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Present: Muhammad Haleem, C.J., Nasim Hasan Shah, Shafiur Rahman and Zaffar Hussain Mirza, JJ

Civil Appeal No. 6‑K of 1984, decided on 14th January, 1986.

(On appeal from the judgment, dated 23‑12‑1982 of the Sind High Court at Karachi in Constitutional Petition No. 425 of 1970).

(a) Constitution of Pakistan (1973)‑‑

‑‑‑Art. 185(3)‑‑Leave to appeal granted to consider whether directions of Supreme Court while remanding earlier constitution petition to High Court for decision afresh after examining pleas of parties on merits of case had, in circumstances of case, been satisfied and whether respondent society having fully supported case of deceased appellant before panel of Arbitrators in written statement submitted in reply to plaint of another respondent could take an absolutely contrary position so as to support said respondent before Secretary, Government of Sind, in revisional proceedings.

(b) Co‑operative Societies Act (VII of 1925)‑‑

‑‑‑Ss. 54, 54‑A, 56 & 64‑A‑‑Cooperative Housing Society‑‑Dispute about allotment of same plot to two different persons‑‑Matter referred to arbitration‑‑Award set aside but again restored in revision‑‑Order challenged by appellant unsuccessfully in writ jurisdiction‑‑Case remanded by Supreme Court for decision afresh‑‑High Court, after examination of record, upheld Arbitrators award‑‑On appeal Supreme Court, after detailed scrutiny, upheld order of allotment of plot in favour of respondent‑‑In view of unsatisfactory management of Society which was superseded by appointment of Administrator stand taken by management of Society before Arbitration not given much importance, subsequent written statement submitted by Administrator being based on scrutiny of entire evidence, found more dispassionate and reliable‑ High Court having arrived at its judgment on basis of all material placed before it and on careful analysis of material evidence, its conclusion was found to be unexceptionable‑‑No ground made for interference‑‑Appeal dismissed.

Khalid M. Ishaque, Advocate Supreme Court with M. Shabbir Ghaury, Advocate‑on‑Record for Appellant.

Respondents Nos. 1 and 2 : Ex parte.

A.K. Brohi, Senior Advocate Supreme Court with S.M. Abbas, Advocate‑on‑Record for Respondent No. 4.

Date of hearing: 14th January, 1986.

This matter is coming before us for the second time. The dispute concerns the allotment of a plot made by the Firdaus Cooperative Housing Society Limited, Karachi, namely Plot No. 37 on Road No. 6, Firdaus Colony, Karachi. According to the appellants the said plot was allotted to their predecessor‑in‑interest Syed Ali Suleman Jafri (hereinafter referred to as the deceased appellant) on 23‑5‑1951; whereas according to Rashidullah Qureshi (respondent No. 4 herein) this was not so and could not be so, since the deceased appellant was not even a member of the Society on the said date having become its member only in 1955 and, therefore, the question of allotment of any plot in his favour on the date claimed by him did not arise. In fact, he was the legal allottee of the plot since 22nd April, 1952 as evidenced by the letter of the President of the Society, dated 22‑4‑1952 informing him that the said plot had been allotted to him in lieu of another plot which was allotted to him earlier.

2. Since the parties were in dispute over this question, the said dispute was referred, on the application of respondent No. 4, to the Arbitration under section 54 of the Co‑operative Societies Act, 1925. It was heard by a panel of three Arbitrators, namely, the Registrars nominee and one Arbitrator nominated by each party.

3.The case of Reshidullah Qureshi, respondent No. 4 before the Arbitrator was:‑‑

(i) that he was member of Firdaus Cooperative Housing Society (his Membership No. being 214) since March 1951 and was duly informed by the President of the Society about the allotment of the plot in question to him by the Committee vide letter, dated 22‑4‑1952;

(ii) that he paid Rs.1,000 in two instalments on 3‑3‑1951 and 20‑9‑1951 to the Society and also made further payments of Rs.1004‑75 and Rs.261.56 on 5‑8‑1961 and Rs.1461 respectively on demand of the Society;

(iii) on 16‑8‑1961, a sub‑license was prepared by the Society in his favour in respect of the disputed plot which was registered on 31‑8‑1961 in the office of the District Registrar, Karachi. The sub‑licensee was also confirmed by the Managing Committee of tie Society on 17‑11‑1961.

On the outer hand, the case of the deceased appellant was that:‑‑

(i) he was the member of the Firdaus Cooperative Housing Society Limited since 23‑3‑1951 (his Membership No. being 354);

(ii) he paid Rs.1,000 to the Society in 1951;

(iii) he was informed by the Society that the plot in dispute was allotted to him on 23‑3‑1951;

(iv) subsequently, a regular certificate of allotment, dated 19‑12‑1952 was also issued by the Society in his favour;

(v) on 11‑10‑1954, the possession of the plot in dispute was also given to him;

(vi) the Society sent an up‑to‑date account to him showing the outstanding balance of Rs.1,266.05.

4. The stand taken up by the then management of the Society before the Arbitrators in its written statement was:‑‑

(1) That the plot in dispute was allotted to the deceased appellant on 23‑3‑1951 and not to Rashidullah Qureshi;

(2) That the possession of the plot was given to the deceased

appellant on 11‑10‑1954;

(3) That the payment of Rs.1,000 in 1951 by Rashidulla Qureshi was not admitted.

(4) That although Rashidullah Qureshi was held to be sub‑licensee and the sub‑license prepared in his favour, but the said license was prepared through an omission on the part of the Secretary.

5. However, the Arbitrators, by a majority, gave an Award in favour of Rashidullah Qureshi, respondent No. 4 on 29‑4‑1964. Herein they found that:‑‑

(a) Rashidullah Qureshi was enrolled as member of the Society on 30‑3‑1951 bearing Membership No. 214;

(b) the plot in question was allotted to Rashidullah Qureshi and he had paid full lease

money and premium therefore

(c) he deposited Rs.750 on 3‑3‑1951 and Rs.250 on 20‑9‑1951. The remaining outstanding amounting to Rs.2,276.31 was paid by him from time to time from 1951 to 1961;

(d) the sub‑license was a valid document and conferred full right of a licensee to Rashidullnh Qureshi.

(e) the allotment certificate in possession of the deceased appellant, dated 19‑12‑1952 could not be issued to him as he was not even a formal member of the Society.

In this connection it was observed that the ledger showed that he made the first payment of Rs.1,000 on 3‑10‑1955, the said amount of Rs.1,000 was firstly credited in the name of S.H. Anwar Ali but his name was crossed out and the amount was transferred in the name of the deceased‑appellant. Furthermore, the counter‑foil of the allotment certificate of the deceased appellant was not signed by the then President Shah Masood Ahmad. Hence the plot in question could not be considered to have been allotted to the deceased appellant, on 23‑3‑1951. The deceased appellant had apparently got the documents of the allotment manipulated by the then office bearers in his favour,

(f) the Minutes of the Managing Committee from 1951 to 1955 were not forth coming which gave rise to the inference that they so were suppressed or removed for some ulterior motives;

(g) the Registers were not regularly and properly kept and the condition of the allotment register was deplorable; it was not properly bound and the pages could be separated at any time and there were chances of manipulation;

(h) the present management could not escape from the blame and responsibility in the matter and the attention of the Registrar was drawn to this unhappy state of affairs.

6. It may be mentioned, in passing, that the management of the Society was, indeed, subsequently superseded and an Administrator appointed to manage and conduct its affairs.

7. Reverting to the history of the case, we note that the deceased‑ appellant filed an application under section 56 of the Cooperative Housing Societies Act before the Registrar, Cooperative Housing Society, Karachi to question the Arbitrators' Award. Though this application was not maintainable, the Deputy Registrar converted it into a suo motu motion under section 54‑ A of the Act and proceeded to set aside the Arbitrators' Award holding it to be perverse, vide order, dated 13‑7‑1968. He referred the matter back for de novo proceedings. The respondent challenged this order before the Provincial Government and the learned Secretary of the Provincial Government in the Co‑operation Department exercising revisional powers under section 64 ‑A set aside the aforesaid order of the Deputy Registrar and restored the majority award, vide order, dated 21‑5‑1970.

8. Feeling aggrieved, the deceased‑appellant filed a Constitution Petition No. 425 of 1970 in the High Court of Sind and Baluchistan at Karachi to challenge the order of the Provincial Government. The High Court upheld the order of the Secretary Co‑operation whereby the award was affirmed and dismissed the constitution petition, vide order, dated 12‑12‑1979 .

9. The last‑mentioned order was then challenged before this Court by the deceased‑appellant by filing Civil Petition for Special Leave to Appeal No. K‑36 of 1980. This was converted into an appeal and allowed by this Court, on 26‑8‑1980 and the case remanded to the High Court for rehearing of the deceased‑appellant's constitution petition "according to law". It was further directed that the said petition be disposed of within three months.

10. On remand, the High Court could not, however, dispose of the petition within three months mainly because counsel sought adjournments from time to time and started to hear it on 14‑3‑1982. During the course of the hearings, on 15‑12‑1982, the learned counsel for the deceased appellant requested the Court to summon the allotment register maintained by the Society. This request was opposed by the counsel for respondent No. 4 on the ground that the petition was filed in 1970 and the petitioner had ample opportunity to summon any record that he was entitled to summon during this long period. The Court, with regard to this request, observed:‑‑

"Since we have already heard the arguments in the above matter we would not have granted this request, at this stage. However, Mr. Khalid Ishaque states that the case may be posted for tomorrow and the direction be issued for summoning the register of the allotment of plot for the years 1951‑52 to 1955. We grant the above request of Mr. Khalid Ishaque at the risk of the petitioner and the petitioner shall ensure that the above register is available tomorrow. However, we would not adjourn the above case for any other date. This order may be given cover‑in‑hand to the petitioner today."

On the next date, however, viz. 16‑3‑1982, the allotment register was again not produced; therefore, instead of allowing further time for this purpose the learned Judges themselves meticulously went through the entire record and passed a detailed order wherein the findings given by the majority Arbitrators were upheld. We may reproduce the following part of the judgment of the High Court with advantage:‑‑

"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.

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 President of the Society Mr. Ansari, certifying that respondent No. 4 was the allottee of the plot and had paid a sum of Rs.100 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 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 the 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 1955 which is evident from the above evidence."

11. The constitution petition was ultimately dismissed, vide judgment, dated 23‑12‑1982.

12. The deceased appellant again moved this Court to question the last‑mentioned judgment, vide C.P. No. K‑123 of 1983. Leave was granted to consider whether the directions of this Court given in its order, dated 26‑8‑1980 while remanding the earlier constitution petition to the High Court for decision afresh after examining the pleas of the parties on the merits of the case had, in the circumstances of the case, been satisfied It was also observed that another important question would be whether the respondent Society (respondent No. 3 herein) having fully supported the case of the deceased‑appellant before the panel of the Arbitrators in the written statement submitted in reply to the plaint of Rashidullah Qureshi, respondent No. 4, could take an absolutely contrary position so as to support respondent No. 4 before the Secretary, Government of Sind, in revisional proceedings

13. We have heard Mr. Khalid M. Ishaque, in support of this appeal at great length. Mr. A.K. Brohi was also heard in reply. All the record relatable to this case, which was directed to be summoned from the Society aid is available with it today, has also been perused. We note that the allotment register is still not available and that basically the situation of the record as it obtained before the High Court, when it heard the Constitution Petition, on remand, still remains the same.

14. We are of the opinion that the finding of the High Court that the deceased appellant had not become a member of the Society before 1955 upholding the finding of the Arbitrators in their majority award, on this point, is well‑founded.

15. We may also observe that under the Bye‑laws of Firdaus Cooperative Housing Society Limited it is provided in Bye‑law No. 8 that a person may be admitted as a nominee member on payment of Re.1 only as entrance fee". Under Bye‑law No. 17 "the share capital of the Society shall be raised by shares of the nominal value of Rs.50 each and shall be held entirely by members of the Society" and under Bye‑law No. 65 "no member shall be a tenant of the Society unless he holds at least five shares and according to Item (i) of Bye‑law No. 86" the tenant means "member of Society". Thus, under the Bye‑laws quoted above, no person is entitled to allotment of any land unless he becomes a regular member of the Society on payment of membership fee and unless he purchases five shares of the Society amounting to Rs.250. We find that whereas the respondent became a member of the Society in March, 1951, after making payment of Rs.750 and again a sum of Rs.250 in September, 1951 towards membership fee, share money etc. and was assigned Membership No. 214; the deceased‑appellant does not appear to have become a member of the Society before 3‑11‑1955 after having paid Rs.1,000, vide Receipt No. 179, dated 3‑10‑1955. His effort to show that he had paid Rs.1,000, on 19‑1‑1951 through Receipt No. 1354, where after he was issued a regular certificate of allotment cannot be accepted and after a careful perusal of all the documents and other circumstances we agree that the question of his having been allotted the plot before respondent No. 4 would not, therefore, arise.

16. As regards the other question that the Society had supported the case of the deceased‑appellant in its written statement filed before the Arbitrators and took a different stand before the Secretary, Provincial Government, we observe that the management of the Society was conducting its; affairs in a most irregular and unsatisfactory manner and ultimately the management of the Society was superseded and an Administrator appointed to manage its. affairs. Indeed, we share the views of the Arbitrator who made the following observations:‑‑

"I have no hesitation to saying that the Registers are not regularly and properly kept and there are chances of manipulation and interpolation in them at any time and an absence of entry of allotment in such Register does not affect the other reliable and sound documentary evidence."

"I may mention in passing that the Allotment Register and Membership Register of the Society are not properly maintained and the condition of the Allotment Register was deplorable. It was not properly bound and pages can be separated at any time. The present management cannot escape from the blame and responsibility to the matter "

17. Thus, in these circumstances, the stand taken by the management before the Arbitrators could not be given much importance. On the other hand, the written statement submitted before the Secretary, Co‑operation Department, Government of West Pakistan by the Administrator of the Society, on 16‑5‑1970, which was based on a scrutiny of the entire evidence on record and was more dispassionate, could be taken into consideration. In any case, the High Court did not base its judgment on the stand taken by the Administrator of the Society before the Secretary, Co‑operation Department, Government of West Pakistan but its judgment was arrived at on the basis of all the material placed before it and as a result of careful analysis of each material piece of evidence, to which its attention was drawn by the counsel of the parties.

18. The result is that no ground for interference with the well considered judgment of the High Court is made out and this appeal must fail. It is, accordingly, dismissed hereby. Normally we would have burdened the appellant with costs but since the doings of the Society are to some extent also responsible for this protracted litigation, we will leave the parties to bear their own costs.

M.I. ‑‑‑‑‑ Appeal dismissed.

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