Through this application the defendant seeks rejection of plaint of the plaintiff under Order VII, rule 11 read with 'section- 15-1, CP.C., on, two ground. Firstly that the suit is barred under the provisions of section 70-A of the Cooperative Societies Act, 1925, as the matter falls within, the Powers of Registrar," Cooperative Societies, and secondly that the suit has been instituted against the defendant/Cooperative Society, without serving mandatory notice under section 70 of the Cooperative Societies Act, 1925.
2. The facts of the case: having surfaced on perusal of the plaint, In' brief are- that the plaintiff No,1 being a member of defendant No,1 is concerned with welfare of the society, while plaintiffs Nos.2 and 3 are parents of some of the students of the school being run under the control of defendant No,1 which was founded by some elders of Memon Community to resolve the residential and social problems of the community. A piece of land measuring 60 acres was obtained from the authorities for housing purpose and smaller pieces of lana fore the purpose of amenities like Masjid, Dispensaries and Schools. The Kathiawar Society School which was catering to the educational requirements of, the boys and girls and being run under the management and control of the defendant-Society was nationalized in 1972. However, with the efforts of the members of society, said school was got denationalized. It is the case of the plaintiff that though the Society had enough resources to run the said school but some of the office-bearers did not feel like running a school and started planning to wind up the same. The plaintiffs came to know a few months back that the defendant-society wants to abandon the school project and hand over the same on rent to some other establishment. In or about 2002 the defendant started working on its above plan and started construction of school building. The parents of the students rushed to the Court and sought relief through Constitution petitions. Resultantly the scheme of construction of another school building was dropped and the students enrolled at the Kathiawar Society's Adamjee Public School were saved. The Society, however, continued the efforts of manipulation. In order to get rid of the students and for achieving the goal to get the premises vacated the defendants started shifting the girl students to another school. The plan for abandoning 'Adamjee Public School and handing it over to a commercial establishment is an act of depriving the people of the area of a vested right. Hence suit was filed for declaration and injunction, thereby praying for a declaration, inter alia, that the handing over of the school for commercial purpose was violative of the basic norms of social justice.
The application under Order VII, rule 11, C.P.C. was supported by affidavit of defendant No,2. The counter-affidavit was filed by the plaintiff, asserting therein that the Court has the jurisdiction, and the suit is maintainable, it involves a bona fide dispute.
3. I have heard Mr. K.B. Bhutto, learned counsel for the defendant and Mr. Shamsuddin Khalid, learned counsel for the plaintiff.
4. It is mainly contended by learned counsel for the defendant that the plaintiffs have filed the suit for declaration and Injunction against defendant No,1 Cooperative Society thereby levelling certain frivolous allegations with regard to violation of bye-laws No,54 of the Society. But admittedly no notice, as required under section 70 of the Cooperative Societies Act, was served before filing the suit. He further contends that since the matter touches the business of the Society, the jurisdiction of this Court is barred under section 70-A of the Cooperative Societies Act. Additionally it is contended that the plaintiffs have no legal character to maintain the suit for declaration as envisaged under section 42 of the Specific Relief Act, besides the suit is hit by the provisions contained under Order XXXII, rule 1, C.P.C.
On the strength of above contentions it is urged that the Court is duty bound to invoke the provisions of Order VII, rule 11, C.P.C., and proceed to reject the plaint. To substantiate his contentions, learned counsel relied upon the cases reported in (i) 1990 MLD 25, (ii) PLD 1967 Dacca 190, (iii) PLD 1968 Kar. 222, (iv) 1989 CLC 694, (v) PLD 1973 Pesh. 13, and (vi) PLD 1978 Lah. 113
5. Conversely it is contended by learned counsel for the plaintiffs that for rejection of a plaint only the averments of the plaint are to be considered, and that those are taken to be true. It is argued that plaintiffs Nos.2 and 3 are not members of the Society, irrespective of the fact that the dispute does not touch the business of the Society. Thus the bar contained under the Cooperative Societies Act is not attracted. Learned counsel has relied upon the case of Muhammad Azam reported in PLD 1985 Kar. 481.
It is further contended that right to receive education is basic right of every citizen and that every parent in an Islamic Society owes religious duty to, impart better education to his children.
Nevertheless an Islamic Welfare State is under obligation, at least to facilitate, if it is not able to provide free or cheaper and convenient educational facilities to its citizens, more particularly those coming from lower income groups. Thus the plaintiffs have a legal character to maintain the suit.
6. The arguments advanced by learned counsel for the parties have been anxiously considered.
7. As per the provisions contained under rule 11 'of Order VII, C.P.C. a plaint shall be rejected in the following cases:--
(a) Where it does not disclose a cause of action;
(b) where the 'relief is under-valued and the plaintiff on being required by the Court to correct the valuation within a time to be fixed by the Court, fails to do so;
(c) where the relief claimed is properly valued but the plaint is written upon paper insufficiently stamped and the plaintiff on being required by the Court to supply the requisite paper within a time to be fixed by the, Court, fails to do so; and
(d) where the suit appears' from the statement in the plaint to be barred by any law."
8. There is no dispute about the legal proposition that the Court is not only empowered but under obligation to reject the plaint, even without any application from a party, if the same is hit by any of the clauses mentioned under rule 11 of Order VII, C.P.C.
9. Undoubtedly in the case in hand the defendant is 'seeking the order of rejection of plaint by invoking the ground mentioned in clause (d) of rule 11 above.
10. It may be noted that if a plaint is rejected on any of the grounds stated in clauses (a), (b) and
(c) of rule 11, it is on technical ground and in such cases, the plaintiff is not deprived of a right to claim his relief by instituting a fresh suit. However, the legal position with regard to the rejection of plaint under clause (d) of rule 11 is significantly different. According to this clause if a plaint is rejected, it amounts to dismissal of a suit as in such case the plaintiff is precluded from filing a fresh suit.
In this view of the matter it has been repeatedly held that only the, contents of a plaint are to be looked into and the plaint is to be maintained or rejected on the basis of its recitals or those documents on which it was founded. It would be in rare and exceptional cases that the Court might travel beyond this. In the circumstances, the question of rejecting the plaint under the above provisions shall arise, only if from the statement in the plaint, the Court comes to the conclusion that the suit is patently barred by any law.
If, however, the Court deems it necessary, it may frame preliminary issues with regard to the Maintainability of the suit, and after bringing the relevant material on record in accordance with the law, decide preliminary issues first before proceeding with the suit.
11. In the instant case a bare perusal of the contents of the plaint show that there is a serious controversy.
12. The main plea which has been taken by the defendant for rejection of the plaint is that the suit relates to a dispute touching the business of the Society and, therefore,' the same was claimed to be barred under section 70-A of the Cooperative Societies Act. However, in order to prove this plea the defendants have annexed a copy of the agreement purported to have been executed by the Society whereby the premises have been rented out to a party. The fact as to whether the dispute touches the business of the society or not can simply be thrashed out by allowing the parties y lead evidence. In the case of Messrs Pakistan Limited v. Messrs Cooperative Insurance Societies and others, reported in 1993 MLD 2464, a learned Division Bench of Lahore High Court set aside the order of the trial Court whereby the suit filed by the plaintiff was rejected inter alia on the ground that 'statutory notice' as contemplated by section 70 of the Cooperative Societies Act, 1925, had not been served. The appeal was accepted and suit was remanded to the trial Court for deciding the same after recording evidence of the parties on the issues framed. Above view is fortified by Honourable Supreme Court of Pakistan in the case of Mst. Karim Bibi and others v. Zubair and others; reported in 1993 SCMR 2039.
13. Regarding the other plea raised by the learned counsel for the defendant to contend that the suit is barred by section 42 of the Specific Relief Act as none of the plaintiffs has a legal character to file the present suit, suffice it to say, necessitates factual investigation and can be adjudicated upon only on the basis of evidence to be led by the parties, in support of their pleadings and the points urged.
14. In the given circumstances, further discussion on the merits of the subject-matter does not seem to. be expedient and justified at this stage, as it may prejudice the case of either party.
15. For what has been stated above, it appears, just, fair and appropriate to frame preliminary issues, to-allow the parties to lead their evidence on the same. Accordingly, following preliminary issues are framed:--
(i) Whether the, suit is barred under section 70 and/or section 70-A of the Cooperative Societies Act, 1925?
(ii) Whether none of the plaintiffs has any legal character to maintain the suit and the suit is barred under section, 42 of the' Specific Relief Act?
The parties may lead evidence on the abovesaid issues. Office to fix this matter for the above purpose according to roster, after summer vacations. Till then the interim orders passed earlier shall continue.