Andhra HC (Pre-Telangana)
S.M. Kantha Raju vs Terapalli Dyvasahata Kumar on 19 September, 2006
Equivalent citations: 2007(1)ALD385
ORDER B. Prakash Rao, J.
1. The petitioner herein, who is the 5th respondent in the Court below in a dispute raised under Section 23 of the A.P. Societies Registration Act, 2001 (for brevity 'the Act') at the instance of the respondent herein seeks to assail by way of this revision under Article 227 of the Constitution of India, the orders passed in I.A. No. 234 of 2004 in O.P. No. 13 of 2004, dated 17th January, 2005 on the file of the IV Additional District Judge, Visakhapatnam, rejecting an application filed by him under Section 151 of the Code of Civil Procedure seeking to decide the maintainability of the main petition in O.P. No. 13 of 2004 as a preliminary issue.
2. Heard Sri M. Chandrasekhar Rao, learned Senior Counsel appearing on behalf of the petitioner and Sri V.L.N.G.K. Murthy, learned Counsel appearing on behalf of the respondent.
3. Briefly stated facts are that in the petition filed under Section 23 of the said Act, the respondent herein who claiming to be one of the senior members of the society sought for declaration that the respondents therein, which include the petitioner herein, have no legal right whatsoever to hold annual convention and consequently for the relief of permanent injunction restraining them from holding any such convention by themselves and to appoint an Advocate Commissioner for the purpose of holding an annual convention. In support, the claim of the respondent, inter alia, runs on various grounds made against those respondents. It is not necessary to refer or go into any of those allegations at this juncture.
4. Raising an objection as to the very jurisdiction of the Court below in entertaining such petition under Section 23 of the Act on the ground that he himself viz. the petitioner herein has filed a suit in O.S. No.561 of 2002 on the file of the Principal Senior Civil Judge, Kakinada and another suit in O.S. No. 18 of 2002 on the file of IV Additional District Judge, Kakinada, concerning the various issues relating to the said society and the same are pending to which the respondent is a party and but remained ex-parte and got filed the present petition at Visakhapatnam.
5. According to the petitioner as alleged in the affidavit, the Court at Visakhapatnam has no jurisdiction to entertain any petition under the provisions of the A.P. Societies Registration Act, 2001, since Convention of Baptist Churches of Northern Circars was registered originally at Kakinada and even the Subordinate Body viz. Trust Association of CBCNC, is also registered at Kakinada and therefore, the Court at Visakhapatnam cannot take cognizance of any grievance or entertain any such dispute. As per the said provision, it contemplates that that authority where the dispute arose, has to entertain. Since, either of the societies are not registered at Visakhapatnam, the Court would not be competent to entertain. Therefore, it is prayed that the said issue as to the maintainability of the proceedings has to be decided as a preliminary issue.
6. Contesting the same, in the counter-affidavit filed by the respondent herein apart from denying the allegations as contained in the affidavit filed in support of the application, it is stated that the issue of maintainability of suit is a mixed question of law and fact and it cannot be decided as preliminary issue and further the application itself is misconceived one. That apart, cause of action arose at Visakhapatnam i.e., within the jurisdiction of the Court below, and therefore, the suit is maintainable. Even otherwise, it is stated that there is no bar under the provisions of the said Act to file applications under Section 23 of the Act at place other than where the registered office is situated. It was further stressed therein that the suit is always maintainable at a place where the cause of action either wholly or partly arises. Therefore, the said application is liable to be dismissed.
7. On consideration of submissions made on behalf of either side, the Court below by framing the point as to whether the Court at Visakhapatnam has got jurisdiction to entertain the petition, did not find favour of the petitioner and dismissed the same mainly on the ground that the complaint is against all those members who were shown as respondents in the main application and they do not hold any such activity either at Kakinada or Visakhapatnam and further that the last Annual Convention dated 14-1-1985 was held at Visakhapatnam and elections were also held at Visakhapatnam. Therefore, a part of cause of action arose at Visakhapatnam and thereby applying the provisions of Section 20(c) of the Code of Civil Procedure, the Court below has got ample jurisdiction to entertain the application. It is further found that the respondents 5 and 7 which include the petitioner herein are residents of Visakhapatnam and therefore, viewed from any angle the Court below has got jurisdiction to entertain the application, since the District Court concerned, as mentioned under Section 23 of the said Act has wider connotation and thus it can also take into account, where a part of cause of action arose. Hence, this revision.
8. Sri M. Chandrasekhar Rao, learned Senior Counsel appearing on behalf of the petitioner submits that there is no dispute of fact that the institution viz., the society is admittedly registered at Kakinada and therefore, having regard to the specific expressions used in Section 23 of the said Act, 'the District Court concerned' should only mean and include that where the society is registered and not otherwise and therefore, the principle of part cause of action etc. cannot be entended to. Thus, he submitted that the Court below was not right in rejecting the application holding that it has jurisdiction.
9. Sri V.LN.G.K. Murthy, learned Counsel appearing for the respondent submitted that having regard to the expressions used and especially in the absence of any specific restriction as to the District Court concerned, no words can be imported like the place of registration as the only one to have the jurisdiction.
10. Having heard the Counsel in detail at length and on perusal of the material on record, the main question which arises for consideration is as to whether the application or the suit as has been filed and framed by a member/the respondent herein purporting to be under Section 23 of the A.P. Societies Registration Act, 2001 in regard to the dispute pertaining to the society, which is registered at Kakinada thereof is maintainable at Visakhapatnam?
11. The undisputed facts are that the respondent who is the applicant in the Court below and the petitioner as respondent No. 5 therein and other respondents in the Court below are members of the society which is known as Convention of Baptist Churches of Northern Circars. Even the other sister body is a registered one under the very same provisions. Both these registrations were done at Kakinada, the factum of which is not seriously disputed by the respondent herein. In fact on a reading of the main petition filed in O.P. No. 13 of 2004, except mentioning that it was a registered one, the number or the place of registration is not mentioned. Even though, it was alleged that earlier Annual Convention was held at Visakhapatnam on 14-1-1985. The case of the petitioner herein squarely rests on the factum of its registration at Kakinada and thus the Court at Visakhapatnam should not have any jurisdiction in view of specific provision as contemplated under Section 23 of the said Act. For convenience sake, the said provision reads as follows:
In the event of any dispute arising among the committee or the members of the Society, in respect of any matter relating to the affairs of the Society, any member of the Society may proceed with the dispute under the provisions of the Arbitration and Conciliation Act, 1996 or may file an application in the District Court concerned, and the said Court shall after inquiry pass such order as it may deem fit.
12. On bare look, it contemplates that any dispute arising in regard to the affairs of the society, an application needs to be filed in the "District Court concerned", and the said Court shall after holding an enquiry passed the orders. It is this expression viz. the District Court concerned, which is at loggerheads between the parties. Every expression the District Court concerned is not defined in its verbatim. However the expression the Court has been defined under Section 2(d) of the Act, which reads as follows:
"Court" - means in the cities of Hyderabad and Secunderabad, the City Civil Court and also where, the Principal Civil Court of original jurisdiction.
13. Thus, 'the Court' finds its place in two different contexts. As far as the present case is concerned, it has to be taken as Principal Civil Court of original jurisdiction. The allegations in the main application refers to the convention held at Visakhapatnam on 14-1-1985 and the differences arising between the members and groups therein. Apprehending that the other group are trying to proceed with such convention either at various placed including Visakhapatnam, the present application came to be filed.
14. No doubt, there is specific reference as to such convention held at Visakhapatnam, but however, the case of the first respondent is that for the purpose of jurisdiction, the Court below at Visakhapatnam squarely rests on that fact, as cause of action arose at Visakhapatnam and some of the respondents are residents of Visakhapatnam.
15. On behalf of the petitioner, reliance is placed on administration reported in Stride-well Leathers (P) Ltd and Ors. v. Bhankerpur Simbhaoli Beverages (P) Ltd. , wherein considering the scope of Section 10(f) of the Companies Act, 1956 and the expression used therein by "High Court", it was held that it takes in that High Court having jurisdiction in regard to place at which registered company concerned is situated. In that case an application was filed under Section 397 and 398 of the Companies Act, 1956 before the Company Law Board in respect of the company which is registered at Madras and in respect of question arising in an appeal before the Madras High Court, a preliminary objection was raised as to the maintainability of the appeal which was filed before the Delhi High Court, taking into consideration of the Court under Section 2(11) read with Section 10(12)(a) of the said Act. It was held that an appeal against the order of the public law board only lie in Madras High Court in relation to a place which Court concerned is situated and not the Delhi, where the Company Law Board at Delhi exists.
16. On behalf of the respondent strong reliance is placed on a decision reported in Ram Chandra Agarwal and Anr. v. State of Uttar Pradesh and Anr. . In this decision the Supreme Court was considering Section 146(1) of the Code of Criminal Procedure and Section 24(1)(b) of the Civil Procedure Code and also a reference made under Section 146(1) of the Code of Criminal Procedure can be transferred in exercise of powers under Section 24(1)(b) of the Code of Civil Procedure by the District Court since it amounts to a proceeding as contemplated thereunder. While considering so, as pointed on behalf of the respondent herein the observations made therein, on the contentions raised to the effect that the reference under Section 146(1) is to a constituted Court and not to a persona designate and ultimately holding after reference to the decision cited therein that the power is not to refer the matter to the presiding Judge of a particular Civil Court but to a Court. When a special or local law provides for an adjudication to be made by a constituted Court that is by a Court not created by a special or local law but to an existing Court - it in fact enlarges the ordinary jurisdiction of such a Court. Thus where a special or local statute refers to a constituted Court as a Court and does not refer to the Presiding Officer of that Court the reference cannot be said to be to a persona designate. This question is well settled. This decision would not be of any assistance to the contentions urged on behalf of the respondent, since it does not take the aspect of the District Court concerned nor District Court having jurisdiction either way.
17. Further, the case on behalf of the respondent that earlier a convention was made at Visakhapatnam and therefore a part of cause of action arose there and thus mere place of registration of the society could not be taken as a sole basis for the purpose of conferring jurisdiction in respect of such disputes. In the earlier referred decision in Stride well Leathers (P) Ltd. and other's case (supra), the provisions of the Companies Act, 1956 which had come up for consideration on the definition clause under Section 2(2) of the said Act where "the Court" was defined as means with respect to ay matter relating to a company (other than any offence against this Act), the Court having jurisdiction under this Act with respect to that matter relating to that company as provided in Section 10, in regard to the jurisdiction of the Court, which reads as follows:
10.(1) The Court having jurisdiction under this Act shall be-
(a) The High Court having jurisdiction in relation to the place at which the registered office of the company concerned is situate, except to the extent to which jurisdiction has been conferred on any District Court or District Courts subordinate to that High Court in pursuance of Sub-section (2)
18. Therefore, having regard to the expressions used in the definition Clause 2(ii) of the said Act, 'Court having jurisdiction' and read with other provisions under Section 10, in relation to the place at which the registered office of the company concerned is situate and it was held that since the company was registered at Madras and therefore, the High Court of Madras was having jurisdiction.
19. On a comparative look at the expression used in the provisions of the A.P. Societies Registration Act, 2001 as already pointed out, a dispute as under Section 23 of the said Act has to be raised in the District Court concerned. Even though the District Court concerned in its comprehensive term bodily does not find place in the definition clause. However, it is to be noted that the expression "the Court" finds its place amongst definition clauses in the Section 2(d) to mean that principal civil Court of original jurisdiction. These two provisions have to be read together and gather not only the meaning but also the object. Thus, the Court having been specifically defined in the very same legislation it can only be looked on for the purpose of finding out the competent District Court as referred to under Section 23 of the said Act. It refers to that Principal Civil Court of original jurisdiction. The District Court or Principal Civil Court of original jurisdiction are one and the same and interchangeable expressions. The Court of concerned can only be that it exists or created or formed and registered. Necessarily it means that the District Court of that place and not otherwise. It is needless to mention that the said legislation is a special enactment and therefore, the general principles as applicable could not be brought in and therefore, no reliance as such can be brought in, in respect of the various situations contemplated under Section 20 of the Code of Civil Procedure. The theory of part cause of action will not find place either to the facts of the case or very scope and object of the legislation under this Act. Hence, it has to be necessarily held that it is only concerned District Court, where the society is registered that which will have jurisdiction to entertain any dispute under Section 23 of the said Act and not otherwise.
20. In view of the same, the revision is accordingly allowed. The application filed by the petitioner is allowed and O.P. No. 13 of 2004 filed by the respondent herein shall be returned to the respondent for the purpose of presentation before the appropriate Court. No costs.