PAKISTAN EMPLOYEES' COOPERATIVE HOUSING SOCIETY Versus AWAMI CONSTRUCTIONS CO. LTD
1. Applicant Anjuman‑e‑Masjid‑e‑Akbar, a body incorporated under societies Registration Act (hereinafter referred to Anjuman) through its resident Mr. Syed Muhammad Bokhari has invoked the jurisdiction of his Court under section 12(2), C.P.C. for setting aside the decree, dated 9‑5‑1975 passed in Suit No.273 of 1974 (PECHS v. Messrs Awami construction Company Ltd.) by this Court on the ground of want of jurisdiction, nullity in the eye of law and unenforceable.
2. Briefly, stated the facts leading to the present application are that plaintiff, PECHS (hereinafter referred to the Society) filed a suit referred to above for declaration, injunction and restoration of possession against Awami Construction Company Ltd. (hereinafter referred to the Company), inter alia, for following reliefs:‑‑
(1) Declaring that the Agreement dated 4‑8‑1973 between defendant No.3 and defendant No.4 approved by defendant No.5, the agreement dated 10‑12‑1973 between defendant No.1 and defendant No.4 approved by defendant No.5 and the Agreement dated 10‑12‑1973 between defendant No.2 and defendant No.4 approved by defendant No.5 and all or any action purporting to have been taken thereunder including delivery of part of plaintiffs' land relating Property "A" to defendant No.1 are void and of no legal effect and have not operated to transfer or create any rights in favour of the defendants.
(2) Restraining the defendants from storing any materials, doing any boring, digging any foundation, or raising any structure or building whatsoever or in any other way directly or indirectly doing any act under or in purported exercise of the said Agreements.
(3) Directing defendant No. 1 to restore to the plaintiff the vacant possession of all that portion and parcel of land on Dadabhoy Nouroji Road, Karachi which was assigned in the lay out plan for the plaintiff's office whereof the said defendant was given possession by defendant No.4 on 10‑12‑.1973 ostensibly and purporting under the agreement of that date executed between defendants Nos.1 and 4 bearing the approval of defendant No.5."
3. In the above suit, the company had moved an application under section 34 of the Arbitration Act for stay of the suit. The application under section 34 remained pending. On 25‑10‑1974 joint application was moved by the society and the company. that the matter may be referred for arbitration to Mr. Justice Rahim Bux P. Munshi Ex Judge of High Court of Sindh and Balochistan, to decide the following issues:‑‑
(a) Whether the Administrator of the plaintiffs society had no power to enter into agreement dated 4‑8‑1973 with the defendant No.3 and/or the two agreements both dated 10‑12‑1973 with the defendant No.1 and the defendant No.2 respectively. All the three agreements having been referred to as the impugned Agreements in the plaint?
(b) Whether the impugned Agreements are void and of no legal effect.?
(c) Whether the defendant No. 1 are entitled for a decree of vacant possession in their favour against the plaintiffs society in the Society Office Complex site and the Jheel Park Complex site, in pursuance of the Agreement dated 10‑12‑1973?
4. Mr. Justice Rahim Bux P. Munshi, the Sole Arbitrator rendered the award dated 28‑3‑1975, that became the rule of the Court by consent of the parties on 19‑5‑1975. Accordingly a decree dated 19‑5‑1975 was passed. The Anjuman case is that the above decree is nullity in the law having been passed and obtained by the society and the company in collusion with each other and not binding on the Anjuman and the said decree is liable to be set aside, inter alia, on the following grounds:‑‑
(1) The suit referred to above was for declaration, injunction and restoration of the possession and did not include any prayer for grant of vacant possession to the company in respect of the remaining portion.
(2) The society were seeking relief to get the agreement dated 4‑8‑1973, 10‑12‑1973 declared as void and of no legal effect with prayer for restoration of possession of that portion and piece of land, which was assigned in the lay out for the society office and whereof the company were given possession by the then Administration illegally on 10‑12‑1973.
(3) The only suit which was pending before the Court as filed by the society and this Court was seized of the matter only as contained in the plaint filed by the society.
(4) Reference to the Sole Arbitrator on joint application under section 24 of the Arbitration Act in fact was reference to Arbitration under section 21 thereof in a pending suit, only subject‑matter of the suit could have been referred by this Court for arbitration and not to include the claim of the society for which no counter‑suit or counter‑claim or for which even the written statement have been filed by them. Thus the reference dated 25‑10‑1974 was beyond the subject‑matter of. the suit, so the Award given by the Sole Arbitrator dated 25‑3‑1975 and the decree dated 19‑5‑1975 on the basis of the said award is also a nullity in law void ab initio, having been obtained by the plaintiff and defendants by fraud, misrepresentation and want of jurisdiction..
5. The application has been resisted by the society and the company by disputing the Anjuman's locus standi to file the application with denial of the allegations of collusion between the parties in the suit. The company has taken the plea that the application is barred by limitation. Anjuman through its President Syed Muhammad Bukhari filed Suit No. 1251 of 1975 against the company in the Court of 6th Senior Civil Judge, Karachi and obtained an ad interim injunction, but after hearing the parties the learned Civil Judge vacated the ad interim injunction. The applicants were aware of the decree in Suit No.473 of 1974 and the proceedings between the parties neither applied to be impleaded as party in the said suit nor filed any suit for setting aside the said decree, which was passed on 19‑5‑1975 against the society. The allotment in favour of the Anjuman of a piece of land, which is in possession of the company and on which boring and pilling has already been done, is only to defeat the decree which has been passed against the society. The company had filed a Suit No.2814 of 1979 in the Court of First Senior Civil Judge, Karachi and injunction was granted in favour of the company, which was ultimately confirmed by the Appellate Court. They also maintained that at the time, the decree was passed, there was no existence of Anjuman Masjid‑e‑Akbar and they were also not party in the suit. Therefore, the decree is binding upon them as now they are claiming through :or under the society and they are debarred from challenging the said decree as the issue had arisen out of the pleadings of the parties as well as from the agreement executed by the parties in favour of the company. The dispute was referred by this Court with the consent of the parties to the learned Arbitrator under the Arbitration Act, therefore, the objection is not maintainable.
6. Out of pleadings of the parties, following points determination were formulated:‑‑
(1) Whether the applicant i.e. Anjuman‑e‑Masjid‑e‑Akbar have any locus standi to file this application?
(2) Whether the application under section 12(2), C.P.C. is barred by limitation?
(3) Whether reference to Arbitration was within the scope of the prayer contained in the suit? If not, its effect?
(4) Was the decree in suit obtained by collusion between the plaintiffs and defendants?.
(5) Are the applicants holding the plot in their occupation in the exercise of their own rights? If so, to what effect?
(6) What should the order be?
7. Applicant examined Iqbal Ahmed, Administrative Officer of the Society, who has produced numerous documents inclusive of minutes of the Meetings of the Managing Committee, site plan etc. The documents will be referred as and when required while dealing with relevant issues.
8. I have heard Mr. Khalilur Rehman, learned counsel for the applicant and Mr. Iqbal Kazi, learned counsel for the respondent/defendant.
9. In order to appreciate the respective contentions, it would be pertinent to briefly record the background for enacting subsection (2) in section 12, C.P.C. introduced through Ordinance 10 of 1980 w.e.f. 26‑3‑1980 which reads as follows:‑‑
10. "12. Bar to further suit.‑‑‑ (1)
(2) Where a person challenges the validity of a judgment, decree or order on the plea of fraud, misrepresentation or want or jurisdiction, he shall seek his remedy by making an application to the Court which passed the final judgment, decree, or order and not by a separate suit.".
11. It may be noted that before the insertion of the provision or A subsection (2) in section 12, C.P.C. through Ordinance 10 of 1980. distinct remedy/proceedings were in vogue for setting aside a decree or order obtained by "fraud" played upon the Court and "fraud" played upon the party. In the former case, in order/decree was subject to recall in the same proceedings in which it was made in exercise of inherent jurisdiction by this Court. In the later case, it was necessary to set aside the order by a separate action. The case, involving order/decree obtained by "fraud played upon the party" remained subject to the separate proceedings by way of suit till 1980. The following decisions can be referred, involving "fraud played upon the party" and subjected to the proceedings by way of suit (i) Forlcoomany Dasi v. Woody Chunder Biswas ILR 25 Cal. 649, (ii) Barhandas Parsad v. Banarsi Parsad (1906) 3 CLJ 119, (iii) Mst. Gulbkoer v. Bashah Bahadur 13 CWN 1197, (iv) J.G. Galstaur v. Pramatha Nath Roy AIR 1929 Cal. 470, (v) Grindlays Bank Ltd. v. Murree Bravery Co. Ltd. PLD 1995 Lah. 745 and (vi) Muhammad Yousaf v. Tajammul Hussain PLD 1972 Lah. 565.
12. The provisions of subsection (2) of section 12, C.P.C. was brought on statute book with the purpose to harmonize the remedy in both eventualities by providing short‑cause remedy to the aggrieved party as well and to save him from the vagaries of further litigation by conferring a right to such party for filing an application for setting aside a decree obtained on fraud, misrepresentation and without jurisdiction in the same proceedings instead of by a separate suit.
13. The uncontroverted facts are that the society filed Suit No.273 of 1974 against the company praying therein that agreements in respect of their plot and Jheel Park Complex; land were illegal and without any effect. The agreements are Exhs.11, 12 and 13 relate to construction of multistoried project. By consent, the matter was referred to Sole Arbitration of Mr. Justice Rahim Bux P. Munshi ex‑Judge of this Court to decide the following issues:
(a) Whether the Administrator of the plaintiffs society had no power to enter into Agreement dated 4‑8‑1973 with the defendant No.3 and/or the two agreements both dated 10‑12‑1973 with the defendant No.1 and the defendant No.2 respectively. All the three agreements having been referred to as the `impugned agreements' in the plaint?
(b) Whether the impugned agreements are void and of no legal effect?
(c) Whether the defendant No. 1 are entitled for a decree of vacant possession in their favour against the plaintiff's society in the Society Office Complex site and the Jheel Park Complex site, in pursuance of the agreement dated 10‑12‑1973?
14. Mr. Justice Rahim Bux P. Munshi rendered the award on 20‑3‑1975, which was made rule of the Court by consent of the parties on 19‑5‑1975. The decree has not been assailed which became final. The Anjuman filed Suit No.1251 of 1975 through its President Mr. Syed Muhammad Bukhari against the company in the Court of VI Senior Civil Judge, Karachi for declaration and injunction, inter alia, for the following relief:‑‑
(a) For a declaration that the said Masjid‑e‑Akbar is a Masjid as enunciated and defined in Shariah of Islam.
(b) For a perpetual injunction, restraining the defendants, its officers., employees, servants, agents, representatives‑ or any persons or persons claiming through or under them from in any way demolishing,. desecrating, removing or entering upon the, premises , of Masjid‑e‑Akbar or any part thereof situated on the south‑western portion of the society office premises from its p resent s ite
(c) Costs of this suit.
(d) Any other relief which this Honourable Court deems fit and proper.
15. The fact stated in para.5 is material, which is reproduced as follows:‑‑
16. "5. That about twenty or twenty‑five years ago the said society had erected a platform on the southern‑western portion of its office premises for the purpose of offering facilities for its employees and members who visit its office to offer Namaz thereat."
17. Alongwith the suit, application for ad interim injunction was filed. The company resisted the application by filing counter‑affidavit of Syed Ghulam Hyder Qadri, the Director of the company. In para.3 thereof, it was pleaded that society had also challenged the validity of the agreement, which was executed by Mr. Rajper, previous Administrator of the said society in favour of the company and said suit of the society has been dismissed and the decree for possession was passed in favour of the company by the High Court, which include the space on which the platform of so‑called society is situated. Photostat copy of decree was filed as Annexure D.
18. The application was dismissed by the learned Senior Civil Judge by order dated 2‑12‑1975. The learned Judge referred the plea taken by the company in the order as follows:‑‑
19. "The defendants have also raised section 70‑A of the Cooperative Societies Act under which no suit could be filed against the society and, therefore, no injunction could be issued. The defendants have filed the copy of the award which was duly approved in Suit No.273 of 1974 by the High Court by its order dated 13‑5‑1975 b which the agreements were held to have been validly and legally executed."
20. This order was challenged by the applicant through C.M.A. No.286 of, 1975 before VIIIth Additional District Judge, Karachi. It may also be noted that company had also filed Suit No.2814 of 1978 against the Anjuman in the Court of First Senior Civil Judge, Karachi, with plaint an application under Order 39, rules 1 and 2, C.P.C. was also filed for restraint order against the Anjuman not to trespass on their land. Such injunction was granted by order dated 26‑4‑1978. The Anjuman impugned the order of ad interim injunction through C.M.A. No.180 of 1979 before IVth Additional District Judge, Karachi. The learned Judge noted the proceedings of Suit No.1275 of 1975 filed by the Anjuman for declaration and injunction as well as the dismissal of application for temporary injunction by order, dated 2‑12‑1975. The learned Judge also considered the effect of the letter dated 31‑12‑1978 issued by plaintiff society showing that the applicant has applied for allotment of land on 30‑10‑1978 and the Managing Committee allotted and dedicated area of 988 sq. yds. to the appellant on 3‑12‑1978 for construction of a mosque. It was also observed that letter dated 14‑9‑1979 was also by the plaintiff society to the applicant to show that on 20‑5‑1979 and 8‑6‑1979, Managing Committee of PECHS has accepted the request of the appellant and allotted and dedicated land admeasuring about 1523.44 sq. yds. The learned Judge also noticed that the decree passed in Suit No.273 of 1974, that the agreement dated 10‑12‑1973 was held to be valid and binding on the PECHS and recorded as follows:‑‑
21. "The perusal of the above documents would show that prima facie as per decree passed in Suit No.273 of 1974 the agreement dated 10‑12‑1972 was held to be valid and binding on PENS (the defendant No.2 in the present suit but in appeal the appellants have omitted to implead PECHS as party in the memo. of appeal) and the respondents were held to be entitled to the possession of the remaining portion of ,agreed land and it was also directed by the said decree that the PECHS would hand over the remaining portion to the respondent. From the perusal of the documents it would appear that respondents have not been given any notice for the cancellation of the said land. Besides, the present appellant deprives the title of the land through the PECHS against whom prima facie there is a decree passed in Suit No.273 of 1974 which on the fact of record is binding till it is set aside. As per documents produced, it would also appear that the PECHS has delivered possession in respect of remaining portion of the land to the respondents as per letter dated 30‑8‑1975 is satisfaction of the decree passed in Suit No‑273 of 1974. In the circumstances prima‑facie I cannot understand as to how the society has allotted and dedicated the land which stood disposed of as per decree in favour of the respondents that also in 1978 and 1979 as per letters documents produced by the appellant. Record shows that the appellant were having a patch of land unauthorizedly as per dated 25‑5‑1975 of the society and now the appellant have made a claim in respect of land admeasuring 2511.44 sq. yds."
22. The appeal preferred by the knjuman was dismissed. The present application under section 12(2), C.P.C. has been filed on 17‑5‑1980.
23. Point No. 1
24. Now the question for determination is whether the Anjuman has any locus standi to file the application, in other words whether the Anjuman can be termed as "an aggrieved person" to file the application under section 12(2), C.P.C.
25. Mr. Khalilur Rehman has contended that the term "person" used in subsection (2) is not to be narrowly interpreted as to restrict it to refer to parties to the suit‑but it should be read to include any "person effected" though not party to a decree. There is no cavil with the proposition that the term "person" used in subsection (2) is not to be confined to the parties to the proceedings but any person, who is aggrieved by the decree, though he may or may not be a party to such proceedings. If reference is needed cases of (i) Munir Ahmad‑Khan v. Samiullah Khan and another 1987 SCMR 171, (ii) Allah Wasaya and 5 others v. Irshad Ahmad and 4 others 1992 SCMR 2184 and (iii) Ghulam Muhammad v. M. Ahmad Khan and 6 others 1993 SCMR 662 can be referred. :
26. The question is whether the Anjuman is an aggrieved party?
27. Its case is that it was allotted land by the society through its resolution. Mr. Iqbal Ahmed, Administrative Officer examined and deposed that open space, unbuilt portion was later on allotted (allotment letter Exh.4) by the society for the mosque and Madrassah, after the resumption of land under M.L.O. 34 of 1989; being immunity plot. It may be pointed out that only those plots were cancelled and resumed that were allotted by political manoeuvring but the right or title derived under a Court decree was not subject to the cancellation or resumption under M.L.O. 34, a reading of the said M.L.O. 34, would clarify the position:‑‑
28. "All allotments of the plots which were reserved for Road, Hospitals, Schools, College, Libraries, Graveyard, or for any such other, immunity/community purpose but were subsequently unauthorisedly or by political manoeuvrs converted into residential or commercial plots and on which no construction has been made, are hereby cancelled and the plots so cancelled shall be resumed by the authority in which the plot was initially vested and the amount, if any, paid by the allottees shall be refunded under the normal rules.".
29. Mr. Iqbal Kazi, learned counsel for the company is right in his contention that the society was not competent to allot any portion of land under the decree, against whom a consent decree was passed and allotment of the portion in the year 1978‑79 will not confer any right in favour of the Anjuman as the society had no authority. Therefore, the applicant cannot be said to be an aggrieved person.
30. Point No. 2
31. It has been vehemently contended by Mr. Iqbal Kazi that the award was made rule of the Court on 15‑9‑1975. The provision of subsection (2) was not in the field. The party aggrieved by a decree obtained by fraud or other relief on the ground of fraud was required to file suit within three years when the fraud became known to the party wronged in terms of Article 95 of Limitation Act, His further submission was that the decree was not assailed within three years, as such, right to sue stands extinguished. He referred in support of his submissions, the opinion recorded in Hitendra Singh v. Ram Eswar AIR 1925 Pat. 625 that where a decree is an impediment to a right of a party, he must bring a suit within the period prescribed by law for setting aside the decree. His further submission was that the Anjuman cannot take the benefit of the provision of subsection (2) introduced through Ordinance 10 of 1980. Mr. Iqbal Kazi frankly conceded that had there been right to sue available at ‑the time of promulgation of the Ordinance, the Anjuman could have ‑filed the application under the provision of section 12(2), C.P.C. for such relief. He contended that the Anjuman through its President had filed a Suit No. 1251 of 1975 and the company had brought the factum of decree in their favour through counter‑affidavit and such fact was also recorded by the learned Judge in order dated 2‑12‑1975. Mr. Iqbal Kazi referred the para. 2 of page 3 of the order, which is as follows:‑‑
32. "The defendants have also raised section 70‑A of the Cooperative Societies Act under which no suit could be filed against the society and; therefore, no injunction could be issued. The defendants have filed the copy of the award, which was duly approved in Suit No.273 of 1974 by the High Court by its order dated 13‑5‑1975 by which the agreements were held to have been validly and legally executed."
33. Mr. Iqbal Kazi contended that through counter‑affidavit, the decree in Suit No.273 of 1974 based on award was brought on record. The learned Judge referred the decree on award in order dated 2‑12‑1975 that, day would be the date of knowledge, for the purpose of filing of a suit. Such suit should have been filed on or before 2‑12‑1978. He contended that no suit was filed by 2‑12‑1978, the period of limitation in terms of Article 95 had expired, a valuable right has accrued in favour of the company by efflux of time and the same cannot be revived by an application under section 12(2), .C.P.C. through a remedy provided w.e.f. 26‑3‑1980 by Ordinance 10 of 1980.
34. Mr. Khalilur Rehman controverting such plea, maintained that the applicant came to know about the award through judgment dated 25‑11‑1979 passed by IVth Additional District Judge, Karachi in C.M.A. No.180 of 1979 filed by the Anjuman against the company and the application was filed on 17‑5‑1980 by invoking the provision of section 12(2), C.P.C. introduced in the year 1980, whereby the remedy has been provided for filing an application in the same proceedings. The contention of Mr. Khalilur Rehman that the applicant gained knowledge of the decree through order dated 25‑11‑1979 is not tenable. The Anjuman 1st gained knowledge of the decree dated 19‑5‑1975, through order dated 2‑12‑1975 passed by the learned VIth Senior Civil Judge, Karachi in Suit No.1251 of 1975 filed by Anjuman through its President Mr. Syed Muhammad Bukhari, against the company and second time by. order dated 25‑11‑1979. The orders dated 2‑12‑1975 and 25‑11‑1979 passed by learned Senior Civil Judge and Additional District Judge, Karachi referred to above were passed in proceedings between the parties in present proceedings.
35. I have also summoned from lower Court the R&P of Suit No. 1251 of 1975 as well as Civil Appeal No.180 of 1979 and examined the same. In Suit No. 1251 of 1975, the company in opposition to the application under Order 39, rules 1 and 2, C.P.C: had filed affidavit of Ghulam Hyder, its Director on 9‑8‑1975, whereby the fact of the decree in their favour and the copy of the decree was brought. on record. In Civil Appeal No. 180 of 1979 same fact was also brought through counter‑affidavit, therefore, the Anjuman cannot plead to have acquired knowledge of the decree order, dated 25‑11‑1979 to bring the application within time. The decree dated 19‑5‑1975 was brought to the notice of the applicant through counter‑affidavit and the order, dated 2‑12‑1975 passed by VIth Senior Civil Judge, Karachi, whereby the applicants' request for ad interim injunction in Suit No.1251 of 1975 was declined. The applicant. could have filed the suit on or before 1 2‑12‑1978, within three years from the date of knowledge gained under 1 Article 95 of the First Schedule to the Limitation Act, which reads as follows: ------
36. 95.
37. To set aside a decree obtained by fraud or for other relief on the ground of fraud.
38. Three years
39. When the fraud becomes known to the party. Wronged.
40. The suit was not filed by the applicant within the period of limitation prescribed for filing such suit. The application under section 12(2), C.P.C. was filed on 17‑5‑1980 after the promulgation of Ordinance 10 of 1980, whereby a remedy was provided to the aggrieved person for filing an application in the same proceedings instead of separate suit when the application was filed, the period of limitation had already expired, new remedy under section 12(2) cannot give a fresh limitation for such an application, therefore, the application is barred by time.
41. Points Nos.3 and 4
42. Mr: Khalilur Rehman, learned counsel has with vehemence canvassed before me that the term of reference to the Arbitration, award and the decree passed was beyond the scope of the suit, thus would be void. He maintained that reference was in fact under section 21 of the Arbitration Act, which reads as follows:‑‑
43. "Section 21. Parties to suit may apply for order of reference.‑‑‑Where in any suit all the parties interested agree that any matter in difference between them in the suit' shall be referred to arbitration, they may at any time before judgment is pronounced apply in writing to the Court for an order ,of reference. " (Emphasis supplied).
44. Mr. Khalilur Rehman urged that aforesaid provisions stipulate that the reference could be made only in respect of any matter in difference between the parties. He pointed out that suit filed by the society against the company was in respect of the portion of Society Office which was given to the company, but was not in respect of the portion which has not handed over to the company. He also pointed out that there was no counter‑suit nor counter‑claim though written statement even the written statement was not filed. Therefore, the reference to decide the following issues was beyond the scope:‑‑
(a) Whether the Administrator of the plaintiffs society had no power to enter into agreement dated 4‑8‑1973 with the defendant No.3 and/or a two agreements both dated 10‑12‑1973 with the defendant No.1 and the defendant No.2 respectively. All the three agreements having been referred to as the `Impugned Agreements' in the plaint?
(b) Whether the impugned agreements are void and of no legal effect?
(c) Whether the defendant No.1 are entitled for a decree of vacant possession in their favour against the plaintiffs society in the Society Office Complex Site and the Jheel Park Complex Site, in pursuance of the agreement dated 10‑12‑1973?
45. Therefore, he contended that the matter outside the suit could not be referred to Arbitration, when the matters outside the suit were referred and decided by the arbitrator, the award be void to that extent. To support this contention Mr. Khalilur, Rehman has referred the decision in (i) Jummo Khan v. Muhammad Khan 1973 SCMR 289, (ii) Pars Ram Gangadas v. Topandas " Dholandas AIR 1928 Sindh 81 and (iii) Muhammad Ramzan v. Nazir Ahmed 1979 CLC 95.
46. Conversely Mr. Iqbal Kazi, learned counsel for the company contended that society has filed Suit No.273 of 1974 against the company and four others, namely, Investment Enterprisers Ltd. Messrs Progressive Builders, Rahmatullah H. Rajpur and Ismail Umar. An application under section 24 of the Arbitration Act was filed by the society and the company for reference to the sole arbitration of Mr. Justice Rahim Bux P. Munshi Ex‑Judge of the High Court on the points stated in the application, which has been referred by Mr. Khalilur Rehman and contended that the reference was not in terms of section 21 but under section 24, which reads as follows:‑‑
47. "24. Reference to arbitration by some of the parties.‑‑‑ Where only some of the parties to a suit apply to have the matters in difference between them referred to arbitration in accordance with, and in the manner provided by section 21, the Court may, if it thinks fit, so refer such matters to arbitration (provided that the same can be separated from the rest of the subject‑matter of the suit) in the manner provided in that section, but the suit shall continue so far as it relates to the parties who have not joined in the said application and to matters not contained in the said reference if no such application had been made; and an award made in pursuance of such reference shall be binding only on the parties who have joined in the application."
48. Mr. Iqbal Kazi's further submission was that in terms of section 24 some of the parties car, move an application for reference to the arbitration in respect of the matter in difference between them. He further contended that it is not a case of section 21 but section 24, which has wide scope for reference to arbitration of the difference between the parties. He further contended that the difference cannot be confined to the subject‑matter of the suit. Reference under section 21 that any matter in difference between the parties in suit can be referred to the arbitration, whereas, in terms of section 24, some of the parties to a suit, may apply for arbitration in respect of the matter in difference between' them. The term "matter in difference between them" used in section 24 has wide connotation, than the term "any matter in difference between them in the suit" used in section 21. In the instant case, the enforceability or otherwise of the agreement was the subject‑matter of the suit. The society and the company (one of the defendants) applied for reference to the arbitration on the matter in dispute between them, therefore, the contention of Mr. Khalilur Rehman that the reference/award and the decree passed in pursuance thereof are void is not sustainable.
49. Mr. Khalilur Rehrnan while arguing Point No.4 contended that the decree has been obtained by collusion between .the defendants and plaintiff viz. society and the company, whereby the Administrator of the society instead of safeguarding the interest of the society and its members consented to become the judgment‑debtor and the company as a decree holder.
50. Mr. Iqbal Kazi contended that neither the fraud, misrepresentation or want of jurisdiction has been pleaded, nor proved. He pointed out that the Managing Committee through its resolution dated 30‑3‑1975 after detailed discussions under Item No.5 of Exh.C.7 unanimously `decided that award may be allowed to become a rule of the Court. On that basis, Mr. Iqbal Kazi contended that it is wrong to say that the Administrator in collusion with the company allowed the award to be made the rule of the Court. The Managing Committee of the society in its meeting held on 30‑3‑1975 under Item No.5 after a detailed 'discussions on the award in the light of approval of the Works Division to the proposal made by the Administrator in connection with the award unanimously decided that the award be allowed to become the rule of the Court, therefore, it is wrong to contend that it was a collusive act on the part of the Administrator of the society and the company.
51. Point No. 5
52. Anjuman own case in their suit filed in the Court of VIIth Senior Civil Judge, Karachi (Suit No. 1251 of 1975), was that about twenty or twenty‑five years ago the said society had erected a platform on the southern‑western portion of its office premises for the purpose of offering facilities for its employees and members who visit its office to offer Namaz thereat. That said platform was covered with four walls and a roof of asbestos sheets by the funds of the said society and the society allotted land to Anjuman in the year 1978‑79 and sketch Exh.C.17 was also produced showing area allotted to Masjid and Madrassah, on above facts Mr. Khalilur Rehman pleaded that Masjid was in existence. The portion shown in sketch dated 11‑6‑1979 (Exh.C.17) was subsequently allotted to Masjid. Therefore, the society or the company have no right over the portion so allotted.
53. Mr. Iqbal Kazi, learned counsel for the company has referred Annexure B, annexed with the application, to contend that it shows the area received by the company in blue colour, whereas, the portions not received shown in. the red colour and undelivered portion was in use of KESC Substation, Pump Room and underground water tank and pointed out that the platform or Masjid as contended on behalf of the applicant has not been shown in the sketch. He also pointed out sketch dated 19‑5‑1975. Annexure E which shows portion banded over to the company in red ink and portions shown‑in blue colour in possession of other authorities only to point out that there is not existence of Masjid. Mr. Iqbal Kazi further contended that allotment and sketch prepared after the decree, in the year 1978‑79 will be of no consequence.
54. Mr. Iqbal Kazi also referred the minutes of meeting of Managing Committee held on 19‑5‑1975 (Exh.C.8) under Item No.5 to show that the society has not transferred, assigned or dedicated, by way of Waqf or otherwise, the patch of land in the Society Office area whereon prayers have been offered since prior to the election of the present Managing Committee. The minutes reads as follows:‑‑
55. "Item No.5
(2) The society has not transferred, assigned, or dedicated by way of Waqf or otherwise the patch of land in the society office area whereon prayers have been being offered since to the election of the present Managing Committee. Since the present Managing Committee is not responsible for the present user of this patch of land, it cannot interfere therewith."
56. Mr. Iqbal Kazi also contended that the mosque cannot be constructed by usurping the land of another, even user would be unauthorized and irreligious and referred the case of Anjuman Arain, Bhera v. Abdul Rashid and 5 others PLD 1975 Lah. 500, wherein the questions were addressed whether a mosque can be constructed 'by usurping the land of another person and if it is so constructed, can it be used as a mosque? The conclusion was that the educational institution to impart religious instructions, of course, has not the same importance as a mosque has. If the construction of the mosque and its user is unauthorized and irreligious, the construction, of the unauthorized Madarassa will, of course, create no right or interest in the Anjuman. While coming to the aforesaid conclusion, Al‑Hadis, an English Translation of Mishkat‑al‑Masabih, Part II, Chapter XIV by Alhaj Maulana Fazul Karim; Fatawa‑i‑Aalmgiri, Vol. I; Majmuatul Fatawa by Maulana Abdul Hayee, Vol.I; Bukhari, Muslim and others scholarly opinion were referred . Para.6 of the report. is reproduced as follows:--
57. "6. In Al‑Hadis, an English translation of Mishkat‑al‑Masabih, Part II, Chapter XIV by Alhaj Maulana Fazlul Karim ; the, usurpation is explained as: `Gasb in its literal sense means forcibly taking ,a thing from another without the consent of the owner in such a manner as to destroy the owner's possession of
7. It is reported in Fatawa‑i‑Alamgiri, Vol:1:‑‑
58. "If somebody built a mosque on his own share of the land which was joint property and subsequently, it was revealed that a part of it belonged to anther shareholder, it would no longer remain a mosque owing to the proprietary nature of the land under it.
59. We may refer to Majmuatul Fatawa by Maulana Abdul Hayee, Vol.I where it is stated:‑‑
60. "It is not proper to offer prayers in a mosque built on the outer wall of a mosque for the reason that the latter belongs to the public and does not vest exclusively in God, the Almighty. It is just like offering prayers in a mosque built on, a property unlawfully seized from its owner."
61. In connection with the conditions and qualifications of a valid Waqf it is mentioned in Fatawa‑i‑Alamgiri, Vol. 1:‑‑
62. "One of such conditions is that at time of dedication of the property the creator of the trust should be its absolute owner. If at the time of the creation of Waqf he forcibly seized the land belonging to somebody else and then dedicated it for the purpose of Waqf, the Waqf would not be validated even if subsequently he has paid the price of the land to the owner and has arrived at some settlement with him in lieu of some money."
63. In Fatawa‑i‑Alamgiri, Vol.III it is stated.
64. "If somebody took forcible possession of land belonging to another and planted trees in it or constructed a house thereon, he will be told to demolish the construction, remove the trees and return the land to its owner. If the demolition of the structure or removal of trees result in damage to the land, its owner will be entitled to retain them on payment of their price."
65. In Bukhari and Muslim it is said:‑‑
66. "Whosoever unlawfully seized land belonging to another to the extent of one span of hand, on the Day of Judgement all the seven earths will be hung round his neck with their full weight. "
67. Doubtless the act of the members of the appellant‑Anjuman in occupying the land in dispute is usurpation (Gasb). They had taken possession of the land without the permission of the Evacuee Trust Board in whom the property had vested. If they had intended to construct the mosque, the proper course for them was to have applied for its transfer from the Trust and they could also approach the Central Government under para. 19(j) of the Scheme for the Management and Disposal of the Evacuee Properties attached to Charitable, Religious or Educational Trusts. They did not take any steps to acquire the property lawfully. Since they took over the possession in an illegal and unauthorized manner, it is an act of usurpation.
68. In Al‑Hadis an English translation of Mishkat Al‑Masabih, Part II, Chapter XIV by Alhaj Maulana Fazalul Karim, usurpation is condemned at page 229 in these words:‑‑
69. "Usurpation is unlawful. Any person knowingly and wilfully usurping the property of another is held to be a criminal and a sinner, and therefore, he becomes liable for compensation. The object of Islam is peace. Be encroachment of the rights of another, peace is disturbed and therefore, a sin is committed Forcible possession is an oppression in an extreme form of which there is a strong condemnation both in the Holy Qur'an and Hadis. A usurper will be hurled done unto seven earth on the Resurrection Day ‑ 4:15, 14:12, and he shall be made to bear the burden of earth that he usurped ‑‑‑ 14:295 W. A Marauder is not a follower of the Prophet, and Islam enjoins no compulsion in any action 1:70, Riot and loot are strictly unlawful ‑ 14:3, prophet even instructed not to take a staff of his brother out of joke."
70. In Bukhari Salem from his father reported:‑‑
71. "Whoso extorts any portion of land unjustly will be sunk down unto seven earths on the Resurrection Day."
72. In Baihaqi Darqutni Abu Harrah al‑Raqqashi from his uncle reported that the Messenger of Allah said:‑‑
73. "Behold! Oppress not. Behold! The property of a man is not lawful except with his voluntary consent."
74. In Ahmad Ya'la‑b-Murrah reported that I heard the Messenger of Allah say:‑‑
75. "Whoso encroaches upon a land without title therein will be put to bear the burden of its earth on the Congregation Day."
76. Same reported: I heard the Messenger of Allah say:‑‑
77. "Whoso takes a span of land by oppression the Glorious and Almighty Allah will give him the trouble of digging it till he reaches the last of the seven earths, and then he will be thrown down up to the Resurrection Day till he will be brought for judgment among men ‑‑ Ahmad,"
78. Mr. Iqbal Kazi also referred para.5 of the plaint of Suit No. 1251 of 1975 filed by the applicant. against the company to contend that such platform cannot be taken as a public place or mosque. The said para. is as follows:‑‑ "that about 20 or 25 years ago, the said society (PECHS) had erected a platform on the southern‑western portion of its office premises for the purpose of offering facilities for its employee and members, who visit its office to offer Namaz thereat."
79. Mr. Iqbal Kazi to support his contention has referred the judgment of Lahore High Court in Sh. Nanki Devi v. Habib Ullah and others AIR 1936 Lah. 876:‑‑
80. "Namaz can be offered at any place but that place cannot be treated as `Masjid', unless the owner dedicates the land or the land has been purchased from the owner. Therefore, applicant cannot claim on their own right the portion or any part of the platform."
81. In the light of my findings on points referred to above and as a consequence thereof, the application has no merits, the same is dismissed, however, the parties are left to bear their costs.
82. S.A.K./P‑55/K Application dismissed.