marriage halls against which the members of the plaintiff association protested and issued several communications including public advertisements. It is further case of the plaintiff that all such amendments in the Act, 1944 and the Rules, 1944 with a view to impose Excise Duty on marriage halls and gardens are without jurisdiction, without any lawful Authority and illegal and that the defendants are not entitled to recover the same. The plaintiff has prayed for the following relief in the plaint:- "(l) declare that the plaintiff and its members do not render any service and accordingly could not be made subject to payment of the central excise duty;
(2) declare SRO 651 (I)/90, dated 24.6.1990, SRO 590(I)/93, dated 15.7.1993, SRO 591 (I)/93, dated 15.7.1993, SRO 1003 (I)/94, dated 10.10.1994, SRO 1015 (I)/94,-dated-11.10,1994, SR0 1016 (I)/94, dated 11.10.1994, letters dated 19.3.1996, 22.3.1996 and 10.6.1996 and others marked as Annexures D.I to D-8 and SRO 460 (I)/96, dated 13.6.1996 and offending parts thereto and any other consequential order, letter or notice as unconstitutional, void ab initio and of no legal effect, and inapplicable to the plaintiff and its members;
(3) direct the defendants to administer the refunds of central excise duty illegally collected thus far and thereafter plus additional refund, mark up or indexation till the date of payment;
(4) permanently restrain the defendants from charging central excise duty from the plaintiff and its members in pursuance of letter dated 19.3.1993 issued by defendant No. 1 or any other such letter/which issued as a follow up by any defendant or SRO 460 (I)/96, dated 13.6.1996 issued by defendant No. 1 or any other letter, notice or notification in this regard;
(5) pending disposal of the main temporary injunction restraining the defendants from charging central excise duty from the plaintiff and its members in pursuance of the letter dated 19.3.1993 issued by the defendant No. 1 or any other such letter or notice issued as a follow up by any defendant or SRO 460 (I)/96, dated 13.6.196 issued by defendant No. 1 or any other letters, notices or notification in this regard;
(6) .....................................................................
(7) ....................
4. I have heard Mr. Farogh Nasim, Advocate for plaintiff and Mr. Makhdoom Ali Khan, Advocate for defendants. The moot question is whether a registered association as of the plaintiff can file and maintain a suit of the instant nature when the plaintiff association has not suffered any personal injury. Mr. Farogh Nasim has referred to Section 6 of the Societies Registration Act, 1860 which provides that every society registered under the said Act may sue or be sued in the name of President, Chairman or Principal Secretary as provided in the Rules and Regulations of the Society.
Likewise, this section further provides that any person can also sue the registered Society through its President, Chairman or Principal Secretary. There is no cavil to the proposition that a registered Society being a juristic person/sui juris can file and maintain a suit but such suit should be filed through its President, Chairman or through its Secretary as provided by the Rules and Regulations of the Society. Where rules and regulations of a registered society do not authorise any of its office bearers then in the name of any person/member as may be appointed by the governing body of the said society. In the instant case, the title of the plaint is silent as to through whom this suit is being filed? However, in para 1 of the plaint it is submitted that one Shaikh Riazuddin, General Secretary, is authorised to verify the plaint/pleadings and to institute the suit. In support, a resolution dated 27.6.1996 is filed which says that one Shah Riazuddin (not Shaikh Riazuddin) is authorised to institute this suit, the sign and file documents and verify pleadings. The plaintiff has not filed any copy of rules and regulations or Memorandum or Articles of Association in order to show whether such rules, regulations or memorandum of association confers authority on the Secretary to institute this suit.
5. In support of his application, Mr. Farogh Nasim has referred to. The case of The Sakharkherda Education Society, Sakharkherda v. The State of Maharashtra (AIR 1968 Bombay 91) where a Division Bench of Bombay High Court while dealing with the objection that a registered society which is not a citizen has no right to make an application claiming enforcement of its fundamental rights as provided under Article 19 of the Indian Constitution. Reference was matie to the case of State Trading Corporation Of India Ltd. v. Commercial Tax Officer (AIR 1963 S.C. 1811). It was held by the Bombay High Court that a petition filed by a registered educational society be treated as one made on behalf of the members of the society who are all citizens of India. Mr. Farogh Nasim has also referred to the case of Pak Steel Re-rolling Mills Association v. Province Of West Pakistan (PLD 1964 Lahore 138) and contended that the rule laid down by a Division Bench of Lahore High Court is not applicable in the present case as the petitioner was registered under the Trade Organization Ordinance, 1961 which has no parallel provision as of section 6 of the Act, 1860. He also referred to the case of Muntizma Committee Al-mustafa Colony (Regd.), Karachi and 3 others v. Director Karachi Abadies, Sindh and 5 others (PLD 1992 Karachi 54) where a Division Bench of this Court comprising Syed Hyder Ali Pirzada and Imam Ali G. Kazi, J. (as they then were) formulated two points for consideration, one of which is identical to the issue involved in this suit but, according to Mr. Farogh Nasim, it was not answered. This position is disputed by Mr. Makhdoom Ali Khan, Advocate for defendants who argued that such question was answered. However, it would be advantageous if the said question is reproduced:- "(1) Whether an association of persons, registered or unregistered, can maintain a petition under Article 199 of the Constitution for the enforcement of the rights of its members as distinguished from the enforcement of its rights?"
6. Reference was also made to the case Mst. Fidai Zuhra and others v. Deputy Commissioner and Deputy Settlement Commissioner (Land), Sukur and others (PUD 1996 (W.P) Karachi 79) and Madina Masjid Committee and 3 others v. Anjuman Ghulaman-e-Mustafa through President and another (1993 CLC 2227). The rule laid down by the leamed Division Bench of this Court in the case of Fidai Zuhra (Supra) is not relevant for the determination of present controversy as it deals with the principles laid down in Order I, Rule 1 C.P.C. In the second case, a leamed single Judge of this Court while dealing with a Civil Revision Application, considered the impact of section-6 of the Act, 1860 and Order I, Rule 8, C.P.C, and held that a suit by a large group of persons having common interest such as the plaintiff Anjuman can institute suit under Order I, Rule 8 ibid. It was further held that since Anjuman was dispossessed from the shop in question, as such, it was interested in the above suit and was rightly claiming physical possession. Mr. Farogh Nasim has also referred to the case fr6m Indian Supreme Court The Chairman Tamilnado Housing Board, Madras v. T. And Ganpati (AIR 1990 S.C. 642) in order to canvass that the provisions of Order I, Rule 8, C.P.C, was enacted in the public interest with a view to avoid multiplicity of litigation. But in that case, suit was initially filed by respondent against Tamilnado Housing Board seeking injunction restraining the Board from demanding and collecting additional amount fr6m other allottees. Application filed by respondent under Order I, Rule 8, C.P.C, was granted which view was upheld by the Indian Supreme Court. It was rightly contended by Mr. Makhdoom Ali Khan that the rule laid down by the Indian Supreme Court in the above-referred case is neither relevant nor attracted inasmuch as through an amendment in Indian C.P.C., major changes were brought in Order I, Rule 8, C.P.C, which now totally differs from Order I, Rule 8 of the Pakistan C.P.C. I have compared provisions of Civil Procedure Code of both the countries and found, that following new provisions were added in Rule 8 to Order I of Indian C.P.C, v/de C.P.C. (Amendment) Act, 1976:- "(b) the Court may direct that one or more of such persons may sue or be sued, or may defend such suit, on behalf of, or for the benefit of, all persons so interested.
(4) No part of the claim in any such suit shall be abandoned under sub-rule (1), and no such suit shall be withdrawn under sub-rule (3) of Rule 1 of Order XXIII, and no agreement, compromise or satisfaction shall be recorded in any such suit under Rule 3 of that Order, unless the Court has given at the plaintiff's expense, notice to all persons so interested in the manner. Specified in sub- rule (2).
(5) Where any person suing or. Defending in any such suit does not proceed with due diligence in the suit or defence, the Court may substitute in his place any other person having the same interest in the suit.
(6) A decree passed in a suit under this rule shall be binding on all persons on whose behalf, or for whose benefit, the suit is instituted, or defended, as the case may be.
Explanation.-For the purpose of determining whether the persons who sue or are sued, or defend, have the same interest in one suit, it is not necessary to establish that such persons have the same cause of action as the persons on whose behalf, or for whose benefit, they sue or are sued, or defend the suit, as the case may be.)"
7. In view of the amendments made in Indian C.P.C, in the year 1976, I am of the view that the case of Chairman Tamilnado Housing Board (supra) is of no help to the plaintiff. I. Would like to observe that during last two decades, the concept of public interest litigation has emerged in the legal field of Indo Pak Subcontinent and is now gaining momentum. It is high time that our legislators should also incorporate identical provisions as of the Indian C.P.C, in our Civil Procedure Code, 1908, in order to make it in conformity with the concept of public interest litigation and with a view to avoid multiplicity of litigation.
8. It is settled that Rule 8 of Order I, C.P.C, is a rule of convenience and is only enabling and permissive in nature. It is not a mandatory provision. It was enacted with a view to save the litigants from additional expenses and to save the Court time in order to avoid repetition of same cause and' litigation. (If any reference is needed, see Adam Khan Guha MIR and others (PLD 1982 S.C. 120) and Haji Saleh Muhammad and 2 others v. Haji Juma Khan Agha and 4 others (PLJ 1983 S.C. 262). In the last mentioned case, a Full Bench of Hon'ble Supreme Court of Pakistan approved the view of a learned single Judge of this Court in the case of Rangal Shah and others v. Mula Jadal (PLD 1960 Karachi 512) where it was held that Rule 8 to Order I, C.P.C, does not entail any compulsion for a person to bring a representative suit where a separate action can be maintained by him without joining others. In the present case, it was not disclosed by the plaintiff that this suit is being filed by it in representative capacity. Resolution filed in support of plaint also indicates that the person who was authorised to sign and verify the contents of plaint was authorised to do the same in capacity as General Secretary of the Association. This resolution as well as plaint nowhere indicates that the present suit was brought by all the members of association or on their behalf. It was at a latter stage when objection was raised by the defendants that the instant application under Order 1, Rule 8, C.P.C, was filed. Intially, suit was filed on 27.6.1996 while the present application was filed on 10.12.1996 after a delay of nearly six months. It reflects, that at the time when the suit was filed, the plaintiff never thought of filing a representative suit. Along with CMA-7053/96, plaintiff has also annexed as 'XT a list showing 122 members. It is prayed by the plaintiff Association that all these members be impleaded as co-plaintiffs. Mr. Makhdoom Ali Khan has rightly raised objection on the legal status of all these members. Perusal of list of members indicates that nowhere it was mentioned whether these members are individuals, registered as association or companies under Companies Ordinance, 1984. In case if a proprietory concern the plaintiff was required to disclose the name of its proprietor and in the case of registered association, again the plaintiff was required o show that there is a resolution entitling the said member to be joined as coplaintiff. In case of a company, the same requirement is to be met/complied as is defined in Order XXIX C.P.C, and as in the case of Khan Iftikhar Hussain Khan of Mamdot v. Messrs Ghulam Nabi Corporation Ltd. (PLD 1971 S.C. 550). In my view the plaintiff was required to give correct and all other legal details about the legal status of its members in order to bring its case within the scope of Order. I, Rule 8, C.P.C.
9. Mr. Makhdoom Ali Khan has also raised objection that the present activity of the plaintiff in order to bring the present suit is beyond the scope of its by-laws, regulations and/or Memorandum or Articles of Association. He has further argued that in view of preamble and sections 1 and 20 of the Societies Registration Act, 1860, the present plaintiff is not entitled to act contrary to the same.
According to the learned counsel, since the purpose of the present suit is beyond the scope of section 20 of the Act, 1860, the plaintiff association may not be permitted to act contrary to the same. For the sake of convenience, section 20 of the Societies Registration Act, 1860 is reproduced as hereunder:- "20. To what Societies Act applies: The following societies may be registered under this Act: Charitable societies, societies established for the promotion of science, literature, or the fine arts, for instruction, the diffusion of useful knowledge, the diffusion of political education the foundation or maintenance of libraries or reading-rooms for general use among the members or open to the public, or public museums and galleries of paintings and other works of art, collections of natural history, mechanical and philosophical inventions, instruments or designs."
The plaintiff association was evasive in its reply to the above objections inasmuch as during lengthy hearing the instant application and objection, no effort was made to bring rules and regulations of the association on record. Therefore, it will be difficult at this interlocutory stage to answer conclusively the objections raised by Mr. Makhdoom Ali Khan. No penal consequences are provided in the Act, 1860 if a registered society or an association acts contrary to the provisions of law. At the most, the defendants may move the concerned authority for its de-registration, if such provision is available in law.
10. As a result of the above discussion, I am of the considered view that it was not the intention of the plaintiff association at the time of filing this suit that they intended to file it as a representative suit and for the reason that application under Order I, Rule 8, C.P.C, was filed at belated stage with defective and incomplete list of its members on whose behalf authority to file suit or to implead as co-plaintiffs has not been produced, the instant application has no merits and is, therefore, dismissed. Accordingly, CMA No. 7053/96 is dismissed. Now, the order of interim injunction passed on 25.8.1996 shall be read in respect of plaintiff Association only. Further hearing of the other two applications (CMA-4206/96 and CMA-933/97) is adjourned to 4th April, 1997.