ORDER SHEET

IN THE HIGH COURT OF SINDH AT KARACHI

H.C.A. No.247 of 2021

___________________________________________________________________ Date Order with signature of Judge

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FRESH CASE:

1. For order on CMA No.2192/2021 (Urgent).

2. For order on office objection a/w reply as at ‘A’.

3. For order on CMA No.2193/2021 (Exemption).

4. For hearing of main case.

5. For order on CMA No.2194/2021 (Stay).

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20^th November 2021

Mr. Abid S. Zuberi, Advocate for Appellant alongwith M/s. Ali Zuberi and Ayan Mustafa Memon, Advocates.

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1. Urgency granted.

2. Deferred.

3. Exemption granted, but subject to all just exceptions.

4&5. Instant High Court Appeal has been filed against an order dated 19.11.2021 passed by the learned Single Judge, on the original side, of this Court in Suit No.2718 of 2021, which according to learned counsel, was filed by one of the members of the appellant’s society i.e. Kathiawar Cooperative Housing Society Limited, seeking somewhat similar relief as already sought by some other members of the aforesaid Society in Suit No.-2938 of 2021, including prayer to direct the appellant’s society to hold election of the whole Managing Committee comprising of eleven (11) members of the society.

Learned counsel for the appellant submits that in the earlier Suit No.2938/2021 learned Single Judge was pleased to pass an order dated 18.11.2021 in the following terms: -

“4. ………………….. Accordingly his nomination form shall be treated as accepted and committee shall allow plaintiff No.5 to contest the election as per byelaws. Official Assignee shall observe the election process and submit report before this court as well defendant No.3 shall nominate any officer who shall also observe the election process alongwith the official assignee whereas final outcome will be decided by this court after hearing the parties.”

However, according to the learned counsel for appellant, instead of filing an appeal against the aforesaid order or seeking relief or modification of the aforesaid order, in order to circumvent the order dated 18.11.2021 passed by the learned Single Judge in the above referred suit, another Suit No.2718 of 2021 has been filed by one of the members of the appellant’s society, wherein, amongst other similar relief sought by the plaintiff, the relief regarding directions by this Court for holding election of the entire members of the Managing Committee of the Society has been sought, whereas, the learned Single Judge, after recording the contention of the learned counsel for plaintiff and having taken note of the earlier proceedings and the order dated 18.11.2021 passed by the learned Single Judge in Suit No.-2938/2021 relating to holding election of 1/3^rd of the members of the Managing Committee as per byelaws of the Society has been pleased to pass the impugned order which has infact nullified the earlier order already passed in the above suit, while issuing directions to the appellant to hold elections of all 11 seats i.e. entire Managing Committee, instead of four or five seats, following the directions passed by this court in Suit No.-2938/2021 under the supervision of Official Assignee and as per the mechanism set out by the order dated 18.11.2021. Learned counsel for the appellant further submits that through impugned order the effect of order passed by the learned Single Judge, which has neither been challenged by filing an appeal nor any modification or review has been made by the learned Single Judge to this effect, has been nullified, whereas, the entire relief as claimed by the plaintiff has been granted on the first date of hearing without notice to the defendants. Per learned counsel, presently, there are two conflicting orders relating to holding elections of the Managing Committee of the appellant’s society i.e. Kathiawar Cooperative Housing Society Limited, which otherwise has created anomaly. It has been prayed by the learned counsel that the operation of impugned order may be suspended and the election of the appellant’s society may be directed to be held as per earlier order passed by the learned Single Judge dated 18.11.2021 in Suit No.-2938/2021.

Let pre-admission notice be issued to the respondents as well as Advocate-General, Sindh, to be served through first three modes, for 25.11.2021, when objection/reply, if any, shall be filed with advance copy to the learned counsel for appellant. However, keeping in view of hereinabove facts and circumstances of the case and in order to avoid any further litigation, we deem it appropriate to defer the aforesaid election scheduled to be held tomorrow i.e. on 21.11.2021 (Sunday) till further orders by this Court.

Let copy of this order be communicated to the Official Assignee for compliance.

J U D G E

*Farhan/PS*