P L D 1950 Peshawar 55 (PLP)

(g) an interlocutory injunction be granted against the respondents that they should not interfere in the petitioner's using the Abbottabad Club, Limited as a temporary member pending the decision of this petition. (h) such other relief as the Court may deem just and. equit able be also granted to the petitioner against the respondents with costs. Notice was duly issued to the respondents, who were seven in number. Brigadier Sir Hissamud‑Din Khan and Mufti Muhammad Akram, the Secretary of the Club were present in person and were represented by Mr. Peer Bakhsh Who was also the counsel for the absent respondents. A preliminary objection was raised by the learned counsel for the respondents that para. No. 7 of the application, showed that it was in the form of a suit, which this Court was not competent to entertain. Para. No. 7 of the application runs as under:‑-- "That the value of the suit for the purposes of Court‑fee and jurisdiction is given in the heading." Both the values, are in fact given in the heading, the value for purposes of Court‑fee being Rs. 5 and that for jurisdiction Rs. 6,

000. The learned counsel for the petitioner concedes that this Court cannot maintain any suit, because it has got no original jurisdiction. He, however, contends that para. No. 7 of the petition is superfluous and should be deleted, and the application considered as having been made under the relevant, provisions of the Indian Companies Act, I accept the prayer made by the learned counsel for the petitions: arid order that para. No, 7 of the petition be considered as deleted, The values for purposes of Court‑fee and jurisdiction given in the heading of the petition will automatically be considered as deleted. The application purports to have been made under sections 38, 20, 85, 87, 65, read in conjunction with sections 55, 53, 22 and 91‑B and para. 18 of the First Schedule of the Indian Companies Act. All the sections given in the petition were read in Court, and the learned counsel for the petitioner admitted that except section 38, the rest of the sections as given in the heading of the petitioner were absolutely irrelevant. In fact, the reading of those sections would make it clear that no petition can be entertained by this Court under those provisions of law. The relevant provisions of section 308 of the Indian Companies Act run as under " (1) (a) the name of any person is fraudulently or without sufficient cause entered in or omitted from the , register of members of a Company ; or (b) default is made pr unnecessary delay takes place in entering on the register the fact of any person having caused to be a member, the person aggrieved, or any member of the Company, or the Company, may apply to the Court for rectification of the Register. (2) The Court may either, refuse the application, or may order rectification of the register and payment by the Company of any damages sustained by any party aggrieved, and may make such order as to costs as it in its discretion thinks fit." The argument of the learned counsel for the petitioner was that the name of the petitioner had been omitted from the register of the members fraudulently and without any sufficient cause, and that the register should, therefore, be rectified by inserting his name in it. According to him expunging the name of the petitioner from the register of members of the Club is an omission from such register of the name of the petitioner within the meaning of section 38 (1) (a). There is no definition of " omission." given in the Indian Companies Act, but the use of this word in the section clearly signifies that there should be something left undone fraudulently, by mistake, negligently or otherwise in the register of the members of a Company, that requires to be rectified by the Court. It comes to this, that if a person is a regular member of a Company and his name has been left out from the register either by mistake or by negligence, or even fraudulently, then this Court tinder section 38 of the Indian Companies Act has got the authority to order its rectification. This Court, however in my opinion, has no jurisdiction to order a Company; to accept any person 'as a member who has been expelled by it. Any order to this effect by this Court will, as a matter of fact, amount to interfering with the internal management of the Company, which is neither desirable nor legal. If this Court, as has been conceded by the learned counsel for the petitioner, has‑‑no right tip thrust any new member on a Company. it is difficult to understand how can it have right to inflict a person on it ; who has been expelled? N. D. Qureshi has been expelled, from the Club and as such his name has been removed from the register of its members. This in my view, is 'not a case in which the name of a person has been omitted from the register of the members of the Company within the meaning of suction 38 of the Indian Companies Act. The learned counsel for the petitioner in support of his view quoted a case reported as A I R 1946 Mad. page 35, in which it was held by Mr. Justice Clerk, that the register of the members of a Company is public document and there is no provision in the Companies Act which permits the directors of a Company or any officer of a Company to make any alteration to the register, e.g., removing names of certain members on the ground that they had been improperly added to the register. The remedy of the Company is to apply to the Court under section 38 for the rectification of Its register and not to take upon itself to alter the register." This was a case in which two gentlemen had applied‑ for shares which were duly allotted to them and their names entered in the register of the members. Two months later the Directors of the Company resolved to cancel the allotment of these shares to the applicants and it was on account of this reason that their names were‑removed from the register of members. From the judgment, it appears that the Directors of the Company under the Memorandum and Articles of Association has no right to cancel the allotment and thereby order the removal of the names of certain persons from the register of members. In the present case, the authority to expel a member from membership of the Club has been given to the Club Committee by Article 14 of the Articles of Association, part (b) of which runs as follows:‑-- Should the Committee receive a report regarding the conduct or action of a member, whether within or without the Club which appears to them to be likely to injure the interest or good name of the Club, they shall communicate the particulars of the report to the member without delay, together with a request for an explanation to be furnished by him in writing by such date as they may consider reasonable. The date shall precede the next Committee meeting, and each member shall be informed by the Secretary that the matter will be discussed at the, meeting at which at least six members must be present." Should the member neglect to furnish the explanation called for or should the explanation furnished be regarded as unsatisfactory by two‑third of the members present the member shall be informed in writing that he has been suspended from use of the Club, and that he must resign. Should he fail to do so within 28 days the Committee has power to expel hire from the Club and expunge his name from the roll of members." It is not denied in this case that N. D. Qureshi was given enough opportunity to explain his conduct and it was after his explanation was fully considered by the members that it was resolved that he should be asked to resign, failing which he will be expelled from the Club. The case cited, therefore, is easily distinguishable. The other case cited by the learned counsel for the petitioner is repeated in A I R 1936 (P.C) at page

212. This was a case from Ontario, and the judgment of their Lordships of the Privy Council was given in an appeal arising out of a declaratory suit. It has obviously no application to the present case, particularly when we do not know what the law in Ontario governs the Companies. If was next contended by the learned counsel for the petitioner, that the Articles of Association being not in conformity with the Memorandum of Association are invalid in law. He, however, failed to point out to me as to how any provision of the Articles of Association is at variance with the Memorandum of Association. The petitioner, however, seems to be bound by the Articles of Association, because under its Article 12, when he became the member, he automatically signified his consent to conform to and be bound by the Memorandum and Articles of Association of the Club. The Committee of the Club has given its decision as authorized to do so by Article 14 of the Articles of Association and N. D. Qureshi, therefore, is bound by this decision. The learned counsel for the petitioner also faintly contended that three members of the Club, namely, Ghulam Sarwar Khan, Taj Muhammad Khan and Brigadier Sir Hissam‑ud‑Din were not the regular members, and consequently the meeting at which the petitioner was expelled was not legally constituted. There is nothing on the record to show that the gentlemen named above are not the regular members of the Club, and I, therefore, see no force in this argument. The result is that I dismiss the petition with costs. Counsel's fee Rs.

100. Orders announced. K.M.A. Petition dismissed.