MANAKAD SERVICE CO-OP. SOCIETY LTD. v. MANIKANTAN NAIR
1985-12-09
MALIMATH, SUKUMARAN
body1985
DigiLaw.ai
Judgment :- 1. The 3rd respondent in O.P. No. 1387 of 1980 has come up in appeal against the judgment of the learned single judge rendered in the Original Petition. An award came to be made under Ss.69 and 70 of the Kerala Co-operative Societies Act, 1969. That award was challenged in appeal before the Kerala Co-operative Tribunal. The Tribunal having dismissed that appeal the said decision of the Tribunal was challenged by respondents 1 and 2 in OP. No. 1635 of 1977. That Original Petition came to be dismissed on 21-7-1977. Respondents 1 and 2 thereafter approached the Kerala Cooperative Tribunal, invoking its power of review under S.85 of the Act. The Tribunal declined to entertain the review petition having regard to the fact that its earlier decision on merits dismissing the appeal was challenged by them under Art.226 of the Constitution in OP. No. 1635 of 1977 and the said petition was dismissed by the High Court. The decision of the Tribunal was challenged by respondents 1 and 2 in OP. No. 1387 of 1980. The learned single judge has by judgment dated 10-12-1980 allowed the petition, quashed the order of the Tribunal and remitted the review petition to the Tribunal for being disposed of on merits and according to law. It is the decision of the learned single judge that is challenged in this appeal. 2. The principal contention of the learned counsel for the appellant in this appeal is that the review petition filed by the Ist respondent was not maintainable and that therefore the learned single judge was not right in directing the Tribunal to dispose of the review petition on merits. A similar contention though urged before the learned single judge did not find favour with him. The learned single judge has come to the conclusion that the effect of dismissal of OP. No. 1635 of 1977 is that this Court refused to call for the records of the inferior Court and to quash the same.
A similar contention though urged before the learned single judge did not find favour with him. The learned single judge has come to the conclusion that the effect of dismissal of OP. No. 1635 of 1977 is that this Court refused to call for the records of the inferior Court and to quash the same. It is further held that it cannot therefore be said that this Court confirmed any of the findings of fact recorded by the Tribunal, The clear effect of the judgment of the learned single judge is to take the view that this Court did not go into the merits of the case and virtually declined to interfere with the order of the Tribunal and therefore the order of the Tribunal did not stand merged in the final order of this Court in OP. No. 1635 of 1977. 3. Before examining the rival contention it is better to consider as to what actually happened when OP. No. 1635 of 1977 was disposed of by this Court. It is not disputed that the said petition was not dismissed in limine. After notice was issued, the contesting respondents entered appearance and after hearing the parties final decision was rendered in the case. On a perusal of the judgment in OP. No. 1635 of 1977, it is not possible to agree with the view of the learned single judge taken in the judgment under appeal that this Court declined to call for the records of the Tribunal and to quash the same. The relevant discussion in the said judgment Ext. P4 may for the sake of convenience be extracted as follows: "Ext. P2 award confirmed in appeal by the Kerala Co-operative Appellate Tribunal by Ext. P3 judgment calls for no interference in this proceedings. The question for decision was whether the petitioners herein, who were respectively the erstwhile Secretary of the Society and his guarantor were liable for amounts claimed as due to the Co-operative Society. The Secretary had in Ext. P9 statement given to the Society undertaking to pay such amount as was found due on audit. It was the amount that was so found due on audit that was claimed. The arbitrator as well as the Appellate Tribunal have considered the evidence in the case and found that the petitioners are liable. This finding based on appreciation of evidence does not call for interference in these proceedings.
It was the amount that was so found due on audit that was claimed. The arbitrator as well as the Appellate Tribunal have considered the evidence in the case and found that the petitioners are liable. This finding based on appreciation of evidence does not call for interference in these proceedings. Hence the petition is dismissed with costs." On a bare reading of the judgment it becomes clear that this is not a case in which the learned single judge declined to interfere, nor can it be said that the parties were relegated to the other available remedies. There are well recognised principles governing interference with orders of Tribunals under Art.226 of the Constitution. This Court examined the case bearing in mind those principles. When the learned single judge observed that the finding of the Tribunal does not call for interference, it means that there was no error apparent on the face of the record. It, therefore, follows that the decision of the learned single judge was that the finding of fact recorded by the Tribunal did not suffer from any infirmity so as to enable this Court to interfere with the same. In these circumstances, it is impossible to take the view that the learned single judge did not enter into the merits of the case. The decision of the learned single judge, in our opinion, was after considering the merits of the case. 4. If, as already found, the judgment in O.P. No. 1635 of 1977 was on merits, the further question for consideration is as to whether the said decision had the effect of barring the review petition filed by respondents 1 and 2 before the Tribunal. It was contended by the learned counsel for the appellant that the decision in the previous case was rendered by the High Court as the superior Court and the order of the Tribunal stood merged in the order of this Court in OP. No. 1635 of 1977. As the order of the Tribunal stood merged in the order in OP. No. 1635 of 1977, it was maintained that in law the order of the Tribunal did not exist in order to enable the Tribunal to review it. 5. In support of the contention of the learned counsel reliance was placed on the decision of the Supreme Court reported in Shankar v. Krishna (AIR. 1970 SC. 1).
No. 1635 of 1977, it was maintained that in law the order of the Tribunal did not exist in order to enable the Tribunal to review it. 5. In support of the contention of the learned counsel reliance was placed on the decision of the Supreme Court reported in Shankar v. Krishna (AIR. 1970 SC. 1). That was a case in which the appellate order made under the provisions of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 was challenged in the High Court of Bombay under S.115 of the Code of Civil Procedure. The revision petition was dismissed by the learned single Judge. Thereafter the very same appellate order made under the Act was sought to be challenged in the High Court under Art.226 and 227 of the Constitution. Dealing with the question as to whether the petition invoking Art.226 and 227 in the circumstances of the case was maintainable, what the Supreme Court observed in Para.6 of the judgment is as follows: "Now, when the aid of the High Court is invoked on the revisional side it is done because it is a superior Court and it can interfere for the purpose of rectifying the error of the Court below.. S.115 of the Code of Civil Procedure, circumscribes the limits of that jurisdiction but the jurisdiction which is being exercised is a part of the general appellate jurisdiction of the High Court as a superior Court. It is only one of the modes of exercising power conferred by the Statute; basically and fundamentally it is the appellate jurisdiction of the High Court which is being invoked and exercised in a wider and larger sense. We do not therefore, consider that the principle of merger of orders of inferior Courts in those of superior Courts would be affected or would become inapplicable by making a distinction between a petition for revision and an appeal." The Supreme Court came to the conclusion in that case that the appellate order made under the provisions of the Bombay Rents, Hotels and Lodging House Rates Control Act, 1947, stood merged in the order made by the learned single judge under S.115 CPC. The High Court exercises jurisdiction under Art.226 of the Constitution as the superior Court. The powers of the High Court under S.115 CPC. or under Art.226 of the Constitution is discretionary.
The High Court exercises jurisdiction under Art.226 of the Constitution as the superior Court. The powers of the High Court under S.115 CPC. or under Art.226 of the Constitution is discretionary. Both are powers exercisable by the superior Court. Whereas power under S 115 CPC. can be exercised in respect of orders passed by Courts subordinate to the High Court, the power under Art.226 can be exercised in respect of all Courts, Tribunals, authorities and persons. The principles laid down by the Supreme Court in the above case are, in our opinion, applicable to the facts of the present case as the order of the Tribunal stands affirmed by the order made under Art.226 of the Constitution. So far as the principle of merger is concerned, there is no good ground to bold that what applies to orders passed under S.115 CPC. is not applicable to decisions rendered under Art.226 of the Constitution. 6. The aforesaid decision of the Supreme Court in Shankar's case has been followed by the High Court of Punjab and Haryana in the decision reported in Amarjit Singh v. Financial Commissioner, Taxation (AIR. 1978 P. & H. 329). Following the aforesaid decision in Shankar's case, a Division Bench of Punjab and Haryana High Court has laid down that the principle of merger is applicable to the decisions rendered under Art.226 of the Constitution. That judgment is on all fours and with great respect we agree with the view taken therein. Their Lordships of the Punjab and Haryana High Court have further observed that any other view would militate against the public policy, and the inferior Tribunals could set at naught the decisions of the superior Courts, including the decisions rendered by the High Court in its writ jurisdiction. If the principle of merger is held to be not applicable to cases of this type, it is likely to lead to conflicting decisions by subordinate Courts, Tribunals and authorities inconsistent with the decision of the Superior Court, namely, the High Court. We have, therefore, no hesitation in taking the view, with great respect, that the learned single judge was not justified in taking the view that the order of the Tribunal did not get merged in the decision of the High Court under Art.226 of the Constitution in this case and that the Tribunal was therefore free to review its earlier decision.
For the reasons stated above, this appeal is allowed, the judgment of the learned single judge is set aside and OP. No. 1387 of 1980 is dismissed. No costs.