THE HIGH COURT OF SINDH, KARACHI

Constitution Petition No.D-4537 of 2014

 

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Date                   Order with Signature(s) of Judge(s)

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                  Present:

 

                                                        Aqeel Ahmed Abbasi, J.

        Abdul Maalik Gaddi, J.

 

Petitioner             :         M/s. Dehli Co-operating Housing Society

through its Chairman.

 

Respondent No.1  :         The Province of Sindh

through Secretary Co-operative Sindh.

 

Respondent No.2  :         The Registrar Co-operative Societies Sindh

through its Karachi Camp Office.

 

Respondent No.3  :         The Sindh Co-operative Housing Authority.

 

Respondent No.4  :         Muhammad Yameen Lutfi (deceased)

through his legal heir Muhammad Aijaz Lutfi.

 

Respondent No.5  :         Vth Additional District & Sessions Judge,

                                      Karachi (East)

 

Respondent No.6  :         IVth Senior Civil Judge and Rent Controller

Karachi (East).

 

1. For hearing of Misc. No.22022/2014.

2. For hearing of Main Case.

 

Mr. Khalil Ahmed Siddiqui Advocate for the Petitioner.

Mr. Muhammad Mushtaq Qadri Advocate for Respondent No.4.

Mr. Saifullah, A.A.G. alongwith Ms. Nasreen Sehto State Counsel.

 

Date of hearing              :         27.09.2016

 

Date of Judgment          :         27.09.2016

 

J U D G M E N T

 

Abdul Maalik Gaddi, J. Through instant constitution petition, the petitioner is aggrieved by the Order dated 16.08.2014 passed by the learned Additional District and Sessions Judge-V, Karachi (East) in Civil Revision Application No.29 of 2013, whereby he maintained the order dated 21.02.2013 (wrongly mentioned as dated 08.03.2013 in the petition) passed by the learned Senior Civil Judge-IV, Karachi (East) in Execution Application No.09 of 2012, Arbitration Case No.132 of 1966 by allowing the aforesaid execution application. The petitioner in this petition also challenged the validity of issuance of certificate for execution dated 24.05.2012 by the Registrar, Cooperative Societies, Sindh in favour of respondent No.4.

 

2.       The facts necessary for the disposal of this petition are that the petitioner is judgment debtor in Execution Application bearing No.09 of 2012 filed by respondent No.4 for execution of Award dated 10.12.1966 in Arbitration Case No.132 of 1966 awarded by the Registrar’s Nominee on the said date, the said execution application filed by the respondent No.4. The execution application has been contested by the judgment debtor by stating that execution application filed by the legal heir of Muhammad Yameen Lutfi after twenty eight (28) years, therefore, the same was time barred but the learned Court below did not appreciate this point and allowed the execution application in favour of respondent No.4. It appears from the record that on 18.12.1952, plot No.5, Block-3 was allotted to one Abdul Basit for the consideration of Rs.6000/- and on 18.08.1956, physical possession of the plot was also handed over to him while as per legal heir of decree holder the plot was allotted to his father Muhammad Yameen Lutfi (deceased) in balloting dated 26.03.1951 whereupon, he paid a total sum of Rs.5330/- to the society, subsequently, society cancelled the allotment on the ground that due to alteration having been made in the general lay out plan of the society by the Karachi improvement trust, the whole position of the plots in Block-3 had been affected and that a result thereof it had become necessary to make new allotment. The said Abdul Basit protested against the allotment in favour of the said allottee, which was according to him was illegal, as it was made after the plot and already been allotted to him, failed to get any relief from Housing Society, the said Abdul Basit filed an application before the Registrar of the Co-operative Societies under Section 54 of the Sindh             Co-operative Societies Act, 1925 on 17.11.1996, who referred the dispute to the Arbitrators. One Arbitrator was nominated by him and one Arbitrator each to be nominated by the contesting parties while Registrar of the Co-operative Society given award to Muhammad Yameen Lutfi on 10.12.1966. The said order was challenged under Section 56-A of Co-operative Societies Act, 1925 and after considering the record said order was set-aside by the Deputy Registrar vide order dated 05.02.1968, however, order of Deputy Registrar was challenged by filing revision under Section 64-A of the Co-operative Societies and after considering the arguments and record said appeal was allowed whereby impugned order was set-aside. Record reveals that parties have approached to the Hon’ble Supreme Court of Pakistan for redressal of their grievances in Civil Appeal No.K-45 of 1973, which was finally disposed of vide Judgment dated 18.01.1984.

 

3.       It is contended by the learned counsel for the petitioner that award was passed in favour of respondent No.4 on 10.12.1966 and finally matter was decided by the Hon’ble Supreme Court of Pakistan on 18.01.1984 in Civil Appeal No.K-45 of 1973, whereas, the Execution Application No.09 of 2012 was filed by respondent No.4 on 13.06.2012 before the Senior Civil Judge-IV, Karachi (East) after about twenty eight (28) years of the final judgment passed by the Hon’ble Supreme Court of Pakistan. Per learned counsel, the execution application submitted before the executing Court was hopelessly time barred, therefore, impugned order dated 21.02.2013 and order dated 16.08.2014 passed by the two Courts below are void, ab-initio, unlawful and illegal, hence, the same are liable to be set-aside. Learned counsel further submits that in order to bring the case within limitation, respondent No.4 obtained Certificate for Execution under Section 59(1)(a) of the Co-operative Societies Act, 1925 dated 24.05.2012 in collusion with respondent No.2, who has no such authority to issue said certificate at a very belated stage. Per learned counsel, Section 59(1)(a) of Co-operative Societies Act, 1925 is not applicable to the facts and circumstances of the present case. During the course of arguments, learned counsel draws our attention to the various documents available in case file and was of the view that in view of the facts and circumstances of the case, this petition is liable to be allowed as prayed. In support of his contention, learned counsel has relied upon the case of Mehrunnisa and others v. Assistant Registrar, Co-operative Societies (Recoveries) reported as 2003 MLD 1927.

 

4.       Conversely, learned counsel for contesting respondent No.4 while relying upon the comments filed by him in this petition, has supported the orders passed by the two Courts below in execution application by arguing that both the Courts below have passed the impugned orders after proper appreciation of facts and law involved in the case. Per learned counsel, in this matter, award was passed in favour of the respondent No.4 on 10.12.1966 and this case has chequered history. Parties involved in this case went up to the Hon’ble Supreme Court for redressal of their grievances and the Hon’ble Supreme Court has also recognized the claim of respondent No.4 in its order dated 18.01.1984 available on record. Per learned counsel, the petitioner has filed instant petition just to frustrate the order of the Hon’ble Supreme Court and according to him, as the Certificate for Execution was signed by the Registrar Co-operative Societies Sindh on 24.05.2012, which has become a decree of Civil Court in view of Section 59(1)(a) of the Co-operative Societies Act, 1925 after signing the same by the Registrar and soon after issuance of the same, the respondent No.4 approached the Civil Court for execution of the same, which was accordingly, within time. Per learned counsel, through instant petition, the petitioner has also challenged the validity of issuance of Certificate for Execution dated 24.05.2012 issued by the Registrar Co-operative Societies Sindh in favour of respondent No.4, which according to him, is against the verdict of the Hon’ble Supreme Court and further submits that even otherwise, the said certificate was issued on 24.05.2012 but the instant petition has been filed on 03.09.2014 after the delay of about two years and four months, which has not been absolutely explained by offering any reason, as such, under these circumstances, this constitution petition is not maintainable in law and is also hit by principle of laches, which is liable to be dismissed.

 

5.       Learned Additional Advocate General, Sindh assisted by learned State Counsel submits that the issue involved in this case is old one, therefore, the same may be decided on the basis of material available on record.

 

6.       We have heard learned counsel for the parties at a considerable length and perused the record with their assistance.

 

7.       As per record, it appears that plot in dispute namely, Plot No.5, Block No.3 was actually allotted to respondent No.4 on 26.03.1951, as a result of a ballot held by the Society on that day, whereupon, he paid a total sum of Rs.5330/- to the Society towards the price of the aforesaid plot. Subsequently, the Society cancelled the aforesaid allotment on the alleged grounds that due to alterations having been made in the general lay out plan of the Society by the Karachi Improvement Trust, the whole position of the plots in Block No.3 had been effected and as a result thereof, it had become necessary to make fresh allotments. In consequence thereof, Plot No.48 measuring 709 square yards in Block No.3 was allotted to him instead of Plot No.5. However, despite his best efforts, he could not secure possession of either of the aforesaid plots from the Society. This obliged him to apply to the Registrar, Co-operative Societies, Karachi for reference of the dispute to arbitration under Section 54 of the Act. Ultimately, the Arbitrator made an award in his favour on 10.12.1966. It also appears from the record that the said award of the Registrar’s nominee was challenged by the Society by filing an appeal under Section 56 of the Act but the said appeal was dismissed. However, the controversy with regard to the allotment of the plots went up to the Hon’ble Supreme Court and the Hon’ble Supreme Court while disposing of the Civil Petition No.K-45 of 1973 filed by one Abdul Basit and while recognizing the claim of respondent No.4, has observed at pages No.16 and 17 of Judgment dated 18.01.1984, which reads as under:-

 

“…….Since the dispute between Respondent No.4 and the other contestants was never referred to the arbitration, the award could not be deemed to be incomplete if nothing was said therein about Respondent No.4. In fact, not being a party before the Arbitrators there was no question of his claim being discussed or determined by them. He is holder of an award made on 10.12.1966 in his favour, which does not appear to have been ever set aside. According to this award, he was entitled to the possession of Plot No.5 or Plot No.48 or another plot of 1000 sq.yds or more in the Societies’ area or by purchase from the market which the Society was bound to provide him. In terms of this award, in case Plot No.5 or Plot No.48 cannot be given to him, resort can be had to the other options mentioned in the award. The Society, we may observe, is bound in law to implement this award and it is high time that it did so.”

 

It also appears from the record that in view of the above order, the Registrar Co-operative Societies Sindh issued Certificate for Execution dated 24.05.2012 in favour of respondent No.4 and on the basis of this Certificate, respondent No.4 filed Execution Application No.09 of 2012 before the learned Senior Civil Judge-IV, Karachi (East), which was contested by the petitioner on the ground that execution application has been filed after the lapse of twenty eight (28) years from the date of Judgment of the Hon’ble Supreme Court as such, the same is time barred. Record further reveals that the executing Court vides detail order allowed the execution application, which was maintained by the revisional Court in its Judgment dated 16.08.2014. Admittedly, the execution application has been filed in the year 2012 after receipt of Certificate for Execution. In our view, under the facts and circumstances of the case, the time factor does not come in the way of decree holder/respondent No.4, as the parties were in litigation for a long time and the execution application could not be filed for want of Certificate of Registrar, which has been received by the decree holder/respondent No.4 in the year 2012 and then he filed execution application. For the sake of convenience, it would be advantageous to reproduce Section 59(1)(a) of the Co-operative Societies Act, 1925, which reads as under:-

 

59(1)(a) on a certificate signed by the Registrar or a liquidator, be deemed to be a decree of a Civil Court and shall be executed in the same manner as decree of such Court.”

 

We have gone through the Article 181 of the Limitation Act 1908, which says that execution of a decree is to be made within three years of the date of accrual of right to apply. Here in this case, the present execution application has been filed after receipt of Certificate for Execution, which was issued on 24.05.2012 and the execution application was filed on 13.06.2012, which appears to be within time, therefore, the plea as raised by the petitioner in this regard, has no force, as both the Courts below have rightly decided by holding that execution application filed by respondent No.4 was within time. The case law cited by the learned counsel for the petitioner has been perused and considered by us but did not find applicable to the facts of the present case.

 

8.       In the instant case, the petitioner has also challenged the validity of issuance of Certificate for Execution in favour of respondent No.4 without mentioning any reason for challenging the same after a period of about two years and three months, which appears to be hit by principle of laches. The Hon’ble Supreme Court in the case of Jawad Mir Muhammad and other v. Haroon Mirza and others reported as PLD 2007 Supreme Court 472 in paragraph No.27 of the aforesaid judgment has held as under:-

                  

“27. The next issue which requires consideration is whether constitutional petition filed by the appellant was hit by laches and was liable to be dismissed on this ground. The High Court in its judgment observed that there was delay of 16 months in filing the constitutional petition. Mr. Naeemur Rehman strenuously contended that a constitutional petition involving violation and infringement of fundamental rights of the citizens could not be thrown out on the ground of delay in filing the same and heavily relied on the observations of this Court in the case of Ardeshir Cowasjee v. Karachi Building Control Authority 1999 SCMR 2883. From a perusal of the judgment in the cited case it is observed that this Court while dilating on the question of laches held that laches per se is not a bar to the constitutional jurisdiction and a question of delay in filing would have to be examined with reference to the facts of each case. It was finally concluded that laches of several years could be overlooked if the facts of the case and dictates of justice so warranted or laches of few months may be fatal. It is a settled proposition “that the delay defeats equities or equity aids the vigilant and not the indolent”. Relying on the above maxim this Court as well as High Courts of the Country have refused to come to the aid of a party who had not been diligent, vigilant and acted in a prudent manner.”

 

Here in this case, admittedly, Certificate for Execution, which has been challenged by the petitioner, issued on 24.05.2012 by the Registrar Co-operative Societies Sindh in favour of respondent No.4 on the basis of which, the execution application has been filed, which was allowed by the trial Court and the claim of respondent No.4 has also been recognized by the Hon’ble Supreme Court in its Judgment dated 18.01.1984, however, this petition has been filed on 03.09.2014 after the delay of more than two years and three months without mentioning any reason for challenging the same. No plausible or logical justification has been offered in the memo of petition to show as to why the petitioner was waiting such a long time to approach this Court. Question of laches in the case of validity of issuance of Certificate for Execution has much significance and due to inordinate delay the things and circumstances are enormously changed. Even no reason/ground is agitated before this Court to maintain this petition after the expiry of said period. During the course of arguments, we have specifically asked the question from the learned counsel for the petitioner that after issuance of Certificate for Execution, why he did not immediately challenge the same and how the said Certificate is against the law, no answer available with him. We again asked the question how the present petition is maintainable after passing the order of the Hon’ble Supreme Court, he again did not reply satisfactory.

 

9.       For the above discussions and reasons, we found that the present petition is not maintainable on merits in law and is also hit by principle of laches, which is dismissed alongwith listed application, with no order as to cost.

 

10.     The above are the reasons for the short order announced by us on 27.09.2016, whereby the instant petition was dismissed alongwith listed application.

 

JUDGE

 

 

JUDGE

 

 

 

 

 

 

Faizan/