2005 PLP 303 (CLD)

Plaintiffs who are the permanent members of Karachi Gymkhana Club (hereinafter referred to as "KGC") have filed this suit for declaration and permanent injunction seeking annulment of Election and further direction to hold fresh election along with suit plaintiffs have filed an application under Order 39, rules 1 and 2, C.P.C. seeking restraining order against implementation of purported private arrangement of sharing presidential office. Facts as may be necessary for deciding the application. Plaintiffs claim that for the purpose of Annual Elections of its Managing Committee, Annual General Meeting was convened on 29‑12‑2002. Elections were held on 29‑12‑2002. Two candidates from amongst the permanent members contested for the position of presidential position namely Mr. Muhammad Taqi Iqbal and Mr. Zahid Bashir. Each of such person secured 901 votes. It appears 'that the one year tenure of the presidential office was divided between the two contestants for six months each. It is claimed by the plaintiffs that such bifurcation of tenure between two presidential candidates is violative of Rule 12(c)(vii) of KGC Rules. Annulment of such arrangement has been called in question. In foregoing backdrops, the plaintiffs have sought the following relief s:‑‑ (i) Declare that all private arrangements as stated in the body of the plaint arrived at the elections held on 29‑12‑2.002 for the office of 2003 president which violate any provision of the Rule of defendant No. 1 are unlawful and of no legal effect; (ii) Declare that any canvassing by or for a contesting candidate is violative of Rule 12(c) and disentitles such candidates from contesting elections; (iii) Direct investigations into the conduct of the presidential elections held on 29‑12‑2002 in order to ascertain all such acts which violates any provision of Rule 12 of defendant No. 1; (iv) Declare that under the Rules of defendant No.1 the tenure of the office of the president is neither variable nor presidential office is transferable/ assignable and any decision permitting such an arrangement is unlawful and of no legal effect; (v) Permanently restrain all functionaries and/or members of the managing committee of defendant No.1 from giving effect to any private arrangements arrived at the election of the 2003 president which are violative of any Rule of defendant No. 1 or established past practice; (vi) Grant any other relief to which the plaintiffs may be entitled to in the circumstances of the case and; (vii) Award costs of the suit Original no presidential candidates were joined as party to the suit. It was pursuant to the directions of the Court dated 28‑4‑2003 said persons were joined as defendants Nos. 3 and 4 respectively. Suit filed on 19‑4‑2003 was hotly contested by defendant No.4 Muhammad Taqi Iqbal, as he was the successor for the remaining half term of the presidential tenure. Result of presidential election is impugned on count firstly that, as a result of tie between the two presidential candidates a private arrangement was arrived at between them, to share the presidential office six months each. According to Mr. Faisal such private arrangement could not be imposed upon the plaintiffs and/or General Body. It was next contended that, since private arrangement is not provided for in the KGC Rule parties cannot contract out of such rules. It was therefore, urged that a thing required to be done in a particular faction is to be done in the set out manner and not otherwise. In support of his contention, he has relied upon the case‑laws reported as Sultan Ali v. Mst. Khatija Bai 1995 CLC Karachi 1441 and Dr. Abu Baker Mumal v. Karachi Gymkhana Club and another 1990 MLD 1708. Mr. Faisal Arab with all vehemence argued that plaintiff stand out for supremacy of law. KG. Rules cannot be allowed to be deviated. Sanctity of Rules should be maintained. . In contra, Mr. Muhammad Zubair Qureshi, learned counsel for the defendants Nos.1 Karachi Gymkhana and defendant No.2 its Secretary contended that, as per General Body Meeting, Items Nos.9 and 10 on the Agenda, were to conduct the election and declare the result of the election. According to him, the General Body was in session on 29‑12‑2002 when as a result of tie between two candidates the deadlock was resolved in accordance with Wishes of General Body. He further urged that, the elections were held in December, 2002, the suit filed in April, 2003 is prompted by malice, beside it suffers from laches, is liable to be dismissed. It was further urged that in terms of rule 17(g), the plaintiffs could have called the meeting of a Governing Body to raise such controversy. Such remedy being provided in the Rules, same could not be urged in Court of law. Mr. Muhammad Saleem Mangrio, learned counsel for the defendant No.3 though contended that the private arrangement as urged by the plaintiff was approved by the General Body was reluctantly acceded to by the defendant No.3. He further submits on instruction that defendant No.3 leaves the, matter for the Court to decide. Ms. Sana Minhas, learned counsel appearing for defendant No.4 at the very outset raised preliminary objection as to maintainability of suit. It was contended that, suit inter alia is barred under section 42 of Specific Relief Act, secondly, the suit as against unregistered body is not maintainable, and thirdly it is bad for non‑joinder. She contended that the plaintiffs were very much privy to the arrangements and decision of the General Body cannot be allowed to take a contrary stand now. She also maintained that the suit is prompted by malice, and bad faith, besides it suffers from laches. She urged that, the plaintiffs are the staunch supporters of the current incumbent the defendant No.3 and they are nothing but surrogate for the defendant No.3, plaintiffs have no legal character to challenge election as a proxy. It was urged that plaintiff No.1 was nominated as `Scrutineer' from the side of defendant No.3. Plaintiffs No.3 was the seconder and plaintiffs Nos. 3 and 4 actively unsuccessfully led pre- election disqualification campaign against the defendant No.4. It was further urged that from the date of announcement of the result, the plaintiffs have not agitated the issue and have approached the Court when the half term of the Office of the defendant No.3 it at the verge of completion with obvious oblique object to deprive the defendant No.4 of his tenure as a `President'. She further contended that, in terms of Rules of the Club, management vests in the Managing Committee. The Managing Committee alone is responsible to declare the result before the conclusion of the Annual and Election General Meeting. Such result was declared before the conclusion of such meeting, in term of Item No. 10 on the Agenda. It is further, pointed out that the defendant No.3 in reverence to the General Body's decision voluntarily tendered his resignation (available at page 59, Part‑II). Such fact has not been controverted either by plaintiffs nor the defendant No.3. It is urged that in 120 years history of KG tie had occurred for the first time, therefore, there was no tradition to follow. It was the Election General Body, that had decided the issue in a peaceful manner. It was urged that the plaintiffs cannot interfere in the internal management of the Club being protected under the doctrine of Indoor Management. In support of her contention, she has placed reliance on case‑laws reported as (1) Abbas Khaleeli and others v. Saifuddin Valika and others PLD 1969 Karachi 692 (702); (2) Madina Masjid Committee and 3 others v. Anjuman Ghulaman‑e‑Mustafa through President and others 1993 CLC Karachi 2227 (2230); (3) Muhammad Yousuf Qureshi v. Government of Sindh and others 1999 YLR Karachi 1224 and (4) Muhammad Yasin Fecto and another v. Muhammad Raza Fecto and 3 others 1998 CLC (Karachi)

237. Learned counsel for defendant No.4 also urged that the plaintiff's case is hit by laches and the fact that, the plaintiffs had acquiescence cannot claim any injunctive relief. It was further urged that neither the plaintiffs are the candidates for the presidential position nor any of their rights were effected. Therefore, the suit itself is not maintainable, the injunction under the circumstances, cannot be granted. Mr. Faisal Arab, learned counsel for the plaintiff exercising right of rebuttal controverted arguments advanced by Ms. Sana Minhas and urged that, the plaintiffs only seek enforcement of the Rules of the Club, which is in general welfare of member of the Club at large. Secondly doctrine of Indoor Management can be invoked against outsider and not against the Members of the Club. Having heard the arguments of learned counsel for the parties, perused the material available on record and examined the citations placed at bar. In order to appreciate the arguments of both the learned counsel, it will be advantageous and beneficial to reproduce relevant K.G Club Rules ,Rule 2(b)(7) reads as follows:‑‑ "Should the result of the ballot be a tie in consequence of two or more candidates for the same office having obtained equal number of votes, the doubt shall be resolved by draw of lot before the scrutineers." The powers of the General Body Meetings of Managing Committee are laid down in Rule 17 relevant Rule being 17(a) and explanation note(e) reads as follows:‑‑ 17(a) Two General Body Meetings shall be held each calendar year, namely, Annual Election General Body Meeting in the month of December or as soon thereafter as possible, but .not later than 15th January; and Half yearly General Body meeting in the month of June or soon thereafter as possible, however, not later than 15th July. At the Annual Election General Body Meeting, election of the President and eleven members of the Managing Committee shall be held and report of the Managing Committee for the period from January to December of the year shall be presented and other business will be conducted as laid down in the Rules. (e) The Annual Election General Meeting or the Half yearly and SRecial General Meetings shall have owner:‑ (i) To authorize the Managing Committee to issue debentures, charging the funds and property of Gymkhana. (ii) To alter entrance fees and monthly subscriptions. (iii) To repeal, vary or add to any rule or create any rule of the Gymkhana. (g) (emphasis added) From the record, it appears that the plaintiffs on the result‑sheet prepared by the Scrutineer on 29‑12‑2002 endorsed his note of dissent as "its pot being legal". From the Annual Election General Body Meeting, it appears that the presence of plaintiff No. 1. is noted at serial No. 113, plaintiff No.2 at serial No.131, plaintiff No.3 at serial No.117 and plaintiff No.4 at serial No.125 in the Members Attendance. In the case of D. M. Malik v. Jockey Club of Pakistan and others PLD 1960 (W.P) Karachi 325, Court refused to interfere in the affairs of Club where the rules were not adhered to with malice and principle of natural justice were violated. Plaintiffs' claim is neither founded on malice nor, violation of principles of natural justice. From the examination of the rules particularly rule 17(e) it appears that, such Rules could be repealed, varied, added or even new Rules could be framed such powers are conferred on the Annual General Election Body Meeting or the half yearly and Special General Meeting as the case may be. In the case of Raja Bahadur v. Mujtaba Hussain A Division Bench in. AIR 1941 Oudh 422, amendment in Rules of registered association by 47 members as against the requirement of 60 members quorum was struck down. In instant case rules 7(f) prescribes quorum of 100 permanent members. Such General Body was convened, admittedly approved the proposal for dividing the terms of president-ship between the two tie candidates commanding equal popularity in the electorate. Decision of the Genera! Body whereby term of presidential office between the two B candidates securing equal number of vote, equally for 6 months each, amounts to relaxing if not varying the rule 12(7)(a)(vii) of Club. As right to repeal, vary or add to any rule or, create any rule of the Gymkhana by virtue of rule 17(e)(iii) (reproduced above) is the prerogative of the Annual Election General Body Meeting as well, therefore, no exception to such decision could be taken. Counsel for the defendant No.4 who has almost served out his term of six months on instructions has already made a statement at bar that defendant No.4 leaves the matter to be decided by the Court. Since the relief sought was equitable, plaintiff failed to make out any case for equitable relief no irreparable loss nor balance of inconvenience leaves in favour of the plaintiff. Legal character of the defendant No.4, if any was effected, who had not made any grievance, therefore, no prima facie case exist in favour of the plaintiff for the foregoing reasons C.M.A. No.2380 of 2003 was dismissed by short order dated 29‑5‑2003 above are the reasons for the same, since the application is dismissed. I do not consider to dilate upon merits of other arguments. In view of the above, the applications listed at serial Nos.2 and 3 do not merit consideration are also dismissed. S.A. K. / R‑25 / K Application dismissed