Tuesday, 12 May 2015

When there is no specific prohibition, unless expressly provided in law, every procedure is to be understood as permissible.

The Apex Court in the case of Rajendra Prasad Gupta Vs.
Prakash Chandra Mishra and others, reported at AIR 2011 SC
1137, has held in paragraph 6 and 7 as under :-
“6. In Narsingh Das V. Mangal Dubey, (1882) ILR 5
All 163 (FB), Mr. Justice Mahamood, the celebrated
Judge of the Allahabad High Court, observed :-
“ Courts are not to act upon the principle that
every procedure is to be taken as prohibited unless it
is expressly provided for by the Code, but on the
converse principle that every procedure is to be
understood as permissible till it is shown to be
prohibited by the law. As a matter of general principle
prohibition cannot be presumed.”
“7. The above view was followed by a Full Bench of
the Allahabad High Court in Raj Narain Saxena V.
Bhim Sen & others, AIR 1966 Allahabad 84 (FB), and
we agree with this view.”

Thus, it is trite that when there is no specific prohibition,
unless expressly provided in law, every procedure is to be
understood as permissible.
IN THE HIGH COURT OF JUDICATURE OF BOMBAY,
BENCH AT AURANGABAD
WRIT PETITION NO. 3229 OF 2001
Nanded Zilla Krushi Audyogik
Society Ltd. Nanded,
Versus
Govind s/o Girmaji Shinde,

CORAM : RAVINDRA V. GHUGE
DATED : 21st August 2014
Citation;2015(2)MHLJ805


1. By an order dated 08-01-2002, this petition was admitted
and interim relief in terms of prayer clause 'E' was granted.
Prayer clause 'E' reads as under :-
“E. Pending the hearing and final disposal of this
writ petition, the judgment and order dated 6-8-1998
passed by the Maharashtra State, Co-operative
Appellate Court of Mumbai, Bench at Aurangabad in
Review Petition No. 8/97 to the extent of fixing liability
against the present petitioner and judgment and order
dated 18-04-2000 passed by the Maharashtra State,
Co-operative appellate Court Nanded in Review
Petition No. 3/98 may kindly be stayed.”
2. Petition has been dismissed as against respondent Nos. 4 &
5 by order dated 29-09-2003 and 03-03-2003.
3. The respondent Nos. 1 to 3 are the original disputants.
Respondent No. 5 is the Maharashtra State Seeds Corporation
Limited. It is a registered Co-operative Society under the
Maharashtra Co-operative Societies Act, 1960 (1960 Act).
Respondent Nos. 1 to 3 are members of respondent No. 4
Society. They purchased seeds manufactured by respondent No.
5- Maharashtra State Seeds Corporation Limited. Respondent
Nos. 1 to 3 obtained loan from respondent No. 4 society. The

petitioner society was merely a supplying agent and was not a
whole-sale or retail dealer for respondent 5.
4. The said three persons, therefore, purchased the seeds
manufactured by respondent 5 from the petitioner. It is their case
that the said seeds were of an inferior quality though certified by
respondent 5 and, therefore, caused a serious loss to them. As
such, they raised dispute bearing No. CCN/ 4/88 against
respondent Nos. 4, 5 and the petitioner.
5. The dispute No. 4 of 1988 was decreed on 28-02-1991.
There were specific allegations as are reproduced in the judgment
dated 28-02-1991 that the Hybrid seeds of CSH-9 (Jawar), in all
nine bags, were sowed in the fertile agricultural fields of the
disputants and the same turned out to be of a very low quality and
appeared to be adulterated. The expert squad of respondent 5
visited the spot on 26-09-1987 and prepared the Panchanama.
The disputants felt deceived, duped and sustained a loss to the
tune of Rs. 34,824/-. The details of loss caused were set out in
their application.
6. It is submitted by the petitioner that the dispute claim putforth
by the disputants specifically alleged that respondent 5 had
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recklessly certified the seeds and, therefore, caused a severe loss
to the disputants. It is pertinent to note that there are no specific
allegations against the petitioner. The entire thrust was against
the respondent 5. However, in the prayer clause, the disputants
claimed relief jointly and severally against all the opponents i.e.
respondent Nos. 5, 4 and the petitioner. By judgment and order
dated 28-02-1991 delivered by the Co-operative Court Nanded,
the claim was allowed.
7. The petitioner as also respondent 5, filed appeal No. 137 of
1991 and 78 of 1991 respectively before the Maharashtra State
Co-operative Appellate Tribunal. The petitioners specifically
contended that the entire thrust of the complaint of the disputants
was against respondent 5 and it had no concern with the dispute,
much less, liable to pay compensation to the disputants.
8. After hearing the respective parties, appeals filed by both
were heard together and the Appellate Court directed the Trial
Court to decide the amendment application as well as frame an
issue as regards jurisdiction of the Trial Court to deal with the
dispute under Section 91 of the 1960 Act. The Trial Court was
directed to decide the issue and return the evidence recorded
together with his findings and reasons within a period of two
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months. The operative part of the order dated 30-09-1992 passed
by the Appellate Court is reproduced as under :-
“ Hence the following order :-
O R D E R
The lower Court is directed to decide the amendment
application, if filed by the opponent No. 3 for
amendment of the written statement raising the issue
of jurisdiction on merits and in case such application is
allowed the Learned Trial Judge is directed to frame
the issue as to jurisdiction and record the evidence
thereon if desired by parties to the dispute and return
the evidence recorded together with his findings and
reasons for within a period of two months from the
date of receipt of record.
The Order dated 18-07-1991 issued by this
Court in Appeal No. 78/91 staying the operation of the
order dated 28-02-1991 passed by the Lower Court
would continue to operate till the final decision of the
Appeal.
No order as to costs.”
9. It is submitted that finally the Appeal Court heard the appeal
No. 78 of 1991 and allowed the same by directing the Lower Court
to decide the whole dispute on merit by framing proper issues
pertaining to the jurisdiction. The operative part of the said order
dated 06-03-1997 is reproduced as under :-
“ O R D E R
The appeal is hereby allowed with direction to
the Lower Court to decide the whole dispute on merit
by framing proper issues.
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Parties to appear in the Lower Court on
25.04.97.
No order as to cost.”
10. The petitioner submits that review petition No. 8 of 1997
was filed by respondent 5 and not by the petitioner, before the
Appellate Court, claiming therein that the disputants were neither
employees of respondent No..5 – Maharashtra Seeds Corporation
Limited and nor was it (respondent 5) a member of the petitioner
or respondent 4 society. It was, therefore, prayed that no claim
against respondent No. 5 could be entertained under Section of
91 of the 1960 Act. The review petition was allowed by order
dated 06-08-1998 and the Appellate Court arrived at an
astonishing finding that only the petitioner and respondent 4
herein are liable to pay compensation as the dispute is
maintainable as against them and the respondent 5 was released
from its liability only on the ground of jurisdiction.
11. Aggrieved by the said order dated 06-08-1998, the petitioner
filed review petition No. 3 of 1998, stating therein that the entire
claim of the disputants originated from the inferior seeds
manufactured and supplied by respondent 5. The moment it is
concluded that the dispute against respondent 5 was not
maintainable before the Co-operative Court, the whole dispute is
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to be held untenable in law. When the entire claim originated from
the doorstep of respondent 5, the Appellate Court could not have
allowed the review so as to split the dispute into two parts on the
point of jurisdiction.
12. It was, therefore, prayed that the order dated 06-08-1998
passed in review No. 8 of 1997 deserves to be reviewed.
However, by its judgment and order 17-04-2000, the review
petition No. 3 of 1998 was dismissed only on the ground that the
Appellate Court did not have the power to review its order passed
on earlier review petition. Hence, this petition filed by the
petitioner.
13 . Having heard the learned Advocate for the petitioner, in my
view, when the disputants were aggrieved on account of the
inferior quality of the seeds and its certification by respondent 5,
the entire dispute is on account of the manufacturing of the seeds
by respondent No. 5. It can, therefore, be said that the origin of
the dispute emanates from respondent 5.
14. It is held by our Court in paragraph No. 19 in the case of
Mr. Hans Jurgen Buchmann Vs. Mrs. Leopoldina C. Rodrigues
& others, reported at 2004 (4) ALL MR 140 as under :-
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“19. Admittedly, in terms of the memorandum of
understanding dated 17-12-1991 the exclusive
possession of the plaintiff was recognised by the
defendants, possession which the plaintiffs were
certainly entitled to protect unless they were evicted
under due course of law. The plaintiffs had
expressed their fear that they might be evicted
because of the belligerent attitude of the defendants
particular defendant No. 1 after the plaintiffs had
stopped the personal financial assistance which the
plaintiffs claimed they were rendering to defendant
No. 1 from 1997. Since the possession of the suit
premises was with the plaintiffs, the plaintiffs could
have sought for an injunction against the defendants
independently of seeking specific performance for
execution of the conveyance deed in terms of prayer
(a) of the plaint. The relief of injunction was not
incidental to the relief of specific performance sought
by the plaintiffs and the relief of injunction sought
could not be said to be adjunct to the relief of
specific performance. The plaintiffs also would be
entitled to amend the plaint to incorporate the
subsequent events which took place resulting in the
appointment of Commissioner etc. In my opinion,
the pleadings of the plaint were sufficient to grant or
refuse either both or any of the reliefs sought by the
plaintiffs in terms of prayer (a) and (c)of the plaint
and one was not dependent on the other. Order VII
rule 11 (d) speaks of rejection of the plaint and the
plaint to be rejected has to be rejected as a whole
and not in part. If any authority is required to
support this proposition then reference could be
made to the D. Ramchandran Vs. R.V.
Janakriaman and others (supra) wherein the
Hon'ble Supreme Court with reference to Order VII
Rule 11 has stated that under the rule there cannot
be a partial rejection of the plaint or petition. In this
view of the matter, in my opinion, the learned Trial
Court fell into error by rejecting the plaint entirely
considering the same to be basically based only on
prayer (a) and ignoring that the suit was also filed for
injunction in terms of prayer(c) of the plaint. .”
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15. It is held by the Apex Court in paragraph No. 35 in the case
of State of Haryana Vs. State of Punjab & others, reported at
(2004) 12 Supreme Court Cases 673 as under :-
“35. The first question to be answered is : Do these
disputes involve any question (whether legal or factual)
on which the existence or extent of a legal right of the
plaintiff depends? If it does then the next question is,
whether the raising of such disputes is barred by any
law. If any of these questions is answered in the
affirmative then the plaint must be rejected as a whole.
On the other hand, if any part of the dispute crosses both
hurdles, the suit must survive because there cannot be
a partial rejection of the plaint (see D. Ramachandran
Vs. R.V. Janakiraman).
16. It is held by the Apex Court in paragraph No. 10 in the case
of D.Ramachandran Vs. R.V. Jankiraman and others, reported
at (1999) 3 Supreme Court Cases 267 as under :-
“10. On the other hand, Rule 11 of Order 7 enjoins the court to
reject the plaint where it does not disclose a cause of action.
There is no question of striking out any portion of the pleading
under this Rule. The application filed by first respondent in OA
No. 36 of 1997 is on the footing that the averments in the
election petition did not contain the material facts giving rise to a
tribal issue or disclosing a cause of action. Laying stress upon
the provisions of Order 7 Rule 11 (a), learned Senior Counsel for
the first respondent took us through the entire election petition
and submitted that the averments therein do not disclose a
cause of action. On a reading of the petition, we do not find it
possible to agree with him. The election petition as such does
disclose a cause of action which if unrebutted could void the
election and the provisions of Order 7 Rule 11(a) CPC cannot
therefore be invoked in this case. There is no merit in the
contention that some of the allegations are bereft of material
facts and as such do not disclose a cause of action. It is
elementary that under Order 7 Rule 11 (a) CPC, the court
cannot dissect the pleading into several parts and consider
whether each one of them discloses a cause of action. Under
the Rule, there cannot be a partial rejection of the plaint or
petition. See Roop Lal Sathi V. Nachattar Singh Gill. We are
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satisfied that the election petition in this case could not have
been rejected in limine without a trial.”
17. In view of the law laid down as above and the contentions
set out by the disputants in their claim dispute clearly indicates
that respondent 5 could not be segregated from the dispute in as
much as the said dispute could not be segregated into two parts.
The dispute as a whole is to be decided, meaning thereby that if
the dispute against respondent 5 was not maintainable under
Section 91, the whole dispute was rendered untenable in law.
18. Section 150 (1) of the 1960 Act reads as under :-
“(1) The [Co-operative Appellate Court] may, either on the
application of the Registrar or on the application of any
party interested, review its own order in any case, and pass
in reference thereto such order as it thinks just :
Provided that, no such application made by the party
interested shall be entertained, unless the [Co-operative
Appellate Court] is satisfied that there has been the
discovery of new and important matter of evidence, which
after the exercise of due diligence was not within the
knowledge of the applicant or could not be produced by him
at the time when its order was made, or that there has been
some mistake or error, apparent on the face of the record,
or for any other sufficient reasons:
Provided further that, no such order shall be
varied or revised, unless notice has been given to the
parties interested to appear and be heard in support of
such order.
19. Section 151 of the 1960 Act reads as under :-
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“(1) In exercising the functions conferred on it by or under
this Act, the [Co-operative Appellate Court] shall have the
same power as are vested in a Court in respect of , -
(a) Proof facts by affidavit.
(b) summoning and enforcing the attendance of any
person and examining him on oath,
(c) compelling discovery or the production of
documents, and
(d) issuing commissions for the examination of
witnesses.
(2) In the case of any such affidavit, any officer appointed
by [ Co-operative Appellate Court] in this behalf may
administer the oath to the deponent.”
20. It is held by the Apex Court in paragraph No. 6 in the case
of Grindlays Bank Ltd., Vs. The Central Government Industrial
Tribunal & others, reported at AIR 1981 Supreme Court 606 as
under :-
“6. We are of the opinion that the Tribunal had the power
to pass the impugned order, if it thought fit in the interest of
justice. It is true that there is no express provision in the Act
or the rules framed thereunder giving the Tribunal
jurisdiction to do so. But it is a well-known rule of statutory
construction that a Tribunal or body should be considered to
be endowed with such ancillary or incidental powers as are
necessary to discharge its functions effectively for the
purpose of doing justice between the parties. In a case of
this nature, we are of the view that the Tribunal should be
considered as invested with such incidental or ancillary
powers unless there is any indication in the statute to the
contrary. We do not find any such statutory prohibition. On
the other hand, there are indications to the contrary.”
21. It is held by by the Apex in paragraph No. 19 in the case of
Kapra Mazdoor Ekta Union Vs. Management of M/s. Birla
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Cotton Spinning and Weaving Mills Ltd. and others, reported
at AIR 2005, Supreme Court, 1782 as under :-
“19. Applying these principles it is apparent that where
a court or quasi judicial authority having jurisdiction to
adjudicate on merit proceeds to do so, its judgment or
order can be reviewed on merit only if the court or the
quasi judicial authority is vested with power of review by
express provision or by necessary implication. The
procedural review belongs to a different category. In
such a review, the Court or quasi judicial authority
having jurisdiction to adjudicate proceeds to do so, but
in doing so commits a procedural illegality which goes to
the root of the matter and invalidates the proceeding
itself, and consequently the order passed therein. Cases
where a decision is rendered by the Court or quasi
judicial authority without notice to the opposite party or
under a mistaken impression that the notice had been
served upon the opposite party, or where a matter is
taken up for hearing and decision on a date other than
the date fixed for its hearing, are some illustrative cases
in which the power of procedural review may be invoked.
In such a case the party seeking review or recall of the
order does not have to substantiate the ground that the
order passed suffers from an error apparent on the face
of the record or any other ground which may justify a
review. He has to establish that the procedure followed
by the court or the quasi judicial authority suffered from
such illegality that it vitiated the proceeding and
invalidated the order made therein, inasmuch the
opposite party concerned was not heard for no fault of
his, or that the matter was heard and decided on a date
other than the one fixed for hearing of the matter which
he could not attend for no fault of his. In such cases,
therefore, the matter has to be re-heard in accordance
with law without going into the merit of the order passed.
The order passed is liable to be recalled and reviewed
not because it is found to be erroneous, but because it
was passed in a proceeding which was itself vitiated by
an error of procedure or mistake which went to the root
of the matter and invalidated the entire proceeding. In
Grindlays Bank Ltd. v. Central Government Industrial
Tribunal and others (supra), it was held that once it is
established that the respondents were prevented from
appearing at the hearing due to sufficient cause, it
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followed that the matter must be re-heard and decided
again.”
22. In the peculiar facts of this case, from the above stated
provisions and the law applicable, it is clear that the Co-operative
Appellate Court has the jurisdiction to review its own order as like
the Civil Court. There is no specific bar that once an order is
passed in a review application, the said review order cannot be
subjected to a further review, more so when the earlier review
petition was not filed by the petitioner.
23. The Apex Court in the case of Rajendra Prasad Gupta Vs.
Prakash Chandra Mishra and others, reported at AIR 2011 SC
1137, has held in paragraph 6 and 7 as under :-
“6. In Narsingh Das V. Mangal Dubey, (1882) ILR 5
All 163 (FB), Mr. Justice Mahamood, the celebrated
Judge of the Allahabad High Court, observed :-
“ Courts are not to act upon the principle that
every procedure is to be taken as prohibited unless it
is expressly provided for by the Code, but on the
converse principle that every procedure is to be
understood as permissible till it is shown to be
prohibited by the law. As a matter of general principle
prohibition cannot be presumed.”
“7. The above view was followed by a Full Bench of
the Allahabad High Court in Raj Narain Saxena V.
Bhim Sen & others, AIR 1966 Allahabad 84 (FB), and
we agree with this view.”

Thus, it is trite that when there is no specific prohibition,
unless expressly provided in law, every procedure is to be
understood as permissible.
24. As such, ends of justice would be met by quashing and
setting aside the impugned order passed by the Appellate Court
dated 17-04-2000 in review petition No. 3 of 1998 and by directing
the Appellate Co-operative Court to consider the Review Petition
of the petitioner pertaining to the review order dated 06-08-1998
afresh in light of Section 150 (1) and 151 of the Act of 1960 and
the ratio emerging from the judgments referred above and in the
case of Grindlays Bank Ltd. and Kapra Mazdoor Ekta Union
cases (supra).
25. In the light of the above, this petition is partly allowed. Order
dated 17-04-2000 passed by the Cooperative Appellate Tribunal
in review petition No. 3 of 1998 is quashed and set aside. Review
No. 3/1998 is remitted to the file of the Co-operative Appellate
Court, Mumbai Bench at Aurangabad.
26. The Appellate Court shall consider the review petition filed
by the petitioner afresh on its own merits,in accordance with law

and after hearing all the parties. Nevertheless, the contention of
the petitioner that
a] the dispute raised by the disputants cannot be split
into two so as to hold that one part of the dispute is
maintainable against a particular respondent and one
part of the dispute is rendered untenable as against
another respondent,
shall be gone into by the Appellate Court.
Needless to state, all the parties concerned shall be
heard in the matter.
27. It is expected that the Appellate Court shall decide review
petition No. 3 of 1998 as expeditiously as possible and preferably
within a period of six months from today. Rule is accordingly made
partly absolute in the above terms.
( RAVINDRA V. GHUGE, J. )
 September-2014

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