Madhya Pradesh High Court
Ram Vinay Karsoliya vs Rajul Karsoliya on 10 January, 2019
Equivalent citations: AIRONLINE 2019 MP 1591
[1]
RP-1358-2018
The High Court of Madhya Pradesh
RP-1358-2018
(RAM VINAY KARSOLIYA & ANR. Vs RAJUL KARSOLIYA & ORS.)
Jabalpur; Dated: 10-01-2019
Mr. Kishore Shrivastava, Senior Advocate with Mr. Kunal Thakre,
Advocate for the petitioners.
Mr. Prashant Singh, Senior Advocate with Mr. Praveen Dubey, Advocate
for the respondents No.1 to 5.
Mr. Shrivastava, learned senior counsel submits that petitioner No.2 has expired after filing this review petition, therefore he may be permitted to delete his name. Prayer allowed as not opposed by the respondents. Accordingly, Mr. Thakre is directed to delete the name of petitioner No.2 from the array of the parties.
With the consent of the parties, finally heard.
The present review petition is filed seeking recalling of order dated 04.05.2018, passed in WP-9620-2017.
The writ petitioners filed the writ petition being aggrieved by order dated 15.10.2015, passed by Assistant Registrar, Firms & Society, Jabalpur and order dated 18.02.2016, passed by Registrar of Societies, affirmed by order dated 26.04.2017, passed by Assistant Secretary, Government of M.P. According to the petitioner No.1 he was founder member of M/s. Rewa Siksha Samiti, a society registered under the M.P. Societies Registrikaran Adhiniyam, 1973 (for short "the Act of 1973"). The Society is engaged in imparting education through its various Engineering, Pharmacy, Management Colleges. The petitioner No.1 was elected as a President in the election held on 03.03.2013. The list of office-bearers was send to the office of Assistant Registrar under Section 27 of the Act of 1973. The tenure of elected body was upto 02.03.2016. The petitioner No.1 has alleged that he authorized respondent No.2 to sign on his behalf for the purpose of bank transactions. After sometime, he came to know that respondent No.2 is abusing such authority and started planning to expel him from the society. He submitted a letter dated 21.09.2015 Digitally signed by SAIFAN KHAN Date: 12/01/2019 17:25:55 [2] RP-1358-2018 to the Registrar of the Society followed by a complaint dated 28.09.2015 with a request, not to accept any change in the bye-laws of the Society. By way of resolution dated 29.09.2015, the petitioner No.1 has been terminated from the membership of the Society and a premature election has been held. The petitioner made a complaint to the Assistant Registrar on 15.10.2015. The respondent No.1 submitted an information about new election and Assistant Registrar passed a detailed order dated 15.10.2015 under Section 27 of the Act of 1973.
Being aggrieved by the aforesaid order, the petitioner preferred an appeal under Section 40 which has been dismissed vide order dated 18.02.2016, but without entering into the merits of the case. Thereafter, he preferred a second appeal before the Government and that too has been dismissed vide order dated 26.04.2017. Hence, the writ petition was filed.
It was argued in the writ petition that petitioner being a founder member cannot be removed by virtue of Section 5 of the Act of 1973, therefore the resolution removing the petitioner from the membership is also liable to the dismissed. The Assistant Registrar while considering the application filed under Section 27 is empowered to conduct an inquiry under Chapter-VI of the Act of 1973. After considering the arguments advanced by the counsel of the parties, this Court came to the conclusion that power of Registrar under Section 27 of the Act of 1973 is limited to the extent of accepting the list of full name, permanent address and chief occupation by the President or Secretary in such form if such document or information is not submitted within 30 days, the same can be submitted with late fees as may be prescribed. There is no scope of any adjudication of the dispute or controversy under Section 27 of the Act of 1973. Because the Assistant Registrar, Registrar and the State Government have decided the controversy between the parties, therefore all the orders have been declared as nonest. The dispute can be adjudicated only under Section 32 of the Act of 1973. Hence, it has been held that order dated 15.10.2015 is liable to be treated as information in respect of list of office-bearers. Now the petitioner has filed the review petition reiterating the same arguments as canvased in the writ petition. This review petition is filed on the ground that the Assistant Registrar by virtue of powers conferred under Sections 27, 28, 29, 30 & 31 of the Act of Digitally signed by SAIFAN KHAN Date: 12/01/2019 17:25:55 [3] RP-1358-2018 1973 can conduct an inquiry in order to examine the actual list of office-bearers, audit reports and can also do inspection of documents. Power to enforce attendance of witnesses has also been given under Section 30 and further power to call for any information has been given under Section 31. Even if Section 27 is not properly worded, this Court can supply such power to Registrar.
Mr. Kishore Shrivastava, learned senior counsel for the petitioner in support of his contention has placed reliance over the judgment of Apex Court reported in 2011 (1) SCC 484, [M. Sudakar vs. V. Manoharan & others], in which the resolution passed by the Trust in regard to removal of the member, contrary to the bye-laws of the Trust, has been set aside by the Apex Court. Further he submitted that though this judgment was not produced at the time of arguments in the writ petition, but this Court can still consider it and review the order in the light of the aforesaid judgment. He has further placed reliance over the judgment reported in 1995 (6) SCC 749, [B.C. Chaturvedi vs. Union of India & others] by contending that the High Court while exercising the inherent power can review its own order in order to prevent miscarriage of justice. He has further placed reliance over the judgment passed by the Apex Court reported in 2008 (14) SCC 171, [Assistant Commissioner, Income Tax, Rajkot vs. Saurashtra Kutch Stock Exchange Limited] on the point that error which does not require elaborate discussion of evidence or arguments to establish it can be said to be an error apparent on the face of the record and can be corrected while exercising certiorari jurisdiction. Finally, he again placed reliance over the judgment of B.C. Chaturvedi (supra) in which the Apex Court has held that in order to prevent miscarriage of justice, the High Court can exercise the power under Article 226 by moulding the relief, as the Apex Court do under Article 142 of the Constitution. He further submitted that this Court has already declared the order passed by Assistant Registrar, Registrar and State Government as nonest, but has escaped to declare the resolution passed by the respondents as illegal and only for the said purpose the present review petition has been filed.
Mr. Prashant Singh, learned senior counsel with Mr. Praveen Dubey, learned counsel for the respondents vehemently argued that this Court has passed a reasoned and detailed order after considering the arguments of the Digitally signed by SAIFAN KHAN Date: 12/01/2019 17:25:55 [4] RP-1358-2018 petitioner. Each point canvased by learned senior counsel appearing for the petitioner has been duly answered by this Court while passing final order in the writ petition. This Court has given valid reasons for not interfering with the resolution. The provisions of Chapter-VI has duly been explained and it has been held that Assistant Registrar is not having jurisdiction to entertain the complaint in respect of submission of list of office-bearers. There is no error apparent on the face of the record and review petition is liable to be dismissed. In support of this contention, they placed reliance over the judgment of Apex Court reported in 2013 (15) SCC 534, [N. Anantha Reddy vs. Anshu Kathuria & others], in which the Apex Court has held that review jurisdiction is extremely limited and unless there is mistake apparent on the face of the record, the order/judgment does not call for review. The mistake apparent on record means that the mistake is self-evident, needs no search and stares at its face. Review jurisdiction is not an appeal in disguise. They have also placed reliance on the Division Bench judgment reported in 2016 (1) MPLJ 701, [Chambal Division, Morena vs. Barjor Singh] in which the Division Bench has held that re-appreciation of evidence and re-hearing of case without there being an error apparent on the face of the record is not permissible. They further placed reliance on 2015 (3) MPLJ 83, [Satya Pal Anand vs. Bal Niketan Nyas, Bhopal & others] in which it has been held that in the guise of review, re- hearing is not permissible. In order to seek review, it has to be demonstrated that order suffers from error apparent on the face of record.
The main contention of Mr. Shrivsatava, learned senior counsel appearing for the petitioner is that this Court has considered and recorded the arguments advanced by him at the time to hearing the writ petition, in the final order, but did not declare the resolution as void and illegal. While rejecting the said contention, this Court has given reasons in para 19 & 20 of the order. This Court has specifically held that Sections 27 & 28 only contemplates sending of information about the election or audit, accounts of the society. Chapter-VI deals with supervision over the society by Assistant Registrar & Registrar in respect of proper management of society and submission of list of office-bearer, audit accounts etc. For the purpose of calling such information about office-bearers and audit accounts power has been given under Sections 30. Section 29 is for inspection of documents and further power has been given under Section 30 to Digitally signed by SAIFAN KHAN Date: 12/01/2019 17:25:55 [5] RP-1358-2018 enforce attendance. Section 31 to call for any information. After getting statement of income and expenditure, audit report and balance-sheet of separate year, the Registrar shall verify the same and shall ensure that the funds have been utilized for promotion of the society and other objectives and he may issue such instruction in respect of such utilization of the funds. If the Registrar thinks necessary to initiate special audit, he may audit or cause to be audited by some person. He can authorize any person for inspection of the documents filed with the Registrar under the Act, therefore Chapter-VI deals with the annual returns, audit, inspection and supervision by the Registrar over the Society. For these purpose, the powers have been given under Sections 28, 29, 30 & 31 of the Act of 1973 to the Registrar. The entire chapter is silent about the jurisdiction of the power and authority of the Registrar to decide the inter-se dispute between the members and validity of the resolution. That power has specifically been given in Section 32 which is in Chapter-VII (Inquiry & Supersession) of the Act of 1973. Under Section 32, the Registrar may, on his own motion or on an application made under Sub-section (2) can hold an inquiry into the constitution, working and financial conditions of a society.
In the case of Haridas Das vs. Usha Rani Banik & others, reported in 2006 (3) MPLJ (SC) 226 the Apex Court has considered the scope of review, wherein it has been held as under:
"15. A perusal of the Order XLVII, Rule 1 show that review of a judgment or an order could be sought : (a) from the discovery of new and important matters or evidence which after the exercise of due diligence was not within the knowledge of the applicant; (b) such important matter or evidence could not be produced by the applicant at the time when the decree was passed or order made; and (c) on account of some mistake or error apparent on the face of record or any other sufficient reason.
14. In Aribam Tuleshwar Sharma v. Aribam Pishak Sharma (AIR 1979 SC 1047) this Court held that there are definite limits to the exercise of power of review. In that case, an application under Order XLVII, Rule 1 read with Section 151 of the Code was filed which was allowed and the order passed by the judicial Commissioner was set aside and the writ petition was dismissed. On an appeal to this Court it was held as under:
"It is true as observed by this Court in Shivdeo Singh v. State of Punjab (AIR 1963 SC1908) there is nothing in Article 226 of the Constitution to preclude a High Court from exercising the power of review which inherest in every Court of plenary jurisdiction to prevent miscarriage of justice or to correct grave and palpable errors committed by it. But, there are definitive limits to the exercise of the power of review. The power of review may be exercised on the discovery of new and important matter of evidence which, after the exercise of due diligence Digitally signed by SAIFAN KHAN Date: 12/01/2019 17:25:55 [6] RP-1358-2018 was not within the knowledge of the person seeking the review or could not be produced by him at the time when the order was made, it may be exercised where some mistake or error apparent on the face of the record is found; it may also be exercised on any analogous ground. But, it may not be exercised on the ground that the decision was erroneous on merits. That would be the province of a Court of appeal. A power of review is not to be confused with appellate power which may enable an Appellate Court to correct all manner of errors committed by the Subordinate Court."
17. The judgment in Aribam's case (supra) has been followed in the case of Smt. Meera Bhanja (supra). In that case, it has been reiterated that an error apparent on the face of the record for acquiring jurisdiction to review must be such an error which may strike one on a mere looking at the record and would not require any long drawn process of reasoning. The following observations in connection with an error apparent on the face of the record in the case of Satyanarayan Laxminarayan Hegde v. Mallikarjun Bhavanappa Tiruymale [ AIR 1960 SC 137] were also noted:
"An error which has to be established by a long drawn process of reasoning on points where there may conceivably be two opinions can hardly be said to be an error apparent on the face of the record. Where an alleged error is far from self-evident and if it can be established, it has to be established, by lengthy and complicated arguments, such an error cannot be cured by a writ of certiorari according to the rule governing the powers of the superior Court to issue such a writ."
18. It is also pertinent to mention the observations of this Court in the case of Parsion Devi v. Sumiri Devi (1997(8) SCC 715). Relying upon the judgments in the cases of Aribam's (supra) and Smt. Meera Bhanja (supra) it was observed as under :
"Under Order XLVII, Rule 1, CPC a judgment may be open to review inter alia, if there is a mistake or an error apparent on the face of the record. An error which is not self evident and has to be detected by a process of reasoning, can hardly be said to be an error apparent on the face of the record justifying the Court to exercise its power of review under Order XLVII, Rule 1, CPC. In exercise of the jurisdiction under Order XLVII, Rule 1, CPC it is not permissible for an erroneous decision to be reheard and corrected. A review petition, it must be remembered has a limited purpose and cannot be allowed to be an appeal in disguise.""
The Constitution Bench of Apex Court in 2009 (10) SCC 464, [S. Bagirathi Ammal vs. Palani Roman Catholic Mission] has again considered the scope of review and held as under:
"11. Since we have already narrated the case of both the parties in the paragraphs supra, there is no need to traverse the same once again. Before considering the rival claims made by both the parties, it is useful to refer the provisions under Order XLVII Rule 1 C.P.C. relating to Review which read as under:
"1. Application for review of judgment:- (1) Any person considering himself aggrieved-
(a) by a decree or order from which an appeal is allowed, but from which no Digitally signed by SAIFAN KHAN Date: 12/01/2019 17:25:55 [7] RP-1358-2018 appeal has been preferred,
(b) by a decree or order from which no appeal is allowed, or
(c) by a decision on a reference from a Court of Small Causes, and who, from the discovery of new and important matter or evidence which, after the exercise of due diligence was not within his knowledge or could not be produced by him at the time when the decree was passed or order made, or on account of some mistake or error apparent on the face of the record, or for any other sufficient reason, desires to obtain a review of the decree passed or order made against him, may apply for a review of judgment to the Court which passed the decree or made the order.
(2) A party who is not appealing from a decree or order may apply for a review of judgment notwithstanding the pendency of an appeal by some other party except where the ground of such appeal is common to the applicant and the appellant, or when, being respondent, he can present to the Appellate Court the case on which he applies for the review.
[Explanation The fact that the decision on a question of law on which the judgment of the Court is based has been reversed or modified by the subsequent decision of a superior Court in any other case, shall not be a ground for the review of such judgment.)"
A reading of the above provision makes it clear that Review is permissible (a) from the discovery of new and important matter or evidence which, after the exercise of due diligence could not be produced by the party at the time when the decree was passed; (b) on account of some mistake; (c) where error is apparent on the face of the record or is a palpable wrong; (d) any other sufficient reason. If any of the conditions satisfy, the party may apply for a review of the judgment or order of the Court which passed the decree or order. The provision also makes it clear that an application for Review would be maintainable not only upon discovery of a new and important piece of evidence or when there exists an error apparent on the face of the record but also if the same is necessitated on account of some mistake or for any other sufficient reason.
12. An error contemplated under the Rule must be such which is apparent on the face of the record and not an error which has to be fished out and searched. In other words, it must be an error of inadvertence. It should be something more than a mere error and it must be one which must be manifest on the face of the record. When does an error cease to be mere error and becomes an error apparent on the face of the record depends upon the materials placed before the Court. If the error is so apparent that without further investigation or enquiry, only one conclusion can be drawn in favour of the appellant, in such circumstances, the review will lie. Under the guise of review, the parties are not entitled re-hearing of the same issue but the issue can be decided just by a perusal of the records and if it is manifest can be set at right by reviewing the order. With this background, let us analyze the impugned judgment of the High Court and find out whether it satisfy any of the tests formulated above."
In N. Anantha Reddy (supra) the Apex Court held as under:
"6. A careful look at the impugned order would show that the High Court had a fresh look at the question whether the appellant could be impleaded in the suit filed by the respondent No. 1 and, in the light of the view which it took, it recalled its earlier order dated 08.06.2011. The course followed by the High Court is clearly flawed. The High Court exceeded its review jurisdiction by reconsidering the merits of the order dated 08.06.2011. The review jurisdiction is extremely limited and unless there is mistake apparent on the Digitally signed by SAIFAN KHAN Date: 12/01/2019 17:25:55 [8] RP-1358-2018 face of the record, the order/judgment does not call for review. The mistake apparent on record means that the mistake is self evident, needs no search and stares at its face. Surely, review jurisdiction is not an appeal in disguise. The review does not permit rehearing of the matter on merits."
In Satya Pal Anand (supra) the Division Bench of this Court held as under:
"8. It is well settled in law that in the guise of review, rehearing is not permissible. In order to seek review it has to be demonstrated that order suffers from error apparent on the face of record. The Court while deciding the application for review cannot sit in appeal over the judgment or decree passed by it. [see: S. Bagirathi Ammal vs. Palani Roman Catholic Mission, (2009) 10 scc 464, State of W.B. And others vs. Kamal Sengupta and another, (2008) 8 scc 612 and kamles Verma vs. Mayawati, (2013) 8 SCC 320] Even otherwise, the impugned order neither suffers from any error apparent on the face of record nor any jurisdictional infrimity warranting interference of this Court in review jurisdiction. From perusal of the application, we find no ground for recall of the order dated 06.04.2015 passed in Writ Petition No.4638/2015, is made out."
In the last line of para 20 of order dated 04.05.2018 passed by Writ Court, "Section 32" has wrongly been typed as "Section 30". Hence, same be read as "Section 32". It is further observed that under Section 32, the Registrar is having power to conduct an inquiry and entertain the dispute on his own motion or an application made under Sub-section (2), therefore it is a discretionary power of the Registrar to entertain the dispute on his own motion. No mandamus can be issued to the Registrar for exercising suo motu power by him. If material is available with the Registrar in respect of constitution, working and financial condition of the society, he may on his own motion can exercise the power under Section 32 of the Act of 1973.
In view of above, I do not find any error apparent on the face of the record. Hence, review petition is dismissed.
(VIVEK RUSIA)
s@if JUDGE
Digitally signed by SAIFAN KHAN
Date: 12/01/2019 17:25:55