P L D 1969 Karachi 692 (PLP)

(a) Societies Registration Act (XXI of 1860)‑ Domestic tribunal (unregistered Association)‑Rules of Association neither expressly nor by necessary implication empowering removal of its President‑Domestic Tribunal, held not empowered to take penal action or to remove its President merely because it elected him Misconduct ‑ Petitioner, President of an unregistered Association charged for misconduct in helping another office‑bearer on trial for offence of criminal misappropriation‑Mere helping person on trial, held, does not amount to misconduct‑Every man presumed innocent until proved guilty‑Association passing resolution removing petitioner and electing another person as President No opportunity to explain charges ever afforded despite its provision in rules of Association‑Removal, held, in flagrant contravention of rules of Association. Lee v. Showmen's Guild of Great Britain (1952) 1 All E L R 1175 ref. (b) Civil Procedure Code (V of 1908), O. I, r. 8 read with Societies Registration Act (XXI of 1860), S. 6‑Representative suit‑Parties to suits‑No suit can be filed in name of unregistered Association‑Member of unregistered Association however may institute suit with permission of Court in his own name such suit, held, maintainable under O. I, r.

8. Rant Sarup v. Arya Samaj A I R 1925 All. 337 ; Michael v. Briggs I L R 14 Mad. 362 ; Mahomed Nathubhai v. Hosen R 22 Bom. 729 ;Atmarzin v. Naravan I L R 46 Bom. 132 and Naroomal v. Rates Hashim A I R 1940 Sind 63 fol. (c) Civil Procedure Code (V of 1908), O. I, r. 8 & O. VI, r. 17‑Notice of suit‑Amendment of pleadings‑Suit instituted in petitioner's name and in name of his followers‑Notice given only to persons supporting petitioner and not to all interested persons to contest claim‑Defect, held, curable and amendment allowed. The Legislature has attached great importance to the question of notice, and the object of this notice is to give all interested persons the right to contest the claim in the suit. This object is totally frustrated if a notice is sent only to persons supporting the plaintiff, as has been done in the instant case. At what stage of the suit leave should be obtained : the proper course is to obtain permission before the suit is instituted, but if that is not done the rule does not forbid leave being granted afterwards. Permission under this rule may be granted even after the institution of the suit, and even at the appellate stage by allowing an amendment if such amendment does not materially change the nature of the suit. Tottersals Club v. S. M. Sulaiman P L D 1956 Kar. 49 distinguished. (d) Civil Procedure Code (V of 1908), O. I, rr. 9 & 10 Suit in wrong name‑Description of plaintiff in heading of plaint erroneous through bona fide mistake‑Plaint otherwise disclosing a claim for relief‑Mistake, held, only technical and curable under O. I, rr. 9 & 10‑Dismissal of suit in circumstances without merit Amendment allowed. (e) Civil Procedure Code (V of 1908), O. VI, r. 17‑Amend. merit of plaint‑Fraud not pleaded specifically in plaint‑Fraud however detected after filing plaint‑Plea that suit became infructuous due to lapse of time, held, without merit and petitioner entitled to plead fraud by amending plaint. (f) Specific Relief Act (I of 1877), S. 42‑Declaratory suit‑Plaintiff challenging defendants as having illegally usurped control of Association‑Plaintiff, in circumstances, entitled to file suit for declaration‑Consequences of such usurpation being removal of plaintiff' from membership of Council and Chairmanship of Association‑Give plaintiff additional entitlement to file suit. (g) Civil Procedure Code (V of 1908), S. 9‑Jurisdiction of Civil Courts‑Plaintiff member of benevolent Association praying for injunction to restrain Management from acting contrary to rules of Association‑Plaintiff standing in fiduciary relationship to assets and properties on principle of constructive trusteeship and being liable for any malversation of assets, held, has right arid duty to see Association managed in strict compliance with rules‑Plaintiff held, entitled to file suit in circumstances. The Association in the instant case was a benevolent Associa tion, therefore, there was no reason why relief should not be given at the instance of a member of its Council. On the other hand, there are reasons why such relief should be given by the Court. In the first place, the Association is of a peculiar nature and its members themselves are Associations which may be unregistered, therefore, it may be difficult for the members of the Association to take action on behalf of the Association. Secondly, the members of the Association have elected the members of the Council for the purpose of managing the affairs of the Association and have thereby expressed their confidence in the members of the Council. Thirdly, the properties and assets of the Association are controlled by the Council whose members stand in a fiduciary relationship to those assets and properties. They would be liable as constructive trustees for any malversation of the assets of the Association, therefore, it is both their right and their duty to see that the Association is managed in strict compliance with its rules, because the consequences of a contravention of the rules may be far‑reaching and may lead to malversation. In this view of the matter, it is obvious that a member of the Council is entitled to file a suit to ensure that the Association is governed according to its rules. But the relief sought in the plaint is only that an injunction should be granted so as to ensure that the Association is managed according to its rules. The plaintiff is, therefore, entitled to sue for such relief and the suit is maintainable. Halsbury's Laws of England, Vol. 5, p. 264, para. 621; Rigby v. Connel (1880) 14 Ch. D 482 and Hopkinson v. Marquis of Exeter 5 E C 63 ref. Osborne v. Amalgamated Society of Railway Servants (1911) Ch. D 540 fol. JUDGMENT Both these Revision Applications arise out of disputes about the control and management of the Karachi Hockey Association (hereafter called the Association). The Association is an unregistered body and its object is to organise, regulate and control the game of hockey in Karachi. Further under the constitution of the Association only organisations and clubs affiliated with the Association can be its members, and each such member is entitled to elect or nominate an individual to represent it in the Association. The Association is managed by a Council which is elected every two years in the month of February. The method of election is that every member sends its representative to the general meeting of the Association and these representatives elect the Honorary Secretary, the Honorary Treasurer, Two Honorary Associate Secretaries, 10 representatives of the affiliated clubs and organisations and one representative of the Karachi Hockey Umpire's Association, which is an ex officio member. The Council remains in office for a period of two years, and at its first meeting the members of the Council elect a President, a Chairman and four Vice‑Presidents.

2. Prior to the disputes out of which these applications have arisen, the Council of the Association had been elected in February 1957. The President of the Council was Mr. Abbas Khalili, its Chairman was Professor Anwar Choudhury and its Honorary Secretary was Mr. Luke Andades. The affairs of the Association were running smoothly, but the storm broke in October 1968. According to a notice dated the 29th October 1968, issued by Mr. Tayab an Honorary Associate, Secretary, Mr. Andrades, the Honorary Secretary had resigned, therefore he had convened a meeting of the Council on the 31st October 1958, to consider the resignation of Mr. Andrades. As this was in the absence from Karachi of the President, the meeting was convened at the house of Mr. M. A. Mirza, one of the Vice- Presidents of the Association. However on receiving this notice, the Honorary Secretary immediately repudiated the allegations contained therein and stated that he had never submitted his resignation as Secretary. Accordingly, on the 31st October 1958, he went to attend the meeting of the Council at the house of Mr. M. A. Mirza in order to vindicate his rights and to assert the true position. However, he and 6 other persons were forcibly prevented by the Police from entering the house of Mr. Mirza, and thus Mr. Andrades was prevented from attending the meeting convened to discuss his alleged resignation, therefore he lodged a report with the Rambagh Police Station. But meanwhile the Council had accepted his resignation in his absence. Then events moved swiftly. On the 2nd of November 1958, Mr. Andrades was arrested on a charge of criminal appropriation, but the alleged defalcation related to accounts which had been passed by the general body of the Association two or three years earlier ; and further this complaint was lodged only against him, and not against the Treasurer or the other office‑bearers of the Association at the relevant time. Mr. Sami Ahmad, learned counsel for the applicants, has submitted in this connection that the charge against Mr. Andrades was false, and that he was arrested on the orders of an Additional Deputy Inspector General of Police who, within a week of Mr. Andrades' arrest and in consequence of that arrest, was made a Vice President of the Association. Be that as it may, Mr. Andrades was released on bail in due course and it appears that Mr. Khalili believed in his innocence and supported him. Another meeting of the Council was called on the 8th of November 1968, and according to the relevant minutes produced by the respondent this meeting confirmed the minutes of the previous meeting and accepted the resignations of two Vice‑Presidents and six members of the Council. Mr. Valika, respondent No. 1, in both the Revision Applications before me, was elected as Vice‑President at this‑meeting, which also co‑opted four other persons to the Council. Another meeting of the Council was called on 10th November 1968. As Mr. Khalili was not present at this meeting, Mr. Valika presided over it and this meeting approved of the affliation of 54 stew Clubs as Members of the Association Finally, another emergent meeting of the Council was held on 12th November 1968, to consider a resolution of no confidence against Mr. Khalili. At this meeting the council passed a resolution that it had lost confidence in Mr. Khalili, therefore it removed him and appointed Mr. Valika as President in his place. Finally, an emergent meeting of the general body of the Association was called on 21st November 1968, to amend the Constitution, and at this general body meeting the Constitution was amended, one of the changes being the abolition of the post of Chairman. Meanwhile, as the Council's term of two years was due to expire, a general meeting of the Association had to be called before the end of February 1969. There were now two rival groups in the Association, one headed by the first respondent, Mr. Valika, who claimed to have become President of the Association on 12th November 1968, by the removal of Mr. Khalili, and the other by Mr. Khahli and Professor Anwar Choudhury, the Chairman of the Association. Mr. Khalili's group issued a notice convening the general body meeting on the 23rd February 1969, had by its Circular dated the 20th January 1969, the Valika Group, which claimed to be entitled to the management of the Association, also issued a notice convening the general meeting on 22nd February 1969.

3. Finally, on 22nd January 1969 a suit was filed in the Court of the Second Civil Judge, Karachi being Suit No. 121 of 1969 by Professor Anwar Chaudhry in the name of the Association for a declaration that the Valika Group had no right to interfere in the management of the Association and for a permanent injunction to restrain Mr. Valika and his followers from acting on behalf of the Association. Professor Anwar Chaudhry also made an application for an interim injunction to restrain the Valika Group from managing the Association pending the hearing of the suit filed by him. On 1st February 1969, Mr. Valika and his followers filed a counter suit being Suit No. 181 of 1969 in the Court of the Second Civil Judge, Karachi against Mr. Khalili and his Group in which they also sought a declaration and a permanent injunction to restrain Mr. Khalili and his group, who were the plaintiffs in Suit No. 121 of 1969, from interfering with the management of the Association. They also filed an application under Order XXXIX, rules 1 and 29, C. P. C. for an interim injunction in this respect therefore this injunction application and the injunction application filed by Professor Anwar Chaudhry were heard on 6th February 1969, and by his order dated the 13th February 1969, the learned Civil Judge dismissed the injunction application filed by Professor Anwar Chaudhry in Suit No. 121 of 1969 and allowed the injunction application sought by Mr. Valika in Suit No. 181 of 1969. Aggrieved by this order, Professor Anwar Chaudhry filed appeals in the Court of the District Judge, Karachi, both against the order dismissing his injunction application and the order allowing the injunction application filed by Mr. Valika in his suit. Both these appeals were heard and dismissed by a single order passed by an Additional District Judge, Karachi on 22nd February 1969, and the revision applications before me have been filed against the said order of the Additional District Judge, Revision Application No. 75 of 1969 has been filed against the order of the learned Additional District Judge dismissing Professor Chaudhry's appeal against the dismissal of his injunction application in Suit No. 191 of 1969, and Revision Application No. 73 of 1969 has been filed against the order dismissing Professor Chaudhry's appeal against the trial Court's order of an interim injunction in favour of Mr. Valika in Suit No. 181 of 1969.

4. The question in issue in both these revision applications Is whether Mr. Khalili was rightly removed froth the Presidentship of the Association. In holding that he was rightly removed, the learned Civil Judge has referred to the allegation of misappropria tion against Mr. Andrades and held that Mr. Khalili had committed misconduct because he had helped Mr. Andrades. In coming to this conclusion the learned Civil Judge appears to have treated the allegations against Mr. Andrades as if they had been proved and has ignored a cardinal principle of our jurisprudence that every man shall be presumed to be innocent until he has been proved to be guilty. However, having assumed that Mr. Andrades was guilty, the learned Civil Judge held that Mr. Khalili committed misconduct in helping Mr. Andrades, therefore, he hold that the Council was entitled to remove Mr. Khalili from the President ship of the Association under clause XXII (4) of the Constitution of the Association. On the other hand, the learned Additional District Judge, who has shown a more correct appreciation of the principles, which guide Courts in deciding an injunction application under Order XXKIX, rules 1‑2, C. P. C. has taken the view that there was evidence on which the Council could hold that Mr. Khalili had committed misconduct in supporting Mr. Andrades, therefore, it was entitled to remove him under clause XXII (4) of the Association's Constitution and he has also held that, as the Council elects its President, it was entitled to remove him at its pleasure.

5. Learned counsel for the applicants has argued that in the absence of express provisions in the Associations' Rules empower ing the Council to expel its members, the Council had no power to pass a vote of no confidence against and to remove any of its office‑bearers, and that the action taken against Mr. Khalili was ultra vires of clause XXII (iv) of the Associations rules on which the Courts below have relied. In order to appreciate the submission of learned counsel it is necessary to quote clause XXII. Clause XXII states as follows :‑ "XXII. The Council shall have power to‑ (i) frame such Bye‑laws for the conduct of its function and business as may be consistent with the general aims and objects of the Association, (ii) control over the funds, property and the general financial affairs of the Association, (iii) affiliate clubs, (iv) disaffiliate or suspend. or award punishment to a member official of a member/player/member of the Council of the Association/official of the Association for misconduct of breach of Rules, (v) appoint sub‑committees and delegate its powers and duties to such sub‑committees, (vi) delegate any of its powers to the President, the Honorary Secretary or the Honorary Treasurer, (vii) consider Annual Report, Annual Accounts, Budget Estimates and submit them to the Association, (viii) fill casual vacancies amongst office‑bearers and members of the Council, (ix) allow the Honorary Secretary to hold an impress not exceeding Rs. 50 at any time for the purpose of meeting small urgent and unforeseen charges, (x) exercise all other powers of the Association or otherwise expressly provided for in the constitution, (xi) disaffiliate a club if it does not participate in the Karachi Hockey Association League as provided for in Rule No. XII(iv)."

6. Learned counsel for the respondents argued that the Council was entitled to remove any office‑bearer under sub clause (x) quoted above or alternatively that it had the inherent power to remove the President because it was the body which had elected him. Taking the second argument first, I am of opinion that a domestic tribunal can take penal action against a member of an association or against any person holding a post by removing him from that post only under powers conferred on it expressly or by necessary implication. I am fortified in my opinion by the observations of Denning, L. J. in Lee v. Showmen's Guild of Great Britain ((1952) 1 All E L R 1175). In reference to the removal of a member from an Association known as the Showmen's Guild at page 1180 Denning L. J. has stated as follows :‑ "The jurisdiction of a domestic tribunal, such as the com mittee of the Showmen's Guild, must be founded on a contract express or implied. Outside the regular Courts of this country, no set of men can sit in judgment on their fellows except so far as Parliament authorises it or the parties agree to it. The jurisdiction of the committee of the Showmen's Guild is contained in a written set of rules to which all the members subscribe. This set of rules contains the contract between the members and is just as much subject to the jurisdiction of those Courts as any other contract." I am in respectful agreement with these observations, which, in my humble opinion, lay down the correct law for determining the powers of domestic Tribunals, such as the Council of the Association in the case before me. Therefore, I hold that the Council did not have any power. to remove its President merely because it had elected him. .

7. Learned counsel for the respondent next argued that the Council was entitled to remove Mr. Khalili under sub‑clauses (iv) and (x) of Clause XXII quoted above. It is settled law that the rules governing an association's power of taking penal action against its members have to be construed strictly. Further, the Association has made express provision for taking action against members of the Council in sub‑clause (iv) of Clause XXII. In these circumstances, I am of the view that the Council's power of taking action against any of its members is limited to sub clause (iv), therefore, the provisions of sub‑clause (x) are not relevant to the question of Mr. Khalili's removal, and I shall now consider whether the Council's action falls under sub clause (iv).

8. Under sub‑clause (iv) the Council has the power‑ to take action against members, players and members of the Council. This clause has to be read with clause 30 therefore, the order of the Courts below that the President is to be treated as a member of the Council for the purpose of this sub‑clause appears to be correct, but the Council's only power under sub‑clause (iv) is to suspend him or to award punishment for misconduct or breach of the rules. In the instant case, according to the minutes of the Association dated 12th November 1968, Mr. Khalili was removed because the Council had lost confidence in him. I have observed that the power of expulsion of an Association has to be construed strictly. As the Council's power is limited to taking action for misconduct or breach of the rules only, it follows that the Council was not entitled to remove Mr. Khalili merely because it hats lost confidence in him. Therefore, his removal was illegal and in breach of the rules of the Association. Secondly, assuming for the sake of argument that the Council could remove any member including its President for misconduct, the question is whether Mr. Khalili has been guilty of such misconduct. Here I may observe that the word "misconduct" is a word of strong import and is not qualified by any terms which would indicate that the Council could remove a member for conduct of which it disproved, therefore the criterion for misconduct in this sub‑clause is an objective standard. According to learned counsel for the respondents, Mr. Andrades is facing trial for misappropriation of the funds of the Association, and because Mr. Khalili helped him actively he has committed misconduct. I have to repeat here that a cardinal principle of our jurisprudence, and indeed of the jurisprudence of any civilised country, is that every man is presumed to be innocent till he is proved to be guilty. Mr. Andrades is only on trial for charges of criminal misappropriation, therefore, merely because Mr. Khalili sought to help a man who is on trial, who has not been proved guilty and may never be proved guilty, it cannot be said that he committed misconduct. Accordingly I hold that the Council was not entitled to take any action against Mr. Khalili merely because he helped Mr. Andrades.

9. Learned counsel for the applicants has further argued that even if Mr. Khalili had committed misconduct, which he denied, the Council could not take action against him without giving him a show‑cause notice. In support of his argument, he relied on the provisions of Clause XXX and the principles of natural justice. Sub‑clause (i) of Article XXX states as follows :‑ "XXX (i): A member/player/official of the Association having a cause of complaint against any Member/player/ official of the Association shall be entitled to protest in writing, in duplicate, to ‑ the Honorary Secretary of the Association. Such protests or complaints shall specify the grounds on which the protests or the complaints are based with the statement of witnesses. All such papers shall be sent by the Honorary Secretary of the Association to the party concerned who will submit the reply within the time specified by the Honorary Secretary. A copy of the reply shall be forwarded to the complainant for further observations." As the President of the Association is an Official of the Associa tion the Council can take action against its President only after the Honorary Secretary has forwarded to him the complaint or the protest received against him. It is admitted that the resolution againstMr. Khalili was passed without giving him any opportunity to know of the complaints against him. Therefore, his removal was in flagrant contravention of the rules of the Association. As his removal was illegal it follows that the post of President of the Association did not fall vacant in November 1968 and the C Council acted illegally in appointing Mr. Valika, the first respondent, as its President. The Courts below therefore, usurped jurisdiction by granting a interim injunction to Mr. Valika in Suit No. 181 of 1968.

10. However, learned counsel for the respondents argued that even if the impugned orders were illegal, the Association had held its bi‑annual elections on 22nd February 1969 and Mr. Valika had been elected President by the new Council elected at these elections, therefore, he submitted that the revision applica tions had become infructuous. On the other hand, learned counsel for the applicants argued that the elections of February 1969 were illegal and had been h, Id fraudulently, therefore, the results of these elections were null and void. Assuming for the sake of argument that the elections of February 1969 were properly held, they cannot validate the illegal election of Mr. Valika as President of the Association in November 1968 nor can they alter the fact that Mr. Valika bad usurped the post of President from 12th November 1968, the date of his so‑called election until the elections of 1969. Revision Applicatton No. 73 of 1969 is therefore allowed.

11. However, in Revision Application No. 75 of 1969, which arises out of Suit No. 121 of 1969, learned counsel for the respondents argued that the suit bad not been properly instituted. Although the plaint in this suit is signed and verified by Professor Anwar Chaudhry and presented through his Advocate, the heading of the plaint states as follows :‑ "The Karachi Hockey Association, having its office at 579/JM‑3, Walker Road, Catholic Colony No. 2, Karachi through its Chairman Professor Anwar Chaudhry. " As I have observed, the Association is not registered, and, as a matter of interest, even its rules do not authorise its Chairman or any other person to file a suit on its behalf. Accordingly on the basis of the Societies Registration Act, 1861 and the provisions of Order I, rule 8, C. P. C. learned counsel for the respondents submitted that no suit could be filed in the name of the Associa tion, as had been done, therefore, in view of the provisions of Order I, rule 8, C. P. C. the suit had to be dismissed.

12. In order to appreciate learned counsel's argument it is relevant to bear in mind that an Association necessarily consists of a fluctuating group of persons. Such a group of persons is not a legal entity or a juridical person, therefore, it can neither sue nor be sued, except to the extent to which the Legislature has made express provision otherwise. Thus for instance, a group of persons constituting a registered firm can sue in the name of the firm under the provisions of Order XXX, C. P. C. The only other provision in our law, under which an Association or group of persons can sue in the name of the group or the Association, is contained in the Societies Registration Act, 1860. Section 6 of this Act, in so far as it is relevant states as follows :‑ "Every society registered under this Act may sue or be sued in the name of the president, Chairman, or principal secretary or trustees, as shall be determined by the rules and regulations of the society, and, in default of such determination, in the name of such person as shall be appointed by the governing body for the occasion." The necessary implication of this section is that no suit can be filed in the name of an unregistered Association. But this i does not mean that an unregistered Association is without redress. A wrong done to an Association is a wrong to all the members of that Association, therefore, the cause of action for the redress of that wrong vests in all the members of the Association and as no member of an unregistered Association can represent another member, it would follow that a suit seeking redress on behalf of an Association would have to be filed by rill the members of that Association. However, if no suit could be filed in respect of the rights of an Association unless every member of that Association was impleaded in the suit, it would be difficult to enforce such rights, therefore, in order to remove this difficulty, the Legislature has enacted Order I, rule 8 of the Civil Procedure Code.0 Order I, rule 8 states as follows :‑ "(1) Where there are numerous persons having the same interest in one suit, one or more of such persons may, with the permission of the Court, sue or be sued, or may defend, in such suit, on behalf of or for the benefit of all persons so interested. But the Court shall in such case give, at, the plaintiff's expense, notice of the institution of the suit to all such persons either by personal service or, where from the number of the persons or any other cause such service is not reasonably practicable, by public advertisement, as the Court in each case may direct. (2) Any person on whose behalf or for whose benefit a suit is instituted or defended under sub‑rule (1) may apply to the Court to be made a party to such suit," In view of the provisions of section 6 of the Societies Registration Act, 1860 and the above‑mentioned rule, it follows that a suit by a large group of persons having a common interest, such as the Association, can only be instituted under Order I, rule 8, C. P. C.

13. I may refer here to a judgment cited by learned counsel for the respondent, in support of his submission. In Ram Sarup v. Arya Samaj (A I R 1925 All. 337) Sulaiman, J., following earlier judgments of the Allahabad High Court, held "that an unregistered body cannot sue or be sued as a corporation but that all its members must be impleaded". Not only is this the view of the Allahabad High Court, but the other High Courts of the Sub‑Continent have also taken the same view. In Michael v. Briggs (I L R 14 Mad. 362) in Mahomed Nathubhai v. Husen (I L R 22 Bom. 729) and in Atmarzm v. Narayen (I L R 46 Bom. 132) the Madras and Bombay High Courts have taken the same view. Similarly, in Naroomal v. Raies Hashim (A I R 1940 Sind 63) a Division Bench of the Sind Chief Court held that a suit filed by a village Panchayat was a suit by a group of persons not registered as an Association and could only be filed in accordance with the provisions of Order 1, rule 8, C. P. C. I am in respectful agreement with these Judgments. Accordingly, I hold that Suit No. 121 of 1969 can be prosecuted only if it has been instituted in compliance with these provisions.

14. These provisions mean firstly that the person who has filed the suit (Professor Anwar Chaudhry) should have filed it either on behalf of the members of the Association or against them. Secondly, he should have obtained the Court's permis sion to prosecute his suit either on behalf of the members of the Association or on behalf of the persons supporting him provided they were numerous. Thirdly, notice of the suit should have been served directly or by publication on the members of the Association. I have referred to the heading of the plaint from which it is clear that, although the suit purports to be filed by the Association, it does not state that it is filed on behalf of all the members of the Association. Instead, Professor Anwar Chaudhry has made an entirely erroneous claim that he was entitled to sue in the name of the Association. Therefore, the suit has not been instituted in accordance with the said pro visions. As to the other requirements of Order 1, rule 8, C. P. C. by an application under Order 1, rule 8, C. P. C. dated the 27th January 1969, Professor Anwar Chaudhry had sought and obtained the Court's permission to prosecute the suit "on behalf of the remaining office‑bearers and members of the governing body known as Council of Karachi Hockey Association" and notice of the suit has been served on the persons shown in that application as members of the said Council. As there are 13 persons named in the application, an application for permis sion to sue on their behalf was reasonable, but this means that Professor Anwar Chaudhry had sought permission to prosecute the suit not on behalf of the members of the Association, but on behalf of the like minded members of the Council elected in 1967. The question that arises for consideration is whether members of the Association's Council are entitled to file a suit under Order 1, rule 8, C. P. C. As it was their duty to manage the Association and to ensure its Management according to the Rules, I am of opinion that they are persons interested in the Association within the meaning of Order I, rule 8, C. P. C., therefore, they are entitled to file the suit, but in that case, the suit can only be against the Association and all its members. As to the third requirement of Order 1, rule 8, C. P. C., namely a notice to the persons interested in the suit, it is clear that the order for notice obtained by Professor Anwar Chaudhry was not a notice contemplated under Order 1, rule 8, C. P. C. In the first place, the notice has been given to a select list of members of the old Council who support Mr. Khalili. I have to observe here that the provisions of Order I, rule 8, C. P. C. are similar to the provisions of Order XVI, rule 9, C. P. C. of the English Supreme Court Rules, 1883, except that unlike the English Rules the provisions of Order I, rule 8, C. P. C. contain an express provision for notice. It is, therefore, clear that the Legislature has f attached great importance to the question of notice, and the object of this notice is to give all interested persons the right to contest the claim in the suit. This object is totally frustrated if a notice is sent only to persons supporting the plaintiff, as has been done in the instant case. Secondly, whilst, as I‑ have observed, the members of the Council of the Association are clearly persons interested in the affairs of the Association, the members of the Association are also persons interested in the suit, as it relates to the Management of their own Association. Further, as the disputes in the instant case have arisen out of differences between rival groups in the Council of the Association, a Court should not decide such a dispute without notice to the members of the Association, as these members are the "persons" to whom the members of the Council are accountable. In this view of the matter, it is obvious that the order for notice obtained by Professor Anwar Chaudhry on 27th January 1969 was in flagrant violation of the mandatory provisions of Order I, rule 8, C. P. C.

15. In order to overcome this difficulty, learned counsel for the applicant feebly argued that the mode in wh1,;h the plaint had been filed by him was based on the observations contained in a judgment of the Sind Chief Court in Tattersals Club v. S. M. Sulaiman (P L D 1956 Kar. 49). The facts of that case were that Tattersals Club was an unregistered Association and the suit had been filed in its name through its Secretary, who had made an application under Order I, rule 8, C. P. C. for permission of the Court to sue on behalf of all members of the Club. The application was granted by the Registrar of the Court, who directed that notice of the suit should be published in the newspapers. As the Secretary did not deposit the expenses for effecting the said publication, as ordered by the Court, the suit was dismissed. In dismissing the suit, after observing that the Secretary had failed to implement the Court's order for publication of the notice of the suit in the newspapers a learned Single Judge of the Court stated: "The position therefore, is that the suit has been filed by the Secretary on behalf of an unregistered Club and the provisions of Order 1, rule 8, C. P. C. have not been complied with. In this state of things the suit is incompetent." Learned counsel relied on these observations, but I am not able to understand how these observations support his case. In the first place, in the judgment cited, the Secretary of Tattersals Club had riled an application to bring the suit on behalf of all the members of the club. In the instant case, as I have pointed out there is no such application by Professor Anwar Chaudhry who has presented and prosecuted the suit under revision, therefore, the judgment cited is distinguishable on this ground alone. However, learned counsel stated that because the suit was not dismissed on the ground that the plaintiff was described as Tattersals Club it supported his plea that, in the instant case also, a suit could be filed in the name of the Association. This argument is not sound. A judgment of a Superior Court dismissing a suit need not state every possible ground for dismissing the suit. As the learned Single Judge dismissed the suit by the Secretary of Tattersals Club on the short ground that he had not complied with the Court's order for notice in the newspapers, he may not have considered it necessary to discuss any other ground for dismissing . . . . . the suit, therefore, the absence of any observa tions about the description of the plaintiff does not mean that the description of the plaintiff was approved by the Court. In any case, as I have observed, a suit on behalf of an Association can only be filed by its members, therefore even if a contrary view was taken in the judgment cited, with very great respect, I would dissent from that view. Learned counsel also feebly argued that the view taken by the High Courts in the judgments cited was based on technical rules of English law which should not be followed in this Court. However, as I have observed; the provisions of Order I, rule 8, C. P. C, are based on the provisions of Order XVI, rule 9 of the English Supreme Court Rules, therefore, it was the intention of the Legislature that the rules of English law should be followed and in applying the principles of common law, the Courts have only carried out the intention of the Legislature. Learned counsel's arguments are without merit, and the trial Court should not have heard the injunction applica tion in Suit No. 121 of 1969 as the provisions of Order 1, rule 8, C. P. C. had not been complied with. The applicant is therefore, not entitled to any relief from this Court for the same reason, and Revision Application 75 of 1965 has to be dismissed.

16. As the plaint in Suit No. 121/1969 is admittedly defective, learned counsel for the respondents argued that the suit itself should be dismissed. As I have observed, there are two major defects in the suit. The first defect is that notice of the suit has not been served on the members of the Association, and the second defect is that the description of the plaintiffs is totally erroneous. No evidence has yet beep recorded in the suit therefore, as the provisions of the Civil Procedure Code are of an ameliorative nature, and not of a penal nature it seems to me that the plaintiff should be allowed an opportunity to cure these defects. Accordingly I invited learned counsel for the respondents to show me any law or authority, according to which the suit itself was liable for dismissal in these circumstances. Learned counsel was not able to cite any law or authority in support of his proposition, which is contrary to reason and equity. On the other hand, there is ample authority on this aspect of the case, which I shall now examine.

17. The first question for determination is whether a plaintiff who files a representative suit without obtaining an order for notice under the provisions of Order I, rule 8, C. P. C. should be given an opportunity to correct his mistake at a subsequent stage of the proceedings. The correct position is stated in Mulla's Commentary on the Code of Civil Procedure (12th Edition). In reference to this question the learned author states at p. 509 as follows :‑ "At what stage of the suit leave should be obtained. The proper course is to obtain permission before the suit is instituted, but if that is not done the rule does not forbid leave E being granted afterwards. Permission under this rule may be granted even after the institution of the suit (s), and even at the appellate stage by allowing an amendment if such amendment does not materially change the nature of the suit (t)." This passage states the settled law, accordingly the plaintiff in suit No. 121/69 should be given an opportunity to comply with the provisions of Order I, rule 8, C. P. C. and the suit should be dismissed only if he failed to avail himself of this opportunity.

18. As I have observed, the second major defect in the plaint is that the description of the plaint is totally erroneous. This error is of a technical nature, therefore, it would be very unfortunate if a suit had to be dismissed on account of a technical defect of this nature. Not only is there no provision requiring the Court to dismiss a suit on account of a technical defect, but the submission of learned counsel for the respondents is contrary to the express provisions of Order I, rules 9 and

10. Order I, rule 9 states as follows :‑ "No suit shall be defeated by reason of the misjoinder or non joinder of parties, and the Court may in every suit deal with the matter in controversy so far as regards the rights and interests of the parties actually before it." In so far as it is relevant, Order I, rule 10 states as follows: "Where a suit has been instituted in the name of the wrong person as plaintiff or where it is doubtful whether it has been instituted in the name of the right plaintiff, the Court may at any stage of the suit, if satisfied that the suit has been instituted through a bona fide mistake, and that it is necessary for the determination of the real matter in dispute so to do, order any other person to be substituted or added as plaintiff upon such terms as the Court thinks just. (2) The Court may at any stage of the proceedings, either upon or without the application of either party, and on such terms as may appear to the Court to be just, order that the name of any party improperly joined, whether as plaintiff or defendant, be struck out, and that the name of any person who ought to have been joined, whether as plaintiff or defendant, or whose presence before the Court may be necessary in order to enable the Court effectually and completely to adjudicate upon and settle all the questions involved in the suit, be added. (3) No person shall be added as a plaintiff suing without a next friend or as the next friend of a plaintiff under any disability without his consent. (4) Where a defendant is added, the plaint shall, unless the Court otherwise directs, be amended in such manner as .may be necessary and amended copies of the summons, and of the plaint shall be served on the new defendant and, if the Court thinks fit, on the original defendant. (5) Subject to the provision of the Indian Limitation Act, 1877, section 22, the proceedings as against any person added as defendant shall be deemed to have begun only on the service of the summons." The powers conferred on the Court under these rules are extremely wide, and the only restrictions on these powers are that they should be exercised subject to limitations, and in order to serve the ends of justice. In the instant case, I have held in Revision Application No. 73 of 1969 that the first respondent had illegally usurped the 1'residentship of the Association. As this is a finding in an injunction application it is not conclusive, and will not prevent the respondents from giving evidence to the contrary when the suit is heard, but it clearly establishes that the plaintiff has a claim for relief which merits serious consideration by the Court. The erroneous description of the plaintiffs has to be considered in this background. Turning now to the plaint, it has been signed and verified by Professor Anwar Chaudhry and prosecuted through an Advocate engaged by him. Whatever be the description of the plaintiff in the plaint, in fact the suit has been filed by Professor Anwar Chaudhry who is the real plaintiff in the suit. This is made clear by his application under Order 1, rule 8, C. P. C. which was granted by the trial Court on 27th January 1969. This application was nothing more than an application by Professor Anwar Chaudhry for permission to prosecute the suit on behalf of the numerous persons shown in that application who were supporting him against the respondents. I have therefore, no doubt that he is the plaintiff in Suit No. 121 of 1969. This means that the description of the plaintiff in the heading of the plaint is erroneous or at the highest that the suit has been filed in the name of the wrong person as plaintiff. But in either case, as the claim in the suit merits serious consideration and as no question of limitation is involved, it appears to me to be a fit case in which the Court should exercise its discretion under sub‑rule 1 of Order 1, rule 10, C. P.C. therefore, learned counsel's argument that the suit should be dismissed is without merit and the plaintiff has to be given an opportunity in the trial Court to cure the defects in the plaint, but if he fails to do so the suit will have to be dismissed.

19. Learned counsel for the respondents next argued that the suit becomes infructuous because the Association had held fresh elections in February 1969 in which the respondents had been elected, therefore, according to counsel, the passage of time had deprived the plaintiff of his cause of action. Learned counsel for the appellant sought to meet this argument by contending that the elections of February 1969, had been held illegally and fraudulently, therefore, they were null and void, and as these elections had been held more than a month after the suit was filed, he submitted that the Court was entitled to take notice of events that had taken place after the suit was filed, and should do in the instant cast% Although a Court may take notice of events that happen after a suit was filed, the allegations in tine instant case raise the plea of fraud, therefore, this plea cannot be entertained unless it has been specifically pleaded. Learned counsel then pointed out that he was not able to advance this plea of fraud earlier, because the respondents had denied him inspection of the minute books of the Association, and that it was only after inspection in this Court that he became aware of the true position. Be that as it may, as a plaint can be amended on account of events that have taken place after the plaint was filed, it will be open to the plaintiff to raise the plea of fraud by an amendment in the plaint in the trial Court, and the argument of learned counsel for the respondents that the suit has become infructuous is without merit.

20. Learned counsel for the respondents next argued that the suit was barred by the provisions of section 42 of the Specific Relief Act, 1877 because Professor Anwar Choudhry had no legai character within the meaning of section 42 to question Mr. Khalili's removal as President of the Association. But the suit has been filed by Professor Anwar Choudary not only to challenge the illegal removal of Mr. Khalili as President but to challenge the illegal usurption of the m anagement of the Association by the respondents It is common ground before me that the ProfessL;r Anwar Choudhry had been properly elected as a member of the Council of the Association in February 1967, therefore, if his contention that the respondents have illegL11y usurped control of the Council of the Association is correct, then it follows that he; is entitled to challenge that illegal usurption. Additionally, the consequence of the alleged usurption by the respondents has beef, Professor A near Choudhry's own removal from membership of l the Council of the Association and from the Chairmanship of the Association, therefore, the argument that he is not entitled to file a suit is without merit.

2. Finally, learned counsel for the respondents argued that, as Professor Anwar Chaudhry neither claimed any pecuniary relief nor was entitled to share in the assets of the Associa tion under rule 35 of the Association's Rules lie was not entitled to file the suit. Learned counsel submitted that this question had not been considered by our Courts or by the Courts of the Sub‑Continent, but in support of his argument he relied on the observations contained in the section on clubs in Volume 5 of Halsbury's Laws of England. Learned counsel referred me to the following passage in para. 621 at page 264 of the 5th Volume of Halsbury's Law's. This passage states :‑ "The foundation of the jurisdiction of the Court to interfere at the instance of a member improperly expelled, in order to reinstate him, is the right of property (which need not be a beneficial right in land or chattels and may be a right in contract vested in the member, of which he is unjustly deprived by the unlawful expulsion." Learned counsel admitted that these observations related to clubs, but he submitted that the same principles had been extended by the English Courts to the disputes between the members and Associations, therefore, these principles should be applied to the instant case. Learned counsel also relied on a judgment of the Masters of the Rolls in Rigby v. Connol ((1880)14 Ch. D 482).

22. However before considering this judgment, I shall refer to a judgment of Romilly M. R. in Hopkinson v. Marquis of Exeter (5 E C 63) which has been followed in Rigby v. Connol. In dismissing a suit tiled by a member against his expulsion from a very famous club, the conservative Club, Romilly M. R. has explained the reasons for the reluctance of the Courts to interfere in disputes between members and their clubs. At page 67 the learned Master of the Rolls has observed: "These clubs are very peculiar institution. They are societies of gentlemen who meet principally for social purposes, super added to which these are often certain other purposes, some time of a literary nature, sometime to promote political objects, as in the "Conservative" or the "Reform Club". But the principal objects for which they are designed are social, the others are only secondary. It is, therefore,‑ necessary that there should be a good understanding between all‑ the members, and that nothing should occur that is likely, to disturb the good feeling that ought to subsist between them." Then, after discussing the facts of the case, the learned Master of the Rolls, has stated that the Court should interfere rarely in such disputes and observed‑‑ "None but the members of the club can know the little duties which are essential to the social well being of such a society of gentlemen and it must be a very strong case that would induce this Court to interfere." No exception can be taken to the principles laid down in these observations, but the question is whether the principles contained in these observations should be extended to disputes between members of an Association and an Association, as has been done in Rigby v. Connol.

23. In Rigby v. Connol a suit by a member of a Trade Union against his expulsion was dismissed. The suit could have been dismissed on the short ground that the Trade Union was an illegal Association under the law .then prevailing in England. However, instead of dismissing the suit on this ground Jessel M. R. Also dismissed it on the ground that the plaintig had no pecuniary interest in the Association, therefore, he could not file a suit. At page 487 Jessel M. R. has observed as follows "The first question that I will consider is, what is the jurisdiction of a Court of equity as regards interference at the instance of a member of a society to prevent his being improperly expelled therefrom? I have no doubt whatever that the foundation of the jurisdiction is the right of property vested in the member of the society, and of which he is unjustly deprived by such unlawful expulsion. There is no such jurisdiction that I am aware of reposed, in this country at least, in any of the Queens Courts to decide upon the rights of persons to associate together when the Association possesses no property. Persons, and many persons, do associate together without any property at all. A dozen people may agree to meet and play whist at each other's houses for a certain period, and if eleven of them refuse to associate with the twelfth any longer, I am not aware that there is any jurisdiction in any Court of Justice in this country to interfere. Or a dozen or a hundred scientific men may agree with each other in the same way to meet alternatively at each other's houses, or at any place where there is a possibility of their meeting each other ; but if the Association has no property, and takes no subscrip tions from its members, I cannot imagine that any Court of Justice could interfere with such an Association if some of the members decline to associate with some of the others. ' That is to say the Courts, as such, have never dreamt of enforcing agreements strictly personal in their nature, whether they are agreements of hiring and service, being the common relation of master and servant, or whether they are agreements for the purpose of pleasure or for the purpose of scientific pursuits, or for the purpose of charity or philanthropy in such cases no Court of Justice can interfere so long as there is no property the right to which is taken away from the person complaining." Thereafter Jessel M. R. has referred to the leading cases on the law of clubs and followed the judgment of Romilly M. R. in Pawkinson v. Marquis of Exeter to which I have referred. It is clear from a perusal of the judgment of Jessel M. R. that in holding that the jurisdiction of the Courts should be limited to cases in which the plaintiff claimed a pecuniary interest in the assets of the Association, the learned Master of the Rolls had equated all Associations with social clubs. But to quote the examples cited by the learned Master of the Rolls, whilst there is an analogy between a social club and an Association formed for the purpose of playing whist, with great respect, I can see no analogy between a club and an Association for promoting science or education or any form of welfare activity. As pointed out by the learned Master of the Rolls the relations between a group of persons who got together to play a game of whist are not intended to create legal relations, but with respect of the relations between members of an Association formed for promoting education or science are intended to be governed by rules, not by whim or caprice or the idiosyncracies of its members, therefore, the formation of such an Association envisages legal relations between its members. Accordingly, whilst it is just and equitable to restrict interference by the Courts to a minimum in the former case by following the law applicable to social clubs, it would be contrary to reason and equity to apply the law of social clubs to Associations dedicated to public welfare activities of any type. Further, such Associations may own extensive property but because their object is charitable, the members of such Associa tions cannot claim any pecuniary interest whatsoever in the assets of the Association. According to the learned Master of the Rolls, this would automatically debar the Courts from giving relief in any claim by a member of such an Association on the short ground that he had no pecuniary interest in the Association. If this view is accepted, it would put a premium on dishonesty and encourage unscrupulous persons to seize control of such Association and use them for their own benefit. Therefore, the consequences of the observations of Jessel M. R. made nearly a 100 years ago when such Associations did not play any significant part in welfare activities, are not conducive to justice, equity and good conscience, and it would be unfortunate if these observations had to be followed in this Court.

24. I am fortified in my opinion by the subsequent criticism, in the English Courts, of these observations. Thus in Osborne v. Amalgamated Society of Railway Servants ((1911) 1 Ch. D 540). Fletcher Moulton, L. J. has criticised these observations and observed (at page 562) as follows: "If by the term `property' the learned Judges (Jessel M. R.) intended to mean a beneficial interest in land or chattels, I am of opinion that this dictum goes too far. There are many rights which in such a sense could not be called rights of property, which, nevertheless, the law will protect, as, for instance, if there was an Association of men subscribing for a benevolvent purpose, may for the endorsement of a scientific institution, the whole funds of the Association being dedicated to that charitable purpose on the terms that the administration should be under the control of the Association, I can see no reason why membership of such an Association should not have the same legal protection as would be given in the case of an Association where the members had a beneficial interest in the funds."

25. The correctness of the observations of Jessel M. R. in Rigby v. Connol again came up for consideration before the Court of Appeal in Abbott v. Sullivan and others ((1952)All E L R 226) and after considering the said judgment and its criticism the Fletcher Moulton L. J., which I have also quoted, the Court of Appeal followed the observations of Fletchar Moulton L. J. At page 238, in reference to the observations of Fletcher Moulton, L. J., Morris, L. J. has observed as follows :‑ "He (Fletcher Moulton, L. J.) said that there were many rights which in such a sense could not be called rights of property which, nevertheless, the law would protect. As an instance he said that there would be protection of membership of an Association of men subscribing for a benevolent purpose where the administration would be under the control of the Association even though the member had no beneficial interest in the funds. On the basis discussed by Fletcher Moulton L. J. the Court is, in my judgment on the facts of the present case entitled to intervene." The views of Fletcher Moulton L. J. were again approved by the Court of Appeal in Lee v. Showmen's Guild of Great Britain ((1952) 1 All E L R 1175) to which I have referred in para.

6. In his judgment Denning L. J. has observed at page 1180 :‑ "It was once said by Sir G. Jessel, M. R. that the Courts only intervened in these cases to protect rights of property ; see, for instance Cookson v. Harewood (1932) 2 K B 481 and 488). But Fletcher Moulton L. J. denied that there was any such limitation on the power of the Courts ; see Osborne v. Amalgamated Society of Railway Servants (1911) 1 Ch. D 562) ; and it has now become quite clear that he was right ; see Abbot v. Sullivan ((1952) 1 All E L R 1175). Abbot's Court to intervene is founded on its jurisdiction to protect rights of contract. If a member is expelled by a Committee in breach of contract, this Court will grant a declaration that their section is ultra vires. It will also grant an injunction to prevent his expulsion if that is necessary to protect a proprietary right of his, or to protect him in his right to earn his Livelihood ; see Amalgamated Society of Carpenters, Cabinet Makers and Joiners v. Braithwaite (6), but it will not grant an injunction to give a member the right to enter a social club, unless there are proprietary rights attached to it, because it is too personal to be specifically enforced ; see Baird v. Welles 54 Ch. D 675,

676. That is, I think, the only relevance of rights of property in this connection. It goes to the form of remedy, not to the right." In view of these judgments of the Court of Appeal, it appears to me that the trend of the English Authorities is to restrict the observations of Jessel M. R. to suits against social clubs only and even if these observations have not been completely over. ruled, they conflict with the observations of Fletcher Moulton L. J. in Osborne v. Amalgamated Society of Railway Servants. The observations of Fletcher Moulton L. J. are consistent with the principles of equity, justice and good conscience, therefore, in view of the absence of any law or usage on the question of the plaintiff's right to sue, in my humble opinion, it is these observations which should be followed as principles of justice, equity and good conscience. It is true that these observations refer only to the rights of a member of what Fletcher Moulton L. J. described as a benevolent Association. But the Association in the instant case is a benevolent Associa tion, therefore I see no reason why relief should not be given at the instance of a member of its Council. On the other hand, there are reasons why such relief should be given by this Court. In the first place, the Association is of a peculiar nature and its members themselves are Associations which may be unregistered, therefore, it may be difficult for the members of the Association to take action on behalf of the Association. Secondly, the members of the Association have elected the members of the Council for the purpose of managing the affairs of the Association and have thereby expressed their confidence in the members of the Council: Thirdly, the properties and' assets of the Association are controlled by the Council whose members stand‑in a fiduciary relationship to those assets and properties. They would be liable as constructive trustees for any malversation of the assets of the Association, therefore, it is both their right and their duty to see that the Association is managed in strict compliance with its rules, because the consequences of contravention of the rules may be for reaching and may lead to malversation. In this view of the matter, it is obvious that a member of the Council is entitled to file a suit to ensure that the Association is governed according to its rules. But the relief sought in the plaint by Professor Anwar Chaudhry is only that an injunction should be granted so as to ensure that the Associa tion is managed according to its rules. He is therefore, entitled to sue for such relief and the suit is maintainable.

26. In the result, Revision Application No. 73 of 1969 is allowed and Revision Application No. 75 .of 1969 is dismissed. The suits will now be heard and decided according to law by the trial Court, but before proceeding with the suits the trial Court shall first give Professor Anwar Chaudhry reasonable opportunity to correct the plaint in the light of the observations made herein. In the circumstances of the case I do not make any order as to costs. S. A. H. Order accordingly.