M/S. Chittoor District Cricket Association v. M/S. Andhra Cricket Association

HON'BLE Dr. JUSTICE B.SIVA SANKARA RAO C.R.P. No.1465 OF 2016 ORDER:

The Civil Revision Petition is filed against the dismissal order dated 02.01.2016 passed in I.A. No.1087 of 2015 under Order VI Rule 17 C.P.C to amend the pleading in main S.O.P. No.1050 of 2012 on the file of the III Additional District Judge, Guntur District at Guntur.

2) Heard learned counsel for the revision petitioner and learned counsel for the respondent. Perused the material on record.

3) The revision petitioner maintained O.P. No.1050 of 2012 on the file of the III Additional District Judge, Guntur District at Guntur, under Section 23 of A.P. Societies Registration Act, 2001 against the respondent's association to declare the action of the respondent-association as arbitrary, illegal, against the principles of natural justice, against the provisions of the Act, against its own bye laws etc., and against the judgment passed in W.P. No.11319 of 2011 dated 08.06.2011, 2) to issue mandatory injunction against the respondent's association not to disturb the membership of the petitioner's association, which was held before 24.05.2011, 3)to direct respondent's association to revoke the suspension order dated 24.05.2011, 4) to direct the respondent's association to collect annual subscription fee for the period 201213 from the petitioner's association, 5) to direct the respondent's association to invite the petitioner's association to the periodical meeting to be conducted by the respondent's association here onwards and for costs and other reliefs.

4) The main petition was filed on 24.08.2012. The respondent's association filed counter opposing the main petition reliefs and it is one of the contentions, vide counter dated 12.02.2013 that there is an action of expelling the respondent's association and the petitioner's relief became infructuous and petitioner has no locus standi, thereby to invoke Section 23 of the Act, questioning the action of suspension or to revoke the suspension order dated 24.05.2011 by virtue of subsequent event (dated 12.08.2012 as per counter in I.A.No.1087 of 2015 para No.3 of the counter dated 09.11.2015.

5) It is claimed from the alleged subsequent event happened after filing of the main petition of the alleged expelling, (for which there is no communication or knowledge to seek in the main relief, though claimed of sent by registered post but for no acknoweldgement filed) requires amendment of the pleadings to impugn said proceedings of expulsion by putting life ban of the respondent's association in the petitioner's association. 6) The petition filed under Order VI Rule 17 C.P.C for amendment of the pleading filed is before commencement of enquiry/ trial and the rider under the provisio to Order 6 Rule 17 C.P.C has no application. The lower Court dismissed the petition in fact on the technical ground as per Rule 28 of the A.P.Civil Rules of Practice and circular Orders, 1990 which mandates the seeking of a consequential amendment, for same not sought for. 7) In fact, if a consequential amendment application that to be filed is if not filed or not asked in the petition seeking amendment for the same is mandatory, it results only in rejection

of the petition for amendment and not dismissal, as rejection is different from dismissal. So far as rejection is concerned, it is when technically not maintainable and dismissal concerned is only by going into the merits vide Brig. Chatrapati Singh Dev vs Amulya Kumar Padhi1. Rejection thus no way prevents either seeking restoration of the rejected application or filing of a fresh petition but for dismissal if the order is a decretal order with a notentitlement of right of appeal from bar of resjudicata to another petition.

8) Coming to the amendment petition in I.A. No.308 of 2012, the affidavit in support of the petition were filed on 27.06.2013 and it was not specifically asked as to at which para of the main petition to be amended and to what effect as contemplated and thereby it could have been resulted in rejection and it could not be the dismissal.

9) Subsequently, fresh application in I.A. No.1087 of 2015 was filed on 12.10.2015 for self-same amendment with consequential amendment sought for in compliance to the order VI Rule 17 C.P.C read with Rule 28 C.R.P supra and the same was ultimately dismissed covered by the impugned order dated 02.01.2016 holding that the petition in I.A. No.1087 of 2015 is beyond three years from the date of expulsion i.e., on 12.08.2012 and not within three years and is barred by limitation. 10) Article 58 of the Limitation Act prescribes three years from the accrual of cause of action from knowledge and when got knowledge is in dispute and requires adjudication on facts from 1 2005 (5) ALD 315

evidence, leave about court can permit amendment by dating back to the date of main petition.

11) No doubt Section 21 of Limitation Act speaks only for addition of the parties, for some of the parties are on record and the relief already sought and so far against the new parties even by then time of limitation to seek relief expires, the discretionary power to treat the impleadment of a party by the amendement as relates back to the date of original petition. Here from that wording it is not for the amendment of the additional relief.

12) However, from what is observed above, whether the additional relief is entitled or not either because of bar of limitation from not asking in the main relief, if at all it is proved notice duly served of expulsion to court and otherwise due to lack of knowledge if it is shown within three years from the date of knowledge to Court only therefrom and then it is within time and it all depends upon filing the proof of service of the notice of communication of the expulsion since being a mixed question of fact and law, the lower Court could not have held that by the time of amendment sought it is beyond three years period.

Leave about duly served notice of expulsion or not for no basis to presume in the factual scenario when specifically disputes for no acknowledgment filed to draw any presumption of deemed service under Section 27 of the General Clauses Act does not arise, the lower Court went wrong in dismissing the amendment petition on that ground.

respondent to urge so, much less premature for this Court to go into as observed supra, apart from the subsequent application can be treated as one for restoration of the firstly discussed application.

13) Having regard to the above, the revision is allowed by setting aside the dismissal order dated 02.01.2016 passed in I.A. No.1087 of 2015 in S.O.P. No.1050 of 2012 and the matter is remitted back to the lower Court, to entertain the application of the petitioner, to restore the earlier rejected application filed in I.A. No.308 of 2013 by invoking Section 151 C.P.C to consider the application in I.A. No.1087 of 2015 is a consequential amendment petition to the first application as contemplated by Rule 28 of the Rules supra to it and decide afresh on merits with opportunity of filing any counter or additional counter, as the case may be. No order as to costs.

14) Consequently, pending miscellaneous petitions, if any, shall stand dismissed.

_____________________________________ Dr.JUSTICE B. SIVA SANKARA RAO Dt.19.09.2016 knl