IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD WEDNESDAY, THE TENTH DAY OF AUGUST TWO THOUSAND AND ELEVEN Present HON’BLE SRI JUSTICE G. BHAVANI PRASAD CIVIL REVISION PETITION No.884 of 2011 Between: Md. Riyazuddin & another .. Petitioners AND The Hyderabad Cricket Association & 5 others .. Respondents The Court made the following: HON’BLE SRI JUSTICE G. BHAVANI PRASAD CIVIL REVISION PETITION No.884 of 2011 ORDER: Heard Sri M. Damodar Reddy, learned counsel for the revision petitioners. None entered appearance for the respondents during hearing since a number of dates of hearing though respondents 1 and 3 are represented by learned counsel. 2. The Civil Revision Petition is directed against the dismissal of I.A.No.286 of 2010 in O.S.No.506 of 2008, on the file of the Junior Civil Judge’s Court, Mahabubnagar, dated 02.02.2011. 3. O.S.No.506 of 2008 was filed by the revision petitioners questioning the elections held to Mahabubnagar Cricket Association and along with the suit, I.A.No.806 of 2008 was filed by the revision petitioners for restraining the defendants 5 and 6 from acting as the President and Secretary of the said association and for restraining defendants 1 to 4 from permitting defendants 5 and 6 to act in any such capacity. I.A.No.806 of 2008 was disposed of by the trial Court by an order, dated 12.07.2010, concluding prima facie that Section 23 of the Andhra Pradesh Societies Registration Act, 2001 (for short, ‘the Act’), provides for determination of the disputes arising among the committee or the members of the society, in respect of any matter relating to the affairs of the society, through an application to the District Court concerned or under the provisions of the Arbitration and Conciliation Act, 1996. The trial Court also noted that the second revision petitioner is not a member of the association in question and considered the revision petitioners to have not approached the Court with clean hands. The interim injunction sought for was, hence, refused. 4. Thereafter, the revision petitioners filed the present petition referring to the plea taken by the defendants in the written statement that the civil Court has no jurisdiction to entertain the election dispute and consequently requesting for permission to withdraw the suit with permission to file the same before the District Judge, Mahabubnagar District, as an election petition. 5. The trial Court passed the impugned order noting that in fact, I.A.No.31 of 2009 was filed by the defendant Cricket association questioning the jurisdiction of the civil Court in the light of Section 23 of the Act. The trial Court also noted that in that petition, the revision petitioners contended that the civil Court has jurisdiction and took a contrary stand in this application. The trial Court also considered that Order XXIII Rule 1 of the Code of Civil Procedure, 1908 (for short, ‘C.P.C’), does not, in terms, apply to the request of the revision petitioners and as I.A.No.31 of 2009 and the suit have to be proceeded further to determine the question relating to jurisdiction and as the first plaintiff is not a member of the society, the suit cannot be considered to be failing by reason of any formal defect and, therefore, the petition was dismissed. 6. The revision petitioners contended herein that when the defendants themselves filed I.A.No.31 of 2009 questioning the jurisdiction of the civil Court and pleading that the District Court alone has jurisdiction under Section 23 of the Act, the application could not have been dismissed, more so, when in I.A.No.31 of 2009, the trial Court ordered that the jurisdiction will be decided in the suit. The right of the party to request for return of the plaint for presentation to proper Court could not have been negatived. Hence, the revision petitioners desire that their request be considered. 7. Order XXIII Rule 1 C.P.C gives the liberty to a plaintiff to withdraw or abandon his suit in full or part at any time subject to the limitations specified therein and sub-rule (3) of Order XXIII Rule 1 C.P.C provides for the plaintiff being permitted while withdrawing the suit to institute a fresh suit in respect of the subject matter or part of it. To consider such permission, the Court should be satisfied that a suit must fail by reason of some formal defect or that there are other sufficient grounds for allowing the plaintiff to do so. 8. In the present case, admittedly, one of the revision petitioners is a member of Mahabubnagar Cricket Association, the elections to which society are attempted to be questioned in O.S.No.506 of 2008. The existence or otherwise of the membership of the other plaintiff in such association may not matter in so far as the plaintiff who is admittedly a member of the association who can challenge the correctness, regularity or legality of an election to the association in the manner permitted by law as a member of such association. Section 23 of the Act, under which the said association is stated to have been registered, restricts the jurisdiction to consider any dispute in respect of any matter relating to the affairs of the society among the committee or the members of the society only either to the provisions of the Arbitration and Conciliation Act, 1996, or through an application to the District Court concerned. The jurisdiction of the civil Court is ex facie excluded in such matters by the special law and as seen from the material on record, the applicability of Section 23 of the Act to the dispute in question is now admitted by both the parties and prima facie upheld by the trial Court in I.A.No.806 of 2008. If so, the continuance of the suit before the civil Court will be a futile exercise and if the plaintiffs or either plaintiff has a right to move an application to the District Court under Section 23 of the Act, the same need not have been prevented by the trial Court. This is definitely a situation where the suit will fail by reason of the formal defect or at least there is sufficient ground and justification for considering the request. If the plaint were to be returned for presentation to the proper forum, the interests of justice would have been better served and the appropriate forum will consider the pleading when represented to it on merits about the maintainability of such a pleading before it. It is for the District Court, having exclusive jurisdiction under Section 23 of the Act, to consider whether either revision petitioner is a member of the association who is entitled to make an application under Section 23 of the Act and whether the dispute raised by them is one relating to the affairs of the society and whether the pleading on representation is within the period of limitation and is not expressly or impliedly barred by any other law. While no expression of opinion need be made on such aspects herein which have to be determined by the District Court concerned, if the plaint were to be represented to it as an application under Section 23 of the Act, the trial Court did not exercise the jurisdiction vested in it by law when it dismissed the application. Therefore, the impugned order has to be reversed. 9. In the result, the order, dated 02.02.2011, in I.A.No.286 of 2010 in O.S.No.506 of 2008, on the file of the Junior Civil Judge’s Court, Mahabubnagar, is set aside and the said I.A.No.286 of 2010 is allowed permitting the plaintiffs to withdraw the suit with liberty to represent the plaint before an appropriate forum in accordance with law and the trial Court shall return the plaint to the plaintiffs accordingly. The Civil Revision Petition is ordered, accordingly, without costs and the forum or Court to which the plaint is represented by the revision petitioners in any form shall consider the same in accordance with law uninfluenced by any observations made herein or by the trial Court in the various proceedings in O.S.No.506 of 2008. ______________________ G. BHAVANI PRASAD, J Date: 10th August, 2011 Note: Issue C.C. by 16.08.2011. (B/o.) KL HON’BLE SRI JUSTICE G. BHAVANI PRASAD CIVIL REVISION PETITION No.884 of 2011 Date: 10th August, 2011 KL