MUHAMMAD MOOSA K. LAGHARI, J.- The plaintiffs have filed this suit for declaration, mandatory injunction and damages against the defendants with the following prayer:-
(1) Declaration that the notice dated 8 October, 2002 as circulated by the defendant No. 1 and the holding of the 80th Annual General Meeting of the. Defendant No. 1 on 20 October, 2002 have no legal standing, are ultra vires and contrary to law.
(2) Declaration that the question whether those members of the defendant No. 1 who have not been issued the relevant share certificates are or are not members of the defendant No. 1 and can attend any of the AGM of the' defendant No. 1 has already been decided by the earlier judgments of this Hon'ble Court dated 11 December, 2000 and 28 December, 2001 respectively.
(3) Declaration that the holding of the Annual General Meeting on 20 October, 2002 and any further meeting of the defendant No. 1 excluding the members from attend in the meeting on the pretext of not having been issued the relevant share certificates or their membership issue pending before the Supreme Court of Pakistan or on any account which is in contempt/contravention of the earlier judgments of this Hon'ble Court, would be unlawful, illegal, contrary to law and in contempt of the said earlier judgments of this Hon'ble High Court.
(4) Declaration that in particular item No. 7 of the notice dated 8 October, 2002 is ultra vires, against natural justice, illegal and contrary to the principles of fair play and past practice.
(5) Permanent injunction to restrain the defendants Nos. 1,2 and 3 from holding the Annual. General Meeting and/or to restrain them from excluding certain members from attending and voting at the said Annual General Meeting or any other Annual General Meeting till the final adjudication regarding the question of membership by a proper authority or forum.
(6) Claim for damages from the defendants Nos. 1, 2, 3 and 4 to the tune of Rs.5,100,000 (Rupees five million one hundred thousand only) on account of causing severe mental torture to the plaintiffs as well as other members of the Society and for spoiling the reputation of the Society by including in unethical and unlawful practice."
2. It is pleaded in the plaint that plaintiff No. 1 is a member of the Society, plaintiff No. 2 is a former member of Provincial Assembly of Sindh and is one of the members of the Society who are directly aggrieved of the notice dated 8.10.2002 issued by defendant No. 1 under the signature of defendants Nos. 2 and 3. The plaintiff No. 3 is a senior member and an ex-honorary secretary of the Society and remained as such for a period of nearly 18 years and was also defendant No. 1 in Suit No. 476/2000 filed by defendant No. 4 in this Court.
3. It seems that the dispute arose consequent upon annual general elections held on 27th February, 2000 on the ground that 20 new members were inducted few days prior to those elections. The defendant No. 4 filed Suit No. 476/2000 seeking there by different declarations including that the annual general elections held on 27.2.2000 be declared null and void as it was allegedly a product of fraud and deception. The plaint in the said suit was, however, rejected by a learned Single Judge of this Court vide order dated 11.12.2000. The defendant No. 4 who was the plaintiff in the said suit, challenged the said Order in High Court Appeal No. 1/2001 which was also dismissed by a Division Bench of this Court vide judgment dated 28.12.2002. The said judgment of the Division Bench is said to have been challenged before the Honourable Supreme Court by defendant No. 4 which is still pending, however, no leave has so far been granted.
4. Alongwith the plaint an application under Order 39, Rules 1 and 2, CPC has also been filed by the plaintiffs praying therein that the defendant No. 1 be restrained from holding the 80th, Annual General Meeting till disposal of the suit. This application is supported by the affidavit sworn by plaintiff No. 2. The main ground taken in the affidavit is that the absence of a share certificate does not render a person to be a non-member.
Counter-affidavit to the said application -has been filed by defendant No. 3 thereby raising preliminary legal objection about the maintainability of the suit. On merits it was- deposed that the plaintiffs were in no manner aggrieved by the said notice. That the suit was filed with mala fide intention and that the true facts were concealed. The plaintiffs have no prima facie case, as the main suit was not maintainable and liable to be dismissed.
5. I have heard Mr. Khawaja Mansoor Ahmed, Advocate for the plaintiffs, Mr. Agha Faisal for the defendants Nos. 1, 2 and 3 and Mr. R.F. Virjee, defendant No. 4.
6. I was mainly contended by the learned counsel appearing for the plaintiffs that the learned Single Judge in his judgment delivered in the previous suit has held that 20 persons who were admitted as members of the Society, in fact, were lawfully enrolled members, It was further contended that the judgment passed by the Division Bench whereby the plaint was rejected is sub-judice before the Honourable Supreme Court, in all fairness the elections be postponed till the final verdict of the Hon'ble Supreme Court, It is further contended that in case the elections take place debarring those members, it will amount to contravention of the orders passed by the learned Single as well as by the Division Bench of this Court. Learned counsel has invited my attention to para No. 13 of the judgment of the learned Single Judge. However, he was unable to.
Point out from the contents of the judgment delivered by the Division Bench in the High Court Appeal, to show that the said issue was upheld by the Hon'ble Division Bench.
7. Conversely, it was contended by Mr. Agha Faisal/ learned counsel on behalf of defendants Nos. 1, 2 and 3 that the suit was not maintainable being expressly barred under the provisions contained in Sections 54, 70 and 70-A of the Co-operative Societies Act, 1925. He contended that it was mandatory requirement that before filing suit touching the business of the Society,-a notice has to be served upon the Registrar, Cooperative Societies, which was not done in this case. Learned counsel vehemently urged for dismissing the suit.
8. Mr. R.F. Virjee, defendant No. 4 in person, while concurring with the arguments advanced by the learned counsel for defendants Nos. 1, 2 and 3, placed reliance on the decisions reported in (i) PLD 1981 Kar. 138, (ii) PLD 1970 Kar. 200, (iii) PLD 2002 Kar. 414 and (iv) PLD 2002 SC 660 to contend that the suit was not maintainable.
9. It needs hardly any arguments to show that the dispute about the elections touches the business of the Co-operative Society, a such, provisions of Section 54 of the Cooperative Societies Act, 1925 are fully applicable to such dispute. This section provides for referring such dispute to the Registrar for decision by himself or his nominee, or to Arbitration if the parties so desire. For Convenience reference can be made to Sindh Baluchistan Provincial Co-operative Bank Limited Karachi and another (PLD 1970 Kar. 200).
10. Under the provisions of Section 70-A of the' Co-operative Societies Act, 1925, the jurisdiction of a Civil Court has been expressly barred to entertain or adjudicate upon any matter which the Provincial Government, the Registrar, or his nominee, any arbitration or liquidator, a society, a financing bank, a cooperative bank or any other person is empowered to dispose of or to determine.
Clause (c) of sub-section (1) of Section 70-A stipulates that no other authority shall be competent, inter alia, to grant any injunction or pass any other order in relation to any proceedings under the said Act, rules made or by-laws framed thereunder.
11. A learned Division Bench of this Court in M. Wahidullah Ansari through Legal Heirs v. Zubeda Sharif and another (2002 CLR (Kar.) 605) was pleased to hold as under:- "From the bare reading of Section 70-A above, it is clear that the jurisdiction of Civil Court and other authority is ousted only in case where such statutory functionaries have jurisdiction to entertain, adjudicate, dispose of or to determine any matter, under the Act, rules or bye-laws framed thereunder, secondly if a dispute is between the parties enumerated under Section 54 thereof i.e. Between the member or past members or persons so claiming and the committee of any officer of the society inter se; and lastly, the dispute must be relating or concerning the business of the society."
12. The effect of Section 70 of the Co-operative Societies Act, 1925 came under consideration before the Honourable Supreme Court in Lahore Cantt: Cooperative Housing Limited v. Messrs. Builders and Developers (Pvt.) Ltd. And others (2002 PSCC 1147), wherein it was held that a suit against a Society or its officers in respect of any act touching the business of the Society, will not be competent without issuing notice two months prior to its institution.
Admittedly, the stipulated period of two months has not yet expired after the service of the notice issued by the plaintiffs. The mandatory requirement of the said section has not been complied with.
13. The arguments rendered by the learned counsel for the plaintiff to the effect that the learned Single Judge of this Court has declared the said 20 persons to be members of the Society, is misdirected, It is also an admitted position that the said 20 persons are also claiming to be the members of the .Society. Section 54 covers the dispute touching the business of a society between members or past members of persons so claiming. Since those 20 persons claim to be the members of the Society, which include plaintiff No. 2, they are required tp enter into arbitration proceedings as stipulated under Section 54 of the Co-operative Societies Act, 1925.
14. So far . As the damages is concerned, the plaintiffs have not pleaded any where in the plaint about the damages, It is a settled law that unless something is pleaded in the plaint, that cannot be proved. Since the damages have not been pleaded specifically in the plaint, the prayer in this respect could not be granted.
In view of the above discussion, I have arrived at an irresistible conclusion that the suit is not maintainable being barred by various provisions of the Cooperative Societies Act, 1925 and is liable to be summarily dismissed. Resultantly, the suit is dismissed alongwith all the listed applications.
After the judgment was pronounced in the open Court learned counsel for the plaintiff stated that the plaintiffs would like to impugn the judgment in appeal, for which no time is left as the elections of the society are scheduled to be held on 27th instant. He requests for postponement of the elections, In this view of the matter elections of the society Scheduled for 27.10.2002 shall not be held before 3rd November, 2002.
These are the reasons for the short order passed on 25.10.2002.