P L D 1969 Karachi 349 (PLP)

(a) Civil Procedure Code (V of 1908), S. 115 ‑ Words "in which no appeal lies thereto"‑Revision barred only when there exists right of appeal to "High Court" and not where appeal' com petent in a subordinate Court. A plain reading of section 115, C. P. C. suggests that a revision is barred only when there is a right of appeal to the High Court, and not when the applicant has a right of appeal in a sub ordinate Court. A revision filed by a person is therefore not barred merely because the impugned order was appealable in the a District Court. Brown v. Hanson A I R 1933 Bom.‑ 185 and Secretary of State v. Ishardas A I R 1936 Lah. 761 not fol. R. M. A. R. A. Adaikappa Chettiar and another v. R. Chandra sekhara Thevar A I R 1948 P C 12 and N. S. Venkatagiri Ayyangar and another v. The Hindu Religious Endowments Board, Madras A I R 1949 P C 156 distinguished. Abdul Wahid v. Allahdin PLD1960 Kar.473 (over ruled); Province of West Pakistan v. Ghulam Kadir L D 1963 Kar. 337; Abdur Rashid v. Abdur Rahim P L D 1959 Lah. 806; Shahbaz v. Muhammad Siddique P L D 1959 B J 10 and Zafar Ahmad v. Abdul Khalique P L D 1964 Kar. 149 ref. (b) Civil Procedure Code (V of 1908), S. 115 and O. XXXIX, rr. 2 & 4‑Temporary injunction‑‑Mere fact that person aggrieved by grant of temporary injunction could move Court for its discharge under r. 4 of O. XXXIX‑No ground for refusing to entertain revision under S. 115 if he can show that impugned order was utterly arbitrary. (c) Civil Procedure Code (V of 1908), O. XXXIX, rr. 1 & 2

Words "status quo

‑Meaning. Warton's Law Lexicon, 14th Edn. ref. (d) Civil Procedure Code (V of 1908), O. XXXIX, rr. 1 & 2

Principles governing exercise of Court's discretion under O. XXXIX, rr. 1 &

2. Where the only consideration taken into account by the Court was the fact that the plaintiff would be "prejudiced" if an injunction was not granted: Held, it is settled law that provided a plaintiff comes to Court with clean hands, he will be entitled to an interim injunction if he shows that he has a prima facie case for the relief he seeks, that the balance of convenience is in favour of granting him interim relief and that irreparable injury will be caused to him if an injunction is not granted. An injunction under Order XXXIX, rules 1 and 2, C. P. C. cannot be granted unless the plaintiff establishes a prima facie case. As an injunction is an equitable remedy, which can only be granted to a plaintiff who comes to Court with clean hands, the ad interim orders are fit to be set aside on this ground alone. A Court of law leans against passing orders without hearing parties who may be prejudiced by such orders, and when it passes ex parse orders against the absent defendants it is under a duty to consider the interests both of the plaintiff and of the defendant. Further as an injunction is an equitable remedy, it is settled law that a plaintiff who is guilty of wilful delay in approaching the Court for relief is not normally entitled to ad interim orders. Muhammad Yasin v. Riasuddin Ahmad P L D 1967 Kar. 241 and Ahmad v. Chettapadia P L D 1959 Dacca 498 distinguished. Gandhi v. Edulji & Company Limited P L D 1951 Lab. 232; Standard Bank Limited v. Nizami L. P. A. No. 110 of 1968 and Mulla's Commentary on the Civil Procedure Code, 12th Edn., p. 581 ref. The applicant is a Society registered under the Societies Registration Act, 1860. The respondent is a member of the applicant. He and other members have not been satisfied with the manner in which the applicant Society is being managed, therefore they had made a complaint to the Com missioner of Karachi who is its president. On the order of the Commissioner, the accounts of the applicant Society were scrutinised by an independent auditor who had issued a report. On the basis of this report, by a letter dated the 16th July 1968, 34 members of the applicant Society, inclu ding the respondent, had called upon the applicant to acquisition a special meeting of the Society under Rule 5 of he Memorandum and Rules of Association of the applicant. In pursuance of the requisition, by its notice dated the 28th August 1968, the applicant called a special meeting on 16th September 1968. Six days before this meeting was to be held, the respondent and his group sent a telegram to the applicant objecting to the agenda fixed for the special meeti ng. The agenda was so defective that on receipt of the telegram, the applicant cancelled the said special meeting. Thereafter by another notice dated the 15th October 1968, the applicant announced that the special meeting in pursu ance of the said requisition, would be convened on 2nd November 1968. The respondent and others were again aggrieved by the agenda and notice of this meeting, there fore they filed suits against the applicant. Here it is relevant to observe that on the day before the special meeting was to be held, on 1st November 1968 the respondent filed a suit against the applicant, being Suit No. 2239 of 1968 in the Court of the 7th Civil Judge, Karachi hereafter called the first suit, in which he contended that the applicant had illegally altered the agenda for the special meeting, therefore he sought a declaration that it had no power to alter the agenda for the special meeting, and an injunction to restrain the applicant from holding the said special meeting on the following day, namely, 2nd November 1968. The respondent also filed an application under Order XXXIX, rules 1 and 2, C. P. C. to restrain the applicant from holding the said special meeting and asked for ad interim orders. By his order dated the 1st November 1968, the learned 7th Civil Judge directed the maintenance of the status quo. The applicant contested this injunction application which did not come up for hearing for sometime. Meanwhile, under its rules, the applicant had to hold its annual general meeting before the 31st December of each year, therefore by its notice dated the 19th November 1968, the applicant announced that the annual general meeting would be held at the premises of the applicant on the 29th December 1968. Nearly a month after receiving this notice, on 16th December 1968, the respondent filed another application under Order XXXIX, rules 1 and 2, C. P. C. to restrain the applicant from holding the said annual general meeting. The learned 7th Civil Judge very correctly ordered notice of this application to the applicant and fixed this application, together with the earlier injunction application of .the respondent, for hearing on 28th December 1968. As this day was a Court holiday, both these injunction applications came up for hearing before .the vacation Judge and the applicant's Advocate attended Court to contest both these applications. However, on 28th December 1969, the respondent sprang a. surprise on the applicant by stating that, as the special meeting had been cancelled, on account of the ad interim order for status quo given by the Court on 1st November 1968, the suit had become infructuous, therefore he prayed for permission to withdraw the suit. The vacation Judge allowed this application and the suit was withdrawn without any order as to costs. It was admitted before me that the vacation Judge, who had only three cases fixed before him on that day, had allowed the respondent to withdraw the said suit at about 11 a. m. The 28th of December 1968, fell on a Saturday during the vacation, therefore as the suit against the applicant was withdrawn, the applicant's counsel left the Court. Thereafter, according to learned counsel for the respondent, within about one hour, the respondent, filed a second suit against the applicant, namely, Suit No. 2564 of 1966 (hereinafter called the second suit). The contention of the respondent in the second suit was that the applicant had illegally failed to convene the special meeting in order to play fraud upon the members of the applicant, therefore he sought a declaration that he and the 33 members who sup ported him were entitled to call a special meeting before the annual meeting of the applicant and he sought a per manent injunction restraining the applicant from holding its annual general meeting on 29th December 1968, because the special meeting had not been held. As in the first suit (namely No. 2239 of 1968) the respondent sought an ad interim injunction under Order XXXIX, rr. 1 and 2, C. P. C. to restrain the applicant from holding its annual meeting the next morning, and the learned Civil Judge, who an hour earlier had allowed the respondent to withdraw his first suit in which the same interim relief had been claimed, passed ad interim orders in favour of the respondent in this second suit. Aggrieved by this order, the applicant has come in revision to this Court.

2. Learned counsel for the applicant submitted that the impugned order is not a judgment because it does not con tain the grounds on which it has been passed. It is therefore necessary to quote the order. The order states "Heard Mr. Zaheeruddin Advocate for the plaintiff. The meeting is proposed to be held on 29th December 1968. The plaintiff is likely to be prejudiced and the matter is of great urgency. Hence ad interim injunction is granted. Costs." As the main relief sought by the respondent in the suit was that the annual meeting of the applicant should not be held the effect of this order was to decree the respondent's suit in so far and was for a permanent injunction without giving a hearing to the applicant. Yet the order does not contain any proper statement of the reasons why the learned Judge passed this order. Therefore I invited learned counsel for the respondent to show how such an order could be defended and be advanced several arguments which I shall now consider. "

115. The High Court may call for the record of any case which has been decided by any Court subordinate to such High Court and in which no appeal lies thereto, and if such subordinate Court appears‑ (a) to have exercised a jurisdiction not vested in it by, law, or (b) to have failed to exercise a jurisdiction so vested, or (c) to have acted in the exercise of its jurisdiction illegally or with maternal irregularity. The High Court may make such order in the case as it thinks fit." A plain reading of this section suggests that a revision is barred only when there is a right of appeal in this Court, and not when the applicant has a right of appeal in a subordinate Court. However, in support of his submission learned counsel relied on Judgments of the Bombay and Lahore High Courts and two Judgments of the Privy Council. As the Judgments of the Privy Council do not support the respondent's case, I shall first consider the Bombay Judgment In Brown v. Hanson (A I R 1933 Bom. 185) in dismissing a revision application, a Division Bench of the Bombay High Court observed at page 186 in reference to section 115, C. P. C. as follows:‑ " . . . . . The order made by the learned Subordinate Judge was one in which an appeal was competent (in the District Court) and therefore one which is excluded from the purview of this Court in revision by section 115; C. P. C." Unfortunately, the learned Judges have not given any reason for the interpretation taken by them of section 115, C. P. C. with very great respect, their interpretation, in my humble opinion, imposes on the jurisdiction of the High Court a restriction which is not contained in the section and which is inconsistent with the words "in which no appeal lies thereto", therefore I am not able to agree with their interpretation. This Judgment of the Bombay High Court was followed by a learned Single Judge of the Lahore High Court in Secretary of State v. Ishardas (A I R 1936 Lah. 761) but the learned Single Judge has also not given any reason for following the Bombay Judgment, therefore this Judgment does not advance the respondent's case. Turning now to the Judg ments of the Privy Council, both the Judgments cited arose out of applications in the subordinate Courts under statutes of which the learned counsel did not have a copy. In R. M. A. R. A. Adaikappa Chettiar and another v. R. Chandrasekhara Thevar (A I R 1948 P C 12) a Judgment‑debtor had filed applications in the Court of a Subordinate Judge for relief in execution proceedings under the provisions of sections 19 and 20 of the Madras Agriculturists Relief Act, 1938, and it would appear that under these provisions he was entitled to a reduction of his liability if he established that he was an agriculturist. The learned Subordinate Judge hold that he was not an agriculturist and dismissed these applications, therefore the applicant filed appeals in the High Court against both these orders. But in view of a Judgment of a Full Bench of the Madras High Court on the construction of section 19 of the said Act, with the leave of the Court he converted one of his appeals into a revision, and both his appeal and his revision were allowed on the ground that he was an agriculturist. This Judgment was reversed in appeal by the Privy Council, and in setting aside the Judgment of the High Court, the Judicial Committee also overruled the Full Bench Judgment of the High Court that no appeal lay under section 19 of the said Act to the High Court. Learned counsel referred me to the following observations of the Judicial Committee at page 14 of the Judgment " . . . That being so, the High Court was wrong in entertaining an application in revision since under section 115 of the Code there is no jurisdiction in revision where an appeal lies." These observations had reference to the decision of the Judicial Committee that the applicant was entitled to file an appeal under section 19 of the said Act from the order of the Subordinate Judge directly to the High Court, whereas in the instant case the applicant could only have filed an appeal in the District Court, therefore the observations on which learned counsel relied are not relevant to the question for determination before me. Similarly, in N. S. Vankatagirt Ayyangar and another v. The Hindu Religious Endowments Board, Madras (A I R 1949 P C 156) an application had been filed in the Court of a District Judge under the Madras Hindu Endowments Act, 1926 in respect of a religious endowment, and the question for determination in the case was the construction of a will. The application was dismissed by the learned District Judge, who according to the applicant had misconstrued the pro visions of the relevant will, therefore the applicant filed a revision application in the High Court, and the High Court accepted his contention that the District Judge had miscon strued the will; therefore it allowed the revision application. The order of the High Court was set aside in appeal by the Privy Council on the ground that, as the revisional Jurisdiction of the High Court under section 185, C. P. C. was of a limited nature, it could not set aside the order of the learned District Judge merely on the grounds of the misconstruction of the will. It is relevant to observe here that under the Civil Procedure Code an appeal against an order of the District Judge can be only to the High Court and, as the relevant statute did not provide for a right of appeal, the applicant had filed a revision. It was in this context that the judicial committee made observations, to which learned counsel referred me, that section 115, C. P. C. applies only to cases in which no appeal lies. It is clear that these observations were made in reference to the statute under construction, and the question whether a revision lies when the applicant has a right of appeal to a subordinate Court did not arise for consideration before the Judicial Committee, therefore this Judgment is also irrelevant to the submission of learned counsel in Abdul Wahid v. Allahdin (P L D 1960 Kar. 473), Province of West Pakistan v. Ghulam Kadir (P L D 1963 Kar. 337), Abdur Rashid v. Abdur Rahim (P L D 1959 Lah. 806) and Shahnaz v. Muhammad Siddique (P L D 1959 B J 10) this Court has held that the fact that an appeal lies to a lower Court is not a bar to a revision under section 115, C. P. C. Finally, the scope of a revision was considered by a Full Bench of seven Judges of this Court in Zafar Ahmad v. Abdul Khalique (P L D 1964 Kar. 149), Manzoor Qadir, C. J., as he then was, observed in para. 19 of the Judgment, that a revision is barred only when the same matter could have been brought by way of appeal to the High Court itself. I am in respectful agree ment with the Judgments of this Court, therefore, I hold that the revision filed by the applicant is not barred merely because the impugned order was a eatable in the District Court, out m actor ante with the practice of this Court, this revision will fail unless the applicant can show that the impugned order is so arbitrary that it requires interference by this Court.

4. The second submission of learned counsel for the respondent was that even if a revision was maintainable i should not be allowed, because the applicant could have move the learned Civil Judge under Order XXXIX, rule 4, C. P. C. to vacate the ad interim injunction passed against it. The applicant was served on a Saturday evening with the order of the Court restraining it from holding its annual meeting the next morning at 10 a. m. It was therefore admittedly difficult for the applicant to obtain relief from the learned Civil Judge, and the mere fact that an alternative remedy was available would not defeat the applicant's claim if it can show that the impugned order was utterly arbitrary. The applicant's contention is that the impugned order is utterly arbitrary so that it warrants interference by this Court under S. 115, C. P. C., and I have to consider whether this contention is correct.

5. As I have observed, the provisions of section 115, C. P. C. have been construed by a Full Bench of this Court in Zafar Ahmad v. Abdul Khaliq and it will be convenient to set out here the relevant part of para. 19 of the said Judgment which prescribes the conditions in which this Court will interfere in revision. Para. 19 in so far as it is relevant states: "

19. The position with reference to section 115 may thus be summarised in the following proposition:‑ (i) The High Court may, in respect of any state of facts judicially considered, on which a Court subordinate to the High Court has given a decision, make such order as it thinks fit, if in the opinion of the High Court, such Court in giving decision. (a) has exercised or assumed a jurisdiction not vested in it by law, or (b) has failed to exercise or declined to assume a jurisdic tion vested in it by law, or (c) while exercising its jurisdiction has taken a procedural step which is contrary to a mandatory provision of the law, or has omitted to take a procedural step which is required by a mandatory provision of the law to be taken, or (d) while exercising its jurisdiction has taken a procedural step which is contrary to a directory provision of the law, or to a general principle of law, and which in the final result has given to o t an advantage over the other w is it would not have got but for the fact that that step was taken. (ii) The High Court cannot exercise this power if that same matter could have been brought before it by way of appeal." I am in respectful agreement with the observations quoted, and in applying them to the facts of this case I have further to bear in mind that the impugned order is a discretionary order, therefore this Court cannot interfere in revision merely because that discretion has been exercised erroneously or because the trial Court has determined erroneously a question of fact or law. On the other hand, whilst the trial Court had the jurisdiction to exercise its discretion erroneously, it was bound to exercise that discretion according to the settled principles of law which govern the interpretation of Order XXXIX, rules 1 and 2, C. P. C. and even an order under Order XXXIX, C. P. C. can be challenged in revision if it is so arbitrary that it is a colour able exercise of power. It is therefore necessary to consider the principles governing the exercise of the Court's discretion under Order XXXIX, rules 1 and 2, C. P. C. It is settled law that provided a plaintiff comes to Court with clean hands, he will be entitled to an interim injunction if he shows that he has a prima facie case for the relief he seeks, that the balance of D convenience is in favour of granting him interim relief and that irreparable injury will be caused to him if an injunction is not granted. I have quoted the impugned order in para. 2 herein, and from a perusal of this order it is clear that the only consideration taken into account by the learned Judge was the fact that the plaintiff‑respondent would be "prejudiced" if an injunction was not granted. The learned Judge did not care to examine whether the plaintiff‑respondent had a prima facie case, or on whose side the balance of convenience lay. Confronted with this difficulty, learned counsel for the respondent argued vehemently that an injunction had to be granted whenever the plaintiff was likely to suffer irreparable injury and that this Court had no power to examine the question whether the respondent had made out a prima facie case for an injunction. I have to observe here that according to the learned Judge the respondent was entitled to ad interim orders, not because he would have otherwise suffered irreparable injury, but merely because his interests would have been prejudiced but for the ad interim orders. However, I shall first examine learned counsel's argument on the assumption that the respondent would have suffered irreparable loss but for the impugned order.

6. If this argument is accepted, a plaintiff with a flimsy cause of action can harass a defendant by filing a suit at the eleventh hour and then contend that the suit will become infructuous unless interim orders are passed in his favour, and if this Court cannot examine the conduct of such a plaintiff, or whether he has a prima facie case, it will put a premium on false claims and lead to absurd results. In the absence of authority binding on me, I cannot accept a proposition so contrary to all principles of equity and justice. However, in support of his sub mission learned counsel relied on Muhammad Yasin v. Riasuddin Ahmad (P L D 1967 Kar. 241) and Ahmad v. Chattapadia (P L D 1959 Dacca 498). In both these cases, the Court gave a finding that the plaintiff who had obtained an interim injunction had a prima facie case, therefore the judgments cited do not support learned counsel's argument that a plaintiff can obtain an 'interim injunction even without showing a prima facie case. No other judgment was cited in this connection, and in my opinion it is settled law that an injunction under Order XXXIX, rules 1 and 2, C. P. C. cannot be granted unless the plaintiff establishes a prima facie case. That was the view taken by Rehman, J., as he then was, in Gandhi v. Edulji Company Limited (P L D 1951 Lah. 232) and a Division Bench of this Court, of which I was a member, followed the view of Rehman, J. in Standard Bank Limited v. Nizami L. P. A. No. 110 of 1968 I am in respectful agreement with these judgments and learned counsel's argument is devoid of merit.

7. Learned counsel then submitted that the respondent had established a prima facie case for the cancellation of the applicant's annual meeting, therefore the order of the trial Court could not be challenged in revision. The provisions for holding meetings are contained in rule 5 of the Rules of the applicant. This rule states "

5. An Annual General Body Meeting of the Council shall be held every year before 31st December. In addition Special General Body Meetings can be held whenever considered necessary by the Governing Body or at the written request made to the President or the Secretary by not less than thirty members of the council." As this rule did not support learned counsel's submission, lie said that his case was not based on this Mule but on the plea, which was fully set out in the plaint of the second suit, that the governing body of the applicant had fraudulently delayed the special meeting so that they could hold the annual general meeting and the elections which would be held at that meeting without calling a special meeting. As fraud vitiates all transactions, this plea has to be examined. But allegations of fraud have to be pleaded specifically, and as observed by Mulla in his Commentary on the Civil Procedure Code, 12th Edn., page 581 "A litigant who prefers charges of fraud or other improper conduct should not be allowed to proceed with his case unless he places on record precise particulars as to his charges even if no objection is taken on behalf of the parties who are interested in disproving the charges." Accordingly, I shall only consider those allegations of the plaint which contain some particulars of the alleged fraud by the applicant's governing body.

8. According to learned counsel, even the notice con vening the annual general meeting was improper and he invited my attention to para. 15 of the plaint. Para. 15 states: "

15. That, besides, while calling the Annual General Body Meeting on 29‑12‑1968, the defendants have not forwarded the details of the proposition vie‑a‑vie the main agenda to be discussed at the meeting such as the "Statement of Accounts" and the "Audit Report" 15 days before the meeting, as required by Clauses 6 and 22 of the Articles." In view of these allegations, it is necessary to examine clauses 6 and 22 of the applicant's rules. Clause 6 states:‑ "

6. Formal notice and agenda proposed for the Annual General Body Meeting or Special General Body Meetings shall be dispatched to all Members at least 15 days before the date fixed for such meetings." Clause 22 states as follows:‑ "

22. Accounts.‑The accounts of the Council shall be audited annually before the Annual General Meeting by a person or persons appointed by the Governing Body and tile audit note shall be placed before tile meeting for consideration." A perusal of these clauses shows that the allegation in para. 15 that the applicants had to forward "the details of the pro position vie‑a‑vie the main agenda to be discussed at the meeting such as the statement of accounts and the audit report" is not correct, it had only to send a notice with the agenda for the meeting. As the interim injunction has been obtained by the respondent on the bass of his averments in the plaint, I am constrained to observe that the averments in para. 15 of the plaint are misguiding and appear to have been made with the intention of obtaining an ad interim injunction. The second submission of learned counsel for the respondent was based on the allegations contained in para. 16 of the plaint. The respondent has stated in the said para. that the applicant had not sent to its members the statement of accounts or the audit note "within 15 days of the date fixed for the annual general body meeting", therefore, according to the respondent, the annual general meeting was convened in violation of the mandatory provisions of section 12 of the Societies Registration Act, 1860. Section 12 of the said Act states as follows: "

12. Whenever it shall appear to the governing body of any society registered under this Act, which has been established for any particular purpose or purposes, that it is advisable to alter, extend or abridge such purpose to or for other purposes within the meaning of this act, or to amalgamate such society either wholly or partially with any other society, such governing body may submit the proposition to the members of the society in a written or printed report and may convene a special meeting for the consideration thereof according to the regulations of the society; but no such proposition shall be carried into effect unless such report shall have been delivered or sent by post to every member of the society ten days previous to the special meeting convened by the governing body for the consideration thereof, nor unless such proposition shall have been agreed to by the votes of three‑fifths of the members delivered in person or by proxy, and confirmed by the votes of three‑fifths of the members present at a second special meeting convened by the governing body at an interval of one month after the former meeting." A perusal of this section shows that the averments of para. 16 of the respondent's plaint are very misguiding. In the first place, the provisions of section 12 do not relate to an annual general meeting at all, but only to the types of meetings specified in para. 1 of the section 12 quoted above. Secondly, learned counsel's submissions was that the applicant's failure to send the statement of accounts within 15 days of the date fixed for the annual meeting eras both fraudulent and a breach of the mandatory provisions of section

12. Apart from the fact that the provisions of section 12 are not attracted, the period prescribed under section 12 is 10 days and not 15 days as stated in para. 16 of the respondent's plaint. Once again, therefore, the averments in the plaint are misguiding and in a manner intended to obtain ad interim orders in favour of the respondent.

10. The third submission of learned counsel for the respondent in support of his plea that tile respondent had a prima facie case was that the applicant had not decided the applications of 240 persons for membership of the applicant Society, and that this was done fraudulently in order to enable the sitting office‑bearers of the Society to get elected at the annual general meeting. Once again, if this allegation is correct, it would be evidence of a prima facie case in favour of the respondent. However, the argument of learned counsel assumes that the 240 applicants, who had not been made members, would have supported lit in his fight with the applicant if they had been elected as embers before the annual general meeting. There is not a shred evidence in support of this assumption. Therefore, on this ground alone, the plea of fraud or mis conduct fails. Further, the membership of the applicant is regulated by its Memorandum and Rules of Association, and according to Rule 9 (a) only those members who have been enrolled 6 months before the date fixed for the annual general body meeting can participate in the election of the governing body of the applicant. Para. 18 of the respondent's plaint in the second suit merely states that 240 applications had not been decided. It does not state when these applications had been filed. I pointed out to learned counsel for the respondent that he could establish his plea of fraud against the applicant only if he could show that the 240 applicants would have been entitled to vote but for the applicant's delay in accepting their member ship. As the annual general meeting was to be held on 29th December 1968 according to Rule 9 (a) these 240 persons could have voted at the annual general meeting only if they had been enrolled as members not later than 29th June 1968. Therefore it was essential for the respondent to have specified the date on which these 240 persons had applied for membership. Although the date has not been specified, so that there was no evidence on which the learned Judge could have accepted the respondent's contention, in the interest of justice. I asked learned counsel to supply me the date on which these applications had been filed. Learned counsel for the applicant stated that these applications had been received on 29th June 1968, and learned counsel for the respondent admitted that this statement was correct. The governing body of the applicant was under no obligation to meet immediately these applications were filed, and as the applications had been filed on 29th June 1968, even if they had been allowed, these new members would not have been entitled to vote, under the provisions of Rule 9(a), in the elections at the annual general meeting on 29th December 1968. Therefore, the allegation that the annual general meeting had been convened by the governing body of the applicant in a fraudulent manner is not correct and there is no merit in learned counsel's submission. These were the only arguments advanced to show that the respondents had a prima facie case, and as all these arguments are without merit, it follows that the respondent had failed to show a prima facie case, therefore the learned Judge usurped jurisdiction in granting the ad interim injunction sought by the respondent.

11. As learned counsel for the respondent failed to show that the governing body of the applicant had fraudulently prevented the enrolment of new members, he did not even seek to argue that the balance of convenience was on the respondent's side. As the annual general meeting had to be held before the 31st December 1968, it is clear that the balance of convenience was overwhelmingly in favour of the applicant. However, learned counsel for the applicant contended very strongly that, but for the ad interim injunction, irreparable injury would have been caused to the respondent, because the respondent's suit would have become infructuous if the applicant had been allowed to hold its annual meeting on the 29th December 1968. It is true that the suit would have become infructuous if the impugned ad interim order had not been granted, but having examined the facts of the case carefully, I have come to the conclusion that this contingency was wilfully created by the respondent himself, and I shall now examine his conduct, which is very relevant, as an injunction is a discretionary remedy.

12. The respondent's case for an ad interim injunction is based on the allegation that the governing body of the applicant wilfully and fraudulently delayed convening the special meeting which he and others had requisitioned. As I have already observed, the special meeting in pursuance of the requisition dated the 16th July 1968, had been called for 16th September 1968, but this meeting was postponed because the notice convening it was admittedly defective. Learned counsel for the applicant could submit no explanation of the applicant's failure to convene a meeting properly for the said date. However, after this mistake, which was most unfortunate, the applicant called the requisition meeting for 2nd November 1968. This meeting could not be held because of the ad interim order restraining the applicant from holding this meeting, which had been passed by the 7th Civil Judge on 1st November 1968, in Suit No. 2239 of 1968, the first suit filed by the respondent against the applicant. Thereafter, the respondent and others had sent another notice dated the 13th November 1968, to requisition a special meeting, but this was not done, therefore learned counsel for the respondent submitted that the applicant had illegally failed to convene a special meeting, and that the prayer for an interim injunction was justified. The applicant's explanation of its failure to call a special meeting after 2nd November 1968 is that it was restrained from so doing by the said order of the Court dated 1st November 1968, and the point for consideration is whether this plea is correct. The ad interim order of the learned 7th Civil Judge in the first suit states: "Notice to other side‑Costs. In the meantime status quo to be maintained. Hearing 5th November 1968." It is admitted that for one reason or another the hearing of this injunction application was delayed so that the said ad interim order remained in force till the respondent withdrew his suit on 28th December 1968. The question is whether this order restrained the applicant from holding another meeting. The 14th Edition of Warton's Law Lexicon defines status quo as "the existing state of things at any given date." Therefore the order of the learned Civil Judge meant that the state of affairs on the day on which he passed that order had to be maintained until further orders of the Court. On the 1st of November the learned Civil Judge had prohibited the applicant from holding its special meeting on the next day (2nd November 1968). But as the hearing of the injunction application was delayed, even after the special meeting had been cancelled, and as the ad interim order remained in force, the words "status quo to be maintained" contained in the order necessarily lead to the inference that the applicant was not to hold any special meeting as long as the Court had not disposed of the respondent's injunction application. I cannot therefore accept learned counsel's argument that this order did not prevent the applicant from complying with the respondent's requisition of 13th November 1968. But assuming for the sake of argument that learned counsel's submission is correct, the fact still remains that the applicant did not act unreasonably in not holding a special meeting during the pendency of the said ad interim order, and indeed if it had called a special meeting, it would have failed to show that deference to the orders of the Court which all citizens owe to the Courts of the country. In these circumstances, even if the respondent believed that the applicant had wilfully delayed calling a special meeting, it was his duty to have pointed out in the plaint in the second suit that he had himself obtained an injunction in the first suit, the effect of which was to restrain the applicant from holding its special meeting, or to set out the order of 1st November 1968, and the circumstances in which it was obtained.

13. Learned counsel for the respondent submitted that the respondent had set out the correct position in para. 9 of his plaint in the second suit. Para. 9 states as follows:‑ "

9. That, by a notice dated 15‑10‑1968 the defendants again called the requisitioned meeting for 2‑11‑68, but again deleted subtracted portion from the main item on the agenda, resulting of an ad interim injunction by the Court in Civil Suit No. 2239 of 1968." I have carefully examined para.

9. There are times when silence is fraudulent and, in the circumstances discussed, I am of opinion that the contents of para. 9 are deliberately misguiding and this has been done in order to enable the plaintiff‑respondent to obtain ad interim orders. Learned counsel submitted that the plaint must have been drafted in a hurry, therefore the respon dent's failure to state the relevant facts was not deliberate. I am not impressed by this explanation. The first suit was with drawn at about 11 a.m , and the second suit was filed with a mass of documents at 12 a.m. I am not able to believe that the plaint in the second suit, which is misguiding in a clever way, could have been prepared and filed within an hour. Therefore it is clear that when the respondent and his Advocate withdrew the first suit they knew that they were going to file the second suit. In the circumstances discussed, they should either have drawn the attention of the Court when they withdraw the first suit, to their intention of filing a fresh suit immediately, or made a full and frank disclosure of the facts in the plaint in the second suit. They deliberately did not do so, and the effect of their conduct was not only to misguide the applicant's Advocate, who went away, but also to misguide the Court. As an injunction is an equitable remedy, which can only be granted to G a plaintiff who comes to Court with clean hands, on this ground alone the ad interim orders are fit to be set aside.

14. Finally, it is relevant to bear in mind that the impugned order is an ad interim order. A Court of law leans against passing orders without hearing parties who may be prejudiced by such orders, and when it passed ex parte orders against the absent defendants it is under a duty to consider the interests both of the plaintiff and of the defendant. I have quoted the trial Court's order in para. 2 and it is clear from a bare perusal of this order that it was passed without considering at all the interest of the applicant‑defendant. Further as an injunction is an equitable remedy, it is settled law that a plaintiff who is guilty of wilful delay in approaching the Court for relief is not normally entitled to ad interim orders. In the instant case, the respondent had received the notice convening the annual general meeting more than a month before he filed the second suit, and in his delay in filing the second suit was for reasons which were clearly mala fide. Assuming that the learned Judge was not able to appreciate from the plaint in the second suit that the delay in filing the second suit till the day before the annual general meeting was mala fide, the plaint did not contain any explanation whatever of the respondent's wilful delay in seeking ad interim orders. On this ground alone the ad interim orders should have been refused, and the trial Court usurped juris diction by rewarding the respondent's wilful delay with ad interim orders.

15. In the result, it is clear that in passing the impugned order the learned Judge has disregarded the settled principles of law governing the grant of interim and ad interim injunctions. The order is not an exercise of judicial discretion and is arbitrary and capricious, therefore it is an usurpation of jurisdiction and has to be set aside. The revision is allowed with costs. K. B. A. Petition accepted.