Bombay High Court
Girish C. Lodha vs Divisional Joint Registrar, ... on 5 April, 2024
Author: Sandeep V. Marne
Bench: Sandeep V. Marne
2024:BHC-OS:6072
10_rpwl_6905_2014.docx
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
REVIEW PETITION (LODGING) NO.6905 OF 2024
IN
WRIT PETITION NO.395 OF 2024
Girish C. Lodha ..Petitioner
V/S.
1.Divisional Joint Registrar, Co-
operative Societies, Mumbai
Division.
2. A.D. Patil
3. Kandivali Kesar Ashish Co-
operative Housing Society Limited
4. Milap K. Doshi
5. Ashwin Lalji Gogari
6. Pratibha Mhatre
5. Ashiwin Lalji Gogari
6. Pratiba Mhatre
..Respondents
WITH
INTERIM APPLICATION (LODGING) NO.9385 OF 2024
IN
REVIEW PETITION (LODGING) NO.6905 OF 2024
Girish C. Lodha ..Petitioner
V/S.
1.Divisional Joint Registrar, Co-
operative Societies, Mumbai
Division.
2. A.D. Patil
3. Kandivali Kesar Ashish Co-
operative Housing Society Limited
4. Milap K. Doshi
Megha ___Page No. 1 of 7____
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10_rpwl_6905_2014.docx
5. Ashwin Lalji Gogari
6. Pratibha Mhatre
5. Ashiwin Lalji Gogari
6. Pratiba Mhatre
..Respondents
...
Mr. Simil Purohit with Mr. Amey C. Sawant for the Petitioner.
Mr. Suraj Gupte, AGP with Mr. Prashant Kamble, AGP for Respondent
No.1-State.
Mr. S.C. Naidu with Mr. Viraj Jadhav and Mr. Kevin Pereira i/b. Mr.
Chinmaya Acharya for Respondent No.5.
Mr. Anoshak Daver for Respondent Nos.4 and 6.
CORAM : SANDEEP V. MARNE, J.
JUDGMENT DATED : 5 APRIL 2024.
JUDGMENT :
1. This petition is filed seeking review of order dated 25/01/2024.
2. Mr. Simil Purohit, the learned counsel appearing for the Review Petitioner has broadly raised four points in support of the review petition. Firstly, he would submit that mere filing of application before the Co-operative Court by the Petitioner did not denude the Registrar of his powers under Sections 80 and 81 of the Maharashtra Co-operative Megha ___Page No. 2 of 7____ ::: Uploaded on - 12/04/2024 ::: Downloaded on - 17/04/2024 19:38:17 ::: 10_rpwl_6905_2014.docx Societies Act, 1960 for conduct of audit. Secondly, he would submit that the Registrar has found merit in the application filed by the Petitioner and had appointed a Flying Squad, which was under a mandate to conduct the audit. Thirdly, he would submit that the Dispute filed by the Petitioner before the Co-operative Court, if found outside its jurisdiction, would render the Petitioner remediless on account of the order passed by this Court upholding the decision of the Divisional Joint Registrar. Lastly, Mr. Purohit would submit that one of the reasons recorded by this Court for dismissing the petition is pendency of the application before the Co-operative Court for deletion of prayer clause
(e). He would submit that after passing of the order by this Court, the said application has indeed been allowed and prayer clause (e) has been deleted from the Dispute before the Co-operative Court. Broadly, according to Mr. Purohit, it is necessary to review the order as the same renders Petitioner remediless.
3. Per contra, Mr. Naidu, the learned counsel appearing for Respondent No.5 would submit that none of the grounds raised in the petition fit within the purview of Order XLVII Rule 1 of the CPC. He would rely upon the judgment of the Apex Court in S. Murali Sundaram Vs. Jothibai Kannan and Others, 2023 SCC Online SC 185.
4. Mr. Davar, the learned counsel appearing for Respondent Nos.4 and 6 would submit that subsequent event of deletion of prayer Megha ___Page No. 3 of 7____ ::: Uploaded on - 12/04/2024 ::: Downloaded on - 17/04/2024 19:38:17 ::: 10_rpwl_6905_2014.docx clause (e) in the Dispute cannot be a ground for seeking review of order of this Court.
5. I have considered the submissions canvassed by the learned counsel appearing for the parties. It must be observed at the very outset that none of the four points sought to be raised by Mr. Purohit constitute any error on the face of the record in the order under review. The Review Petition has been filed as if the same is an appeal against the order dated 25/01/2024. After considering the various contentions raised on behalf of the Petitioners, this Court has held in the order dated 25/01/2024 that the proceedings simultaneously instituted before the Co-operative Court and Divisional Joint Registrar were aimed at the same result of seeking re-audit of Society's account. I do not see any reason why the Petitioner would be rendered remediless on account of the order passed by the Divisional Joint Registrar. It is the Petitioner, who filed Dispute under Section 91 of the Maharashtra Co-operative Societies Act before the Co-operative Court and it is difficult to comprehend as to why the Petitioner now entertains a doubt that his Dispute is likely to be rejected on the ground of lack of jurisdiction. Such doubt entertained by the Petitioner could not be a reason for initiation of simultaneous proceedings under Sections 80 and 81 of the MCS Act for the same purpose by seeking re-audit of the Society.
6. So far as deletion of prayer clause (e) from the Dispute is concerned, the same appears to have been done in March-2024 i.e. after Megha ___Page No. 4 of 7____ ::: Uploaded on - 12/04/2024 ::: Downloaded on - 17/04/2024 19:38:17 ::: 10_rpwl_6905_2014.docx passing of order dated 25/01/2024. Despite this Court holding that the Petitioner can agitate the prayer for re-audit of the Society's Accounts in Dispute filed before the Co-operative Court, if the Petitioner has taken the risk of seeking deletion of prayer clause (e), the consequences of such action will have to be faced by the Petitioner. He cannot take benefit of his own wrong by seeking review of order dated 25/01/2024 on account of subsequent event of deletion of prayer clause (e) from the Dispute.
7. I therefore find that no error apparent on face of record is demonstrated in the present review petition. The review cannot be sought as if it is an appeal in disguise. In this connection the reliance of Mr. Naidu on judgement of the Apex Court in S. Murali Sundaram (supra) appears to be apposite. In paragraph Nos.15,16 and 17 the Apex Court has held as under:-
"15. While considering the aforesaid issue two decisions of this Court on Order 47 Rule 1 read with Section 114 CPC are required to be referred to? In the case of Perry Kansagra (supra) this Court has observed that while exercising the review jurisdiction in an application under Order 47 Rule 1 read with Section 114 CPC, the Review Court does not sit in appeal over its own order. It is observed that a rehearing of the matter is impermissible in law. It is further observed that review is not appeal in disguise. It is observed that power of review can be exercised for correction of a mistake but not to substitute a view. Such powers can be exercised within the limits of the statute dealing with the exercise of power. It is further Megha ___Page No. 5 of 7____ ::: Uploaded on - 12/04/2024 ::: Downloaded on - 17/04/2024 19:38:17 ::: 10_rpwl_6905_2014.docx observed that it is wholly unjustified and exhibits a tendency to rewrite a judgment by which the controversy has been finally decided. After considering catena of decisions on exercise of review powers and principles relating to exercise of review jurisdiction under Order 47 Rule 1 CPC this Court had summed upon as under:
"(i) Review proceedings are not by way of appeal and have to be strictly confined to the scope and ambit of Order 47 Rule 1 CPC.
(ii) Power of review may be exercised when some mistake or error apparent on the fact of record is found. But error on the face of record must be such an error which must strike one on mere looking at the record and would not require any long drawn process of reasoning on the points where there may conceivably by two opinions.
(iii) Power of review may not be exercised on the ground that the decision was erroneous on merits.
(iv) Power of review can also be exercised for any sufficient reason which is wide enough to include a misconception of fact or law by a court or even an advocate.
(v) An application for review may be necessitated by way of invoking the doctrine actus curiae neminem gravabit."
16.It is further observed in the said decision that an error which is required to be detected by a process of reasoning can hardly be said to be an error on the face of the record.
17.In the case of Shanti Conductors (P) Ltd. (supra), it is observed and held that scope of review under Order 47 Rule 1 CPC read with Section 114 CPC is limited and under the guise of review, the petitioner cannot be permitted to reagitate and reargue questions which have already been addressed and decided. It is further observed that an error which is not self evident and has to be Megha ___Page No. 6 of 7____ ::: Uploaded on - 12/04/2024 ::: Downloaded on - 17/04/2024 19:38:17 ::: 10_rpwl_6905_2014.docx detected by a process of reasoning, can hardly be said to be an error apparent on the face of record justifying the court to exercise its power of review under Order 47 Rule 1 CPC."
8. I therefore find the Review Petition to be gross abuse of process of law. There is no error apparent on face of record in the order under review. The Review Petition is accordingly rejected.
SANDEEP V. MARNE, J.
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