S.M. Kantha Raju vs Terapali Dyvasahaya Kumar

B. Prakash Rao, J.—The petitioner herein is the 5th respondent in the Court below in a dispute raised u/s 23 of the A.P Societies Registration Act, 2001 (for brievity ''the Act'') at the instance of the respondent herein, who seeks to assail by way of this revision under Article 227 of the Constitution of India, the orders 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 seeking to decide the maintainability of the said petition in O.P. No. 13 of 2004 as a preliminary issue.

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.

Briefly stated facts are that in the said petition filed u/s 23 of the Act, the respondent herein who claimed to be one of the senior member of the society sought for declaration that the respondents therein including the petitioner herein have no legal right whatsoever to held annual convention and consequently for the relief of permanent injunction restraining them and to appoint an advocate commissioner for the purpose of holding an annual convention. Then claim of the respondent in the said petition, inter alia, runs on various allegations made against those respondents. It is not necessary to go into the same at this juncture.

Raising an objection as to the very jurisdiction of the Court below in entertaining such petition u/s 23 of the Act mainly 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, considering the issues relating to the said society and the same are pending to which the respondent is also a party and having remained ex-parte got filed the present petition.

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 original 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, even as contemplated under the said provisions since it contemplates the authority where the dispute has to be raised. Therefore, it is prayed that the said issue as to the maintainability of the proceedings has to be decided as a preliminary issue.

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 a 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 u/s 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 arose. Therefore, the said application is liable to be dismissed.

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 14.01.1985 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 also 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. It is also further held that the expressed views viz. the District Court concerned u/s 23 of the said Act has wider amplitude and thus it can take into account where the part of cause of action arose or for the reasons mentioned above. Hence, this revision.

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 provisions and the expressions used u/s 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. is not applicable. Thus, he submitted that the Court below was not right in rejecting the application holding that it has jurisdiction.

Sri V.L.N.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 defence as to the District Court concerned, no words can be imported or included the place of registration as the only one to have the jurisdiction.

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 the respondent herein purporting to be u/s 23 of the A.P. Societies Registration Act, 2001 in regard to the dispute pertaining to a society, which is registered at Kakinada as a member thereof is maintainable at Visakhapatnam?

The undisputed facts are that the respondent who is the applicant in the Court below and the petitioner herein, is shown as respondent No. 5 therein and also 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 subordinate body is also 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 the registration number, the place of registration is not mentioned. Even though, the allegations ran in regard to the Annual Convention held at Visakhapatnam on 14.01.1985. 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 u/s 23 of the said Act. For convenient 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.

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 enquiry pass 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 finds its place amongst defined u/s 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.

Thus, the Court has been named in two different contexts and 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 had referred to the convention held at Visakhapatnam on 14.1.1985 and the differences arose between the members and group therein and apprehending that the other group are trying to proceed with such convention either at various places including Visakhapatnam, the present application came to be filed.

No doubt, there is no specific reference as to any date or other particulars as to such convention was 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 the fact that the part of cause of action arose at Visakhapatnam since earlier a convention was held at Visakhapatnam and some of the respondents are residents of Visakhapatnam and therefore, there is ample jurisdiction with it.

On behalf of the petitioner, reliance is placed on administration reported in Stridewell Leathers (P) Ltd. and Ors. v. Bhankerpur Simbhaoli Beverages (P) Ltd. 1994 SC 158 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 u/s 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 u/s 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, mainly the Company Law Board at Delhi concerned.

On behalf of the respondent strong reliance is placed on a decision reported in Ramchandra Aggarwal and Another Vs. State of Uttar Pradesh and Another, . In this decision the Supreme court was considering Section 146(1) of the Code of Criminal Procedure and Section 24(1)(b) of the CPC and also a reference made u/s 146(1) of the Code of Criminal Procedure can be transferred in exercise of powers u/s 24(1)(b) of the CPC 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 u/s 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 can not be said to be to a persona designate. This question is well settled. This discretion would not be of any stained contentions urged on behalf of the respondent neither it taken the aspect of the District Court concerned nor District Court having jurisdiction either way.

Further there being the case on behalf of the respondent that having regard to the specific allegations made in the plaint 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 Stridewell Leathers (P) Ltd and Ors. case (1 supra) the provisions of the Companies Act, 1956 which had come up for consideration on the definition clause u/s 2(2) of the said Act where " the Court" was defined as means with respect to any 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. Later reference was made to the Section 10 of the said Act 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)

Therefore, having regard to the expressions used in the definition Clause 2(d) of the said Act to say which is that Court having jurisdiction and further it is that High Court having jurisdiction 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.

On a comparative look at the expression used in the provisions of the A.P. Societies Registration Act, 2001 as already pointed out, the dispute is contemplated u/s 23 of the said Act has to be raised in the District Court concerned. Even though the District Court concerned in its comprehensive term does not find place in the definition clauses of the said legislation. However, most conspicuously the expression "the Court" finds its place in the Section 2(d) to mean that principal civil Court of original jurisdiction and therefore, necessarily merely because the said comprehensive expression is used as it cannot be taken such complex format. However, the Court having been specifically defined in the very same legislation it can be safely relied on for the purpose of finding out the District Court as referred to u/s 23 of the said Act since it refers to that principle civil Court of original jurisdiction necessarily it means the District Court of that place and not otherwise. It is needless to mention that the said legislation is a specially enactment and therefore, the general principles as applicable could not be applied and therefore, no reliance as such can be brought in, in respect of the situations contemplated u/s 20 of the Code of Civil Procedure. This merely because a part of cause of action arose at any place other than the place of its existence, which means the place of registration necessarily leads to only one conclusion that the District Court where the society exists by way of its recognition or registration as such which will have the jurisdiction to entertain the suit and not otherwise. This is the theory of applying the principles 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 District Court where the society is registered that which will have jurisdiction to entertain any dispute u/s 23 of the said Act and not otherwise.

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 return to the respondent for the purpose of presentation before the appropriate Court. No costs.