IN THE HIGH COURT OF SINDH AT KARACHI

SUIT NO.1022/2014

Malik Co-operative Housing Society Ltd & others --------------------Plaintiff

Versus

The Registrar

Cooperative Societies Sindh & others---------------------------------Defendants

1. For orders on Nazir Report dated 19.11.2014

2. For hearing of CMA No. 8288/2014 (U/O 39 R 1 & 2 CPC)

Date of hearing:                                17.04.2015

Date of Order:                                   17.04.2015

Plaintiff                                              Through M/s Ch.Abdul Rasheed & Khurshid

Javed

Defendants:                                       Through M/s. Abdur Rehman & Mohammad Nishat Warsi, Advocates

Province of Sindh:                            Through Mr. Jam Habibullah State Counsel.

O R D E R  

MUHAMMAD JUNAID GHAFFAR, J:-         Through instant Suit, the plaintiffs have prayed for declaration that the Elections of the Plaintiffs Society held on 22.6.2014 and conducted by defendant No.2 are illegal, unlawful and without any legal sanctity. Along with the Suit, application listed at Serial No. 2 bearing CMA No.8288 of 2014 has been filed under Order 39 Rule 1 & 2 CPC, seeking ad-interim injunction against the defendants from finalizing and announcing the result of the Elections of the plaintiff’s Society held on 22.6.2014. Such application came up for hearing before a learned Single Judge of this Court on 24.6.2014, when an ad-interim order was passed by this Court, whereby, it was ordered that the result of the said Elections shall not be announced till the next date of hearing. It has been contended by the learned Counsel for the plaintiffs that the election held on 22.6.2014 was not conducted on the basis of a valid members list, hence a nullity in the eyes of law. Learned Counsel further contended that membership of the Society had been awarded to persons, who were, otherwise not entitled to become members of the Society. Per learned Counsel, it is the case of the plaintiffs that their objections in respect of members list raised through letter dated 18.6.2014; have to be considered first and a proper scrutiny of the members of the Society must be carried out before conduct of Elections. Learned Counsel submits that the report of the Nazir dated 19.11.2014, has also failed to consider the objections of the plaintiff, whereas, proper scrutiny of the members of the Society must be carried out before any elections could be held or the result could be announced.

2.         Conversely, learned Counsel for the defendants have vehemently opposed grant of listed application and have contended that ad-interim Ex-parte order obtained on 24.6.2014 has seriously prejudiced the rights of eligible members of the Society and under the garb of such interim order, the entire election process of the society has been put a halt, whereas, the elected members of the Society are being denied the right to rule and run the affairs of the plaintiff’s Society.

3.         I have heard all the learned Counsel for the parties and perused the record. It appears that instant Suit has been filed by the Plaintiffs for declaration and permanent injunction and it has been prayed that elections of the Society held on 22.6.2014 may be declared as illegal and unlawful. The precise grievance of the Plaintiffs is that until and unless the scrutiny of members is carried out on the basis of their letter dated 18.6.2014 addressed to Defendant No. 1, no elections can be held. It appears that after passing of ad-interim order on 24.6.2014, and issuance of notices in the instant matter, on 11.09.2014, another detailed order was passed by this Court, wherein, after consent of all the learned Counsel for the parties the matter was referred for recounting of votes under the supervisions of Nazir of this Court, which reads as under:

11.09.2014

“The plaintiffs Nos.2 to 4 are the members of the plaintiff No.1 who have challenged the election of the plaintiff No.1 held on 22.6.2014. The matter was placed before the learned Judge of this Court on 24.6.2014, who while issuing notice to the defendants ordered that the election result shall not be announced till next date of hearing and since then interim orders are operating. The tenure of the managing Committee is one year and at least three months have already lapsed due to operation of interim order and there is no progress in the matter. The challenge is only confined to the status of some members, who are according to plaintiffs were not bonafide members of the society, but they had cast their votes, while the counsel for the defendant Nos.3 to 14, who are successful candidates in the election argued that the election was held properly and all bonafide members had cast their votes. They also request that interim orders may be recalled as the managing committee is not able to take the charge and to perform their normal function due to interim order; the members of the society at large are also suffering. Learned counsel for the plaintiffs pointed out that in the order dated 16.6.2012 passed by Registrar Cooperative Societies, which is available at page-203, a committee was constituted to scrutinize the affairs of the society and the status of bonafide members as well as the allotment of plots, but before submitting the report the elections were held while Mr. Muhammad Nishat Warsi, Advocate submits that scrutiny committee had submitted the report before the election. Since it is an election dispute which cannot be allowed to continue for an unlimited period as newly elected body if any, is ought to take the charge for their normal functions.

After arguing at some length learned counsel agreed that all ballet papers in the election shall be recounted by the same committee members under the supervision of the Nazir of this Court, while counting the votes the committee will also verify whether the votes were cast by bonafide members of the society or not. If in case, any vote cast by any non-bonafide member of the society the same shall be discarded and the result will be prepared thereafter. The report shall be submitted to this court within a period of two weeks. Adjourned to 25.9.2014. Interim order to continue till next date. (Emphasis supplied)

Copy of this order be transmitted to Registrar cooperative Societies, Karachi. The plaintiffs and defendants shall also approach the Registrar who will fix the date of recounting in compliance of this order. Registrar will also intimate the Nazir of this Court in writing for the date of recounting and verification of votes.

The Nazir’s fee shall be determined at the time of submission of report.

4.         From perusal of the aforesaid order, it appears that the contention raised by the learned Counsel for the plaintiffs is devoid of any merits, as earlier, they had not raised any such objections with regard to the letter dated 18.6.2014 or for having scrutiny of the members list, prior to conduct of any elections, rather they had consented and were in agreement, that all the ballot papers of the election      (i.e. held on 22.6.2014), shall be recounted by the same Committee members, under the supervision of the Nazir of this Court and while counting the votes, the Committee was also required to verify as to whether the votes were casted by the bonafide member(s) of the Society or not. It was further ordered that in case if any vote has been casted by any non-bonafide member of the Society, the same shall be discarded and the result shall be prepared thereafter. It is further noted from perusal of the record that, after passing of the aforesaid order, the Nazir has placed his report dated 19.11.2014 before the Court, wherein, it has been reported that the concerned members of the Committee, including the learned Counsel for the plaintiffs and defendants, appeared before him on 23.10.2014, whereas, recounting process started from 01.30 to 4.00 P.M. and during the process, it revealed that two votes were found to be defective and were accordingly discarded. The Committee thereafter prepared the result, which has been placed along with the report as Annexure “B” dated 10.11.2014 and the same has been prepared after discarding the two votes as referred to hereinabove. From the contents of Nazir’s report dated 19.11.2014, read with the order of this Court dated 11.09.2014, it appears that after having consented to the aforesaid order, and having participated in the recounting process by the Committee that had conducted the election under the supervision of the Nazir of this Court, the learned Counsel for the plaintiffs while arguing the listed application has once again reiterated their objections as contained in the letter dated 18.6.2014, which, in my view cannot be considered by the Court at this stage of the proceeding. If the learned Counsel for the plaintiffs wanted to have scrutinized the members list, then they were not required at the first  instance, to agree for recounting of the votes as ordered by this Court on 11.09.2014, as scrutiny of the member list is always required to be carried out prior to the conduct of the election and not thereafter. The member’s scrutiny is a pre-election process and not post-election. The limited scope of the order dated 11.9.2014, was only to the effect that recounting was to be done, and while doing so, if any votes are found to be casted by non bonafide member, then the same ought to have been discarded, which accordingly has been done as reflected in the Nazir report dated 19.11.2014.  Insofar as objection of the learned Counsel for the plaintiff with regard to Annexure “B” dated 10.11.2014 annexed with the Nazir report, which purportedly is dated 29.10.2014 is concerned, it would suffice to observe that the said report has been presented before the Court on 19.11.2014 and not on 29.10.2014 and perhaps the said date has been inadvertently mentioned therein. The contents of the report reflects that Annexure “B” dated 10.11.2014 was available with the Nazir of this Court when the report was in fact actually submitted to the Court on 19.11.2014.

5.         In view of hereinabove facts and circumstances of the instant case, no case of injunctive relief has been made out on behalf of the plaintiffs, whereas, recounting of the votes has already been carried out as per consent of the parties, so recorded in the order dated 11.9.2014. Accordingly, application bearing CMA No.8288 of 2014 was dismissed by means of a short order dated 17.4.2015 in the following terms.

1) Nazir’s report dated 19.11.2014 is taken on record. Nazir’s fee is fixed Rs.50,000/- which shall be paid by the plaintiff Society directly to the Nazir within two weeks.

2) For the reasons to be recorded later on, listed application is dismissed. The Revised Election result prepared by the Committee, as directed by this Court vide order dated 11.09.2014 under the supervision of the Nazir and annexed with the Nazir report dated 19.11.2014 as Annexure “B” dated 10.11.2014 shall be announced and the Elected Committee shall take over the charge of the plaintiff Society.

6.         The above are the reasons for the short order.

Talib JUDGE