Madras High Court
The Uttar Pradesh Cricket Association vs The Board For Control Of Cricket In India on 31 October, 2011
Bench: R.Banumathi, R.Mala
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 31.10.2011
CORAM :
THE HONOURABLE Mrs.JUSTICE R.BANUMATHI
and
THE HONOURABLE Ms.JUSTICE R.MALA
O.S.A.NOS.221 TO 223 OF 2007
The Uttar Pradesh Cricket Association
rep.by its Honorary Secretary
Shri Gyanendar Singh
having its Registered Office at
616, Kasmanda Apartments
Lucknow, Uttar Pradesh. ... Appellant
Vs.
1. The Board for Control of Cricket in India
rep.by its Honorary Secretary
Shri.Nirajan Shah
having its Registered Office at
No.5, Victoria Hostel Road
Chepauk, Chennai 600 005.
2. Uttar Pradesh Cricket Association,
a Company incorporated under the
Companies Act, 1956,
rep.by its President
Shri Rajiv Shukla
Having its Registered Office
at Kamala Towers
Kanpur, Uttar Pradesh. .... Respondents
In the name of the appellant, as per
Order dated 21.8.2007 made in
M.P.Nos.1 of 2007, cause title is
accepted as "Honorary Secretary"
from "Honorary Treasurer".
Prayer: Original Side Appeal in O.S.A.No.221 of 2007 is filed under Clause 15 of Letters Patent read with Order XXXVI Rule 1 of O.S.Rules and Clause 15 of the Letters Patent against the Order dated 5.6.2007 made in C.S.No.590 of 2006.
Original Side Appeal in O.S.A.No.222 of 2007 is filed under Clause 15 of Letters Patent read with Order XXXVI Rule 1 of O.S.Rules and Clause 15 of the Letters Patent against the Order dated 5.6.2007 made in Application No.2894 of 2006 in C.S.No.590 of 2006.
Original Side Appeal in O.S.A.No.223 of 2007 is filed under Clause 15 of Letters Patent read with Order XXXVI Rule 1 of O.S.Rules and Clause 15 of the Letters Patent against the Order dated 5.6.2007 made in Application No.2450 of 2007 in C.S.No.590 of 2006.
For Appellant : Mr.T.R.Rajagopalan,
in all appals Senior Counsel
for
Mr.Vikram Ramakrishnan
For Respondent No.1 : Mr.P.S.Raman,
in all Appeals Senior Counsel
for
Mr.P.R.Raman and
Mr.C.Seethapathi
For Respondent No.2 in : Mr.Satish Parasaran
all Appeals Mr.Yatindra Shukla
Mr.R.Parthasarathy
COMMON JUDGMENT
R.BANUMATHI,J The appeals in O.S.A.Nos.221 to 223 of 2007 are filed against the order dated 5.6.2007 revoking the leave to sue granted (A.No.2726 of 2006) and allowing the application A.No.2450 of 2007 filed under Order XIV Rule 8 of Original Side Rules read with Order VII Rule 11 of Civil Procedure Code, and consequently rejecting the plaint in C.S.No.590 of 2006 by allowing the application A.No.2894 of 2006.
2. Case of appellant/plaintiff is that the Legislature of Uttar Pradesh enacted Uttar Pradesh Sports, Registration, Recognition and Regulation of Association Act, 2005 (hereinafter referred to as U.P.Sports Act). In the said Act, it was mandatory for the Sports bodies to be registered under the said enactment in order to gain recognition in the field of Sports. The appellant is an Association registered under U.P.Sports Act having its registered office at Lucknow. The appellant/plaintiff has been issued a Certificate on 18.11.2005 by Directorate of Sports, Uttar Pradesh recognising the appellant as a Central Body for Control of Cricket in the State of Uttar Pradesh. The 1st respondent Board of Control of Cricket in India (BCCI) is responsible for the control of game of Cricket in India and regulate its affiliate units. The main objects of BCCI is to control and promote the game of Cricket in each and every State in India and promote throughout the territories of India. The appellant/plaintiff having obtained registration under U.P.Sports Act made various representations/correspondence to the 1st respondent requesting it to recognise the appellant as the rightful representative for the control of Cricket in the State of Uttar Pradesh. The grievance of appellant/plaintiff is that inspite of various correspondence, no reply was sent by the 1st respondent.
3. In view of the questionable tactics allegedly used by the erstwhile President of BCCI acting as Ex.Officio Chairman of 75th A.G.M, objections were filed by Cricket Clubs before High Court, Madras and High Court at Kolkata for appointment of independent observer for 76th A.G.M of BCCI. Special Leave Petitions were also preferred before the Supreme Court against the Judgment and Order dated 23.9.2005 passed by the Division Bench of Kolkata High Court. The Honourable Supreme Court directed appointment of a single observer. Mr.T.S.Krishnamurthy, former Chief Election Commissioner of India was appointed as the Observer for 76th A.G.M of BCCI to be held at Kolkata. Case of appellant is that appellant, being registered under the U.P.Sports Act and being representative of 50 out of 70 districts in the State of U.P. is a rightful member to represent the State before BCCI and therefore appellant should be allowed to vote in the A.G.M of BCCI slated for 29th-30th November 2005. The appellant made application for its recognition in Chennai on 23.11.2005 before the Ld.Observer and also participated in the proceedings of the Ld.Observer at Kolkata. The Ld.Observer has submitted his report on 5.12.2005 before the Supreme Court. On 12.12.2005, the Honourable Supreme Court directed the appellant/plaintiff and others to seek remedies before the appropriate forum. The appellant did not receive any reply to its request made to BCCI by subsequent correspondence to recognise the appellant/plaintiff as Full Member as the Central Body for control and regulation of the game of Cricket in Uttar Pradesh. Alleging that BCCI performs public function and has a duty to perform the same in a non-arbitrary, neutral and reasonable manner, appellant/plaintiff has filed the suit C.S.No.590 of 2006 on the Original Side of this Court inter alia praying:-
(i) a permanent mandatory injunction directing the 1st respondent/ 1st defendant/BCCI, its members and agents, to recognise the appellant/plaintiff as a Full Member of the 1st respondent/1st defendant and thereby removing the 2nd respondent/2nd defendant from the membership of BCCI;
(ii) a permanent injunction restraining BCCI and its members from in any manner recognising the 2nd respondent/2nd defendant from nominating them or allow 2nd respondent/2nd defendant to participate in the meeting of BCCI;
(iii) a decree of declaration declaring that the observations made by the Ld.Observer qua the petitioner(appellant) Association be set aside and be held to be not binding on 1st respondent/1st defendant.
Since the 2nd respondent/2nd defendant is having its office at Kanpur, Uttar Pradesh State, outside the jurisdiction of Madras High Court, in Application No.2726 of 2006 filed by the appellant/plaintiff, leave to sue was granted.
4. The 2nd respondent/2nd defendant filed A.No.2984 of 2006 seeking to revoke the leave to sue granted in plaintiff's favour and A.No.2450 of 2007 seeking rejection of plaint. In the applications, 2nd respondent alleged that no part of cause of action arose within the jurisdiction of this Court and the registered Offices of plaintiff and 2nd respondent/defendant are in the State of Uttar Pradesh and registered Office of 1st respondent is at Chennai. This Court shall not exercise jurisdiction merely because the registered office of any of the parties happened to be within its territorial jurisdiction or that a miniscule part of cause of action arose within the territorial jurisdiction of this Court. It was further alleged that the prayer for permanent mandatory injunction directing BCCI to recognise the appellant/plaintiff as the Full Member of BCCI is not maintainable without first seeking a relief in the nature of declaration of the appellant's right to become a member of BCCI and therefore the Suit is liable to be dismissed in limine.
5. Upon consideration of the rival contentions, in A.No.2984 of 2006 - application for revocation of leave, the learned single Judge held that the entire cause of action arose at Kolkata, where the Observer appointed by the Supreme Court to BCCI heard the representatives on 26.11.2005 and 27.11.2005 and pronounced decision on 28.11.2005 at Kolkata recognising the 2nd respondent/2nd defendant as a Full Member. The learned single Judge further observed that only a minuscule or fraction of a part of cause of action has arisen at Chennai and same is not sufficient to institute the Suit before the High Court, Madras. In so far as the application A.No.2450 of 2007 seeking rejection of the plaint, observing that the suit was instituted through the Honorary Treasurer and not through Honorary Secretary, the learned Judge rejected the suit on the ground that the Suit has not been properly instituted.
6. Challenging the impugned order, Mr.T.R.Rajagopalan, the learned senior counsel appearing for the appellant submitted that as the Registered Office of BCCI is situated in Chennai and some of the defendants reside within the original Jurisdiction of the Madras High Court, the Suit is well maintainable and the learned single Judge erred in proceeding to consider the question of cause of action. It was further submitted that when the third limb of clause 12 of the Letters Patent was attracted and since the leave was granted as the 2nd respondent/2nd defendant is having its office outside the jurisdiction of Madras High Court, the learned Judge was not right in proceeding to consider the second limb viz., cause of action. In support of his contention, the learned Senior Counsel placed reliance upon judgments of Division Bench of this Court in the case of V.SELLADURAI VS. N.NETHAJI, (2006-4-L.W.343 = (2006) 4 MLJ 680) and (2) WIPRO LIMITED VS. OUSHADHA CHANDRIKA AYURVEDIC INDIA (P) LIMITED., ((2008) 3 CTC 724 = (2008) 3 MLJ 1).
7. On behalf of BCCI, learned Senior Counsel Mr.P.S.Raman would fairly submit that BCCI is having its office in Madras. However, he would submit that merely because a minuscule part of cause of action has arisen within the jurisdiction of this Court, the Suit cannot be entertained.
8. Mr.Satish Parasaran, the learned counsel for the 2nd respondent/2nd defendant would submit that the main dispute is between the appellant and the 2nd respondent, who are having the registered office at Lucknow in Uttar Pradesh. As both the appellant and 2nd respondent are having offices at Lucknow in Uttar Pradesh, the appellant/plaintiff ought to have instituted the suit in the proper Court in Uttar Pradesh. Reiterating the findings of the learned Judge that only fraction of part of cause of action has arisen at Chennai, the learned counsel submitted that on the ground of forum conveniens, the learned Judge rightly revoked the leave granted.
9. Upon consideration of rival contention, the first question falling for determination is, whether the High Court in its Original Side has jurisdiction to deal with the case and whether the learned Judge was right in revoking the leave. For considering the question of jurisdiction, it is necessary to refer to Clause 12 of the Letters Patent, 1865. Section 120 C.P.C. specifically lays down that Sections 16, 17 and 20 C.P.C. shall not apply to the High Court in the exercise of its Original Civil Jurisdiction. Clause 12 of the Letters Patent which speaks of original jurisdiction as to suits refers to the power of the High Court to receive, try and determine suits of every description if,
(i) in the case of suits for land or other immovable property, such land or property shall be situated, or in all other cases,
(ii) if the cause of action shall have arisen, either wholly, or,
(iii)in case the leave of the Court shall have been first obtained, in part, within the local limits of the ordinary original jurisdiction of the said High Court: or,
(iv) if the defendant at the time of the commencement of the suit shall dwell or carry on business or personally work for gain, within such limits;
except the said High Court shall not have such original jurisdiction in cases falling within the jurisdiction of the Small Cause at Madras, in which the debt or damage, or value of property sued for does not exceed hundred rupees.
10. In BANK OF MADURAI LIMITED VS. BALARAMADASS & BROTHERS (AIR 1985 MADRAS 1), the Division Bench of this Court held that the clause either wholly, or in case the leave of the Court shall have been first obtained, in part, govern not only that part of the clause, which referred to all other suits in which the question of arising of the cause of action became relevant, but also the earlier part of clause 12 viz., if in the case of Suits for land or other immovable property, such land or property shall be situated.
11. Referring to the Judgment of the Division Bench of this Court in Bank of Madurai case (AIR 1985 MADRAS 1), in A.GIRIDHAR & ANOTHER VS. A.SURESH & OTHERS, (1988-2-LAW WEEKLY 308), the First Bench of this Court held as under:
In other words, as construed by the Division Bench in so far as suits for land or other immovable property are concerned, the material part of Cl. 12 had to be read as follows -
If, in the case of suits for land or other immovable property such land or properties shall be situated ... either wholly or, in case leave of the court shall have been first obtained, in part, within the local limits of the ordinary original jurisdiction of the said High Court. The learned Judges of the Division Bench, therefore, held that even where a part of the property is situated outside the jurisdiction of the High Court then, with the leave of the court, a suit in respect of land or other immovable property can be filed on the Original Side of this Court, The fact that this construction is an authoritative construction is clear from the following observations of the Division Bench -
Grammatically, this is the only reading possible in view of the respective places in the sentence of the phrases within the local limits of the ordinary original jurisdiction of the said High Court' and 'within such limits'. Any other reading would be illogical. The resulting position is that this court has jurisdiction when the defendant resides within the local limits, wherever the property may be situated.
12. In A.Giridhar's case,(1988-2-LAW WEEKLY 308), the suit was for partition of properties i.e. house property in Madras City and agricultural lands in Chenglepet District and the First Bench of this Court has held that the plaintiffs are entitled to leave to sue notwithstanding the fact that the defendants are residing outside the jurisdiction of the Court, as the suit expressly falls within the first part of Clause 12.
13. The expression defendant occurring in third limb should be interpreted to mean all the defendants. If there is a sole defendant, who resides within the territorial jurisdiction, the suit can be filed. Similarly, if all the defendants reside within the territorial jurisdiction, such Suit can be filed. However, where there are several defendants, some reside within the jurisdiction and some reside beyond the jurisdiction, the Suit can be filed in the High Court only if cause of action arises in part within the local limits of Ordinary Original Jurisdiction of the High Court. However, before filing such suit, the plaintiff is required to obtain the Leave of the Court.
14. A similar question was considered by this Court in the case of K.MURUGESAN VS. SEETHALAKSHMI (1992-1-L.W. 277), wherein it was observed as under:
6. ... If there is one defendant in a suit and he resides within the local limits of the jurisdiction of this Court, the suit would be maintainable and if there are more than one defendant in the suit and all of them are founded residing within the local limits of the jurisdiction of this Court, the suit would still be maintainable but in a case where there are more than one defendant in the suit, but only one or some of them are found residing within the local limits of the jurisdiction of the court and another or some of them are not found residing within the local limits of the jurisdiction of the court, is the suit maintainable or not and whether in such a case the leave would be granted or not and if granted it could be revoked for the defect of jurisdiction or not? Srinivasan, J. has referred to a Bench judgment of this Court reported in P.H. Parameswara Pattar v. Vivatha Mahadevi 1922 M.W.N. 641 in which a broad reference has been made to what may be found in the four corners of Clause 12 of the Letters Patent of this Court.
The Division Bench thereafter referred to the decision of Kolkata High Court reported in AIR 1960 Cal 123 (Bengal A.S.Y. Corporation v. Corporation of Kolkata), where it was observed that maintainability of such suit would depend upon the nature of cause of action, whether it was joint cause of action against all the defendants or whether it was joint and several. Such observations were approved by the Division Bench which of course ultimately sustained the jurisdiction on the ground that part of the cause of action had arisen within the jurisdiction.
15. Referring to the above judgment and a subsequent decision of Division Bench of this Court in M.VENKATASWAMY VS. MARDAPUSHPAM AND 4 OTHERS (1992-1- L.W. 441), the Division Bench of this Court in V.SELLADURAI VS. N.NETHAJI (2006-4-L.W.343 = (2006) 4 MLJ 680) has held as under:-
"13. In a subsequent decision reported in 1992 1 L.W. 441 (M.VENKATASWAMY V. MARDAPUSHPAM AND 4 OTHERS), the Division Bench observed:
"12. Clause 12 of the Letters Patent which applies to this Court on its original side Inter Alia states that if the "defendant" at the time of the commencement of the suit shall dwell, or carry on business, or personally works for gain within such limits of the Ordinary Original Jurisdiction of this Court, the said could be laid in this Court on its original side. The term "defendant" used in the above said Clause 12 also has been held to mean all the defendants, where the suit is against more than one defendant. (Vide Hadjee Ismail v. Hadjee Mohammed 1874 13 B.L.R. 91 and the view of one of the Judges of the Division Bench in P.H. Parameswara Pattar v. Vivathan Mahadevi 1922 M.W.N. 841 ....
14. From a conjoint reading of the aforesaid two Division Bench decisions, it is apparent that the Court will have jurisdiction, if the sole defendant or all the defendants reside within the jurisdiction, and where some of the defendants reside, the question would depend upon the cause of action. (underlining added)
16. It is not in dispute that the 1st respondent/BCCI is having its registered office at Chennai. In order to consider whether High Court Original Side has jurisdiction to entertain the suit, the plaint has to be read as a whole. Whether any part of action has accrued within the jurisdiction of this Court would depend upon the facts and circumstances of a given case. In Paragraph 36 of the plaint, appellant/plaintiff has clearly averred that the 1st defendant is having the registered office at No.5, Victoria Hostel Road, Chepauk, Chennai 600 005. It is further averred that the Observer appointed by the Honourable Supreme Court gave hearing to the concerned parties at both Kolkata and Chennai and therefore a part of cause of action arose at Chennai and when 1st respondent/ 1st defendant / BCCI, who is responsible for the control of game of Cricket in India and regulate its affiliate units, the Suit is well within the local limits of ordinary original jurisdiction of Madras High Court. The Court was not required to make an elaborate enquiry as to the correctness or otherwise of the facts pleaded by the plaintiff. Going by the plaint averments, when part of cause of action is said to have arisen at Chennai, the learned Judge was not right in saying that only a fraction of cause of action has arisen at Chennai and the learned Judge was not justified in revoking the leave to sue.
17. The cause of action has acquired a judicially settled meaning. Cause of action is generally understood to mean "a situation or set of things that entitles a party to maintain an action in a Court or Tribunal"; "a group of operative facts giving rise to one or more basis for suing".
18. When one of the defendants is having registered office at Chennai and part of cause of action has arisen at Chennai, the learned Judge was not justified in revoking the leave on the ground that only a part of cause of action has arisen at Chennai. The Order of the learned Judge in A.No.2894 of 2006 revoking the leave is to be set aside and O.S.A.No.222 of 2007 is to be allowed.
19. In so far as O.S.A.Nos.221 and 223 of 2007 - appeals arising out of rejection of plaint, learned single Judge held that in accordance with Bye-law No.34 of Appellant's Bye-laws, appellant/plaintiff was entitled to institute the Suit dehors the absence of a specific provision in the U.P.Sports Act dealing with the Suits by or against the Associations registered under the Sports Act. As per Bye-law No.34, the Association shall sue or be sued in the name of the Association by its Honorary Secretary. Pointing out that the Suit was instituted through the Honorary Treasurer and not through Honorary Secretary and that the Suit cannot be instituted through Honorary Treasurer, the learned single Judge allowed the Application for rejection of the plaint on the ground that the Suit has not been properly instituted.
20. The 2nd respondent/ 2nd defendant sought for rejection of the plaint on the grounds:-
that the Plaintiff is not a juristic person inasmuch as Society is not a legal entity entitled to sue or be sued except by virtue of and in accordance with the provisions of the Act under which it is registered and hence the Plaintiff cannot maintain a suit.
Merely because Plaintiff was registered under U.P.Sports Act, Plaintiff is certainly not qualified to become a member of BCCI. Since Clause 6 of BCCI memorandum provides for affiliation of only "a body registered under the Societies Registration Act" or "body corporate" as an associate member. The plaintiff is neither a Society registered under Societies Registration Act nor a body corporate and therefore the Suit is liable to be rejected.
The prayer for permanent mandatory injunction is exfacie not maintainable without first seeking a relief in the nature of declaration of plaintiff's right to become a member of BCCI and a further declaration that 2nd respondent/2nd defendant is disqualified. In the absence of any prayer for declaration, the prayer for bringing mandatory injunction is exfacie not maintainable.
21. A Society registered under the Central Act or any of the State's Act is not a Juristic person. But it is permitted to sue and be sued in the name of any one or more of the Office bearers or trustees by the Statute itself. The Plaintiff is not a "Society" registered under the Central Act; but registered only under Uttar Pradesh Sports (Registration, Recognition and Regulation of Association) Act, 2005. U.P.Sports Act 2005 mandates every Sports Association to frame its constitution. As pointed out by the learned single Judge, U.P.Sports Act does not contain a provision enabling a Sports Association registered under U.P.Sports Act to sue or be sued in the name of one of its office bearers but Sections 7 and 8 of U.P.Sports Act mandates every sports Association to frame its constitution consisting of (a) Part A Memorandum containing its aims and objectives and area of operation; and (b) Part B - Bye-laws. Section 8 sub-sections (1) and (2) list out the matters relating to which provisions should be made in the Bye-laws of the Sports Association. Section 8(1) reads as follows:
"Subject to the provisions of this Act, every Sports Association which seeks Registration under this Act, shall make, amongst other things, the following provisions in its Bye-laws."
The expression used in Section 8(1) "amongst other things" enables any Society registered under U.P.Sports Act to frame its bye-laws not only of the list indicated in Section 8(1), but also of "other things". The Legislature left it to the Association to make suitable provisions in the Bye-laws with regard to the matters indicated in Sections 8(1) and 8(2) and other things. Even though the U.P.Sports Act does not contain any specific provision relating to Suit by or against the Society, in view of the enabling provision under Sections 8(1) and 8(2), the Society registered under U.P.Sports Act is empowered to frame its Bye-laws relating to "Suit by or against Associations".
22. Bye-law 34 of the Association refers to Suit by or against the Association. As per Bye-law 34, the Association shall sue or be sued in the name of the Association through the Honorary Secretary of the Association. After extracting Bye-law No.34, the learned single Judge held that Plaintiff was entitled to institute the Suit in accordance with Bye-law No.34 of its Bye-laws dehors a specific provision in the Sports Act dealing with Suits by or against the Associations registered under U.P.Sports Act.
23. Even while holding that the Plaintiff Association is entitled to institute the Suit, the learned single Judge had taken up an issue, which was not projected by the 2nd respondent/2nd defendant and held that the Suit has been instituted by the Honorary Treasurer of Plaintiff Association and not by the Honorary Secretary of the Plaintiff Association and rejected the Suit on the ground that the Suit has not been properly instituted.
24. Mr.T.R.Rajagopalan, the learned Senior Counsel appearing for the appellant contended that the learned Judge erred in rejecting the plaint on the ground that the Suit filed through Honorary Treasurer is contrary to the Bye-laws. Taking us through the impugned order, the learned Senior Counsel would submit that the 2nd respondent/2nd defendant did not advance argument on the filing of the suit by the Honorary Treasurer and while so, the learned single Judge erred in rejecting the Suit on that score. It was further submitted that the Suit has been filed by consent of all the members of Appellant Association vide Resolution dated 2.7.2006 and had an opportunity been given to the Plaintiff/Appellant, the Plaintiff/Appellant would have substituted the name of the Plaintiff and the plaint ought not to have been rejected on that score.
25. As rightly pointed out by the learned Senior Counsel appearing for the appellant/plaintiff, before the single Judge, the filing of Suit by Honorary Treasurer was not at all made an issue. Even while holding that the Plaintiff Association is entitled to institute the suit, the learned Judge appears to have suo motu taken up the issue and rejected the Suit on the ground that the Suit instituted by the Honorary Treasurer is contrary to Bye-law No.34. Pointing out that there are no averments as to why the Suit was instituted through Honorary Treasurer and not through the Honorary Secretary, the learned Judge rejected the Suit on the ground that the Suit has not been properly instituted. In our considered view, the learned Judge was not right in suo motu taking up the issue, recording findings to the prejudice of the Appellant/Plaintiff and rejecting the plaint on that score and further learned single Judge has observed that though Bye-Law No.34 enables the Association to sue through the Honorary Secretary, contrary to the said Bye-law, a resolution was passed at the Extraordinary General Meeting of the Appellant Association on 2.7.2006 at Lucknow authorising the Honorary Treasurer to sign papers and pleadings in legal proceedings. The learned Judge further held that the words "or otherwise" in paragraph 51 of Judgment of Supreme Court in (2003) 8 SCC 413 that in a litigation, it must be represented through a person authorised in this behalf either in terms of its bye-laws or otherwise", cannot come to the aid of the appellant in the absence of a specific provision in the Bye-laws to pass such a resolution.
26. Had that issue been raised in the counter/application, the Appellant/Plaintiff would have had the opportunity of explaining to the Court as to why the Suit was instituted through Honorary Treasurer. It is pertinent to note that in its Extraordinary General Meeting of Plaintiff Association dated 2.7.2006, the Extraordinary General Meeting has authorised the Honorary Treasurer to sue on behalf of Plaintiff Association. When the Honorary Treasurer was so authorised by the Association, the learned Judge was not right in suo motu taking up the issue without giving an opportunity to the Plaintiff.
27. The 2nd defendant/2nd respondent was originally registered as Society and later incorporated as a Company in the year 2005. The 2nd respondent is stated to have been recognised as the Full Member of BCCI under Bye-law 3(a)(ii) of BCCI Memorandum and Rules and Regulations. The 2nd respondent prayed for rejection of the plaint on the ground that as per Clause 6 of BCCI's memorandum, to become a member of BCCI, a body is to be registered under the Society's Registration Act or body corporate as an associate member and the appellant/ plaintiff is neither a "Society" nor a "body corporate" and therefore the Suit is liable to be rejected. Of course, the Appellant has been registered under U.P.Sports Act and appellant claims to be representing 50 to 70 districts in the State of Uttar Pradesh and it is the Association to be recognised as the member of BCCI. But the merits of this contention could be gone into only at the time of trial. This contention raised by the 2nd respondent/ 2nd defendant cannot be a ground for rejection of the plaint under Order VII Rule 11 C.P.C.
28. For deciding an application under Order VII Rule 11 C.P.C, the relevant facts, which need to be looked into, are the averments in the plaint. For the purpose of deciding the application under Order VII Rule 11, only the averments in the plaint are relevant; and the pleas taken by the defendant in the written statement would be wholly irrelevant at that stage. The basic question to be decided while dealing with an application filed under Order VII Rule 11 C.P.C is whether a cause of action has been set out in the plaint or something illusory has been stated. The plaint averments as a whole have to be seen. In the plaint, the plaintiff has referred to various grounds for instituting the Suit. On the defence pleas taken by the defendant, the plaint cannot be rejected. In our considered view, the findings of the learned Judge for rejection of the plaint cannot be sustained and the impugned order is liable to be set aside.
29. While setting aside the impugned order, we would have ordered restoration of the Suit to its file. But in view of the repeal of U.P.Sports Act, 2005, we refrain from restoring the Suit. As pointed out earlier, the Appellant has been registered under U.P.Sports (Registration, Recognition and Regulation of Association) Act, 2005. Only by virtue of the registration under U.P.Sports Act, 2005, Plaintiff Association seeks reliefs for being recognised as the member of BCCI. The plaint averments repeatedly refer to plaintiff's registration under U.P.Sports Act, 2005.
30. By virtue of the Uttar Pradesh (Registration, Recognition and Regulation of Association) (Repeal) Act, 2007, Uttar Pradesh Sports (Registration, Recognition and Regulation of Association) Act, 2005 has been repealed. The repeal Act contains only three Sections which read as under:
"1. Short title and commencement. - (1) This Act may be called the Uttar Pradesh Sports (Registration, Recognition and Regulation of Association) (Repeal) Act, 2007.
(2). It shall be deemed to have come into force on June 15, 2007.
2. Repeal of U.P. Act No.15 of 2005. - The Uttar Pradesh Sports (Registration, Recognition and Regulation of Association) Act, 2005 is hereby repealed.
3. Repeal of U.P.Ordinance No.11 of 2007. The Uttar Pradesh Sports (Registration, Recognition and Regulation of Associations) (Repeal) Ordinance, 2007 is hereby repealed."
31. When we consider the above provisions, it is seen that the Repeal Act is to abrogate or wipe off the former enactment wholly. The Repeal Act does not contain a saving clause. Had the Repeal Act contained Saving Clause, it might have enabled the Appellant/Plaintiff to continue with the Suit. The effect of repeal without a Saving Clause was considered by the Supreme Court in AIR 2000 SC 211. By virtue of Act 25 of 1978, Sections 10 and 10-A in Central Excises and Salt Act were omitted and it did not contain saving clause for continuance of the proceedings initiated under the Rule. Considering the effect of omission/deletion without a saving clause, in KOLHAPUR CANESUGAR WORKS LTD. VS. UNION OF INDIA (AIR 2000 SC 211), the Supreme Court held as under:
"38. The position is well known that at common law, the normal effect of repealing a statute or deleting a provision is to obliterate it from the statute-book as completely as if it had never been passed, and the statute must be considered as a law that never existed. To this rule, an exception is engrafted by the provisions of Section 6(1). If a provision of a statute is unconditionally omitted without a saving clause in favour of pending proceedings, all actions must stop where the omission finds them, and if final relief has not been granted before the omission goes into effect, it cannot be granted afterwards. Savings of the nature contained in Section 6 or in special Acts may modify the position. Thus the operation of repeal or deletion as to the future and the past largely depends on the savings applicable. In a case where a particular provision in a statute is omitted and in its place another provision dealing with the same contingency is introduced without a saving clause in favour of pending proceedings then it can be reasonably inferred that the intention of the legislature is that the pending proceedings shall not continue but fresh proceedings for the same purpose may be initiated under the new provision." (underlining added)
32. As noted earlier, in the present case, there is no saving provision. Therefore, the plaintiff, having been registered under Uttar Pradesh Sports (Registration, Recognition and Regulation of Association) Act, 2005, which now stands repealed, cannot continue the Suit.
33. In the result, the impugned common order dated 5.6.2007 is set aside and Original Side Appeals are allowed. However, in view of the Uttar Pradesh (Registration, Recognition and Regulation of Association) (Repeal) Act, 2007 and for the reasons stated in paragraph Nos.30 to 32, the Suit C.S.No.590 of 2006 stands disposed off. It is open to the Appellant/Plaintiff to pursue its remedy before BCCI/appropriate forum in accordance with law. However, there is no order as to costs.
usk Copy to:
The Sub-Asst.Registrar Original Side High Court, Madras