2010 (8) TMI 1163 - HC - Indian Laws

Summary

Issues Involved:
1. Whether the Deputy Registrar of Cooperative Societies hearing an application under Section 35 of the Maharashtra Cooperative Societies Act, 1960 can be regarded as a court for the purpose of Section 41(b) of the Specific Relief Act?
2. Whether a Single Judge of this Court sitting on the Original Side exercising ordinary civil jurisdiction would have the power to grant an injunction restraining the Deputy Registrar of Cooperative Societies from hearing an application under Section 35 of the Maharashtra Cooperative Societies Act, 1960?
3. Whether an injunction can be granted by a Single Judge of this Court sitting on the Original Side and exercising Ordinary Original Civil Jurisdiction, to a party to a suit before it restraining it from prosecuting an application under Section 35 of the Maharashtra Cooperative Societies Act, 1960 before the Deputy Registrar of Cooperative Societies?

Issue 1: Status of the Deputy Registrar of Cooperative Societies as a Court
The judgment addresses whether the Deputy Registrar of Cooperative Societies, when hearing an application under Section 35 of the Maharashtra Cooperative Societies Act, 1960, can be considered a court for the purposes of Section 41(b) of the Specific Relief Act. The court noted that the Deputy Registrar exercises administrative functions rather than judicial functions, and therefore, cannot be regarded as a court. This distinction is crucial in determining whether the High Court can issue an injunction against proceedings before the Deputy Registrar.

Issue 2: Power of a Single Judge to Grant Injunction
The court examined whether a Single Judge of the High Court, sitting on the Original Side and exercising ordinary civil jurisdiction, has the authority to grant an injunction restraining the Deputy Registrar from hearing an application under Section 35 of the Maharashtra Cooperative Societies Act. The court concluded that since the Deputy Registrar is not considered a court, the High Court does not have the power to issue such an injunction under Section 41(b) of the Specific Relief Act. This section specifically prohibits the granting of an injunction to restrain proceedings in a court not subordinate to the one issuing the injunction.

Issue 3: Granting of Injunction by a Single Judge
The judgment also considered whether a Single Judge of the High Court, exercising Ordinary Original Civil Jurisdiction, can grant an injunction to a party in a suit before it, restraining the party from prosecuting an application under Section 35 of the Maharashtra Cooperative Societies Act before the Deputy Registrar. The court reiterated that since the Deputy Registrar is not a court, the High Court lacks the jurisdiction to issue such an injunction under Section 41(b) of the Specific Relief Act.

Subordination of Small Causes Court to High Court
The judgment also discussed whether the Small Causes Court is subordinate to the High Court on its original side. The court referred to various legal provisions and precedents to conclude that the Small Causes Court is indeed subordinate to the High Court. The court cited Section 6 of the Presidency Small Causes Court Act, which explicitly states that the Small Causes Court is subject to the superintendence of the High Court. Additionally, Section 3 of the Civil Procedure Code declares that every Court of Small Causes is subordinate to the High Court.

Conclusion
The court concluded that the Small Causes Court constituted under the Presidency Small Causes Court Act is subordinate to the Bombay High Court on its Original Side. Consequently, the High Court has the jurisdiction to issue injunctions under Section 41(b) of the Specific Relief Act, restraining proceedings in the Small Causes Court. The judgment clarified that the High Court's power to issue such injunctions is not affected by the exclusive jurisdiction conferred on the Small Causes Court by Section 41 of the Small Causes Court Act and the Rent Act. The papers were then directed to be placed before the appropriate court for the decision of the appeals.