ORDER SHEET
IN THE HIGH COURT OF SINDH AT KARACHI
Suit No.1706 of 2012
Sr. Samrina Hashmi
Versus
Pakistan Medial Association (Centre) & others
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Date |
Order with signature of Judge |
For hearing of CMA 13376/12
Date of hearing: 28.10.2013, 18.11.2013 & 21.11.2013
Mr. Akhtar Hussain along with Mr. M. Masaud Ghani for the plaintiff.
Mr. Haider Waheed for defendants No.1,3,4 & 5.
Mr. Zeeshan Adhi for defendant No.2.
-.-.-
Muhammad Shafi Siddiqui, J.- The plaintiff has filed this suit for declaration that the resolution passed by defendant No.1 in its biennial conference and the council meeting held on 30.11.2012 and General Assembly meeting dated 01.12.2012 at Quetta expelling the plaintiff from her membership from Pakistan Medical Association (PMA) and removing her name as a member of the Central Council and from the post of President of PMA (Sindh), is illegal and unlawful and further sought restraining orders from circulating and publicizing the resolution of expulsion of the plaintiff. Along with the main suit the plaintiff has also filed present interlocutory application claiming the same relief.
Very briefly the facts of the case for the purpose of deciding the controversy as mentioned in the injunction application are that the plaintiff was appointed as President PMA (Sindh) vide election held on 08.05.2011 at Bhitt Shah. After the election dispute arose amongst the members resulted in filing of Suit No.10 of 2011 which was compromised. The same was however subsequently challenged by defendants No.3 to 5 which resulted in setting aside the compromise judgment and decree.
It is contended by learned counsel for the plaintiff that being jealous from the plaintiff, the defendants No.3 to 5 in collusion with some others started maligning the plaintiff on vague and frivolous charges and initially an explanation letter dated 22.4.2012 was issued to the plaintiff on behalf of defendant No.2 i.e. PMA (Karachi Branch), which letter was accordingly replied. Subsequently an inquiry committee formed to probe also called upon the plaintiff through its letter which was also replied and the committee was pleased to call the plaintiff in person. It is contended by learned counsel for the plaintiff that the plaintiff appeared before the committee personally on the designated date and time and to respond the queries with regard to opening of the account, which is the sole basis for moving such resolution, and record was provided. The plaintiff further informed the committee that entire record and accounts were lying in the office of PMA Sindh Hyderabad which may be inspected. Learned counsel for the plaintiff submitted that during this period the biennial conference and the election of PMA (Centre) i.e. defendant No.1 were to be held along with the election of council members and delegates to prepare the electoral list in terms of bylaws and the biennial conference was scheduled to be held from 30.11.2012 to 02.12.2012.
Learned counsel for the plaintiff further added that in their desire to manipulate the elections of PMA (Karachi) i.e. defendant No.2 they also failed to include names of various council members and delegates elected and communicated by different branches of PMA (Sindh). Consequently the suit bearing No.1454 of 2012 was filed and on the application for interim relief this Court was pleased to pass order dated 29.11.2012 and 01.12.2012 directing the defendant No.1 to hold the election of PMA (Centre) at Quetta on 02.12.2012 and sealed record be submitted to the Nazir of this Court without declaring the result and thereafter the Nazir was directed to arrange for holding General Body meeting of PMA (Karachi) for the purpose of electing the delegates and further to hold elections of PMA (Centre) and thereafter to call for votes of the dually elected delegates. Learned counsel further submitted that the expulsion of the plaintiff by the defendants on the resolution moved by defendant No.5 without counting votes and without specifically mentioning it as an agenda is beyond the mandate of the Constitution and Articles of Association of PMA (Centre). It is contended that the General body meeting was presided over by defendant No.3 and conducted by defendant No.4 and all the defendants are in collusion to defame and disrepute the plaintiff by illegally expelling her from basic membership of PMA. Learned counsel submitted that the expulsion of the plaintiff from the basic membership of PMA is against the fundamental rights of the plaintiff as enshrined in the Constitution of Pakistan and the rights and privileges provided under the Memorandum and Articles of Association of PMA Central.
Learned counsel further contended that Article 10 of Memorandum and Articles of Association of PMA (Centre) deals with the termination of the membership of a member and Article 11 thereof provide the procedure for the same whereas Bylaw 13 framed thereunder provide removal procedure. Learned counsel further contended that Bylaw 13 provide a complete procedure not only for the removal from the Register of decision of a council but in fact a complete procedure meant for expelling a member. Learned counsel contended that the removal and expulsion from the basic membership of PMA (Centre) amounts to depriving the plaintiff from basic rights and particularly in terms of Article 17 of the Constitution of Pakistan which provides a fundamental right to the plaintiff to form an association. Learned counsel in support of his contention has relied upon the case of Air Marshal (Retd.) Muhammad Asghar Khan vs. General (Retd.) Mirza Aslam Baig, Former Chief of Army Staff & others reported in PLD 2013 SC 01, Karachi City Cricket Association, Karachi vs. Mujeebur Rahman, Chairman Ad hoc Committee, Pakistan Cricket Bopard, Lahore & others (PLD 2003 Karachi 721) and Benazir Bhutto v. Federation of Pakistan & another reported in PLD 1988 SC 416. Learned counsel further relied upon the case of Dr. Hafeez Rehman & others vs. Pakistan Medical Association Jehlum & others reported in 2013 MLD 651. Learned counsel contended that the prescribed procedure as required under the law has not been followed.
On the other hand learned counsel for defendants No.1 and 3 to 5 submitted that the plaintiff was expelled from the PMA as she has been seeking funds from the domestic and foreign donors for her personal benefits. Learned counsel further submitted that the reputation of PMA i.e. defendant No.1 is unblemished and rest at very high pedestal and this is the reason that generally the people of Pakistan and internationally PMA (Centre) has huge number of donors which caters the need and requirement of association meant for public utility and to provide help to the needy and deserving. Learned counsel submitted that the acts and omissions of the plaintiff are such that it has brought entire medical profession in disrepute which resulted in her expulsion however such action was taken after due process of law. Learned counsel submitted that on or about March, 2012 the defendant No.1 came to know that an account was being operated in their name and at their address whereas prior to that defendant No.2 was not aware of the existence of any such bank account as it was not operated by any duly authorized official of defendant No.2. Learned counsel submitted that when the matter was probed it revealed that an account is being operated at Habib Bank SDV Branch. It was further discovered that money and foreign remittance made for flood relief meant for official account of PMA was transferred illegally to an unknown account which was subsequently discovered to be operated by the plaintiff hence an illegal account was opened at the address of PMA Karachi and it was opened without knowledge of PMA Centre and/or PMA Karachi. Learned counsel submitted that PMA (Centre) is separately maintaining the account for disaster management which is for relief activities and the opening of the aforesaid account by the plaintiff is an apparent malice as huge funds were diverted to the account opened by the plaintiff. Learned counsel has also referred to a copy of bank statement dated 29.2.2012, filed along with his counter-affidavit to establish that the said account is in the name of PMA at Karachi.
It is contended that PMA Karachi wrote a letter to PMA (Centre) on 12.3.2012 expressing their concern about the opening of the disputed account however since bank officials were in collusion with the plaintiff they did not take any action and at the end PMA Karachi sent legal notice for this financial scam and wrong doings. Consequently, learned counsel submitted that on 12.3.2012 an emergent meeting of executive committee was called in which such issue was discussed and it was decided that the inquiry committee should be formed to probe. Accordingly the committee was formed under Article 12(c) of the Rules & Regulations of PMA Karachi and on 20.3.2012 defendant No.2 sent a letter to the members of the inquiry committee setting out the terms of Reference. Two days’ later i.e. on 22.3.2012 the inquiry committee issued letter to the plaintiff requiring her explanation regarding the above financial scam and opening of parallel account which was received by the plaintiff on 29.3.2012. Learned counsel submitted that by writing to the inquiry committee, the plaintiff accepted the jurisdiction of inquiry committee. On 05.05.2012 the inquiry committee wrote to the plaintiff that the explanation provided by her was not in fact a reply in terms of the Reference and hence her personal appearance was required.
Learned counsel further added that the General Secretary of PMA (Centre) wrote to the PMA Karachi and discussed the unlawful activates of the plaintiff and requested to be vigilant and take action since the respect and dignity of the entire medical profession was at stake. On 12.05.2012 the plaintiff informed the inquiry committee and consented for personal appearance before it. On 17.05.2012 the General Secretary of PMA Sindh wrote to PMA Karachi enlisting the illegalities committed by the plaintiff as the activities of the plaintiff were causing damage to the reputation of the doctors and the association. On 19.05.2012 the inquiry committee wrote to the plaintiff and informed her about the date of personal hearing. Consequently, hearing took place on 21.05.2012 and it was clear to the inquiry committee that the plaintiff has no answer to the allegations leveled against her. On 26.05.2012 meeting of the executive committee PMA Karachi was held on multiple issues which includes the agenda as of above scam and the report of the inquiry committee was considered. The plaintiff was unable to meet the allegations against her and after detailed discussions the executive committee of PMA Karachi decided to take action and moved appropriately for expelling the plaintiff from PMA’s membership and the resolution to expel the plaintiff was presented.
It is contended that all the members voted the resolution except one member who kept silent and hence it was unanimous recommendation that the plaintiff should be expelled from PMA and hence the resolution is forwarded in this meeting from the Executive Committee of PMA Karachi. Consequently on 02.07.2012 pursuant to the above exercise the General Secretary of PMA Karachi wrote to General Secretary PMA (Centre) regarding these illegalities committed by the plaintiff and that it was probed and an inquiry committee was formed which formed an opinion which resulted in moving a resolution based on unanimous decision in a meeting dated 26.5.2012.
Learned counsel after submitting these facts contended that in terms of Article 11(a) of Memorandum and Articles of Association of PMA Central, the central and provincial councils have power to expel a member from basic membership and hence the decision was taken in accordance with the rules and regulations and articles of the association, as required.
Learned counsel further argued that the plaintiff is seeking mandatory injunctions at an interlocutory stage which in view of the facts and circumstances of the case, cannot be granted. Learned counsel further argued that only if malafides of the defendants are established the plaintiff could succeed otherwise such relief cannot be granted at this interlocutory stage which is the main relief in the suit. Learned counsel in support of his contention has relied upon the case of D.M. Malik vs. Jockey Club of Pakistan & others (PLD 1960 W.P. Karachi 325), Tabassum Shahzad vs. I.S.I & others (2012 PLC (C.S) 866), Moharram Ali Shah & another vs. Secretary, Ministry of Food & another (1982 SCMR 1166), and Muhammad Aslam Mianoor & another vs. Messrs Pakistan Cables Ltd & another (2008 YLR 1536).
Lastly learned Counsel has relied upon the case of Muhammad Aslam Mianoor & another vs. Messrs Pakistan Cables Ltd & another (2008 YLR 1536) to demonstrate that no irreparable loss shall be caused to the plaintiff in case of refusal to grant injunction whereas in case it is granted, irreparable loss shall be sustained by the defendant No.1 whose stake is higher than the individual. Learned counsel thus prayed that the application of the plaintiff may be dismissed.
Learned counsel appearing on behalf of defendant No.2, in addition to the submissions made by Mr. Haider Waheed, contended that the PMA Karachi was not aware initially of illegal activities in particular the opening of the account where huge sums were diverted. Learned counsel further argued that every article of the memorandum and articles of association of PMA (Centre) that was required was invoked and every possibility of personal hearing was provided and the plaintiff failed in satisfying the inquiry committee as well as the executive committee of PMA Karachi when the decision of forwarding the resolution against the plaintiff was made.
I have heard the learned counsel and perused the material available on record.
In plaint it is the case of the plaintiff that the plaintiff was expelled from the membership without following the requisite articles as provided in the Memorandum and Articles of Association of PMA (Centre). The plaintiff along with her plaint has also filed certain document which pertain to the queries raised and in pursuance thereof the inquiry committee had issued the notices asking for explanation which letters are attached as Annexure P/17, P/19 and its reply P/18. Another letter dated 05.12.2012 is also relied upon by the plaintiff which is Annexure P/20 for personal appearance before the inquiry committee. Subsequently, another letter dated 19.05.2012 is also placed on record inquiring the plaintiff to submit following documents:-
Then on 25.05.2012 a letter was issued by the plaintiff which explained her reservations in the process of conducting the inquiry however on 13.11.2012 notices of Biennial Central Council meeting was issued along with Agenda to consider the resolution to be placed in the General Body which resolution is available as Annexure P/30 and Item No.6 deals with the expulsion of the plaintiff Dr. Samrina Hashmi,. Such resolution was approved with majority vote and resulted in expulsion of the plaintiff, challenged here in this suit.
The relevant provisions that deal with the expulsion of a member are Articles 10 and 11 of the Memorandum, Articles and Bye-laws of Pakistan Medical Association Central. For the convenience both the articles are reproduced as under:-
“10. Membership of the Association will be terminated in any of the following circumstances namely:-
(a) By resignation, subject to such notice as may be prescribed by the Bye-laws and subject to the provision of the next succeeding Article.
(b) Ipso Fact: By default in the payment of subscription to Association, save as hereinafter provided.
(c) By expulsion (after the enquiry and in the manner prescribed in the next succeeding Article) on the grounds that the conduct of the member is detrimental to the honour and interests of the Medical profession or Association or calculated to bring Profession into disrepute, or on the ground that the member has willfully and persistently refused to comply with the Regulation of the Association.
11. Expulsion
(a) The Central & provincial Council has power to expel a member from the membership.
(b) No member shall be expelled unless the Central/Provincial Council or a Committee appointed/empowered by it in this behalf holds enquiry into the truth of the allegations which are in the nature mentioned in Article 10(c) against the member.
(c) Notice of the enquiry shall be given to the member concerned at least fourteen days before the enquiry specifying the allegations, time and place of enquiry at which the member concerned will be heard in his defence.
(d) The Branch concerned shall submit all relevant data regarding the member, whose expulsion is proposed, before the Provincial Council or the Committee appointed/empowered by it.
(e) After the enquiry, the member can be expelled by a majority of two-thirds of those present and voting at a meeting of the Central/Provincial Council for the purpose or exercising the powers conferred by clause (a) of this Article.
(f) The expelled member shall notwithstanding that he has ceased to be a member, be liable to pay all sums due from him to the Association/to the Branch of which he was a member at the time of his expulsion.
(g) A member has right to appear to the Central Council against the decision of his expulsion taken by the Provincial Council.
(h) No member whose conduct is under investigation, or is the subject of inquiry by the Central, Provincial Council or by a Branch Council or Committee or by any Committee authorized in that behalf by any Council as aforesaid shall resign, his membership will be terminated in pursuance of paragraph(s) of the last preceding Article or any Bye-law until the investigation or the inquiry is completed and the decision thereunder is pronounced.
The plaintiff has not denied as far as the opening of the bank account is concerned which account was the basis of expulsion. The only thing that has been denied that the inquiry was not conducted and show cause notice was not issued. In the affidavit-in-rejoinder in para-5 it is stated that no show cause notice was issued nor any inquiry was conducted. However in the same paragraph, it is mentioned that the show cause notice and the inquiry that deals with the bank account and misappropriation was conducted collusively. She also claimed to have appeared personally before the inquiry committee and provided entire record of opening the bank account. Thus there appears to be no two views that account was opened and inquiry was conducted.
I shall now see as to whether the procedure and mechanism as required for expelling and terminating a member is followed in its letter and spirit. It is the case of the defendant that strict compliance of Articles 10 and 11 have been made. The resolution is also annexed with the plaint as well as the counter affidavit which has not been denied. Such resolution was presented in the Biennial Central Council meeting on 13.9.2013 at Quetta. The attendance sheet attached to this resolution has not been denied and it has also not denied that an overwhelming majority has approved the said resolution that deals with the expulsion of the plaintiff. Such resolution is attached as annexure D and D-1. A certificate attached as annexure D-2 also demonstrates that a total of 74 Central Councilors participated and out of them 73 Central Councilors voted in favour of expelling the plaintiff. The matter then came before General Body Meeting on 01.12.2012 and amongst others resolution No.1 deals with the present issue i.e. expulsion of plaintiff. Certificate issued by the Secretary General of Pakistan Medical Association also shows that 207 members participated in the General Body Meeting and by overwhelming majority the said resolution was passed and only 7 members voted against her expulsion. Such fact was also gone un-rebutted. Thus all that is required in the procedure is available in terms of Article 11 which provides power to Central and Provincial Council to expel a member. In terms of Article 11(b) no member can be expelled unless Central or Provincial Council or Committee appointed/ empowered by it in this behalf holds enquiry into the truth of the allegations which are in the nature mentioned in Article 10(c). The allegations here are that the act of the plaintiff whereby a parallel account was opened where the funds of Pakistan Medical Association were transferred is an act which is detrimental to the honour and interest of the association. So far as the article 10(c) is concerned, the action is covered thereunder. As far as Article 11(c) is concerned it has been admitted in para-5 of the affidavit-in-rejoinder that in response to a show cause notice of the enquiry committee, she appeared which notice provides a minimum of 14 days for the enquiry committee. The Pakistan Medical Association Karachi has already initiated action when it is stated in paras 7 to 13 of the counter affidavit that they came to know about this account. This seems substantial compliance of Article 11(c). However after the formation of the enquiry committee the defendant No.2 also sent a letter dated 20.3.2012 setting out terms of reference of the committee i.e. compliance of Articles 11(d). Article 11(e) deals with the numerical numbers by which a member can be expelled i.e. by a majority of 2/3rd of those present voting at a meeting for the Central and Provincial Council for the purpose of exercising the powers conferred by clause (a) of Article 11. The compliance of Article 11(e) is available at annexure D-2 and provides that out of 74, 73 Central Councilors voted in favour of resolution.
A perusal of these documents and Articles 10 and 11, it appears that substantial mechanism provided in the Memorandum, Articles and Bye-laws of Pakistan Medical Association Central have been followed. As far as the application under consideration is concerned this is enough that action is covered by Article 10 of Memorandum and Articles of PMA Central. I have only to see and find out as to whether the plaintiff has made out a case for grant of mandatory injunction which requires a test better than showing prima facie case, balance of inconvenience and irreparable loss.
Following are the judgments cited by Plaintiff’s Counsel to establish his case. The judgment reported as Air Marshal (Retd.) Muhammad Asghar Khan vs. General (Retd.) Mirza Aslam Baig, Former Chief of Army Staff & others (PLD 2013 SC 01) deals with the formation of the association under Article 17 of the Constitution of Islamic Republic of Pakistan. No doubt it is the privilege and right of every citizen to form an association, however, all such associations are subject to their rules, Memorandum, Articles and Byelaws which are to be adhered to in letter and spirit. The right of forming an association was never denied either in terms of expelling the plaintiff or otherwise as all such associations are to be governed under the law, as in this case i.e. Memorandum, Articles and Byelaws of Pakistan Medical Association hence the aforesaid cited judgment has no application to the facts and circumstances of the case in hand.
The other case cited is of Karachi City Cricket Association, Karachi vs. Mujeebur Rahman, Chairman Ad hoc Committee, Pakistan Cricket Bopard, Lahore & others (PLD 2003 Karachi 721). It is the case where the Karachi City Cricket Association itself was suspended and such suspension was not within the purview of Article 37 of Pakistan Cricket Board and was violative of natural justice. In the present case the association is functioning and only a member who was allegedly involved in an action detrimental to the cause of the association was suspended.
In other case relied upon is the case of Benazir Bhutto v. Federation of Pakistan & another reported in PLD 1988 SC 416. In this cases the question of National general elections were involved which concerns with the masses depriving a member or a citizen without cause, however expulsion of a member from an Association with reasoning and valid cause are distinguishable features. Certainly to deprive a person from such rights even the Constitution of Islamic Republic of Pakistan provides certain articles which are guiding principles in granting permission to participate in general elections. So all rights are subject to law provided therein and it cannot be considered as a blanket approval or licence.
The other judgment that was relied upon reported as Dr. Hafeez Rehman & others vs. Pakistan Medical Association Jehlum & others (2013 MLD 651) wherein the grievance is that the names were illegally excluded from the voter list on account of late payment of subscription fee. The case is distinguishable as in the present proceedings the issue involved is of financial corruption which resulted in her expulsion followed by Articles 10 and 11.
On the other hand the Learned Counsel for the defendants has relied upon the case reported as D.M. Malik vs. Jockey Club of Pakistan & others (PLD 1960 W.P. Karachi 325) which provides that in the disciplinary matters of club and association, the Court generally refuses to interfere in decisions if given without any irregularity in procedure unless it is proved either that the rules were opposed to natural justice or not properly valid or involve malice and malafide in arriving at the decision.
Learned Counsel for the defendant has also relied upon the case of Tabassum Shahzad vs. I.S.I & others (2012 PLC (C.S) 866) which provides that only vague allegations of malafide are not suffice. The relevant portion of the judgment is as under:-
“-----It is by now a well settled proposition of law that malice and mala fide are questions of fact which have to be proved by leading evidence in absence of which no adverse presumption could be drawn qua proceedings initiated under the law and order passed by the competent authority. Mere vague allegation of mala fides would be of no avail to the petitioner.---”
The next judgment learned Counsel for the defendants as relied upon is the case of Khawaja Muhammad Saeed reported in (1965 W.P. Lahore 92). It is observed in the judgment as under:-
“---A club is an autonomous institution and a Court of law will not lightly interfere with its action in expelling a member unless it has violated the recognized rules of procedure in that connection or those of natural justice. Interference by the Court to prevent expulsion would not be justified if the rules providing for expulsion have been strictly observed, the member has had due notice, and full opportunity of answering the charges made against him, there has been no want of good faith in the exercise of the power of expulsion, and the decision arrived at is not manifestly absurd. The important question is whether there has been due enquiry.---“
The next judgment learned Counsel for the defendant relied upon is the case of Abdul Ghaffar Jangda vs. Haji Ali Haroon, Muslim Gymkhana & others (2011 YLR 2907). It is held in this judgment as under:-
“—11. Gauging the case of the plaintiff from above narration of events, the defendants No.2 and 8’s 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 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 or rules of justice, equity and fair play and right of hearing.---“”
The next judgment learned Counsel for the defendant has relied upon is the case of Moharram Ali Shah & another vs. Secretary, Ministry of Food & another (1982 SCMR 1166). Hon’ble Supreme Court in the aforesaid case has held as under:-
“----3. The only contention raised by the learned counsel is that he was not associated with the preliminary inquiry as such he had been condemned unheard. It is not disputed that a show-cause notice was issued to him to which he gave a reply and was heard personally by the District Food Controller, before the order in question was passed. He was also heard by the Appellate Court as well as by the Revisional Authority. The High Court was, therefore, justified in holding that in the circumstances, the petitioner cannot plead that he was not heard. Consequently the petition is dismissed as being without merit.”
The other case that was relied upon is the case of Madras Boat Club which is an unreported judgment which has made emphasis that a person becoming member of a voluntary association has agreed to be bound by such bylaws, rules, regulations, articles and memorandums. He is not allowed to challenge the very validity of bylaws when she was aware of them when becoming part of the association. The aforesaid citation was provided by the defendant Counsel in respect of the arguments that there is no appeal in respect of a decision of Central Council.
Next judgment learned Counsel has relied upon is the case of Muhammad Waris & others vs. Province of Pubjab & others (PLD 2003 Lahore 242) which laid down emphasis that the plaintiff cannot be allowed to approbate and reprobate in the same breadth.
Learned Counsel for the defendant has relied upon the case of Khadim Hussain vs. Mst. Mansab Mai & others (2006 SCMR 1142) to substantiate that no substantial irregularity and illegality in the proceedings have been committed. Learned Counsel has further relied upon the case reported as Noor Muhammad Khatti & others vs. The State (2005 P.Cr.L.J 1889), Dr. Akhtart Hassan Khan & others vs. Federation of Pakistan & others (2012 SMCR 455) and also the case of Khursheeda & others vs. Haji Qudrutullah & another (1988 CLC 1062).
There is no cavil to this proposition that her tenure is almost completed. There is no cavil to this proposition that the allegations of mega financial corruption are levelled. There is also no cavil to this proposition that Pakistan Medical Association enjoys a very high reputation. Allowing plaintiff at this stage to continue with her job, such as President of Pakistan Medical Association Sindh with such allegations (although not yet determined judicially) might be detrimental to the rights and interest of Pakistan Medical Association. Certainly and undoubtly the cause of association is much higher than the cause of an individual. In this matter, it is to be seen whether injuries or irreparable loss that may be caused to the association is important than the personal injuries of the plaintiff. I have no confusion in my mind that the cause of the association is at higher pedestal. In priority the interest and reputation of the association has to be safe guarded. At the same time this does not mean that the cause of an individual is to be ignored. What is meant by this observation, is that in priority cause of the association is to be kept at higher forum.
The plaintiff has prayed for a mandatory injunction. In my view the plaintiff has failed to establish prima facie case, balance of inconvenience is also not in her favour and no irreparable loss would be caused to her in case of refusal to grant mandatory injunction. Certainly when the plaintiff failed in an attempt to establish prima facie case, irreparable loss and balance of inconvenience which are essential to obtain restraining/injunctive order, then the plaintiff cannot succeed to obtain mandatory injunction on same strength. The case of Association is prime than the individual. The right of an individual is subservient to the mandate and command of Association and right of an individual has to yield to the demands and dictates of an institution. The mechanism and functioning of a body corporate or an association, such as the one I am dealing with, cannot be made subservient to the alleged rights of individuals, which rights are yet to be determined. Hence, keeping this principle in mind, I would observe that the grant of mandatory injunction at this stage and allowing the plaintiff to continue would not be in favour of the association which aims higher. It may also be pertinent to mention here that the decision on this application certainly would not determine the fate of entire case as the finding and observation here are only tentative hence I am of the view that the application under consideration has no merits and is accordingly dismissed.
Judge