2004 PLP 2071 (YLR)

(e) Declaration that the property has been illegally sold and the sale deed is therefore, void. Hence, the plaintiff is entitled to recovery of damages/compensation to the domination of Rs.65 lacs which amount the defendants Nos.1 to 7 have enriched themselves at the expense and detriment of the plaintiff society. (f) Permanent injunction restraining the defendant No.8, who is a trespasser, from occupying the property and sealing of the said property. Further permanent injunction restringing defendant No.8 from creating third party interest and/or demolishing the property and/or raising illegal and unauthorized construction. (g) Mandatory injunction directing the defendant No.8 to hand‑over the vacant possession of the property to the plaintiff. The defendant No.8 on account of his trespass has created irreparable damage to the Society." Heard Mr. Faisal Arab learned counsel for the applicant/defendant No.8 and Mr. Agha Faisal learned counsel for the plaintiff. Mr. Faisal, has submitted that allotment of plot is a matter which touches the business of society and consequently the suit is barred under section 54(a) of the Cooperative Societies Act, 1925 read with section 70‑A, thereof. In support of his contention, he has placed reliance on the following reported and un‑reported judgments:‑‑ (1) Shahid Agencies v. Collector of Customs 1989 CLC 1938. (2) Sajjad Hussain Khan v. Muhammad Hanif Siddiqui 1090 MLD 25. (3) Haji Shafi Muhammad Jamote v. Finshermen Cooperative Society Limited 1999 MLD 1668. (4) Suit No.476 of 2000, R.F. Virjee v. Virasp P. Mehta and others (SB). (5) H.C.A. No.1 of 2001, R.F. Virjee v. Virasp P. Mehta and others (DB). (6) Civil Petition No.269‑K of 2002, Rustom Firoze Virjee v. Viras P. Mehta and 5 others (SC). On the other hand Mr. Agha Faisal, learned counsel for the plaintiff has opposed the rejection of plaint and has submitted that facts of the cases on which Mr. Faisal Arab, Advocate has placed reliance are distinguishable from the facts of the present case and consequently, the ratio of the judgments are not attracted. He has maintained that in all the cases on which Mr. Faisal Arab has placed reliance, the dispute was between members or past members and the society. So far, the present case is concerned, the main contesting party defendant No.8 (the applicant) is not a member of society and has not even applied for membership of the society. He has further submitted that complicated questions of law and a question whether the members of the society to whom lease was granted acquired any title in the plot or not and whether the right and title in the plot can be transferred or not are involved, which can not be decided by the Registrar Cooperative Society or its nominee and the issues involved can be adjudicated upon by the Court only, therefore, the question of ouster, of jurisdiction is not applicable. In support of his contention he has placed reliance on the following judgments this Court:‑‑ (1) Amir Ali Hussain Shalwani v. Ismaili Masalwala 2001 YLR 2537 (SB). (2) Muhammad Waheedullah Ansari v. Zubeda Sharif PLD 2002 Karachi 414 (D.B). He has submitted that in the case of Amir Ali Hussain, it has been held that the provisions contained in section 54 of the Co‑operative Societies Act, 1925, shall be attracted if dispute touches the business of society and arises between the persons classified in Clauses (a) to (e). However, if one of the parties is neither a member nor a past member of the society, the provisions of section 54 are not attracted. It is further held that under proviso to section 54 if the question at issue between the society and the claimant or between the different claimants is one involving complicated question of law and facts, it is to be decided by the Civil Court and not by the Registrar Cooperative Society. In the case of Muhammad Waheedullah Ansari, a Division Bench of this Court held that every dispute between the persons mentioned in section 54 of the Cooperative Societies Act, 1925 could not qualify to be a dispute touching the business of society, merely because the subject/ business of the suit property was managed and controlled by the society. It has further been held that matters arising out of contractual obligation between the members, past members or persons claiming through such members having no nexus with the business of society cannot he referred to the arbitration under section 54 of the Act, and therefore, the provisions contained in section 70‑A were not attracted. I have carefully considered the facts obtaining on record, the contentions raised by the learned Advocates for the parties and the judgments relied upon. It is admitted fact that the main contesting party i.e. Muhammad Tahir Qureshi, the defendant No.8, who has submitted application for rejection of plaint is not a member of plaintiff's society. Thus, the matter is not between the members, past members or between the member and past members and the society. Further it cannot be denied that several complicated questions of law are involved which can be properly decided by the Court only and not by the Registrar Cooperative Societies. I am persuaded to agree with the submission of Mr. Agha Faisal, learned counsel for the plaintiff that the ratio of judgments on which Mr. Faisal Arab, has placed reliance are not attracted for the reason that in all those cases the matter was between members of the society. However, the ratio of the two judgments on which Mr. Agha Faisal, has placed reliance are fully attracted to the present case and consequently, it is held that it is not a fit case for rejection of plaint or for reference to the Registrar Cooperative Societies for arbitration. The application under Order VII, rule 11, C.P.C., stands dismissed accordingly. H.B.T./K‑14/K Application dismissed.