HON'BLE SRI JUSTICE B.N. RAO NALLA
C.M. A. No.54 OF 2012
04.10.2012
1)Musam Hari Prasad, 2) Ravirala Mallaiah
1) Pattana Padmashali Sangam, 2) Appam Srinivas, 3) Yelagadula Sudarshan
Counsel for the Appellants: Sri K.Narasimha Chari
Counsel for Respondents : Sri K.Mahipathy Rao
<GIST :
>HEAD NOTE :
?Cases referred :
JUDGMENT:
This Civil Miscellaneous Appeal is preferred assailing the order
dated 15.09.2011 in I.A. No.937 of 2010 in O.P. No.183 of 2009 on the file of
the Court of II Additional District Judge, Nalgonda at Suryapet. The appellants
herein are the petitioners and the respondents herein are the respondents in the
I.A. as well as in the O.P.
2. For the sake of convenience, the parties hereinafter referred to as they
arrayed in the I.A. as well as in the O.P.
3. The O.P. is filed under Section 23 of Andhra Pradesh Societies
Registration Act, 2001 before the trial Court seeking a direction to respondents
2 and 3 to furnish correct audited accounts of respondent No.1 society from the
period of their taking charge, convene the general body meeting and to conduct
the elections, and if finds any misappropriation, respondents 2 and 3 may be
directed to make good of the amounts by depositing the same with interest in the
account of respondent No.1- society. However, the O.P. was dismissed for
non-prosecution on 16.07.2010. Aggrieved thereby, the petitioners filed the
present I.A. under Order IX, Rule 9, read with Section 151 of Code of Civil
Procedure (for short 'CPC') for restoration of the O.P.
4. It is the case of the petitioner that the O.P. was posted on 16.07.2010
for filing chief examination affidavit of petitioner No.1 as PW.1, but due to
ill-health of his wife at Hyderabad, he stayed back at Hyderabad and that
petitioner No.2 was also out of station due to his business work, as such, they
could not appear before the Court on 16.7.2010 and the same was informed to
their counsel and instructed him to take adjournment, and as such, their counsel
filed an application under Section 148 read with 151 of CPC to grant fifteen
(15) days time to lead the evidence, however, the trial Court without passing
any order in the application, has dismissed the O.P. for non-appearance of the
petitioners on 16.07.2010 holding that the O.P. was posted conditionally to lead
evidence. After coming to know about the dismissal of the O.P., the petitioners
filed the present I.A. for restoration of the O.P.
5. It is the case of the respondents that the application filed for
restoration of the O.P. by the petitioners is only to drag on the matter and
that the reasons assigned in the affidavit filed in support of the application
are not tenable in the eye of law or facts of the case. The petitioners neither
gave justifiable reasons nor produced any substantial proof with regard to their
absence on 16.07.2012 before the Court.
6. After enquiry, the trial Court dismissed the I.A. holding that the
petitioners have taken several adjournments from 10.08.2009 to 01.07.2010 and
that even when the O.P. was posted conditionally on 16.07.2010, they could not
turn up, and as such, the petitioners are not interested to proceed with the
O.P. Aggrieved thereby, the petitioners filed the present Civil Miscellaneous
Appeal.
7. Heard the learned counsel on either side and perused the material
available on record.
8. It is contended by the learned counsel for the petitioners that the trial
Court erred in dismissing the application for restoration of the O.P. without
taking into consideration its serious repercussions on the welfare of respondent
No.1 society and that the trial Court ought to have given ample opportunity to
adjudicate the O.P. on merits. It is contended that the trial Court ought not
to have observed in the interlocutory application that the O.P. has become
infructuous without there being any material on record. It is also contended
that the trial Court ought not to have dismissed the O.P. on 16.07.2010 without
passing any order in the application filed by the counsel for the petitioners
under Section 148 read with Section 151 of CPC on the same day to grant fifteen
(15) days time. It is further contended that the trial Court ought to have seen
that there are serious allegations against respondents 2 and 3, as president and
secretary of respondent No.1 society respectively, with regard to
misappropriation of funds of respondent No.1 society, not convening the general
body meeting and not conducting the elections to the working committee.
9. The learned counsel for the respondents submitted that the impugned order
passed by the trial Court needs no interference at the hands of this Court as
the matter was adjourned several times at the behest of the petitioners and even
when the matter was posted conditionally on 16.07.2010, they could not come
forward to prosecute the O.P. Under these circumstances, the trial Court has
dismissed the application for restoration of the O.P. Therefore, there are no
merits in the C.M.A. and the same is liable to be dismissed.
10. It is seen from the record that the petitioners filed the O.P. seeking a
direction from the trial Court to respondents 2 and 3 to furnish correct audited
accounts of respondent No.1 society from the period of their taking charge, to
convene a general body meeting and to conduct elections to the working
committee, and if the Court finds any misappropriation by respondents 2 and 3,
they may be directed to make good of the amounts by depositing the same in the
account of respondent No.1 society with interest. The O.P. was of the year
2009. The respondents appeared on 30.06.2009, and filed their counter on
10.08.2009 and the O.P. was ripe for trial. Instead of prosecuting the O.P.
diligently, the petitioners took several adjournments, and when the matter was
called on 01.07.2010, the petitioners again sought for adjournment and the same
was adjourned to 16.07.2010 on condition that if the petitioners fail to proceed
with the matter on that day, the O.P. stands dismissed. On 16.07.2010, when the
O.P. was called, none appeared for the petitioners though the O.P. was posted
conditionally. In that view of the matter, the trial Court dismissed the O.P.
The contention of the petitioners is that they filed application under Section
148 read with Section 151 of CPC on 16.07.2010 to grant fifteen days time. As
held by the trial Court there is no such application on the record. Even if it
is assumed that the petitioners filed such an application for adjournment, it
cannot be entertained since the O.P. was posted conditionally. Further, in the
affidavit filed in support of the restoration application, it is stated that
they were out of station on 16.07.2010 due to their respective personal work,
but they have not filed any authentic proof to show that they were not in a
position to attend the Court and lead the evidence on 16.07.2010.
11. So far as the observation of the trial Court at the interlocutory stage
that the main O.P. has become infructuous is concerned, the trial Court while
coming to the conclusion that there are no merits in the restoration
application, appears to have observed that the O.P. has become infructuous by
relying on some authentic information that general body meeting was conducted,
elections were held and respondents 2 and 3 had placed the accounts before the
general body meeting in respect of respondent No.1 society. Therefore, this
Court does not find fault with the observation of the trial Court.
12. In view of the above discussion and having regard to the facts and
circumstances of the case, this Court is of the considered opinion that the
impugned order does not suffer from any illegality or irregularity warranting
interference, and as such, the C.M.A. is liable to be dismissed.
13. In the result, the C.M.A. is dismissed. No order as to costs.
_________________
B.N. RAO NALLA, J
Date:04.10.2012
