1986 PLP 335 (MLD)

(b) Trade Organizations Act (XLV of 1961)‑‑ ‑‑‑S.12‑‑Civil Procedure Code (V of 1908), O.VII, R.11‑‑Civil Court‑ Jurisdiction‑‑Complete ouster of jurisdiction of Civil Court not inferable from provision of S.12 of Trade Organizations Act, 1961‑‑Trial Court assuming jurisdiction in matter and rejecting application moved by petitioner‑defendant for rejection of plaint filed by respondent plaintiff‑‑Interference declined in order of trial Court‑‑Held, when question of jurisdiction was not yet foreclosed, it was open to petitioner to raise objection in written statement and trial Court could frame issue and try same, alongwith other issues in suit.‑‑[Jurisdiction]. Khalid Latif and K. A. Wahab for Applicants (in both R . A . Nos.47 and 61 of 1986). K.A. Wahab for Applicant No.1 (in R.A. 61 of 1986). Abdul Hamid Lakhani for Respondents. Date of hearing: 5th March, 1986. This order will govern the disposal of above‑noted two Revision Applications Nos.47/86 and 61/86. Both these Revision Applications are filed bar the Senior Vice‑President and the Officiating Secretary of Karachi Chamber of Commerce and Industry. The following facts may be stated here in brief which are relevant for the purposes of disposal of the above‑noted two Revision Applications. The respondents in the above Revision Applications instituted Suit No.11 of 1986 seeking declaration and permanent injunction against the applicants. The declaration sought in the suit was to the effect that the petitioner No.2 who was appointed as ‑the officiating Secretary from 14‑10‑1985 ceased to hold that office after 13‑11‑1985 and, therefore, the agenda dated 18‑12‑1985 issued by him for the meeting held on 22‑12‑41985 and the resolutions passed thereon were without lawful authority and without jurisdiction. A permanent injunction was claimed in the suit to restrain the petitioners and their servants, agents and successors from implementing the resolution dated 22‑12‑1985. It may be mentioned here that the suit was instituted on 4‑1‑1985 after about 13 days of the passing of the impugned resolution by the Managing Committee of Karachi Chamber of Commerce and Industry. Alongwith the suit the respondents moved an application under Order XXXIX, Rules 1 and 2, C.P.C. seeking a temporary injunction restraining petitioner No.2 from acting as the officiating Secretary of the Chamber on which ad-interim injunction was granted. The petitioners on appearance in the suit opposed the ad-interim injunction and also moved for rejection of the plaint under Order VII Rule 11, C.P.C. The trial Court after hearing the parties vacated the ad-interim injunction and rejected the application under Order XXXIX, Rules 1 and `2, C.P.C. and also rejected the application of petitioner under Order VII, Rule 11, C.P.C. Against the order rejecting the application of petitioners under Order VII, Rule 11, C.P.C. the petitioners filed Revision No.47 of 1986. Against rejection of application under Order XXXIX, Rules 1 and 2, C.P.C. for grant of temporary injunction respondents preferred Civil Miscellaneous Application No.8 of 1985. This appeal of respondents was fixed for hearing before the Second Additional District Judge, Karachi on 18‑2‑1986 but the same could not proceed on that date because of late arrival of the counsel of petitioners and was adjourned to 20‑3‑1986. The learned Judge, while adjourning the hearing of appeal however directed the petitioners not to implement the resolution, dated 22‑12‑1985. This interim order passed by Second Additional District Judge on 18‑2‑1986 is subject of challenge in Revision Application No.61 of 1986. It is contended by the learned counsel for the applicants in the above revision application that the resolution dated 22‑12‑1985 was passed by the Managing 'Committee in accordance with the provisions contained in the Memorandum and Articles of Association and as such the same could not be interfered with by the civil Court. It is urged that although in the meeting of the Managing Committee held on 12‑10‑1985 the petitioner was appointed to officiate as Secretary in place of Agha M.Ghous, who had proceeded on leave for a period of one month only from 14‑10‑85 but it is fact that he continued to perform the functions of officiating Secretary until 22‑12‑1985 without objection from any member of the Managing Committee and by the impugned resolution dated 22‑12‑1985 the intervening period was regularised when petitioner No.2 was appointed to officiate as Secretary from the date Agha M.Ghous resigned and until alternate arrangement was made for the post. It is not disputed before me by l the respondents that .the Managing Committee was possessed of the powers to fill up the vacancy and to make appointments from time to time. It is also not disputed that the Managing Committee was also possessed of powers to pass resolution to ratify any past act of any official of the Committee. The only objection of respondents to the impugned resolution dated 22‑12‑1985 is that on the date the agenda for the said meeting was issued by respondent No.2 he was not the Secretary of the Association and as such the resolution was without jurisdiction. This point precisely arises for decision in the suit and the trial Court had refused to grant interim injunction in this regard at interlocutory stage and against the decision, of Trial Court the Miscellaneous appeal is pending decision. In these circumstances, the learned 1st appellate Court should have declined to pass any interim order during pendency of the appeal as it is an admitted position that in the meetings held on 24‑11‑1985 and 8‑12‑1985 the respondents not only participated but passed several resolutions. Even in the impugned meeting dated 22‑12‑1985 the only objection raised by one of the respondents was that there was a lacuna in the meeting as the officiating Secretary could not act after 14th November, 1985 after expiry o initial appointment. The learned counsel for the applicants raised several contentions on merit to show that there was neither prima facie case nor balance of convenience nor threat of any irreparable injury to justify grant of interim injunction but I will refrain from expressing any opinion thereon as the Miscellaneous Appeal is still pending and is fixed for regular hearing on 20‑3‑1986. I accordingly accept Revision Application No.61 of 1986 and set aside the interim order dated 18‑2‑1986 passed by the first appellate Court. The appeal may be disposed of by the said Court expeditiously. In so far Revision Application No.47 of 1986 is concerned the only contention of the learned counsel for the petitioner is that the proceedings before the Court were barred under section 12 of the Trade Organization Act, 1961. While opposing the above revision, the learned counsel for the respondents contended that the arbitration tribunal mentioned in section 1,2 has not yet come into existence nor there are rules framed for purposes of conducting such arbitration. Although it was contended by the learned counsel far the applicants that such a tribunal did exist and such rules are also framed but neither any material was placed before the trial Court nor in this revision to reach the conclusion with regard to existence of such a tribunal and existence of rules governing such arbitration proceedings. Even otherwise from reading of section 12 of the Trade Organization Act, 1961 relied by the learned counsel for the petitioners the complete ouster of the jurisdiction of the civil Court cannot, be interfered. At best the provisions of section 12 of Trade Organization Act, 1961 are comparable with section 54 of the Co‑operative Societies Act which did not oust the jurisdiction of civil Courts completely. I, therefore, find no reason to interfere with the order of trial Court rejecting application under Order VII, Rule 11, C.P.C. It may, however, be mentioned here that the question of jurisdiction is not yet foreclosed and it is open to the petitioners to raise such objection in the written statement and if such an objection is raised an issue may be framed by the trial Court in this regard which may be tried alongwith other issues in the', suit. With these observations Revision Application 47 of 1986 is dismissed. In the circumstances of the case I will make no order as to costs. M . Y . H . Petition dismissed.