1992 PLP 466 (CLC)

(1) Defendant No.2 is not a registered body. No suit can be filed against it without permission of the Court. (2) Section 4(2) of Sindh Ordinance (VIII of 1980) envisages that the Director of Sports, Government of Sindh, shall act as the Secretary of the Board. It is not so in the present case. (3) No notice was served by the plaintiff on defendant No.1 before taking the alleged action of suspension, supersession of the "Association". Defendant No.1 was not heard as to the so‑called irregularity, misappropriation of funds, misrepresentation etc. (4) Annexure would reveal that an action in terms of section 9(b) was contemplated but the plaintiff instead illegally and without jurisdiction has taken steps for suspension/supersession of the Association under section 12. (5) The Managing Committee of the Association cannot be superseded for a period of more than one year in view of section 12(2) of the Ordinance. (6) The defendant No.1 was not found responsible for misappropriation of fund or mismanagement of the affairs of the Association as no order for his removal from the Association has been made by the plaintiff nor was he disqualified from becoming a member of the Association, therefore, the ad interim order of injunction may be recallod. Mr. K.M. Nadeem, learned counsel for the plaintiff, contended that Order I, Rule 8, C.P.C. is an enabling provision and permits a plaintiff or defendant to obtain leave to file or defend the suit in a representative capacity. It would be advantageous to reproduce here the provisions of Order I, Rule 8, C.P.C. as under:‑‑ "One person may sue or defend on behalf of all in same interest.‑(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 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 Rangal Shah v. Mula Jadal PLD 1960 Kar. 512, it was held that Order I, Rule 8, C.P.C. is an enabling provision of law and does not entail any compulsion for a person to. bring a representative suit, where an action can be maintained by him without joining others. It simply enables a person to represent many others who have a common cause of action with him, but if his action is maintainable and he can proceed independently of the others, he does not at all stand in need of including others or to prefer a representative suit. In Saleh Muhammad and 2 others v. Haji Jumma Khan Agha and 4 others, 1983 SCMR 587, it was held that the provision of Order I, Rule 8 being only enabling and permissive and not mandatory in nature, a suit is not necessarily to be instituted in representative capacity in case of there being several persons interested in suit or proceedings. In the above citations, the question before the Court was whether in case of common cause of action a suit was required to be filed by the plaintiff in a representative capacity or not. Here the objection taken by Mr. Afsar Ali Abidi is that the defendant No.2 is an unregistered Association and it cannot be sued unless permission is obtained by the plaintiff from the Court to sue it, A bare reading of Order I, Rule 8, C.P:C. will reveal that it contemplates no legal bar or disability of the plaintiff such as an unregistered firm shall have to institute a suit upon contract against a third party under section 69 of the Partnership Act. What is contemplated under Order I, Rule 8, C.P.C. is that a plaintiff or a defendant may seek permission of the Court to sue or be sued in a representative capacity. There is nothing in law which exonerates an unregistered Association of any liability or exempt it as privileged body from being sued, for it would defeat the ends of justice. Had such being the case an unregistered Association would have free licence to indulge in all sort of illegal activities, setting up at the same time the plea taken by the learned counsel for the plaintiff. Next it was contended by Mr. K.M. Nadeem that a show‑cause notice was issued to the defendant No.1 before a decision was taken by the plaintiff. Reference was first made to paras. 6, 7 and 8 of the plaint wherein are found charges of misconduct, misappropriation and misapplications of fund against the office‑bearers including defendant No.1. A no‑confidence motion was also adopted against them. In paras. 30‑31 of the counter‑affidavit filed by the defendant No.1 reference was made to the illegally constituted parallel body under the name and style of Sindh Amateur Athletics Association whereupon the defendant No.1 and others were called upon to give their pleas in writing or appear in person before the Executive Committee of the plaintiff. Next reference was made to Annexure `G' filed by the defendant No.1 being a notice sent by the plaintiff and Annexure "H" being a letter from the Secretary of defendant No.1, expressing his inability to attend the meeting on the ground of want of jurisdiction as the authority to resolve the dispute was the Pakistan Amateur Athletics Federation defendant No.2. It was pointed out by Mr. K.M. Nadeem that the Annual General Meeting of the plaintiff was held on 27‑3‑1991 at 11‑00 a.m. which was chaired by the Governor of Sindh, in which amongst others the following decisions were taken:‑‑ (1) That in future Secretary Culture Sports, Tourism and Youth Affairs shall act as Secretary of the plaintiff. (2) The meeting took serious not of the rising trend of parallel body in Sports Organizations with special reference to illegal action by defendant No.1 for amending the constitution of the Sindh Amateur Athletics Association without consent of the plaintiff Board. The proposed amendments were never approved by the plaintiff with the result that two parallel bodies came into existence. (3) That the Executive Committee of the plaintiff was directed to take necessary steps to hold elections of only one body under the name of the said Association. Reference was made to Section 11 whereunder no amendment is possible to the constitution of the Association without the consent of the Board. However, pursuant to decision taken at the said meeting of the plaintiff, elections of the Association were held on 27‑8‑1991 and new office‑bearers were elected. It was lastly contended that Section 12 of the Sindh Sports Ordinance (VIII of 1980) clearly confers jurisdiction on the plaintiff Board to take any action as envisaged therein against any Association registered with it and the objection raised by defendant No.1 is not valid at all. At this stage of the case it will not be possible to adjudge all aspects of the case. However, it is an admitted position that after the decision was made by the general body of the plaintiff, defendant No.1 did not participate in the elections of the Association and a new team of office‑bearers and Committee members was elected. According to Mr. K.M. Nadeem, learned counsel for plaintiff, the Secretary Culture, , Sport, Tourism 4nd Youth Affairs, Government of Sindh is now the Secretary of the plaintiff Association as per the decision of the general body. As such this suit has been filed by a duly authorised person. Further the plaintiff after making an enquiry as envisaged under section 12 had taken action complaint of by the defendant No.1, but he was afforded an opportunity of being heard by the Managing Committee. In view of the facts enumerated above, the plaintiff has made out a prima facie case for injunction and defendant No.1 has failed to justify vacating of ad interim injunction, earlier granted by the Court. Resultantly. I grant C.M.A. No.4200 of 1991 filed by the plaintiff and dismiss C.M.A. No.4548 of 1991 filed by the defendant and the injunction is hereby confirmed till the disposal of the suit. H.B.T./S‑810/K Ad interim injunction confirmed.