ORDER SALMAN HAMID, J.---On 11-5-2011 urging on C.M.A. No.8144 of 2009, an application under Order VII, Rule 11, C.P.C. For rejection of plaint, (hereinafter referred to as C.M.A.), were heard and was retained for order. On that day learned counsel (Mr. M.G. Dasthgir) for the defendant No.2 appeared not on time and requested that he may also be heard. For hearing him the case was adjourned to 18-5-2011. On that day (18-5-2011), it seems, that the case was. Discharged. It came up for hearing on 2-6-2011, on which date Mr. Dastagir adopted arguments of the learned counsel for the defendant No.8.
2. Arguments those were advanced by the learned counsel for the defendants No.8 and adopted by the learned counsel for the defendant No.2 may be potted into that the suit was barred under sections 42 and 56 of the Specific Relief Act, 1877; that the plaintiff was not entitled to injunction being temporary member of the defendant No.1 (the Club); that before termination of his membership, "full-fledged meeting of the Managing Committee for ascertainment of factual position had taken place" and that "there was no violation of any rule" before striking but his and his family's name from the membership of the Club; that before striking out the name of plaintiff, allegations those were raised against him had been proved and that the plaintiff also refused to avail the opportunity of appeal, as provided under the Bye-laws of the Club; that alternate remedy was available to the plaintiff.
3. Countering the C.M.A., the plaintiff reiterated the contents of the plaint. It was argued that the allegation of full-fledged meeting of the Managing Committee for ascertaining of factual position was nothing but an exercise in vainness to cover up mala fides of the defendant No.2 on whose behest and instance membership of the plaintiff and his family members from the Club was terminated. It was asserted that at no stage of time the plaintiff was heard or explanation, before termination land/or suspension of the membership had been sought. It was also vehemently disputed that any complaint was made by any member of the Club. It was mentioned that the plaintiff has been a member of the Club for the last about 16/17 years, during which time there had been not even a solitary complaint against him. It was asserted that the termination of his membership from the Club was an outcome of defendant No.2s spite against the plaintiff.
4. Augmenting the vindictiveness of the defendant No.2 with the plaintiff, it was pointed out, also evident from the plaint that one Mr. Muhammad. Farooque, (a member of the Club) who is father- in-law of plaintiff's son, is in litigation with him before this court (annexure P/4 to the plaint). Upon acquiring knowledge that Mr. Muhammad Farooque is father in law of plaintiff's son, the defendant No.2 approached him (Plaintiff) and asserted that he should talk into and/or win through Mr. Muhammad Farooque in withdrawing the above suit. The connection of the plaintiff and Mr. Muhammad Farooque being fragile and sensitive, the plaintiff articulated his helplessness in asking Mr. Muhammad Farooque to pull out from the suit. This snub by the plaintiff antagonized the defendant No.2.
5: Above non-accommodation by the plaintiff, it was alleged, formed basis of ordeal. Resultantly Letter dated 16-2-2009 (annexure P/5 to the plaint) was addressed, banning. The entry of the plaintiff and his family members for 15 days from the Club. It was asserted that at no stage, before or after the Letter dated 16-2-2009, the plaintiff was given opportunity of hearing which ultimately resulted in termination of his and his family membership from the Club.
6. I have heard arguments; have gone through the file and saw the precedents cited.
7. Prima facie from the narration of the plaint, (which ought to be seen and appreciated only for a decision of the C.M.A.), it would be plain that it was the "NO" of the plaintiff which made him and his family members pay. In the Letter dated 16-2-2009 it was mentioned that the members of the Club informed that the plaintiff misbehaved in the card room and therefore he violated the Rules and the Bye-laws of the Club with the result that the plaintiff and his family members were banned for fifteen days from entering the Club. Recitation of Letter dated 16-2-2009 demonstrated that the action on the part of the Club was arbitrary and unilateral. The plaintiff and his family members were banned from entering the Club without hearing.
8. In response to above letter the plaintiff addressed a letter (Annexure P/7 to the plaint). Wherein it a as categorically mentioned that he is comn to the Club for several years only on Sunday evenings and not a single incident of any mis behaviour with anyone was ever reported. It was further mentioned in the Letter that if some complaint was lodged, he had a right that he was confronted with it, enable him to explain his position and the matter could have been resolved amicably. It would be evident from the 'Letter, under-point, that ban so imposed unilaterally was prayed to be reconsidered. The Club instead of giving the plaintiff opportunity and retract from their highhandedness, addressed Letter dated 6-3-2009 (annexure P/8 to plaint) and mentioned that the matter is under inquiry of the Managing Committee and it is likely to take some time for finalization and that till such finalization, entry of the plaintiff and his family members shall remain intact. Thus the act of arbitrariness continued. The plaintiff was not called or allowed to plead his case before the Managing Committee. Letter dated 6-3-2009 was responded by the plaintiff through Letter dated 17-3-2009 and 25-3-2009 (annexure P/9 and P/10 to the plaint), wherein the plaintiff once again attempted in useless to give explanation. This did not bear fruit.
9. Suspension Notice dated 1-4-2009 (annexure P/11 to the plaint), was sent by which another ten days ban was imposed on the plaintiff and his family members. It was advised through such communication that appeal with the Appellate Committee/ Managing Committee for review within 10 days from the date of issue of Suspension Notice may be filed, whereafter the decision of the Appellate Committee/ Managing Committee shall be final and binding. Again, as it would be seen that the Suspension Notice was nothing but an arbitrary act of the Club, in violation of the principles of natural justice, which otherwise deemed to be embedded in every law, rule and procedure and require strict adherence whereby the liberty of a person is at peril. This principle was yet again violated by the Club when it once again unilaterally chose to suspend the membership of the plaintiff and his family members.
10. In response to such an arbitrary and unilateral decision, the plaintiff through letter dated 2-4- 2009 (annexure P/12 to the plaint) informed the Club that due to its (Club's) manifest arbitrariness and biased attitude, he, (plaintiff) would pot indulge in pointless exercise of appeal. However it was inquired by the plaintiff that since in terms of Letter dated 1-7-2009, a ban of only 10 days was imposed, was he allowed to come to the Club? The Club vide Dismissal Order dated 8-5-2009 (Annexure P/14 to the plaint) informed the plaintiff that since he had failed to submit appeal, Managing Committee unanimously decided to "dismiss the membership as per provision of sections 8(ii), 8(i.e), 48 and 58(3) of Rules and Bye-Laws of Gymkhana."
11. Gauging the case of the plaintiff from above narration of events, the defendants No.2 and 8s assertion that since it was a private club, they were within their discretion to dismiss any member from the Club found violating its (Club's) Rules and the Bye-laws and that member, (in the present case the plaintiff), cannot maintain a suit for injunction and/or A that member cannot be thrusted upon the Club needs to be looked in to in view of the principles of natural justice i.e., right of opportunity of hearing before that member is slapped with termination/suspension or dismissal from his membership. It may be true if a member of a given private club is actually and factually found guilty of violation of rules and the bye-laws he is liable to be terminated. How this is achieved is the real test. Only after impartial and unbiased enquiry and opportunity of hearing that member, before termination, is the minimum qualification. Unless this hurdle is cleared, it cannot be said that the termination was as per rules and the bye-laws. Even the precedents relied upon by the learned counsel for defendant No.8 demanded strict adherence of rules of justice, equity and fair play and right of hearing.
12. In the case of Khawaja Muhammad Saeed v. Mr. Justice Shabir Ahmad and 12 others (PLD 1965
(WP) Lahore 92), cited by the learned counsel for the defendant No.8 it was held that the suit contesting expulsion from membership of a club is maintainable and that the civil courts have jurisdiction to entertain the suit as well as to grant relief if the conditions laid down in the judicial authorities had been violated i.e. The rules provided for expulsion were not observed strictly; the member was not given due notice and full opportunity of answering the charges made against him; that good faith was lacking in exercise of the powers of expulsion; that the decision arrived at was manifestly absurd and there was no due inquiry. This citation furthers the case of the plaintiff more than of the defendant No.8.
13. The other precedent that was relied upon by the learned counsel for the defendant No.8 was D.M. Malik v. Jockey Club of Pakistan and others (PLD 1960 (WP) Karachi 325), wherein it was held that civil courts generally would not interfere in the private affairs of the club, unless rules were opposed to natural justice; were not properly followed or there was malice or mala fides; or principles of natural justice were ignored. Again this citation does not help the defendant No.8, keeping in view the attitude of the Club towards the plaintiff and termination of his and his family's membership without notice and hearing.
14. Purportedly membership of the plaintiff and his family members was cancelled on the allegations that he violated Rules 8(ii) & (i.e) 48 and 58(3). Rule 8 of the Rules of the club speaks about expulsion of members. Sub-Rule(ii) thereof says that if any member damages Gymkhana property or misuse Gymkhana funds or any member is involved in any such activity by the Gymkhana name misused or Gymkhana prestige is adversely affected such member is liable to be suspended by the Managing Committee for six months or dismissed him from membership of Gymkhana (emphasis provided). Sub-Rule (i.e) of Rule 8 says that expelled member(s) an appeal within 10 (ten) days of his/their expulsion to the Managing Committee. The decision of Managing Committee shall be final. Rule 48 speaks about Managing Committee's sole authority. It says that the Managing Committee shall be the sole authority to decide any question relating to the application or interpretation of rules and bye-laws. Rule 58 speaks about decision/ taken at special general (extraordinary) meeting held on 15-2-1998. Sub-Rule (3) says, Managing Committee is fully empowered to dismiss any member of any class or category in case, in its opinion, such members has/have damaged or may damage or cause any harm to the Gymkhana of whatsoever nature.
(emphasis provided).
15. Bare perusal of these Rules would show that such speaks about damage to the property of the Club and/or misuse of funds thereof and/or misusing the name of the Club. There was no such allegation against the plaintiff or his family members. The correspondence that was exchanged between the parties would clearly manifest that the membership of the plaintiff was put under suspension for 15 and 10 days respectively and it was mentioned that some inquiry was underway on the allegation that he misbehaved in the card room. It is clear from the very first Letter dated 16- 2-2009 that no names of the members who were alleged to have brought to the notice of the Managing Committee that the plaintiff had misbehaved were given. It was not mentioned in the Letter as to what was the Rule or the Bye-law that the plaintiff had violated. It is also clear that no opportunity of hearing was given to the plaintiff and/or his other family members before addressing letter dated 16-2-2009 when his and his family members were banned from entering the Club. This very first letter by itself shows that it was in violation of the principles of natural justice and that the plaintiff and his family members had been condemned un-heard. Looking at this aspect of this matter and the two citations relied upon by the defendant No.8 it would become evident that before taking any action, even the private clubs have to follow the principles of natural justice and that they have to act strictly in accordance with the terms and conditions of their bye- laws. In the two citations it was clearly mentioned that the civil courts have jurisdiction to entertain the 'suit as well as to grant relief if the conditions laid down in the judicial authorities are found to be missing and/or violated which were that the rules provided for expulsion have not been observed strictly; that the member has been given no due notice; no opportunity of answering the charges made against him was provided; that the good faith was lacking in exercise of the powers of expulsion; that the decision arrived at was manifestly absurd and that there was no due inquiry.
These settled principles prima facie had not been followed by the defendants before banning the entry of the plaintiff and his family, members.
16. It would be advantageous to note here that the plaintiff in his letter dated 2-4-2009 (Annexure P/12 to the plaint) clearly stated that it was an exercise in futility to prefer an appeal inasmuch as that the persons who were to decide it (appeal) were the same who had taken arbitrary and unilateral action against him and have suspended his and his family's membership without hearing and/or opportunity of hearing. At this stage three precedents relied upon by the learned counsel for the plaintiff may be looked into and discussed.
17. In the case of Syed Nasiruddin, Advocate and 3 others v. Karachi Bar Association and 70 others (1998 CLC 1724 (Karachi)),"it was held by this court that the rules and bye-laws of a bar association being not framed under any statute cannot bar filing of civil suit under section 9 of C.P.C. And that the plaintiff seeking relief against the president and other office bearers and members of the council managing committee of Bar Association, though provided remedies such could have not been availed of inasmuch as that the president and other managing committee members being themselves parties to the suit against whom relief was claimed and filing appeal before them would be only a waste of time and exercise in futility. Therefore, remedy provided under such rules and bye-laws had been considered to be inefficacious remedy. Bar in issuance of injunction under section 56(i) of the Specific Relief Act, 1877 was considered to be of no consequence into the way of the plaintiffs therein. Similar is the position in the case in hand. Appeal that is provided under the bye-laws of the Club would have been of no avail to the plaintiff as it was bound to be decided against him by the Managing Committee who also did not give him the opportunity of hearing and/or explanation and passed a unilateral order whereby not only his but his other family's membership was also cancelled.
18. The next case that was cited by learned counsel for the plaintiff was AlNoor Construction Co.
Contractors v. Cantonment Board Peshawar through Cantonment Executive Officer and 2 others (2004 CLC 1647 [Peshawar]), wherein it was held that person 'proceeded against must have a prior adequate notice of the case, charge or allegation that he had to meet and that he must have reasonable opportunity to answer the case against him and put his on case and that the decision must be made only on the allegations and material on which notice had been given and he must have an unbiased and fair hearing. It was further mentioned in the cited case that the principles of natural justice must be followed not merely as a formality but as well meaning and effective requirement of law. It would be seen in the present case that no opportunity of hearing what to say of adequate opportunity was given to the plaintiff and he was condemned unheard.
19. The last case that was cited by the learned counsel for the plaintiff was of Amar Nath Chowdhury v. Braithwaite and Co. Ltd. And others (PLJ 2004 SC (India) 14), wherein it was observed that the rule against bias originates from the maxim Debet esse judex in propria causa and the bias may be pecuniary, personal or as to subject-matter. Basing the judgment on the above maxim, it was held by the Indian Supreme Court that one of the principles of natural justice is that no person shall be a judge in his on cause or the adjudicating authority must be impartial and must act without any kind of bias. Such rule against bias has its origin from the maxim known as Dehet esse judex in propria cause which is based on the principles that justice not only be done but should manifestly by seen to be done. This could be possible only when a Judge or an adjudicating authority decides the matter impartially and without carrying any kind of bias. Bias may be of different kinds and forms. It may be pecuniary, personal or there may be bias as to the subject matter etc. It was further held that where any authority sits in appeal against its on E order that authority had no jurisdiction to sit over it.
20. Looking at the above decisions and even the two precedents cited by learned counsel for the defendant No.8 and also the background of the case vis-a-vis the allegations against the defendant No.2 that he became vindictive against the plaintiff because of his (plaintiffs) refusal to have the matter patched up between defendant No.2 and Mr. Muhammad Farooq, it is prima facie patent that the decision taken by the Club was motivated and was at the behest of defendant No.2 with the result that membership of the plaintiff and his family members was cancelled.
21. Under the circumstances, the C.M.A., on its surface, is mala fide and was moved to further torment the plaintiff and his family members; to deprive them to the enjoyment of membership of the Club, is hereby dismissed with cost of Rs.35,000..