2016 PLP 1751 (CLC)

MIRZA VIQAS RAUF, J.

The petitioners through instant petition have assailed the judgment and decree dated 12.07.2007 passed by the learned Additional District Judge Faisalabad, whereby while allowing the appeal of respondents the judgment and decree dated 02.05.2007 passed by the learned Civil Judge Faisalabad was set aside and the suit was decreed.

2. Precisely the facts necessary for adjudication of instant petition are that the respondents/plaintiffs filed a suit for declaration and permanent injunction against the petitioners/defendants before the learned Senior Civil Judge Faisalabad. In the suit the respondents/ plaintiffs assailed the legality and validity of resolution dated 08.08.2000 and proceedings of the meeting summoned by the petitioner No.1/ defendant No.1 for the purpose of amendment of bye-laws of Railways Employees Cooperative Housing Society.

3. The suit was resisted by the petitioners/defendants and a joint written statement was filed. The petitioners/respondents at the very outset raised an objection with regard to the jurisdiction of the learned Civil Court, moreover the assertions contained in the plaint were also controverted.

4. From the divergent pleadings of the parties, the learned trial court framed the following issues:

ISSUES

1. Whether this court has jurisdiction to try this suit? OPD

2. Whether meeting dated 8.8.2000 of the society was rightly held according to Rules ? OPD

3. Whether the plaintiff is entitled to the decree as prayed for? OPP

4. Relief.

5. After framing of issues, both the parties were directed to lead their evidence. In pursuance thereof the respondent No.1 himself appeared as PW-1. In the documentary evidence record relating to list of defaulter of the society was tendered as Exhibit.P-1 and proceedings dated 08.08.2000 as Exhibit.P-2 to Exhibit.P-4 respectively. On the other hand Syed Ahmed Ali Shah appeared as DW-1, who also placed on record proceedings of the Society dated 08.08.2000 as Exhibits.D1/1 to 3.

6. Upon completion of evidence of both the sides the learned Trial Court vide its judgment and decree dated 02.05.2007 dismissed the suit. The respondents/plaintiffs, feeling aggrieved from the said judgment and decree, filed an appeal before the learned Additional District Judge, Faisalabad. The appeal was contested by the petitioners and the same was allowed vide judgment and decree dated 12.07.2007.

7. Learned counsel for the petitioners submitted that the suit was filed without impleading the Society which was not maintainable. Learned counsel added that the respondents in their suit challenged the Proceedings and Resolution of the Society which are internal affairs and thus the Civil Court was vested with no jurisdiction to entertain the suit and for this reason the learned Civil Judge dismissed the suit. Learned counsel for the petitioners argued that the learned Additional District Judge has erred in law while setting aside the well-reasoned judgment of the learned Civil Judge. In support of his contentions learned counsel placed reliance on the case of "Evacuee Trust Property Board and others v. Mst. Sakina Bibi and others" (2007 SCMR 262), "Messrs Sunshine Biscuits Ltd. v. Muhammad Hassan Lodhi and another" (PLD 1982 Lahore 189), and "Ch. Abdul Hameed and another v. Bashir Ahmad Shauq and 3 others" (2006 CLC 741).

8. Conversely learned counsel for the respondents submitted that the fresh election has taken place during the pendency of this petition thus the same has become infructuous. He added that since no objection was raised with regard to the competency of the suit at the time of trial, so the petitioners are precluded to raise the same before this Court. Learned counsel relied on "Ghulam Muhammad Daudpota v. Tausif Ahmad" (1987 MLD 1267).

9. I have heard the learned counsel for the parties and perused the record with their able assistance.

10. It is evident that initially the plaint was rejected by way of judgment and decree dated 29.03.2001 in terms of Order VII Rule 11 of The Code of Civil Procedure (V of 1908). The said judgment and decree was assailed by the respondents/plaintiffs in appeal before the learned Additional District Judge Faisalabad. The appeal was allowed vide judgment and decree dated 19.06.2001 and the matter was remanded to the learned Civil Judge. In post-remand proceedings the suit was again dismissed vide judgment and decree dated 02.05.2007. The examination of plaint clearly reflects that the respondents/plaintiffs not only called in question the proceedings of the Society but the Resolution, which was passed on 08.08.2000, amending the bye-laws of the Society. The respondents were the Members of the Society and there is no denial that their grievance is with regard to the business of the Society and the proceedings which were the outcome of the proceedings conducted under the Co-operative Housing Societies Act, 1925 (hereinafter shall be referred as The Act of 1925). Section 70-A of the Act, 1925 clearly places an embargo upon the exercise of jurisdiction by any Court or Authority except mentioned therein. The petitioners/defendants specifically pleaded this bar and an issue to this effect was also framed by the learned Trial Court as issue No.1. The learned Civil Judge, while taking into consideration this legal issue was right in its approach to hold that the Civil Court has no jurisdiction to entertain the dispute regarding affairs of the Society which are conducted under The Act, 1925.

11. By virtue of Section 23 of The Act, 1925, every society is a body cooperate which can be sued in the manner defined therein. The respondents did not implead the Society neither they advert to the provisions of Section 23 of the Act ibid while filing the suit. Section 70 of The Act, 1925 also lays down certain pre-conditions for filing of suit against the society or any of its member. The same reads as under:- Section-70 "Notice necessary in suits.

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." Admittedly no notice, as required by the above provision of law was served prior to the filing of the suit. The provisions of Section 70 are mandatory and a failure to comply with the requirement of that Section will render the suit incompetent. Reliance in this respect can be placed on the cases of Muhammad Issa Abbasi through Legal Representatives and others v. Abdul Qadir through Legal Heirs and others" (PLD 2013 Sindh 60), "Registrar, Cooperative Societies N.-W.F.P Peshawar and 3 others v. Cooperative Society Muhammad Amin Kallay through Finance Secretary" (PLD 2008 Peshawar 35), "Syed Sultan Ali through legally constituted Attorney v. Sahibzada Frogh Najam Najmi and 2 others (2009 CLC 477), and "Evacuee Trust Property Board and others v. Mst. Sakina Bibi and others" (2007 SCMR 262).

12. The approach of learned Additional District Judge, while entertaining the appeal and reversing the judgment of the learned Civil Judge clearly reflects that the learned lower appellate Court was perhaps oblivion of these mandatory provisions of law. The learned Lower Appellate Court treated the suit in hand as an ordinary suit. While dealing with issue No.1 the learned Additional District Judge has offered certain reasoning for avoiding the implication of section 70-A of the Act, 1925, which are not tenable under the law. The dictates of law cannot be altered on the happening and non-happening of any event as a result thereof. It is well-settled law by now that when a thing is required to be done in a specific manner by some law then that can only be done in the manner prescribed but in no other way. Reliance in this respect can be placed on the cases of "Muhammad Saleem Chotia, Advocate v. Zafar Iqbal Owasi, Advocate Bahawalnagar and 4 others" (PLD 1999 Lahore 446) and "Muhammad Sharif v. Station House Officer, Police Station, City, Hafizabad and another" (PLD 1997 Lahore 692).

13. Though in case of conflict between the judgments of the learned Civil Judge and the learned Appellate Court, the preference and regard will be given to the later but this is not the rule of Universal application. This Court cannot shut its eyes while exercising the revisional jurisdiction and cannot assume the role of post-office just to affix its stamp on the judgment passed by the learned lower appellate court. This Court has to examine the legality of the judgment under challenge either it is of civil court or the learned lower Appellate Court. Since the learned Additional District Judge has clearly departed from the well-settled principles of law, while setting aside the well-reasoned judgment of the learned Civil Judge, so it is incumbent upon this Court to intervene in the matter in exercise of jurisdiction under Section 115 of The Code of Civil Procedure (V of 1908).

14. For what has been discussed above, the instant petition is allowed and the judgment and decree dated 12.07.2007 passed by the learned Additional District Judge is set aside as the same offends the well-settled principle of law. The learned Additional District Judge has committed a material irregularity by allowing the appeal filed by the respondents. As a sequel of above, the instant petition is allowed with no order as to costs. SL/M-186/L Petition accepted.