2001 PLP 1966 (CLC)

Application was duly supported by an affidavit. Counter‑affidavit by way of objections was filed by defendant No.2 Zahid Qamar objecting to the grant of interim relief on various grounds disclosed in the counter‑affidavit. An application being C.M.A. No.9261 of 2000 under Order 7, Rule 11, C.P.C. was also filed on 1‑11‑2000 on behalf of defendant No.2, as already stated above in view of the following grounds:‑‑ (a) The suit is barred under section 69 of the Partnership Act, 1932. (b) The suit is barred under section 42 of the Specific Relief Act, 1877. (c) The suit is barred under sections 9 and 12 of the Trade Organizations Ordinance, 1961. (d) The plaint does not disclose a cause of action in favour of the plaintiff. Counter‑affidavit to this application has also been filed on behalf of the plaintiff by Mian Naseer Hayat Magoo. Affidavit‑in‑rejoinder was filed by defendant No.2 Zahid Qamar and in support of their respective contentions, both the parties have filed a number of documents relating to the controversy in the suit. The case of the plaintiff is that he is sole proprietor of the firm Messrs Al‑Riaz Agencies which is a duly registered Member of Chamber of Commerce and Industry, Karachi (K.C.C.I.), and carrying on its business at the address given in the plaint. The plaintiff has challenged the election of defendant No.2 as a Member of the Managing Committee of K.C.C.I. during the election held in the year 1999. It has been, inter alia, contended that the defendant No.2 is not authorised representative of Messrs Aftab Jawaid & Co., hence he was not competent to contest election for the post of Member, Managing Committee of K.C.C.I. or to hold the said office as he is neither lawful nor bona fide Member of K. C. C. I. The plaintiff has further averred that on 25th September, 2000 a meeting of the 'Managing Committee of K.C.C.I. was called to elect the office‑bearers. The plaintiff was a candidate for the post of Vice‑President but before such election could have been held, it was stated by some of the members that the election was stayed by High Court in Suit No. 1264 of 2000 and it was under such circumstances, that the plaintiff declined to participate in the proceedings but few of the members including defendant No.2 insisted to proceed with the agenda and the election for the Managing Committee was held in violations of the High Court orders wherein defendant No.2 was illegally and unauthorisedly declared elected as Vice‑President of the K.C.C.I. It has also been pleaded that under Article 8(a) of the Articles of Association of K.C.C.I. no firm or concern shall be entitled to be represented at the time of election through a person other than who is proprietor, partner, director or an elected office -bearer. Further, it has been pleaded that by an order, dated 24th April, 1997 passed by the Ministry of Commerce, Government of Pakistan, it has been provided that the proprietor, partners, or director of the member firm or company, concern or a person not below the rank of General Manager authorised by the Board of Directors of Public Limited by Multi‑National Company shall be entitled to cast his/her vote at the time of election only if his or her name has already been registered with the Secretary and such name appears on the list of voters. During the proceeding of Civil Suit No. 1264 of 2000 the plaintiff came to know that defendant No.2 Zahid Qamar is not the authorised representative of Messrs Aftab Jawaid & Company, as such, he immediately wrote a letter to the President of K.C.C.I. requesting him to check, verify and confirm the status of Messrs Aftab Jawaid & Company. In reply to the said letter the President of defendant No.1 by his letter, dated 30‑9‑2000 informed that Messrs Aftab Jawaid & Company is a sole proprietorship concern and one Mazhar Hussain Qamar is its sole proprietor. However, the Secretary of K.C.C.I. in response to the said letter sent a reply, dated 30‑9‑2000, took an evasive and vague stand stating that relevant file available in the K.C.C.I. does not seem to be complete and there is variation in the status of firm including the specimen card and the membership form available in the file. However, as alleged by the plaintiff, the Secretary stated that membership section maintains that Messrs Aftab Jawaid & Company is a partnership firm and the Secretary is not competent to decide its status as the defendant No‑2 is a Member of the Managing Committee. There was exchange of letters between the plaintiff and the officials of K.C.C.I. The plaintiff desired to know clearly the status of Messrs Afiab Jawaid & Company from the records of K.C.C.I. particularly referring to letter, dated 30‑9‑2000 written by Mr. Amjad Rah, President of K.C.C.I. confirming therein that Mr. Zahid Qamar is not the member of defendant No.1 as the membership form describes Mr. Mazhar Hussain Qamar as the proprietor. The Secretary was requested by the plaintiff to restrain defendant No.2 Zahid Qamar from holding the office of the Vice President and from attending the meetings of the Managing Committee or to represent him as the Vice‑President of K.C.C.I. The copy of the application of membership of K.C.C.I., dated 26‑7‑1983 clearly indicates that Messrs Aftab Jawaid & Company is not the partnership firm and it is only a sole proprietorship concern whose proprietor is mazhar Hussain Qamar. It was under the abovementioned factual and legal position that the plaintiff filed this suit for the reliefs as mentioned above. The cause of action is shown to have accrued on or about 25/26th September, 2000 when during the proceedings of Suit No.1264 of 2000 pending before this Court the plaintiff came to know that defendant No.2 Zahid Qamar is not the authorised representative of Messrs Aftab Jawaid & Company whose sole proprietor is Mr. Mazhar Hussain Qamar. In his counter‑affidavit to C.M.A. No.8907 of .2000 the defendant No‑2 has controverted the facts as stated in the plaint. It has been pleaded that an application under Order 7, Rule 11, C.P.C. for rejection of the plaint has already been filed on the grounds shown in the said application particularly the suit being barred under section 69 of the Partnership Act, 1932, section 42 of the Specific Relief Act, 1877 and under sections 9 and 12 of the Trade Organizations Ordinance, 1961. It has also been pleaded that plaint does not disclose a cause of action in favour of the plaintiff. On the factual side, the defendant No.2 has pleaded that he was duly elected for a term of three years as a Member of the Managing Committee of K.C.C.I. in the election held in September, 1999 in accordance with the law and the rules. He claims that he was duly shown as authorised representative entitled to vote and contest the election as a Member of the Managing Committee of defendant No. 1 in the preliminary list of voters circulated by defendant No. 1 to which objections were duly invited and scrutinised by the Scrutiny Committee of defendant No.

1. No objections were filed to his nomination, hence the defendant No.2 contested the elections for the post of Member of Managing Committee of K.C.C.I. It was denied that he was not authorised to hold the said office or that he is not a lawful nor bona fide member of defendant No.

1. It was denied that the plaintiff was also a candidate for the post of Vice‑President of K.C.C.I. It is the case of defendant No.2 that the meeting was duly convened and proceedings were commenced as it is evident from the minutes of the meeting held at 3‑30 p.m. The Chairman of the meeting made an enquiry from the Secretary of defendant No. 1 as to whether he had received any stay order from the Honourable High Court, to which the Secretary had replied in negative. It was further stated that plaintiff who claims to be the Member of Managing Committee and a candidate for the office of Vice‑President was not even present in the meeting of the Managing Committee held on 25‑9‑2000 for electing three office‑bearers. The defendant No.2 further pleaded that Messrs Aftab Jawaid & Company came into existence as a partnership firm by a deed of partnership, dated 1st July, 1979. Photostat copy of partnership‑deed is filed and marked Annexure "C" to the counter‑affidavit. It was further stated that Messrs Aftab Jawaid & Company had two partners, namely, Mazhar Hussain Qamar and Zahid Hussain Qamar who are father and son respectively. Such intimation was also given through their Income‑tax Advisor to Registrar of Firms for its registration on 6‑2‑1980. The Registrar of Firms by his letter, dated 13‑4‑1980 asked for certain particulars: Photostat conies of the. Form "A" the application and the letter of Registrar have been filed as Annexures "D", "E", "F" and "G". There was no change in the partnership of the firm from 1‑7‑1979 up to 30‑6‑1985. However, on 1‑7‑1985 there was addition of a third partner by name Shahid Qamar and admission of minor Salman Qamar to the benefits of partnership firm which fact is duly reflected in the second deed of partnership, dated 1‑7‑1985. Photostat copy has been filed as Annexure "H". A number of other documents including copies of specimen signature card and income‑tax assessments in the name of Messrs Aftab Jawaid & Company for the years 198b‑81 to 1999‑2000 have also been filed. It is also alleged that a forged and fabricated application form for membership and letters, dated 9‑6‑1999 and 12‑6‑1999 were planted in the record by plaintiff with the help of others. In nutshell the defendant No.1 has stated that Mr. Amjad Rafi is in collusion with plaintiff Mian Naseer Hayat Maggo and both of them are trying to keep the defendant No.2 away from the posts of the Member, Managing Committee and the Vice‑President of K.C.C.I. to which he stands duly elected as per law and that the case set up by the plaintiff has no legs to stand. With the consent of learn counsel for the parties both these C.M.As. have been heard together and I propose to dispose both the applications by this order. In order to appreciate the contentions of the learned counsel for the parties with regard to the application under Order 7, Rule 11, C.P.C. I feel it necessary to reproduce section 12 of the Trade Organizations. Ordinance (XLV of 1961) which reads as under:‑‑ "12.‑‑ (1) Notwithstanding anything contained in any law for the time being in force or in the articles or memorandum of a registered trade organization, no suit or other legal proceedings shall be instituted or commenced against such registered trade organization or any member thereof or any member of the Executive Committee of such trade organization questioning the validity or propriety of any act or proceeding of, such trade organization or of the Executive Committee or other body thereof, or the constitution of, or election or appointment to, such Committee or body, by any member of such trade organization or by, or by any member of, any other trade organization unless such member or other trade organization has made an application, accompanied by such fee not less than one thousand rupees as may be prescribed by rules, referring the matter to the Arbitration Tribunal constituted for the purpose of deciding such references by the Federation of Chambers of Commerce and industry registered under the Act in pursuance of a licence and such Arbitration Tribunal has given its decision or award thereon." A perusal of the above‑referred provision of law would show that there is a bar in filing of a suit or other legal proceedings against a registered trade organization or any member thereof or‑ any member of the Executive Committee of such propriety of any act or proceeding of such trade organization or of the Executive Committee or other body thereof or the constitution of, or election or appointment to, such committee or body by any member of any other trade organization unless such member or trade organization has made an application, accompanied by such fee not less than one thousand rupees as may be prescribed by rules, referring the matter to the Arbitration Tribunal constituted for the purpose of deciding such references by the Federation of Chamber of Commerce and Industry registered under the Act in pursuance of a licence and such Arbitration Tribunal has given its decision or award. In other words before getting the matter referred and decided by an Additional Tribunal required for the purpose, the above‑referred section has put a complete bar on the filing of the suits or other proceedings against a registered trade organization in respect of its affairs which include election or appointment to the Executive Committee of such organization. Admittedly, defendant No. 1, Karachi Chamber of Commerce and Industry, is a registered trade organization having its memorandum and Articles of Association and other bye‑laws. Under Article 53 of the Memorandum of Article of the defendant No. 1 there is an arbitration clause which is binding upon its members. It reads as under:‑‑ "

53. The Chamber may constitute a Court of Arbitration to which all members shall refer for settlement of all those cases of disputes or differences inter se that arise out of their commercial transactions. The Court may also arbitrate on commercial disputes or differences that may be referred to it arising between a member and a non member or between a non‑member and a non‑member. The Managing Committee shall make bye‑laws governing the working of the Court of Arbitration and for enforcement of its awards which shall be binding to the parties at dispute." Under this Article a Court of Arbitration is competent to settle the dispute between a member and a non‑member or between a non‑member and a non‑member, The learned counsel for the defendants have, therefore, argued that without getting the matter referred and resolved through arbitration as required under Article 53 of the Memorandum of Article of K.C.C.I., no suit shall lie in the present form, as filed by the plaintiff. The learned counsel for defendant No.2 has mainly argued that election of the defendant No.2 for the post of Member, Managing Committee of defendant No.1 has been questioned in prayer clause (a). In clauses (b), (c) and (d) as well, the status of defendant No.2 as a member of defendant No.1 and his election as member of the Managing Committee and again as Vice‑President is the subject‑matter of the dispute. In rebuttal the learned counsel for the plaintiff has argued that under section 9 of the Code of Civil Procedure, 1908 a Civil Court is competent to have jurisdiction to try all suits of civil nature hence the provisions of Order 7, Rule 11, C.P.C. do not stand attracted. The learned counsel for defendant No.2 has argued that no doubt Civil Courts have jurisdiction to try all suits of civil nature but excepting the suits of which' their cognizance is either expressly or impliedly barred. The learned counsel has, therefore, argued that in view of section 12 of Ordinance (XV of 1961) as duly amended, a suit for the relief as claimed by the plaintiff is barred unless the plaintiff has availed the opportunity of getting the dispute resolved through arbitration. He has, therefore, argued that admittedly the plaintiff has not complied with the requirements of section 12 of the 'Ordinance (XLV of 1961), as referred to above and, as such, the suit is barred and the plaint is liable to be rejected. Mr. Abdul Sattar Pingar, learned counsel for defendant No.1, has also argued on the same line. Both the learned counsel for the plaintiff and the defendant No.2 argued at length regarding the scope of Order 7, Rule 11, C.P.C. with regard to averments made in a plaint. The learned counsel for the plaintiff has vehemently urged that it is the plaint and the averments made therein which are to be taken into consideration for the purpose of rejection of a plaint or otherwise and the plea taken in defence are not to be considered for the said purpose. The learned counsel for defendant No.2 has argued that in suitable cases where there is suppression of the facts in the plaint and if there are admitted documents available on record the same can be looked into by the Court at the time of deciding an application for rejection of the plaint. The earlier view that it is the plaint alone which has to be seen for the purpose of exercise of jurisdiction under Order 7, Rule 11, C.P.C. has gone under change. In suitable cases even the admitted documents produced in defence can be looked into for the said purpose. Without further dilating. upon his point I feel that even if we confine ourselves to the pleas raised in the plaint and the relief claimed in the suit, the nature of the dispute regarding the membership of defendant No.2, Zahid Qamar, and his participation in the election of the Managing Committee of defendant No‑1 arid subsequent election as its Vice‑President is the sole cause of the dispute, hence the bar contained in section 12 of Ordinance (XLV of 1961) stands attracted. The learned counsel for defendant No.2 has referred to an unreported judgment passed by the Honourable Supreme Court of Pakistan in the race of Abdul Razzak Rajwani v. Messrs M.Y. Industries and others (Civil Appeal No. 13‑K of 1986, decided on 18‑5‑1986) and contended that the said judgment is applicable on all fours to the present suit. The scope and applicability of section 12 of Ordinance (XLV of 1961) was considered and discussed at length with reference to section 9 of the said Ordinance. It was held in para. 13 of the said judgment as under:‑‑ "The Ordinance is thus, a complete code which provides for regulation and control of the Organization as well as makes provision for effective remedies in case of mismanagement of the Organization." Again in para. 14 of the said judgment it has been held as under:‑‑ "The provisions of section 12 of the Ordinance are applicable notwithstanding anything contained in any law for the time being in force, or the Articles or Memorandum of registered trade organization. No suit or other legal proceedings can be instituted or commenced against a registered trade organization or any member thereof or any member of the Executive Committee of such trade organization questioning the validity of propriety of any act or proceedings of such trade organization or the Executive Committee or election or appointment to such Committee or body by any member of such trade organization unless such member has made an application referring the matter to the Arbitration Tribunal constituted for the purpose of deciding such reference by the Federation of Pakistan Chambers of Commerce and Industry registered under the Act. Necessary 'Rules and Regulations of the Arbitration Tribunal' framed under this section by the Federation of Pakistan Chambers of Commerce and Industry have been brought on the file." In the concluding paragraph of said judgment it has been held as under:‑‑ "For the reasons recorded hereinabove this appeal is allowed with the result that not only the impugned judgment of the High Court is set aside but the suit between the parties, namely Civil Suit No.4576 of 1983 pending before the Third Senior Civil Judge, Karachi is also dismissed as being barred by the provisions of section 12 of the Trade Organizations Ordinance, 1961 read with section 9 of the Code of Civil Procedure, with the final result that the order of appointment of the interim Receiver of defendant No.2, dated 24‑1‑1984 passed by the trial Court in the said suit and all the subsequent orders passed in this behalf stand set aside." In order to distinguish the above‑referred report from the Honourable Supreme Court the learned counsel for the plaintiff has referred to the case of Sultan Mawajee and 3 others v. Federation of Pakistan Chamber of Commerce and Industry, Karachi and 3 others PLD 1982 SC 174 and the case of Khalid Tawab and another v. Shaikh Maqbool Ahmad and 2 others 1986 MLD

335. Referring to the latter case, firstly, it is pertinent to note that the said matter was decided on 5th March, 1986 much before the decision of the apex Court in Civil Appeal No.13‑K of 1986 which was decided on 18th May, 1986. So far the view expressed in PLD 1982 SC 174 is concerned, the said judgment is also prior in time to the view taken in the unreported case. Moreover, the objection regarding applicability of the bar contained in section 12 of the Ordinance was not a subject‑matter of the said decision, as it was not raised in that case, hence it was neither discussed nor considered by the apex Court while deciding the said case. I have considered the arguments of the learned counsel for the parties as well as the case‑law cited at the bar. I have also gone through the plaint and particularly the prayer made therein. So far the first ground regarding the rejection of plaint which was taken by defendant No.2 in his application under Order 7, Rule 11, C.P.C. alleging the suit to be barred under section 69 of the Partnership Act, the said ground is no more available to the defendants as the plaint has 'been duly amended and the said defect stands rectified. However, so far the second objection regarding the suit being barred under section 12 of Ordinance (XLV of 1961) is concerned there appears to be force in the contentions raised by the learned counsel for defendant No.2 more particularly with reference to the unreported case in Civil Appeal No. 13‑K of 1986 decided on 18th May, 1986. Resultantly the plaint is hereby rejected. So far C.M.A. No.8907 of 2000 under Order 39, Rules 1 and 2, C.P.C. is concerned, it has become infructuous and it is also dismissed accordingly. Q.M.H./M.A.K./A‑145/K Suit dismissed.