1. ' C.M.As. Nos,8341 of 1999 and 8342 of 1999: These are the two applications under Order VII, rule 11, C.P.C. Filed on behalf of the defendants Nos,2 and 4 respectively thereby an order is being sought for rejection of the plaint inter alia on the ground that the suit is barred under section 12 of the Trade Organizations Ordinance, 1961.
(2) The plaintiff filed this suit against APTMA, Federation of Pakistan Chamber of Commerce Industries, the Arbitration Tribunal and A.J. Textile Limited, Peshawar for declaration and permanent injunction praying therein as under:--
(a) Grant declaration that under the Articles of Association of the defendant No,1, members of each zone are entitled to contest election for the office of the Chairman for two consecutive terms of one year each.
(b) Grant declaration that the plaintiff and other members of the Managing Committee of the defendant No,1 from Sindh-Balochistan Zone are eligible to contest election for the office of Chairman for the term of 1999-2000.
(c) Grant declaration that the order passed by the defendant No,3 illegal, mala fide and without any lawful authority, jurisdiction or effect.
(d) Grant permanent injunction restraining the defendants from taking any action which has the effect of denying the members of the Sindh Balochistan Zone including the plaintiff, the right to contest the election for the office of the Chairman of the defendant No,1 for the year 1999-2000.
(3) Case of the plaintiff is that he is a member of Central Managing Committee of APTMA, Sindh/Balochistan Zone for the year 1999 to 2000; he has questioned the formation/constitution of defendant No,3 by defendant No,2 on the ground that it was illegal and mala fide as such issue was not on the agenda of the meeting of defendant No,2 held on 25-8-1999; the item of constitution/formation of defendant No,3 by defendant No,2 was kept out of agenda deliberately to avoid objections from the plaintiff; the term of one year is prescribed for the office of Chairman and there is provision for rotation of the office of the Chairman to all three defendants but there is no restriction on the re-election of the Chairman from the said zone. The defendant No,3 illegally has passed an order dated 21-9-1999 and wrongly held that for the term of 1999-2000 the Chairman of the defendant No,1 has to be elected from N.-W.F.P. And that the present Chairman of defendant No,1 who is from Sindh/Balochistan Zone cannot be re-elected for the second consecutive term; the order of defendant No,3 is illegal without jurisdiction and was passed with mala fide intent. It is also being contended that the plaintiff through the suit is also seeking interpretation of various clauses of the Articles of Association which can only be done by a Civil Court.
(4) The case of the defendants in support of the applications is that the plaintiff has agitated the number of questions more particularly that of elections which are the subject-matter of section 12 of the Trade Organizations Ordinance, 1961; and it can only be decided through the procedure and forum prescribed therein and such reliefs cannot be granted in the present suit. The paras. Nos,9, 10, 12, 14, 15 to .18, 29 and the prior clauses have been referred to show that the plaintiffs are seeking judgment and decree in respect of the election of defendant No,1 which are covered by section 12 of the Trade Organizations Ordinance, 1961. It was also being argued that in view of the bar under section 32 of the Arbitration Act this Court cannot question the validity of the award passed by the defendant No,3; it is also contended that this Court has no jurisdiction to interpret the provisions of the Articles of Association as the same can be done by the Arbitration proceedings as prescribed under Article 100 thereof.
(5) The counsel for the plaintiff controverted the above contentions and submitted that the suit is very much maintainable before this Court and it cannot be rejected being barred under any of the provisions relied upon by the defendants; he contended that the plaintiff has alleged mala fides against the defendants and therefore, without making full-fledged inquiry the plaint cannot be rejected; he further contended that neither the provisions of section 12 of the Trade Organizations Ordinance, 1961, the Article 100 of the Articles of Association nor section 32 of the Arbitration Act are attracted to the present suit; according to him the award passed by the defendant No,3 is illegal and without lawful jurisdiction; the award is not binding on the plaintiff as he was not a party to the same.
(6) Counsel appearing on behalf of defendant No,1 has supported the case of the plaintiff and submitted that anxiety of the defendant No,1 had been to resolve the disputes through invoking the provisions of Article 100 of the Articles of Association and for that purpose the defendant No,1 had already summoned an E.O.G.M. But due to the stay orders passed by the Peshawar High Court in a writ petition filed by one of the party the E.O.G.M. Could not be held; in the present circumstances the jurisdiction of the Court is not barred; it is controverted that the suit is barred by section 12 of K.T.O. Ordinance, 1961 or section 32 of the Arbitration Act. It is further being argued that the question of section 32 ibid had not been raised in the application under Order VII, rule 11, C.P.C. And therefore, the defendants should not be allowed to agitate the same during the hearing.
(7) It will be advantageous to reproduce the provisions of section 12 of the Trade Organizations Ordinance, 1961, section 32 of the Arbitration Act and Article 100 of the Articles of Association of the defendant No,1 which are as under: Section 12 of the Trade Organizations Ordinance, 1961.---"(1) Notwithstanding anything contained in any law for the time being in force or in the articles or memorandum of a registered trade organization, no suit or other legal proceedings shall be instituted or commenced against such registered trade organization (or any member thereof or any member of the Executive Committee of such trade organization) questioning the validity or propriety of any act or proceeding of such trade organization or of the Executive Committee or other body thereof, or constitution of, or election or appointment to, such committee or body, by any member of such trade organization, or by any member of, any other trade organization unless such member or other trade organization has made an application, accompanied by such fee not less than one thousand rupees as may be prescribed by rules, referring the matter to the Arbitration Tribunal constituted for the purpose of deciding such references by the Federation of Chambers of Commerce and Industry registered under the Act in pursuance of licence and such Arbitration Tribunal has given its decision or award thereon.
(2) _______________ (3)
2. Section 32 of the Arbitration Act: Bar to suits contesting arbitration agreement or award:---"Notwithstanding any law for the time being in force, no suit shall lie on any ground whatsoever for a decision upon the existence, effect or validity of an arbitration agreement or award, nor shall any arbitration agreement or award be enforced, set aside, amended, modified or in any way affected otherwise than as provided in this Act."
3. Article 100 of the Articles of Association.---"Any dispute or difference of opinion in regard to the interpretation or scope of application of these Articles of Association, which cannot be resolved by the Association itself, shall be referred to the Director of Trade Organizations appointed under the Trade Organizations Ordinance, 1961 (XLV of 1961) and the ruling given by the Director shall be final and binding on the Association, its Managing Committee and MembeRs,"
(8) I considered the submissions of the learned counsel, perused the plaint, the provisions of section 12 of the K.T.O. Ordinance, 1961 and section 32 of the Arbitration Act. A reading of the plaint shows that it contains mainly the two averments; one as to the controversy of the election of Zones; and the other as to the award passed by the defendant No,3, at present pending for making it a rule of the Court.
(9) A perusal of section 12 of the Ordinance, 1961 shows that all matters relating to the election of a registered trade body can only be resolved through following the procedure laid down therein. The contention that section 12 of the Ordinance, 1961 is confined only to post election disputes does not appear to be correct as the post election situation is covered by section 9(2)(e) supra. The term 'election' used in this section will mean any question pertaining to the elections of the registered trade body; the object of the section is that all questions and disputes enumerated therein should be settled through the prescribed procedure instead of litigating into the Courts. As observed above the plaint touches to the questions to the election which can only be resolved under the provision of section 12 and not through the suit.
(10) Section 32 of the Arbitration Act bars a suit in respect of any ground whatsoever for a decision upon the existence, effect or validity of an arbitration agreement or award; nor shall any arbitration agreement or award can be set aside otherwise then provided in the Act. The contention of the plaintiffs and the defendant No, 1 that the defendants should not be allowed to agitate the point of section 32 ibid at this stage is not correct as firstly the counsel for the plaintiff and defendant No,1 were given full opportunity to rebut the contentions of the defendants in respect of the provisions of section 32 ibid secondly at any stage of the suit the Court is empowered to pass an appropriate order if it comes to its knowledge that the suit is not maintainable in law. The reliefs sought by the plaintiff in respect of the said award can only be questioned under sections 30 and 33 of the Arbitration Act and not through the civil suit. In this case the plaintiffs have sought reliefs enumerated in section 32 of the Arbitration Act and in that relief is being sought to declare the award as illegal and mala fide. The reliefs sought by the plaintiff are hit by section 32 of the Arbitration Act.
(11) The contention of the plaintiff that he was not a party to the arbitration proceedings is not sustainable in view of the provision of section 46 of the Arbitration Act which reads as under:-- "Section 46: The provisions of this Act except subsection (1) of section 6 and sections 7, 12, 36 and 37 shall apply to every arbitration under any other enactment for the time being in force, as if the arbitration were pursuant to an arbitration agreement and as if that other enactment were an arbitration agreement except insofar as this Act is inconsistent with that other enactment or with any rules made thereunder."
(12) (12) In this case the plaintiff admittedly is the member of the Articles of Association of the defendant No,1 which is a registered trade body under the Trade Organizations Ordinance, 1961 wherein statutory arbitration under section 12 has been provided. The plaintiff being the member of the Articles of Association of the defendant No,1 is bound by the provisions of the Arbitration applicable to the defendant No,1 and therefore, the plaintiff cannot agitate that he was not a party to the arbitration proceedings before the defendant No,3.
(13) It has further been argued on behalf of the plaintiff that interpretation of the Articles of Association is being sought in this case, which relief cannot be granted by any other forum than the Civil Court. This argument is not sustainable in view of the fact the Article 100 of Articles of Association of the defendant No,1 provide the remedy for the relief sought by the plaintiff; this view has also been supported by the defendant No,l.
(14) The contention that the plaint cannot be rejected in part under Order VII, rule 11, C.P.C. Is not material as a perusal of the prayer clauses show that all of them are hit by section 12 ibid and section 32 ibid; the question of rejecting the plaint in part does not arise as in the present form the plaintiff is seeking reliefs which are dependent on and connected with each other.
(15) In support of the applications the cases of Badrinarain Otherwala v. Pak Jute Balers Limited PLD 1970 SC 43 relevant page 50 side lines-D and E, Combined Enterprises v. WAPDA, Lahore (page 39 relevant page 52 side line-H), Awan Industries v. The Executive Engineer, Lined Channel Division and another 1992 SCMR 65 (relevant pages 73/74 side line-A), Province of Sindh v. Muhammad Sabir Khan 1987 CLC 668 (relevant pages 669-670 side lines-B and C), Faiz 8s Sons Clearing and Forwarding Agents v. The Secretary to the Government of N.-W.F.P. 1988 CLC 1408 Karachi and Abdul Razzak Rajwani v. Messrs M.Y. Industries in Civil Appeal No,13-K of 1986 (an unreported order of the Honourable Supreme Court) have been referred by the counsel for the defendants and the plaintiff and the defendant No,1 in support of their contentions have referred the cases of Khalid Tawab and another v. Shaikh Maqbool Ahmed and others 1986 MLD 335 relevant page 337, Abbasia Cooperative Bank (now Punjab Provincial Cooperative Bank Limited) and another v. Hakeem Hafiz Muhammad Ghaus and others PLD 1997 SC 3, Mst. Wazir Begum v. Muhammad Nazir and others 1999 SCMR 1299 relevant page 1321, Sardar M. Jamil Khan Leghari , v. Sardar Zulfiqar Ali Khan Khosa PLD 1997 Lahore 250, Muhammad Rafiq Tarrar v. Justice Mukhtar Ahmed Junejo, Acting Chief Election Commissioner of Pakistan and others PLD 1998 Lahore 461 relevant page 473, Aftab Shaban Mirani v. President of Pakistan and others 1998 SCMR 1863 relevant page 1875, Miss Benazir Bhutto v. Federation of Pakistan and another PLD 1988 SC 416, Election Commission of Pakistan v.
4. Javaid Hashmi and others PLD 1989 SC 396 relevant pages 415 and 416, Bahar Khan Ghori v. Election Tribunal No,1, Karachi and others 1998 CLC 1304, Mian Muhammad Shahbaz Sharif v. Ch. Muhammad Altaf Hussain, Governor of Punjab, Lahore and others PLD 1995 Lahore 541 relevant page 557, Haji Tayab and others v. Eastern Textile Mills Limited, Chittagong and others PLD 1970 Karachi 357, Province of Baluchistan through Secretary, Government of Balochistan, Communication and Works Department, Quetta and another v. Haji Muhammad Hassan and another 1988 CLC 1583 and 1592, Muhammad Unis Ellah Sethi and another v. Federation of Pakistan, Chamber of Commerce and Industries 1996 CLC 1226, Mst. Iqbal Begum v. S. Ashraf Pervaiz and others PLD 1978 Lahore 1253 relevant page 1256, Mumtaz Begum and another v. Hafiz Abdul Muqtadir and others PLD 1982 Karachi 783, relevant page 785, Mst. Resham Jan v. Allah Ditta and others 1980 CLC 739 relevant page 742 and Malik Umar Hayat Tiwana etc. v. Malikani Sahibzadi Tiwana NLR 1979 Civil 75. With great respect the cases referred on behalf of the plaintiffs and defendant No,1 are distinguishable not applicable to the facts of the present case.
(16) The upshot of the above discussion is that the suit is not maintainable and therefore, the applications bearing C.M.As. Nos,8341 and 8342 of '1999 are allowed and the plaint is rejected under Order 7, rule 11, C.P.C. With no order as to cost. The C.M.A. No, 8061 of 1999 and C.M.A. No,9137 of 1999 are disposed of accordingly.
(17) (17) Before parting with this order it is being deprecated that the members of registered associations/societies instead of resolving the disputes through the procedure/ forums prescribed by their Articles of Association are resorting to the litigation and thereby frustrating the very purpose for which the associations/ societies are being formed. Similar view was expressed by the Honourable Supreme Court in para.16 of the order in case of Abdul Razzak Rajwani v. M. Y. Industries and others supra. It appears that either the association and societies are alien to our culture or vice versa.
5. Plaint rejected.