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TMI Blog2003 (3) TMI 778X X X X Extracts X X X X X X X X Extracts X X X X ..... ed to erect a construction in the said plot of land which was numbered as Plot No. 71-72 at the relevant time and he was granted permission by concerned competent authority. Necessary documents were produced along with the plaint. The plaintiff could not construct on the plot for his own reason but thereafter plaintiff came to know that around 7th of January, 2001 that Cooperating Housing Society was constructing a temple on Plot No.71 allotted to him. Some averments are made in the plaint that he tried to contact Secretary and President of the Society in this respect who informed that the plaintiff could not have any objection in construction of building of temple. While thereafter plaintiff verified the revenue record, he found that within the plot of the plaintiff in revenue record one plot was demarcated and allotted to original defendant No.6 Mr. Ratilal C. Shah admeasuring 3072 sq. feet of land. The plaintiff, according to him, was never given an opportunity of being heard in making these changes in revenue record. The plaintiff also alleged that the changes made in the revenue record is against the law established and against the provisions of the Bombay Land Revenue Code. I ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... il Court had jurisdiction to deal with the suit and that the suit was not barred under Section 167 of the Gujarat Cooperative Societies Act, 1961. The said order of the learned Civil Judge (SD), Baroda of 11th February, 2003 rejecting the application Exh. 33 filed by opponent No.1 is challenged by original defendant No.1 in this Revision Application. 5. Learned Senior Counsel Mr. A.J. Patel, for the petitioner was heard at length while learned Senior Counsel Mr. P.M. Thakkar on behalf of Caveator Respondent No.1 original plaintiff was also heard at length at this stage. 6. The main stress of the contentions raised by the learned Counsel Mr. Patel on behalf of the petitioner is in respect of the nature of the dispute and the relationship of the plaintiff with the petitioner being a member and a registered cooperative housing society. It was stated that whether the member of a registered cooperative housing society is entitled to file suit against a society and maintain the same in respect of a dispute pertaining to the business and management of the society. My attention was drawn to Sections 96 and 167 of the Gujarat Cooperative Societies Act, 1961 and it was contended that h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... committed jurisdictional error in rejecting the application at Exh.33. The Civil Court assumed the jurisdiction which was not vested in it and if the Civil Court had not assumed the jurisdiction as has been done, the Suit would be liable to be dismissed on the ground of want of jurisdiction of the Civil Court. The Legislative idea and the intention behind making provisions in the shape of Sections 96 and 167 in the Gujarat Cooperative Societies Act, 1961 clearly indicates the object underlying that cooperative societies as well as the members could not be dragged in a protracted litigation and, therefore, a special machinery is provided for. It was ultimately urged that the Revision Application be allowed and after setting aside the order impugned, the plaint either be returned or rejected. Learned Counsel for the petitioner relied upon certain decisions which will be referred hereunder : 6.1 Relying on a Division Bench Decision of this Court in the matter of M.G. PATEL CO., NAVSARI, vs. SHRI ALKA COOPERATIVE HOUSING SOCIETY LTD., NAVSARI, as reported in 1980(2) GLR 498, it was argued that the suit was barred against the cooperative society as no notice was issued under Secti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sions of S.96(1)(e) of the Act. In para-4 of the decision, it is further observed that though the term dispute has not been defined in the Act, but according to ordinary dictionary meaning, there is no reason why either from the context or from the reading of the provisions of sub-sec. (1) of S. 96 of the Act narrow meaning to the term dispute be given. It was observed that this was much more so when the term dispute is prefixed by the word 'any' and the word 'any' which precedes the term dispute indicates that each and every dispute which touches the constitution, management or business of the society is covered by the provisions of S. 96(1) of the Act. This decision was relied upon to advance a contention that what type of dispute is covered by touching of business of the society . 6.3 In this respect, learned counsel for the petitioner further placed reliance on the decision of this Court in the matter of ANJALIBEN NIKHILCHANDRA MEHTA ANR. vs. PRABHAKAR BAPURAO FANSALKAR ORS., reported in 1999 (2) GLR 1198, the Court observed that having regard to the plaint filed in the dispute, respondent Nos. 3 and 4 who were the petitioners of Special Civil A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Advocate for the petitioner relied upon a decision of this Court in the matter of THAKKAR LILADHAR VAGHJIBHAI vs. JAMNAGAR JILLA SAHAKARI KHARID VECHAN SANGH LTD., reported in 1981 (1) (Vol. 24) GLR 722. This Court ruled in the above said decision that the provisions of Section 167 of the Gujarat Cooperative Societies Act are mandatory and they cannot be waived. The purpose of a notice under Section 167 is not for the individual benefit of the society, but it is for the benefit of the general public interest. It was further observed that the legislature wanted in the public interest that before any cooperative society was dragged into litigation, the Registrar of Cooperative Societies should be put in mind of the affairs of the Society so that he might look into the matter. The legislature also wanted that in order to enable the Registrar who might have many thing to manage simultaneously should have the minimum period of two months at his disposal and in order to safeguard this minimum period a statutory bar is created against the institution of the suit itself. Relying on these observations, it was argued that when dispute is touching to the business of the society, the notice is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... itioner after relying on some decisions of different courts and dictionary meaning of the word Disposal contended that the order of returning a plaint would amount to final disposal of the suit and, therefore, revision would be maintainable against rejecting an application for returning of the plaint as per Order 7 Rule 10 of the Code of Civil Procedure. Learned Counsel for the petitioner places on record a decision of the Punjab High Court in the matter of S. RAGHBIR SINGH vs. MILKHA SINGH JAT, as reported in AIR 1954 Pun. 261, wherein the High Court of Punjab after referring to well established rule of interpretation that the language used in a constitutional provision should receive a liberal construction so as to cover all contingencies, observed that expression Disposal appearing in entry 41 is wide enough to cover the extinguishment of a mortgage. With reference to the contention that disposal of the suit as envisaged by the proviso of Section 115(1) of the Civil Procedure Code (as amended) construing liberally covers the return of the plaint as well. Learned Advocate for the petitioner has also relied on a decision of the Calcutta High Court in the matter of KALYAN KUMAR ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ued as final disposal of the suit. 9.1 So far as Order 7 Rule 11 of the Civil Procedure Code is concerned, it is submitted that plaint be rejected relying upon the statement made in the plaint. It was submitted that on perusal of the plaint, it clearly appeared that mixed question of law and facts have arisen and when the court is required to go into the facts of the case, the plaint could not be rejected under Order 7 Rule 11 of the Civil Procedure Code. Learned Advocate for the Caveator - opponent No.1 relied upon certain decisions, namely, PATEL MEGHJIBHAI VITHALBHAI vs. KHETIVADI UTPAN BAZAR SAMITI, UPLETA, reported in 1995 (2) GLR 1497, wherein this Court has observed that the Order 7 Rule 11 (D) of the Civil Procedure Code provides for rejection of a plaint on the ground where the suit appears from the statement in the plaint to be barred by any law. This Court further observed that the condition precedent for rejection of the plaint under the aforesaid statutory provision was some statement in the plaint showing that the suit was barred by some law. Since this condition was not satisfied, the plaint could not be rejected. The Court further observed that the want of statut ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cerned, learned counsel for the Caveator relied upon a decision of this Court in the matter of RAVJIBHAI DESAIBHAI PATEL vs. RAJPATH COOPERATIVE SOCIETY, reported in 1976 GLR 1010, wherein this Court held that it was settled law that the expression touching the business of the society must be interpreted liberally and the widest connotation must be given to the said expression. This Court further observed that, however wide the interpretation might be, it would not take within its sweep a dispute arising out of a charge of false and vexatious prosecution of a member of a society. To strengthen his contention further, learned counsel for the Caveator also relied upon a decision of this Court in the matter of SHANKERBAG COOPERATIVE HOUSING SOCIETY LIMITED vs. KUMARI SAROJBEN MAGANBHAI, as reported in 1991 (1) GLH 279 wherein this Court observed that what was the nature of dispute and what was the scope of controversy in each case was required to be examined so as to consider whether it related to the main object of the society or touching its business. This Court further observed that the expression touching in Section 167 of the Act would mean, concerning . If the question was r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re we enter into the controversy to decide the same, it is beneficial to have a look at the scope of the revisional power of the High Court under Section 115 of the Code of Civil Procedure. Section 115 of the Civil Procedure Code has undergone a drastic change by Amending Act No. 46/1999. The said Amendment came into force w.e.f. 1st of July, 2002. Undoubtedly, this scope of revisional powers by the said Amendment is circumscribed by legislature and not widened. But, if we consider the scope of revisional powers of the High Court before it undergone an amendment, as said above, then also it is clear that the scope was very limited even before amendment as aforesaid and which was more circumscribed by the amendment. To understand the nature of the jurisdiction which High Court exercises under Section 115 of the Civil Procedure Code, the observation of the Supreme Court in the matter of VORA ABBASBHAI ALIMAHOMED vs. HAJI GULAMNABI HAJISAFIBHAI, reported in AIR 1964 SC 1941 will be a useful guide though the case which the Apex Court dealt with was under the Bombay Rent Act, Revision was permissible under Section 29 of the said Act. The Supreme Court in Paras 15 and 16 of the decision ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 16. Mr.Chatterjee for the plaintiff contended that the District Court in declining to pass a decree in ejectment refused to exercise a jurisdiction vested in it by law, and therefore the case fell within the terms of cl. (b) of s. 115. Counsel relied in support of his plea upon Joy Chand Lal Babu v. Kamalaksha Chaudhury, 76 Ind App 131 : (AIR 1949 PC 239). In Joy Chand Lal's case, 76 Ind App 131 : (AIR 1949 PC 239) an application for relief under ss. 30 and 36 of the Bengal Money Lenders Act was dismissed by the Subordinate Judge on the view that the loan in question was a commercial loan which did not fall within the terms of the Act. The Judge however proceeded to consider whether the suit in which the application was made was a suit to which the Act applied, and held that it was such a suit. The High Court of Calcutta set aside the order. In appeal the Privy Council agreed with the High Court that the Subordinate Judge was bound, upon his finding that the loan was a commercial loan, to dismiss the application without determining whether the suit was one to which the Act applied. Sir John Beaumont in dealing with the power of the High Court observed: There have been a ver ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t rightly or wrongly. Section 12(1) does not affect the jurisdiction of the Court to entertain and decide a suit in ejectment against a tenant. It merely confers a protection upon a tenant if certain conditions are fulfilled, and cls. (2) (3) (a), (3) (b) and the Explanation deal with certain specific cases in which readiness and willingness pay standard rent, may either be presumed or regarded as proved. The decision of the District Court that the tenant established or failed to establish his readiness and willingness to pay the standard rent does not affect the jurisdiction of the Court conferred by law upon it, and by wrongly deciding that a tenant is or is not entitled to protection, the Court does not assume to itself jurisdiction which is not vested in it by law or refuse to exercise a jurisdiction which is vested in it by law. Nor does the Court by arriving at an erroneous conclusion on the plea of the tenant as to his readiness and willingness act illegally or with material irregularity in the exercise of its jurisdiction. 12. The powers under revision is undoubtedly discriminatory powers but has to be exercised, as said above by the Apex Court and within the parame ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... WARJI OIL MILL GINNING FACTORY vs. YOGRAJSINHA SHANKERSINHA PARIHAR, as reported in AIR 1984 SC 1895 held that the High Court shall not interfere in revisional jurisdiction only on the ground that a different view on facts elicited was possible. Thus the scope which was limited was more circumscribed by Amendments. It also be noted that proviso to old Section 115 (1)(b) that the order, if allowed to stand, would occasion a failure of justice or cause irreparable injury to party against whom it is made is wholly deleted. 14. With the abovesaid limited jurisdiction and limited scope, as said above, the order impugned is required to be examined by this Court in this Revision. The issue has arisen two folds. The first part is in respect of the order under Order 7 Rule 10 for return of the plaint and the second part is about rejection of the plaint under Order 7 Rule 11(D) of the Civil Procedure Code on account of Section 167 of the Gujarat Cooperative Societies Act, 1961. Plaint can be returned when the Civil Court has no jurisdiction to try the suit. The plaint can be rejected when the suit itself is barred by any law. So Court is empowered to return the plaint or reject the pl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion 115 of the Code of Civil Procedure. As aforesaid, this is more so because of return of plaint, the suit would not come to an end but Order 7 Rule 10-A of the Civil Procedure Code prescribes procedure how to deal with the plaint by the plaintiff when the plaint is returned to the plaintiff. Provisions has been made to direct the plaintiff to appear before the Court which might have jurisdiction for the presentation of the plaint. This provision clearly indicates that the order of return of the plaint can never be said to be a final disposal of the suit on the ground that the court which had no jurisdiction and which returned the plaint had nothing to do with the suit further. The phraseology the final disposal of the suit employed in the proviso is to be understood not the court wise but the suit wise and disposal wise and that too disposal according to law as prescribed by the Code of Civil Procedure. The proviso further suggests that it is not a disposal only but it should be final disposal of a suit. Thus, if we apply proviso, so far as the arguments about the return of the plaint is concerned, then the order in favour of revisionist in the circumstances would be returning ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the society and according to the case of the petitioner since the dispute is in respect of allotment by a member of society, it is a clear case under Order 7 Rule 11 (D) of the Civil Procedure Code. 19. To scrutinize the contention and the issues raised, the two very important facts are (i) statement made in the plaint, and (ii) what is touching to the business of the society , in the present case. For the reference, it may be said that if the plaint is read as a whole and cannot be read otherwise the statements have been made that the plaintiff became member of the society in 1980, and was allotted Plot Nos. 71 and 72 admeasuring about 10000 sq. feet land. The plaintiff has also stated that now the said plot belongs to his ownership. For this statement, the plaintiff relied upon certain documentary evidence. A statement is also made in the plaint that he obtained permission from the competent authorities to construct upon the plot, but he could not do that. On one fine day, he came to know that society was constructing a temple in his plot. When he met the President and Secretary of the Society, he was not satisfied. According to the further statement in the plaint he check ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Code. But, if the Court has to ascertain the facts of the case in respect of the statement made in the plaint, then Order 7 Rule 11(D) of the Civil Procedure Code is not the proper stage to reject the plaint. 21. In the present case, as stated above, the statement made in the plaint discloses allegations on society to the extent of encroachment and fabrication of Public Record. Undoubtedly, any court will have to ascertain facts of the case in this regard. Meaning thereby that by mere statements made in the plaint, a court would not be in a position to come to the conclusion as to whether dispute raised is touching to the business of the society. That being the factual aspect of the case, Trial Court rejected the Application at Exh.33 for rejection of Plaint under Order 7 Rule 11(D) of the Civil Procedure Code. 22. In revisional jurisdiction with limited scope and power, this Court is not inclined to enter into the disputed facts of the case as to whether the society encroached upon the land as per the statement made in the plaint, but if this is so, the order of rejection of a plaint on statement made in the plaint would, in the facts and circumstances not be proper. This ..... X X X X Extracts X X X X X X X X Extracts X X X X
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