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Petitioner: Syed ALI SULEIMAN JAFRI (THROUGH HIS LEGAL HEIRS) VS Respondent: THE SECRETARY, JUDGMENT
Court Name: Sindh High Court Judge(s): Saleem Akhter, Ajmal Mian Title:Syed ALI SULEIMAN JAFRI (THROUGH HIS LEGAL HEIRS) vs THE SECRETARY,
JUDGMENT
Reported As: PL D 1983 Karachi 314 Result: Petition dismissed Judgment JUDGMENT ' AJMAL MIAN, J.-The petitioner in this petition has impugned the order dated 21-5-1970 passed by respondent No, 1 in exercise of appellate power conferred on him under section 64 of the Co- operative Societies Act, 1925 (hereinafter referred to as the Act). ' The relevant facts leading to the filing of the above petition are that respondent No, 4 Rasheedullah Qureshi initiated arbitration proceedings under section 54 of the Act by filing reference for arbitration with respondent No, 2 prior to 12-3-1964. It was the case of respondent No, 4 that he was a member of respondent No, 3 society, having membership No, 214 and was allotted a plot land, bearing No, 37, situated on Road No, 6 measuring 345 sq. Yds. (hereinafter referred to as the plot) on 24-2-1952. It was also alleged by respondent No, 4 that he had paid all the dues and, therefore, a lease-deed was executed and registered in his favour on 30-8-1961 by the society. It was further alleged that the plot was in occupation of some refugees unlawfully and that he was making efforts to obtain the possession of the same. However, he discovered that the plot was fraudulently allotted to the deceased petitioner. ' On the other hand the case of the deceased petitioner (who stands substituted by his legal representative after his death) was that he was prior allottee of the plot i,e, with effect from 23-3- 1951 and that he was put into possession on 10-10-1953. It was further averred by the deceased petitioner that he has spent substantial money in getting the plot vacated from squatters and got the plan approved from the KDA on 4-3-1963 and began construction after paying all the dues. It was also stated by the deceased petitioner that he had paid all the dues.
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' The plea taken by respondent No, 3 society (hereinafter referred to as the society) before the Arbitrator was that the plot was allotted to the petitioner on 23-3-1951 and that he was put into possession on 10-11-1954 and further that he had made full payment for the plot on 15-8-1960. It was further averred that the society never allotted the plot to respondent No, 4 (i,e, to Rasheedullah Qureshi). It was also averred that according to the society's record respondent No, 4 was allotted plot No, 6/12, against which he paid Rs, 1,475 on 2-8-1961. It was also pleaded that the lease-deed if any executed through mistake or inadvertence of the then Secretary and the office staff of the society, was null and void = as it was in cOntravention of the bye-laws of the society. 2. It may be observed that the above dispute was referred by the Registrar to his nominee on 12-3- 1964, who called upon the parties to nominate their arbitrators in terms of the rules framed under the Act. The parties appointed their respective arbitrators. The arbitrators had framed the following eight issues :-- "(1) Whether the plot No, 37/6 measuring 345 sq. Yards was allotted to the plaintiff on 22-4-1952?- Yes. (2) Whether the plantiff paid Rs, 1,000 as part payment of the cost of the said plot in the beginning and Rs, 1,004.75 N. P. In full and final payment on 2-8-1961 ?-Yes. (3)(a) Whether the defendant 1 executed a sub-licence in respect of the plot in dispute on 16-8- 1961 in favour of the plaintiff and got it registered on 31-8-1961?-Yes. (b) Whether the plaintiff paid Rs, 345 to the defendant 1 as premium of the said plot on 31-8-1961 ?- Yes... (4) Or whether the said sub-licence is null and void under the bye-laws of the society?-Yes. (5)(a) Whether the said plot was allotted to the defendant 2 on 23-3-1951?-No, ' It was allotted on 11-12-1954. (b) Whether the defendant 2 made full payment of the premium on 15-8-1960 and took possession of the plot?-Yes. He was put in possessions in 1954. (c) Could the said plot be legally allotted to the defendant 2 and could he be placed in possession of the same legally ?-No, (d) Whether the defendant 2 was justified in making construction over the said plot ?-No, (6) Whether the licence deed in favour of the plaintiff was through omission and inadvertence of the then Secretary and office staff as stated by the defendant ?-No, ' If so, effect on plaintiff's rights ?-None. (7) Is the plaintiff entitled to claim damages to the extent of Rs, 1,000 from the defendant ?-No, (8) To what relief is the plaintiff entitled and from whom ?-Claim for possession, and injunction decreed against both the defendants with full costs. ' What should the orders as to the costs of the proceedings?" ' The majority of award given on 29-4-1964 was in favour of respondent No, 4, whereby the petitioner was directed to hand over the vacant possession of the plot after demolishing the structures standing on the plot. The deceased petitioner being aggrieved by the above award filed an appeal under section 56 of the Act, which came up for hearing before the Deputy Registrar, Co- operative Societies, who by his order dated 13th July, 1968, held that no appeal was competent against a majority verdict of the Court of Arbitrators under section 56 of the Act. However, he was of the view that the award contained certain glaring features, which called for action under section 56-A of the Act. After having held this he set aside the award by holding that the award was perverse and ordered de novo proceedings and referred the matter to another Registrar's nominee Israrun Nabi. Respondent No, 4 being aggrieved by the above order filed the above appeal, before respondent No, 1, which was allowed by the impugned order dated 21-5-1970. The petitioner being aggrieved by the above order has filed the present petition.
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3. (a) In support of the above petition Mr. Khalid M. Ishaque, learned counsel for the petitioner, has urged the following points :- (i) That respondent No, 1 could not have set aside the order dated 13th July, 1968, passed by the Dy. Registrar without dealing with the reasoning given in the said order. (ii) That respondent No, 2 through his office notice dated 4-5-1970 had directed the Administrator of the society to produce the documents mentioned therein i,e, minutes book, personal ledger, allotment register, counterfoils of allotment certificates, office copy of President letter to Rasheedullah Qureshi and sub-licence ; but without having the above document he decided the matter without applying his mind properly. (iii) That on the basis of the evidence on record respondent No, 1 could not have passed the impugned order. (b) On the other hand Mr. Akhtar Mahmood, learned counsel for respondent No, 4, has contended as follows :- (i) That this Court would not exercise discretionary writ jurisdiction in case it would not foster justice and, that in the instant case this Court should decline to exercise above jurisdiction. (ii) That on the basis of the evidence on record, the Dy. Registrar could not have passed the order dated 13th July, 1968. And, therefore, respondent No, 1 was justified in passing the impugned order and restoring the award. 4. As regards the first contention of Mr. Khalid M. Ishaque that respondent No, 1 could not have set aside the order dated 13th July, 1968, passed by the Dy. Registrar without dealing with the reasoning given therein, it may be observed that it is true that in the impugned order, respondent No, I has not dealt specifically with the points raised in the Deputy Registrar's aforesaid order. However, on the basis of the evidence on record, he came to the conclusion that the majority award was proper and did not warrant interference by the Deputy Registrar under section 54-A of the Act. It is also correct that he has not referred to the evidence in extentio in his impugned order. We might have remanded the above case to respondent No, 1 for rehearing, but we have refrained frcm doing so, as it would not be just and proper in the circumstances of the case for the reason that arbitration proceedings in respect of the plot had commenced in 1963 and that in spite of the expiry of nearly 20 years, the matter has not yet been finally concluded. We have, therefore, examined ourselves the evidence on record to see, whether the impugned order could have been passed on the state of evidence, particularly in view of the fact that in the majority award the evidence has been discussed in extentio. It may be pointed out that this writ petition was disposed of by a Division Bench of this Court by a judgment dated 12th December, 1979 whereby the petition was dismissed. The petitioner being aggrieved by the above judgment filed C. P. S. L. A. No, K-36 of 1980, which was converted into an appeal after notice to the other side and by a judgment dated 26-8-1980 the case was remanded back to the High Court with the direction to rehear the matter and to dispose of the same within three months. It may be mentioned that after the receipt of the above order, the case was fixed for rehearing first time on 8-10-1980, but it was adjourned from time to time mainly on the personal grounds of the learned counsel for the parties, finally, it had come up for hearing before this Division Bench on 14-12-1982 and the arguments were concluded on 16-12-1982. We express our regret that the direction of the Honourable Supreme Court was not complied with, which should have been done. 5. It may be appropriate to refer to the documents on record. Annexure 'A' to the petition is an alleged certificate of allotment dated 19th December, 1952 in favour of the deceased petitioner in respect of the plot, Annexure `A-1' is a site plan of the plot containing an order dated 11-10-1954 of the society's then President directing that the possession of the plot be given, Annexure 'B' is the society's Secretary's letter dated 18th July, 1959, containing the detail of the total dues amounting to Rs, 2,266.50 in respect Of the plot and showing an adjustment of Rs, 1,000 paid by the deceased
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petitioner against receipt No, 179 and also showing a balance due of Rs, 1,266.50, Annexure 'C' is the society's Secretary's letter dated 18th May, 1960, addressed to the deceased petitioner calling upon him to pay the above balance of Rs, 1,266.50, so that a sub-licence of the plot might be registered in his favour, Annexure `C-1' is another letter of the society's Secretary, with reference to his previous letter dated 19-5-1960 again calling upon the deceased petitioner to pay the above balance amount, Annexure '0' is a copy of the KDA's Architect's letter dated 4-3-1963 approving the building plan submitted by the deceased petitioner, Annexure `E' is a certificate dated 18-11-1963 issued by the society's Secretary certifying that the plot was allotted to the deceased petitioner on 11-12-1952, who had membership No, 354 and the possession thereof was given on 10-10-1953, annexure 'E-1' is another certificate dated 24-5-1963 issue by the society's Secretary again stating that the plot stood allotted to the deceased petitioner and that he had paid all the dues and that the society had no objection if the construction work was to be started. Annexure is a receipt dated 20-9-1951 issued by the society's Secretary for a sum of Rs, 250 against membership No, 214 in the name of Hameedullah Khan indicating that the above payment was made through a cheque No, 57855, dated 20-9-1951 drawn on Messrs Habib Bank Ltd., Saddar Branch, Karachi, Annexure 'F-1' is another receipt of the society signed by the acting Secretary in the name of Hameedullah Khan against membership No, 214 indicating the receipt of Rs, 750 through a cheque No, 3785 of 2-3-1951 drawn on Messrs Habib Bank Ltd. Saddar Branch, Karachi, Annexure 'F-2' is another receipt dated 14-8-1961 signed by the society's Secretary against membership No, 214 in the name of Rasheedullah Qureshi, Annexure 'F-3' is also another receipt dated 31-8-1961, i3sued by the society's Secretary against membership No, 214 in the name of Rasheedullah Qureshi acknowledging the receipt of Rs, 1,000, Annexure 'F-4' is another receipt dated 5-8-1981 issued by the society's Secretary acknowledging the receipt of Rs, 1,004.75 against membership No, 214 in the name of Rasheedullah Qureshi, annexure `G' is a letter dated 25-11-1963 issued by the Registrar, Co-operative Societies addressed to the parties as well as to the Secretary of the society stating therein, that an application under section 54 of the at was filed before him and that the hearing of the same was fixed on 13-11-1963 at 11 a.m. He also directed that further action in respect of the plot be stopped, Annexure 'H' is the written statement of the society filed before the Arbitration Board, in which the society had made the averments referred to hereina bove in para. 1, Annexure '1' is the operative portion of the award on the prescribed form, Annexure is an affidavit of Hameedullah Khan filed in the appeal, stating therein that the two payments of Rs, 250 and 850 made by him through the two cheques in 1951 were in fact made by him on behalf of his brother Rasheedullah Khan Qureshi and that he was not himself a member of the society and had no plot, Annexure 'K' is the resolution of the society's Managing Committee resolving to take action for the recovery of Rs, 50,000 against the ex-Secretary, Sibte Ahmed, and also mentioning the fact that he had executed sub-licence inter alia of the plot irregularly in favour of Rasheedullah Qureshi though the plot was allotted in the name of the deceased petitioner, Annexure 'L' is respondent No, 3 society's Secretary letter dated 12-6-1967 addressed to Rasheedullah Qureshi respondent No, 4 offering him alternate plot No, 54/8, measuring 215 in lieu of the plot in order to end the litigation, Annexure 'M' is the order dated 13th July, 1968, passed by the Deputy Registrar, and Annexure 'N' is the copy of the respondent No, 1 office notice dated 4-5-1970 tor fixing the hearing of the appeal on 18-5-1970 at Lahore, Annexure '0' is a letter undated written by the deceased petitioner's then Advocate Mr. Salahuddin addressed to respondent No, 1 for requesting for adjournment on 18-5-1970 on the ground that he was busy before a Division Bench in the High Court, Karachi Annexure `P' is the impugned order. 6. The above documents have been filed by the petitioner alongwith the petition, whereas the documents referred to hereinbelow have been filed by respondent No, 4 along counter-affidavit and affidavit. Annexure X is an extract of paragraphs 8 and 17 of the award, Annexure X-1 is a notice dated 11-11-1963 issued by the Deputy Commissioner as an authorised officer under the Land
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Control Act, 1952, addressed to the deceased petitioner asking him to remove the unauthorised construction from the plot, Annexure X-2 is a certificate issued by M. N. Ansari, the then President of the society certifying that respondent No, 4 was a member of the society against membership No, 214 and that he had paid Rs, 1,000 as detailed in the above certificate against the plot, Annexure X- 3 is an extract of resolution dated 17-11-1961 of the society's Managing Committee approving the execution of the sub-licence of the plot in favour of respondent No, 4, X-4 is a photostat copy of the receipt indicating that Rs, 1,000 deposited by S. H. Anwer Ali was transferred in the account of one Mubarak Ali, X-4-1 is a letter of society's President dated 22nd April, 1952, addressed to respondent No, 4 intimating to him that his matter was considered by the Managing Committee and that he was allotted the plot in question and that his previous allotment of plot No, 19 was cancelled, Annexure X-5 is an extract from society's ledger in respect of the deceased petitioner, which indicates payment of Rs, 1,000 on 3-10-1955 against receipt No, 179 by the deceased petitioner. Below the above entry there is an entry in pencil dated 19-1-1951 against receipt No, 1354 showing the payment of Rs, 1,000, the third entry in this document is dated 18-8-1960 against receipt No, 227 showing the payment of Rs, 1,266.50 in respect of the four items mentioned therein, Annexure X-6 is an extract of an entry in the ledger of the society dated 19-1-1951 against receipt No, 1354 indicating that the same was in favour of S. H. Anwer Ali but after crossing out his name, the name of the deceased petitioner was written, Annexure X-7 is the award on the pro forma alongwith reasons given by the Arbitration Board, Annexure X-8 is a photostat copy of the account sheet in the name of Hameedullah issued by the Habib Bank Ltd. Saddar Branch, indicating that Cheque No, 57855 drawn in favour of the society for a sum of Rs, 250 was encashed on 21-9-1951, whereas another Cheque No, 57851 in favour of the society for Rs, 750 was encashed by the society on 15-3-1971, Annexure X-9 is a certificate of shares issued by the society in respect of respondent No, 4 indicating that ho was allotted shares bearing Nos. 502 to 506, the date of membership as 3-3-1951 and the entry in the register on 10-8-1966, Annexure X-10 is the certificate of shares issued by the society to the deceased petitioner indicating that he was allotted shares bearing Nos. 810 to 814, the date of membership '3-11-1955 and date of entry in the register as 10-8-66, Annexure X-11 is the back side of the page of the shares certificate, Annexure X-12 is a copy of the receipt No, 179 issued in the name of the deceased petitioner for a Sum of Rs, 1,000 against Cheque No, 74826 on 3-10- 1955 Annexure X-13 is an extract from the register of allotment of shares by the society, at page No, 1 of the above document the name of respondent No, 4 appears against No, 102, whereas at page No, 2 against the membership No, 214 entry of the allotment of shares Nos. 502 to 506, against the payment received on 3-3-1951 is shown, Annexure X-14 is also an extract from the register of society for applications for allotment, of shares, which at serial No, 166 contains the name of the deceased petitioner, whereas at page No, 2 against membership No, 354 an entry allotting shares Nos. 810 to 814 against payment received on 3-11-1955 has been shown, Annexure X-15 is a demand notice in the name of respondent No, 4 dated 15-8-1961 showing the balance amount of Rs, 1,004.75 after adjusting the payment of Rs, 1,000, Annexure X-16 is a document indicating that a sum of Rs, 1,000 lying in the name of S. H. Anwer Ali paid on 20-1-1953 was transferred and adjusted in favour of Mubarak Ali. 7. It has been vehemently urged by Mr. Khalid M. Ishaque that the payments mentioned in Annexures F and F-1 for Rs, 250 and Rs, 750 on 20-9-1951 and 5-3-1951 against membershisp No, 214 cannot be treated as having been paid by respondent No, 4 as the receipts are in the name of Hameedullah Khan. The above contention is devoid of any force. Admittedly respondent No, 4 was assigned membership No, 214, the above payments were made against the above membership by respondent No, 4's brother, Hameedullah Khan, who had sworn an affidavit that he was not a member of the society and the payments made by him were on behalf of his brother respondent No, 4, who was not in Pakistan at the relevant time. Even if we were to ignore the above affidavit
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filed by Hameedullah Khan, there is other sufficient evidence on record referred to hereinabove to indicate that these payments were credited by the society in favour of respondent No, 4. This fact is borne out from Annexure X-2, which is a certificate dated 16/21 March, 1954, issued by the President of the society certifying the receipt of Rs, 1,000 against membership No, 214 against the plot, Annexure X-9 is a photostat copy of the shares certificate issued in favour of respondent No, 4 indicating that this membership was w,e,f, 3-3-1951, Annexure X-13 indicates that respondent No, 4 was allotted five shares against membership No, 214 against the payment received on 3-3-1951. On the basis of the above evidence (which was very much before the Arbitration Board as well as before the other two forums as contended by the Advocate for respondent No, 4), it is evident that respondent No, 4 had become member of the society on 3-3-1951 he was allotted shares bearing Nos. 502 to 506, his membership number was 214. On the other hand from the above evidence on record, it is clear that the deceased petitioner had become member on 3-11-1955, he was allotted shares bearing Nos. 810 to 814 and his membership number was 354. The above conclusion is based inter alia on Annexure X-5, which indicates that the first payment against receipt No, 179 was made by the deceased petitioner on 3-10-1955. It may again be pointed out that the second entry in this document is in pencil dated 19-1-1951 against receipt No, 1354 indicating a payment of Rs, 1,000, the third entry is dated 18-8-1960 against receipt No, 227 for a sum of Rs, 1,266-5-0 in respect of the price of the shares and membership fee, development charges, ground rent and miscellaneous. Whereas Annexure X-6 is an extract from the society's ledger indicating the payment of Rs, 1,000 by S. H. Anwer Ali against receipt No, 1354 on 19-1-1951. The conclusion arrived at by the Registrar's nominee in his award that the above entry in Annexure X-5 in pencil dated 19- 1-1951 for Rs, 1,000 against receipt 1354 is belied by the other evidence on record seems to be correct. The total amount payable by the deceased petitioner in respect of his membership, shares price, plot price etc. Was Rs, 2,266-5-0. The deceased petitioner had paid Rs, 1,000 against receipt No, 179 on 3-10-1955 and the balance of Rs, 1,266-5-0 was paid against receipt No, 227 on 18-8-1960 by the deceased petitioner. These two entries are in consonance with the documents filed by the deceased petitioner referred to hereinabove in para. 5, namely, Annexure B to the petition which is a letter of the society's Secretary addressed to the deceased petitioner containing the detail of the total amount of Rs, 2,266-5-0 and payment of Rs, 1,000 made by the deceased petitioner against receipt No, 179, and the balance of Rs, 1,266-5-0 payable by him on 18-7-1959. This was followed by Annexure 'C' another letter dated 18-5-1960 sent by society's Secretary to the deceased petitioner, calling upon him to pay the above balance of Rs, 1,266-5-0, which was followed by another letter dated nil Annexure C-1 with reference to Annexure 'C' calling upon the deceased petitioner to pay the above balance of Rs, 1,266. Annexure X-10 as pointed out hereinabove is a photostat copy of the shares certificates issued by the Society indicating that the deceased petitioner had become member on 3-11-55, Annexure X-14 is an extract from the allotment shares register indicating the payment by the deceased petitioner on 3-11-1955 for the price of the shares. As the deceased petitioner had become member on 3-11-1955 there could not have been any allotment of the plot in his favour in 1952 and, therefore, the conclusion which was arrived at in the majority award was in fact in consonance with the evidence on record. It is true that the society had supported the deceased petitioner's case before the Arbitration Tribunal. In our view the Registrar's nominee has rightly in his reasons for the award observed that the society was motivated to support the deceased petitioner. 8. Admittedly respondent No, 4 was a member of the society since 3-3-1951, admittedly he was allotted plot No, 19 on road No, 6. It seems that the allotment of the above plot was cancelled and he was allotted the plot in dispute by the Managing Committee, which decision was conveyed to him by the Society's President through his letter dated 22-4-1952, Annexure X/4-A. In addition to the above document, Annexure X-2 is a certificate dated 16/21 March, 1954, issued by the another
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President of the society Mr. Ansari, certifying that respondent No, 4 was the allottee of the plot and had paid a sum of Rs, 1,000 mentioned therein. Against these two documents the petitioner had produced Annexure A, which is a certificate of allotment dated 19-12-1952. It was vehemently urged by Mr. Khalid M. Ishaque that above Annexure 'A' which is an allotment on a printed form in Urdu is more reliable as compared to the documents produced by respondent No, 4. In our view this contention is devoid of any force. We cannot overlook the fact that the society was all in all supporting to deceased petitioner's case before the Arbitration Tribunal. This certificate is belied by the other evidence on record discussed hereinabove. This certificate could not have been issued in 1952 as the deceased petitioner had become member in 1935 which is evident from the above evidence 9. Mr. Khalid M. Ishaque has also referred to the Deputy Registrar aforesaid order dated…
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