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Official Citation: 2023 CLC 504
Court / Jurisdiction: Islamabad High Court
Year of Decision: 2023
Decision Date: 2023-12-31
Parties: Sultan Ahmed Hassan and another vs T & T Employees Cooperative JUDGMENT
Ruling Summary: This decision was rendered by the Islamabad High Court on 2023-12-31, officially reported as 2023 CLC 504. In this matter between Sultan Ahmed Hassan and another and T & T Employees Cooperative JUDGMENT, the court adjudicated key questions of statutory construction, procedural regularity, and legal precedent under Pakistani law.
Core Holding: The honorable bench evaluated governing statutory provisions and judicial authorities to establish the rights of the parties, delivering the binding reasoning set out below.
Case cited as 2023 CLC 504
Court Name: Islamabad High Court Judge(s): Saman Rafat Imtiaz Title:Sultan Ahmed Hassan and another vs T & T Employees Cooperative
JUDGMENT
Reported As: 2024 MLD 1897 Result: Appeal dismissed Judgment
JUDGMENT SAMAN RAFAT IMTIAZ, J. The Appellants/Plaintiffs [Sultan Ahmed Hassan and Sultan Gul Hassan] have filed the instant Regular First Appeal to assail the Judgment and Decree dated 15-09-2018 ("Impugned Judgment") passed by the Court of the learned Civil Judge 1st Class (West), Islamabad ("Trial Court"), whereby the Suit filed by the Appellants/Plaintiffs was dismissed. 2. The relevant facts of the case as per the Memo of Appeal are that the Appellant/Plaintiff No. 1 and Appellant/Plaintiff No.2 were allotted Plots Nos. 688 and 689 ("Subject Plots") respectively vide separate Allotment Letters dated 21.06.2004 issued by the Respondent/Defendant No. 1 [T & T Employees Cooperative Housing Society]. The Appellants/Plaintiffs claim that possession of the Subject Plots was delivered to them vide Letters No.022 and 021 dated 30.11.2010 and 01.12.2010 respectively and that they raised boundary walls after taking possession in the month of December, 2010. They alleged that the Respondent/Defendant No.1 demolished the boundary walls of the Subject Plots without any lawful authority and that the matter was reported to Respondents/Defendants Nos.2 and 3 [The D.C./Registrar, Cooperative Department, ICT and the Circle Registrar, Cooperative Department, ICT] but they failed to fulfill their obligations and further that Appellants/Plaintiffs repeatedly asked the Respondents/Defendants to restore possession but to no avail. 3. The Appellants/Plaintiffs filed Suit far Possession, Permanent and Mandatory Injunction ("Subject Suit) before the learned Trial Court. The Respondent/Defendant No. 1 filed a written statement whereby allotment of the Subject Plots to the Appellants/Plaintiffs was not denied however it was
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claimed that developmental work is in progress due to which possession has not been delivered to any member and as such the question of dispossession or restoration of possession does not arise. The learned Trial Court framed the following issues: (i) Whether the plaintiffs are entitled for possession, permanent and mandatory injunction as prayed for? OPP (ii) Whether the plaintiff has no cause of action and locus standi to file the instant suit? OPD (iii) Whether the jurisdiction of this court is barred under Sections 54, 70, 70-A of the Cooperative Societies Act? OPD (iv) Whether the suit is not maintainable and plaint is liable to be rejected under Order VII Rule 11 C.P.C.? OPD (v) Relief. 4. After recording of evidence and hearing the arguments of the parties, the learned Trial Court dismissed the Subject Suit vide the Impugned Judgment by deciding Issue No.1 and holding, in essence, that the Appellants/Plaintiffs did not meet their burden of proof under Section 9 of the Specific Relief Act, 1877 ("Specific Relief Act") and that the Subject Suit was time barred under Article 3 of the Limitation Act, 1908 ("Limitation Act"). Whereas Issues Nos.2, 3, and 4 were not pressed by the Respondents/Defendants. 5. It is noted that the Subject Suit was filed by the Appellants/Plaintiffs without specifying the provision of law where under it had been instituted. The Trial Court took into consideration the fact that though the Appellants/Plaintiffs asserted that they were in possession of the Subject Plots which they have been dispossessed of, they only sought restoration of possession without seeking any declaration and as such determined that the Subject Suit was a suit under Section-9 Specific Relief Act. Furthermore, according to the Impugned Judgment during the course of arguments the learned counsel for the Appellants/Plaintiffs, in answer to a specific question, stated at bar that the Subject Suit is a suit for restoration of possession under Section 9 ibid. 6. As such, the learned Trial Court found that the Subject Suit is a suit under Section 9 of the Specific Relief Act and therefore opined that the court simply has to determine whether or not the Appellants/Plaintiffs were holding possession of the Subject Plots and whether they were dispossessed of the same. The Trial Court after recording of evidence held by way of the Impugned Judgment that the Appellants/Plaintiffs did not produce cogent evidence with respect of delivery of possession or the alleged dispossession and as such a decree of restoration of possession cannot be granted. 7. The learned Trial Court further observed in the Impugned Judgment that the plaint does not mention the date of dispossession which is fatal to a suit under Section 9 of the Specific Relief Act and that even otherwise the date of dispossession as deposed by the PW-1 (attorney of the Appellants/Plaintiffs) makes the Subject Suit time barred and as such the Appellants/Plaintiffs are not entitled to any relief. Being aggrieved of the Impugned Judgment the Appellants/Plaintiffs preferred the instant appeal. 8. The learned counsel for the Appellants/Plaintiffs submitted that the Impugned Judgment is the result of misreading and non-reading of evidence. He argued that the Subject Suit was filed under Section 8 of the Specific Relief Act which is governed by Article 142 of the Limitation Act, 1908 where under the limitation period is 12 years from the date of dispossession and, therefore, the Subject Suit was not time barred. According to the learned counsel for the Appellants/Plaintiffs the learned Trial Court wrongfully observed that the counsel had categorically stated at the bar that it is a suit for restoration of possession under Section 9 of the Specific Relief Act, which attracts a limitation period of six months under Article 3 of the Limitation Act, 1908 as no such statement had been made. He explained that declaration as to ownership was not sought as the title of the Subject
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Plots is admitted by the Respondents/Defendants but that the same does not take the Subject Suit out of the purview of Section 8 of the Specific Relief Act. 9. On the other hand, the learned counsel for the Respondent/Defendant No.1 drew the attention of the Court to various paragraphs of the plaint filed in the Subject Suit instituted by the Appellants/Plaintiffs wherein it has been categorically alleged that possession was delivered to the Appellants/Plaintiffs after allotment. He therefore argued that the learned Trial Court correctly concluded that the Subject Suit was a suit under Section 9 of the Specific Relief Act which is a suit by a person dispossessed of an immovable property. He contended that the Subject Suit does not fall under Section 8 of the Specific Relief Act as such a suit pertains to a claim of possession of immovable property based on entitlement whereas no declaration as to title was sought by the Appellants/Plaintiffs vide the Subject Suit as is evident from the prayer. He also submitted that even otherwise the Subject Suit was not maintainable as it was filed against a cooperative society which is governed by the Cooperative Societies Act, 1925 ("Cooperative Societies Act") wherein according to Section 54, if any dispute touching the business of a society arises it shall be referred to the Respondent/Defendant No. 2/Registrar for decision by himself or his nominee, or if either of the parties so desires, to arbitration of three arbitrators who shall be the Registrar or his nominee and two persons of whom one shall be nominated by each of the parties concerned. 10. I have heard the learned counsel for the parties and have also perused the relevant record. Difference between Sections 8 and 9 of the Specific Relief Act 11. The first point for determination in the instant appeal is whether the Subject Suit was a suit under Section 8 or Section 9 of the Specific Relief Act. In order to make such determination it is necessary to first understand and appreciate the distinction between the two aforementioned provisions of the Specific Relief Act. 12. In this regard, the case of Late Mst. Majeedan v. Late Muhammad Naseem through Legal Heirs and another, 2001 SCMR 345 is instructive. In the said case the immovable property was owned by the petitioners who had allowed the respondent to establish a business thereupon but later on dispossessed the respondent by use of force. Consequently, a suit under Section 9 of the Specific Relief Act was filed by the respondents. The petitioners' objected to the maintainability of such suit under the aforesaid provision of law. The Supreme Court examined various rulings not just from Pakistan but also from India and explained that Section 9 gives a specific privilege to a person in possession to take action promptly in case they are dispossessed. It entitles them to succeed simply by proving (a) that they were in possession; (b) that they have been dispossessed by the defendant; (c) that the dispossession is not in accordance with the law; and (d) that the dispossession took place within six months of the suit. 13. The Supreme Court clarified that no question of title either of the plaintiff or of the defendant can be raised or gone into in such case. In fact, if the plaintiff is in possession it is immaterial that such possession was without title. The Supreme Court emphasized that it is a well-established legal position that any person who has been dispossessed otherwise than in due course of law can without pleading or proving title seek recovery of title and that such relief may be sought even against the true owner of the property himself. In suits under Section 9 ibid the court does not try the question of title and therefore the defendant cannot resist the plaintiff's suit on the ground of his being the rightful owner. No matter how good the title of the defendant, the person previously in possession is entitled to a decree of possession in a suit under Section 9 of the Specific Relief Act if the dispossession is otherwise than due course of law provided that the suit is brought within six months of the date of dispossession. In other words the only question to be seen in suits under Section 9 ibid is whether the plaintiff was in possession and whether such possession has been disturbed without lawful authority.
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14. The Peshawar High Court discussed the difference between a suit brought under Section 8 and one brought under Section 9 of the Specific Relief Act in Muhammad Saeed v. Abdur Rahim, PLD 2015 Peshawar 94. It was held that the provisions contained in Section 8 of the Specific Relief Act provide the remedy for recovery of specific immovable property to any person entitled to possession against any person having no legal title to retain or occupy and possess such land whereas the provisions contained in Section 9 ibid provide remedy to a person who has been dispossessed without his consent otherwise than in due course to recover his legal possession. 15. Similarly the Sindh High Court at Karachi in Muhammad Hassan v. Dharamdas, 2000 YLR 637 described the difference by holding that Section 9 ibid provides the relief of reinstatement/possession to a person who has been illegally dispossessed and that for such purpose he is not required to prove title whereas Section 8 of the Specific Relief Act provides remedy to a person who is entitled to possession of an immovable property such as owner, mortgagor, mortgagee or trustee or a beneficiary in trust and also tenants and lessees. There are a number of judgments that have recognized that Section 8 ibid provides remedy to not only persons entitled to possession on the basis of ownerships but also on the basis of possession[1]. Whether the Subject Suit was filed under Section 8 or Section 9 of the Specific Relief Act 16. Now let us see how to gauge whether a suit has been filed under Section 8 or Section 9 of the Specific Relief Act particularly when no specific provision has been referred to in such suit. In the case of Mehran Bibi and others v. Sarwar Khan, 2003 Law Notes 137 the Lahore High Court held that if by reading the whole plaint, it is found that the case of the plaintiff is based upon his previous possession and subsequent dispossession by defendants, suit was competent under Section 9 but if it was found that the plaintiff is claiming possession on the basis of his title to the property and further alleged dispossession by the defendant, such suit would, fall under Section 8. 17. I have examined the plaint filed by the Appellants/Plaintiffs in the Subject Suit in light of the said case law. The perusal of the plaint clearly shows that Appellants/Plaintiffs are seeking recovery of possession of the Subject Plot on the basis of their respective allotment letters. Thus it is evident that possession is claimed by the Appellants/Plaintiffs vide the Subject Suit on the basis of their title to the Subject Plots and that they have been dispossessed of the possession thereof at the hands of the Respondent/Defendant No.1, which brings the Subject Suit within the purview of Section 8 of the Specific Relief Act. Is a suit maintainable under Section 8 of the Specific Relief Act without seeking declaration as to title? 18. The learned counsel for the Respondent/Defendant, No.1 argued that a suit under Section 8 of the Specific Relief Act cannot be brought without seeking declaration to title. In my humble opinion such stance is misconceived. Section 8 ibid provides the remedy of recovery of specific immovable property to a person entitled thereto. That does not mean that a person entitled to possession of an immovable property would in all cases also be compelled to seek declaration with regard to his title. A person entitled to immovable property may be dispossessed of it without denial of his title in which case there would be no need to seek a declaration of title. 19. The Lahore High Court in Sardaran Bibi v. Muhammad Arshad, 2022 CLC 1703 and Muhammad Ayub (Deceased) through L.Rs. v. Hashim Khan (Deceased) through L.Rs., 2023 CLC 504 while relying upon Hazratullah v. Rahim Gul, PLD 2014 SC 380 held that the words entitled to the possession as used in Section 8 of the Specific Relief Act presupposes that in order to obtain a decree for possession the plaintiff in such case is entitled to the possession or in other words that it implies an inbuilt declaration as to entitlement of a plaintiff in respect of a property. In fact, if the title/ownership is in dispute for which declaration is required the suit would be instituted under Section 42 of the Specific Relief Act and not under Section 8 ibid[2].
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20. In the instant case, a bare perusal of the written statement filed by the Respondent/Defendant No. 1 shows that issuance of the allotment letters to the Appellants/Plaintiffs in respect of the Subject Plots has not been denied. Instead the case of the Respondent/Defendant No. 1 simply is that since developmental work is in progress possession has not been delivered to any member and as such the question of dispossession or restoration of possession does not arise. In such circumstances where the Respondent/Defendant No. 1 has not denied the Appellants/Plaintiffs title to the Subject Plots they were not require to seek any declaration as to title. However, that does not change the fact that the claim of the Appellants/Plaintiffs is based on their title to the Subject Plots and not simply prior possession which they have been deprived of. Therefore, the learned Trial Court erred in concluding that the Subject Suit filed by the Appellants/Plaintiffs was a suit under Section 9 of the Specific Relief Act. Scope of a suit under Section 8 of the Specific Relief Act 21. This error led to the incorrect premise of the learned Trial Court that the court simply has to determine whether or not the Appellants/Plaintiffs were holding possession of the Subject Plots and they were dispossessed of the same. The Trial Court after recording of evidence held by way of the Impugned Judgment that the Appellants/Plaintiffs did not produce cogent evidence with respect of delivery of possession and the alleged dispossession and as such a decree of restoration of possession cannot be granted. 22. On the contrary, since the Subject Suit was in fact a suit under Section 8 of the Specific Relief Act the Trial Court was required to determine whether the Appellants/Plaintiffs were entitled to the possession of the Subject Plots on the basis of their allotment regardless of whether or not they were earlier granted possession thereof and were dispossessed of the same unlawfully. In the case of Mst. Nishat Mushtaq v. Karachi Development Authority, 2004 YLR 1811 an objection was raised that admittedly possession had never been delivered to the appellant whereas concept of recovery of possession necessarily entails earlier dispossession. The Sindh High Court at Karachi was not persuaded and clarified that recovery of possession must be preceded by dispossession for a suit under Section 9 of the Specific Relief Act however under Section 8 a person entitled to possession may recover it in the manner prescribed in the C.P.C. Thus even if the Appellants/Plaintiffs were unable to prove by way of evidence that possession had been delivered to them earlier as alleged and thereafter they were dispossessed the Trial Court under Section 8 of the Specific Relief Act was nevertheless required to determine whether the Appellants/Plaintiffs were entitled to possession or not based on their ownership. 23. Similarly the Trial Court erred in holding that the Subject Suit being a suit under Section 9 of the Specific. Relief Act is governed by Article 3 of the Limitation Act where under limitation is six months and that as such the Subject Suit was time barred. Since the Subject Suit was a suit under Section 8 of the Specific Relief Act the applicable period of limitation was 12 years as provided under Article 142 of the Limitation Act. 24. Be that as it may, these issues have lost its significance for reasons discussed below. Jurisdiction of Civil Courts in view of Sections 54, 70, and 70A of the Cooperative Societies Act 25. The second point for determination in the instant appeal is whether the Subject Suit was maintainable in view of Sections 54, 70, and 70A of the Cooperative Societies Act. It is noted that the issues framed by the learned Trial Court in this regard i.e. Issues Nos. 3 and 4 were not pressed by the Respondents/Defendants. However, courts are duty bound to decide fundamental questions such as jurisdiction at the earliest even if no objection to such effect has been raised[3]. Yet no findings were rendered by the Trial Court in respect of the maintainability of the Subject Suit on the touchstone of Sections 54, 70, and 70A of the Cooperative Societies Act. 26. Regardless however it is settled law that jurisdiction being a question that goes to the root of the dispute can be raised even at the appellate stage[4]. Lack of jurisdiction renders the entire
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proceedings coram non judice thereby vitiating the entire proceedings and making the judgment illegal and void[5]. The failure to address jurisdiction or even waiver thereof does not imbue a court with jurisdiction not vested in it in law[6]. Therefore, it is necessary for this Court to determine the point of jurisdiction involved in the Subject Suit in the instant appeal notwithstanding that the Respondents/Defendants chose not to press it before the Trial Court. 27. The Subject Suit was filed by the Appellants/Plaintiffs alleging that they have been dispossessed of their possession over the Subject Plots at the hands of the Respondent/Defendant No. 1 which is a cooperative housing society. Thus, the Subject Suit involved a dispute touching the business of a society arising between the society impleaded as Respondent/Defendant No.1 and members of the society i.e. the Appellants/Plaintiffs and as such the dispute falls within the scope of Section 54(c) of the Cooperative Societies Act in view of which jurisdiction of civil courts is tarred under Section 70A ibid[7]. 28. The plaintiffs in Mrs. Parveen Akhtar and another v. Lucknow Cooperative Housing Society Ltd. through President/Chairman/Secretary and another, 2014 YLR 1539 were allottees of two plots which were cancelled who filed civil suits to challenge such cancellation. The defendant society filed an application under Order VII, Rule 11. C.P.C. seeking rejection of plaint in view of the bar contained in Section 54 of the Cooperative Societies Act. The Sindh High Court at Karachi considered whether the plaint was maintainable in view of Sections 54, 70, and 70A of the Cooperative Societies Act and rejected the plaint by holding that the plaintiffs should have first taken- their dispute with the society to the Registrar as per Section 54 and that if the plaintiffs were not willing to avail such remedy they were under a legal obligation to send notice to the Registrar pursuant to Section 70 before filing a civil suit against the society as follows: "7. In section 54 of the Act, 1925, the requirement of law is that if disputes touches the business of a Society and it is between the Society and its member, it shall he referred to the Registrar and proviso to the section provides only one condition for instituting the suit against the Society that the Registrar himself has suspended the proceedings in the matter on the ground that the question at issue is one involving complicated questions of law and facts. Even this condition is limited to the period of six months from the date of Registrar's order of suspending the proceedings and in case the suit is not filed within six months, the Registrar is empowered to decide even complicated question of law and the facts. In the instant suit, the plaintiffs, in the first place should have taken their dispute with the Society to the Registrar. Therefore, if at all the plaintiffs were not willing to avail arbitration in terms of section 54 of the Act, 1925 to redress their grievance on the alleged illegal cancellation of their plots and wanted to file suit against the Society, they were under legal obligation to send notice to the Registrar before filing the suit against the Society. The requirement of section 70 of the Act, 1925 was yet another obstacle in the way of the plaintiffs. "70. Notice necessary in suits.---No suit shall be instituted against a society or any of its officers in respect of any act touching the business of the Society until the expiration of two months next after notice in writing has been delivered to the Registrar, or left at his office, stating the cause of action, the name, description and place of residence of the plaintiff and the relief which he claims; and the plaint shall contain a statement that such' notice has been so delivered or left." 8. The plaintiffs have not sent any notice to the Registrar, Cooperative Societies that they are aggrieved by action of the Society and they propose to take the Society to the Court of law for redressal of their grievance. Learned counsel for the plaintiffs has no answer to the question that why the provisions of sections 54 and 70 of the Cooperative Societies Act, 1925 be ignored by this Court to entertain his plaint. The Courts are not supposed to assume the jurisdiction of competent forum available within the statute governing the issues and relations between the parties. In this case, the members of the Society when pitched against the Society on account of the action of
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cancellation of their plots by the Society and the Society claims to have done it during the course of its business, they have to follow the law governing the parties in such like situation. In the case in hand the parties are governed by the Cooperative Societies Act, 1925 and sections 54 and 70 provide first a statutory remedy of arbitration to the aggrieved party and then takes away jurisdiction of Civil Court to try such dispute of a civil nature. Both in section 54 and section 70 of the Act, 1925 the expressions used is the "dispute touching the business of the Society" is employed to oust the jurisdiction of Civil Court on the ground that cognizance of such civil dispute is to be taken by the arbitration panel of three arbitrators. Therefore, Civil Court cannot try and adjudicate the "dispute touching the business of a Society" as it falls within the exception in terms of the exception referred to in section 9 of the Civil Procedure Code, 1908 and it reads as under:- "9. Court to try all civil suits unless barred. ---The Courts shall (subject to the provisions herein contained) have jurisdiction to try all suits of a civil nature excepting suits of which their cognizance is either expressly or impliedly barred." Since there is a statutory forum to take cognizance of such dispute of civil nature this Court cannot usurp the power of such…
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