Gujarat High Court
Chimanlal Jerambhai Bhagat vs Shah Devendrakumar Pravinchandra ... on 8 May, 2014
Author: Ks Jhaveri
Bench: Ks Jhaveri, A.G.Uraizee
C/SCA/7121/2014 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 7121 of 2014
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CHIMANLAL JERAMBHAI BHAGAT
Versus
SHAH DEVENDRAKUMAR PRAVINCHANDRA NANALAL & 6
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Appearance:
MR BJ TRIVEDI, ADVOCATE for the Petitioner(s) No. 1
MR JT TRIVEDI, ADVOCATE for the Petitioner(s) No. 1
MS JIGNASA B TRIVEDI, ADVOCATE for the Petitioner(s) No. 1
MR CHIRAG B PATEL, ADVOCATE for the Respondent(s) No. 4
MR HARESH J TRIVEDI, ADVOCATE for the Respondent(s) No. 1 - 2
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CORAM: HONOURABLE MR.JUSTICE KS JHAVERI
and
HONOURABLE MR.JUSTICE A.G.URAIZEE
Date : 08/05/2014
ORAL ORDER
(PER : HONOURABLE MR.JUSTICE KS JHAVERI) [1] By way of this petition under Article 226 of the Constitution of India, the petitioner - original plaintiff in Lavad Suit challenged the order dated 29.04.2014 passed by Gujarat State Cooperative Tribunal in Revision Application No.39 of 2014, whereby the Tribunal has allowed the said Revision Application and quashed and set aside the order passed by the Board of Nominee below Exh.5 in Lavad Suit (Election) No.23 of 213.
[2] The case of the petitioner is that the Board of Nominees has rightly observed that the petitioner has made out a case and in that Page 1 of 6 C/SCA/7121/2014 ORDER view of the matter, after considering the evidence on record and relying upon the decision of the High Court, restrained the respondents from discharging their duties as Directors more particularly in terms of prayer clause (8) of the application till the election is held or till the final disposal of the suit whichever is earlier. It is further the case of the petitioner that the Gujarat State Cooperative Tribunal has committed an error in interfering with the order of the Board of Nominee vide impugned judgment passed in Revision Application No.39of 2014 [3] Learned advocate appearing on behalf of the petitioner has relied upon the decision of the Hon'ble Supreme Court in the case Sher Singh (dead) through LRs. Vs. Joint Director of Consolidation and others, reported in AIR 1978 S.C. 1341 more particularly paragraph No.6, which reads as under :-
6. As the above section is in pari materia with S. 115 of the Civil P. C., it will be profitable to ascertain the scope of the revisional jurisdiction of the High Court.It is now well settled that the revisional jurisdiction of the High Court is confined to cases of illegal or irregular exercise or non-exercise or illegal assumption of the jurisdiction by the subordinate courts. If a subordinate court is found to possess the jurisdiction to decide a matter, it cannot be said to exercise it illegally or with material irregularity even if it decides the matter wrongly. In other words, it is not open to the High Court while exercising its jurisdiction under S. 115 of the civil P.C. to correct errors of fact howsoever gross or even errors of law unless the errors have relation to the jurisdiction of the court to try the dispute itself.
[4] Learned advocate appearing on behalf of the petitioner has Page 2 of 6 C/SCA/7121/2014 ORDER also relied upon the decision of the Hon'ble Supreme Court in the case and of Arjun Singh Vs. Mohindra Kumar and others reported in AIR 1964 S.C 993 more particularly paragraph Nos.10 and 11, which read as under :-
10. That the question of fact which arose in the two proceedings was identical would not be in doubt. Of course, they were not in successive suits so to make the provisions of S. 11 of the Civil Procedure Code applicable in terms. That the scope of the principle of res-judicata is not confined to what is contained in S. 11 but is of more general application is also not in dispute. Again, res judicata could be as much applicable to different stages of the same suit as to findings on issues in different suits. In this connection we were referred to what this Court said in Satyandhan Ghosal v. Sm. Deorajin Debi, (1960) 3 SCR 590 : (AIR 1960 SC 941) where Das Gupta, J., speaking for the Court expressed himself thus :
"The principle of res judicata is based on the need of giving a finality to judicial decisions. What it says is that once a res is judicata, it shall not be adjudged again. Primarily it applies as between past litigation and future litigation. When a matter - whether on a question of fact or on a question of law - has been decided between two parties in one suit or proceeding and the decision is final, either because no appeal was taken to a higher Court or because the appeal was dismissed, or no appeal lies, neither party will be allowed in a future suit or proceeding between the same parties to canvass the matter again . . . . The principle of res judicata applies also as between the two stages in the same litigation to this extent that a court, whether the trial Court or a higher Page 3 of 6 C/SCA/7121/2014 ORDER Court having at an earlier stage decided a matter in one may not allow the parties to re-agitate the matter again at a subsequent stage of the same proceedings."
Mr. Pathak laid great stress on this passage as supporting him in the two submissions that he made : (1) that an issue of fact or law decided even in an interlocutory proceeding could operate as res judicata in a later proceeding, and next (2) that in order to attract the principle of res judicata the order or decision first rendered and which is pleaded as res judicata need not be capable of being appealed against.
11. We agree that generally speaking these propositions are not open to objection. If the court which rendered the first decision was competent to entertain the suit or other proceeding, and had therefore competency to decide the issue or matter, the circumstance that it is a tribunal of exclusive jurisdiction or one from whose decision no appeal lay would not by themselves negative the finding on the issue by it being res judicata in later proceedings. Similarly, as stated already, though S. 11 of the Civil Procedure Code clearly contemplates the existence of two suits and the findings in the first being res judicata in the later suit, it is well established that the principle underlying it is equally applicable to the case of decisions rendered at successive stages of the same suit or proceeding. But where the principle of res judicata is invoked in the case of the different stages of proceedings in the same suit, the nature of the proceedings, the scope of the enquiry which the adjectival law provides for the decision being reached, as well as the specific provisions made on matters touching such decision are some of the material and relevant factors to be considered before the principle is held applicable. One aspect of this question is that which is dealt Page 4 of 6 C/SCA/7121/2014 ORDER with in a provision like S. 105 of the Civil Procedure Code which enacts:
"105. (1) Save as otherwise expressly provided, no appeal shall lie from any order made by a Court in the exercise of its original or appellate jurisdiction; but, where a decree is appealed from, any error, defect or regularity in any order, affecting the decision of the case, may be set forth as a ground of objection in the memorandum of appeal. (2) Notwithstanding anything contained in sub-section (1), where any party aggrieved by an order of remand made after the commencement of this Code from which an appeal lies does not appeal therefrom, he shall thereafter be precluded from disputing its correctness."
It was this which was explained by Das Gupta, J., in Satyadhan Ghosal's case, (1960) 3 SCR 590 : (AIR 1960 SC 941) already referred to :
"Does this, however, mean that because at an earlier stage of the litigation a court had decided an interlocutory matter in one way and no appeal has been taken therefrom or no appeal did lie, a higher court cannot at a later stage of the same litigation consider the matter again? . . . . It is clear therefore than an interlocutory order which had not been appealed from either because no appeal lay or even through an appeal lay an appeal was not taken could be challenged in an appeal from the final decree or order."
[5] Learned advocate appearing on behalf of the petitioner, relying upon the aforesaid decisions of the Hon'ble Supreme Court, has contended that the revisional Court has exceeded jurisdiction and Page 5 of 6 C/SCA/7121/2014 ORDER wrongly interfered with the order passed by the Board of Nominees and contended that the revisional powers are very limited and the ground which has been made by the trial Court recording res judicata and outstanding amount by the wife was not alleged before the election initially before the Board of Nominee.
[6] Learned advocate appearing on behalf of the respondent, relied upon the decision of this Court in the case of Bhikhabhai Keshavlal Patel Vs. Election Officer, District Central Cooperative Bank Limited reported in 2002 (1) GLH 277, to contend that interference in the election process is not wholly impermissible.
[7] In view of the above, it is required to be noted that the election was uncontested and the nomination was rejected on the ground of non-payment of the dues and therefore, it will be difficult to opine at this stage that the petitioner has made out a case to interfere with the order of the Tribunal. The decisions relied upon by the learned advocate appearing on behalf of the petitioner will not be applicable to the facts of the present case. In that view of the matter we are not inclined to interfere with the order passed by the revisional authority and revisional authority is directed to proceed with Lavad Suit No.23 of 2013 on day to day basis. We hope that the respondents to appear and cooperate with the proceedings of the said suit before the revisional authority. With this, the petition stands disposed of.
Direct service is permitted.
(K.S.JHAVERI, J.) (A.G.URAIZEE,J) vijay Page 6 of 6