P L D 1975 Karachi 556 (PLP)

DORAB PATEL, J.‑This Letters Patent Appeal has been filed against the judgment of a learned Judge on the original side of this Court by which the learned Judge dismissed the appellant's suit for damages, and for declaratory relief.

2. The appellant is now an Advocate of this Court, but 21 years ago he was a Stock broker, and in order to carry on this occupation he had to become a member of the Karachi Stock Exchange (hereafter called the Stock Exchange). Accordingly, he applied for the membership of the Stock Exchange and became a member in July 1953. He had to pay a membership fee of Rs. 5,000 which be did, and for which be obtained the usual membership card. The next year, like other brokers, he was able to get an office in the building of the Stock Exchange. His further contention, as stated in the plaint, is that the then Secretary of the Stock Exchange, to whom I will refer as the Secretary, was hostile to him, and so was another member of the Stock Exchange, Mr. A. A. Gani. The reason for this hostility against him was that he was a law graduate and was educated and related to officials in the Finance Ministry, a circumstance on account of which other members of the Stock Exchange distrusted him. In this background, his plea in the plaint was that on 22‑10‑1954 the said Mr. Gani and his own employee, one Allahrakhia, assaulted him whilst he was on his way to the Stock Exchange, therefore he informed the Secretary of this attack and requested for protection. Then, according to the plaint, when he visited his office in the Stock Exchange on 25‑10‑1954, the Secretary and another Director of the Stock Exchange forcibly removed all his papers, documents and furniture from his office in the Stock Exchange. As this forcible removal of his papers and furniture made it impossible for him to carry on his business, he stopped attending his office, but about two weeks later, in the first week of November, he learnt that he bad been declared a defaulter under rule 44(a) of the Rules and Regulations of the Stock Exchange. He therefore protested to the Secretary and to the Directors of the Stock Exchange against this illegal declaration, declaring him to be a defaulter, but as this only annoyed the Directors, they retaliated by removing his furniture from his office. After protesting against this highhandedness, he filed a criminal complaint which, however, was unsuccessful, because of the influence of the Directors of the Stock Exchange. Legal notices were thereafter exchanged between the parties. Next on 18‑7‑1955, the Secretary called upon him to appear before the Defaulters Committee on 22nd July 1955, and then by another letter dated 22‑7‑1955 (Exh. 22) to appear before the Defaulters Committee on 27‑7‑1955. According to the appellant, he had not received the earlier letter of 18‑7‑1955 (Exh. 21), but he replied to the second letter on 27th July 1955. In this letter (Exh. 22‑A) he informed the Secretary that he would not appear before the Defaulter Committee as he was not a defaulter, but he expressed his willingness to appear before any other Committee appointed by the Directors of the Stock Exchange, and as he had learnt that the Stock Exchange had sold his membership card, he warned the Secretary that this was illegal. Finally, after a further exchange of legal notices, the appellant filed the suit under appeal against the Stock Exchange and the Secretary for a declaration that the order of the Stock Exchange declaring him to be a defaulter was illegal and ultra vires and for damages. The damages sought were, on the heavy side, the claim being for defamation, for loss of business and for the recovery of the property seized from him. I may also point out here that as the appellant was a pauper, he had filed an application under Order XXXIII of the Civil Procedure Code which was converted after the usual enquiries into a suit.

3. Both the Stock Exchange and the Secretary filed written statements, and as they are almost identical, I will refer only to the Stock Exchange's written Statement. The written statement denied all the allegations made by the appellant in his plait, including those which alleged mala fides. The order declaring the appellant to be a defaulter was however admitted, and the plea taken in the written statement was that the Stock Exchange had received a complaint from Mr. A. A. Gani that the appellant had obtained 50 shares of the Batala Engineering Company from him, but bad not paid for them, therefore, the Secretary had sent a telegram to the appellant calling upon him to be present at the Stock Exchange on the 25th October 1954 "failing which you will be declared a defaulter for non‑payment for 50 shares of Batala Engineering delivered to you by member A. A. Gani." This telegram was returned with the endorsement ; "Addressee left", therefore, to quote paragraph 8 of the written statement "Thereupon the plaintiff was declared a defaulter on 25‑10‑1954 under the Rules" of the Stock Exchange. The allegations about the forcible seizure of the appellant's papers and furniture were also denied, and the further plea in paragraph 9 of the written statement was that the appellant "himself by reason of his having defaulted as stated above voluntarily signed, sealed and delivered (the papers) to the Secretary of the Exchange in the afternoon of 25‑10‑1954 in the presence of two Directors of the Exchange. It is further stated that it is the custom of the Stock Exchange that on default a member hands over all his books of business (to) the Exchange and all his account books and contract books and other relevant papers to the Exchange. The action of the plaintiff in handing over part of his papers to the Exchange was in conformity with this custom although he has failed to comply with the custom in full." Finally, it is sufficient to state here that the written statement also contained a plea that the appellant bad, in his written representations to the Stock Exchange on 16‑4‑1955, admitted that he had failed to pay Mr. A. A. Gani the price for the 50 Batala Engineering Company's shares received by him.

4. On these pleadings abut 30 issues were framed, but as the number of issues was absurdly excessive, they were recast at the time of the hearing of the suit. Both the parties further stated before us that even the issues thus recast were excessive, and I will, in this judgment, only examine those issues on which arguments were advanced before us. However. I would first point out that the appellant examined himself, and a witness in support of his case, but the learned Judge rejected the appellant's evidence with a strong strictures on him. The Stock Exchange, on the other hand, examined several witnesses. It examined Mr. Maneckji Byramji (hereafter called Mr. Maneckji), who was one of the two Directors who had passed the order (Exh. C/2) declaring the appellant a defaulter. The Stock Exchange also produced other evidence, including documentary evidence, in order to prove that Mr. A. A. Gani's complaint against the appellant was true. Now, except for the evidence of Mr. A. A. Gani, none of the evidence produced in Court was before the Directors when they passed the order (Exh. C/2). Yet on the basis of this evidence the learned Judge held that the appellant was a defaulter. Then, on the basis of Mr. Maneckji's evidence, he held that the appellant had received a show‑cause notice and had admitted his default Accordingly, he dismissed the suit by his judgment dated 17‑10‑1963.

5. Aggrieved by this judgment, the appellant filed a Letters Patent Appeal, and during the hearing of his appeal, he presented directly before us an application for recording further evidence, which I will consider presently. The appeal has been argued at very great length, because the parties were not agreed on any relevant fact. And I would first examine the conflicting versions of the parties about what happened between 22‑10‑1954 and Monday, 25‑10‑1954. The appellant's version was that as he had been assaulted by Mr. A. A. Gani on 22‑10‑1954 on his way to the Stock Exchange, he did not go to his office that day, but had gone for a short while on 23‑10‑1954 arid on 25‑10‑1954. Mr. A. A. Gani denied this allegation of assault in his evidence, and, according to the Stock Exchange, the appellant had kept away from his office on the 22nd and 23rd because he had failed to pay Mr. A. A. Ghani for 50 Batala shares purchased from him~ Apart from the discrepancies in the evidence about this sale by Mr. A. A. Ghani, Mr. A. A. Ghani admitted that he had business transactions with the appellant prior to this sale of 50 Batala shares, and he was compelled to admit that he bad not been able, in those earlier transactions, to give delivery to the appellant of the shares purchased from him by the appellant, and that, under the rules, in the event of a failure by a member to give delivery within 15 days, to quote the witness, "The Stock Exchange buys the shares .... delivers them to the buyer and debits the account of the seller." The appellant's statement that Mr. A. A. Ghani had failed to deliver the shares sold by him for periods varying between sit weeks and three months was not questioned in cross‑examination, so that there cannot be any doubt about the gross breach of contract by Mr. A. A. Ghani. Accordingly, and this was also not challenged in the appellant's cross‑examination, the appellant had sent a written complaint to the Secretary on 27‑9‑1954 about Mr. A. A. Ghani's breach of contract. But it is admitted that the Secretary took no action whatsoever on this complaint, and there is no explanation of his failure to take action against Mr. A. A. Ghani.

6. In this background, can we accept Mr. Munshi's submission that the appellant's evidence of his movements on 22nd and 23rd October was improbable ? So it seemed to us at first sight. But, according to the Minutes of the meeting of the Directors of the Stock Exchange dated 23‑11‑1954 (Exh. C/21), Mr. A. A. Ghani had requested the Stock Exchange to bar his father's entry to the Stock Exchange. To say the least, the appellant's evidence does not appear improbable in this background and it should not be rejected merely because businessmen generally do not come to blows, unless of course the appellant had a motive for keeping away from the Stock Exchange. According to Mr. Munshi, the motive was the appellant's fear that Mr. A. A. Ghani would report his default. The argument assumes that Mr. A. A. Ghani's evidence is true, and only for the purpose of examining the argument, I will assume that it is true. But the question is whether this assumption is in any way inconsistent with the appellant's evidence, or whether it supports Mr. Munshi's plea before us that the appellant had been absconding from, the Stock Exchange on the 22nd or 23rd of October. Mr. A. A. Ghani's complaint was delivered to the Stock Exchange on the morning of 23rd October, which means that even according to Mr. A. A. Ghani, the price for 50 Batala shares had been due from the appellant for less than 48 hours. But the price of 75 Batwia shares had been due a month earlier from. Mr. A. A. Ghani to the appellant for a period of more than six weeks, yet the Secretary had taken no action whatsoever on the appellant's complaint. In this background, I do not see how the appellant, or, indeed any broker in a similar situation, could have assumed that action would be taken against him by the secretary, therefore, there was no reason whatever for the appellant to keep away from his office, and I accept his evidence. I may pause here to refer to another important .circumstance, which also escaped the attention of the learned Judge This was that Mr. A. A. Ghani was the brother of a Director of the Stock Ex change at the relevant time, therefore, the patent discrimination shown by the .Secretary against the appellant supports the appellant's submission before us that the Secretary had one standard for the Tsars of the Stock Exchange and their families, and another standard for the Ordinary members of the Stock Exchange. Reverting however to the events leading up to 25‑10‑1954, I am satisfied that the appellant's absence from his office on 22‑t0‑11454 was totally innocuous and no sinister meaning can he read into it. Then, as to Saturday, the 23rd October. the appellant stated that he had come to his .office in the Stock Exchange for a short time only, but the learned Judge rejected this as a false statement, because, according to Mr. Maneckji, the appellant was not in the Stock Exchange when the Secretary had sent :for him. Now as the appellant did not say that he had been in the office on the whole of Saturday, I see no inconsistency between his evidence and that of Mr. Maneckji. Accordingly, I cannot agree with the view taken by the learned Judge, and this apart from my doubts about admissibility of Mr. Maneckji's evidence, which I will presently consider.

7. The result of this discussion is that I accept without hesitation the appellant's statement that he happened not to be in his office in the Stock Exchange when the Secretary wanted to see him, about Mr. A. A. Ghani's ,complaint, therefore, the Secretary had sent him the telegram which I quoted in paragraph 3 earlier. I shall refer to this telegram as the said notice, because it was a notice warning the appellant that he would be declared a defaulter if he did not appear before the Stock Exchange. The said notice was returned unserved with the endorsement "addressee left", and, according to the evidence of Mr. Maneckji and of Mr. Dossa, the Secretary of the Stock Exchange, this telegram was returned by the Telegraph Office to the Stock Exchange, therefore, the view of the learned Judge that the original telegram was not in the possession of the Stock Exchange is based on a misreading of evidence. Further, this original telegram was not produced, .despite the appellant's repeated objections ; only a copy was produced, which was inadmissible in the circumstances. Accordingly, the appellant submitted that the notice to him had not been proved. This is correct, but the learned Judge took a contrary view on the basis of the rules. We invited Mr. Aziz Munshi to refer us to the rules on which the trial Court's view was based. He admitted that the rules did not contain any provision, for notice ; instead he referred us to clause (d) of Article 59 of the Articles of the Stock Exchange, which states : "Any notice sent by the post shall be deemed to have been served on the day following that on which the envelope or wrapper containing the same is posted." According to Mr. Aziz Munshi, the trial Court's view was supported by this clause. But as it refers to a notice sent by the Stock Exchange by post to its members, whilst the said notice was sent by telegram, I do not see how this clause can help the case of the Stock Exchange, and, on its own evidence, it is clear that it had not given a how‑cause notice to the appellant. There is another :important circumstance which also escaped the notice of the trial Court. As the 23rd October was a Saturday, after reading the record, we invited Mr. Aziz Munshi to examine it, and tell us at what time the Secretary bad sent the said notice to the appellant. Learned counsel stated that the telegram had been sent after 5 p.m. As this was a Saturday, what possibility was there of its reaching the addressee ? But the Secretary knew or must have known that this telegram was most unlikely to be delivered to the appellant, as it would reach his office long after office hours on a Saturday; therefore, the manner in which the said notice was sent lends strong support to the appellant's allegation of mala fides against the Secretary.

8. Mr. Munshi then submitted that rule 44, under which action had: been taken against the appellant, did not envisage any show‑cause notice. Assuming that such a rule can be valid. I would first quote the rule. It reads (a) A member unable to fulfil his engagements shall be publicly declared a Defaulter by direction of the President or any two Members of the Board ‑and thereupon cease to be a Member. (b) The Board may order, a member who fails to meet an obligation to a member or non‑member arising out of a stock exchange transaction, to be declared a Defaulter. (c) It shall also be the duty of any member immediately to advise the Secretary of any failure by a member or a firm of members to discharge its liabilities in full. An application for the declaration of default in such a case shall be submitted to the Secretary not later than the day following due date of payment." Rule 45 clarifies, presumably with reference to clause (b) of rule 44, that a member declared to be a defaulter shall "at once cease to be a member of the Stock Exchange". The next rule empowers the Defaulter's Committee to take over the books and papers of a member who "has been declared a defaulter". Rules 47 to 64 deal with the powers of the Defaulter's Committee ; I have referred to them in order to show that the Defaulter's Committee does not have any power to declare a member to be a defaulter, and it comes into the picture only after a member has been declared a defaulter under rule

44. Reverting to this rule, I have underlined` those words in it on which the learned Judge relied for coming to the conclusion that the appellant had been declared a defaulter under rule 44(a). As the allegation against the appellant was of a single default whilst clause !a) refers to "engagements", the learned Judge observed that the case of the appellant fell under clause (a) and not under clause (b), because, according to Article 1 of the Articles of the Stock Exchange, the singular included the plural and vice versa. With respect, I am completely unable to agree with this view. Clause (a) is attracted only when a member is "unable to fulfil his engagements". A member may be in this difficult situation because of losses in a single transaction, or because of losses in several transactions ; or such an inability may arise out of circumstances totally unconnected with transactions on the Stock Exchange. What the clause envisages is a situation in which the financial resources available to a member are not sufficient to meet his liabilities, so that he is not in a position to carry on his business. I would also observe here that the word "unable" in the clause is a word of strong import. It would not entitle Directors to declare a member a defaulter merely because they thought, erroneously, that the member did not have the resources to meet his liabilities. The test of inability is an objective test. Accordingly, as a general rule, I do not see how any honest Director could pass an order under this clause without hearing the member concerned, and this means that the clause implies a right of hearing.

9. Turning now to clause (b) the real contrast between it and clause (a) is that clause (a) uses the word "shall", whilst clause (b) uses the words "may", a word which necessarily connotes discretion, therefore, in my opinion, the singular in this clause means only the singular and does not include the plural. Now the clause refers in terms to failure "to meet an obligation", and the difficulty experienced by meeting a single obligation may be due to temporary difficulties which could be overcome, given reasonable time and co‑operation. It would also not be in the interest of the Stock Exchange to declare members to be defaulters, if they suffered temporary losses which could be met through their financial resources, or through such aid as they could muster. Hence the discretion conferred under this clause, but it would be impossible to exercise it without ascertaining all the circumstances of the case. Obviously the financial resources available to a member, who is alleged to be in breach, is one of the most important of these circumstances, but save in exceptional cases, it would be impossible to find out the resources available to a person without hearing him. Again, as both clauses of rule 44 cover claims between members, the appellant drew our attention to rules 30 and 31, which prescribe compulsory arbitration for disputes between members. As a member may dispute a claim by a fellow member, how can Directors decide whether to apply rule 44 or to refer the members to arbitration without hearing both parties ? Thus, the analysis of rule 44 leads to the conclusion that it would not be workable without hearing the person against whom it is intended to take action. Clearly, in my humble opinion, a right of hearing is implied in the rule.

10. Let me illustrate the matter by reference to the instant case. Mr. A. A. Ghani relied on delivery of the disputed shares to a servant of the appellant, and one of the appellant's submissions was that as the servant was not his registered clerk, the delivery did not amount to a delivery to him under the rules. Additionally, the amount involved in Mr. A. A. Ghani's complaint was petty, and at the date when the Secretary received his complaint, it had been due for less than 48 hours. In these circumstances. was it possible for the Directors to hold that rules 30 and 31 were not attracted without hearing the appellant ? On other grounds also, the appellant submitted that Mr. A. A. Ghani's alleged claim was contrary to the rules. Mr Munshi challenged this submission, but we do not have to decide whether the appellant's objections are correct. The question is whether the rule entitled him to be heard, and in view of his objections, I do not see how any Director could have taken action against the appellant without hearing him. That the Directors did not know of these objections is another matter, but it is obvious that, like any another member, the appellant might have had a bona fide dispute with Mr. A. A. Ghani. Secondly, as clause (a) is attracted only when a member is "unable to fulfil his engagements," the Directors had to examine not merely Mr. A. A. Ghani's claim, which they did, but also whether the appellant's resources were not sufficient to meet that petty claim. This they did not attempt to do, and the appellant referred us to the correspondence collectively marked as Exh. C/33 to show that he had owned, at the relevant time, shares worth more than Rs. 50,

000. Mr. Munshi's reply was that the appellant had not proved this claim, because the shares had not been produced and because the appellant had not examined the companies in which he claimed to own shares. The objection is correct, but the appellant's claim that he owned several hundred shares of Karnaphulli paper was not challenged in cross‑examination. and Mr. Munshi had to admit that the value of these shares exceeded Mr. A. A. Ghani's claim. The Stock Exchange has also totally failed to prove that the appellant had failed to pay any other claims against him, therefore, as he had overdraft facilities with the Bahawalpur Bank, the appellant submitted that the manner in which the Directors had acted against him proved their mala fides. Mr. Munshi's reply was that the appellant had not informed the Directors about his assets or resources. But if, as submitted by the learned counsel, the appellant was not entitled to be heard, the Directors had no means of knowing whether the appellant's resources were sufficient to meet his obligations ; so Mr. Munshi's reply is fatal to his submission that the Directors were entitled to act ex pane under rule

44. On the other hand, bearing in mind the petty amount involved in Mr. A. A. Ghani's complaint, and the obvious possibility of a bona fide dispute between him and tile appellant, in my humble opinion, no Director wishing to exercise his discretion honestly under rule 44, could have taken the extreme step of proceeding against the appellant under clause (a) of the rule without bearing him ;and further as to the allegation of malafides, the fact that this order was passed under clause (a) is a piece of evidence in support of this plea, but the appellant cannot put his case higher than this.

11. Mr. Aziz Munshi's next submission was that as rule 44 did not expressly confer a right of hearing, it excluded that right. But if, for example, the rule had been enacted by the Legislature, we would have construed it strictly and treated the absence of an express provision excluding the principle of natural justice as implying that the provision was subject to this principle. This follows from the judgment of the Supreme Court in the case of University of Dacca v. Zakir Ahmed (P L D 1965 S C 90). According to Mr. Munshi, the principle laid down in this Judgment was not applicable to rules based on a contract, and I am aware that the effect of such rules did not even arise for consideration in the case cited. However, on first principles, as rule 44 entitles the Stock Exchange to deprive a person of his living, in my humble opinion, the principle laid down in the University of Dacca case is applicable with greater force to rule 44, because the rules framed by an organization are not subject to the safeguards associated with legislative enactments. Mr. Munshi's only reply was that the rule was based on a voluntary agreement between the Stock Exchange and its members. But unless we are to hold that the right of a citizen to pursue an occupation or profession of his choice is not important, the rules of organizations, membership of which i.e a condition for pursuing trade or calling, should be construed strictly ; I am not alone in my opinion. With reference to rules of a Trade Union, Denning L. J. observed in Bonsor v. Musician's Union ((1954) 1 A E R 822) at page 126. "Rules applied to a man in that state of mind are less a contract, as we used to understand a contract, than a legislative code laid down by some. to be imposed on all members of the union. They are more like bye‑laws than a contract. In these circumstances. the rules are to be construed not only against the makers of them, but furthermore any rule found to be contrary to natural justice or. what comes to the same thing, to what is fair and unreasonable, will be held to be invalid : See Lee v. Showmen's Guild of Great Bartain & Kurse v. Johnson." These observations coincide with my own views on the matter, and as rule 44 does not expressly deny a right of hearing I hold it confers this right.

12. I now turn to the submission that the Directors require a power to proceed ex parte against a member in order to protect the public against dishonest members. I do not doubt that some power to suspend a member, pending investigations, may be required in an emergency, but learned counsel was not able to show us how any emergency would require the ex parte explusion of a member, and I would emphasise here that as on a declaration under rule 44 the member ceases to be a member of the Stock Exchange, and order under this rule amounts to an order of expulsion. But in my humble opinion, the interests of the public, as well as of all members, would be amply safeguarded by a provision to suspend a member ex parte, and such a provision, appropriately worded, would not be bit by the maxim audl alteram partem. Now, rule 5 expressly confers a power on the Directors to suspend a member. Accordingly, even on the assumption that Mr. A. A. Ghani's complaint against the appellant was true, it should have been put up for orders under rule

5. When we referred learned counsel to this rule, we were astonished by his reply. As the power under this rule is conferred on the Board, learned counsel's reply was that it was not possible to invoke the rule in an emergency because of the difficulty of convening meetings of Directors at short notice. If this reply be correct, it reveals a most unfortunate state of affairs. But we would not be justified in misconstruing rule 44 because of the indifference of the Directors to their responsibilities. If the situation be really as unfortunate as is shown in learned counsel's reply, the remedy for this state of affairs cannot be through the Courts ; and, in any ease, conferring arbitrary powers on Directors would not be any solution, because arbitrary powers only encourage dishonesty.

13. Mr. Aziz Munshi's next submission was that we could not interfere with the impugned order, because it had been passed by a domestic Tribunal in the exercise of its exclusive jurisdiction. And Mr. Munshi referred us to Indian and English decisions in support of this submission. But these decisions related to social clubs, and the difference between social clubs and organizations like the Stock Exchange is obvious. On the other hand, as the appellant's case is similar to the expulsion of a member by a Trade Union, the Judgment of Jessel M. R. in Rigby v. Connol ((1880) 14 Ch. D 482) is directly on the point under consideration. 1n dismissing the appellant's suit challenging his expulsion from a Trade, Union, Jessel M. R. observed at page 487 : "A dozen people may agree to meet and play whilst 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 fn any Court of justice in this country to interfere. Or a dozen or a hundred scientific risen may agree with each other in the same way to meet alternatively at each other's houses . . . . . but if the Association has no property. and takes no subscriptions 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 . . . . . . ." Even the Stock Exchange cannot put its case higher than is contained in these observations, but I regret my inability to accept the view that agreements to join Associations, on which a man's livelihood depends, are agreements strictly ,personal in their nature", which cannot be enforced in law. I am supported in my view by the Judgment of the House of Lords in Amalgamated Society Carpenters, Cabinet Makers & Joinders and others v. Braithwaite and others ((1922) 2 A C 440) setting aside an order of expulsion passed by a Trade Union against one of its members on the ground that it was illegal. This case was followed by the Court of Appeal in Lee v. Showmen's Guild of Great Britain ((1952) 1 A E R 1175). The entire case‑law on the question was examined by the Court of Appeal and Denning L. J. disapproved of Rigby's case. So the common law has not stood still.

14. Mr. Munshi, however, wanted us to follow the observations in an earlier judgment of the House of Lords in Weinburger v. Inglis (121 Law Times 65). The appellant Weinberger was a naturalised British subject of German birth. He was a stock‑broker and bad been elected to the London Stock Exchange every year from 1895. Membership of the London Stock Exchange was for one year only, and brokers were elected by a Committee constituted under a trust deed. The only restriction on the power of this Committee was that it should admit as members such persons "as it thought proper to frequent the London Stock Exchange." The discretion thus conferred on the Committee was wide, and in the exercise of this discretion, it elected as members some stock‑brokers of German birth. Although one of the appellant's cousins had died fighting for England, and although the appellant had been elected a member every year for 20 successive years the Committee did not elect him in 1917. He therefore filed a suit to challenge the Committee's decision, but it was dismissed by all Courts, including the House of Lords. Now, there is a difference between not electing a member to an association and expelling a member from an association. Learned counsel's reply was that the observa tions of the Noble Lords about the powers of domestic Tribunals were very wide, and, at first sight, the judgment supports the submission advanced, because the observations in it are wide; and if the Courts cannot interfere with the decision of a domestic Tribunal even when it is perverse, and a decision tainted by racial prejudice, is, in my humble opinion, perverse, then we would not be justified in interfering in the instant case even though the impugned order be mala fide, and by parity of reasoning we might not be justified in interfering with it on the ground of illegality either. But taking first the question of the Court's power to set aside a perverse decision, the appellant in the case cited challenged the decision against him as arbitrary, yet he expressly stated that he would not challange its honesty. He thereby precluded himself from pressing the plea of mala fides. Thus the judgment turns on very peculiar facts, and should not be treated as a precedent for the rule that Courts cannot interfere with an abuse of discretion by domestic Tribunals. Mr. Munshi then referred us to several Indian Judgments in which Weinburger's case was followed, but the attention of the learned Judges in the cases cited was not drawn to the very peculiar facts of Weinburger's case. Secondly, rule 44 as I explained, does not confer unfettered discretion on the Directors of the Stock Exchange. Therefore, Weinburger's as well as the Indian decisions cited by Mr. Munshi are clearly distinguishable on this ground, and, on the other hand, the judgment of the House of Lords in Carpenter's case supports the appellant's claim. 15. 1 would also refer here to another decision of the House of Lords in Padfield and others v. Minister of Agriculture and others ((1968) 1 A E R 694). There, the question was whether the Courts could interfere with the discretion vested !in the Minister of Agriculture under the English Agricultural Marketing Act, 1958, and although the statute conferred, in the words of Lord Upjohn, wide and unfettered discretion on the Minister, all the Noble Lords held that ‑the Courts could interfere when a prima facie case of misuse of power had been made out. But if the Courts can interfere with the exercise of an unfettered statutory discretion, why should the discretion conferred on a domestic Tribunal be put on a higher footing? Accordingly, with the utmost respect, if and to the extent to which a different view has been taken in Weinburger's case, I cannot agree with it, and I hold that a mala f'de order .of a domestic Tribunal can be set aside by the Courts. I also see no reason c ,why we should not set aside illegal orders by domestic Tribunals, Mr. Munshi ‑relied on the fact that the appellant had, by joining the Stock Exchange, agreed to abide by its rules. That was so in Carpenter's case, and is so in every case in which a person has to join an organisation in order to earn his living. Now, it is immaterial whether such an organisation is an Association ‑or a registered Company, but because a person agrees to abide by the rules of the organisation he joins, any Tribunal created under such rules has to act in accordance with those rules, and if it misconstrues them, its order will be 'both illegal and in excess of the jurisdiction conferred on it by the members of the organisation, and an aggrieved member will be entitled to challenge it. Mr. Munshi feebly submitted that there was no authority on the precise point under consideration. That may be so. But domestic Tribunals which affect the livelihood of the citizen are a feature of modern life and, in my humble,, ‑opinion, if such Tribunals pass illegal orders, the Courts should set them aside, as was done by the House of Lords in Carpenter's case and by the Court of Appeal in Lee's case.

16. Mr. Munshi's next submission was that we could not interfere with the orders of the Stock Exchange because it was a Company registered under the Companies Act, and as he relied on a judgment of Inamullah, J. in Faridsons Ltd. v. The Karachi Cotton Association Ltd. (P L D 1956 Kar. 315), I may explain here that Courts will not generally interfere with the internal management of Companies acting within their powers, but it is not necessary to examine either the scope or the origin of this rule because it is subject to many excep tions. The law on this difficult question has been correctly stated by Buckley in his Companies Act, 12th Edition, pages 168‑

169. After explaining the general rule, which is often described as the rule in Foss v. Harbottle, Buckley states the rules evolved by the Courts to mitigate the hardship of this general rule, and of these rules two are relevant to the instant case; the right of a member to challenge an act which is ultra vires of the company and an 'oppressive act by the Company. Buckley then states: "The above are general rules strictly adhered to, but not inflexible, and any case in which. the claims of justice require that an action, in which the company is not plaintiff should be entertained may be made an exception." Turning now to the judgment cited, Inamullah, J. observed there at page 320: "1 would be reluctant to interfere with the internal management of the Association unless I had reason to hold that the action of the Board was fraudulent or against natural justice". These observations have reference to the facts of the case cited, and with the utmost respect I have to point out that Buckley's statement of the law is correct. Accordingly, as the order against the appellant (Exh. C/2) is both illegal and oppressive, the appellant is entitled to challenge it, and even the observations in Faridson's case do not go against him because he was not heard. I would also observe that as membership of the Stock Exchange is a condition for carrying on a Stockbroker's business, the case is one in which, in the words of Buckley, the claims of justice require that an exception be made to the rule in Foss v. Harbottle. I am not able to accept Mr. Munshi's submissions, and I hold that the appellant was entitled to be heard under rule 44.

17. Now, according to the Stock Exchange, it had sent the appellant a show‑cause notice, and if it had reached the appellant, there would have beer no violation of the rule of natural justice. It did not, so Mr. Munshi sub mitted, on the basis o'` Article 59, that the mere despatch of the said notice was sufficient to amount to service. As this submission was based on a misconstruction of Article 59, the precise plea of the Stock Exchange in its: written statement is crucial to its defence. That plea only was that as the said notice was returned unserved, the Stock Exchange had declared the appellant a defaulter. Thus the pleadings establish that a notice was not given, and as I showed earlier, the manner in which the alleged notice was, sent was malafide, therefore the order against the appellant (Exh. C/2) would be void and not merely illegal. I am supported in my view by the observa tions of Lord Reid in Ridge v. Baldwin (1964 A C 40 at 70). In order to overcome this, difficult%, Mr. Munshi submitted, on the basis of Mr. Maneckji's evidence, that the appellant had admitted his default. But if so, why did the Stock Exchange not examine Mr. Maniar who was subject to the Court's jurisdic tion? Secondly, if there had been any truth in Mr. Maneckji's evidence, the Stock Exchange would have taken this plea in the exchange of legal notices wit& the appellant, but it did not Thirdly, and this is most important, the allegation that the appellant admitted his default is a question of fact, and as it has not been pleaded in the written statements, it cannot be considered. Ignoring these circumstances, the learned Judge examined this plea and decided it against: the appellant under Issue No. 7(b). But as the only question under this issue was whether the order (Exh. C/2) was 'illegal, malicious and without notice" this issue cannot cover the allegation that the appellant had admitted his., default, the more so as the burden of this allegation falls entirely on the Stock Exchange. With these reservations, I would examine learned counsel submissions.

18. The Stock Exchange had examined several witnesses on the question under consideration, but as Mr. Aziz Munshi relied only on the evidence of Mr. Maneckji, I have to point out that the evidence of this witness was recorded by an Advocate of this Court in Bombay on an open commission ordered by the learned Judge. However, in the Hanover Fire Insurance Co. v. Muralidhar Banechand (P L D 1958 S C (Pak.) 138) the Supreme Court held that the statement of a witness resident in India and recorded in India on an open commission issued~ by a Court in Pakistan before a resident of Pakistan could not be validly received as evidence in the case. When we referred learned counsel to this authority, his reply was that the evidence of Mr. Maneckji had been recorded with the appellant's consent. But even if that be so, Shahabuddin, J., as he then was, had observed in the case cited: "We, therefore, consider that any evidence obtained on an open commission as has been issued in the present case will not have been legally recorded." In my humble opinion, the result of these observations is that the statement of Mr. Maneckji (Exh. 94) is not evidence at all and cannot therefore be considered. However, in deference to learned counsel's industry, I would briefly examine this evidence.

19. Mr. Mareckji said that the Secretary had received a complaint from Mr. A. A. Gani which had been referred to him and to Mr. Maniar by the Secretary; and it would appear from the evidence that the Secretary had; referred this complaint to the witness and Mr. Maniar on Monday the 25th October 1954. According to Mr. Maneckji this was in the morning, and as, the appellant was also present, they had sent for him and informed him of the complaint against him, but he did not deny it and went away. Then, according to Mr. Maneckji, they questioned the appellant again when he came in the afternoon, and as he admitted that he failed to pay Mr. A. A. Gani, they declared him a "defaulter" in writing which is Exh. C/2. This was done by us after 4.30 or 5 p.m. This was done in the presence of the plaintiffs". 'Then, according to Mr. Maneckji, he and Mr. Maniar were required under rule 46 to take possession of the papers. records and assets of the company, and to quote the witness again: "We, therefore, asked then plaintiff to bring all his records in the office of the Secretary. He accordingly brought all his books and papers in six drawers and one desk." Mr. Maneckji's statement is not supported by any documentary evidence at all. Even the order (Exh. C/2) does not state that the appellant had admitted his default, therefore, in view of the failure of the Stock Exchange to examine Mr. Maniar, would it be safe to accept the evidence of a witness who was not under the jurisdiction of this Court? I am aware that the learned Judge was impressed by this evidence, but I have to state with regret that his attention was not drawn to the mass of contradictions in the evidence produced by the Stock Exchange. Taking first the evidence of the witness,. he and Mr. Maniar were the only two Directors on the Defaulters Committee from 1954 to 1956. They had declared the appellant to be a defaulter on 28th October 1954 (Exh. C/18) according to the Minute Book of the Defaulters Committee Exh. (C/25). Thereafter, apart from the abortive meeting of 22nd July 1954, Mr. Maneckji and Mr. Maniar considered the appellant's case on six other occasions, according to the Minute Book (Exh. C/25) yet in his examination‑in‑chief, Mr. Maneckji said: "I do not remember if the Defaulters Committee considered the matter again after 28th October 1954." If Mr. Maneckji could not remember the six meetings in which the appellant's case had been considered by him, would it be safe to go by his recollection of the alleged meetings with the appellant on 25th October 1954, the more so as no minute whatsoever was kept of these meetings? Unfortunately, this was a circumstance which escaped the atten tion of the learned Judge.

20. I would now briefly examine only the material discrepancies in the evidence of the Stock Exchange, to which the appellant referred us and which were ignored by the learned Judge. Thus, whilst Mr. Maneckji was very categorical in his statement that the appellant had been declared a defaulter on 25th October 1.954, Mr. Abba Umar of the Stock Exchange, who had pasted on the Notice Board of the Stock Exchange the notices declaring the appellant to be a defaulter, categorically asserted in his evidence that the appellant had been declared a defaulter either on the 24th or on the 23rd' October. Then as to the documentary evidence, there are two notices of the Stock Exchange dated 25th October 1954 (Exh. C/16 and Exh. C/17) declar ing the appellant to be a defaulter, and the second of these notices (Exh. C/17), calls upon members to submit their claims "by 5 p.m. today, 25th October 1954, as the same has to be finally submitted to the Defaulters Committee meeting today at 5‑30 p.m." Now, according to Mr. Maneckji, as the appellant had returned in the afternoon, they had declared him a defaulter at about 4‑30 or 5 p.m. So reading this notice with Mr. Maneckji's evidence, the members of the Stock Exchange were invited to submit their claims against the appellant within half an hour or an hour at the most. This is too absurd to be credible: but, according to Mr. Munshi, the period fixed in the notice was reasonable because of the emergency, the emergency being that the other members of the Stock Exchange had to be warned against trading with the appellant. The explanation is frivolous, because this warning bad been given by the other notice (Exh. C/16). Secondly, how could there be any emergency about the mere filing of claims? Thirdly, the notice (Exh. C/17) stated that the claims of the members had to be submitted to the "Defaulters Committee in a meeting today." But, according to the Minute Book (Exh. C/25) of the Defaulters Committee no meeting was held on 25‑10‑1954, nor could Mr. Munshi refer us to any evidence to show that such a meeting bad been convened Thus, this notice lends very great support to the appellant's allegation of mala fides against the Secretary. However, if I am wrong, no Secretary of sane mind could have given members only half an hour or an hour to file claims, so if the notice was not mala fide, it must have been issued in the morning, but this is completely inconsistent with Mr. Maneckji's evidence. Now, there is yet another notice Exh. 150) dated 28‑?0‑1951 which calls upon members to "square up their outstanding business" with the appellant "at the closing rates of Thursday the 28th October 1954". This notice does not contain any reference to the earlier notice and as Mr. Maneckji admitted having written the date 28th October on the order (Exh. C/2), could it be that the earlier notices (Exhs. C/I6 and C/17) were withdrawn because no order had been passed till 28‑10‑1954? I will revert presently to this aspect of the case.

21. I observed earlier that legal notices bad been exchanged between the appellant's Advocate and the Advocate of the Stock Exchange. The appellant's Advocate had, in his notice dated 25th March 1955 (Exh. 19),. categorically stated that the appellant had been declared a defaulter on 28th October 1954. But this allegation was not denied in the reply sent by the Stock Exchange through its Advocate on 13th April 1954 (Exh. 20). Again Mr. Maneckji said in his evidence that the papers had been shown to the appel lant on 25th October 1954 and by this he meant the complaint of Mr. A. A. Gani, and such papers as Mr. A. A. Gani might have produced. Mr. A. A. Gani was examined to support this evidence of Mr. Maneckji. He supported it. But he also said: "The Stock Exchange had asked me for the necessary documents on 23‑10‑1954. This went on for three or four days." The meaning of this evidence is clear, and as the 24th October was a Sunday, if Mr. A A. Gani is to be believed, the Directors had not completed their investigations on his complaint until the 27th or the 28th October. How then could they have taken action against the appellant on 25th October 1954 ? Finally, as I showed earlier, the Stock Exchange stated very clearly in its written statement that it had sent the appellant a telegram to appear before it and had taken proceedings against him as a defaulter only after that telegram had been returned unserved to it by the Telegraph Office. As this was also the position taken by Mr. Maneckji in his evidence, it is clear that the declaration of default could only have been made after the return to the Stock Exchange of its telegram to the appellant. Intimation in this respect was sent to the Stock Exchange by the Telegraph Office, vide its letter (Exh. C/6), and as this letter is dated 26th October 1954, it completely falsifies Mr. Maneckji's assertion that he and Mr. Maniar had questioned the appellant and declared him a defaulter on 25th October 1954.

22. Turning now to the order passed against the appellant (Exh. C/2), it must be borne in mind that it does not state that the appellant had admitted his guilt. It is a mere statement by two Directors that they had declared the appellant a defaulter under rule 44‑A. The typed date on this order (Exh. C/2) is 25th October 1954, but there is also a handwritten date, 28th October, which Mr. Maneckji admitted having written. This would imply that he had corrected the typed date because it was not correct, and on the evidence which I have just discussed, no other view would, in my humble opinion, be possible. However, when he was cross‑examined on the date thus written by him on the order (Exh. C/2), Mr. Maneckji said: "This date 28th was put subsequently when our decision to declare the plaintiff a defaulter was confirmed at a subsequent meeting of the Defaulters Committee." Now, when I examined the rules, I observed that the Defaulters Committee had no power whatever to declare any member to be a defaulter, and it was Mr. Munshi's case before us that Mr. Maniar and Maneckji had declared the appellant a defaulter not in their capacity as members of the Defaulters Committee, but in their capacity as Directors of the Stock Exchange. As this is very, very clear from the rules, there was no question of any confirmation by the Defaulters Committee of the declaration (Exh. C/2) against the appellant, therefore Mr. Maneckji's explanation appears to be totally untrue. However, in order to try and understand it, we examined the minutes of the Defaulters Committee of 28th October 1954 (Exh. C/18 in Exh. C/25). The Minutes state that Mr. Maniar and Mr. Maneckji were present at the meeting, and its heading reads: "A meeting of the Defaulters Committee of the Karachi Stock Exchange Ltd., was held on Thursday the 28th October 1954. . ." The first item of the Minutes states that the Minutes of the last meeting, namely, of 11th March 1954 had been approved. The second item is not relevant. The third item reads: "Mr. M. I. Ansar Qarni's case was considered and as he had default ed in payment to the members he was declared a defaulter." By no stretch of imagination can this statement be considered to mean that the appellant had been declared a defaulter earlier than the decision thus noted, and Mr. Maneckji's explanation of his overwriting on the order (Exh. C/2) is, in my humble opinion, false. But in the circumstances, can any reliance be placed on the evidence of this witness?

23. Mr. Aziz Munshi's reply was that the evidence of the witness was supported by the fact that the appellant had surrendered to Mr. Maniar and to the witness all his books and records as soon as they had declared him a defaulter. Now, the appellant's explanation was that the Secretary had seized his records, and whilst his evidence was fully supported by that of his witness, Mr. Khalique Ahmed, the evidence of the Stock Exchange on this question was discrepant on every material particular. I quoted earlier Mr. Maneckji's statement that, after Mr. Maniar and he had declared the appellant to be a defaulter, they had asked him to bring over his records to the office of the Secretary which he had done. These records were kept by the Stock Exchange in the custody of its Superintendent, Mr. Abba Umar. But contrary to the evidence of Mr. Maneckji's Mr. Abba Umar stated that he had collected the records from the appellant's office. Secondly, unlike Mr. Maneckji's statement, Mr. Abba Umar did not refer to the presence of Mr. Maniar at all. Thirdly, contrary to Mr. Maneckji's statement, Mr. Abba Umar was absolutely emphatic that he had received the papers and records of the appellant after 25‑10‑1954. Thus the evidence of the two witnesses is discrepant on every material particular, and, on the other hand, neither the appellant nor his witness, Mr. Khalique Ahmed were cross‑examined on their categorical statements that the Secretary and some other persons had forcibly seized the papers of the appellant.

24. However, the papers of the appellant were contained in several drawers which were produced in Court by the Stock Exchange. Further, sheets of papers signed by the appellant were pasted on these drawers, and as the appellant admitted his signatures on these sheets of paper, Mr. Aziz Munshi's submission was that under rule 46 the Defaulters Committee was entitled to take possession of the appellant's papers, and so the fact of the possession of these papers by the Stock Exchange together with the appellant's signatures was sufficient to prove that the appellant bad voluntarily surrendered his papers under rule

46. The appellant's explanation of his signatures on the sheets of paper was that the Secretary had forced him to give his signa tures on blank pieces of paper, and at first sight, the plea is difficult to believe, the more so as it was challenged in cross‑examination. However, if the papers were delivered to Mr. Maneckji and to Mr. Maniar as the Directors of the Defaulters Committee, as claimed by Mr. Maneckji, then. this was a circumstance which would have been stated in the Minutes of the Defaulters Committee. But, it is not so stated in the Minutes (Exh. C/18). Secondly, if the evidence of Mr. Maneckji be true, the Stock Exchange would have taken this position in the exchange of notices and correspondence with. the appellant. However, although the appellant's Advocate stated in his notice dated 25‑3‑1955 (Exh. 19) that the appellant had been declared a defaulter "without assigning any reason or calling for explanation" and that his furniture, files and documents had been illegally seized, the Advocate of the Stock Exchange by his letter dated 13‑4‑1955 (Exh. 20) merely denied the allegations of the appellant's Advocate. He did not state that the appellant had admitted his guilt, nor did he expressly deny the allegation that the appellant's papers had been illegally seized by the Secretary. On the con trary, a few months later, by its notice dated 18‑7‑1955 (Exh. 21) the Secretary called upon the appellant to produce all his books of account before the Defaulters Committee. Now, if Mr. Maneckji's evidence be true, now could the Secretary have called upon the appellant to produce his books of account? It is also very significant that the Stock Exchange never stated, prior to its written statement, that the appellant had admitted his guilt and handed over his papers himself to the Defaulters Committee. Finally, this Committee had to receive claims against the appellant and to determine his liabilities after examining his books and papers, and according to Mr. Munshi, the appellant's liabilities had been assessed at Rs. 68,459‑15‑0 at the last meeting of the Defaulters Committee on 5‑3‑1956 (Exh. C/24). But, as according to Mr. Maneckji, the appellant had voluntarily surrendered all his. records, it was their duty to determine the appellant's liabilities after examin ing his papers. Yet to our astonishment, Mr. Munshi was emphatic that the Defaulters Committee had not touched the papers which, according to the Defaulters Committee, had been voluntarily surrendered by the appellant. I find it absolutely impossible to believe that Mr. Maniar, who was not examined, and Mr. Maneckji would have failed to scrutinise the appellant's papers, if he had really surrendered them voluntarily. So the conduct of the Defaulters Committee invites the utmost suspicion, and the plea of the appellant receives support from the conduct of Mr. Maneckji and of Mr. Maniar, and here the failure of the Stock Exchange to examine Mr. Maniar cannot but lead to a strong adverse inference against its pleas.

25. Mr. Aziz Munshi, however, relied on the fact that the trial Court, which had the advantage of recording the appellant's evidence, had disbelieved ?him. That is true, but the trial Court ignored the failure of the Stock Exchange to cross‑examine the appellant and his witnesses on their evidence ,about the seizure of his papers. It also ignored the failure of the Stock Exchange to examine Mr. Maniar. Similarly it failed to notice that the Stock Exchange had neither pleaded in its written statement nor stated in its exchange of notices that the appellant had admitted his default before the Directors on 25‑10‑1954. Ignoring these circumstances, it placed implicit reliance on the evidence of Mr. Maneckji. But in view of the discrepancies between Mr. Maneckji's evidence and the other evidence produced by the Stock Exchange, which escaped the attention of the trial Court, I am com pelled to hold that Mr. Maneckji was not a witness of truth, and this means that the Stock Exchange has failed to prove that the appellant had admitted his default at the alleged meeting or meetings on 25‑10‑1954. 1 am satisfied that the evidence about these meetings is false, and the order (Exh. C/2) is void. Of course, I have no doubt that this order was passed, but it was passed on the date written on it by Mr. Maneckji. namely, 28th October. It is also significant that the order was passed by the two Directors who constituted the Defaulters Committee, and this Committee had met on 28th October and expressly declared the appellant to be a defaulter, vide the Minutes (Exh. C/18). In these circumstances, it is clear that action bad been taken against the appellant by the Defaulters Committee only, but as the rules do not empower this Committee to pass such an order, Mr. Aziz Munshi sought to overcome this obvious infirmity in the order (Exh. C/2) by referring us to the Minutes of the meeting of the Board of Directors of the Stock Exchange dated 3rd November 1954 (Exh. C/20). The 13th item of these Minutes reads: "The declaration as a defaulter of Mr. M.I. Ansar Qarni by the Defaulters Committee was confirmed." As the powers of the Stock Exchange are vested in its Directors learned counsel's submission was that this resolution of the Directors had validated all defects and infirmities in the order passed by Mr. Maneckji and Mr. Maniar. The argument is misconceived because a void order cannot be validated in this manner, the more so as Mr. Maneckji admitted that the resolution about the appellant had been passed by the Directors without any prior notice, which would also mean that it had been passed and publicised without hearing the appellant.

26. I am also compelled to observe here, with great regret, that the question is not merely of discrepancies in the evidence produced by the Stock Exchange. The discrepancies lend very great support to the appellant's allegation of mala fides, and bearing in mind the discrimination by the Secretary between the appellant's complaint against Mr. A. A. Ghani and the latter's complaint against the appellant, and the high handed manner in which the Defaulters Committee dealt with the appellant's assets, I am compelled to hold that the order (Exh. C/2) is both void and mala fide. Accordingly, he was not required to challenge the order (Exh. C/2) under rule 64, even on the assumption that this rule was applicable to his case; and the judgment of the Judicial Committee in White and others v. Kuzych (1951 A C 585) on which Mr. Munshi relied is therefore distinguishable.

27. Mr. Munshi then submitted that, in any event, the evidence produced in the trial Court by the Stock Exchange proved both the appellant's default and his financial difficulties in October 1954. As this evidence was admittedly not produced before the Directors when they declared the appellant to be a defaulter, I do not see how wisdom after the event can save an order of a domestic Tribunal which is illegal, void and mala tide. However, as the learned Judge dismissed the suit on the basis of these submissions, I would examine them briefly.

28. The dispute is about 50 Batala shares and, according to Mr. A. A. Gani, he had purchased them on 1‑1‑54, resold them the same day to the appellant, but delivery to the appellant was delayed because he had not receiv ed them. Then, as he received delivery of the shares on 21‑10‑1954, he deliver ed them on the same day to the appellant and as payment was not made immediately, the appellant was declared a defaulter. Now, the Stock Exchange has proved that the 50 shares which Mr. Gani claimed to have sold to the appellant had been resold by the appellant to one Mr. Irfan Ahmed, but whilst Mr. A. A. Gani said that these shares had been delivered by him to the appellant on 21‑10‑1954, Mr. Irfan Ahmed said that he had received these very same shares from the appellant on 20‑10 1954. The learned Judge treated this discrepancy as immaterial and attributed it to a lapse of memory on the part of Mr. Irfan Ahmed, but it seems to me that in coming to this conclusion he relied on the poor impression formed by him of the appellant. Therefore I would explain here that the appellant had had dealings in Batala shares both with Mr. A. A. Ghani and Mr. Abdur Razaq Aziz (hereinafter called Mr. Razaq), and when questioned in his cross- examination about the shares sold by him to Mr. Irfan Ahmed, he stated. that he had purchased them from Mr. Razaq. This claim was contrary to Mr. Razaq's evidence and further the learned Judge was not impressed by the appellant's evidence. Accordingly he held that the appellant had given false evidence.

29. The appellant challenged the observations against him, and pointed out that he had been cross‑examined minutely on financial transactions, which had taken place a decade earlier, without the aid of his books and records, which would normally have been available to a witness deposing about such transactions. This is correct. Additionally, whilst the appellant's statement that he had purchased the 50 Batala shares in dispute from Mr. Razak is wrong, Mr. Razak's books proved that a little earlier the appellant had purchased 50 Batala shares from Mr. Razak. Bearing in mind also the fact that the appellant had not been in possession of his books and records for nearly a decade, though he was wrong in his statement about the purchase of the disputed 50 shares from Mr. Razak, in my opinion it was a case of a mistaken recollection and not an attempt to deceive the Court. Secondly, the dispute was about 50 Batala shares, but even Mr. A. A. Gani claimed to have purchased only 38 shares from Mr. Razak. As to the other 12 shares, the case of the Stock Exchange rests only on Mr. A. A. Ghani's evidence. This is because the witness did not produce any books of account whatsoever, so the obvious question before us is of his veracity. The appellant drew our attention to the statement of the witness that he did not know whether his brother was a Director of the Stock Exchange in 1954. As the witness claimed to be a broker, I agree with the appellant that this statement by the witness was false, and his evidence is not fit to be accepted in the absence of proper corroboration. Now, even the learned Judge appears to have had some misgivings about the witness, because he emphasised that his evidence was supported by Mr. Razak's evidence and Mr. Razak's books of account; and as the learned Judge was highly impressed by Mr. Razak, I have to point out that even this witness found it convenient to suppress the fact that he was a Director of the Stock Exchange in 1954. However, the witness expressly admitted: "I personally did not do any business on the Stock Exchange. My business was done by my agent." In view of this statement, nothing turns on his evidence, and I would turn to the evidence of his agent Mr. Aziz Saghar and of Mr. Razak's books of account.

30. According to this evidence, Mr. Razak sold 38 Batala shares to Mr. A. A. Gani on 1‑10‑1954 but delivered them to Mr. A. A. Gani on 21‑10‑1954, because he had purchased them or 13 of them from two persons in Chittagong and had received them only on 21‑10‑

54. And, as these 13 shares were right shares or bonus shares, the two sellers from Chittagong had executed letters of renunciation (Exhs. 100 to 102) in Razak's favour, so Mr. Razak's office had the signatures on these letters of renunciation verified by a Notary Public in Karachi. Thus the letters of renunciation were received in Karachi on 21‑10‑1954, verified in Karachi, men forwarded by Mr. Razak to Mr. A. A. Gani who delivered them to the appellant on 21‑10‑1954. Apart from this chain of coincidences, could all this have been done in one day? Again, contrary to the categorical assertion of Mr. Razak and of Mr. A. A. Gani that the letters of renunciation had been received in Karachi on 21‑10‑1954, the verification on them by the Notary Public in Karachi is dated 20‑10‑1954. Even the entry in Mr. Razak's Sauda Book about the alleged sale by him invites suspicion, because the entry (Exh. 144) is dated 1‑10‑1954 and is followed by entries not of October but of September. 1954. Further, as neither Mr. Razak nor Mr. Aziz Saghar were able to give a satisfactory explanation of these discrepancies in their cross‑examination the appellant had, through Mr. Razak's cross‑examination, sought the production of Mr. Razak's ledger, journal, counterfoils of all cheque books and some other books of account for the relevant period. Although the witnesses admitted that he had these books of account, neither he nor Mr. Aziz Saghar, who was cross‑examined a month later, produced the ledger, the journal, the counter‑foils of cheque books and the pay‑in‑slip books. These documents were required in order to throw light on the alleged sale by Mr. Razak to Mr. A. A. Gani, the more so in view of Mr. Irfan Ahmed's evidence that he had received delivery of the Batala shares from the appellant on 20‑10‑1954, therefore, Mr. Munshi pointed out that the trial Court was impressed by the books of account produced before it. That is so. However, I am disturbed by the discrepan cies discussed, and by other discrepancies to which the appellant referred us, But I need not dilate on them, because except for the entry (Exh. 144), none of the books of account which impressed the trial Court were proved through P the persons who had prepared them, therefore, they were inadmissible in view of the judgment of the Supreme Court in Bengal Friends & Co. v. Gour Benode Soba & Co. (P L D 1969 S C 477).

31. I now turn to the appellant's applications for further evidence. The appellant admittedly does not know Gujrati, and as some of Mr. Razak's books are in Gujrati, he had sought an adjournment in order to obtain .,translation of the relevant entries. I can only express my regret that this .request was refused; hence the applications for further evidence. Mr. Munshi did not oppose them. but sought permission to prove Mr. Razak's books of .account in accordance with law declared by the Supreme Court in Bengal Friends & Co. Now the evidence which both the parties wish to produce in the 21st year of their dispute is on the point whether the appellant had com mitted default, whilst the relief sought in the case is that the order (Exh C/2). is illegal and ultra vires, and the question whether this order is illegal and ultra vices depends on the evidence on which it was passed, and the manner in which it was passed. Taking first the allegation of illegality, even that .obliging witness Mr. Maneckji only claimed to have relied on the evidence of Mr. A. A. Gani. But as I explained, at the highest, this evidence might have justified an order under clause (b) of rule

44. As the order was passed under clause (a), it is a plain case of no evidence. Mr. Munshi had, there :.fore, examined Mr. Razak and other witnesses. But this evidence is irrelevant as the order (Exh. C/2) is admittedly not based on it.

32. I am aware that the learned Judge has taken a contrary view, but he has given no reasons for it, nor was Mr. Munshi able to advance any ...submissions in support of this view. So I would draw an analogy from the decisions of the. Regular Courts. Such decisions can neither be challenged .nor defended on the basis of evidence which the parties did not care to :produce before the Court at the proper time, and as a decision of a domestic tribunal must be construed strictly, in my opinion, the same principle could be applied to such decisions. Additionally, as I have held that the order (Exh. C/2) was passed without hearing the appellant, it is void, and if we ,accept Mr. Munshi's submission, we would be resurrecting a void order on .evidence raked out almost a decade after it had been passed. This we cannot .do, therefore, the alleged admissions of the appellant in his cross‑examina tion, on which Mr. Munshi relied, as well as all the evidence produced by the Stock Excbange in the trial Court is irrelevant, except for the evidence of Mr. Maneckji and of Mr. A. A. Gani which is, however, not fit to be relied upon. Accordingly, the appellant's applications for evidence are dismissed and the only result of the irrelevant evidence produced by the Stock Exchange and of its cross‑examination of the appellant was to embarrass, if not, to humiliate the appellant. This conclusion will be relevant to the question of .damages which I will presently consider.

33. But, according to Mr. Munshi, in a suit for declaratory relief, the plaintiff's character was always in issue, and as the appellant had sought declaratory reliefs, learned counsel's submission was that the appellant had to be and had been cross‑examined in order to establish the contention of the Stock Exchange that, in view of his conduct, he was not entitled to invoke ‑the Court's discretion under section 42 of the Specific Relief Act. I am astonished at the submission, but as this was also the view of the trial Court, I would, point out here that the declaratory reliefs sought were a declaration that the order (Exh. C/2) was illegal and mala fide, and a declaration that the appellant was a member of the Stock Exchange. As the second relief follows from the first, the only question is whether the appellant has disqualified himself by his conduct from obtaining a declaration against the order (Exh. C/2), and the observation of the learned Judge in this respect was that the appellant had "not come to Court with clean hands and has taken false stands upon material parts of the case". Now, the question of the appellant's conduct becomes relevant only if he is entitled to relief, in other words, only if he has proved that this order (Exh. C/2) was illegal and mala fide. But if this plea is proved, as I have no doubt that it has been, how can the appellant's subsequent conduct disentitle him to relief ? I observed earlier that it was the duty of the Courts to prevent an usurpation of power by domestic Tribunals which control the livelihood of citizens; and, in my humble opinion, it would not be a judicial exercise of discretion to refuse relief to the appellant because he had not, in the words of the learned Judge, come to Court with clean hands. As I indicated, I do not agree with this observation of the learned Judge. But assuming that it is correct, the Stock Exchange had no power to deprive the appellant of his livelihood on the ground given by the learned Judge, and if the Stock Exchange had no such power, how can the Court arrogate to itself this power ? I am aware that "arrogate" is a strong word, but if we dismiss the suit in the name of judicial discretion, the result would be that we would be depriving the appellant of his livelihood or of his reputation, and we have no such power. Accordingly, in my humble opinion, the appellant is entitled to the relief claimed as he has proved that the order (Exh. C/2) was illegal and mala fide.

34. I am aware that the learned Judge also held that the suit of the appellant was barred by laches, and as learned counsel relied on this finding. I may point out that the impugned order (Exh. C/2) was passed on 28‑10‑1954, whilst the appellant had filed his application under Order XXXIII, C. P. C. in July 1956. Thus whilst the period of limitation was six years, the suit had been filed even before the expiry of two years. No‑, as a person filing a pauper Suit is confronted with obvious difficulties, if the view of the trial Court be correct, it would impose an almost prohibitive restriction on the rights of the poor and the needy to enforce their rights through the Courts. I cannot agree with this view.

35. Finally, Mr. Aziz Munshi submitted that, in any event, the appellant would not be entitled to damages unless the impugned order (Exh. C/2) was mala fide. As I have held that it is mala fide, it is not necessary to examine the submission, and I would, turn to the question of the quantum of damages. I observed earlier that the amount claimed seemed fanciful and when we pointed this out to the appellant, his reply was that the Stock Exchange had seized his papers and securities and disposed of his assets. Mr. Aziz Munshi's explanation was that in the exercise of its powers under the rules, the Defaulters Committee had invited claims against the appellant and had paid out these claims through the sale of the appellant's assets, and he further submitted that the appellant's grievance was not fit to be considered because it had not been specifically pleaded. Mr. Aziz Munshi's submission is correct, and as no particulars whatsoever of this alleged claim have been pleaded, it must be rejected. However, according to the Minutes of the Defaulters Committee (Exh. C/24), the appellant's liabilities had been assessed at Rs. 68,459‑15‑0, and on our enquiries, it was not Mr. Aziz Munshi's case that any part of these liabilities had remained outstanding. Therefore, whilst the Stock Exchange has maintained a veil of secrecy about its disposal of the appellant's assets, it is clear that he had substantial assets. But reverting to the question of damages, the appellant has claimed both general and special damages for defamation, and I would first consider his claim for general damages.

36. The appellant has not specified the amount claimed for general damages nor was he required to give a break‑up of his claim, but when we invited him to make his submissions on this question he referred us to my judgment in Harold Robert Henry Lind v. British Insulated Callender's Construction Co. Ltd. (P L D 1970 Kar. 315). There I had observed that the plaintiff was entitled to about Rs. 10,000 as general damages; but, in view of aggravating cir cumstances, I had awarded a total amount of Rs. 13,

000. And the appellant's contention was that he was entitled at least to Rs. 10,000 as general damages, in view of this judgment. The submission is not correct, because the plaintiff in the case cited had been defamed through a notice in the news papers, and as observed by Ramaswami Iyer, in his excellent commentary on the Law of Torts, 5th Edn., p. 313: "libel in a newspaper, specially one with a very large circulation, is ordinarily a greater wrong than a libel published to a few persons." As the defamatory publication in the instant n case was only to the members of the Stock Exchange, I would hold that " the appellant was entitled to a sum of Rs. 5,000 or Rs. 6,000 as genera? damages. But in Lind's case, I had increased the amount of damages by about Rs. 3000 because of the manner in which the defendant in that case had defended the Suit for defamation. Unfortunately, for reasons which I cannot understand, in defamation suits defendants appear to take the view that attack is the best form of defence. That is what the Stock Exchange has done in the instant case, and as I indicated earlier, the appellant was subjected to a most gruelling cross‑examination about his means in order to cast doubt on his honesty and in order to show that he was completely enable to meet his obligations as a member of the Stock Exchange.

37. However, as I explained, all this evidence was an exercise in futility, because the Directors, who passed the impugned order (Exh. C/2), were not aware of it. So, as in Lind's case the only result of all this evidence was to embarrass and humiliate the appellant, and in this respect the instant case is on all fours with Lind's case. However, in Lind's case the defamatory material was published only once, whilst in the instant case, as I showed earlier, the Stock Exchange's Secretary had published three notices about the appellant's defence, and one of these (Exh. C/17) was prima facie male fide. Again, apart from these three notices, another notice Exh. 149 was published by the Stock Exchange declaring that the appellant was a defaulter, and. it further stated: "he disappeared from Karachi and could not be traced" As the appellant had been corresponding with the Stock Exchange, as he had been filing criminal complaints against the Secretary and against Mr. A. A. Gani, we were astonished and shocked by these observations. Mr. Aziz Munshi was not able to refer us to any evidence to show that the Secretary was not aware of the appellant's address, but he relied on the fact that the appellant had not appeared before the Defaulters Committee, therefore, according to learned counsel, the Secretary was entitled to assume that he had disappeared from Karachi. The explanation is frivolous. The appellant was not a defaulter and was not under any obligation to appear before the Defaulters Committee, and if the Secretary desired his presence, he should have sent a notice to him. Accordingly, this notice (Exh. 149) was grossly defamatory and is clear evidence of malice. It also amounted to an extremely aggravating circum. stance for the purpose of assessing damages. I would also recall here that the appellant had been declared a defaulter by the Board of Directors of the Stock Exchange at their meeting of 23rd November 1954 (Exh. C/21). Finally, the Stock Exchange had sold the appellants membership card. Necessarily this sale involved a fresh publication of the defamatory material against the appellant, but as the sale was illegal, it also means that the Stock Exchange illegally enriched itself at the expense of the appellant. The card was sold for Rs. 10,000 in 1955, and as the sale was illegal, if the appellant had challenged it by a proper plea in the plaint, he would have been entitled to the recovery of the sum of Rs. 10,000 with interest from the date of the sale nearly 20 years ago. But, although he was aware of this illegal sale as he did not seek any specific relief either in the original plaint or in the amended plaint, I do not see how, we can allow the claim. However, as the amount of general damages may be increased on account of aggravating circumstances, I would observe here that I cannot conceive of a more aggravating circumstances than this illegal sale. Accordingly, having given anxious thought to the claim. I would award Rs. 14,000 as general damages.

38. I now turn to the claim for special damages, and in order to succeed, the appellant has to prove the financial loss to him which was the direct consequence of the publication of the impugned order (Exh.C/2). Normally, it is not easy for a plaintiff to prove such special damages, but in the instant case, his claim stands proved from the facts. In view of the order (Exh. C/2) he was compelled to abandon his business as a stock broker and he had to find some other occupation. He is therefore entitled to compensation for the period reasonably required in finding another suitable occupation, and he said that he first tried to find employment as a cotton broker, but he could not on account of the impugned order (Exh. C/2), therefore he turned to the legal profession. The correctness of this claim was not questioned before us. Nor can there be any doubt that the appellant acted very reasonably in joining the legal profession, because he had already qualified for it by doing the LL.B. Now as, on a most conserva tive estimate, it would take two or three years for an Advocate to establish himself in his profession, the appellant would be entitled to compensation for a period of at least two years. I may also observe here that no argument to the contrary was advanced before us by Mr. Aziz Munshi who, however, submitted that the income of the appellant as a broker should be a standard for awarding him compensation. The submission is correct, and further. according to Mr. Aziz Munshi, the evidence proved that the appellant had only declared a net income of Rs. 3,000 for the year 1954. Accepting also this submission, I have to point out that the appellant became a member of the Stock Exchange only on 24‑7‑1953. Therefore, the income of Rs. 3,000 was not the income for an entire financial year. Secondly, it is also admitted that the appellant obtained his office in the Stock Exchange only in March 1954. The business of a broker improves considerably when he has an office in the Stock Exchange, and it is to be noted here that the appellant obtained his office almost at the end of the financial year 1953‑

54. Thirdly, it is also admitted before us that he became the sole broker of the Batala Engineering Company during the pendency of this financial year. In all the circumstances it is obvious that his net income would have improved considerably with the passage of time, but it is very difficult to determine by how much it would have improved, and Mr. Munshi's only submission was that the appellant's claim was exaggerated. That is true, but it remains our duty to assess the damages to which the appellant is entitled, and he has proved that his prospects had improved very considerably when he was illegally expelled. Having given anxious thought to his claim, in my opinion, he would have been earning a net monthly income of Rs. 500 in the year 1954, and in the normal course there would have been a slow improvement in his earnings. Accordingly as he is entitled to compensation for about two years, I would award him Rs. 14,000 as special damages.

39. The appellant's only other claim is for the illegal seizure and loss to his movable property, and though he assessed this loss in the plaint at Rs. 10,000, he explained in his evidence that he had included under this item the value of his membership card. This means that the claim for the movable property, which can be decreed, is only for the sum of Rs. 5,

000. Now Mr. Munshi's criticism of this claim was that the typewriter of the appellant, which the Stock Exchange had seized, had been returned to him through the Magistrate, and further that the appellant had not given particulars of his claim. As to the typewriter, the submission overlooks the fact that it was not included in the appellant's list of movable property of which he had been deprived, and, on the contrary, he expressly stated in his evidence "the value of my furniture which was left with the defendant and which was not recovered through the Magistrate was about Rs. 1,000.00". The appellant was not cross‑examined on this statement, nor was he cross‑examined on his further statement that the value of his law books, which the Stock Exchange had not returned to him was Rs. 1,

500. Additionally, the appellant had also claimed for the loss of his Office in the Stock Exchange, which the Stock Exchange admitted to have disposed of. It was, therefore, for Stock Exchange to produce evidence of the terms on which it had disposed of this Office, but it did not. Bearing in mind also the failure to cross‑examine the appellant on this claim, I would award Rs. 3,500.00 as damages under this item.

40. In the result, the appeal is allowed and I set aside the judgment and decree of the trial Court. The order of the Directors (Exh. C/2) is declared to be illegal and ultra vires, as claimed in the plaint, and in the normal course this would have entitled the appellant to the further declaration that he was a member of the Stock Exchange, but as he is a practising Advocate, we observed that it would be misconduct for an Advocate to combine his professional duties with the pursuit of a business or trade. The appellant's only reply was that he wanted time to make up his mind in the event of his appeal being successful. The request is very reasonable, I direct that if, within one month, or, such further time as may be given, the appellant informs the Court that he has ceased to be an Advocate, then, the decree shall include a declaration that he is a member of the Stock Exchange, otherwise it will only declare that the order Exh.C/2 is illegal and ultra vires. Finally, as to the monetary relief; for the reasons which I have given, I award Rs. 28,000.00 as damages for defamation and this includes both general and special damages. I also award Rs. 3,500.00 as damages for the illegal conversion of the appellant's movable property. I further direct that interest at 6 % per annum shall be paid on these amounts from the date of the decree till the realization of the decretal amount, and the appellant is also awarded proportionate costs in both Courts. JAMALUDDIN H. AHMAD, J.‑‑I agree. K. B. A. Appeal accepted.