Judgment : TALUKDAR, J. (1.) Rationality in Homo sapiens makes them social. And, man is a social animal. Desires in the sub-conscious mind find conscious manifestation in formation of Associations. A Club is essentially an association of individuals. In order to have relaxation, refreshment and recreation, such individuals with the common idea and sometimes, motive form such associations, known as clubs. (2.) Clubs are of many varieties; there are Registered Clubs and Proprietary Clubs, Works Social Clubs, Working Mens Clubs, College Clubs, Church Clubs, Political Clubs and others. (3.) Generally speaking, such clubs are controlled and run by certain sets of rules of conduct as voluntarily invented by its members. To ensure smooth and proper functioning, every club forms its own Constitution which is, thus, collection of rules and agreements governing day to day existence. Such Constitution generally contains appropriate Rules governing Membership, Meetings, Voting Rights and so on and so forth. (4.) There are clubs in which the management of the affairs of the club is in the hands of the members themselves. Those are generally called "Members Clubs". There the joining together may create rights and liabilities between one member and another. Such rights and liabilities are based primarily on the law of contract. Borrowing words from Dalys Club Law. (Seventh Edition, by J. N. Martin) it can be said that "Rights and liabilities affecting the relationships and behaviour of club members inter se, so far as they depend on contract, appear generally speaking to be inseparable from joint rights to the enjoyment of property, and to arise immediately a jointly owned fund is established by the payment of subscriptions or when a new member adds his contribution to that fund. The subscription of each member to this joint fund is the consideration in a contract made with all the other members. In return for the consideration the member becomes entitled to whatever rights are agreed upon at the time the contract is entered into." (5.) In case of formation of a Members Club, the usual procedure is to hold a meeting at which a resofution will be passed embodying the decision to bring the club into being. In return for the consideration the member becomes entitled to whatever rights are agreed upon at the time the contract is entered into." (5.) In case of formation of a Members Club, the usual procedure is to hold a meeting at which a resofution will be passed embodying the decision to bring the club into being. Once again, borrowing from Dalys Club Law, from such resolution will arise the necessity to deal with certain subsidiary matters which originally fall into four main categories-the scope of the activities of the club, arrangements for its day-to-day running, eligibility for membership and rights, duties and liabilities of members. The rules generally must provide for the Constitution of a committee of management and the election of officers for the day-to-day running of the club. (6.) A member may have a remedy against deprivation of his enjoyment of the privileges of membership but it depends upon some right of property vested in him. The right need not be a beneficial right in real property or goods but may be a right in contract. It is generally accepted that if the rules give the committee an absolute discretion the Courts will not interfere in the absence of evidence that the decision of the committee is unjust or dishonest. But if the committee has no such power under the rules, the aggrieved member will certainly be able to seek legal redress. (7.) In the present case, we are concerned about Mohun Bagan Athletic Club. Its object as per the rules is to promote and develop Sports and Games. Mohun Bagan Club came into existence since long before the independence of India. In fact, such a club is emotionally attached and associated to millions in the country and abroad. It is a leading club in India having rich heritage. With a few other clubs, like East Bengal Club, Mohammedan Sporting Club, it carries with itself sentiment of millions of its supporters. (8.) The rules were adopted in the Special General Meeting dated May 6, 1979, Rule 23 deals with Powers and Duties of the General Secretary. The General Secretary is the Chief Executive Officer of the Club and by virtue of sub-rule (xiii) of Rule 23, the General Secretary has the power to "deal with cases of ungentlemanly or unsportsman like conduct of any Members within the Club enclosure summarily. The General Secretary is the Chief Executive Officer of the Club and by virtue of sub-rule (xiii) of Rule 23, the General Secretary has the power to "deal with cases of ungentlemanly or unsportsman like conduct of any Members within the Club enclosure summarily. This power is not capable of delegation." (9.) The appellants/plaintiffs are Members of the Mohun Bagan Athletic Club. The Respondent No. 2 is its Honorary General Secretary. On 12th September, 2004 at the invitation of Me. Dwell and Company and Selvel, a friendly football match was organized by Me. Dwell and Co. Limited between United Mohun Bagan XI and Combined Selvel-C.C.F.C. Invitation XI. It was played on Sunday, 12.11.04 at the C.C.F.C. ground on Syed Amir Ali Avenue. The appellants as invitees of the Sponsors attended the invitation and after completion of the match left the ground. Shortly after, appellant No. 1 received a telephone call in his cell phone and was informed that some outsiders had assembled in the place and started abusing some officials of the Mohun Bagan Club in filthy languages for the poor performance of the Club in the league matches. The appellants rushed to the spot and tried to cool down the intruders. Over such incident F.I.R. was lodged by the Mc. Dwell and Co. Limited and the appellants were unnecessarily implicated in the incident. The appellants were, however, let out on bail. (10.) On 14th September, 2004, the appellants/plaintiffs received a letter issued by Respondent No. 2 by speed post dated 13.09.2004 whereby the said Respondent No. 2 terminated the membership of the appellants No meeting was called or conducted in connection with the said incident and the letter terminating the membership is illegal, mala fide, arbitrary and in contravention of the Rules. Appellants subsequently came to know that a meeting was, however, held on 14.09.2004 to discuss the incident which occurred at C.C.F.C. ground on 12.09.2004. But, even prior to holding of the said meeting, the membership of the appellants was terminated by such arbitrary and illegal letter of the Secretary being Respondent No. 2. The appellants on receipt of the said letter submitted representation on 20.09.2004 which was duly received by the Respondent No. 1. in spite of receipt of the said letter no action had been taken by the respondents/club authorities. The appellants on receipt of the said letter submitted representation on 20.09.2004 which was duly received by the Respondent No. 1. in spite of receipt of the said letter no action had been taken by the respondents/club authorities. (11.) In the circumstances, the appellants were left with no option but to file a suit before the learned City Civil Court, Calcutta. In the said suit for declaration and permanent injunction an application was filed praying for interim order. Prayer was made for temporary injunction restraining the respondent/O.P. s and their men, agents and associates from giving effect to the said letter of termination dated 13.09.2004 as well as for other reliefs. (12.) Learned Trial Court after due consideration of all relevant facts and materials by the impugned judgment dismissed the said application under Order 39 Rules 1 and 2 read with Section 151 of the Civil Procedure Code. (13.) Being aggrieved by and dissatisfied with the said order dated 11th February, 2005, the appellants filed the instant appeal An application had also been filed in the said appeal praying for injunction. (14.) By consent of the parties and for the sake of convenience as well as for ends of justice both appeal and the application had been heard together. Both of them have now been taken up for consideration and judgment. (15.) At the time of hearing learned Counsel Mr. Ashok Banerjee appearing for the appellant submitted that the learned Trial Court failed to appreciate the matter in its proper perspective. Main thrust of his argument was that the Secretary of the club did not have any authority to issue such a letter of termination and his own doubt in this regard was reflected in his hurriedly calling for an emergency meeting of the Executive Committee. He drew attention of the Court to the fact that the Members of the Executive Committee who assembled to decide the fate of the appellants were also not properly elected/selected, nor had they any legally acceptable status. According to him, such a Committee could not have had any authority either to put the seal of approval on the decision of the Secretary or to terminate the Membership of the appellants. According to him, such a Committee could not have had any authority either to put the seal of approval on the decision of the Secretary or to terminate the Membership of the appellants. (16.) After careful consideration of the resolution adopted by the said Executive Committee, it does not appear that such Committee, in fact, attempted to inject any legal authority in the Secretarys decision or approve the same thereby legalising a decision which was allegedly otherwise not so. In fact, Committee merely lent its support to the Secretary in his decision to terminate the Membership of the appellants. (17.) Now, the question arises whether the Secretary was authorised to take such a drastic and extreme step. (18.) Rule 23(i) of the Club Rules lays down that the General Secretary shall, subject to the general control and direction of the Executive Committee, be the Chief Executive Officer of the Club. (19.) Rule 23(xiii) gives the General Secretary the power to "deal with cases of ungentlemanly or unsportman like conduct of any Member within the Club enclosure summarily." It is specifically mentioned that "this power is not capable of delegation." (20.) Proper appreciation of such power of the Secretary can only be made if the said rule is read in the context of Rule 43 which deals with "disciplinary action." It appears, this has been left to the Executive Committee. (21.) In the present case, the action under challenge i.e., termination of Membership was not taken by the Executive Committee. It was so done by the Secretary. (22.) Naturally, such decision of the Secretary is required to be tested in the context of Rule 23(xiii). (23.) Much was submitted by learned Senior Counsel, Mr. Ashok Banerjee, appearing for the appellant and Mr. Sibdas Banerjee, learned Senior Counsel, appearing for the respondents in regard to what is actually meant by the word "Club enclosure". The word used being enclosure and not merely "Club premises", there can be no doubt that wider meaning should be given. (24.) Mr. Sibdas Banerjee relying upon the decision of the Privy Council in the case of Lennox Arthur Patrick OReilly and Ors. v. Cyril Cuthbert Gittens, reported in AIR (36) 1949 Privy Council 313, submitted that Court cannot intervene if Tribunal acts honestly and in good faith even if penalty is severe. (25.) Mr. (24.) Mr. Sibdas Banerjee relying upon the decision of the Privy Council in the case of Lennox Arthur Patrick OReilly and Ors. v. Cyril Cuthbert Gittens, reported in AIR (36) 1949 Privy Council 313, submitted that Court cannot intervene if Tribunal acts honestly and in good faith even if penalty is severe. (25.) Mr. Banerjee contended that the entire controversy should be better left for the club authority to decide and this Court has hardly any justification to intervene. Mr. Banerjee emphatically submitted that the facts and circumstances of the case do not justify any interference and this Court is to take the approach that "let the club take care of itself." (26.) It may be a pleasure to reproduce certain observations made by the Privy Council in the said judgment which are as follows :-"A domestic tribunal is in general a tribunal composed of laymen. It has no power to administer an oath and, a circumstance which is perhaps of greater importance, no party has the power to compel the attendance of witnesses. It is not bound by the rules of evidence; itis indeed probably ignorant of them. It may act, and it sometimes must act, on mere hearsay, and in many cases the members present or some of them (like an English jury in ancient days) are themselves both the witnesses and the Judges. Before such a tribunal counsel have no right of audience and there are no effective means for testing by cross-examination the truth of the statements that may be made. The members of the tribunal may have been discussing the matter for weeks with persons not present at the hearing, and there is no one even to warn them of the danger of acting on preconceived views." (27.) Mr. Banerjee while referring to the said observations submitted that it is not for this Court to analyse the justification for terminating the membership of the present appellants and that is a matter to be left to the club to decide. He further submitted that a detailed analysis or scrutiny of the facts and materials is not called for at this stage as now we are in the midst of hearing an appeal against an order of refusal to grant injunction. Mr. He further submitted that a detailed analysis or scrutiny of the facts and materials is not called for at this stage as now we are in the midst of hearing an appeal against an order of refusal to grant injunction. Mr. Banerjee further contended that the appellants themselves sought for damages and in his view, when money is an adequate remedy, there should be no order of injunction. In this context he further referred to the principles for granting an order of injunction. (28.) While discussing about the club and its function, Mr. Banerjee invited attention of the Court to Halsburys Laws of England, Volume 6, para 251. (29.) No doubt, while dealing with an application fortemporary injunction the Court is required to take into consideration three aspects namely, i)prima facie case; ii) irreparable injury and iii) balance of convenience and inconvenience. (30.) Taking into consideration the sine qua non for granting an order of injunction and applying the principles to the facts and materials of the present case, this Court is of the view that the right of the appellants which had been sought to be infringed cannot be sacrificed on the plea that the appellants can be compensated with money. In our view there is a prima facie case in favour of the petitioners/appellants and their right to participate in the electoral process cannot be sacrificed. It is significant to mention that learned Counsel Mr. Ashok Banerjee submitted at the time of hearing that the appellants are not inclined to contest election for office bearers for the Mohun Bagan Athletic Club this year. Appellants seem to be eager to take part in the electoral process and cast their votes, which, in our view, cannot be curtailed in the manner as was sought to be done. The Court cannot afford to be a passive onlooker to any attempt to cause injustice. (31.) Mr. Ashok Banerjee, learned Counsel appearing for the appellant relying upon the decision in the case of Mr. Charles Mantosh and Ors. v. Mr. Dalhousie Institute and Ors. reported AIR 1993 Calcutta 232, contended that terminating membership without even given an opportunity of hearing is not permissible. He emphatically mentioned that Member has prima facie case for grant of temporary injunction restraining authority of club from giving effect to its decision to remove. Charles Mantosh and Ors. v. Mr. Dalhousie Institute and Ors. reported AIR 1993 Calcutta 232, contended that terminating membership without even given an opportunity of hearing is not permissible. He emphatically mentioned that Member has prima facie case for grant of temporary injunction restraining authority of club from giving effect to its decision to remove. In this context reference made to the decision as reported in AIR 1963 SC 1144 and it was contended on behalf of the respondents that expulsion of a member no doubt demands strict compliance of the rules and it is to be done in good faith and in fairness. Having regard to the fact that in such a situation prosecutor himself is the Judge, there is need for absolute honesty and fairness. The action taken by the authority must clearly reflect that justice has been done. (32.) Be that as it may, the aforesaid discussion leads us to hold that there could be hardly any rational justification for the Secretary of the club to take such an extreme step of terminating the membership over alleged misconduct of the members in a venue which is certainly not within the club enclosure. It is also necessary to bear in mind that having regard to the absolute power vested in the Secretary; there should be no compromise in strict compliance of the rules. (33.) Considering all these facts and circumstances and having regard to the aforesaid discussion, we are inclined to allow the application for injunction. The respondents/O.P.s are hereby restrained from giving effect and/or further effect to the letter dated 13.09.2004 terminating the membership of the appellants and/or from giving effect and/or from giving further effect to any resolution adopted in the meeting held on 14.09.2004. They are directed not to restrain the appellants/petitioners from participating and/or representing themselves for the affairs of the Club. There is no order as to costs. The appeal being F.M.A. No. 728 of 2005 and the application being C.A.N. No. 3018 of 2005 stand accordingly disposed of. (34.) Learned trial Court is directed to proceed with the hearing of the case as expeditiously as possible. It is once again mentioned that any observation made by this Court in connection with disposal of the application and the appeal will not be binding upon the learned trial Court in deciding the suit. (34.) Learned trial Court is directed to proceed with the hearing of the case as expeditiously as possible. It is once again mentioned that any observation made by this Court in connection with disposal of the application and the appeal will not be binding upon the learned trial Court in deciding the suit. Let xerox certified copy of this order, if applied for, be given to the learned Advocates for both the parties expeditiously.