1994 PLP 1638 (CLC)

Date of hearing: 17th November, 1991. The facts briefly are that the present plaintiffs have filed the suit for declaration, cancellation and permanent injunction. The case of the plaintiffs is that they are the registered Cooperative Housing Society and that the present defendant No. 4 being a previous Secretary of the plaintiffs misappropriated the funds of the Society in collusion with the other Committee members for their own use and as such the innocent members of the Society were deprived of by allotting one plot to an unauthorised person which itself was a duplicate allotment. Subsequently a Special general meeting of the plaintiffs Society was held on 22‑4‑1983 wherein 7 members of the Committee were elected who on 231‑1983 elected M/s. Abdul Wahab Khan ‑ and Mr. R.Z. Kayani from amongst themselves as their Chairman and Secretary respectively. The present defendant No. 4, the previous Secretary of the Plaintiffs Society, challenged the said election by way of Arbitration under section 54 of the Cooperative Societies Act. The arbitration proceedings were held before the nominee of the Registrar where both the parties had appointed their respective Arbitrators and by a majority decision dated 23‑2‑1984 it was held that the election of Special General Body Meeting as held on 22‑4‑1983 was in accordance with the law and the election of new members was legal. The present defendant No. 4 challenged the said award by filing an appeal which subsequently he is said to have withdrawn at his own desire and will and thus the award attained the finality. It is further claimed in the suit that newly‑elected management is fully in physical possession of the land of the Society. The present defendant No. 4 is then said to have moved a revision application before the Registrar Cooperative Society at Hyderabad, which revision application was also dismissed as withdrawn. The plaintiff then filed a Constitution Petition bearing No. C.P.D‑332/85 before this Court which was admitted for regular hearing and stay was granted against further proceedings of the revision application. The present defendant No. 4 is further said to have sought permission from this Court in the above‑said Constitution petition for conveying and leasing out the plaintiffs plot by concealing the true facts *and got such permission. The present plaintiffs challenged the said permission in favour of the defendant No. 4 by filing Constitution Petition bearing No. C.P.D‑111/86 wherein the Government of Sindh submitted their comments through Dy. Registrar, Cooperative Societies, stating that the defendant No. 4 was restrained to execute the leases in respect of land owned by the plaintiffs Society and thus the said Petition (C.P.D‑111/86) was withdrawn as the petitioners objects have been served on the assurance of the Government of Sindh. However, the defendant No. 4 again . attempted to execute leases of plot owned by the plaintiffs Society but this time the Sub‑Registrar did not oblige him and he, therefore, filed the Constitution petition before this Court being C.P. No. D 1152/87 which petition was dismissed by a Division Bench of this Court in limine. Defendant No. 4 in spite of the orders passed in the above said 3 Constitution petitions approached the Building Control Authority for approval of the plan for the purposes of alienating land of the Society to the builders and the suit was filed by the present plaintiffs before the Senior Civil Judge, Karachi South, being S. No. 1153/86 wherein on an application status quo order was passed which is still in operation. It is further stated in the plaint that the Dy. Registrar, Cooperative Societies, has also issued direction to the District Registrar not to execute the leases pertaining to these parties during the pendency of C.P.No. 332/85. The Chief Minister holding portfolio of the Ministry of Labour and Cooperative Societies, also allowed Mr. R.Z. Kayani to continue as Secretary by order passed on 30‑5‑1989. It is further alleged that the present defendants again submitted the lease documents to the present defendant No. 2 through defendants Nos. 5 and 6 impersonating to be the management of the Society as executing leases in respect of the plots owned by the plaintiff to persons who are alien to the Society. The present plaintiff, therefore, filed the present suit praying for the following relief‑‑ (a) to declare that the leases executed by the defendants Nos. 4 to 6 in respect of the plots owned by the Architects and Engineers Employees Cooperative Housing Society Ltd. are illegal without any jurisdiction and legal entitlement as the same was executed by the persons no alien to the society. (b) to declare that the leases executed by the defendants Nos. 4 to 6 have no legal effect and create no title, interest and right in the plots of the society. (c) to direct the defendant Nos. 1 and 2 to cancel all the leases executed by the defendants Nos. 4 to 6 unauthorised and not deliver the same to any persons. (d) to restrain the defendants, their agents, representative, attorney, officer, contractor, or any person acting on behalf of the defendant from acceptance further leases for registration, execute leases or deliver the leases already executed/accepted by the defendant No. 2 in respect of the plots owned by the Architect and Engineers Employees Cooperative Housing Society Ltd., and also restrained to accept the building plan on the basis of aforesaid facts leases executed by respondents Nos. 4 to 6 and further restrained to alienate transfer encumber in any manner the lands of the society. Any better relief which this Honourable Court may deem fit and proper under the circumstances of the case." . None of the defendants had filed the written‑statement but defendants Nos. 4, 5 and 6 filed an application under Order 7, rule 11, C.P.C. praying for rejection of the plaint. After hearing arguments of the learned counsel for the plaintiffs, the said application was allowed and the plaint was rejected by the order passed on 15‑4‑1990. This order was challenged in HCA No. 62/90. The appeal was allowed by a short order passed on 31‑1‑1991 in the following terms:‑ "For the foregoing reasons, we allow this appeal and set aside the impugned order. The suit shall be re‑entered in the relevant register for its decision according to law. The respondents were directed to file the written statement within three weeks from 31‑1‑1991." Thereafter, an application under section 148, C.P.C. was moved on behalf of the defendant No. 3 on 25‑9‑1991 praying for extension of four weeks time to submit written statement. This application came up for orders on 13‑10‑1991 when the same was missed on merits after hearing the learned counsel for defendant No. 3 and the matter was adjourned today for further orders. Today also learned counsel for the plaintiffs and defendant No. 3 are present but none else is present on behalf of the remaining defendants nor any written statement is filed by them. Accordingly the suit is to proceed ex parte against all ‑ defendants. The plaint is verified on oath and is supported by the documents as mentioned in the plaint. I have perused the same. The said documents show that in Constitution Petition No. D‑332/85 the application (CMA 746/85) was moved seeking the stay/suspension of further proceedings in appeal filed by the present defendant No. 4 against Khan Muhammad Paracha and 9 others wherein the stay was ultimately confirmed by orders passed on 16‑10‑1986. The said documents have been filed with the plaint as Annexures `C' and `D' wherein the defendant No. 4 is shown as respondent No.

4. In view of the above facts and circumstances I decree the suit of the plaintiff as under:‑ ' (a) The leases executed by defendants Nos. 4 to 6 in respect of the plots owned by the plaintiffs Cooperative Housing Society have no legal effect and do not create any title, interest and right in favour of lessees and the same are directed to be cancelled subject to the final decision in C.P. No. D‑332/85. (b) The defendants are hereby restrained from executing any further leases for registration in respect of plots owned by the plaintiffs Cooperative Housing Society and accepting consequent building plans subject to final decision in C.P. No. D‑332/85 by themselves or through their agents, representatives, attorneys, officers, contractors or in any manners. There will, however, be no order as to costs. H.B.T/A‑1460/K Suit decreed.