1. ' ABDUL RASOOL MEMON, J.--- C.M.As. Nos. 10470/2015 and 11091/2015 are moved by the plaintiffs under Order XXXIX, rules 1 and 2, C.P.C. Read with section 151, C.P.C. Praying therein to allow the existing 14 members of the Association as mentioned in para-4 of the plaint to perform their function and duties as prescribed in the constitution of Pak Moharram Association (Regd.)
2. (hereinafter referred as Association) which was registered under the Societies Registration Act in the year 1956-57. As per rules and regulations of the Association, there are to be 14 parents members in number and defendants Nos.3 to 12 are prayed to be restrained from acting as parent members. It is alleged that the defendant No,2 with mala fide intention in connivance with Qamber Mehdi and two other parent members Hassan Mujtaba and Ali Abbas Abbasi fraudulently inducted the defendants Nos.3 to 12 as parent Members in contravention to the constitution of the Association. The plaintiffs on 16.7.2015 appeared at Association office where the defendant No,2 was present as parent members and the defendants Nos.3 to 12 were also present. The plaintiff No,1 challenged their presence in Annual General Body Meeting of Association on which the defendant No,2 informed them that the defendants Nos.3 to 12 are/were inducted as parent members of the Association on which the plaintiffs agitated.
3. ' It is further pleaded in plaint that number of parent members have never been increased beyond 14 members and have also never been discussed in any Annual General Body Meeting, therefore, the plaintiffs have sought the declaration that induction of the defendants Nos.3 to 12 in Association is unjust, unfair and arbitrary and against the constitution of Pak Moharram Association (Regd.) and that the said induction of defendants is unlawful and mala fide. It is further stated that the plaintiffs have neither conducted any Annual General Body Meeting nor ever considered their increase or enhancement of number of parent members to more than 14, thus have prayed for permanent injunction restraining the defendants Nos.3 to 12 from claiming themselves as parent members and from performing their functions as such.
4. ' The defendant No,2 filed counter-affidavit to both C.M.As. Wherein it is stated that the Association is a body of 24 parent members and the plaintiff with mala fide intention have concealed this very fact from this court. It is further stated that number of parent members of the Association was increased from 14 to 24 in the year 2014 by an amendment made in the rules and regulations of the Association in Annual General Body Meeting on 24.4.2014 and was duly confirmed in subsequent meeting dated 13.10.2014. The said amendment was consented by 3/5th of General Body wherein the plaintiffs were also present and have signed the minutes of the said meeting of the Association, therefore, they may not be allowed to blow hot and cold in the same breath. The defendants Nos.3 to 12 have paid their admission fee and subscription respectively. It is further stated that Annual General Body Meeting of the Association was held on 16th July, 2015. The Minutes of the Meeting dated 24.4.2014 and 03.10.2014 and so also 16.7.2015 are filed as Annexures A/1 to A/3.
5. ' It is further stated that prior to it, the plaintiffs have filed Suit No,1169/2015 wherein the plaintiffs did not challenge the induction of defendants Nos.3 to 12 as parent members of the Association. It is stated that the plaintiffs have got no prima-facie case in their favour nor they have any personal interest in the matter, therefore, they would not suffer any inconvenience or irreparable loss, thus, the plaintiffs are not entitled for grant of injunction in their favour.
6. ' The plaintiff No,1 Sarwar Ali has filed a rejoinder denying the allegations of the defendants stated in counter-affidavit and has stated that the defendants falsely, fraudulently and with mala fide intention and ulterior motive manipulated fictitious Annual General Body Meeting on 24.4.2014 and 03.10.2014 and have shown the bogus amendment in the Constitution of the Association with the bogus/pasting of the signatures of the plaintiff and have inducted the defendants Nos.3 to 12 as parent members in order to usurp and keep the presidentship of the Association by defendant No,2. It is further stated that counsel for the plaintiffs appeared before the Registrar of defendant No,1 and moved an application for inspection of the record of the Society but did not find the minutes of the meeting dated 24.4.2014 and 03.10.2014 available there in terms of section 4 of the Societies Registration Act.
7. ' Counsel for the plaintiff has placed on record copy of C.P. No,D-5510/2015, Pak Moharram Association (Regd.) v. Province of Sindh and others with order dated 22.9.2015 about permission for holding of Procession on 10th Moharram which was granted in accordance with law by a Division Bench of this Court and defendant No,2 has also placed on record copy of permission granted by Additional I.G. Of Police dated 01.10.2015 to defendant No, I to take out Procession on 10th Moharram from Nishtar Park to Anjuman Hussainian Iranian. Hall, Kharadar, Karachi which are taken on record.
8. ' Heard the arguments of learned counsel for the parties.
9. ' Learned counsel for the plaintiffs submits that as per rules and regulations of the Association, there would be 14 parent members and as per section XIV(H), the rules and regulations can be amended by the voters in the General Body Meeting not less than 3/5th of total parent members which are 14 in number with 10 days clear notice to the parent members and is to be confirmed in another meeting of body to be held at least one month after the last meeting. He submits that meetings dated 24.4.2014 and 03.10.2014 were not attended by the plaintiffs and the defendants mala fidely with ulterior motives by forging the signatures of the plaintiffs prepared fictitious agenda. He further submits that prima facie the very meetings allegedly held by the defendant No,2 are in contravention of the constitution, therefore, induction of defendants Nos.3 to 12 as parent members is illegal and ultra-vires for which the plaintiffs would suffer an irreparable loss and inconvenience if the defendants are allowed to act as parent members of the Association. He further submits that the decision taken on 16.7.2015 in violation of the rules and have never been confirmed in the subsequent meeting, therefore, the defendant No,2 and Qambar Ali Mehdi cannot act as President and Secretary. He prays for grant of injunction.
10. ' Mr. Yahya Khan, Advocate for defendants Nos.5, 7, 8, 9 and 12 has contended that the defendants were present in the meeting dated 24.4.2014 wherein the amendment about the number of parent members was made and was confirmed on 03.10.2014 in their presence to which they have signed.
11. He has stated that the grounds taken by the plaintiffs that their signatures are forged and fabricated by pasting is incorrect. In support he has produced the Original Register of Minutes of the meeting showing the original signatures of the plaintiffs with dates by same members. He further submits that in rebuttal the defendants have produced the Minutes of the Meeting containing the signatures of the plaintiffs and the issue relating to bogus and fraudulent entries, evidence is required which could be thrashed out at trial. He further submits that for holding Procession and Majlis at Nishtar Park, the Association has filed a C.P. Permission has already been accorded by the AIG Police in pursuance to order in C.P. In such situation, if any injunction order is granted, that will create inconvenience to the people at large belonging to Asana Ashen I Muslims and the loss cannot be compensated in terms of money.
12. ' The defendant No,2 in person and on behalf of defendants Nos.3, 4, 6, 9 and 11 adopted the arguments of Mr. S.M. Yahya, Advocate.
13. ' For grant of temporary injunction under Order XXXIX, rules 1 and 2, the Courts have to consider the following factors:-
(i) The prima facie existence of right in the applicant and its infringement by the respondents or the existence of a prime facie case in favour of the applicant.
(ii) An irreparable loss, damages or injuries which may occur to the applicant if the injunction is not granted.
(iii) That the inconvenience which the applicant will undergo from withholding the injunction will be comparatively greater than that which is likely to arise from granting it or in other words the balance of inconvenience should be in favour of the applicant .
14. ' It is also settled principle of law that for grant of injunction or refusal thereof, pleadings, documents and supporting evidence have to be examined and the assessment whereof shall be made tentatively. However, where complicated question about merits arise, requiring framing of issues and evidence, the injunctive order may not be issued . In the instant case, as per rules of the Association, there were 14 parent members which could be amended by virtue of powers given to the parent members through votes of not less than 3/5th of the total parent members. The plaintiffs have claimed that they have not attended any meeting while their signatures are forged, fabricated and pasted one, to which the defendants have placed on record; the Minutes of the Meeting through their counter-affidavits dated 24.4.2014 and 03.10.2014 and upon tentative assessm ent there?f, it appears that it bears the signatures of the plaintiffs. It is relevant to mention that the plaintiff No,1 Sarwar Ali has sworn in his affidavit while other plaintiffs have not denied their signatures. However, the plaintiff No,2 in his rejoinder has stated that the Minutes of the Meeting dated 24.4.2014 and 03.10.2014 are bogus with bogus/pasted signatures of the plaintiffs. Counsel for the defendants have placed before this cowl the register of Minutes of the Meeting which were examined in presence of counsel for the plaintiffs and so also the plaintiffs in person. The claim of the plaintiffs that these signatures are bogus and pasted require deeper appreciation of evidence which can only be made after trial by framing of issues. The prima-facie case does not appear in favour of the plaintiffs, therefore, if at this stage the defendants Nos.3 to 12 are restrained from performing their duties, definitely the functions of Moharram Association will be hampered which may cause inconvenience to the Muslims of Asana Asheri in the forthcoming Ashura and that loss could not be compensated in terms of money.
15. ' On the touch stone of the provisions of Order XXXIX, rules 1 and 2, C.P.C. And the settled principles of law, no case for grant of injunction is made out, hence both C.M.As. Are dismissed.