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Petitioner: JAHANGIR MOGHUL and 5 others VS Respondent: KARACHI GYMKHANA through Secretary
Court Name: Sindh High Court Judge(s): Munib Akhtar Title: JAHANGIR MOGHUL and 5 others vs KARACHI GYMKHANA through Secretary Case No.: Suit No,1357 and C.M.A. No,11244 of 2011 Date of Judgment:2011-12-26 Reported As: 2012 CLC 1829 Result: Application allowed
Judgment ORDER ' MUNIB AKHTAR, J.--- The plaintiffs are all permanent members of the defendant, the Karachi Gymkhana, which is one of the best known clubs and social institutions of the city. The plaintiff No,1 is also a member of the defendant's Managing Committee. The grievance of the plaintiffs, which has led to the filing of the present suit, stems from a decision taken by the Managing Committee at its meeting held on 11-11-2011 at which it was decided to increase the number of permanent members by about 300 (hereinafter referred to as the "impugned decision"). According to the plaintiffs, the impugned decision is contrary to the rules of the defendant ("the Rules") for the grounds detailed below. Permanent members are the only class of members who are entitled to be elected to the Managing Committee, and to vote at its elections and participate in general body meetings of the defendant. A permanent member is entitled to immediately exercise all rights and privileges attendant upon such membership. The Managing Committee, comprising of a President and eleven members, is elected on an annual basis and it appears that the next elections are due on or about 8-1-2012. Thus, if the 300 additional permanent members are inducted before that date, they will be entitled to participate in the forthcoming elections. 2. The agenda that had been circulated for the Managing Committee's meeting of 11-11-2011 had not, as such, included consideration of an increase in the permanent members as a specific item of business. However, at the meeting, this matter was taken up under cover of the "any other business" agenda item. As recorded in the minutes of the meeting, the President apprised the Committee that the total membership of the defendant stood at 9620. Rule 3(a) provides that the number of permanent members shall not be more than one-half of the total membership of the defendant. The minutes noted certain details regarding the induction of permanent members in
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previous years. It was also recorded that the plaintiff No,1 (who had attended the meeting) opposed any increase in the permanent members, as did some other (unnamed) members from whom a letter had been received in this regard. The minutes then recorded as follows:--- "The president informed the Managing Committee that the limit of total number stated under clause for lady membership Rule 5 restricts the total membership to 6000 members, including permanent, temporary and outstation members, whose stay abroad is less than 3 months and the Lady, Associate and Household members are not included in this ceiling. He said this ceiling had already been crossed over past about 14 years and temporary members are being inducted by the Managing Committees. The disparity for the Computation of total membership can be addressed by the Rule 1 which authorizes the Managing Committee for the same. He also said that temporary membership for outsiders is closed, but the sons and daughters of. Members are being regularly inducted as temporary and lady members. Therefore, raising the temporary members beyond the stipulated membership of 6000 members their parents who are mostly permanent members also contesting for their sons' permanent membership. ' In the light of aforesaid, he said 50 % of total membership of the club should be maintained and requested the members of the Managing Committee to give at least five names of temporary Members for making them permanent members each. ' The Managing Committee agreed to make permanent members upto 300 temporary members." (emphasis in original) ' It is the foregoing decision that is impugned by the plaintiffs and against which they seek interim injunctive relief by means of the present application. 3. Learned counsel for the plaintiffs contended that the impugned decision was unlawful since it was clearly contrary to the Rules. He referred to Rules 4(a) and 5 (and particularly the latter) to contend that on a true reading thereof, the total membership of the defendant was fixed at 6000 members. One half of that came to 3000, and since the admitted position was that the defendant already had 4036 permanent members, the limit on permanent members being not more than one-half of the total membership had already been exceeded. In such circumstances, it was unlawful for the defendant to induct any more permanent members. This submission, and reading of the Rules, formed the crux of his case. Learned counsel submitted that the previous Managing Committee, at a meeting held on 15-12-2010, had in fact considered increasing the number of permanent members, but had in the end refrained from doing so for precisely this reason. Learned counsel submitted that the total membership of the defendant was not 9620 as contended nor anywhere near that figure. He referred to the relevant extracts from the audited accounts of the defendant for the past ten years or so to show that the number of members had fluctuated around 6000, being somewhat in excess of that number in all of those years. He clarified that this was because of Rule 4(b), which provided that Rule 4(a) did not apply in the case of membership of the sons and daughters of certain specified classes of members, including permanent members, etc. His case was that it had never, before the Managing Committee's meeting of 11-11-2011, been contended that the defendant's total membership was anywhere near the figure now being put forward. 4. Learned counsel further submitted that in fact it had earlier been accepted even by the present .Managing Committee itself that the defendant could only have a maximum of 6000 members. In this regard, he referred to the agenda that had been circulated for the Half Yearly General Body Meeting of the defendant, to be held on 14-7-2011. The notice for the meeting noted that the Managing Committee had put forward certain proposals for amendment of the Rules, which related to changes in Rules 3(a), 4(a) and 5. It was proposed that the limit on the maximum number of permanent members be increased to two-thirds from one-half. It was also proposed to bifurcate the existing Rule 5 into two separate rules, one of which would be a new Rule 5A, which
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would provide that the defendant would have a total membership of 10,000 members. A concomitant change was also proposed for Rule 4(a): Learned counsel submitted that these proposals conclusively established that the accepted position was that the total membership of the defendant was 6000 and the proposed changes sought to regularize the breaches of this limit that had occurred over the years. It appears that the necessary quorum was not present when the Half Yearly General Meeting was called, and the proposals were effectively abandoned. But, he contended, the plaintiffs' position was vindicated by the very fact that the Rules were sought to be amended as aforesaid. Learned counsel also took strong exception to the manner in which the Managing Committee, in the impugned decision, had decided that each member of the Committee would "give" the names of 5 temporary members to be inducted as permanent members. He submitted that this parceling out of the total proposed increase of 300 among the Managing Committee clearly showed that the proposal was mala fide and intended only to create a block of voters who would be beholden to the outgoing Committee and vote in favour of their preferred candidates at the forthcoming election. He submitted that a clear case for interim injunctive relief had been made out, and prayed that the application be allowed. 5. Learned counsel for the defendant opposed the grant of any interim relief. He based his case squarely on Rul3 1, and contended that that rule provided for four different classes of members, i,e, permanent, temporary, honorary and lady members. The rule empowered the Managing Committee to fix the number of each class of members. Learned counsel submitted that the "total membership" (a term not defined in the Rules) of the defendant was simply the sum total of these four classes. Although in the written statement the defendant has taken the position that by virtue of Rule 1, the total membership is unlimited, during the hearing, learned counsel accepted that there were at least three limits that did apply. Firstly, the total number of temporary members could not exceed 6000 (leaving aside for the moment the case of those persons who were eligible under Rule 4(b)). He submitted that on the true interpretation of Rule 4(h), this number (which expressly appeared therein) only applied to temporary members. Secondly, Rule 5, which likewise referred to 6000 members, was on its correct interpretation confined to lady members. In other words, these two classes of members were limited to 6000 members each. Thirdly, while Rule 3(a) did limit the number of permanent members to one-half of the total membership, learned counsel submitted that consistently with Rule 1, that meant (and could only mean) one-half of the total number of all four classes of members referred to in the latter Rule. He submitted that within these parameters, the powers of the Managing Committee under Rule 1 were plenary. As noted above, the defendant's case is that its records reflect that there are at present 4036 permanent members. Learned counsel submitted that the number of temporary members stood at 2457, while there were 2923 lady members. Thus, the number of temporary and lady members was well within the maximum stipulated in the Rules for each of these classes. The total membership came to 9416, one-half of which was 4708. Thus, 672 more permanent members could be inducted. On this basis, learned counsel contended, the Managing Committee's decision to increase the number by 300 was well within its powers and perfectly proper and lawful. 6. Learned counsel further submitted, in the context of how properly to interpret the Rules, that the Rules were amended, substituted, etc. At a General Body Meeting. The practice was for the changes to be proposed and considered at such a meeting and if any particular change was acceptable, for the members to approve of it in general terms without necessarily considering the exact language to be adopted. The actual drafting of the change was left to administrative officers and it was their efforts that were reflected in the written text. He submitted that sometimes typographical or other errors crept in so that the amended Rule(s) did not accurately reflect the sense of what had been approved at the General Body Meeting. He contended that in such a situation, it was imperative that the Rule under consideration be read along with the minutes of the relevant
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General Body Meeting since it was only in this manner that the true Rule (or its correct meaning) would emerge. Learned counsel submitted that the case of Rules 4(a) and 5 was precisely of this nature. He relied strongly on the minutes of the Half Yearly General Body Meeting held on 6-7-1989 ("1989 Meeting"), where these Rules were considered. He submitted that a consideration of the minutes clearly showed that what the General Body had intended was for the limits contained in the said Rules (of 6000 members) were to apply only to temporary and lady members respectively and not the total membership of the defendant. He contended that it was only typographical and other such errors that had (if at all, which was denied) rendered these Rules susceptible to the meaning sought to be ascribed thereto by the plaintiffs. He emphasized that the true meaning of the Rules could only be understood in the light of the minutes of the 1989 Meeting. As regards the numbers regarding the membership given in the annual accounts, learned counsel submitted that the figures were collated by administrative officers and were accepted as such by successive Managing Committees and General Body Meetings without proper application of mind. The numbers, as given in the accounts, were clearly inconsistent with what the Rules provided, and his case was that it was the latter that prevailed, and not any wrong application of the same by the defendant's officers. In the alternative, he contended that even if the total membership was limited to 6000 on a true interpretation of the Rules, that number had admittedly been breached for a number of years; and that this had become the settled practice of the defendant. On such basis, the limit could not be regarded as mandatory. Finally, learned counsel contended that the jurisdiction of the courts to interfere in the functioning and internal affairs of clubs was sharply limited and confined only to a few specific matters, such as disciplinary action and suchlike actions. The present case did not fall within this limited category, and. Therefore this Court had no jurisdiction to examine the impugned decision of the Managing Committee. In this context, he also relied on Rule 13(d). He prayed that the application be dismissed. 7. I have heard learned counsel as above, and examined the record with their assistance. The first matter that requires attention is the scope and extent of the Court's jurisdiction. Both learned counsel referred to D.M. Malik Jockey Club of Pakistan and others PLD 1960 Karachi 325, where it was observed by a learned Single Judge as follows:--- "Before considering the points raised before me it will be observed that it is well-settled law that Courts generally refuse to interfere in the decision of a club on disciplinary matters if given without any irregularity in procedure unless it is proved either that the rules were opposed to natural justice or that they were not properly followed or that there was malice or mala fides in arriving at the decision or that principles of natural justice were not being followed. Thus, the jurisdiction of the Court in such cases is limited within a very narrow compass and if the Managing Committee of a Club or an association has acted bona fide and honestly, followed the principles of natural justice and has reasonably construed its rules in their application to the aggrieved party, the Civil Courts have no jurisdiction to interfere in a matter where disciplinary action is taken against its members." (pg. 327) ' Learned counsel for the plaintiffs contended that his case came within the exception noted by the learned Single Judge since the impugned decision was clearly male fide in law and in fact. Learned counsel for the defendant on the other hand submitted that since the decision was well within the powers, of the Managing Committee, the matter fell outside the scope carved out by the Court as above. In my view, this decision has no application to the facts and circumstances of the present case. It is to be noted that the passage cited, and the judgment as a whole, is concerned essentially with disciplinary matters. However, the present case turns primarily and essentially on a determination of the true meaning and interpretation of the relevant provisions of the Rules,. The Rules of course comprise a written text, which seeks to establish and regulate the affairs of the defendant and its members. It is well-established that determining the true meaning and
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interpretation of a written text or document such as the Rules is a question of law, which ultimately falls within the jurisdiction of the courts. Such jurisdiction cannot be denied, since the courts are the ultimate arbiters of all questions of law. Learned counsel for the defendant referred to Rule 13(d), which provides as follows:--- "The Managing Committee shall be the authority to decide any question relating to the application or interpretation of the rules and the bye-laws made thereunder only when there is any doubt or ambiguity, but, not otherwise." ' Learned counsel contended that if at all the plaintiffs had any doubt regarding the correct interpretation of the Rules, they ought to have referred the matter to the Managing Committee. In my view, this contention is misconceived. Firstly, as I have said, the jurisdiction of the courts cannot be ousted in relation to authoritatively pronouncing upon the legal meaning and interpretation of a document such as the Rules. Secondly, since the grievance of the plaintiffs is precisely that the Managing Committee has (according to them) wrongly interpreted the Rules, it would hardly be proper to require them to approach the Committee itself in this regard. 8. In my view, the law on the point has been correctly stated in Baker v. Jones and others [1954] 2 All' ER 553. The (English) High Court was there considering the rules of the British Amateur Weightlifters' Association ("B.A.W.L.A."), an unincorporated body like the defendant. The association was governed by a central council, whose powers included the power to be the "sole interpreter" of the rules of the association. This power was further bolstered by the rules providing that the decisions of the central council "in all cases, and under all circumstances, shall be final". It will be seen that the position of the central council, in the context presently relevant, was stronger than that of the Managing Committee under Rule 13(d). Nonetheless, the High Court held as follows:--- "B.A.W.L.A. Is an unincorporated association. It has no legal entity. The relationship between its members is contractual. That contract is contained in, or to be implied from, the rules. The courts must consider such a contract as they would consider any other contract. Although parties to a contract may, in general, make any contract they like, there are certain limitations imposed by public policy, and one of those limitations may be that parties cannot, by contract, oust the ordinary courts from their jurisdiction.... The parties can of course, make a tribunal council-die final ,arbiter on questions of fact. They can leave questions of law to the decision of a tribunal, but they cannot make it the final arbiter on questions of law. They cannot prevent its decisions being examined by the courts. As DENNING, L.J., says in Lee v. Showmen's Guild of Great Britain (2) ([1952] 1 All E.R.1181): "If parties should seek, by agreement, to take the law out of the hands of the courts and into the hands of a private tribunal, without any recourse at all to the courts in case of error of law, then the agreement is to that extent contrary to public policy and void". ' With this statement of the law I respectfully agree. The interpretation of the rules is a question of law which the courts will examine. In my view, therefore, the provisions in the B.A.W.L.A rules, making the central council the sole interpreter of the rules and their decision in all cases final, is contrary to public policy and void." (pp. 558-9) I fully agree. In my view the present matter falls well within the jurisdiction of this Court since it calls for an authoritative interpretation) of, and pronouncement upon, of the Rules of the defendant. 9. As noted above, Rule 1 lies at the heart of the case put forward by learned counsel for the defendant. This Rule provides as follows:--- "The Gymkhana shall consist of such number of Permanent, Temporary, Honorary and Lady Members as may from time to time be fixed by the. Committee." ' Learned counsel located the power of the Managing Committee to increase the number of permanent members in this Rule.. In my view that is not quite correct. Rule 1 is certainly a central and crucial provision, and it does empower the Managing Committee. However, it is important for a
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reason rather different from that canvassed by learned counsel . The true interpretation of Rule I is that it imposes a duty on the Managing Committee to "fix", i,e,, determine the number of each of the four classes of members. It is crucial to appreciate that this duty, which in my view is mandatory, is distinct and different from whether the Rules themselves impose- any maximum limits on the number of members. Thus, regardless of whether the Rules provide for the maximum number of the total membership of the defendant (as contended by learned counsel for the plaintiffs) or only for the maximum number of temporary and lady members (as contended by learned counsel for the defendant), the Managing Committee must perform its duty under Rule 1. This means that at any given time (and indeed, at all times) there must always be a specific number of members fixed for each class by the Managing Committee pursuant to Rule 1. From this, it necessarily follows that the additional members that may be inducted at any given time in any class would depend both on the number fixed for that class under Rule 1, and the number of members actually in the class at that time. The number of additional members that may be inducted at any given time cannot exceed the difference between these two numbers. 10. The point can perhaps be explained by taking a hypothetical example. Assume for the moment that Rule 5 only gives (as contended by learned counsel for the defendant) the maximum number of lady members, which is set at 6000. (This point will of course be taken up and decided subsequently). This does not absolve the Managing Committee of its duty under Rule 1 to "fix" the number of lady members. For the reasons just stated, the maximum number of lady members, as set by Rule 5, and the number of lady members required to be "fixed" by the Managing Committee under Rule 1 are two separate and distinct matters. Suppose further that the defendant actually has, say, 2500 lady members. This does not mean that the Managing Committee may proceed to induct as many lady members as it may deem appropriate (up to a maximum of 3500). The members can only be increased up to the number fixed by the Managing Committee pursuant to Rule 1. If (say) the Managing. Committee has fixed the number of lady members at 3200, then the number of such members can only be increased by 700. Of course, the Managing Committee may from time to time change the number fixed by it pursuant to Rule 1 (up to the maximum limit of 6000 on the assumption presently made). But, and this is the crucial point, at any given time there must always be a number so fixed by the Committee, and the number of lady members cannot go beyond the number so fixed. 11. At the hearing, Mr'. Ali A. Rahim, the present President of the defendant was in attendance, and I asked him (since the record before me was silent on this point) whether the Managing Committee had fixed the number for each class of members as required in terms of Rule 1. I appreciate that Mr. Ali Rahim responded to my query without hesitation and in a forthright manner. He stated that as far as he was aware, the number had not been so fixed, and certainly the present Managing Committee had not done so. It will be recalled that the maximum number of permanent members is fixed at one-half of the total membership of the defendant in terms of Rule 3(a). Again, I defer for the moment consideration of the question as to what exactly is meant by this. What is important for present purposes is that for the reasons given in Para 9, there must in any case be a specific number fixed for permanent members by the Managing Committee pursuant to Rule 1. Since this has not been done, in my view, it is not permissible for the Committee to increase the number of permanent members, even if such increase would not go beyond one-half of the total membership of the defendant. On this basis therefore, the impugned decision taken by the Managing Committee to increase the number of permanent members by 300 must be regarded as being contrary to the Rules. 12. I appreciate that if I am correct in the view that has been taken of Rule 1, and the. Managing Committee has not (at least in the recent past) fixed the number of members for the different classes pursuant to Rule 1, that has certain implications for persons who have been, inducted as
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members of the defendant (in whatever class) from time to time. Those persons have obviously acquired certain rights vis-a-vis the defendant (and other members). I would clarify that nothing said herein is intended to affect the position of such persons. However, now that Rule 1 his been examined by a court of law, and its correct interpretation determined, any further or future inductions in any class of members would be impermissible until and unless the Managing Committee first fulfils (and continues, from time to time, to fulfil) its mandatory duty under Rule 1. I would also expect (although I do not impose it as a condition per se) that each time the Managing Committee seeks to fix (or re-fix, as the case may be) the number…
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