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2009 DIGILAW 346 (MP)

Vidhyadhar Dubey v. Balmukund Kaushik

2009-03-18

K.C.SHARMA, P.D.MISHRA

body2009
JUDGMENT Sharma, J. -- 1. Second Appeal u/s 78 of M.P. Cooperative Societies Act, 1960 has been preferred against the order of Joint Registrar Cooperative Societies, Gwalior passed in Case No. 78-67/2004 on 30.3.2007. 2. Brief facts giving rise to this appeal are that the respondent No.2 is a Primary Housing Cooperative Society and the appellant is a member of it. Respondent society owing to some irregularities committed by the respondent No.1 issued a show cause notice in 5.9.1998 for expelling respondent No.1 from the membership of the respondent society. The society ultimately by passing a resolution on 4.10.1998 expelled the respondent from its membership. As a consequence of this act, the Society also cancelled a plot No. 21 allotted to the respondent, which was subsequently allotted to the appellant. The respondent No.1 filed a dispute u/s 64 before the Assistant Registrar Cooperative Societies, Guna, who while seeking the relief of restoring his membership also urged that the plot No. 21 be allotted back to him. Dy. Registrar Cooperative Societies, Guna through his order dated 2.5.2003 set aside the order of the respondent society expelling respondent No.1 from its membership and directed the respondent society to do necessary action for allotting the Plot No. 21, in accordance with the procedure laid down in it. It has been stated in the memo of appeal that appellant has constructed a shop on this plot and it is very much in possession of appellant. However, since he was not impleaded as a party by the trial Court his interest has been affected adversely without impleading in it. He therefore filed First Appeal before the Joint Registrar Cooperative Societies, Gwalior, who vide the impugned order has upheld the order of the trial Court. Therefore, this Second Appeal. 3. Following substantial questions of law were formulated: (i) Whether the dispute filed by the respondent No.1 in the Court of Dy. Registrar, Guna was maintainable in view of the fact that he ought to have filed appeal u/s 19-C(1-A) of the Act instead of dispute u/s 64 of the Act? (ii) Whether the Court below has erred in not impleading the appellant as a party in dispute u/s 64 of the Act? 4. We heard the rival contentions on above points and reached the following conclusions: 5. (ii) Whether the Court below has erred in not impleading the appellant as a party in dispute u/s 64 of the Act? 4. We heard the rival contentions on above points and reached the following conclusions: 5. It has been argued by the learned counsel for the appellant that the respondent No.1 filed a dispute u/s 64 before the Assistant Registrar, whereas according to section 19-C (1-A), appeal against this order should have been preferred before the Dy. Registrar. 6. Learned counsel for the respondent No.1 contended that the nature of the appeal to be filed against an order u/s 19-C in accordance with the provisions of clause (1-A) of Sub-section (1) of 19-C as the nature and the character is that of a dispute only. Learned Assistant Registrar has very much discussed this issue in the issues framed by him at length, therefore the conclusion drawn by him requires no change. The Tribunal has considered this issue at length in Second Appeal No. 223/2008, Vindhya Nagar Grah Nirman Sahakari Samili Maryadit, Bhopal v. M.P. Patel and formed the opinion that appeal to be filed by an aggrieved u/s 19-C (1-a) is by and large of a nature of dispute and the Tribunal while deviating from the earlier view has held that First Appeal against such order would lie before the Joint Registrar only. In light of the above considered view framed by the Tribunal after due deliberation this question is settled under scoring the contention that a dispute filed u/s 64 in the matter could very well cover the requirement of sub-section (1-A) of section 19-C. Therefore, there seems no error to have been committed by the lower Courts in this respect. 7. It is important to note that the appellant is an Ex-Chairman of the Respondent society in the dispute u/s 64 filed before the Assistant Registrar. He was well impleaded by the respondent No.1 as defendant No.1 in the capacity of his being the Chairman of the Respondent society. It is important in this manner to underscore that the appellant was in full knowledge of the contents of the dispute filed before the Assistant Registrar. No matter whether he was in his capacity of Chairman of the Society. Written statement on behalf of the respondent society has been filed by the appellant before the Assistant Registrar. It is important in this manner to underscore that the appellant was in full knowledge of the contents of the dispute filed before the Assistant Registrar. No matter whether he was in his capacity of Chairman of the Society. Written statement on behalf of the respondent society has been filed by the appellant before the Assistant Registrar. In his written statement the appellant has nowhere stated that the disputed plot has been allotted to him or any other particular person to whom the plot has been allotted. It implies that the appellant was cleverly avoiding the factual position of his involvement. The same is apparently visible on the application filed before the Dy. Registrar under Order 6 Rule 17 CPC on 13.3.2002 for amending the plaint which was however opposed by the respondent society. It is thus clear from the narration of the above facts that although the appellant may not have been impleaded as an individual as a dispute before the Dy. Registrar, but since no application Order 1 Rule 10 CPC was ever submitted by him, he has not been impleaded as party by the Assistant Registrar. It thus does not imply that there has been any irregularities committed by him. 8. Since all the developments were known to the appellant and since he was already impleaded in his capacity as Chairman of the Respondent Society apparently there is no error committed by the trial Court and the first appellate Court. 9. In the light of the above discussions, we do not find any merit in the appeal. Therefore, it is dismissed and the order of the lower Courts are hereby confirmed. Parties to bear their own costs. C.C. as per rules.