2003 PLP 224 (CLC)

(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. 98/18/07). (e) The defendant No.3 be directed to cancel and withdraw the NOCissued it, 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 be awarded to the plaintiff. 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 SCMR 878, Metro Cooperative Housing Society Limited v. Bonanza Garments Industries (Pvt.) Limited and 3 others 1996 MLD 593, N.E.D. University of Engineering and Technology v. Tari 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.

700. 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, crated 7‑8‑1998 and order, dated 4‑12‑2001 are also filed alongwith the said statement. 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. 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. Heard arguments. It is pertinent to note that this is third application under order VII, rule 11, C.P.C. after C.M.A. No. 1391 of 2000 dismissed as being misconceived and C.M.A. No. 1879 of 2000 dismissed as not pressed. 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. 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. 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. 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 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. 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. 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 Honourable 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. Q.M.H./M.A.K./G‑114/K Application dismissed.