Dismissed

Shri. Jaynath Narayan Kate v. Shri. Ramesh Nanasaheb Waghere and Ors.

Bombay HC18 Sept 2014WP/2044/2014

Case brief

AI extract

What is this about?

The High Court disposed of a Writ Petition challenging an Appellate Court's order that permitted production of original documents during an election dispute. The Court dismissed the petition, holding writ jurisdiction was inappropriate and the Appellate Court acted substantively. The Cooperative Court was directed to decide the dispute by December 31, 2014; interim stay was extended.

What did the court decide?

The Writ Petition was dismissed. The Cooperative Court is directed to dispose of the election dispute on or before 31 December 2014. Interim stay of proceedings was extended by four weeks.

Shri. Jaynath Narayan Kate Vs Shri. Ramesh Nanasaheb… — Cooperative Societies | Bombay HC (2014)

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION

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WRIT PETITION NO.2044 OF 2014

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Jaynath N. Kate versus Ramesh N. Waghere & ors.

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..Petitioner

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..Respondents

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Mr. S.S. Kanetkar for the Petitioner. Mr. M.A. Utagikar for Respondent No.1.

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CORAM : M. S. SONAK, J. Reserved on : 11 September 2014 Pronounced on : 18 September 2014.

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P. C.

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1] By order dated 24 February 2014, the parties were put to notice that this petition may be heard and disposed of finally at the stage of admission.

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2] On 3 May 2010, the petitioner was elected as a member of respondent No.3 Bank for a term of five years. Respondent No.1, instituted a dispute under Section 91 of the Maharashtra Cooperative Societies Act, 1960 (said Act) before Cooperative Court disputing the petitioner's election. The issues were framed and in the course of evidence, respondent No.1 tendered certain documents, which came to be marked as Exhibit Nos.3,63, 66, 105 and 110 by the Cooperative Court. On the ground that the exhibited documents were only ' xerox copies', the petitioner applied on 5 August 2013 below Exhibit-171 for ' de-exhibiting' the said documents and excluding the same from evidence on record. The respondents, in turn filed application below Exhibit-170, seeking leave of the Court to produce the original documents. By order dated 19 August 2013, the Cooperative

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Court rejected the petitioner's application below Exhibit-171 and partially granted respondent No.1's application below Exhibit-170. Aggrieved, the petitioner preferred a revision under Section 149 (9) of the said Act before the Maharashtra State Cooperative Appellate Court, Mumbai (Bench at Pune) being Revision Application No.76 of 2013. The Appellate Court, by order dated 10 October 2013 rejected respondent No.1's application below Exhibit-170 and partly allowed the petitioner's application below Exhibit171, by observing that exhibit numbers granted be deemed tentative and respondent No.1 shall have to prove the documents tendered, in accordance with law.

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3] As there was some difficulty in implementation of the Appellate Court's order, the petitioner invited certain orders from the Cooperative Court and thereafter preferred yet another revision petition before the Appellate Court being Revision Application No.102 of 2013.

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4] During pendency of this Revision Application No.102 of 2013, respondent No.1 applied before the Appellate Court for review of the order dated 10 October 2013 in Revision Application No.76 of 2013. Revision Application No.102 of 2013 and Review Application No.9 of 2013 were disposed of by the Appellate Court by order dated 2 December 2013, which has been impugned by the petitioner in the present petition.

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5] By the impugned order dated 2 December 2013 made in Review Application No.9 of 2013, Appellate Court has at least partly varied its earlier order dated 10 October 2013 and granted permission to respondent No.1 to refer to and rely upon the original documents produced by it alongwith application under Exhibit-170. To that extent, production of

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such original documents was permitted.

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6] Mr. Kanetkar, learned counsel for the petitioner strenuously submitted that the impugned order deserves to be interfered with, as respondent No.1 had made out no case for exercise of review jurisdiction. He relied upon the decision of the Supreme Court in the case of Meerabhanja vs. Nirmala Kumari Choudhury – 1995 (1) SCC 170 and a decision of Division Bench of this Court in the case of Nathu Y. Bhusari since deceased by L.Rs.& ors. Vs. Sonabai J. Ganar & ors. - 1994(2) Mh.L.J.1829, to contend that the parameters of review jurisdiction are extremely limited and such jurisdiction ought not to be lightly exercised.

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7] Having heard learned counsels for the petitioner and respondent No.1 and upon perusing the material on record, in my judgment, this is not a fit case to exercise extra-ordinary writ jurisdiction under Article 227 of the Constitution of India. It is apparent that the petitioner is avoiding adjudication on merits, particularly since his term as a member of the Cooperative Bank is due to expire by 3 May 2015. The petitioner chooses to raise objections before the Cooperative Court and thereafter carry the matter in appeal or revision to the Appellate Courts. In the meanwhile, the proceedings before the Cooperative Court do not proceed.

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8] From the nature of objections raised, they appear to be of a technical nature. There is no dispute that the documents in issue, were listed in the list of documents furnished by respondent No.1 alongwith the petition raising the election dispute. In the course of evidence, however, the xerox copies of such documents were permitted to be exhibited. This was

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on the basis that the Court Clerk had compared them with the originals. Comparison by the Court Clerk is certainly, not appropriate procedure. The Appellate Court in its order dated 10 October 2013, rightly commented upon such procedure. However, thereafter, respondent No.1 did apply for production of the original documents on record. In fact, such original documents were appended to the application, by which the production was applied for. There could be no serious objection to the Cooperative Court, itself comparing the original documents with the xerox copies, before admitting the same in evidence. Ultimately, the impugned order has merely permitted the production of original documents on record. The impugned order promotes substantial justice, particularly since mere exhibition of documents does not amount to dispensation with the requirement of proof in accordance with law. Further the evidentiary value of the documents is yet to be determined.

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9] If the aforesaid circumstances are taken into consideration, then in my judgment, there was no reason for the Appellate Court to have interfered with the order made by the Cooperative Court on 19 August 2013 in Civil Revision Application No.76 of 2013. In fact, the order dated 19 August 2013, did not occasion any serious prejudice to the petitioner, nor could the same said to have been made without any jurisdiction particularly, after plea was made to produce original documents on record. The impugned order, to the extent it restores the Cooperative Court's order dated 19 August 2013, in aforesaid changed circumstances did not really warrant interference in exercise of revisional jurisdiction.

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10] There is substance in the contention of Mr. Kanetkar that review jurisdiction ought not to be lightly exercised. However, in the

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present case, it does appear that there was error apparent on face of record in the Appellate Court interfering with the order of the Cooperative Court dated 19 August 2013, particularly in the light of changed circumstance which arose due to the plea on part of respondent No. 1 to produce original documents on record. As such the impugned order cannot be said to have been made in excess of jurisdiction.

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11] Even if it is held that the strict parameters Order 47 Rule 1 of C.P.C. were not complied with by the Appellate Court in making the impugned order, it is to be noted that the impugned order promotes substantial justice. If substantial justice is a by-product of even an erroneous exercise of jurisdiction, the writ court is not expected to interfere with the same. Such interference will have the effect of thwarting the course of justice. Such interference will further delay the proceedings before the Cooperative Court, in which the election of the petitioner has been questioned. It does appear that the entire objective of raising objections and thereafter instituting proceedings by way of appeal and revision is to delay adjudication on merits, so that once the terms expires by 3 May 2015, the dispute will be rendered infructuous. At least the writ Court, cannot assist the petitioner in such endeavours.

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12] Therefore, there is no merit in the present petition. The same is dismissed. In the facts and circumstances of the present case, there shall be no order as to costs. However, the Cooperative Court is directed to dispose of the dispute as expeditiously as possible and in any case on or before 31 December 2014.

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13] After pronouncement of this order, Mr. Kanetkar, learned counsel for the petitioner applies for a stay on the implementation of this order. As noted in the order, the dispute before the Co-operative Court concerns the election of the petitioner as a member of the Co-operative Bank. The petitioner's term of membership would expire by May 2015. Thereafter, the proceedings before the co-operative court might be rendered infructuous. As such, no case is made out for grant of stay. However, since the petitioner intends to take recourse against this judgment, in accordance with law, interim relief which was granted during the pendency of this petition, i.e. stay of further proceedings before the co-operative court, is extended by a period of four weeks from today.

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14] Parties to act on an authenticated copy of this order.

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(M. S. SONAK, J.)

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dinesh

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Shri. Jaynath Narayan Kate v. Shri. Ramesh Nanasaheb Waghere and Ors.

Case brief

What is this about?

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Shri. Jaynath Narayan Kate v. Shri. Ramesh Nanasaheb Waghere and Ors.

Case brief

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What did the court decide?

What the court decided

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