IN THE HIGH COURT OF SINDH
AT KARACHI
SUIT
NO.779 OF 2014
1.
For hearing of CMA No.6066 of 2014.
2.
For hearing of CMA No.5840 of 2014.
3.
For hearing of CMA No.8356 of 2014.
4.
For hearing of CMA No.8778 of 2014.
Plaintiff : Syed
Muhammad Ishaque
through:
Mr. Usman Tufail Shaikh, advocate.
Defendants. : Through: Mr. Mazhar
Hussain for Defendants No. 2,3& 4.
Mr.
Akhtar Hussain, for Defendants No.5.
Date of hearing : 13.08.2014
Date of order :
13.08.2014
SALAHUDDIN PANHWAR, J. By dint of this order I intend to decide the
captioned applications, being CMA No.6066 and 5846 of 2014 relating to
ad-interim injunction so also CMA No.8356 of 2014 under order XXXIX Rule 4 CPC,
whereas application CMA 8778 of 2014 relates to amendment of plaint under Order
6 Rule 17 CPC.
2. Succinctly,
relevant facts are that the Plaintiff contested elections for the post of
secretary/treasurer of Karachi City Cricket Association (KCCA), during election
process whereof the plaintiff filed instant suit praying that:
i)
To declare that election process of
KCCA can only be conducted in terms of memorandum and articles of KCCA.
ii)
The PCB has no say in
running/managing the affairs of KCCA in the light of MOA.
iii)
That only the ex-office bearers of
the KCCA are empowered to hold and conduct the elections of KCCA.
iv)
To presently restrain the Defendant
No.2 or any one from interfering in the affairs of the KCCA.
v)
To direct the KCCA to conduct the
election strictly in terms of KCCA MOA.
vi)
To issue mandatory injunction against
the PCB not to impose its whims and wishes on the KCCA.
vii)
Any other better relief as deemed fit
and appropriate in the light of the above stated facts.
viii) Cost
of the suit.
3. It is
surfaced that plaintiff filed CMA No.5840, along-with suit on 02. 05. 2014; and
prayed for staying of election process, and that was the Election Day but could
not succeed to get injunction thereby filed subsequent application CMA
No.6066/2014 wherein prayed as under:
“to restrain the Defendants newly
elected office bears from running the affairs of the Defendant No.5 as the
election through which they have been elected is not in accordance with law.”
4. Learned
counsel for the Plaintiff, inter alia contends that KCCA has its own
constitution and is registered under the Companies Ordinance; Constitution of
PCB regarding election is not binding upon KCCA. He referred Sections 8 and 12
of Companies Ordinance; and asserted that PCB has encroached the domain of
KCCA; he also referred Section 26 and subsection 6, sections 31 and 36 of
Companies Ordinance while emphasizing that KCCA is separate entity, model
constitution of PCB is not in field thus election could only be held under the
constitution of KCCA hence exercise, undertaken by Election Commissioner
in pursuance of notification issued by
PCB, is against the spirit of law. In support of his contention he relied upon
2005 CLD 74, 1999 CLC 1989, PLD 2003 Karachi 721, 2003 CLD 1343 and 1996 CLC
370.
5. Conversely,
learned counsel for the Defendant No.5 has argued that PCB is statutory body
under Sports (Development and Control) Ordinance 1962 and KCCA is also one of
the region of PCB; KCCA is affiliated
with PCB; While referring articles of
KCCA contended that constitution of KCCA provides that instant Association will
abide the constitution of PCB. Further, asserted that in-pursuance of
notification issued by PCB, election schedule announced in November 2013;
plaintiff filed nomination form, contested election but did not challenge such
notification, thus at this stage he cannot assail legality of such
notification; injunction application filed by plaintiff shows that he is
seeking injunction against the present elected body but he has not joined
present elected body as a party therefore application previously filed for
restraining the election process and second application regarding restraining
the present body to run affairs of the KCCA are not maintainable under the law.
He also contended that in General Council of KCCA, it was decided that this body
will follow PCB. In support of this contention he refereed para 5 of the
resolution of KCCA.
While concluding his arguments he
relied upon case of M/s. Al Meezan Hajj Group Pvt limited vs. M/s. Pakistan
Hajj Group Organizer Committee, (PHGOC) reported in CLC 2014 page 1229.
6. On the other
hand, learned counsel for PCB whilst adopting arguments of Mr. Akhtar Hussain
counsel for KCCA referred the case of Dr. Syed Muhammad Ali Shah reported in
2010 MLD page 1241 and contended that articles of KCCA are not confirmed by PCB
therefore process undertaken by PCB is in accordance with law.
7. Before
diving into the merits of the case it would be significant to mention here that
scope of injunction application is based on three ingredients and for one who
is seeking such relief has to satisfy this Court with regard to prima facie
case, balance of convenience in his favour and in case injunction is not
granted he will suffer irreparable loss. These all three should not only be shown to be existing but should be shown
as ONE as lacking of any one of the required ingredients will not entitle one
for grant of injunction.
8. Regarding
contention of learned counsel that KCCA is registered under the Companies
Ordinance, thus it is separate
entity and PCB has no domain to interfere with the business / affairs of KCCA,
albeit KCCA is affiliated with PCB but KCCA has its own articles and model
constitution of PCB which is not in field. On this proposition of law learned
counsel has referred many citations. In- contra, learned counsel for
defendant No.5 has contended that these citations are not helpful for the
plaintiff as plaintiff has approached this Court being a contesting candidate
therefore he cannot represent the KCCAand raise issue with regard to the domain
of KCCA and PCB. It is purely
prerogative of KCCA and there is no dispute regarding affairs of KCCA and PCB.
I am of the view that any opinion or declaration with regard to the status of
KCCA a separate body and that of binding effects of PCB constitution upon KCCA
couple with question of locus standi of plaintiff, would cross
the limitations of this court, so provided for deciding an
application for injunction. This Court, while exercising such jurisdiction,
has to confine itself to the extent of prayer of instant application and
relief, sought therein, within permissible parameters. Further, record reflects
that on the day of election this suit was filed thereafter by order dated
7.5.2014 it was observed that “subject to the final orders of this Court
newly elected body may continue with their mandate, whereas through
order dated 11.6.2014,in para 2, this was directed that “newly
elected office bearers of defendant No.5 are restrained from making any
material changes in the memorandum of association of the defendant NO.5 and
from running the affairs of defendant No.5”. Although, it is not disputed that
election was held on same day, when suit was filed; result was announced, and
notification was issued, thereafter this Court observed that they may continue
their mandate but subsequently they were restrained from running affairs of
defendant No.5, in-spite of that plaintiff has not filed any application to
joining them as defendants. Thus, it
is also not a disputed fact that plaintiff himself was contesting election
under same umbrella and filed the suit on the day of election (polling)
therefore, prima facie he is not legally justified to stick with such plea. Be
as it may, I am of the view that though plaintiff has filed instant application,
having complete knowledge of the elected body, yet injunction is being sought
against those who are not yet party to the suit. The position, being so, that
admittedly plaintiff is seeking relief against the newly elected body (not a party). Worth to add here that in
view of maxim AUDI ALTERM PARTEM, followed by superior Courts, it is
settled principle of law that one cannot be condemned unheard, hence allowing
application shall amount in disregard of this well settled principle of law.
9. Regarding
the plea of the learned counsel for the plaintiff that President of Board has
filed counter affidavit and he is represented by the counsel, therefore he is
party in this suit. In this regard it is surfaced that such counter affidavit
is filed in capacity of President of KCCA, when controversy is regarding whole
elected body with regard to election process, particularly when prayer is only
against elected body not against the affairs of KCCA, thus under the law whole
newly elected body shall be required to be sued and it would not be justified
to deprive them from their right of hearing. At this juncture it would be also
germane to state that according to wise saying “A communi observantia
non est recedendum” (a thing is provided in a particular
manner, it has to be followed in that manner, if not so, would be un-warranted
under the law), thus this court has to follow the procedure. However plaintiff
is at liberty to move fresh application, after joining the newly elected body
as defendant.
10. As discussed above, the CMA listed at Sr. No.1 is
dismissed on merits, CMA at Sr. No.2 is dismissed having become infructuous and
CMA at Sr. No.3 in fate on CMA listed at serial No.1 has also become infructuous
and the same is also dismissed.
11. With regard to CMA No. 8778 of 2014 under order 16
rule 17 CPC it would be conducive to reproduce proposed amendments as under :-
“10-A. That the Plaintiff in these
compelling circumstances was constrained to initiate this suit. Despite of the
notice on the misc. application, for the stay of elections, the Defendants with
malafide intention and ulterior motive completed the entire process in total
violation of KCCA MOA. It will not be out of place to mention that on the day
of election i.e. May 2nd, 2014, a complete strike was observed in
the city of Karachi and the entire city of Karachi was standstill.
Prayer Clause:
“i-a To
declare that as the elections of KCCA were not conducted in terms of KCCA MOA
therefore the entire election so conducted, is void and illegal.”
12. Though
learned counsel for defendants have half heartedly objected this application,
and according to proposed amendments it is manifest that same are not changing
the nature of suit thus it would be in the interest of justice to allow such
application consequently same is allowed, plaintiff may file amended plaint in
accordance with law.
J
U D G E