Writ Petition No.3229 of 2001

21st August, 2014.

Petitioner Counsel: Mr. V.D. SALUNKE

Cases Cited:
Mr. Hans Jurgen Buchmann Vs. Mrs. Leopoldina C. Rodrigues & Ors., 2004(4) ALL MR 140 [Para 14]
State of Haryana Vs. State of Punjab & Ors., (2004) 12 SCC 673 [Para 15]
D.Ramachandran Vs. R.V. Jankiraman and Ors., 1999(2) ALL MR 430 (S.C.)=(1999) 3 SCC 267 [Para 16]
Grindlays Bank Ltd., Vs. The Central Government Industrial Tribunal & Ors., AIR 1981 SC 606 [Para 20,24]
Kapra Mazdoor Ekta Union Vs. Management of M/s. Birla Cotton Spinning and Weaving Mills Ltd. and Ors., AIR 2005 SC 1782 [Para 21,24]
Rajendra Prasad Gupta Vs. Prakash Chandra Mishra and Ors., 2011 ALL SCR 1560=AIR 2011 SC 1137 [Para 23]

JUDGMENT

JUDGMENT :- By an order dated 08-01-2002, this petition was admitted and interim relief in terms of prayer clause 'E' was granted. Prayer clause 'E' reads as under :-

"E. Pending the hearing and final disposal of this writ petition, the judgment and order dated 6-8-1998 passed by the Maharashtra State, Co-operative Appellate Court of Mumbai, Bench at Aurangabad in Review Petition No. 8/97 to the extent of fixing liability against the present petitioner and judgment and order dated 18-04-2000 passed by the Maharashtra State, Co-operative appellate Court Nanded in Review Petition No. 3/98 may kindly be stayed."

2. Petition has been dismissed as against respondent Nos. 4 & 5 by order dated 29-09-2003 and 03-03-2003.

3. The respondent Nos. 1 to 3 are the original disputants. Respondent No. 5 is the Maharashtra State Seeds Corporation Limited. It is a registered Co-operative Society under the Maharashtra Co-operative Societies Act, 1960 (1960 Act). Respondent Nos. 1 to 3 are members of respondent No. 4 Society. They purchased seeds manufactured by respondent No. 5- Maharashtra State Seeds Corporation Limited. Respondent Nos. 1 to 3 obtained loan from respondent No. 4 society. The petitioner society was merely a supplying agent and was not a whole-sale or retail dealer for respondent 5.

4. The said three persons, therefore, purchased the seeds manufactured by respondent 5 from the petitioner. It is their case that the said seeds were of an inferior quality though certified by respondent 5 and, therefore, caused a serious loss to them. As such, they raised dispute bearing No. CCN/ 4/88 against respondent Nos. 4, 5 and the petitioner.

5. The dispute No. 4 of 1988 was decreed on 28-02-1991. There were specific allegations as are reproduced in the judgment dated 28-02-1991 that the Hybrid seeds of CSH-9 (Jawar), in all nine bags, were sowed in the fertile agricultural fields of the disputants and the same turned out to be of a very low quality and appeared to be adulterated. The expert squad of respondent 5 visited the spot on 26-09-1987 and prepared the Panchanama. The disputants felt deceived, duped and sustained a loss to the tune of Rs. 34,824/-. The details of loss caused were set out in their application.

6. It is submitted by the petitioner that the dispute claim put-forth by the disputants specifically alleged that respondent 5 had recklessly certified the seeds and, therefore, caused a severe loss to the disputants. It is pertinent to note that there are no specific allegations against the petitioner. The entire thrust was against the respondent 5. However, in the prayer clause, the disputants claimed relief jointly and severally against all the opponents i.e. respondent Nos. 5, 4 and the petitioner. By judgment and order dated 28-02-1991 delivered by the Co-operative Court Nanded, the claim was allowed.

7. The petitioner as also respondent 5, filed appeal No. 137 of 1991 and 78 of 1991 respectively before the Maharashtra State Co-operative Appellate Tribunal. The petitioners specifically contended that the entire thrust of the complaint of the disputants was against respondent 5 and it had no concern with the dispute, much less, liable to pay compensation to the disputants.

8. After hearing the respective parties, appeals filed by both were heard together and the Appellate Court directed the Trial Court to decide the amendment application as well as frame an issue as regards jurisdiction of the Trial Court to deal with the dispute under Section 91 of the 1960 Act. The Trial Court was directed to decide the issue and return the evidence recorded together with his findings and reasons within a period of two months. The operative part of the order dated 30-09-1992 passed by the Appellate Court is reproduced as under :-

"Hence the following order :-

ORDER

The lower Court is directed to decide the amendment application, if filed by the opponent No. 3 for amendment of the written statement raising the issue of jurisdiction on merits and in case such application is allowed the Learned Trial Judge is directed to frame the issue as to jurisdiction and record the evidence thereon if desired by parties to the dispute and return the evidence recorded together with his findings and reasons for within a period of two months from the date of receipt of record.

The Order dated 18-07-1991 issued by this Court in Appeal No. 78/91 staying the operation of the order dated 28-02-1991 passed by the Lower Court would continue to operate till the final decision of the Appeal.

No order as to costs."

9. It is submitted that finally the Appeal Court heard the appeal No. 78 of 1991 and allowed the same by directing the Lower Court to decide the whole dispute on merit by framing proper issues pertaining to the jurisdiction. The operative part of the said order dated 06-03-1997 is reproduced as under :-

" ORDER

The appeal is hereby allowed with direction to the Lower Court to decide the whole dispute on merit by framing proper issues.

Parties to appear in the Lower Court on 25.04.97.

No order as to cost."

10. The petitioner submits that review petition No. 8 of 1997 was filed by respondent 5 and not by the petitioner, before the Appellate Court, claiming therein that the disputants were neither employees of respondent No..5 - Maharashtra Seeds Corporation Limited and nor was it (respondent 5) a member of the petitioner or respondent 4 society. It was, therefore, prayed that no claim against respondent No. 5 could be entertained under Section of 91 of the 1960 Act. The review petition was allowed by order dated 06-08-1998 and the Appellate Court arrived at an astonishing finding that only the petitioner and respondent 4 herein are liable to pay compensation as the dispute is maintainable as against them and the respondent 5 was released from its liability only on the ground of jurisdiction.

11. Aggrieved by the said order dated 06-08-1998, the petitioner filed review petition No. 3 of 1998, stating therein that the entire claim of the disputants originated from the inferior seeds manufactured and supplied by respondent 5. The moment it is concluded that the dispute against respondent 5 was not maintainable before the Co-operative Court, the whole dispute is to be held untenable in law. When the entire claim originated from the doorstep of respondent 5, the Appellate Court could not have allowed the review so as to split the dispute into two parts on the point of jurisdiction.

12. It was, therefore, prayed that the order dated 06-08-1998 passed in review No. 8 of 1997 deserves to be reviewed. However, by its judgment and order 17-04-2000, the review petition No. 3 of 1998 was dismissed only on the ground that the Appellate Court did not have the power to review its order passed on earlier review petition. Hence, this petition filed by the petitioner.

13. Having heard the learned Advocate for the petitioner, in my view, when the disputants were aggrieved on account of the inferior quality of the seeds and its certification by respondent 5, the entire dispute is on account of the manufacturing of the seeds by respondent No. 5. It can, therefore, be said that the origin of the dispute emanates from respondent 5.

14. It is held by our Court in paragraph No. 19 in the case of Mr. Hans Jurgen Buchmann Vs. Mrs. Leopoldina C. Rodrigues & others, reported at 2004(4) ALL MR 140 as under :-

"19. Admittedly, in terms of the memorandum of understanding dated 17-12-1991 the exclusive possession of the plaintiff was recognised by the defendants, possession which the plaintiffs were certainly entitled to protect unless they were evicted under due course of law. The plaintiffs had expressed their fear that they might be evicted because of the belligerent attitude of the defendants particular defendant No. 1 after the plaintiffs had stopped the personal financial assistance which the plaintiffs claimed they were rendering to defendant No. 1 from 1997. Since the possession of the suit premises was with the plaintiffs, the plaintiffs could have sought for an injunction against the defendants independently of seeking specific performance for execution of the conveyance deed in terms of prayer (a) of the plaint. The relief of injunction was not incidental to the relief of specific performance sought by the plaintiffs and the relief of injunction sought could not be said to be adjunct to the relief of specific performance. The plaintiffs also would be entitled to amend the plaint to incorporate the subsequent events which took place resulting in the appointment of Commissioner etc. In my opinion, the pleadings of the plaint were sufficient to grant or refuse either both or any of the reliefs sought by the plaintiffs in terms of prayer (a) and (c)of the plaint and one was not dependent on the other. Order VII rule 11 (d) speaks of rejection of the plaint and the plaint to be rejected has to be rejected as a whole and not in part. If any authority is required to support this proposition then reference could be made to the D. Ramchandran Vs. R.V. Janakriaman and others (supra) wherein the Hon'ble Supreme Court with reference to Order VII Rule 11 has stated that under the rule there cannot be a partial rejection of the plaint or petition. In this view of the matter, in my opinion, the learned Trial Court fell into error by rejecting the plaint entirely considering the same to be basically based only on prayer (a) and ignoring that the suit was also filed for injunction in terms of prayer(c) of the plaint. ."

15. It is held by the Apex Court in paragraph No. 35 in the case of State of Haryana Vs. State of Punjab & others, reported at (2004) 12 Supreme Court Cases 673 as under :-

"35. The first question to be answered is : Do these disputes involve any question (whether legal or factual) on which the existence or extent of a legal right of the plaintiff depends? If it does then the next question is, whether the raising of such disputes is barred by any law. If any of these questions is answered in the affirmative then the plaint must be rejected as a whole. On the other hand, if any part of the dispute crosses both hurdles, the suit must survive because there cannot be a partial rejection of the plaint (see D. Ramachandran Vs. R.V. Janakiraman).

16. It is held by the Apex Court in paragraph No. 10 in the case of D.Ramachandran Vs. R.V. Jankiraman and others, reported at (1999) 3 Supreme Court Cases 267 : [1999(2) ALL MR 430 (S.C.)] as under :-

"10. On the other hand, Rule 11 of Order 7 enjoins the court to reject the plaint where it does not disclose a cause of action. There is no question of striking out any portion of the pleading under this Rule. The application filed by first respondent in OA No. 36 of 1997 is on the footing that the averments in the election petition did not contain the material facts giving rise to a tribal issue or disclosing a cause of action. Laying stress upon the provisions of Order 7 Rule 11 (a), learned Senior Counsel for the first respondent took us through the entire election petition and submitted that the averments therein do not disclose a cause of action. On a reading of the petition, we do not find it possible to agree with him. The election petition as such does disclose a cause of action which if unrebutted could void the election and the provisions of Order 7 Rule 11(a) CPC cannot therefore be invoked in this case. There is no merit in the contention that some of the allegations are bereft of material facts and as such do not disclose a cause of action. It is elementary that under Order 7 Rule 11 (a) CPC, the court cannot dissect the pleading into several parts and consider whether each one of them discloses a cause of action. Under the Rule, there cannot be a partial rejection of the plaint or petition. See Roop Lal Sathi V. Nachattar Singh Gill. We are satisfied that the election petition in this case could not have been rejected in limine without a trial."

17. In view of the law laid down as above and the contentions set out by the disputants in their claim dispute clearly indicates that respondent 5 could not be segregated from the dispute in as much as the said dispute could not be segregated into two parts. The dispute as a whole is to be decided, meaning thereby that if the dispute against respondent 5 was not maintainable under Section 91, the whole dispute was rendered untenable in law.

18. Section 150 (1) of the 1960 Act reads as under :-

"(1) The [Co-operative Appellate Court] may, either on the application of the Registrar or on the application of any party interested, review its own order in any case, and pass in reference thereto such order as it thinks just :

Provided that, no such application made by the party interested shall be entertained, unless the [Co-operative Appellate Court] is satisfied that there has been the discovery of new and important matter of evidence, which after the exercise of due diligence was not within the knowledge of the applicant or could not be produced by him at the time when its order was made, or that there has been some mistake or error, apparent on the face of the record, or for any other sufficient reasons:

Provided further that, no such order shall be varied or revised, unless notice has been given to the parties interested to appear and be heard in support of such order.

19. Section 151 of the 1960 Act reads as under :-

"(1) In exercising the functions conferred on it by or under this Act, the [Co-operative Appellate Court] shall have the same power as are vested in a Court in respect of , -

(a) Proof facts by affidavit.

(b) summoning and enforcing the attendance of any person and examining him on oath,

(c) compelling discovery or the production of documents, and

(d) issuing commissions for the examination of witnesses.

(2) In the case of any such affidavit, any officer appointed by [Co-operative Appellate Court] in this behalf may administer the oath to the deponent."

20. It is held by the Apex Court in paragraph No. 6 in the case of Grindlays Bank Ltd., Vs. The Central Government Industrial Tribunal & others, reported at AIR 1981 Supreme Court 606 as under :-

"6. We are of the opinion that the Tribunal had the power to pass the impugned order, if it thought fit in the interest of justice. It is true that there is no express provision in the Act or the rules framed thereunder giving the Tribunal jurisdiction to do so. But it is a well-known rule of statutory construction that a Tribunal or body should be considered to be endowed with such ancillary or incidental powers as are necessary to discharge its functions effectively for the purpose of doing justice between the parties. In a case of this nature, we are of the view that the Tribunal should be considered as invested with such incidental or ancillary powers unless there is any indication in the statute to the contrary. We do not find any such statutory prohibition. On the other hand, there are indications to the contrary."

21. It is held by by the Apex in paragraph No. 19 in the case of Kapra Mazdoor Ekta Union Vs. Management of M/s. Birla Cotton Spinning and Weaving Mills Ltd. and others, reported at AIR 2005, Supreme Court, 1782 as under :-

"19. Applying these principles it is apparent that where a court or quasi judicial authority having jurisdiction to adjudicate on merit proceeds to do so, its judgment or order can be reviewed on merit only if the court or the quasi judicial authority is vested with power of review by express provision or by necessary implication. The procedural review belongs to a different category. In such a review, the Court or quasi judicial authority having jurisdiction to adjudicate proceeds to do so, but in doing so commits a procedural illegality which goes to the root of the matter and invalidates the proceeding itself, and consequently the order passed therein. Cases where a decision is rendered by the Court or quasi judicial authority without notice to the opposite party or under a mistaken impression that the notice had been served upon the opposite party, or where a matter is taken up for hearing and decision on a date other than the date fixed for its hearing, are some illustrative cases in which the power of procedural review may be invoked. In such a case the party seeking review or recall of the order does not have to substantiate the ground that the order passed suffers from an error apparent on the face of the record or any other ground which may justify a review. He has to establish that the procedure followed by the court or the quasi judicial authority suffered from such illegality that it vitiated the proceeding and invalidated the order made therein, inasmuch the opposite party concerned was not heard for no fault of his, or that the matter was heard and decided on a date other than the one fixed for hearing of the matter which he could not attend for no fault of his. In such cases, therefore, the matter has to be re-heard in accordance with law without going into the merit of the order passed. The order passed is liable to be recalled and reviewed not because it is found to be erroneous, but because it was passed in a proceeding which was itself vitiated by an error of procedure or mistake which went to the root of the matter and invalidated the entire proceeding. In Grindlays Bank Ltd. v. Central Government Industrial Tribunal and others (supra), it was held that once it is established that the respondents were prevented from appearing at the hearing due to sufficient cause, it followed that the matter must be re-heard and decided again."

22. In the peculiar facts of this case, from the above stated provisions and the law applicable, it is clear that the Co-operative Appellate Court has the jurisdiction to review its own order as like the Civil Court. There is no specific bar that once an order is passed in a review application, the said review order cannot be subjected to a further review, more so when the earlier review petition was not filed by the petitioner.

23. The Apex Court in the case of Rajendra Prasad Gupta Vs. Prakash Chandra Mishra and others, reported at AIR 2011 SC 1137 : [2011 ALL SCR 1560], has held in paragraph 6 and 7 as under :-

"6. In Narsingh Das V. Mangal Dubey, (1882) ILR 5 All 163 (FB), Mr. Justice Mahamood, the celebrated Judge of the Allahabad High Court, observed :-

"Courts are not to act upon the principle that every procedure is to be taken as prohibited unless it is expressly provided for by the Code, but on the converse principle that every procedure is to be understood as permissible till it is shown to be prohibited by the law. As a matter of general principle prohibition cannot be presumed."

"7. The above view was followed by a Full Bench of the Allahabad High Court in Raj Narain Saxena V. Bhim Sen & others, AIR 1966 Allahabad 84 (FB), and we agree with this view."

Thus, it is trite that when there is no specific prohibition, unless expressly provided in law, every procedure is to be understood as permissible.

24. As such, ends of justice would be met by quashing and setting aside the impugned order passed by the Appellate Court dated 17-04-2000 in review petition No. 3 of 1998 and by directing the Appellate Co-operative Court to consider the Review Petition of the petitioner pertaining to the review order dated 06-08-1998 afresh in light of Section 150 (1) and 151 of the Act of 1960 and the ratio emerging from the judgments referred above and in the case of Grindlays Bank Ltd. and Kapra Mazdoor Ekta Union cases (supra).

25. In the light of the above, this petition is partly allowed. Order dated 17-04-2000 passed by the Cooperative Appellate Tribunal in review petition No. 3 of 1998 is quashed and set aside. Review No. 3/1998 is remitted to the file of the Co-operative Appellate Court, Mumbai Bench at Aurangabad.

26. The Appellate Court shall consider the review petition filed by the petitioner afresh on its own merits, in accordance with law and after hearing all the parties. Nevertheless, the contention of the petitioner that

a] the dispute raised by the disputants cannot be split into two so as to hold that one part of the dispute is maintainable against a particular respondent and one part of the dispute is rendered untenable as against another respondent,

shall be gone into by the Appellate Court. Needless to state, all the parties concerned shall be heard in the matter.

27. It is expected that the Appellate Court shall decide review petition No. 3 of 1998 as expeditiously as possible and preferably within a period of six months from today. Rule is accordingly made partly absolute in the above terms.

Ordered accordingly.