P L D 1967 Dacca 761 (PLP)

Mr. Asrarul Hossain, learned counsel, has also contended that in case it be held that there was no abrogation of the Constitution by virtue of the letter Exh. A(3), it has been abrogated by conduct of the parties. As I have already expressed my view that the letter Exh. A(3) had the effect of abrogation of the Constitution, it is not necessary to enter into the merits of the alternative contention. However, as 'the contention has been mooted, I think, I should give my opinion on this point. The contention of the learned counsel is that as membership of the Federation could be renewed annually on payment of annual subscription under clause (4) of Article 7 and as on default of payment of dues within due date as stated in clause (5) of Article 7 read with clause (b) of Article 16 and Article 17, the membership of the different member organizations terminated. It has been represented that there was no payment of annual subscriptions during the period from 1st of November 1958 to 7th of July 1961. Mr. Pal, the learned Advocate for appellants, has contended that this is a new case made at the time of argument in second appeal and that no such case was made in the written statement that membership ceased because of non‑payment of annual subscriptions. There was no scope for the defendants to raise this point of non‑payment of annual subscriptions in the written statement, because in the plaint it was nowhere stated that the annual subscriptions were paid by different member‑organizations or member‑clubs. On the contrary in paragraph 9 of the plaint, there is mention about outstanding dues. Mr. Pal has also contended that the fact that the sports went on during the period from November 1958, till the first week of July 1961, indicates that membership continued on payment of subscriptions. This contention has no force because of absence of any such case in the plaint. It may be observed that there could not be any question of payment of annual subscription by any member clubs as membership was dissolved due to the letter Exh. A(3) on 31‑10‑1958. If the letter Exh. A(3) had not the effect of abrogation of the Constitution, 1 would have held that the Constitution had ceased to exist because of the subsequent conduct of the member clubs. The learned Advocate for the appellants has also contended that it cannot be held that the East Pakistan Sports Federation as constituted under the Constitution of 1953, did not exist, because it was the case of defendants also that it had existence during the period from November 1958, till the 7th of July 1961. I cannot agree with this contention in view of the following statement in paragraph 21 sub‑paragraph (g) of the written statement: "That soon after the promulgation of the Martial Law in the country the East Pakistan Sports Federation was dissolved and it would be a constitutional paradox to presume that though the organisation was dissolved its constitution subsisted." The learned Advocate for the appellants has also referred to the term "existing" in Exh. A(7) in support of the contention that the East Pakistan Sports Federation of 1953 was in existence. Exh. A(7) contains a resolution dated 7th July 1961, Government of East Pakistan, Education Department stating that the Governor was pleases: to constitute a committee with the Officers mentioned in it to advise, on control and administration of sports and games ill tile Province: Clause (iii) to paragraph 2 of Exh. A(7) is as follows:‑ "Recommendation on proposal for an ad hoc committee to look after the affairs of the existing East Pakistan Sports Federation pending finalisation of its Constitution." The term "existing" in Exh. A(7) means the East Pakistan Sports Federation of that period and not the East Pakistan Sports Federation of 1953. Had it meant the East Pakistan Sports Federation of 1953, the use of the word "existing" would be redundant. It also may be mentioned here that in the representation Exh. 6 submitted by the plaintiffs and some others to the Governor, the Constitution of 1953 has been mentioned as "late Constitution". This also indicates that the Constitution of 1953 was not in existence after 31‑10‑1958. The learned Advocate for the appellants has also argued that the Constitution of the East Pakistan Sports Federation framed in 1962 was not valid and that it did not supersede the Constitution of 1953. In this connection the learned Advocate has drawn attention to. Exh. B(7) dated 7‑7‑1961 and B(1), a letter dated the 28th of August 1962. In Exh. B(7) there is mention of the Constitution of an ad hoc committee by the Governor for the preparation of a Constitution for the East Pakistan Sports Federation. In Exh. B(1) it is mentioned that the Constitution of the East Pakistan Sports Federation as drafted by the ad hoc committee was approved by the Government. The contention of the learned Advocate is that the Governor who is a patron under the Constitution of 1953 bad no power to constitute an ad hoc committee for preparation of a Constitution. But Exh. A(7) does not indicate that the Governor framed the ad hoc Committee for preparation of the Constitution as a patron. There was no question of his acting as patron under the Constitution of 1953 because it had no existence at that time. In paragraph 5 of the plaint it has been stated that the Martial Law Administration withdrew the order of 1958 and made over the charge of the East Pakistan Sports Federation to the Government of East Pakistan, Education Department, to make over the same to the East Pakistan Sports Federation authority. As there was no existence of the East Pakistan Sports Federation, 1953 and there was abrogation of the Constitution of 1953, there was no bar for the Governor to constitute a committee for preparation of a constitution relating to East Pakistan Sports Federation. So the Constitution framed in 1962 by the ad hoc committee on the basis of the order of the Governor was valid. Mr. Pal has argued that the suit is not barred by estoppel as the plaintiffs did not make any representation to the defendants and as the defendant did not act on such representation. Mr. Asrarul Hossain, learned counsel, also did not state in his reply that the suit was barred by estoppel. The lower appellate Court also did not hold, that the suit was barred by estoppel. I accept the contention that the suit was not barred by estoppel. The learned Advocate for the appellants has argued that the suit was not barred by acquiescence. The contention of the learned Advocate is that void or illegal act cannot be made valid by acquiescence. The learned counsel for the respondents did not challenge this proposition of law. In this case it has been found by the Courts below that plaintiffs participated in all activities of sports and games after the Constitution of 1962 and that they also participated in the election held on 24‑10‑

62. The trial Court remarked. "There is no dispute that plaintiffs participated in all activities of sports and games and also in the election held on 24‑10‑62." After taking part in the sports and games and in the election held under the new Constitution, plaintiffs cannot challenge the validity of the Constitution of 1962 because of their acquiescence. The suit is barred by acquiescence. I have already stated that the Constitution of 1962 is valid. The learned Advocate for the appellants has also argued that the plaintiffs had locus standi to institute the suit and that the suit is maintainable under section 42 of the Specific Relief Act. The contention of the learned Advocate is that as voters of the East Pakistan Sports Federation, plaintiff's bad right to challenge the validity of the Constitution of 1962 and as such, they have locus standi to bring the suit. In support of this contention, the learned Advocate has referred to the cases in Kali Prosad Singh v. Makutdhari Prosad Sinha (A I R 1933 Pat. 155) and Rev. Robert Dobie v. The Board for the Management of the Temporalities Fund of the Presbyterian Church of Canada ((1881‑2) 7 A C 136). The facts in the case of Kali Prosad Singh v. Makutadhari Prosad Sinha are distinguishable from those in the instant case. In that case the suit was brought by a candidate whose nomination was rejected by the Returning Officer and as such, he was deprived of his right to stand for the election. It has been held in that case that the order of Returning Officer summarily rejecting the nomination of a candidate could be challenged under section 42, Specific Relief Act, because the arbitrary decision of the Returning Officer not only took away the right of the candidate to stand for election, but also deprived the electors of the exercise of their right of franchise in choosing their own representative. Plaintiffs have brought this suit in their personal capacities. But they were not voters in the East Pakistan Sports Federation of 1953 in their personal capacities. According to Article 6 of the Constitution of 1953 read with clause (1) of Article 7, only clubs and organizations could be members of the Federation. So the personal right of the plaintiffs was not affected because of the abrogation of the Constitution of 1953 or of the formation of the Constitution of 1962. In the case of the Rev. Robert Dobie v. The Board for the Management of the Temporalities Fund of the Presbyterian Church of Canada ; it was held that a suit by a plaintiff for declaration that a particular Act was invalid was not barred by the reason that the Act was passed in conformity with the resolution of the synod of the Church to which he belonged. The facts of that case are entirely different from those in the present case. The principle laid down in that case is of no assistance to the appellants in this case. In paragraph 1 of the plaint it is stated that plaintiff No. 1 is the Vice‑President of the National Sporting Club and was duly authorised to represent the club as a voter from the said club in the Cricket Club Constituency. It is stated that the plaintiff No. 2 is the Honorary Joint Secretary of the Dacca Wanderers Club and was duly authorised to represent the club as a voter and candidate from the said club in the Volleyball and Badminton Clubs Constituency and the plaintiff No. 3 was the Honorary Secretary of the Quad‑i‑Azam Physical Training School (Institute) and was authorised to be a candidate from the said institute in the Wrestling, Weight‑lifting, Boxing and Gymnastic Clubs Constituency. Thus if it be held that plaintiffs Nos. 1, 2 and 3 instituted the suit as Vice‑President of the National Sporting Club, Honorary Secretary of the Dacca Wanderers Club and as the Honorary Secretary of the Quad‑i‑Azam Physical Training Institute respectively, the suit would not be maintainable, as in the case of unincorporated associations and clubs, the Secretary or any other Officer of the institution cannot sue or be sued. This view finds support in the cases in Michael v. Briggs and another (I L R 14 Mad. 362) and Thakur Prasad Saksina v. Firm Sadiq Husain Mehdi Husain (A I R 1940 Oudh 129). In the case of Michael v. Briggs and another it has been laid down that an action to recover the price of goods supplied to a member of a non‑proprietary club, or on his responsibility cannot be brought in the name of the Secretary of the Club. In the case of Thakur Prasad Saksena and another v. Firm Sadiq Husain‑Mehdi Husain it has been laid down that no one member of an association or an unregistered body could alone sue or be sued. There is also nothing in the plaint to indicate that plaintiffs 1, 2 and 3 were authorised by their respective clubs to bring the suit. In any view of the case, whether the plaintiffs instituted the suit in their personal capacities or as members of their respective clubs, they have no locus standi to bring the suit and the suit is not maintainable at their instance. The learned counsel for the respondents has also contended that plaintiffs were not entitled to relief, as declaration under section 42 of the Specific Relief Act is a matter of discretion of the Court and that the discretion is not to be exercised as everything relating to Sports in Dacca is going on well. In support of this contention the learned counsel has referred to the case of Azizur Rahman Chowdhury v. M. Nasiruddin and others (P L D 1965 S C 236). In view of the fact that the suit was dismissed by the lower appellate Court on discussion of questions on merits, it is not necessary to enter into this question. But as the point has been raised, I would like to express my opinion. It is not a matter of absolute right to get a declaratory decree. It is discretionary with the Court to grant it or not and in every case the Court is to exercise a sound judgment as to whether it is reasonable or not under the circumstances of the case to grant the relief asked for. Where the conduct of the plaintiffs indicates that the suit is filed for some other motive and not in good faith, the Court is entitled to refuse to exercise its discretion in favour of the plaintiffs. See Azizur Rahman Chowdhury v. M. Nasiruddin and others and A. K. M. Fazlul Quader Chowdhury v. Government of Pakistan and another (9 D L R 139). In the present case the finding of the Courts below is that plaintiffs took part in sports and games arranged under the rules of the Constitution of 1962. It was found that plaintiffs took part in the election held on 24‑10‑

62. The lower appellate Court has also found that plaintiffs were defeated in the election and that being frustrated in the election, they instituted the suit to undo what was brought into existence. The plaint does not indicate that plaintiffs or their clubs have any grievance about the management of sports and games by the defendants in accordance with the rules under the Constitution of 1962. The conduct and motive of the plaintiffs indicate that they have not brought the suit in good faith. On this ground also the plaintiffs would not be entitled to any declaration. The lower appellate Court rightly dismissed the suit. There is no ground to interfere with the decision of the lower appellate Court. The appeal is dismissed with costs and the judgment and decree passed by the lower appellate Court are affirmed. The applications for striking the names of respondents Nos. 3, 6, 7, 13 and 14 of the memorandum of appeal are allowed. Let the, names of respondents Nos. 3, 6, 7, 13 and 14, be struck off the memorandum of appeal, as prayed for. Civil Rule No. 417(s) of 1964 is discharged without any order as to costs. The learned Advocate for the appellants prays for leave to appeal under clause 15 of the Letters Patent. The prayer is refused. S. Q. Appeal dismissed.