ORDER SHEET

HIGH COURT OF SINDH AT KARACHI

C. P. No.D-1411 OF 2013

C.P. No.D-534 of 2013 (new C.P. No.D-7414 of 2015).

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Date Order with signature of Judge

1.For hearing of Misc. No.7183/2013.

2.For hearing of main case.

15-12-2015.

Syed Fazal ur Rehman, Advocate for the Petitioner

in C.P. No.D-1411/2013 and for Respondent No.5

in C.P. No.D-7414/2013.

Mr. Jamil Ahmed Rajpur, Advocate for Petitioner

in C.P. No.7414/2015 and for Respondent No.5 in

C.P. No.D-1411/2013.

Mr. Muhammad Azhar Faridi, Advocate for the

Respondent No.6.

Mr. Miran Muhammad Shah, Additional A.G. Sindh.

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Through this common order we propose to dispose of both the abovenoted petitions. C.P. No.D-7414/2015 (old No.D-534/2013) filed by Petitioner Judicial Officers Cooperative Housing Society Ltd. (hereinafter referred to as respondent No.5/Society) and C. P. No.D-1411/2013 filed by Petitioner Mohammad Abdullah Khan under Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973, as both the petitions are in respect of allotment of residential Plot No.178, measuring 500 Sq. Yds. situated in Judicial Officers Co-Operative Housing Society, Deh Ganju Takker, Taluka Shah Latifabad and District Hyderabad Sindh (hereinafter referred to as ‘subject plot’).

2. In nutshell, the brief facts of the case are that subject plot was allotted to the Petitioner on 05.06.1999 on payment of installment as mentioned in Para-3 of the petition, however, petitioner allegedly defaulted in payment of internal development charges, therefore, the Respondent No.5 cancelled the allotment as well as membership of the petitioner after adopted due procedure and allotted the subject plot to another waiting member i.e. respondent No.6 in C.P. No.1411/2013 namely Syed Mohammad Jamil Raza Zaidi on 05.6.2007 on payment of entire amount of development charges and cost of land. Petitioner’s Attorney Mst. Rubina Tanveer filed an Application U/S 54 of the Co-operative Societies Act bearing ABN No.07 of 2009 before the Respondent No.3 and the case was decided in her favour through Award dated 05-05-2009. Respondent No.5 feeling aggrieved with the award, filed appeal bearing Appeal No.22 of 2009 before the Respondent No.4 under Section 56 of the Co-operative Societies Act, 1925. Respondent No.6 also filed an application in the appeal for impleading him as party at the appellate proceedings as the claim of the Respondent No.6 that he had purchased the aforementioned plot in the year 2007 after cancellation of the aforesaid plot by the Respondent No.5. The respondent No.4 dismissed the appeal alongwith application filed by applicant/intervenor Syed Mohammad Jamil Raza Zaidi. Respondent No.5/Society assailed the said order in Revision before the Minister for Cooperation/Respondent No.2, which too was dismissed 28.01.2013. After dismissal of revision filed by respondent No.5/Society, an application for review under Order 47 Rule 1 r/w. Section 114 & 115 CPC was filed by Syed Mohammad Jamil Raza Zaidi, which was accepted and matter was remanded to Registrar Cooperative Society Sindh.

We have heard the arguments of the learned counsel for the respective parties and perused the material available on record. There is no denial of the fact that initially the subject plot was allotted to petitioner Mohammad Abdullah Khan, which was cancelled due to non-payment of development charges. It is also an admitted fact on record that the respondent No.5/Society has taken instance throughout the proceedings that the subject plot after its cancellation was allotted to another waiting member Syed Mohammad Jamil Raza Zaidi on 05.6.2007, who paid entire cost of the land and development charges. It is also an admitted fact that attorney of the petitioner filed application under Section 54 of the Sindh Cooperative Societies Act, 1925 before the respondent No.4 on 18.03.2009 much after the allotment of subject plot to respondent No.6 without impleading him as party. The respondent No.5/Society filed written statement clearly stating that petitioner’s plot was cancelled and allotted to another waiting member. In the appeal, respondent No.5/Society mentioned the name of respondent No.6, to whom the subject plot was allotted. The appeal was failed thereafter the respondent No.5/Society filed revision, which was also dismissed. Thereafter on the review application filed by respondent No.6, the respondent No.2 without assigning any reasons passed a slipshod order remanding the case to the Registrar Cooperative Society, Sindh.

Indeed, the mistake is apparent on the face of record as there is no provision of law in Cooperative Societies Act, 1925 and Cooperative Societies Rules, 1927 to review/recall its own final order passed under Section 64-A of the Cooperative Societies Act, 1925. At the same time, we cannot over looked the fact that the respondent No.5/Society allotted the subject plot to respondent No.6, who paid the entire cost of the land and development charges and the respondent No.3 and 4 passed the orders behind his back and no opportunity of being heard was afforded to the respondent No.6, which is a clear violation of principle of natural justice. It is settled principle of law that all rules of procedure are meant to promote cause of justice and, therefore, they could not be used as an engine of oppression against a party to suit and the Courts do not favour non-suiting of parties on mere technicalities and always prefer decision on merits. It is also a well-settled principle of law that no party is allowed to take benefit of error of Court committed at behest of other side. It is an admitted position that respondent No.6 is lawful allottee of the subject plot and paid the entire cost of land and development charges he cannot be condemned unheard as he is an essential and necessary party for the just and fair decision of the case. To fortify this view, reference can be made to the case of SALIMA BEGUM and 4 Others vs. MST. SARDARAN BIBI and 4 Others (PLD 1995 SC 406).

In view of the above, we set-aside the orders dated 05.05.2008, 17.10.2009, 28.01.2009 and the order passed on review application dated 18.2.2013 and remand the case to the respondent No.4/Registrar, Cooperative Society Sindh to decide the application of the Petitioner after impleading the Respondent No.6 as a party and giving opportunity to all concerned of being heard and adduce their evidence, if any. It is expected that such exercise will be completed preferably within 45 days from the date of receipt of this order.

Both the petitions stand disposed of in the above terms.

JUDGE

JUDGE