ORDER SHEET
HIGH COURT OF SINDH, KARACHI
Suit No.845 of 2013
Date Order with signature of Judge
For hearing of C.M.A NO.7669/2013
M/s.Al-Meezan Hajj Group (Pvt.) Ltd…………………. Plaintiff
Versus
M/s.Pakistan Hajj Group
Organizer Committee
(PHGOC) & others………………............................. Defendants
Date of hearing: 28.08.2013
Mr.Muhammad Safdar, Advocate for the plaintiff.
M/s. Yawar Faruqi and Irfan Ahmed Memon, Advocates for the defendant No.1 & 2
Mr.Nafees Usmani, A.A.G.
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Muhammad Ali Mazhar, J: This order will dispose of injunction application filed by the plaintiff for restraining the defendants from holding or conducting the election of “Pakistan Hajj Group Organizer Committee”.
2. The brief facts of the case are that the plaintiff is engaged in the business of providing Hajj & Umra Tours and related services. The defendant No.1 is an association of Hajj & Umra Tour operators and a body registered with defendant No.3. According to constitution/byelaws of defendant No.1 elections are held after every two years. The plaintiff alleged some illegalities and irregularities in the election of defendant No.1, hence this suit has been filed for declaration and permanent injunction with the prayer that the appointment of election commission be declared illegal. The election schedule was issued in violation of byelaws of the defendant No.1. The defendants be restrained from holding or conducting any election. Along with the suit, an injunction application was also filed on which notice was issued to the defendants as well as AAG, meanwhile, it was ordered that the defendant Nos.1 to 3 may hold the elections, but the result of election shall not be announced till next date, which injunctive order is still in force.
3. The defendant Nos.1 and 2, filed their counter affidavit in which besides taking preliminary legal objections regarding the maintainability of suit, they denied all the allegations and contended that the election was announced by the chairman after consultation with the central executive committee, the general body meeting was called, which was attended by at least 127 registered members in which the executive committee nominated the election commission and assigned a task to them to hold elections on 30.6.2013. It was further alleged that neither there was any error or mistake in the voters list nor any defaulter member was allowed to cast the vote nor any single complaint was made by any member or candidate in this respect. It was further stated that the schedule of election was sent to all members through e-mail by the General Secretary and 33 registered members filed their nomination papers within the stipulated period of time. Despite knowledge, the plaintiff’s chief executive failed to file any nomination paper.
4. The learned counsel for the plaintiff argued that the election was conducted in violation of byelaws. He pointed out byelaw No.9, which provides that election for the executive committee shall be conducted under the supervision of election commission appointed on the advice of registered members in the meeting of council after every two years. It was further averred that the election commission was illegally constituted; even one of its members was not a registered member of defendant No.1. The elections were held without consent of the general body and the schedule of election was not circulated amongst the members. He also quoted byelaw No.10 in which it is stated that the election commission is bound to conduct the election within 30 days after the meeting of the general council and it was incumbent upon election commission to announce the date of election and circulate the schedule within seven days. It was further contended that the queries of various members of good standing towards the election process were not responded. The main cause of concern of the plaintiff’s C.E.O is that he was totally ignorant of the date of election and its schedule and when on 25.6.2013 the plaintiff’s representative visited the office of defendant No.1, it was found closed and it came into the knowledge that the elections are going to be held on 30.6.2013. The plaintiff’s counsel served a legal notice on 26.6.2013 but no response was given by the defendant Nos.1 and 2. It was further averred that the members of the defendant No.1 are entitled to have the notice of election to be published and it was the duty of executive committee to ensure the compliance. The election commission had also failed to circulate the voters list and the members of the association were not given an opportunity to clear their dues. Learned counsel pointed out to me the election schedule for the year 2013-15, which is attached at page-83 of the plaint and he further pointed out another schedule of election, which was subsequently issued which is available at page-87, in which though the date of election is same, but the time of issuance of election schedule, nomination paper and hearing of appeal was extended. However, it is an admitted fact that the plaintiff’s C.E.O. did not file any nomination paper for contesting the elections though the plaintiff has taken plea that it was not in their knowledge hence the nomination papers could not have been filed. Learned counsel also referred to few documents attached with the affidavit in rejoinder to show that some of the members are holding membership of another Hajj & Umra organization hence they are not entitled to contest the election in terms of byelaw No.9 of the defendant No.1. Learned counsel also pointed out few complaints filed by different persons/candidates in which they opposed the voter list and the list of candidates, but it is a fact that the plaintiff did not file any complaint or representation except a legal notice dated 29.6.2013, which was not accompanied by any postal or courier receipt or signature of acknowledgment.
5. The learned counsel argued that since the entire election process was initiated and completed without complying with necessary formalities, hence the entire election process was illegal and the election of the defendant No.1 is liable to be scrapped. In support of his arguments learned counsel referred to the case of Hyderabad Municipal Corporation v. M/s.Fateh Jeans Ltd., reported in 1991 MLD 284, in which it was held that it is not the requirement of Section 42 of the Specific Relief Act that declaration in respect of right to the property could be sought only if party seeking declaration is owner of the same. Learned judge of this court quoted AIR 1943 Madrass 497, in which the learned court held that the Section 42 of the Specific Relief Act does not require that the plaintiff should have a right in the suit property and that an agreement to sell in favour of a person gives him a right, as to, or in relation to the property, which is the subject matter of the agreement. So far as the injunction is concerned it was held that relief of injunction can be granted under Section 54 of the Specific Relief Act to prevent the breach of an obligation existing in favour of applicant, whether expressly or by implication. The case cited by the learned counsel for the plaintiff in my view has nothing to do with the controversy involved and the facts of the above case are distinguishable.
6. On the contrary, the learned counsel for the defendant Nos.1 and 2 vigorously refuted the first allegation that the persons nominated in the election commission are not members of the defendant No.1. Learned counsel argued that all such persons are members of defendant No.1 and they were lawfully appointed election commission. Learned counsel also invited my attention to the final list dated 29.6.2013 which shows 216 members. Learned counsel also invited my attention to notice of general body for 9.6.2013, which was convened at Gul-e-Bahar Hall, Alamgir Road, Karachi. He also attached attendance sheet of at least 127 members present in the meeting. He has also attached minutes of meeting available at page-121. Learned counsel argued that the nomination forms were sent to all members through e-mail and various members submitted their nomination forms. The plaintiff’s CEO never submitted any nomination form, hence at this stage he has no locus standi to challenge the election in which he never participated. The list attached at page-155 of the court file shows that 33 members submitted their nomination forms, copies of which are available at page No.159 to 223. At page-225 to 227 some photographs are attached to show the presence of various members on the day of election. The most important document is an e-mail dated 19.6.2013 which transpires that the nomination forms for the election were communicated to the members through e-mail and at page-137 the name of plaintiff is mentioned with its e-mail address. It was contended by the learned counsel that the nomination forms were timely transmitted to all members for submitting their nomination forms, but the plaintiff’s CEO chosen not to file the same and at this stage when the entire election process has been completed in a transparent manner, the plaintiff has filed the suit and obtained ad-interim orders on concealment and misrepresentation of facts and despite completion of election process, the result could not have been announced in view of the interim orders. The date of forthcoming Hajj is very close and the newly elected representative body of the defendant No.1 has to take care of various issues of their members with the Government agencies to espouse their cause and until and unless the election results are announced and charge is handed over to the newly elected body, their all registered members shall be seriously prejudiced and purpose of association and representative body of all Hajj and Umra Tours operators will become redundant.
7. Heard the arguments. While granting the injunction, court has to consider in each case not merely whether the plaintiff’s legal right has been infringed or even merely infringed but also whether under all circumstances of the case the plaintiff has to be granted injunction as a proper and appropriate remedy for such infringement. This discretion is required to be exercised in a judicial manner and only in the clear case and not in an arbitrary manner. The power of the courts to issue injunction should be exercised with great caution and only where the reason and necessity therefor clearly established. In the case in hand the plaintiff has alleged violation of byelaws while conducting election. The plaintiff has also objected and opposed the manner in which election commission was appointed. It was further alleged that the elections were held without the consent of the general body and the schedule for election was not circulated amongst the members. The plaintiff has also placed its case that it was totally ignorant about the date of election and schedule and when plaintiff’s C.E.O. visited the office of defendant No.1 on 25.6.2013, the office was found closed and the plaintiff was informed that the elections are going to be held on 30.6.2013. Before seeking the injunctive relief it is incumbent upon the plaintiff to show a prima facie right which has been infringed. On one hand the plaintiff claim’s to be an active member of the defendant No.1, while on the other hand it pleaded complete ignorance regarding the entire election process and the election. The plaintiff neither attended general body meeting nor submitted the nomination forms for contesting the election, so in this regard the plaintiff’s legal character or locus standi to challenge the election is itself questionable and not fair and square. The defendant No.1 with its counter affidavit attached various documents to demonstrate their bona fide that the entire election process was initiated and completed in transparent manner. Various nomination papers along with list of candidates are available on record to show that the members were acquainted with the date and the schedule of election. Nomination papers were communicated to all members through e-mail. The defendant No.1 attached an e-mail with the template of nomination form which shows that all members were communicated nomination form through e-mail. I have carefully examined the e-mail address of the plaintiff which is available at page-137 of the court file with its name which is similar to the e-mail address printed on the letter head of the plaintiff available at page-107 of the court’s file which is a board’s resolution.
8. In the rejoinder the plaintiff except a sweeping statement, failed to deny that no such e-mail was received, rather the plaintiff itself attached a copy of e-mail dated 19.6.2013, which was communicated by Syed Bakar Mehdi one of the members of the election commission to General Secretary of the defendant No.1 with the request to transmit/communicate the documents to all members and keeping in view the request, the General Secretary sent the documents to all members through e-mail including the plaintiff. In this document also the plaintiff’s e-mail address is same. Not only this, a notice of general body attached with the counter affidavit also shows the attendance with names and signatures of various members that the general body meeting was attended by large number of members.
9. So far as the allegation that two election schedules were issued, in this regard, I would like to observe that the schedules were almost same but in the second schedule, only time was extended for few items, which was in the larger interest of members and in no way detrimental or prejudicial to the interest of the plaintiff. Had it been curtailed to an extent diminishing the right of the members, the plaintiff would have a right to oppose that it was deprived from its right of franchise or to participate in the election which is not the case.
10. After considering the pros and cons, I am of the well-founded viewpoint that the plaintiff has failed to make out any case for the grant of interim relief. Election of defendant No.1 has already been conducted and due to interim order passed by this court only the results were withheld for the time being. It is well established that even if election is challenged, the elected representative should be allowed to perform their duties. The court has very low tendency in denying the rights of elected representatives from discharging their functions in a democratic manner. The conduct of the plaintiff was throughout reckless and negligent. The plaintiff has shown complete ignorance, while it is a matter of record that not only various members filled in their nomination papers for contesting the elections but few members other than plaintiff also filed their objections before the election commission. Even the plaintiff has not filed any objection within the stipulated period of time and the counsel for the plaintiff tried to strengthen his arguments on the basis of few complaints lodged by other members, who are neither the plaintiffs in the case nor the defendants.
11. Counsel for the plaintiff and defendant Nos.1 and 2 also candidly conceded to that except the plaintiff no other person has questioned the validity of election so in my view the plaintiff has no right and or justification to rely upon the objections if any, filed by the others members and it has no right to espouse the cause of others who are themselves opted not to initiate or commence any legal proceedings for questioning or opposing the election or its process. The next important question which cropped up in my mind that the successful candidates in the election are not party to this suit, hence without their presence in the case it would be grave injustice with them if any order is passed behind their back, which may adversely affect their rights and interest. At the same time it would also be grave hardship to a large number of members who have elected their representative by exercising their fundamental rights of franchise. The associations are formed to safeguard, protect and watch the interest of its members which is one of the fundamental rights envisaged under the Constitution of Pakistan. The cut & thrust leads me to a rational that the election has been conducted and the members have elected their representatives, if any interim orders are continued any longer, it would not only prejudice the rights of elected representatives but also of their members. It is also a matter of fact that the date of forthcoming Hajj is nearby and if the defendant No.1 is left with without any elected representative body there will be a chaos and nobody would be around to safeguard and protect the rights and interest of its members which will also affect public at large.
12. An injunction is an equitable remedy and he who seeks equity must do equity. Hence a party who asks for an injunction must be able to satisfy the court that his dealing of the matter had been fair, honest and free of any fraud or illegality and had not acted in an unfair or inequitable manner. An equitable remedy will not be granted unless an applicant praying for the relief is fair and honest. He who comes into equity must come with clean hands. At this point in time, I would like to stand for my own judgment authored in the case of “Sayyid Yousaf Husain Shirazi v. Pakistan Defence Officers Housing Authority & others” reported in 2010 MLD 1267 in which I quoted an excerpt from Jeremy’s Equity Jurisprudence which articulates that an injunction is a writ framed according to the circumstances of the case commanding an act which the court regards as essential to justice, or restraining an act which it esteems contrary to equity and good conscience. An injunction as is well known is an equitable remedy and accordingly is to conform to the well-known maxim of the law of Equity, that “he who seeks equity must do equity.” The law as contained in the Specific Relief Act is governed by the aforesaid principle, therefore, a plaintiff who asks for an injunction must be able to satisfy the court that his own acts and dealings in the matter have been fair, honest and free from any taint or illegality and that if in dealing with the person against whom he seeks the relief, he has acted in an unfair or un-equitable manner he cannot have this relief.
13. In the same judgment, I further quoted Pomeroy’s Equity Jurisprudence, which vents that equitable remedies are distinguish by their flexibility, their limitless varieties, their adaptability to the exigencies of case and the natural rules which govern their use. According to their essential nature they may be classified into (1) Declaratory remedies, are those whose main object is to declare, confirm and establish the right, title, property or estate of the suit or (plaintiff) whether it be equitable or legal, (2) Restorative remedies, are those by which the plaintiff is restored to the full enjoyment of the right, title, property or estate to which he is entitled, but which use and enjoyment have been hindered, interfered with, prevented or withheld by the wrong-doer. They are often granted in combination with other kinds of relief such as cancellation of instruments or remove a legal obstacle to the full enjoyment of plaintiff’s right and to render them efficient in restoring him to that enjoyment. The mandatory injunction belongs to this class of restoratory remedies. (3) Preventive remedies, are those by which the violation of a primary right is prevented before the apprehended injury is done, or by which further violation is prevented after the partial infliction of injury so that some other relief for the wrong actually done can be granted. The injunction whether final or preliminary belongs to this class. (4) Remedies of specific performance are those by which the party violating his primary duty is compelled to do the very acts which his duty and the plaintiff’s primary right required from him. (5) Remedies of reformation, correction or re-execution are those by means of which a written instrument, contract, deed or other muniments which for some reason or other does not conform to the actual rights and duties of the parties thereto, is, reformed, corrected or re-executed. (6) Remedies of rescission or cancellation are those by which an instrument, contract, deed, judgment and even sometimes a legal relation itself subsisting between the parties is, for some cause, set aside, avoided or annulled or rescinded. (7) Remedies of pecuniary compensation are those in which the relief consists in awarding a sum of money for the damage caused to the plaintiff. (8) The remedy of accounting is analogous to the remedy of compensation, and is generally used in connection with an auxiliary to some forms of it. It has to be a great extent become an equitable remedy though it partakes of the character of a legal remedy.
14. In the case of Union of India vs. Bakhshi Amrik Singh reported in AIR 1963 Punjab 104 at 107, the learned court held that it is not a violation of every legal right which justifies the grant of an injunctive remedy. A party seeking such a relief may be precluded by reason of his own conduct from resorting to this remedy. There must be, some equitable ground for interference by injunctions such as a necessity of preventing irreparable mischief or in cases when the injury apprehended is of a character as cannot be adequately compensated by damages or is one which must occasion constantly recurring grievance which necessitates a preventive remedy in order to put an end to repeated perpetration of wrongs. This power has to be exercised sparingly or cautiously and only after thoughtful deliberation and with a full conviction on the part of the Court of its urgency and necessity. In my another judgment reported in 2013 PLC (C.S) 768, (Ghulam Nabi Shah Vs. PIAC), I have discussed in detail the essential conditions to be considered by the court while granting temporary injunction, which includes prima facie existence of right of the plaintiff and its infringement by the defendant or the existence of prima facie case in favour of plaintiff, an irreparable loss, damages or injuries which may occur to the plaintiff if the injunction is not granted, inconvenience which the plaintiff will undergo from withholding the injunction will be comparatively greater than that which is likely to raise from granting it or in other words the balance of inconvenience should be in favour of the plaintiff. Relief of injunction is discretionary to be granted according to sound legal principles and ex debito justitiae. Existence of prima facie case is to be judged on the basis of material on record at the time of hearing of injunction application and such evidence should be of the nature that by considering the same, court ought to be of the view that the plaintiff applying for injunction was in all probability likely to succeed in the suit by having a decision in his favour.
15. In the wake of above discussion, I feel no hesitation to hold that the plaintiff has failed to make out any prima facie existence of right and its infringement by the defendants. The plaintiff has also failed to demonstrate any inconvenience with which the plaintiff will undergo from holding the injunction will be comparatively greater than which is likely to arise from granting it. There is no question of irreparable loss, damage or injuries which may occur to the plaintiff if the injunction is not granted. Consequently, the injunction application is dismissed.
Karachi: Judge
Dated.9.9.2013