APHC010295522017 IN THE HIGH COURT OF ANDHRA PRADESH AT AMARAVATI (Special Original Jurisdiction) [3558] FRIDAY,THE THIRTEENTH DAY OF MARCH TWO THOUSAND AND TWENTY SIX PRESENT THE HONOURABLE SRI JUSTICE CHEEKATI MANAVENDRANATH ROY THE HONOURABLE SRI JUSTICE TUHIN KUMAR GEDELA IA 2 OF 2021 IN APPEAL SUIT NO: 243/2017 Between: The Trust Association Of The Convention Of The Baptist Churches of the Northern Circars (CBNC), Regd. No.12/1960, through its Chairman T.D.S. Kumar (since died) Smt. T. Karuna Veni The Trust Association of the Convention of the Baptist Churches of the Northern Circars (CNCNC), Regd. No.12/1960, through its Chairperson Smt. Terapalli Karunaveni W/o late T.D.S. Kumar, aged about 65 years, Mastermen Street, Yelamanchili, Visakhapatnam (Petitioner died Smt. T.Karuna Veni W/o Sri T.D.S. Kumar brought on record as LR of petitioner as per the Court order dt.31.3.2021 in I.A.No.1/2021) ... PETITIONER/APPELLANT AND Dasari Samuel and 26 Others ...RESPONDENTS Counsel for the Petitioner: 1. VSR ANJANEYULU, SENIOR COUNSEL, REPRESENTING V SATYANARAYANA PRASAD 2. Counsel for the Respondents: 1. V V RAVI PRASAD The Court made the following: 2 Order: (per Ch. Manavendranath Roy, J.) This interlocutory application under Section 151 of CPC is filed by a person, by name H.S.S. Paul, claiming to be the Chairman of the Trust Association of the Convention of the Baptist Churches of the Northern Circars to set aside the order dated 16-4-2021 dismissing the appeal in A.S.No.243 of 2017 as withdrawn and to restore the appeal on to the file of the Court and to decide the same on merits. 2. Heard Sri V.S.R. Anjaneyulu, learned Senior Counsel, representing Sri V. Satyanarayana Prasad, learned counsel for the petitioner and Sri V.V. Ravi Prasad, learned counsel for the respondents. 3. Originally, the suit in O.S.No.454 of 2006 was instituted by the plaintiff therein, Trust Association of the Convention of the Baptist Churches of the Northern Circars (hereinafter referred to as “CBCNC”), represented by its the then Chairman, by name T.D.S. Kumar, in the Court of I Additional Senior Civil Judge, Visakhapatnam, for permanent injunction against the defendants therein who are 27 in number. Except the defendants 4, 9 and 10, other defendants did not file their written statements and they did not contest the suit. Only defendants 4, 9 and 10 contested the suit. 4. While the suit was pending trial before the Court of I Additional Senior Civil Judge, Visakhapatnam, it was transferred to the Court of I Additional District Judge, Visakhapatnam. Thereafter, it was renumbered as O.S.No.18 of 2009. The said suit filed for permanent injunction by CBCNC was eventually dismissed by the trial Court on 23-01-2017. But, the trial Court has appointed the District Collector, Visakhapatnam, as Receiver to take possession of the plaint schedule property and to manage the same subject to the consent to be given by him. 5. Aggrieved by the said judgment of the trial Court in dismissing the suit, the CBCNC, represented by its the then Chairman T.D.S. Kumar has 3 preferred an appeal to this Court in A.S.No.243 of 2017. After the said appeal was preferred in the year 2017, the Chairman of the Trust Association of CBCNC died on 18-7-2020 during the pendency of the appeal. Thereafter, a person, by name T. Karuna Veni, who is the wife of the said T.D.S. Kumar, filed an application under Rule 29 of the Andhra Pradesh Civil Rules of Practice read with Section 151 of CPC in I.A.No.1 of 2021 in A.S.No.243 of 2017 to permit the Trust Association of CBCNC, represented by its Chairperson Smt. T. Karuna Veni as appellant substituting T.D.S. Kumar. It is stated by her that after the death of the then Chairman of the Trust Association of CBCNC T.D.S. Kumar that the Trust members have unanimously resolved to appoint her as Chairperson of the Trust Association of CBCNC by a resolution dated 11-11-2020 and consent letters are also issued authorizing her to deal with the appellant Trust Association of CBCNC and its properties and also to pursue the litigation pending in various Courts and in this appeal and a separate resolution nominating her as Chairperson of the said Trust Association was also passed and the said properties of CBCNC are under her management. 6. The said application was allowed by this Court by order dated 31-3-2021. Therefore, she was permitted to represent the Trust Association of CBCNC as its present Chairperson. Subsequently, a memo dated 15-4-2021 was filed by the appellant Trust Association of CBCNC before the learned single Judge seeking permission to withdraw the said appeal. Therefore, the said appeal suit was dismissed as withdrawn by the learned single Judge on 16-4-2021. 7. Thereafter, a person, by name H.S.S. Paul, claiming himself to be the Chairman of the appellant Trust Association of CBCNC, filed an application under Section 151 of CPC to set aside the said order dated 16-4-2021 dismissing the appeal as withdrawn. It is stated by him in his affidavit that CBCNC is a registered association bearing registered No.12/1960 under the Andhra Pradesh Societies Registration Act, 2001 and he is elected as 4 Chairman of the Trust Association of CBCNC after the death of the erstwhile Chairman T.D.S. Kumar. But, Smt. T. Karuna Veni, who is not a member of the Association, without authority, has withdrawn the appeal filed by the Trust Association of CBCNC and the said withdrawal is not valid under law. According to him, she is not authorized to represent the Association. It is stated that he came to know about the withdrawal of appeal in the 2nd week of June, 2021. Therefore, he prayed to set aside the said order and to restore the appeal on to the file of the Court to decide the same on merits. 8. Elaborate arguments have been addressed both by the learned Senior Counsel for the petitioner and the learned counsel for the respondents in support of their respective contentions. 9. Learned Senior Counsel for the petitioner submits that the said T. Karuna Veni is not a member of the Association and as such she cannot be elected or nominated or appointed as a Chairperson of the Association to represent the Trust Association of CBCNC and a person, who is a member of the Association, can only be elected or appointed as a Chairman/ Chairperson of the Trust Association and as such even if she is appointed or nominated as Chairperson that the same is not valid under law and she cannot represent the appellant Trust Association in the appeal and she cannot withdraw the appeal on behalf of the Association. He vehemently contended that a deliberate fraud was played by bringing her on record as Chairperson of the Association and withdrawing the appeal and as H.S.S. Paul, who is the member of the Association, was elected by the Association as Chairman of the Trust Association, he came to know about the dismissal of the appeal as withdrawn and he is constrained to file this petition to set aside the said order of dismissing the appeal as withdrawn and to restore the same on to the file of the Court to protect the interest of Trust Association of CBCNC. In support of his contention, he relied on a judgment of the Division Bench of the erstwhile High Court of Andhra Pradesh rendered in the case of Sri Radhakrishna 5 Rice Mill Co. v. The Jumma Maseed1, wherein it is held that when a compromise decree was passed, if it is found to be not valid and legal that the same can be questioned and the compromise decree can be set aside. 10. Per contra, the learned counsel for the respondents would submit that as per the bye-laws of the Trust Association of CBCNC, the term of each member shall be five years and if a member dies before expiry of the term of five years that another member can be appointed by the Executive and Finance Board to act for the remaining term and as the Chairman is also member of the Association and if he dies before the expiry of the term that the Executive and Finance Board shall appoint another member to act for the remaining term. He contends that as per the documents, which are now produced by the said H.S.S. Paul, he was not appointed as Chairman of the Association by the Executive and Finance Board and the said documents show that he was elected by the General Body of the Association in election for the remaining term of three years and the said election is not valid according to the bye-laws as there cannot be any General Body election to elect a Chairman or any Executive Members before the expiry of the term of five years. Therefore, he contends that the said H.S.S. Paul is not authorized to represent the Trust Association of CBCNC as per the bye-laws and he has no locus standi to file the present petition to set aside the order of dismissal of the appeal as withdrawn and the said petition is liable to be dismissed. 11. He then vehemently contended that when an appeal is dismissed as withdrawn, a petition under Section 151 of CPC to set aside the same is not maintainable and his remedy is only by way of filing a suit questioning the legal validity of the said order on the ground of the alleged fraud pleaded by the petitioner. Therefore, he prays for dismissal of the present petition as not maintainable. 1 AIR 2003 AP 70 6 12. We have given our anxious and thoughtful consideration to the aforesaid rival submissions made by both the learned counsel. 13. As regards the cavil raised by the learned counsel for the respondents regarding the maintainability of this petition is concerned, we have absolutely no hesitation to hold that the said contention is devoid of any merit as per the settled law and an application under Section 151 of CPC is maintainable to set aside the compromise decree or the order of withdrawal of the suit or appeal on the ground of fraud or misrepresentation pleaded by the petitioner. If ultimately the alleged fraud pleaded by the petitioner in obtaining the order for withdrawal of the suit or appeal or in obtaining a compromise decree is found to be true as per the material on record, it is well within the competence of the Court to set aside the same by entertaining an application under Section 151 of CPC. The legal position in this regard is not res integra and it is well settled. 14. The Apex Court in the case of Jet Ply Wood (P) Ltd. v. Madhukar Nowlakha2 clearly held that the absence of a specific provision in the Code of Civil Procedure providing for filing an application for recalling of an order permitting withdrawal of an appeal cannot be ground to reject that application and Section 151 of the Code of Civil Procedure can be resorted to in the said circumstances in the interest of justice. It is held that the principle is well established that when the Code of Civil Procedure is silent regarding the procedural aspect, inherent power of the Court can come to its aid to act ex debito justitiae for doing real and substantial justice between the parties. 15. The Calcutta High Court in the case of Rameswar Sarkar v. State of W.B.3 allowed the application to set aside withdrawal of the suit in exercise of its inherent powers in Section 151 of CPC upon holding that when through 2 (2006) 3 SCC 699 3 AIR 1986 Cal 19 7 mistake the appellant/plaintiff had withdrawn the suit, the Court would not be powerless to set aside the order permitting withdrawal of the suit. 16. Though in the said case it is held that when the plaintiff by mistake has withdrawn the suit that subsequently on a petition filed under Section 151 of CPC by the plaintiff that the Court can set aside the order permitting the withdrawal of the suit, the said power can also be exercised when a petition is filed by a person claiming to be the representative of the Association who is validly appointed to set aside the order permitting withdrawal of the suit or appeal on proof of any ground pleaded relating to the fraud played in obtaining the said order. Therefore, the cavil raised by the learned counsel for respondents is answered accordingly holding that the petition is maintainable. 17. However, considering the facts of the present case, we are of the considered view that the order passed by the learned single Judge dismissing the appeal as withdrawn cannot be now recalled and set aside. It is significant to note that the Trust Association of CBCNC is an Association registered under the A.P. Societies Registration Act. There is absolutely no dispute regarding the said material fact. In fact, it is the case of the petitioner herein itself as pleaded in his affidavit filed in support of this petition that the plaintiff/appellant is a Trust Association registered under the A.P. Societies Registration Act. Therefore, the Chairman or Executive Member or any Member of the Association is to be elected or appointed as per the procedure prescribed in the bye-laws of the Association. The petitioner himself has placed on record the rules and regulations of the Trust Association of CBCNC which contain the bye-laws also in the paper book submitted by him. In the bye-laws, it is stated that the Trust Association of CBCNC shall have a Chairman and a Secretary and the term of office of each member shall be five years and most importantly, the bye-laws say that if a member dies that another member shall be appointed by the Executive and Finance Board to act for the remaining term. 8 18. Therefore, the bye-laws clearly indicate that the term of the Trust Association is for five years and the member of the Association shall be elected as a Chairman or a Secretary and if a member dies before the expiry of the term of five years that another member can be appointed by the Executive and Finance Board to act for the remaining term. So, if a Chairman passes away before the expiry of the term of five years, another member of the Trust Association is to be appointed by the Executive and Finance Board to act for the remaining term and not by way of any election by the General Body. By the date on which T.D.S. Kumar, who is the Chairman of the Trust Association passed away on 18-7-2020, there is still a period of three years for the term to expire. Therefore, it is only the Executive and Finance Board, which is competent to appoint another member as Chairman of the Trust Association. There is nothing to indicate in the bye-laws that fresh election is to be conducted to elect the Chairman in the General Body meeting. H.S.S. Paul, who is the petitioner herein, was not appointed by the Executive and Finance Board as per the bye-laws. As per the documents produced by him, an election was conducted and in the General Body meeting he was elected as Chairman. Therefore, as rightly contended by the learned counsel for respondents, H.S.S. Paul is not validly appointed as Chairman of the Trust Association as per the bye-laws. Therefore, he is not competent to file the present petition to recall and set aside the order dismissing the appeal suit as withdrawn. 19. Equally, the appointment or nomination of Smt. T. Karuna Veni as Chairperson of the Trust Association also appears to be under cloud in this case. It is already noticed that as per the bye-laws if a member dies before the expiry of the term, only another member is to be appointed by the Executive and Finance Board. It is the specific case of the petitioner that she is not a member of the Trust Association of CBCNC and even the Executive and Finance Board cannot appoint or nominate her as a Chairperson of the Association. Learned counsel for the petitioner contends that she is the 9 member of the Association and he can produce evidence to that effect. But, noting is produced. The respondents also did not produce any material before the Court to show that she was a member of the Association as on the date of her appointment as Chairperson of the Association. But, that cannot be now a valid ground to set aside the order of dismissal of the appeal as withdrawn. Now, Section 23 of the A.P. Societies Registration Act is relevant in the context to consider. As the appellant Trust Association was registered under the A.P. Societies Registration Act, any dispute relating to affairs of the Society has to be adjudicated in a petition filed under Section 23 of the A.P. Societies Registration Act before the District Court concerned. Here, when both Smt. T. Karuna Veni and H.S.S. Paul claim to be the Chairman of the Association and when the appointment or election of both of them respectively is questioned by each of them on the ground that it was not done as per the bye-laws, who is validly appointed as per the bye-laws is the matter to be decided by the concerned District Court under Section 23 of the A.P. Societies Registration Act. Therefore, the petitioner has to pursue his remedy before the concerned District Court under Section 23 of the A.P. Societies Registration Act and then if he is found to be validly appointed as Chairman as per the bye-laws, then he will have locus standi or legal right to question the said order. 20. The alleged fraud is not proved and established by the petitioner in this case. It is settled law that in order to establish a fraud alleged, there must be a specific plea with details to that effect in the pleadings and there must be evidence adduced to prove the said fact. Essentially, fraud is a disputed question of fact. Therefore, it requires specific plea and proof. So, it cannot be decided in a writ petition by the Writ Court. It has to be decided by a competent Civil Court. 21. Further, as per the documents produced by the petitioner showing election of Executive and Finance Board, they were elected for the remaining period of three years from the year 2021 to 2024. Therefore, as on today 10 even the said H.S.S. Paul is not shown to be the Chairman of the Association as the said three years period expired in the year 2024. Who is elected after the expiry of term of five years as Chairman of the Association at present is not known. Therefore, in the said facts and circumstances of the case, no valid legal ground is found to be existing in the present petition to recall or set aside the impugned order. 22. Therefore, for the aforesaid reasons, the application is dismissed. ___________________________________ CHEEKATI MANAVENDRANATH ROY, J. ________________________ TUHIN KUMAR GEDELA, J. 13th March, 2026. Ak 11 HONOURABLE SRI JUSTICE CHEEKATI MANAVENDRANATH ROY AND HONOURABLE SRI JUSTICE TUHIN KUMAR GEDELA I.A.No.2 of 2021 in Appeal Suit No.243 of 2017 (per CMR, J.) 13th March, 2026. (Ak)