Whether notice U/S 164 of co-operative societies Act can be waived?

 At this stage, it would be proper to understand the
impact of absence of notice under Section 164 of the Maharashtra Cooperative
Societies Act. The notice is necessary if the suit is filed
against a Co-operative Society in connection with its business or
management. The legislature has not prescribed service of notice
upon a Co-operative Society but notice is required to be served upon
an officer of the State Government namely the Registrar (District
Deputy Registrar) of Co-operative Societies. This officer has been
given power to supervise and monitor the working of a Co-operative
Society to see that it functions democratically in accordance with the
parent Act and its bye-laws. Notice, therefore, is not meant or issued
for the benefit of Co-operative Society. The purpose of the provisions
is to enable said officer of the State Government to maintain proper
vigil on administration, business and management of such society.
Contention that such notice can be waived by defendant no. 6 is,
therefore, erroneous.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH
FIRST APPEAL NO. 1010 OF 2012
AND
CROSS OBJECTION NO. 63 OF 2013
FIRST APPEAL NO. 1010 OF 2012
M/s. GOLD TOUCH REAL ESTATE
PRIVATE LIMITED, 
V
Shri Suresh s/o Manoharlal Suri,

CORAM : B.P. DHARMADHIKARI &
 P.N. DESHMUKH, JJ.

DATED: NOVEMBER 21, 2015.
Citation: 2016(6) ALLMR 806

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Whether plea of Res judicata can be waived?

 That a plea of res judicata is not a plea touching the jurisdiction of a Court in the total or absolute sense and that it can be waived by a party to a proceeding has been held in P. C. Ray and Co. (India) Pvt. Ltd. v. Union of India. The observations made by their Lordships in paras 14 and 15 of this judgment are pertinent :

"14. the plea of res judicata, in our opinion, is not a plea touching the jurisdiction of a Court in the total or absolute sense. The Court has to go into the said plea as any other plea of law, as for example, limitation and then decide whether the issue or the claim is barred by res judicata or principles analogous thereto.

15. It has been held that the plea of res judicata may be waived by a party to a proceeding. In the premises the plea of res judicata can never be a judisdictional question. For jurisdiction can be conferred neither by waiver nor even by consent of the parties. It has been held by a Division Bench of this Court in Rajani Kumar Mitra v. Ajmaddin Bhuiya as follows : to wit : --

"The bar of res judicata is one which does not affect the jurisdiction of the court but is a plea in bar which a parry is at liberty to waive. If a party does not put foward his plea of res judicata in a suit he must be taken to have waived it.....The party omitting to plead res judicata intentionally invites the court to decide the case on the merits....." "

15. Order VI, Rule 1 of the Civil P.C. defines "pleading" as meaning plaint or written statement. The plea of res judicata, on the strength of the decision (supra), raised by the non-applicant plaintiff in reply to the application of the applicant-defendant (Exhibit 36) dt. 3-12-1983, challenging the jurisdiction of the Small Cause Court, cannot be said to have raised in the plaint without the plaint having been amended. As the plea of res judicata can also be waived by a party, the learned Small Causes Court should not have considered the question of res judicata while deciding the application (Exhibit 36) and precluded the applicant-defendant from challenging its juridiction on the ground that a substantial issue as regards title and interest in the immoveable property was being raised in the suit.

Bombay High Court

Wilfred Lovette vs Ganesh on 9 November, 1987

Equivalent citations: AIR 1988 Bom 142, 1988 (1) BomCR 637

Bench: B Deo

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