1980 PLP 1161 (CLC)

Date of hearing : 29th April, 1978. The defendants have asked for the rejection of the plaint under O V III, rule 11, C. P. C. (being Misc. C. M. A. No. 1779/77). The grot stated in the application are that the suit is barred under section 9: the Civil Procedure Code, section 13 of the Societies Registration Act, and Limitation Act. Both the learned counsel fled written argument and have referred to numerous rulings in support of their respect contentions. 2 The defendant No. 1, Husein Ebrahim Foundation (herein. referred to as the Foundation), is a Society registered under the Social Registration Act, 1860, and defendants Nos, 2 to 10 are its members trustees in terms of Memorandum of Association and Rules and Regulations of the Foundation. The objects of the Foundation, as laid down its Memorandum, are to promote education in Pakistan, particularly the Sciences and learned professions and to conduct or assist in the duct by contributions wand grants and otherwise of programmes technological, Scientific and Medical research. According to clause (a paragraph 3 of the Memorandum, the Foundation is entitled to receive administer funds for scientific, educational and charitable purposes for public welfare and for no other purposes. Paragraph 4 of the Memo' dun provides as follows :

"The Foundation shall be financed by contributions of it of funds property absolutely or upon trust for its purposes therein stated for no other purposes Paragraph 5 provides that the members of the Foundation shall also be trustees and their number shall not be less than seven nor more than nine. The property of the Foundation, as mentioned in paragraph 6, is to be administered to effectuate its purposes and to serve the general welfare of the Memon and Muslim community. According to paragraph 41 of the Rules and Regulations of the Foundation the trustees are authorised to receive any gifts, subscriptions, donations, bequests or endowments for the general purposes of the Foundation. Paragraph 45 of the Rules provides that if after the dissolution of the Foundation any property is left, the same shall not be paid or distributed among the members of the Society but will be given to some other Society.

3. From a reference to the various provisions contained in the Memo randum and Rules of the Foundation it is clear that the same is a thus created for charitable purposes of public nature designed for the general welfare of the Memon and Muslim community. In this view of the water, notwithstanding the provisions contained in the Memorandum and Rules and Regulations of the Foundation or provisions contained in section 13 of the Societies Registration Act, 9860, any two or more persons haven interest in the trust would be entitled to institute a suit for the put poses mentioned in section 92 of the C. P. C. after obtaining the missing in writing of the Advocate-General. It was contended on behalf of the defendants that permission under section 92 of the C. P. C. was not required because the Foundation was a Society registered under the Societies Registration Act, 1860 and was governed by its own Charter The admitted position of law is that the veil of a corporate body can be lifted in order to find out the true legal character of the corporate body In the circumstances, this contention has no force. In the written argument submitted on behalf of the plaintiffs, it has admitted that the Foundation, apart from being a Society, is also a charitable Trust. This admission would also bind the defendants, apart from, what is evident from the reading of the Memorandum and Rules of the Foundation. The earned counsel for the defendants relied upon a judgment from the Indian jurisdiction, reported as. M. Gomathiparayagam Pillai and others v. Sri Manthramurrhi High School Committee Tirunelveli and others (A I R 1963 Mad. 387) the case related to an Association registered under the Companies Act, 1913 and the contention, on behalf of the respondent, raised was that the suit was not maintainable and the only way of correcting the misconduct of the members of the Society would be to apply to the Company Court, under the relevant provisions of the Indian Companies Act. This contention was repelled and it was held that if an Association is entered under section 25 of the Indian Companies Act, the members of the Company alone will have power to apply to the Company Court for reliefs in case there was mismanagement. However, in a case where the beneficiaries of a trust want to complain that there has been a breach of the trust or that a direction of the Court is necessary, they can file a suit tinder section 92 of the C. P. C. for any of the reliefs mentioned therein, This judgment fully supports the contention of the learned counsel for the defendants and it is therefore held that the registration of the Foundation under the Societies Registration Act, 1860 is no bar to the registration of 6 the suit under section by, C. P. C.

4. Relief claimed in the suit is, that it may be declared that the Memorandum and Rules and Regulations of the Foundation are ultra vires of the Societies Registration Act, 1860 and that the Foundation be dissolv ed and its assets be transferred to some other charitable Society having similar aims and objects. The Plaintiff admittedly is the real brother of late Husein son of Ebrahim Jamal who was the founder of the defendant Society and it cannot be again said that he should have been aware about the registration and establishment of the Foundation. Accordingly, in so far as the prayer for the cancellation of the Memorandum and Regulation of the Society is concerned the remedy is clearly barred under Article 120 of the Limitation Act which lays down the period of 6 years from the date the right to sue accrues. The Plaintiff having knowledge of the registra tion of the 'Society is, therefore, precluded from bringing any action for a declaration of the kind, now asked for, and the relief in this respect is clearly time barred. As regards the alternative reliefs regarding the disso lution of the Society, and taking the accounts are concerned, the same are hit by section 92 of the C. P. C.

5. For the foregoing reasons the application is allowed and the Plaint is rejected under Order VI, rule I1 of the C. P. C. In the circum stances, no orders are necessary on the other applications which were also fixed for hearing being C. M. A. No. 1777/77 and 1778/77, which could only be considered if the suit was held to be maintainable. There will, however, be no order as to costs. Application allowed.