2017 PLP 401 (YLRN)

RASHEED AHMED SOOMRO, J.

This Civil Revision Application under section 115, C.P.C. is directed against the judgment dated 28.11.2014 passed by the learned 1st Additional District Judge, Malir Karachi, in Civil Appeal No.33 of 2013, whereby, the learned Additional District Judge allowed the appeal of the respondent No.1 and set aside the order dated 10.09.2013 passed by the learned IInd Senior Civil Judge, Malir, Karachi, in Suit No.239 of 2012, whereby plaint was rejected under Order VII, Rule 11, C.P.C.

2. The facts necessary for the disposal of this revision application are that the respondent No.1 filed Suit No.239 of 2012 for declaration, injunction and cancellation of sub-lease and allotment order against the appellants and respondents Nos.3 and 4 with the following reliefs:-- a) Declare that under the terms and conditions of 'Sale Agreement and Transfer Deed executed by and between the Society and the provincial Government in respect of 100 acres of land, the Society is not empowered to transfer the property rights of its amenity plot or plots to any individual or institution by way of sale or otherwise; b) Declare that the decision of the committee of the society to sale out its amenity Plot No. ST-5 and ST-6 at its own level to Messrs Shah Willayat Educational Trust is in connivance and collusion of defendants Nos.1, 2 and 3 and thus is ab initio illegal, unlawful malicious, perverse without juris-diction, without lawful authority and also against the spirit of Cooperative laws and principles; c) Declare that the issuance of allotment order and execution of lease deed by the Society in respect of suit properties in favour of Messrs Shah Wilayat Education Trust in furtherance of above said committee's decision, is ab initio illegal, coram non judice, unlawful, void, without jurisdiction and without lawful authority; d) Declare that the show cause notice dated 20.03.2012 issued by the Society against the Plaintiff under bye-laws No.13 is illegal, mala fide, discriminative, unlawful, arbitrary, without jurisdiction and without lawful authority; e) Set aside/cancel and surrender the Lease or sub lease executed by defendant No.1 in favour of defendant No.2 in respect of suit property and direct the defendant No.2 to surrender the original copy of lease or sub-lease of said suit property along with the Allotment Order issued by Defendant No.1; f) Direct the defendant No.1 to recall and withdraw the show cause notice dated 20.03.2012 being notice issued in colorable exercise of power and ab initio void, illegal and mala fide; g) Restrain the defendant No.2 or any other person deriving title from the said defendant from creating third party interest in the suit property and from raising any construction it.

3. The appellant No.2 filed an application under Order VII Rule 11 C.P.C. for rejection of plaint in the instant suit on the grounds that the respondent No.1, has no cause of action to file the instant suit as the same is hit by section 70 of Co-operative Societies Act, 1925, section 92, C.P.C., section 12 of Suit Valuation Act and Section 7 of Court Fees Act, which was opposed by the respondent No.1 who filed counter affidavit.

4. The learned Senior Civil Judge by Order dated 10.09.2013 allowed the said application under Order VII, Rule 11, C.P.C. and rejected the plaint in the instant suit.

5. The respondent No.1 filed Civil Appeal No. 33 of 2013, against the said Order dated 10.09.2013, which was allowed by the learned Additional District Judge by Judgment dated 28.11.2014 and case was remanded for decision on merits after recording evidence, against which, the applicants filed this revision application.

6. I have heard the learned counsel for the parties and perused the material available on record.

7. The only point argued by the learned counsel for the applicants is that no notice under section 70 of Co-operative Societies Act, 1925 was served by the respondent No.1, which is mandatory and therefore the plaint was rightly rejected by the learned Senior Civil Judge and the learned Additional District Judge has committed illegality and irregularity in setting-aside the Order of the learned Senior Civil Judge. In support of his arguments, the learned counsel for the applicants relied upon the following authorities:-- i. 1995 Karachi 399 (Zia-ur-Rehman Alvi v. Messrs Allahabad Cooperative Housing Society Limited and 2 others): ii. 1999 MLD (Karachi) 1668 (Haji Shafi Muhammad Jamote v. Fishermen Cooperative Society Limited and 6 others); iii. 2002 MLD (Karachi) 891 (Shaikh Abdul Latif v. P.I.B Cooperative Housing Society and 2 others); iv. 2009 CLC (Karachi) 477 (Syed Sultan Ali through legally constituted Attorney v. Sahibzada Frogh Najam Najmi and 2 others); v. 2010 CLC (Peshawar) 1393 (Anjuman Irfan-ul-Islam Trust v. Mufti Shakeel); vi. 2012 CLC (Sindh) 350 (Abdul Salam Ansari and 6 others v. Province of Sindh through Secretary and 2 others).

8. In rebuttal, the learned counsel for the respondent No.1 supported the Judgment of the learned Additional District Judge and argued that since the act of the applicant No.1 is challenged being mala fide and without jurisdiction, notice under section 70 of co-operative Societies Act, 1925 is not necessary for filing suit. In support of his arguments, the learned counsel for the respondent No.1 relied upon the following authorities:- i. PLD 2001 Supreme Court (AJ&K) 37 (Messrs Overseas Pakistanis Foundation through Shahid Rafi, Managing Director, Overseas Pakistanis Foundation v. Income Tax Appellate Tribunal (AJ&K) Council and 2 others); ii. PLD 2004 (Karachi) 391 (Mst. Ghulam Sakina v. Member (J) Board of Revenue, Hyderabad and 4 others); iii. 2002 CLC (Karachi) 1854 (Mst. Tabassum v. Government of Sindh through Secretary, Cooperation Department, New Sindh Secretariat Building, Karachi and 5 others) iv. PLD 2009 (Karachi) 169 (Messrs Shadman Cotton Mills Ltd. through Director v. Federation of Pakistan through Chairman Central Board of Revenue (Revenue Division) Islamabad and another); v. 2010 MLD (Karachi) 1916 (Haji Abdul Aziz v. Karachi Port Trust and another).

9. It is well settled principle of law that while considering application under Order VII, Rule 11, C.P.C., the contents of the plaint have to be considered with the presumption that whatever is stated therein is correct as has been held in the cases of Development Authority through its Secretary v. Evacuee Trust Board through its Administrative Evacuee Trust Property at Karachi and 5 others (PLD 1984 Karachi 34) and Mst. Sharifan Begum and others v. Muhammad Shahbaz and others (2000 CLC (Lahore) 63).

10. In view of the settled principle of law, I have carefully examined the plaint in the instant suit wherein respondent No. l has challenged the act of the applicant No. 1 of selling out the amenity plot to the applicant No. 2 in collusion with the respondents Nos. 3 and 4 being illegal, unlawful, mala fide and without jurisdiction.

11. In the case of Defence Housing Authority Lahore v. Messrs Builders and Developers (Pvt.) Ltd. and another (2015 SCMR 1799), it has been held that: "Restricting the provision of section 70 to only those disputes covered by section 54 is consistent with the scheme of the Act of 1925, providing for regulating registration, working and business of the cooperative societies. The Registrar has been conferred a pivotal role in implementing the obligations cast upon the Society and its members including hearing complaints and implementing his decisions. Section 70 of the Act of 1925 does not apply to all suits instituted against the Society or any of its officers. It is restricted to suits in respect of any act 'touching the business of the society'. If, as held in some of the judgments of the High Court and canvassed by the learned counsel for the appellant, the 'business of the society should be given an expanded meaning so as to include any business dealing by an outsider with the Society is accepted, then perhaps barely any suit filed against the society would be excluded from the application of section 70 of the Act 1925. The only reasonable construction consistent with the scheme and purpose of the Cooperative Societies Act would be to limit the application of section 70 to matters falling under section 54 of the Act."

12. In the case of Mst. Nishat Ishaq v. Amjad Khan and 2 others (2014 CLC (Sindh) 71), it has been held that as per plaint, the plaintiff has alleged serious allegation of dispossession and collusion against the defendant, therefore, it appears that matter requires evidence and further plaint reveals that several complicated questions of fact and law are involved which can be properly decided by the Civil Court only and not by the Registrar Co-operative Society.

13. In the case of Dr. Zahir Ansari and others v. Karachi Development Authority and others (PLD 2000 Karachi 168), it has been held that no Notice under Section 70, of the Co-operative Societies Act 1925, was necessary when plaintiffs wished to attack in a Civil Court mala fide conduct of Authority which had nothing to do with working or the business of the society especially when plaintiffs had challenged mala fide and illegal act of Authority in changing use of land and in converting amenity plots into residential ones and ownership documents in collusion with society

Provisions section 70-A of Co-operative Societies Act, 1925 would also not come in the way of the plaintiffs.

14. In view of the above referred Judgments, I have come to the conclusion that bare reading of the plaint shows that it is not barred by law. Non-issuance of notice under section 70-A of Co-operative Societies Act, 1925 does not come in the way of respondent No.1 when he chose the Forum of competent Court of law. Further, each and every case should be decided on its merits and technicalities should be avoided. In case of Rasheed Ahmed v. Province of Punjab through District Collector Vehari and another 2004 SCMR 707, the Honourable Supreme Court has held as follows:-- "Even otherwise, it is an established practice of this Court that the cases should be decided on merits and technical knock-out should sparingly be resorted to." Under these circumstances, the judgment passed by learned Additional District Judge does not require any interference. Resultantly, this Revision Application is dismissed with no order as to costs. MQ/S-35/Sindh Revision dismissed.