1999 PLP 2023 (CLC)

(d) Pass decree for possession of the suit plot in favour of the plaintiff directing the defendants to hand over vacant and peaceful possession of the suit plot to the plaintiff or her duly authorised agent. (e) To declare that the impugned orders, dated 11‑2‑1981, passed by defendant No.3 (The Deputy Registrar, Cooperative Societies) and the impugned order, dated 12‑10‑1994/26‑10‑1994 passed by the defendants Nos. l and 2 (the order in fact is passed by the Minister, Industries and Cooperation, Government of Sindh) are illegal, inoperative, arbitrary, discriminatory, mala fide, without lawful authority, having no legal effect and the same be set aside. (f) Pass orders for cancellation of all the documents issued or executed by any of the officials/officers of defendant No.4 Society in favour of the defendant No.5 restraining the suit plot. (g)

(h)

3. Mr. Ghulam Ali Khokhar has challenged maintainability of this suit on the following two grounds:‑‑ (i) that the suit, is barred under section 64‑AA of the Sindh Cooperative Societies Act, 1925, as it has attained finality after passing of order by the Provincial Government. (ii) that the suit is barred by section 70 of the Cooperative Societies Act, 1925, as no mandatory notice was served on defendant No.4, prior to filing of this suit and that no such fact was disclosed in the body of plaint.

4. Mr. Khalid Jawaid, in order to meet the second objection, has filed C. M. A. 9037 of 1997, seeking conditional withdrawal of suit against defendant No.4, with the permission to file the same after issuance of proper notice, as provided under section 70 of the Act, 1925. According to Mr. Arif Bilal Sherwani, who is representing defendant No.4, this plea has been raised to remove lacuna in the plaint and to defeat the provisions of Cooperative Society laws. Before proceeding further it would be pertinent to consider section 64‑AA and section 70 of the Act, 1925, which reads as follows:‑‑ "64‑AA. Finality of orders of Provincial Government.‑‑‑ An order passed in appeal under section 64 or in revision under section 64‑A by the. Provincial Government shall be final and conclusive and shall not be liable to be called in question in any Civil or Revenue Court.

70. Notice necessary in suit.‑‑‑ No suit shall be instituted against a society or any of its officers in respect of any act touching the business of the society until the expiration of two months next after notice in writing has been delivered to the Registrar, or left at his office, stating the cause of action, the name, description and place of residence of the plaintiff and the relief which he claims, and the plaint shall contain a statement that such notice has been so delivered or left."

5. Mr. Ghulam Ali Khokhar, has argued that once an award was passed by the Deputy Registrar, Cooperative Societies and the same has been endorsed by the Provincial Government in a revision filed under section 64‑A of the Act, 1.925, the same has attained finality and the same being conclusive is not liable to be called in question in any Civil Court. He has placed reliance on the case Friends Mutual Cooperative Housing Society (Regd.) v. Shamim Afza and others 1987 CLC 1235 arid The Quetta Cooperative Store Ltd., Quetta v. Province of Balochistan through the Secretary, Agriculture and 2 others PLD 1978 Quetta

174. In the former case a learned Single Judge of Lahore High Court held that finality is attached to an Award, passed under section 57 by virtue of section 64‑AA and that no rule could be framed contrary to the same. In the latter case one of the point raised before a learned Division Bench of Balochistan High Court was that the order of Secretary passed under section 64‑A since had attained finality by virtue of provision of section 64‑A, it could not be challenged in Civil. Court. It was held that this section unambiguously gives finality to the order passed under section 64‑A of the Act. On the other hand, Mr. Khalid Jawaid has referred to section 9 of the C.P.C. and placed reliance on the following reported cases to support his contention that this suit is maintainable:‑‑-- (a) Abdul Rauf and others v. Abdul Hamid Khan and others PLD 1965 SC 671, (b) Muhammad Jamil Asghar v. The Improvement Trust, Rawalpindi PLD 1965 SC 698, (c) Gulzar Hassan Shah v. Ghulam Murtaza and 4 others PLD 1970 SC 180, and (d) Hamid Hussain v. Government of West Pakistan and others 1974 SCMR 356.

6. Section 9 of C.P.C. empowers a Civil Court to entertain all suits of civil nature unless impliedly or specifically barred. There is no cavil to the proposition that where an order passed is without jurisdiction or it abundantly appears to be illegal or is a result of mala fide then under such circumstances a Civil Court is competent to look into the legality and propriety of such order or act challenged in the suit. In order to show that the order passed by the officials of the Cooperative Society and by the Deputy Registrar was with mala fides reliance is placed on paragraphs 17 and 19 of the plaint. In paragraph 17 of the plaint, it is alleged that the order was passed by the Minister himself instead of the Secretary and that no opportunity was given to the plaintiff to defend and the same was passed in violation of the principles of natural justice. In paragraph 19 it is again alleged that the defendants Nos. l to 4 have dealt with the plaintiff's case in discriminatory and mala fide manner and have decided the case in clear violation of law. It is further alleged that the order, dated 12‑10‑1994 is a tacit order and is not well‑reasoned. Except these two paragraphs no other specific instances of mala fide have been alleged. Any illegality in an order, passed by any forum or Tribunal, does not ipso facto becomes mala fide. In order to prima facie show an act of mala fide a party is required to give specific instances of such mala fide. Mere wild allegations of said nature would not establish mala fide of the defendants. It is requirement of the Order VI, Rule 4, C.P.C. that particular instances and other details of fraud and misrepresentation should be disclosed in the pleadings. As far as paragraphs 17 and 19 of the plaint are concerned or for that matter even if other contents of the plaint are also considered, all such allegations do not constitute mala fide. As held by His Lordship Saiduzzaman Siddiqui, J., in the case of Pir Sabir Shah v. Federation of Pakistan and others PLD 1994 SC 738 at 824 that "mala fide action is an act which is taken in bad faith out of malice to derive personal gain or benefit or to cause personal loss to the person against whom it is taken": In the case of Federation of Pakistan v. Saeed Ahmad Khan and another PLD 1974 SC 151 it was held, inter alia, that "in order to establish a case of mala fide, some such specific allegation is necessary and it must be supported by some prima facie proof to justify the Court to call upon the other side to produce evidence in its possession". All these elements are absent in the plaint, therefore this plea of mala fide, at this stage, is not available to the plaintiff. Further reliance is placed on the following rule laid down by the Honourable Supreme Court in the case of Saeed Ahmed Khan (supra):‑‑

Action taken in colourable exercise of powers, that is to say, for collateral purposes not authorised by the law under which the action is taken or action taken in fraud of the law are also mala fide. It is necessary, therefore, for a person alleging that an action has been taken mala fide to show that the person responsible for taking the action has been motivated by any one of the considerations mentioned above. A mere allegation that an action has been taken wrongly is not sufficient to establish a case of mala fides, nor can a case of mala fides be established on the basis of universal malice against a particular class or section of the people. Thus, action taken, for instance, to acquire, lands or take over industries or banks on the basis of a policy intended for introducing a more socialistic system cannot be characterised as action taken mala fides. But in order to make out a case of mala fides, an individual must establish that his land was taken not for the purposes authorised by the law but for the personal aggrandisement of the person empowered with the power to make the order of acquisition, or because the person so authorised to take action bore any personal grudge against the person in respect of whose lands or properties action has been taken... "

7. In the Award as well as in appeal, filed against the Award, it was concurrently held that the allotment made by Mst. Ghousia Begum was cancelled without notice to her and the same being in violation of the principles of natural justice was illegal, therefore, the said cancellation was set aside and recalled. The plaintiff is not able to deny this aspect of the case even in his plaint. It was held by a Division Bench of this Court in the case of Haji Noor Muhammad and others v. Karachi Development Authority and 2 others PLD 1975 Kar. 373 that an allottee is not merely a licencee or sub‑licencee but such allotment passes a right in rem in it in respect of plot allotted to him, therefore, it follows that even where a simple allotment is made it cannot be recalled without first giving an opportunity of hearing to such allottee.

8. Mr. Ghulam Ali Khokhar has also pleaded for rejection of the plaint, for the reason as mentioned in section 70 of the Act. 1925. He has referred to the cases Muhammad Ali Memorial Cooperative Housing Society Ltd., Karachi v. Syed Sibtey Hasan Kazmi PLD 1975 Kar 428 and Metro Cooperative Housing Society Limited v. Bonanza Garments Industries (Pvt.) Limited and 3 others 1996 MLD

593. In the first case the necessity of a notice, as required under section 70 of the Act, 1925, was considered in IInd appeal by the then Chief Justice of this Court Tufail Ali A. Rehman, J. (as he then was). It was held that issuance of notice to Cooperative Society, under section 70, is a mandatory provision. The appeal was allowed and order of the appellate Court was set aside and that order of Civil Court was restored through which the suit was dismissed. This view was followed by me in the case of Metro Cooperative Housing Society Limited (supra). In that case a suit was filed without applying provisions of section 70 of the Act, 1925. The term "any act with reference to a business of a Society" was given a wide meaning and was held that it will include all conceivable situation linked with such business of a Cooperative Society and only rare cases are to be excluded out of the ambit of the said term. In the instant case, it is not denied that the dispute, as alleged in the plaint, was directly connected with the business of a Cooperative Society. It was argued by Mr. Khalid Jawaid, while referring to section 70, that since he is not seeking any relief against the Cooperative Society, therefore, the provisions of section 70 is not attracted. This argument is absolutely untenable on two grounds: Firstly, in prayer clauses (c) and (f) the plaintiff has prayed for specific relief against defendant No.4, therefore, this plea is factually incorrect. Secondly, the department as well as the Cooperative Society are necessary and proper parties as in their absence no effective decree could be passed. He has referred to the case of Syed Akhtar Ali v. Hoor Bai and others 1987 MLD 2999, where it was held by a learned Single Judge of this Court that as per provision of section 70 a suit cannot be instituted against a Cooperative Society unless a prior notice of intimation was given to the Registrar, Cooperative Societies, Karachi. As a consequent of such finding, name of defendant No.7 was struck off from the plaint and it was ordered that the suit be proceeded against the remaining defendants. From the reported judgment it is not clear that who were the other defendants. From the facts given, it appears that defendant No.7 was Pakistan Post Office Employees Cooperative Housing Society Limited, as such, during hearing of this suit, I have summoned files of Suits Nos. 8 of 1972 and 11 of 1972 as a consolidated order was passed in both these suits. Perusal of both these suits indicates that Suit No.8 of 1972 was filed by Messrs Andhra Cooperative Housing Society Limited against some seven defendants including Pakistan Post Office Employees Corporation, for specific performance of contract, injunction and damages and in alternate for refund of money while Suit No. 11 of 1972 was filed by one Syed Akhtar Ali, who was defendant in Suit No.8 of 1972, against some seven defendants, including Post Office Employees Cooperative Housing Society. Against the order of learned Single Judge in Syed Akhtar Ali (supra), plaintiff of that suit as well as defendant No.7 of that suit filed two High Court Appeals bearing H.C.A. No.161 of 1986 and H.C.A. No. 162 of 1986, which came up for hearing before a learned Division Bench of this Court comprising Ajmal Mian (now Chief Justice of Pakistan) and Abdur Rasool Agha, JJ. (as he then was). The order passed in Syed Akhtar Ali (supra) was set aside with the following observations:‑‑

"(3) We have heard the learned counsel for the parties and we are inclined to hold that once respondent No.7 was impleaded as a party upon an application under Order 1; Rule 10, C.P.C. after hearing them, the question whether any relief could have been granted against them in the suit inter alia on the ground that no notice was served under section 70 of the Act should have been decided at the regular hearing after framing of the issues as in fact it amounts to reviewing the earlier order impleading the above respondent as a party upon an application under Order 1, Rule 10, C.P.C. (4) We would, therefore, allow the above appeals and set aside the above order subject to the right of respondent No.7 to urge the above point and the other legal point..."

10. In view of the judgment of Division Bench, as mentioned above, I am not inclined to follow the rule laid down by a learned Single Judge of this Court in Syed Akhtar Ali (supra). Mr. Ghulam Ali Khokhar has relied upon the case Muhammad Ali Memorial Cooperative Housing Society Ltd., Karachi PLD 1975 Kar. 428 which still holds the field and was followed by me in the case of Metro Cooperative Housing Society Limited 1996 MLD 593 where plaint was rejected for non‑compliance of the provisions of section 70rof the Act, 1925. For further reference see Zafar Hussain and another v. Yousuf and 4 others PLD 1976 Kar. 1107, Farida v. Prince Apartment Cooperative Housing Society Limited and 2 others 1984 CLC 2914, Zia Rehman Alvi v. Messrs Allahabad Cooperative Housing Society Limited and 2 others PLD 1996 Kar. 399, Faqir Muhammad Dadu Muhammad v. Mercantile Cooperative Bank Limited AIR 1940 Sindh 143 and Darul Aman Cooperative Housing Society Limited v. The Secretary, Government of Pakistan and others 1995 MLD 1553. In these cases, where suits were filed without prior issuance of notices under section 70, either the suits were dismissed or plaints were rejected. It is not denied by the plaintiff that she has not disclosed in the plaint whether any notice under section 70 of the Act, 1925, was issued and delivered at the office of the Registrar. The plaint is also silent on the point whether in such notice any cause of action and the relief intended to be prayed for in this suit were disclosed. Besides defendant N o.4, which is a Cooperative Society, the remaining defendants, except defendant No.5, are Provincial Government or its functionaries connected with the affairs of the Cooperative Societies. Defendant No.5 is only a private person. As proposed, if the name of defendant No.4 is allowed to be deleted at this stage then in such circumstances no effective decree could be passed. In prayer clause (c) of the plaint a mandatory injunction is sought against this defendant for executing necessary title documents in favour of plaintiff, while in prayer clause (f) cancellation of all such documents are prayed which are executed by defendant No.4 in favour of defendant No.5. In such circumstances, it would not be just and proper to permit the plaintiff to split up her reliefs against common defendants arising out of same cause of action. Therefore, defendant No.4, for all legal intent and purposes, is necessary and proper party. This view is supported by the fact that after passing of order by the Minister, Sindh Government, dated 12‑10‑1994, the said defendant has cancelled the plot of plaintiff for which this present suit has been filed. In these circumstances, this suit appears to be incompetent for want of notice as per requirement of section 70 of the Cooperative Societies Act, 1925.

11. Section 64‑AA of the Act, 1925 extends finality and conclusiveness to an order passed in appeal under section 64 or in revision under section 64‑A and bars the jurisdiction of a Civil Court or Revenue Court for calling in question such order. Therefore, in order to bring a suit challenging any order, as mentioned under section 64‑AA, the plaintiff is required to show that such order passed was without jurisdiction or with mala fide or that there appears patent illegality in such order. He has agitated more or less same facts and grounds as before the authority /Tribunals of the Cooperative Societies for which a detailed reasoning was given in the appeal as well as in the revisional order. It was proved before that authority that defendant No.5, Mst. Ghousia Begum, was allottee of the suit property and that her plot was cancelled without notice to her. Mr. Khalid Jawaid has also argued but half heartedly that initial allotment made in favour of defendant No.5 by the defendant No.4 was illegal and unauthorised. He further argued that the husband of defendant No.5, who was working in the office of defendant No.4 obtained initial allotment by manipulation and forgery and that plaintiff is in physical possession of the suit property. Be that as it may, it would be open to the plaintiff to agitate these issues in appropriate proceedings, if permissible.

12. The upshot of the above discussion is that the plaint in the above suit is hit by the Order VII, Rule 11 (d) of C.P.C. and the same is liable to be rejected. Accordingly, plaint in the above suit stands rejected. Consequently, C.M.A. 1976 of 1996 is granted while C.M.A. 9037 of 1996 stands dismissed. A.A./Q‑14/K , Plaint rejected.