Sunil Kumar Mishra vs M.P. State Minor Forest Produce ... on 2 March, 2020

[Cites 17, Cited by 4]

Madhya Pradesh High Court

Sunil Kumar Mishra vs M.P. State Minor Forest Produce ... on 2 March, 2020

Equivalent citations: AIR 2021 (NOC) 41 (M.P.), AIRONLINE 2020 MP 242

By the instant review petition, the petitioner is seeking review of order dated 24.02.2020 passed in Writ Petition No.3496/2020 whereby this Court had directed the petitioner to avail an alternative remedy of appeal under Section 78 of the M.P. Co-operative Societies Act, 1960 (in short the 'Act, 1960').

Learned counsel for the petitioner submits that the aforesaid petition was filed by the petitioner challenging the order dated 28.01.2020 passed by the Registrar, Co-operative Society whereby the said Authority without affording any opportunity of hearing to the petitioner who was the affected person and was also not made party in the proceeding, had passed order dated 28.01.2020. He further submits that alternative remedy is no bar when principle of natural justice is violated and the petitioner cannot avail the alternative remedy of appeal under Section 78 of the Act, 1960 as sub-Section (3) of Section 78 of the Act, 1960 provides as under:-

(3) Every appeal shall be presented in the prescribed manner to the appellate authority concerned within thirty days of the date on which the order appealed against was communicated to the party affected by the order:

Provided that in computing the period of limitation under this sub-section the time requisite for obtaining a copy of the order appealed against shall be excluded.

To bolster his stand, learned counsel for the petitioner has placed reliance upon an order dated 2 Review Petition No.371/2020 04.08.2014 passed by the co-ordinate Bench of this Court in Writ Petition No.5535/2012 and other connected petitions [Pravesh Kumar Shrivastava & others Vs. State of MP & others]. As per the petitioner, since he was not made party to the proceeding, therefore, he cannot avail any remedy of appeal because sub-Section (3) of the Act, 1960 confines filing an appeal to the 'party' affected by the order.

Although, I am not convinced with the contention raised by learned counsel for the petitioner and the order on which he has placed reliance i.e. Pravesh Kumar Shrivastava (supra) in which it was held that the alternative remedy is no bar when order is passed in violation of principle of natural justice. However, in the said case, after appointment of the persons, order of termination was passed by the Authority on the ground that there were certain irregularities found during the course of selection and, therefore, the order of termination was passed without giving any opportunity of hearing to the persons appointed applying that the principle of natural justice cannot be determined as a straightjacket formula.

However, in the facts and circumstances as involved in Writ Petition No.3496/2020, this Court was of the opinion that the petitioner may avail the remedy of appeal because it was a statutory appeal for which specific Tribunal has been constituted and despite the fact that the petitioner was not made party in the said litigation, order is adversely affecting his rights and he being an aggrieved person, can approach the Tribunal by filing an appeal under Section 78 of the Act, 1960. So far as the provision of sub Section (3) of Section 78 of the Act, 1960 is concerned, that does not apply to the petitioner because the said provision deals with the second appeal against the order passed in an appeal by the Registrar or by the Tribunal but here in this case, it would be a first appeal 3 Review Petition No.371/2020 and Section 78 of the Act, 1960 nowhere provides as to who could file an appeal before the Registrar or the Tribunal. For the purpose of convenience, Section 78 of the Act, 1960 is reproduced hereinbelow:-

78. Appeals before the Registrar and Tribunal.-(1) Save where it has been otherwise provided, an appeal shall lie from every original order under this Act or the rules made thereunder:-

(a) if such order is passed by any officer subordinate to Registrar, other than Additional Registrar or Joint Registrar, whether or not the Officer passing the order is invested with the powers of the Registrar, to the Registrar;

(b) if such order is passed by the Registrar, Additional Registrar or Joint Registrar, to the Tribunal.

(2) A second appeal shall lie against any order passed in the first appeal by the Registrar, to the Tribunal on any of the following ground, and no other namely:-

           (i)      that the order is contrary to law; or
           (ii)     that the order has failed to determine some
                    material issue of law; or
           (iii)    that there has been a substantial error or

defect in the procedure as prescribed by this Act which may have produced error or defect in the decision of the case upon merits.

(3) Every appeal shall be presented in the prescribed manner to the appellate authority concerned within thirty days of the date on which the order appealed against was communicated to the party affected by the order:

Provided that in computing the period of limitation under this sub-section the time requisite for obtaining a copy of the order appealed against shall be excluded.

The aforesaid provision does not enumerate the categories of person who can file an appeal. If the order of Authority prejudicially affects any person, he can prefer an appeal. Section 78 of the Act, 1960 is pari materia to the Section 96 and also Section 100 of the Code of Civil Procedure in respect of category of persons who may file appeal and the Supreme Court in the case reported (2013) 9 SCC 261 parties being [Hardevinder Singh Vs. Paramjit Singh & others] has observed as under:-

17. Presently, it is apt to note that Sections 96 and 100 of the Code make provisions for preferring an appeal from any original decree or from a decree in an appeal respectively. The aforesaid provisions do not enumerate the categories of persons who can file an appeal. If a judgment and decree prejudicially affects a person, needless to

4 Review Petition No.371/2020 emphasise, he can prefer an appeal. In this context, a passage from Jatan Kumar Golcha v. Golcha Properties (P) Ltd. [(1970) 3 SCC 573 : AIR 1971 SC 374] is worth noting:

(SCC p. 575, para 3) "3. ... It is well settled that a person who is not a party to the suit may prefer an appeal with the leave of the appellate court and such leave should be granted if he would be prejudicially affected by the judgment."

18. In State of Punjab v. Amar Singh [(1974) 2 SCC 70 :

AIR 1974 SC 994], Sarkaria, J., while dealing with the maintainability of an appeal by a person who is not a party to a decree or order, has stated thus: (SCC p. 104, para 83) "83. Firstly, there is a catena of authorities which, following the [doctrine] of Lindley, L.J., in Securities Insurance Co., In re [(1894) 2 Ch 410 (CA)] have laid down the rule that a person who is not a party to a decree or order may with the leave of the court, prefer an appeal from such decree or order if he is either bound by the order or is aggrieved by it or is prejudicially affected by it. As a rule, leave to appeal will not be refused to a person who might have been made co nomine a party [see Province of Bombay v.

Western India Automobile Assn. [AIR 1949 Bom 141], Heersingh v. Veerka [AIR 1958 Raj 181], Shivaraya v. Siddamma [AIR 1963 Mys 127], Sri Padmanabhaswamy Temple v. Raghavan Pillai [AIR 1961 Ker 114], B. (An Infant), In re [(1958) 1 QB 12 : (1957) 3 WLR 558 : (1957) 3 All ER 193 (CA)] and S. Govinda Menon v. K. Madhavan Nair [AIR 1964 Ker 235]]."

(emphasis in original)

19. In Baldev Singh v. Surinder Mohan Sharma [(2003) 1 SCC 34] a three-Judge Bench opined that an appeal under Section 96 of the Code would be maintainable only at the instance of a person aggrieved by and dissatisfied with the judgment and decree. In the said case, while dealing with the concept of "person aggrieved", the Bench observed thus: (SCC pp. 39-40, para 15) "15. ... A person aggrieved to file an appeal must be one whose right is affected by reason of the judgment and decree sought to be impugned. It is not the contention of Respondent 1 that in the event the said judgment and decree is allowed to stand, the same will cause any personal injury to him or shall affect his interest otherwise."

Be it noted, in the said case, the challenge in appeal was to the dissolution of the marriage of the appellant therein and his first wife which, this Court held, would have no repercussion on the property in the suit and, therefore, the High Court was not justified in disposing of the civil revision with the observation that the revisionist could prefer an appeal.

20. In Sahadu Gangaram Bhagade v. Collector [(1970) 1 SCC 685], it was observed that: (SCC p. 689, para 8) "8.... the right given to a respondent in an appeal is to challenge the order under appeal to the extent he is aggrieved by that order. The memorandum of cross-objection is but one form of appeal. It takes the place of a cross-appeal."

In the said decision, emphasis was laid on the term "decree".

21. After the 1976 Amendment of Order 41 Rule 22, the insertion made in sub-rule (1) makes it permissible to file a cross-objection against a finding. The difference is basically that a respondent may defend himself without taking 5 Review Petition No.371/2020 recourse to file a cross-objection to the extent the decree stands in his favour, but if he intends to assail any part of the decree, it is obligatory on his part to file the cross- objection. In Banarsi v. Ram Phal [(2003) 9 SCC 606 : AIR 2003 SC 1989], it has been observed that the amendment inserted in 1976 is clarificatory and three situations have been adverted to therein. Category 1 deals with the impugned decree which is partly in favour of the appellant and partly in favour of the respondent. Dealing with such a situation, the Bench observed that in such a case, it is necessary for the respondent to file an appeal or take cross- objection against that part of the decree which is against him if he seeks to get rid of the same though he is entitled to support that part of the decree which is in his favour without taking any cross-objection. In respect of two other categories which deal with a decree entirely in favour of the respondent though an issue had been decided against him or a decree entirely in favour of the respondent where all the issues had been answered in his favour but there is a finding in the judgment which goes against him, in the pre- amendment stage, he could not take any cross-objection as he was not a person aggrieved by the decree. But post- amendment, read in the light of the Explanation to sub-rule (1), though it is still not necessary for the respondent to take any cross-objection laying challenge to any finding adverse to him as the decree is entirely in his favour, yet he may support the decree without cross-objection. It gives him the right to take cross-objection to a finding recorded against him either while answering an issue or while dealing with an issue. It is apt to note that after the amendment in the Code, if the appeal stands withdrawn or dismissed for default, the cross-objection taken to a finding by the respondent would still be adjudicated upon on merits which remedy was not available to the respondent under the unamended Code.

22. At this juncture, we may usefully reproduce a passage from Banarsi [(2003) 9 SCC 606 : AIR 2003 SC 1989] wherein it has been stated thus: (SCC p. 615, para 8) "8. Sections 96 and 100 CPC make provision for an appeal being preferred from every original decree or from every decree passed in appeal respectively; none of the provisions enumerates the person who can file an appeal. However, it is settled by a long catena of decisions that to be entitled to file an appeal the person must be one aggrieved by the decree. Unless a person is prejudicially or adversely affected by the decree he is not entitled to file an appeal. [See Phoolchand v. Gopal Lal [AIR 1967 SC 1470],Jatan Kumar Golcha v. Golcha Properties (P) Ltd. [(1970) 3 SCC 573 : AIR 1971 SC 374] and Ganga Bai v. Vijay Kumar [Ganga Bai v. Vijay Kumar, (1974) 2 SCC 393 :

AIR 1974 SC 1126].] No appeal lies against a mere finding. It is significant to note that both Sections 96 and 100 CPC provide for an appeal against decree and not against judgment."

(emphasis in original)

23. Though the High Court has referred to the said pronouncement, yet it has not applied the ratio correctly to the facts. This Court has clearly stated that if a person is prejudicially or adversely affected by the decree, he can maintain an appeal. In the present case, as we find, the plaintiff claiming to be a co-sharer filed the suit and challenged the will. Defendant 5, the brother of the plaintiff, supported his case. In an appeal at the instance of Defendants 1 to 4, the judgment and decree was overturned. The plaintiff entered into a settlement with the contesting defendants who had preferred the appeal. Such a decree, we are disposed to think, prejudicially affects Defendant 5 and, therefore, he could have preferred an 6 Review Petition No.371/2020 appeal. It is worthy to note that the grievance pertained to the nature and character of the property and the trial court had decreed the suit. He stood benefited by such a decree.

The same having been unsettled, the benefit accrued in his favour became extinct. It needs no special emphasis to state that he had suffered a legal injury by virtue of the overturning of the decree. His legal right has been affected.

24. In this context, we may refer to a recent pronouncement in Ayaaubkhan Noorkhan Pathan v. State of Maharashtra [(2013) 4 SCC 465 : (2013) 2 SCC (L&S) 296 : (2013) 2 SCC (Civ) 658 : (2012) 11 Scale 39] wherein this Court has held thus: (SCC p. 476, para 10) "10. A 'legal right', means an entitlement arising out of legal rules. Thus, it may be defined as an advantage, or a benefit conferred upon a person by the rule of law. The expression, 'person aggrieved' does not include a person who suffers from a psychological or an imaginary injury; a person aggrieved must, therefore, necessarily be one whose right or interest has been adversely affected or jeopardised. (Vide Shanti Kumar R. Canji v. Home Insurance Co. of New York [(1974) 2 SCC 387 : AIR 1974 SC 1719] and State of Rajasthan v.Union of India [(1977) 3 SCC 592 : AIR 1977 SC 1361].)"

25. Though the said judgment was delivered in a different context, yet it is applicable to the obtaining factual matrix regard being had to the conception of legal injury. Thus, indubitably, the present appellant was a person aggrieved and was prejudicially affected by the decree and, hence, the appeal could not have been thrown overboard treating it as not maintainable.

(emphasis supplied)

26. In view of the aforesaid premised reasons, we allow the appeal, set aside the judgment of the High Court, treat the second appeal preferred by the present appellant to be maintainable in law and remit the matter to the High Court with a request to decide the appeal within a period of six months. Needless to say, we have not expressed any opinion on any of the aspects which pertain to the merits of the case. In the facts and circumstances of the case, the parties shall bear their respective costs.

In view of the above as well as the law laid down by the Supreme Court in the case of Hardevinder Singh (supra), I do not find that there is any defect in the order passed by this Court in Writ Petition No.3496/2020.

Thus, the review petition filed by the petitioner being without any substance, is hereby dismissed.

(SANJAY DWIVEDI) JUDGE Devashish DEVASHISH MISHRA 2020.03.05 14:40:00 +05'30'

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