HIGH COURT OF SINDH AT
KARCHI
Suit No.156/2007
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Date Order with
signature of Judge
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1.
For hearing of CMA No.2442/08
2.
For issues.
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13.4.2009
Mr. Mehmood Hussain,
advocate for the plaintiff.
Mr. Shahnawaz M. Sahito,
advocate for the defendant.
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This is an application (CMA
No.2442/08) under order VII Rule 11 CPC filed by learned counsel for the
defendant praying therein for rejection the plaint on the ground that the
instant suit is barred by section 70 A of the Co-operative Societies Act 1925, which
provides that the matter touching the business of societies would not be
maintainable/entertain able by any other court, except the Registrar of
Co-operative Societies.
Learned
counsel for the plaintiff has filed counter affidavit to the above application
whereby denying that the suit is barred by section 70-A of Cooperative
Societies Act, 1925. It is further
submitted that defendant claimed that the plot in question had been cancelled
and prior to the transaction taken place between plaintiff and owner of the
plot in question, subsequently transaction between plaintiff and defendant in
the context of this suit is out of the purview of Section 54 of the Cooperative
Societies Act.
Facts of the plaintiff's case in
brief are that plaintiff's Successor-in- interest, Naseem Fatima widow of Syed
Sarder Haider purchased the plot bearing No.11-A-N/1, (Old No.9), Project
No.II, from Muhammad Farooq son of Muhammad Saeed Khan, on 30.8.2004. It was
further pleaded that successor in interest in the plaint paid an amount of
Rs.5,00,000/- through Pay order No.0005557 drawn on Bank Alfalah Limited
Karachi out of sale consideration of Rs.6,50,000/- . It is further pleaded that
deceased Naseem Fatima deposited charges with the defendant (the controlling authority)
towards membership transfer fee of Rs.8010/-, associate membership charge of
Rs.5000/-, documents charges of Rs.100/- and other charges. It is further
pleaded that defendant after receiving the relevant charges, also received all
original documents of the plot from the plaintiff's Predecessor- in-interest in
order to transfer the same in favour of deceased Naseem Fatima from the name of Muhammad Farooq. According to
the plaintiff after receiving the documents and possession letter, Allotment
Order, Site plan and other acknowledgment charges and issued acknowledgement
receipt dated 2.3.2005. Right from the life time of Successor in Interest
requested the defendant to return the original documents as well as physical
possession of the suit plot but defendant failed to do so. After demise of
Naseem Fatima the legal heirs requested the defendant for the same purpose but
the defendant refused to do the needful, therefore plaintiff has no alternative
and filed suit for physical possession, recovery of original documents,
declaration and damages of Rs.50,00,000/- with the following prayers:-
a) To direct the defendant to hand over
the physical possession of the plot bearing No.11-A-N/1, (Old No.9), Project
No.II, Vide Membership No.4042, Measuring 240 Sq. yds, situated at
Gulshan-e-Kaneez Fatima, Scheme No.33, Karachi, to the plaintiff alongwith all
its original documents to the plaintiff.
b) To direct the defendant to pay the
amount of Rs.50,00,000/- to the plaintiff in respect of damages claimed by the
plaintiff for above mentioned losses.
c) Cost of the suit and /or any other
relief, which this
The defendant has filed written
statement and at the very outset has taken legal plea that the suit is not
maintainable by virtue of section 70 A of the Co-operative Societies Act 1925
and application for rejection of plaint has been filed on the ground that suit
is barred by section 70 A of Cooperative Societies Act and suit would not be entertain
able by any court except Registrar of Co-Operative Societies. Learned counsel
for the defendant has relied on the following case law of Mst. ATIA KHANUM VS. MESSERS SAADABAD COOPERATIVE
HOUSING SOCIETY LTD. and others (2002
MLD 209) and reported as (PLD 2002
Kar.414).
i.
1999 YLR 1127 (M. Wahidullah Ansari through his legal
heirs and8 others Vs. Zubeda Sharif)
ii.
PLD 2002
Kar. 414 D.B.
iii.
2002 MLD 209 (Mst. Atia Khanum Vs. M/s Saadabad
Cooperative Housing Society Ltd. and others).
iv.
NLR 1991 Civil 41 (Sajjad Hussain Khan and others Vs.
Muhammad Haneef Siddiqui and others)
v.
PLD 1995 Kar 399 (Zia-ur-Rehman Alvi Vs. M/s Allahabad
Cooperative Housing Society Limited and 2 others).
All these citation related to cases
where no notice under Section 70 A of Cooperative Societies Act 1925 was issued
to the Registrar of Co-operative Societies which is pre-requisite for filing of
the suit and the suit of the plaintiff was rejected on that ground.
Learned counsel for the plaintiff
submitted that defendant has filed written statement and in very first para he
contended as under:-
"That the contents of para 1
are denied to the extent that the plaintiff was subject to irreparable losses
by depriving of her life and her legitimate rights. It is submitted that the
plaintiff as a matter of facts is neither bonafide member nor associate member
of society".
Mr. Mehmood Hussain learned counsel
for the plaintiff has submitted that defendant has admitted and submitted that "plaintiff
as a matter of fact is neither bonafide member nor associate member of society",
therefore provisions section 50 of the Society Act applicable to the present
case. In support of his case relied upon the case of NIZAR
ALI vs. NOORABAD COOPERATIVE HOUSING
SOCIETY LTD. ETC (NLR 1987 CLJ 467), KARACHI
PARIS COOPERATIVE HOUSING SOCIETY LTD. Vs. Mrs. DINA S. HAZARI (2004 YLR 2071), Mrs. NAILA MASOOD and 2 others
vs. SECRETARY, FOOD AND CO-OPERATION, GOVERNMENT OF SINDH and others (PLD 1999 Karachi 86) and MRS. NAILA MASOOD and 2 others Vs. THE
SECRETARY, FOOD AND COOPERATION, GOVERNMENT OF SINDH and others (1998 CLC 1532)..
I have heard arguments of learned
counsel for the parties and so also gone
through the case law relied by both the learned counsel.
Application for rejection has been
filed on the ground that under section 70-A of the Act no notice issued to the
Registrar therefore suit of the plaintiff is not maintainable and is liable to
be rejected.
Since defendant himself in written
statement has pleaded that plaintiff as a matter of fact is neither bonafide
member nor associate member of the society in such circumstances suit does not
appear to be barred by the provisions of sections 54 and 70 of the Co-operative
Societies Act, 1925. Therefore application for rejection of suit under order
VII Rule 11 CPC has no force and is not maintainable. Plaintiff has only remedy
to avail by filing of the present suit.
Application is dismissed with no
order as to cost.
The matter is adjourned for proposed
issues.
JUDGE