1993 PLP 2227 (CLC)

The petitioners being aggrieved against the judgment and decree of the trial Court filed an appeal being Civil Appeal No.11 of 1990 which was ultimately heard by the IIIrd Additional District Judge, Karachi East who on reassessment of the evidence, affirmed the finding of the trial Court. Hence the present revision petition. I have heard Mr. Q.M. Rasheedi4 Advocate in support of the revision petition and Mr. Shaikh Hamid Hussain Advocate appearing for respondent No.l and Mr. Abdul Qayyum Shaikh, learned counsel for respondent Not. I have perused the impugned judgments and have gone through the pleadings of the parties. Mr. Q.M. Rasheedi, learned counsel for the petitioners contended that the suit as framed was not maintainable. The contention of the learned counsel for the petitioners is that the respondent No.l is an Anjuman Ghulaman‑e‑Mustafa which is an unregistered society and could not file the suit through its President Muhammad Yousuf son of Rehmat Khan. In support of his contention, he has placed reliance on the decisions reported as Abbas Khaleeli and others v. Saifuddin Valika and others (PLD 1969 Karachi 692), Firdosus Cooperative Housing Society Ltd. v. Mehboob Hassan (1984 CLC 2845), The Tattersalls Club v. S.M. Suleman (PLD 1956 Karachi 49), Anjuman Arain, Bhera v. Abdul Rashid and 5 others (PLD 1973 Lahore 500). On the other hand, Mr. Shaikh Hamid Hussain submitted that the suit was maintainable. In support of his contention, he placed reliance on a decision reported as Abdul Latif and 4 others v. Muhammad Khan and 16 others (1986 CLC 1994). Mr. Abdul Qayyum Shaikh adopted the arguments of Mr. Shaikh Hamid Hussain. In order to consider the contentions of the learned counsel appearing for the parties, it is advantageous to reproduce section 6 of the Societies Registration Act (30Q of 1860), which reads as under:‑

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6. Suits y and against societies.‑Every society registered under this Act may sue or be sued in the name of the President, Chairman, or Principal Secretary, or trustees, as shall be determined by the rules and regulations of the society, and in default of such determination, in the name of such person as shall be appointed by the governing body for the occasion provided that it shall be competent for any person having a claim or demand against the society to sue the president or chairman, or principal secretary or the trustees thereof, if an application to the governing body some other officer or person be not nominated to be the defendant." A bare reading of this section would show that every Society registered under the Ad may sue or be sued in the name of the president, chairman or principal secretary or trustees as shall be determined by the rules and regulations of the society and in default of such determination, in the name of such person as‑ shall be appointed by the governing body for the occasion. It has come on record that the said suit was filed by Anjuman Ghulaman‑e‑Mustafa through its President. It is an admitted fact that the said Anjuman Ghulaman‑e‑Mustafa is not a registered society and it consists of members fluctuating in number. The Society is registered under section 3 of the Societies Registration Act (hereinafter referred to as the Act). Certain consequences follow to distinguish it from an unregistered society. Section 5 says that the properties belonging to a society registered under the Act if not vested in trustees, shall be deemed to be vested, for the time being, in the governing body of such society. The matter as to how suits can be filed by and against the society has been provided in the sixth section of the Act. It enables the filing of a suit by or against the Society in the name of certain office‑bearers or trustees as may be determined by the rules and regulations of the society or in the name of such person as may be appointed by the governing body for the society. In the case of Abbas Khaleeli and others v. Saifuddin Valika and others (PLD 1969 Karachi 692), it was held at page 701 a. under:‑‑

"....that no suit can be filed in the name of an unregistered Association. But this does not mean that an unregistered Association is without redress. A wrong done to an association is a wrong to all the members of that Association, therefore, the cause of action for the redress therefore, the cause of action for the redress of that wrong vests in all the members of the Association and as no member of an unregistered Association can represent another member, it would follow that a suit seeking redress on behalf of an Association would have to be filed by all the members of that Association. However, if no suit could be filed in respect of the rights of an Association unless every member of that Association was impleaded in the suit, it would be difficult to enforce such rights, therefore, in order to remove this difficulty, the Legislature has enacted Order 1, rule 8 of the Civil Procedure Code." I am of the humble opinion that in view of the provisions of section 6 of the said Ad and rule 8 of Order I of the Code, it follows that a suit by a large group of persons having a common interest, such as the Anjuman, can only be instituted under Order I, Rule 8, C.P.C.. An unregistered body like Anjuman cannot sue or be sued as a corporation but that all its members must be impleaded. The Anjuman was dispossessed from the shop in question. The Anjuman as such was interested in the above suit; it was the Anjuman who claimed the possession and it is celar that in order that the petitioners must be bound, all those persons who constitute the Anjuman or their representatives duly authorised, must be upon the record before the suit is properly framed But all the members of the Anjuman are not upon the record nor has the procedure laid down in Order I, Rule 8, C.P.C. been followed and therefore I think, it.is clear that both the learned trial Judge and the learned appellate Judge had not applied their mind to this aspect of the case. Order 1, Rule 8 is often referred to as a rule which applies when the suit is brought by a member of the public or by a member of a particular community on behalf of the community. The Anjuman consists of members but certainly all the members of the Anjuman are not upon the record nor have those upon this record obtained permission under Order 1, Rule 8 to represent the other members of the Anjuman who undoubtedly exist and who are undoubtedly interested in the suit. Mr. Shaikh Hamid Hussain, learned counsel for the respondent Anjuman submitted that the suit be remanded and the respondent No.l be permitted to move an application under Order I, Rule 8, C.P.C. for seeking permission. This cannot be done at such a late stage. The suit could be barred by time. It is not necessary to consider other contentions raised by the learned counsel for the parties. Accordingly the revision petition must be allowed and the judgments and decree of the Courts below are set aside. In the circumstances of the case, the parties are directed to bear their own costs. H.B.T./M./1823/K Revision petition allowed.