2010 PLP 157 (SCMR)

SARDAR MUHAMMAD RAZA KHAN, J.

Sheikh Mahmood Ahmed, through this petition, seeks Leave to appeal from the judgment dated 17-6-2003 of Honourable High Court of Sindh Karachi, whereby, his petition under Article 199 of the Constitution against the order dated 30-8-1990 of Deputy Registrar Co-operative Societies Karachi, was dismissed.

2. A dispute over the allotment and subsequent cancellation of Plot No.205 measuring 1027.78 square yards Sector 31-F, Korangi Road Karachi, between Shaikh Mahmood Ahmed and Dar-us-Salam Co-operative Housing Society, was referred for arbitration under section 54 of the Co-operative Societies Act, 1925. This award dated 10-4-1990 by Jameel Ahmad Siddiqui favouring the petitioner was challenged in appeal by the Society before the Deputy Registrar Co-operative Societies Karachi under section 56 of the Act. Through order dated 30-8-1990, the Deputy Registrar set aside the award and remanded the matter to Masroor Ahmad Siddiqui, Registrar's nominee for de novo trial, holding, that the "Society has not been given full opportunity of hearing and presenting its case before the Registrar's Nominee".

3. The above finding was rendered in the background that on 27-12-1989, the arbitrator had closed the Societies' case by not allowing the representative of the society to file affidavits in evidence. We have gone through the impugned judgment, the order dated 30-8-1990 of the Deputy Registrar and have also examined various order sheets of the proceedings before the arbitrator. Earlier to the closure of Societies evidence, it was repeatedly directed that the representative of the Society would be cross-examined on the dates so fixed . Suddenly, on 27-12-1989, it transpired that the representative had not filed the affidavits for which he should have been cross-examined. The Honourable High Court has rightly drawn the inference that the representative was under the impression that such affidavits stood already filed. The Society, in the circumstances, was condemned un heard and this view was rightly taken by the Deputy Registrar as well as the Honourable High Court. No exception could be taken to the order of remand.

4. Another most important aspect has lost sight of everyone, in that, the case of defendant-Society could not have been closed for want of filing affidavits. Such affidavits are required only to avoid delay and are beneficial only if accepted by the opposite party. If not, the deponent has to be cross-examined. Practically and for all intents and purposes an affidavit is a substitute of examination-in-chief. So, even if the affidavits had not earlier been filed, the arbitrator could most conveniently have examined the representative of the Society named Abid Muhammad who was very much present on 27-12-1989. The arbitrator could have recorded his examination-in-chief there and then and thereafter the latter could have offered himself for cross-examination. Viewed from either angle, the closure of Societies' evidence on 27-12-1989 was neither in accordance with law nor justice. The case stood rightly remanded. There being no force in the petition, it is hereby dismissed and leave to appeal refused. M.H./M-110/SC Petition dismissed.