1. ZIA PERWEZ. J. -- Defendant No. 1 has moved this application under Order VII, Rule 11, CPC seeking rejection of the plaint filed by the plaintiff in the above suit.
2. Facts of the case are that the plaintiff has duly registered Cooperative Society and were allotted an area of 92500 sq. yards land in Bath Island Society subject to the conditions set forth in Lease Form SL. Para 5 of the plaint states that it is provided in clause 7(1) that, "shall not construct buildings on more than one-third of the area of the plot and in clause (ii) the building so constructed for the said plot of land shall not consist of "more than three stories" (i.e. ground and the two floors)". The plaintiff has challenged the acts of one Hafiz Muhammad Ishaque Mehar appointed as First Administrator, of the plaintiff society who, without the consent or approval of the lessor KMC, created and allotted new plots to defendant No. 1 followed by subsequent permissions to raise multi-storey construction violative of the, terms of the aforesaid lease. The actions, details whereof are set forth in the plaint, are challenged on the ground of having been taken illegally and male fide/y. The plaintiff after setting forth the acts of carving, allotting amalgamation and construction contrary to the 'terms of the original lease deed has pleaded fraud, forgery and collusion against the defendants <and sought the following reliefs:-
(a) It be declared that the sublease dated 18th August, 1998 purporting to be executed in favour of defendant No. 1, pertaining to plots Nos. C-33/1 to C-33/10, C34/1, C-34/2 and C-34/3 (amalgamated No. C-33/1) in Gulshan-e-Faisal Co-operative Housing Society, Bath Island Karachi, bearing Registered No. 2329, pages 117 to 121, Volume No. 67 of Book No. 1. Addl. of Sub-Registrar T.Divn.11(B), Karachi dated 20.8.1998, is illegal, manipulated, fraudulent, forged and void ab initio.
3. Consequently, it does not confer any right, title or interest on defendant No. 1, in respect of these plots of land, and the same is liable to be cancelled/annulled, and delivered up.
(b) It be declared that the building plan said to have been approved by defendant No. 2 through Memo. No. KBCA/KDA/DCB-XV/Prop.98/18/07, dated 6.4,1999 pertaining to the aforesaid plot No. C/31/1 is illegal, collusive fraudulent and void and the same is liable to. be cancelled/withdrawn.
4. Similarly, the lay out plan dated 12.8.1998, said to have been sanctioned by defendant No: 3, in respect of the said plots of land, is illegal, invalid and the same is liable to be cancelled/annulled.
(c) Appropriate orders be passed for the cancellation of the aforesaid sublease dated 18.8.1998, and it may be ordered to be delivered up, with such further direction as this Hon'ble Court may deem just and proper.
(d) The defendant No. 2 be directed to cancel and withdraw the approval given to the building plans Of the suit land including that dated 6.4.1999 (bearing No. KBCA/KDA/DCB-XV-Prop.98/18/07)
(e) The defendant No. 3 be directed to cancel and withdrawn the NOC issued in respect of the suit plots vide dated 12.8.1998 (Annexure P/6).
(f) The defendant No. 1 be restrained from raring any construction on the suit land (of the area of 3000 sq. yards) or on any part thereof.
(g) The defendant No. 1 be directed to deliver the possession of the suit and in the plaintiff, and, on his failure to do so; the defendant No. 1 and all persons claiming through or under him, and/or found on the said land (or in the partly raised structure thereon) be evicted therefrom through the process of law and Court, and possession thereof be delivered to the plaintiff.
(h) Any other/further/better relief which this Hon'ble Court may deem just and proper, under the circumstances of the case, be granted to the plaintiff.
5. The costs of the suit be awarded to the plaintiff.
6. Mr. Muhammad Sharif, learned counsel for defendant No. 1., in support of the application has placed reliance on the provisions of Section 70-A of the Co-operative Societies Act read with Articles 131 and 151' of K.D.A. Order, 1957 and Section 20-A of Sindh Building Control Ordinance, 1979 and contended that in view of the contents of paragraphs 7 and 18 of the plaint, none of the prayers at Sr. Nos. a to e can be granted as the legality of the allotment is a matter falling within the purview of Section 54 read with Section 20-A of the Co-operative Societies Act, which bars the jurisdiction,of the Court. He has stressed that the suit touches the business of Co-operative Society and matter pertains to administrator appointed legally, as such, the plaint is liable to be rejected. In support of his contentions he has placed reliance on Muhammad Akhtar, etc. V. Abdul Hadi, etc. (1981 SCMR 878), Metro Co-operative Housing Society Limited v. Bonanza Garments Industries (Pvt.) Limited and 3 others (1996 MLD 593), N.E.D. University of Engineering and Technology v. Tani All and 2 others (PLD 1993 Karachi 626) and Civil Aviation Authority, Karachi v. Data International (Data Baggage House), Karachi and 2 others (PLD 1993 Karachi 700).
7. On 12.4.2001 and thereafter on 6.12.2001 statements were also filed on behalf of defendant No. 1 alongwith copy of alleged notification dated 30.4.1998 appointing Aimal Khan as administrator of the plaintiff society with the powers of managing committee. Photo-copies of the letter dated 7.8.1998 and order dated 4.12.2001 are also filed alongwith the said statement.
8. Plaintiffs have objected to veracity of the statements and the letter and in the alternative dispute the same as a manufactured document in defeat the objectives of the Society and the order is also disputed as is also stated in their written objections.
9. Mr. H.A. Rehmani, Advocate for the plaintiff, has vehemently opposed this application. He argued that the powers available under Section 54 read with Section 70-A of Co-operative Societies Act are restricted to the powers of the society, and the same are not attracted with respect to the Karachi Building Control Authority and the Karachi Development Authority, the defendants Nos. 2 and 3 respectively. That the facts alleged in the plaint do not disclose the plaint, to be barred under any provision of law as the specific challenge is to the breach of the condition of the lease, creation of new plots without permission of the lessor and acts of collusion, manipulation and ma/a fides, as such the application is liable to be dismissed.
10. Heard arguments. It is pertinent to note that this is third application under Order VII, Rule 11, CPC after CMA No. 1391/2000 dismissed as being misconceived and CMA No, 1879/2000 dismissed as not pressed. commenced by the tenant after an application under Order VII, Ruie 11 rejecting the plaint was allowed by the Hon`ble Supreme Court, as a fresh suit to re-agitate the earlier findings could not have been filed by the respondent the same was held to be an abuse of the process of law. in the instant case the Society has not filed any earlier suit.
11. In the matter of Metro Co-operative Housing Society (supra) the plaint was rejected as the subject-matter had been compromised between the parties. and after considering the term touching the business of the Society" the plaint was rejected which is not the case here in this suit.
12. In case of N.E.D Engineering University of Engineering (supra) the order rejecting the plaint to Suit No 120/1990 was set aside after scope of dismissal of suit, the bar Of fresh suit, contemplated by Order IX, Rule 9, CPC and the scope thereof and the learned Single Judge arrived at a finding that the dismissal of earlier suit did not constitute bar to the subsequent suit set aside the order under Order VII, Rule 11, CPC rejecting the plaint and the case was remanded to the Trial Court.
13. The above reports are distinguishable from the present case both on points of law and facts inasmuch as all the parties to suit are not covered within the purview of provisions of the Cooperative Societies Act. The term of lease spelled out in the original deed call for consideration in view of the building bye-laws and the building control authority as well as KDA are parties to the proceedings. These matters are only to be decided after some evidence is adduced by the parties and the case is examined in the light of proper evidence.
14. In view of the above discussion the application under order VII, Rule 11, has no merit. Any earlier petition field by other party will not operate as a bar to the present suit between different parties and the legal issues are to be considered on their own merits The power to reject the plaint under provisions of Order VII, Rule 11, CPC is a penal provision which is to be considered strictly after considering the statements madethe plaint in the light of law applicable. It is not to be resorted to unless condition for exercise for such drastic powers are fully satisfied as held by the Hon'ble Supreme Court in Siddique Khan and 2 others v. Abdul Shakur Khan and another (PLD 1984 S.C. 289). Accordingly CMA No. 3083/2000 is dismissed.