' MUNIB AKHTAR, J.---This application for interim injunctive relief arises in the following circumstances. The plaintiff is a body corporate, which is registered under the Companies Ordinance, 1984. It owns a yacht and applied for membership of the Defendant No,
2. The latter is a club owned and managed by the Defendant No, 3 and is commonly known as the Marina Club (hereinafter referred to as "the Club"). The Defendant No, 1 was, at the material time, the secretary of the Club. Certain rules ("the Rules") and bylaws ("the Bylaws") have been framed for the Club in order, inter alia, to regulate the manner in which the Club facilities may be used. I will have occasion to examine the relevant provisions of the Rules and the Bylaws in some detail herein below.
2. According to learned counsel for the plaintiff, at the time of its application, the plaintiff was asked by the Club to deposit advance entrance fee and security deposit totaling Rs,1,050,000, which was duly done on 21-1-2009. Thereafter, pending consideration of the plaintiff's application, the specified nominees of the plaintiff were allowed to use all the Club facilities, including the clubhouse, and the plaintiff was also permitted to moor its yacht at the Club and use the boat from the Club facilities.
3. Learned counsel for the plaintiff submitted that it was the practice of the plaintiff's nominees to use the yacht from the Club facilities at all hours, including late at night. He submitted that on 30- 10-2009 (which was a Friday), one of the plaintiff's nominees, Mr. Shoaib Ahmed Shaikh (who was also the chief executive of the plaintiff), came to the Club along with a security detail (as was also his practice) at around 1 a.m. In the night in order to use the yacht. (It may be noted that the Bylaws make specific provision for the manner in which members' security guards are to behave at the Club. Thus, it is provided that the security guards must remain in the parking space and are not allowed inside the Club proper). Learned counsel submitted that the security guards accompanying Mr. Shaikh had always complied with the applicable Bylaws and any directions of the Club management. On the night in question, when Mr. Shaikh came to the Club, much to his surprise he was refused entry. He protested and was eventually allowed to go on to the yacht.
Learned counsel emphasized that the security guards (who were two in number) did not go inside the Club or attempt to do so, but remained in the parking area as required by the Bylaws. The Club staff on duty informed the Defendant No, 1 who, according to learned counsel, unnecessarily and without any cause, summoned the police to the Club. The police arrested the two security guards and took they to the police station where they were detained overnight but were then released in the morning. Learned counsel submitted that Mr. Shaikh got to know the full details about what had happened only when he returned in the morning, i.e,, on 31-10-2009. The two security guards tried to lodge an F.I.R. With regard to their allegedly illegal detention, but the police refused to register the same. An application was accordingly made under section 22-A, Cr.P.C. And notice was issued on the same day to the Defendant No, 1 and was received by him in the afternoon. Learned counsel submitted that as a direct result of the action taken by the security guards and the plaintiff with regard to the incident, the Defendant No, 1 issued the impugned notice dated 31-10-2009 to the plaintiff informing it that its "temporary membership of Marina Club has been suspended under Rule No, 13 of Misconduct". It is this notice which has been impugned by means of the present suit and which the plaintiff seeks to have suspended by way of interim injunctive relief.
4. Learned counsel submitted that the action taken against the plaintiff was in gross violation of its rights, as the plaintiff had been granted the rights of a temporary member and had been enjoying the same for a period of several months while its application remained under consideration. He submitted that there had been a violation of the principles of natural justice and the plaintiff was being condemned unheard. Learned counsel submitted that the plaintiff was being victimized and that the action taken against it was males fide because Mr. Shaikh had only one day earlier raised certain objections with regard to the Club management, which reflected adversely on the Defendant No,
1. According to him, it was as a direct result of this that the very next day, Mr. Shaikh was denied access to the yacht even though he had used the boat at night several times in the past. Thus, the entire incident was concocted at the behest of the Defendant No,
1. He submitted that the plaintiff had a strong prima facie case, that the balance of convenience lay in its favour and that irreparable loss and injury would be caused to it if interim relief were not granted.
5. Learned counsel appearing on behalf of the defendants strongly opposed the application. He submitted firstly that the plaintiff was not a member of the Club but was only an applicant seeking membership. According to him, the plaintiff did not therefore have any rights as were being asserted by it. He submitted that on the night of the incident, i.e,, 30-10-2009, Mr. Shaikh came to the Club after it had closed as per the Bylaws. Since the Club was closed, the security staff at the gate refused to allow Mr. Shaikh entry into the Club. According to learned counsel, Mr. Shaikh went away but then returned sometime later at around 1 a.m. And forcibly entered the Club along with his security guards at gunpoint. The guards did not remain in the parking area, but went up to the Club itself. Mr. Shaikh then went on to the yacht. The Club staff available on the premises informed the Defendant No, 1, and because of the illegal manner in which entry had been effected, the police were summoned and took away the security guards. Learned counsel submitted that Mr. Shaikh's behaviour was clearly tantamount to misconduct and accordingly a notice was issued to the plaintiff in this regard on 31-10-2009. However, learned counsel stressed that the issuance of the notice did not mean that the plaintiff was a member of the Club or entitled to any rights associated with membership. He submitted that since the plaintiff was merely an applicant and not a member, it was not entitled to receive any notice and therefore there had been no violation of the principles of natural justice. Learned counsel further submitted that in fact, at a meeting of the executive committee held on 1-2-2010, the plaintiff's application for membership had been rejected. Thus, the whole suit had become infructuous and the application for interim relief was liable to be dismissed on this ground alone.
6. Learned counsel for the defendants formulated his submissions in the shape of the following points:--
(a) The plaintiff had sought monetary compensation in the suit and therefore was not entitled to interim injunctive relief.
(b) Since the application for membership had been declined, the whole suit had become infructuous.
(c) The plaintiff had been allowed to use the Club facilities temporarily pending consideration of its application and this did not confer or vest any rights in the plaintiff, including any right of hearing before a determination of the plaintiff's application for membership.
(d) Without prejudice to the foregoing, the plaintiff had approached the Court only against an order suspending the use of Club facilities. The impugned order dated 31-10-2009 in fact called upon the plaintiff to submit an explanation, and therefore in any case there was compliance with the requirements of natural justice. Furthermore, this was admittedly not a final order, and the suspension was not a "punishment" as could be, challenged before the Court.
(e) The plaintiff had failed to establish any case for interim relief.
7. In reply, learned counsel for the plaintiff submitted that the plaintiff was entitled to a notice of the meeting at which its application for membership was to be considered. Since admittedly no such notice had been given, there was clearly a violation of the principles of natural justice and the decision purporting to reject the plaintiff's application was null and void.
8. I first take up learned counsel for the defendants' submission that because monetary compensation has been sought, no interim injunctive relief could be granted. He placed reliance on Pakistan. International Airlines Corporation v. Hazir (Pvt.) Ltd. And another PLD 1993 Kar 190, Qasimabad Enterprises v. Province of Sindh and others 1998 CLC 441, Universal Business Equipment (Pvt.) Ltd. v. Kokusai Commerce, Inc. And others 1995 M LD 384 and Haji .Abdul Karim v. Builders Incorporated and others 1993 M LD 269. The principle is of course well-established, but in my view, learned counsel for the plaintiff is correct in submitting that it has no application in the present case. The reason is that the monetary claim made in the suit is in respect of the injury and damage allegedly caused to the plaintiff on account of the allegedly unlawful arrest and detention of the security guards, whereas the injunctive relief being sought relates to the order suspending the use of Club facilities by the plaintiff. The two reliefs being sought are distinct although both arise out of the same incident. The claim for monetary compensation does not therefore bar the claim for injunctive relief.
9. The next point that requires consideration lies at the heart of the case put forward by learned counsel for the defendants, namely that the plaintiff was merely an applicant and not a member of the Club and therefore did not have any vested rights, including the right of any notice or hearing or the continued use of the Club facilities. As an applicant, the plaintiff had only been granted temporary use of the facilities and even this had come decisively and finally to an end when the plaintiff's application for membership was rejected by the executive committee at its meeting held on 1-2-2010. Learned counsel for the plaintiff on the on, the application (hereinafter referred to as the "interim period"), deposited a substantial sum of money by way of advance fee and/or security deposit and who is allowed to use all the club facilities during the interim period, has at the very least a legitimate expectation that his application shall be considered in accordance with the applicable rules and procedures of the club, and that the concession accorded to him to use the club facilities during the interim period will not be withdrawn or suspended in disregard of the club's rules and bylaws. The reason is that such an applicant is being treated by the club for all intent and purposes as a temporary member (in case of clubs which have a membership category of this nature) or temporarily as a member (in case of those clubs which do not have such a category of membership). All of the foregoing features are present in the present case. At the material time, the plaintiff's application was under consideration by the Club. Pending a final determination (i.e,, during the interim period), the plaintiff had been asked to deposit the substantial sum of Rs,1,050,000, and was also-allowed to use all the. Club facilities. It may be noted that the Club has different categories of members, and one such category is that of "temporary member". Therefore, the plaintiff was being treated for all intent and purposes as a temporary member for the interim period, and hence the withdrawal or suspension of such facilities, and the consideration and determination of its application, had to comply with the procedures laid down in the Rules and Bylaws of the Club.
11. There is, in addition to the above, another aspect of the matter which must be, kept in mind, and that is the impugned notice (dated 31-10-2009) itself. In that notice, the Club itself has purported to suspend the plaintiff's "temporary membership" and in this regard placed reliance on Rule 13 of the Rules. In other words, the Club itself recognized that although the plaintiff was not its member, it was nonetheless entitled to be treated in the same manner as a temporary member. In my view, it therefore follows that the principles laid down in D.M. Malik's case and Khawaja Muhammad Saeed's case (supra) are applicable to the facts and circumstance of the present case. Insofar as the decision of the Supreme Court in Tanweer ur Rahman's case (supra). Is concerned, the factual context and circumstances of that case were quite different from those at hand, since that case related to service in a statutory corporation whereas the present case relates to the question of membership or use of facilities of a club. Furthermore, even in that case, the Supreme Court noted in the para reproduced above that if there is any basis or entitlement in favour of the claimant then he would be entitled to the protection of the principles of natural justice. As noted above, in my view, an applicant for membership of a club in the same position as the plaintiff does have a legitimate expectation and basis for being entitled to the application of the principles of natural justice. The question therefore is whether the plaintiff has, as is being claimed by it, denied the benefit of the rule of audi alteram partem.
12. Learned counsel for the defendants has placed strong reliance on the fact that the plaintiff's application for membership was rejected by the executive committee at its meeting held on 1-2- 2010. This rejection was an event subsequent to the institution of the suit (the plaint having been presented on 2-11-2009). The court can, of course, in appropriate circumstances, taken into consideration events subsequent to the institution of the suit while considering the relief, if any, to which the plaintiff may be entitled. However, if the rejection of the plaintiff's application is to be taken into consideration, then it must also be considered whether, prima facie, the Club, in coming to its decision, followed and applied the relevant Rules and Bylaws, and this requires an examination of the relevant provisions in some detail.
13. Rule 3 of the Rules establishes the classes of membership of the Club, and clause 10 of this Rule provides for corporate membership. It appears that it is in this category that the plaintiff applied for membership. Rule 4 relates to the selection of members by the executive committee, and for present purposes it is relevant to examine the following clauses of this Rule:-- "(c) Proposal forms as and when received shall be scrutinized in the Club office, and after sifting shall be put up to the Committee in its meeting held for this purpose. Those Applicants who fail to appear before the Committee after three invitations shall be considered ineligible for any future consideration for selection. This condition may be waived by the Committee on a case to case basis.
(e) The proposer and seconder will be required to introduce the applicant to the members of the Committee in a manner to be prescribed by the Committee. However, the Committee may, at its discretion, exempt the proposer and/or seconder from introduction to the Committee or any other condition.
(0 The result of the Committee meeting will be communicated to the applicants, including the sponsors,
(g) The amount of entrance, fee and security, deposited by an applicant who fails to get selected, will be refunded."
' As is clear from the foregoing, there is a detailed procedure laid down for consideration of an application for membership including, in particular, a requirement that the applicant appear before the executive committee along with the proposer and seconder. It may be noted that this requirement is not unusual, and indeed is the norm, in social clubs like the Club where the applicant is required to meet with the executive committee along with his sponsors (i.e,, the proposer and seconder) so that the committee can assess for itself whether the applicant ought to be granted membership or not. The executive committee of the Club is constituted by Rule 7, which provides that it is to have 8 members, one of whom is the secretary of the Club. It may be noted that the executive committee is not elected by the members of the Club, but all persons who sit on it are nominees or members ex-officio. Rule 8(b) provides that four members of the executive committee shall form a quorum for its meetings.
14. In my view, prima facie at least two illegalities were committed' in the consideration and rejection of the plaintiff's membership application. Firstly, it may be noted that by means of a letter dated 12-5-2009, the plaintiff's case for membership was deferred by the executive committee. It appears the plaintiff's directors were invited to meet the executive committee at the meeting in question. However, it appears that no such invitation was extended either to the plaintiff or its proposer or seconder for the meeting of 1-2-2010 at which the decision was taken to reject the plaintiff's application. This appears to be contrary to the provisions of Rule 3 referred to above.
Secondly, the impugned action against the plaintiff was taken by the Defendant No,1, i.e, the secretary of the Club, who, as noted above, is an ex-officio member of the executive committee. By the date of the meeting (1-2-2010), the suit had already been filed and it was clear that the role of the Defendant No,1 with regard to the incident that took place on 30-10-2009 was highly contentious, and it was this very defendant who had issued the order of suspension on 31-10-2009.
Allegations personal to the said defendant have been made in the plaint. In my view, it was incumbent on this defendant to recuse himself from the executive committee when it considered the matter of the plaintiff's application in older to remove any possibility or appearance of bias.
However, the record of the meeting, as produced by learned counsel for the defendants, shows that the Defendant No, 1 participated in the meeting and the decision to reject the plaintiff's application. Prima facie therefore, the decision to reject the plaintiff's application was not in conformity with law.
15. The decision of the executive committee to reject the plaintiff's application is not, as such, directly before me since it was taken subsequent to the institution of the suit and the plaint has not been amended to challenge or impugn this decision. Learned counsel for the defendants has placed reliance on the same to submit that interim relief ought to be refused since the underlying application for membership is no longer pending. However, because I have come to the conclusion that, prima facie, the decision was contrary to the Rules and otherwise unlawful, I do not (except in the manner and to the extent herein after stated) take it into consideration while disposing of the present application for interim relief.
16. The next question that requires consideration is whether there was compliance by the Club of Rule 13, which was expressly relied upon to suspend the use of the Club facilities by the plaintiff. This Rule provides in material part as follows:-- "(a) If at any time a Member conducts himself/herself within or outside the Club in a manner which is unworthy of the character of a gentleman/lady or be detrimental to the reputation of the Club, or infringes the Rules and Bylaws of the Club and if his/ her such conduct is brought to the notice of the Committee/ Chairman/Secretary of the Club, he may:--
(1) Suspend his,/her membership forthwith and have the explanation of the Meml-c: concerned called for consideration by the Committee.
(2) Without suspending membership of the concerned Member, have his/her explanation called for consideration by the Committee.
(b) If such Member submits an explanation which the Committee deems insufficient or unsatisfactory or if such Member omits to submit an explanation within a reasonable time (nor exceeding 14 days from the date of the request being posted to him) or refuses to submit such explanation, then and in such case the Committee may either:--
(1) Remove his name from the list of members, or
(2) Call upon his to resign. Or
(3) Suspend his membership up to a period of one year. Or
(4) Administer a warning to him"
' As is clear from the foregoing, a member may be suspended if, inter alia, he conducts himself it manner unworthy of the character of a gentleman, or infringes the Rules and Bylaws of the Club. In such a situation, his membership may be suspended by either the Committee itself, or the Chairman, or the Secretary of the Club. Such suspension may occur forthwith, with the member being called upon by the committee to explain his position subsequently, or the committee may in the first instance, call for an explanation from the member concerned. After considering the member's explanation, or considering the matter on its own if the member fails or refuses to give an explanation within the stipulated period, the committee may take any of the actions against him as noted in clause (b). The important point for present purposes is that Rule 13 clearly requires the application of the rule of audi alteram partem, namely the member concerned must be given an opportunity of providing his explanation to the executive committee, which must consider the same and then take appropriate action. This has clearly not happened in the present case. Since the plaintiff was, for the reasons noted above, entitled to be regarded as a temporary member of the Club, it was incumbent on the executive committee to call for his explanation and give it or its nominee an opportunity to appear before it and explain the matter. It was only thereafter that the committee could have taken any further action or decision. Furthermore, since that order had been made by the secretary. Himself (which he was empowered to do under Rule 13), the proper course would have been for the secretary to recuse himself from the meeting of the committee when it was considering the plaintiff's explanation as to whether or not the suspension ought to be confirmed, or some other action be taken against it. As noted above, this did not happen. In this context, learned counsel for the defendants submitted that there was a clear difference between the issuance of a show-cause notice and suspension of membership (or the enjoyment of Club facilities) on the one hand, and refusal to grant membership on the other. According to him, what happened at the meeting of 1-2-2010 was relatable to the latter situation, and not the former.
However, it is obvious from the minutes of the committee's meeting that the plaintiff's application was rejected on the basis of the incident of 30-10-2009, which had led to the suspension order.
Thus, the Club has itself conflated the two situations in the present case. Furthermore, even if the two situations are to be regarded as distinct matters governed by different provisions of the Rules, the important point, in my view, is that the plaintiff was entitled, on the correct interpretation and application of those provisions, to a proper notice and hearing. Prima facie, this did not happen, whether one considers the question of the plaintiff's suspension or the rejection of its application for membership. Thus, on any view of the matter, there was an apparent failure to comply with the applicable procedural requirements and, therefore, the action taken against the plaintiff was, prima facie, unlawful. Learned counsel for the defendants pointed out that in the impugned notice dated 30-10-2009, the plaintiff was called upon to provide an explanation, and that therefore there had been compliance with the requirements of natural justice. It appears that a reply dated 3-11- 2009 was filed by the plaintiff. However, from the minutes of the executive committee meeting, it does not appear that such reply was taken into consideration. Furthermore, the right of a personal hearing is an integral aspect of the rules of natural justice, and as noted above, no such opportunity was given in the present case.
17. The requirement as to what constitutes a prima facie case is of course well-established. All that a plaintiff needs to show is that there D are one or more issues that need to go to trial. The factual and legal aspects of the case, as is clear from the respective submissions of learned counsel appearing for the parties, and the discussion in the paras above, show that the questions involved in the present litigation can only be resolved once the parties have had an opportunity to lead evidence in the matter. Therefore, in my view, the plaintiff has succeeded in establishing a prima facie case. At the same time, it must also be kept in mind that the principal question involved in the, present suit (and certainly at issue in the present application) relates to a disciplinary matter, i.e,, whether or not the plaintiff (or its nominees) misconducted themselves such as would warrant the plaintiff's suspension. Even in the cases relied upon by learned counsel for the plaintiff, i.e,, D. M.
Malik's case and Khawaja Muhammad Saeed's case (supra) it has been held that in such a situation, the jurisdiction of the court is limited, and the Court will not normally interfere in the decision of a club on disciplinary matters, This point is of particular relevance in the present case since the admitted position is that Mr. Shaikh, the plaintiff's nominee, sought to use the boat at around 1-00 a.m. At night on 30-10-2009. The hours, on which the Club is open for use by members are clearly stated in Regulation 1 of the Bylaws, which provides as under:-- "Club Hours, ' Subject to the orders of the Committee, the Club shall be kept open from 0900 till 2300 hrs from Monday to Friday and from 0900 to 2359 hrs on Saturday and Sunday. Members wishing to use the Club facilities on timings other than mentioned above shall enter these in a special book provided for this purpose, subject to approval by the Secretary. A special charges as decided by the Committee shall be levied for overstaying in the Club premises."
' As is clear from the foregoing, the Club is not open at 1-00 a.m. At night and if a member wishes to use the Club facilities at such an hour, it is incumbent upon him to enter the relevant timings in a special book provided for this purpose. Such usage is, in any case, subject to approval by the secretary. Nothing has been shown by the plaintiff as would establish that it had complied with this requirement. Learned counsel for the plaintiff emphasized that the plaintiff's nominee, Mr. Shaikh, was in the habit of using the boat late at night and this was accepted by the Club. However, it is not open to the plaintiff to approbate and reprobate, i.e,, it cannot, on the one hand, claim that its position during the interim period was equivalent to a temporary member and it was entitled to all the benefits associated therewith and on the other, fail or refuse to comply with the obligations of membership. Prima facie therefore, there was apparently a breach of the foregoing Regulation by the plaintiff, and the question would be whether in such a situation, the plaintiff's case came within.
Clause (a) of Rule 13. This could of course, have only been decided by the executive committee after considering the plaintiff's explanation and complying with the requirements of the Rules and the principles of natural justice..
18. In the foregoing situation, the appropriate order would have been a direction to the executive committee to give an opportunity of explanation and hearing to the plaintiff, and then to consider whether or not the suspension imposed by the Defendant No,1 by means of the impugned notice dated 31-10-2009 was to be confirmed or not. However, the difficulty is that insofar as the Club itself is concerned, it has already rejected the plaintiff's application for membership at the meeting of the executive committee held on 1-2-2010. Although prima facie, for the reasons hereinabove stated, the rejection was not in accordance with law, it has not been impugned directly in the present proceedings nor, apparently, in any other proceedings. It would not therefore be possible in such circumstances to make a direction in terms as aforesaid. At the same time, it must also be kept in mind that the basic purpose for which the Club has been set up is to enable its members to enjoy water sports, such as boating, sailing and yachting, and indeed Rule 18 of the Rules expressly provides that an applicant for membership must own a boat unless special exemption has been granted by the executive committee. The plaintiff does own a boat, which is moored at the Club, and for which the plaintiff used the Club facilities. A yacht is expensive, both to own and to maintain and, therefore, in my view, in the facts and circumstances of the present case, the balance of convenience lies in favour of the plaintiff in allowing it to use the Club facilities for the purposes, and to the extent, of the yacht, and since it does not appear to be easily possible for the plaintiff to shift its yacht on a permanent basis to some other facility, irreparable loss, and injury may be caused to it if it is not allowed to use the Club facilities to this extent.
19. In view of the foregoing, this application is disposed of in terms that the impugned order dated 31-10-2009 is suspended to the extent and in the manner as stated in the orders of this Court dated 2-11-2009 and 4-11-2009, i.e,, four authorized persons of the plaintiff, being Mr. Waqas Siddique, Mr. Zeeshan Ahmed and tivo other associates, are allowed access to the yacht from the Club premises between 1500 to 1700 hours for the specific purposes of providing necessary provisions/ supplies to the employees/crew of the plaintiff who are living on the yacht and for maintenance purposes subject to normal checking by the guards of the Club as per the applicable Rules and Bylaws. It is however, clarified that the observations made hereinabove, including in particular, on the question whether the rejection of the plaintiff's application for membership was in accordance with law or not, are only of a tentative nature and made for purposes of the present application alone.