1. ' Defendant No,1 has moved this application under Order VII, rule 11,,C.P.C. Seeking rejection of the plaint filed by the plaintiff in the above suit.
2. 'Facts of the case are that the plaintiff is the duly registered Cooperative Society and were allotted an area of 92500 sq. Yards of 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 plots" and in clause (ii) the building so constructed (on 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 mala fidely. 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 sub-lease 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, C-34/1, C-34/2 and C-34/3 (amalgamated No, C-33/1) in Gulshan-e-Faisal Cooperative Housing Society, Bath Island, Karachi, bearing Registered No,2329, pages 117 to 121. Volume No, 67 of Book No,l. Addl. Of Sub-Registrar T.
3. Division 11(B), Karachi, dated 20-8-1998, is illegal, manipulated, fraudulent, forged and void ab initio.
4. 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/DCBXV/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to the aforesaid Plot No, C/31/1 is illegal, collusive, fraudulent and void and the same is liable to be cancelled/withdrawn.
5. Similarly, the lay out plan dated 12-9-1998, 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 sub-lease 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.
6. 98/18/07).
(e) The defendant No,3 be directed to cancel and withdraw 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 raising 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-land to 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.
(i) The costs of the suit are awarded to the plaintiff.
7. ' 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 Cooperative Societies Act read with Articles 131 and 151 of K.D.A. Order, 1957 and section 20-A of Sindh Buildings Control Ordinance, 1979 and contended that in view of the contents of paragraphs 7 and 18 of the paint, none of the prayers at Serial 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' 70(A) of the Cooperative Act, which bars the jurisdiction of the Court. He has stressed that the suit touches the business of Cooperative 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 and others v. Abdul Hadi and others 1981 SCM R 878, Metro Cooperative Housing Society Limited v. Bonanza Garments Industries (Pvt.)
8. Limited and 3 others 1996 M LD 593, N.E.D. University of Engineering and Technology v. Tariq Ali and 2 others PLD 1993 Kar. 626 and Civil Aviation Authority, Karachi v. Data International (Data Baggage House), Karachi and 2 others PLD 1993 Kar.
9. 700.
10. ' 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 Ajmal Khan as administrator of the plaintiff-society with the powers of managing committee. Photocopies of the letter, dated 7-8- 1998 and order, dated 4-12-2001 are also filed alongwith the said statement.
11. ' Plaintiffs have objected to veracity of the statements and the letter and in the alternative dispute the same as a manufactured document to defeat the objectives of the Society and the order is also disputed as is also stated in their written objections.
12. ' 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 Cooperative Societies Act are restricted to the powers of the society, and the same are not attracted with respect to the Karachi Buildings 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 mala fides, as such the application is liable to be dismissed.
13. ' Heard arguments. It is pertinent to note that this is third application under order VII, rule 11, C.P.C.
14. After C.M.A. No, 1391 of 2000 dismissed as being misconceived and C.M.A. No, 1879 of 2000 dismissed as not pressed.
15. ' In case of Muhammad Akhtar (supra) the proceedings were commenced by the tenant after an application under Order VII, rule 11 rejecting the plaint was allowed by the Hon'ble Supreme Court.
16. 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.
17. ' In the matter of Metro Cooperative 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.
18. ' In case of N.E.D. University of Engineering (supra) the order rejecting the plaint in Suit No,120 of 1990 was set aside after scope of dismissal of suit, the bar of fresh suit, contemplated by Order IX, rule 9, C.P.C. 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, C.P.C. Rejecting the plaint and the case was remanded to the trial Court.
19. 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 Buildings Control Authority as well as K.D.A. 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.
20. ' In view of the above discussion the application under Order VII, rule 11, C.P.C. Has no merit. Any earlier petition filed 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, C.P.C. Is a penal provision which is to be considered strictly after considering the statements made in the plaint in the light of law applicable. It is not to be resorted to unless conditions for exercise for such drastic power are fully satisfied as held by the Honorable Supreme Court in Siddique Khan and 2 others v. Abdul Shakur Khan and another PLD 1984 SC 289. Accordingly C.M.A. No,3083 of 2000 is dismissed.