Telangana High Court
Pentikar Laxman vs Registrar Of Chits And District ... on 22 March, 2024
Author: K. Lakshman
Bench: K. Lakshman
HON'BLE SRI JUSTICE K. LAKSHMAN
CIVIL REVISION PETITION No.384 OF 2024
ORDER:
Heard Mr. Ghanshyamdas Mandani, learned counsel,
representing M/s. Bankatlal Mandhani, learned counsel for the
petitioner and Smt. Manjari S. Ganu, learned counsel appearing for 2nd
respondent. None appears for 1st respondent.
2. The present Civil Revision Petition is filed challenging the
order dated 13.12.2023 passed in I.A.No.1159 of 2022 in
W.O.P.No.1018 of 2016 by the Principal District Judge, at
Hanumakonda.
3. Originally, 1st respondent herein had filed a petition under
Section 39 of the Andhra Pradesh Chit Funds Act, 1971 (for short,
'the Act') against 2nd respondent herein seeking to wind up 2nd
respondent company and order to auction the property mortgaged in
favour of 1st respondent herein/Registrar of Chits and thereafter to
disburse the said amount among the unpaid subscribers. Thereafter,
the petitioner herein was added as 2nd respondent in the said WOP
vide order dated 24.01.2018 in I.A.No.2100 of 2017.
4. During the pendency of the said WOP, 1st respondent herein
had filed a petition under Order VI Rule 17 of the Code of Civil
Procedure (CPC) read with Rule 2 of the Civil Rules of Practice
(CRP) vide I.A.No.1159 of 2022 seeking permission to amend the
prayer portion of the petition in WOP which is as follows:-
"To amend at prayer portion of the petition in para No.8(a) to pass an order
for the winding up of the chits bye-law No.495/2007-08, 334/2008-09,
335/2008-09, 289/2009, 14/2007-08, 337/2008-09, 132/2007-08, 40/2006-
07, 119/2007-08, 120/2006-07, 186/2006-07, 243/2007-08, 50/2006-07,
306/2006-07, 120/2007-08 and 51/2006-07, conducted by the respondent
No.1, Vipanchi Chit Funds company and the property mortgaged in favour
of the petitioner is ordered to be auctioned and thereafter to disburse the said
amounts among the unpaid subscribers. "
5. The said I.A.No.1159 of 2022 was filed contending that
while preparing WOP, due to inadvertence, it was mentioned in the
relief (a) portion after the words winding up of, the words "the chits
bye-law Nos. 495/2007-08, 334/2008-09, 335/2008-09, 289/2009,
14/2007-08, 337/2008-09, 132/2007-08, 40/2006-07, 119/2007-08,
120/2006-07, 186/2006-07, 243/2007-08, 50/2006-07, 306/2006-07,
120/2007-08 and 51/2006-07 were omitted. While going through case
file, it was noticed that due to inadvertence and oversight, the above
mistake was occurred in the prayer (a) portion as (a) to pass an order
for winding up of the chits bye-law Nos. 495/2007-08, 334/2008-09,
335/2008-09, 289/2009, 14/2007-08, 337/2008-09, 132/2007-08,
40/2006-07, 119/2007-08, 120/2006-07, 186/2006-07, 243/2007-08,
50/2006-07, 306/2006-07, 120/2007-08 and 51/2006-07, conducted by
the respondent No.1 Vapanchi Chit Funds company and the property
mortgaged in favour of the 1st respondent is ordered to be auctioned
and thereafter disbursed the said amount among the unpaid
subscribers" and to make consequential amendments to the petition.
Therefore, they have filed the said amendment application. The said
amendment is necessary for proper adjudication of the matter and to
resolve the real controversy. If the said amendment is not allowed, the
subscribers of the chit on whose behalf, the 1st respondent
herein/Registrar of Chits filed the said WOP would be put to
irreparable loss and much prejudice would be caused to them. The
said amendment would not cause any prejudice to the petitioner herein
and 2nd respondent.
6. The said application was opposed by the petitioner herein on
the ground that the learned Principal District Judge, Hanumakonda,
has no jurisdiction to entertain the very WOP No.1018 of 2016.
Registering the WOP itself is beyond the jurisdiction of the Court and
seeking amendment of the said WOP is not within the jurisdiction to
entertain. Even the petitioner herein filed written statement in WOP
No.1018 of 2016 specifically contending that the trial Court lacks
jurisdiction. Therefore, District Registrar of Chits is not disputing the
fact asserted by 2nd respondent herein/the company that it has paid
entire chit amount to the unpaid subscribers, in the main petition.
Since 2016, in spite of filing counter by the petitioner herein, the
Registrar of Chits and the 2nd respondent company, has not taken any
steps to wind up the relevant chits as per law in collusion with each
other with a mala fide intention of making wrongful gain. The
proposed amendment is vague. The said petition was filed at a belated
stage. The proposed amendment changes the nature of the proceedings
which is not permissible in terms of Order VI Rule 17 of CPC.
7. It is relevant to note that 2nd respondent company, did not file
any counter in the said petition. Vide order dated 13.12.2023, learned
trial Court allowed the said application holding that the said
amendment is necessary and it will not cause any prejudice to the
petitioner herein and 2nd respondent company. Learned trial Court
gave detailed reasons. Challenging the said order, the petitioner herein
has filed the present CRP, contenting that the very WOP filed by the
Registrar of Chits/1st respondent herein as well as the proposed
amendment is not maintainable. The trial Court lacks inherent
jurisdiction to entertain the said application itself and therefore,
allowing the amendment petition is also without jurisdiction. By virtue
of the amendment, changing the very nature of the WOP is
impermissible. It is an abuse of process of law.
8. Whereas, Smt. Manjari S.Ganu, learned counsel appearing
for 2nd respondent herein/the company, would contend that the trial
Court rightly passed the impugned order on consideration of facts and
law. There is no error in it.
9. As discussed supra, The Registrar of Chits/1st respondent
herein had filed the aforesaid application seeking to wind up 2nd
respondent company and order to auction the property mortgaged with
him and thereafter to disburse the said amount among the unpaid
subscribers. Thereafter, the petitioner herein was added as 2nd
respondent in the said WOP vide order dated 24.01.2018 in
I.A.No.2100 of 2017.
10. The said WOP was initially filed against 2nd respondent
herein/the company. The 2nd respondent herein filed written statement
by taking preliminary objection with regard to the maintainability of
the said petition in June, 2017 itself. It is also apt to note that even the
petitioner herein had filed written statement in the said WOP
specifically contending that the trial Court lacks jurisdiction to
entertain the said WOP in September,2018. Thereafter, 2nd respondent
has filed additional written statement after adding the petitioner herein
as 2nd respondent in WOP.
11. In the impugned order, it is specifically mentioned that the
trial Court heard both sides with regard to maintainability of WOP on
13.09.2017 and passed orders on 29.01.2017 observing that the
Central Act came into force on 15.09.2008 and the bye-laws revealed
the registration of chits on different dates prior to 15.09.2008. The
trial Court also relied on the order dated 09.04.2013 of this Court in
CRP No.1477 of 2013.
12. The trial Court also mentioned in the impugned order that
the petitioner herein is added as 2nd respondent in the said WOP and
thereafter, with the permission of the trial Court, 2nd respondent had
filed additional written statement. The petitioner herein has also filed
a petition vide I.A.No.830 of 2018 under Section 83 of the Transfer of
Property Act, to cause service of written notices to the respondents to
express their willingness to accept the mortgaged money to the credit
of WOP in full discharge of the mortgaged amount, on depositing for
handing over of title deeds and all documents relating to mortgage and
to deliver the said documents to 2nd respondent therein. The said
petition was dismissed on 21.08.2018. Thereafter, 1st respondent
herein had filed an application under Order XXIII Rule 3 of C.P.C.
vide I.A.No.1204 of 2021 on 14.09.2021 to pass orders in terms of
compromise between the Registrar of Chits and the 2nd respondent
herein. The said petition was dismissed on 23.12.2021 as not pressed
with a liberty to file fresh petition. Thereafter, 1st respondent herein
had filed another application I.A.No.7 of 2021 under Order XXI Rule
4 of CPC and it is pending.
13. The aforesaid facts would reveal that though the petitioner
herein was added as 2nd respondent in the WOP No.1018 of 2016 vide
order dated 24.01.2018, filed written statement in September, 2018, he
failed to take appropriate steps including filing an application under
Order VII Rule 7 of CPC, to reject the very WOP on the ground of
lack of jurisdiction. On the other hand, it has participated in the
proceedings in WOP. The orders were passed in the aforesaid two
Interlocutory Applicants and another petition I.A.No.7 of 2021 filed
by 1st respondent herein is pending. At this stage, 1st respondent has
filed the aforesaid I.A.No.1159 of 2022 under Order VII Rule 17 of
CPC seeking amendment.
14. The petitioner herein has filed counter opposing the said
application. It is the main contention of the petitioner herein that the
trial Court has no jurisdiction to entertain the very WOP itself and
therefore, it cannot decide the amendment application.
15. Sri Ghanshamdas Mandani learned counsel for the
petitioner placed reliance on the judgment of the then High Court of
Andhra Pradesh in H.L.Kaka vs. Kanhayyalal 1 and Division Bench
Judgment of Calcutta High Court in Mst.Zohra Katoon vs. Janab
Mohammad Jane Alam 2. In Zohra Katoon (supra), the defendants
therein have filed an application under Section 21 of the CPC
contending that the trial Court lacks territorial jurisdiction. The trial
Court has framed a preliminary issue with regard to territorial
jurisdiction and the trial Court decided the said issue against plaintiff.
Therefore, plaintiff filed appeal. In the present case, the petitioner
herein failed to file such an application either to decide the jurisdiction
as preliminary issue or to reject petition on the ground of jurisdiction.
1979 SCC OnLine AP 326
AIR 1978 Calcutta 133
Therefore, the facts of the said case are different to the facts of the
present case.
16. In H.L.Kaka (supra), the trial Court had framed an
additional issue with regard to pecuniary jurisdiction and directed the
plaintiff therein to value the relief in terms of Sections 24 and 26 of
the Court Fee Act. The plaintiff instead of complying with the said
order, filed Interlocutory Application seeking amendment. Thus, the
trial Court directed to return the plaint itself. Considering the said
facts, trial Court held that the question of jurisdiction does not arise
unless the question of jurisdiction is decided. Therefore, the facts of
the said case are different to the facts of the present case.
17. Thus, the petitioner herein is seeking to decide jurisdiction
of the trial court in entertaining and trying the WOP itself at
interlocutory stage i.e. while deciding the application filed under
Order VII Rule 17 of CPC by the 1st respondent herein. The trial court
cannot decide its jurisdiction while deciding Interlocutory Application
filed by 1st respondent under Order VII Rule 17 of CPC. If the said
contention of the petitioner herein is accepted, the trial Court has to
suo moto return WOP itself as not maintainable on the ground of lack
of jurisdiction which is impermissible under law. Thus, the trial Court
cannot decide jurisdiction aspect while deciding amendment
application.
18. As discussed supra, the petitioner herein failed to take any
steps including filing an application under Order VII Rule 11 of CPC
to reject the petition in WOP on the ground of jurisdiction. The trial
court is not having power to return WOP suo moto.
19. Despite filing of written statement in September, 2018, the
petitioner herein allowed trial Court to proceed with the matter and
also decide the aforesaid I.As. Now the petitioner is seeking to decide
the jurisdiction at Interlocutory Application which is impermissible.
20. With regard to the other contentions of the petitioner herein
that by virtue of the amendment, the very nature of the WOP will be
changed etc. 1st respondent herein has sought the aforesaid
amendment only, to add chit bye-law numbers etc. There will not be
change of nature of the very WOP itself on allowing amendment
application as alleged by the petitioner. On consideration of facts and
law only, vide impugned order dated 31.12.2023, learned trial court
allowed the said application filed by the 1st respondent herein seeking
amendment. It is a reasoned order and well founded. It does not
require interference by this Court in the present revision. Therefore,
this revision is liable to be dismissed.
21. In view of the above discussion, the Civil Revision Petition
is dismissed. However, the trial Court shall frame an issue with regard
to maintainability of WOP No.1018 of 2016 and decide the same
along with other issues. In the circumstances of the case, there shall be
no order as to costs.
As a sequel, miscellaneous petitions, if any, pending in the
revision shall stand closed.
_________________
K. LAKSHMAN, J
Dated: 22.03.2024.
Vvr
