Research › Search › Judgment

Himachal Pradesh High Court · body

2022 DIGILAW 746 (HP)

Mansa Ram v. Prakash Chand

2022-11-25

SATYEN VAIDYA

body2022
JUDGMENT : SATYEN VAIDYA, J. 1. By way of instant petition, petitioner has challenged order dated 14.02.2022, Annexure P-11, passed by the Assistant Registrar, Cooperative Societies, Solan, District Solan, H.P. whereby the application of the petitioner herein under Order 1 Rule 10 of the Code of Civil Procedure (for short ‘CPC’) has been dismissed. 2. Brief facts necessary for adjudication of the petition are that respondent No. 2 is a Society registered under the Himachal Pradesh Co-operative Societies Act, (for short “The Society”) having its own Rules and Bye-laws. The primary objective of the Society is to carry out all types of transport business for transporting goods which includes plying of trucks, tippers, trailers and any other type of public vehicle. Besides this, the Society has been constituted to provide business only for land-loosers of the Panchayats within whose jurisdiction the lands were utilized for the Gujarat Ambuja Cement Project. Landloosers includes hereditary permanent residents of the area under operation of the Society. 3. Respondent No. 1 was a member of the Society. He was assigned token No. B-812 and his Vehicle No. HP-51B-0557 was being operated under the aegis of the Society. Respondent No. 1 had purchased the aforesaid vehicle by taking financial assistance from the Finance Company. He defaulted in payments of instalments, as a consequence of which, the Finance Company re-possessed the vehicle on 04.07.2011 and subsequently auctioned the same to realize its due amount. Thus, the petitioner was unable to ply any vehicle under the token of membership allotted to him by the Society. 4. On 08.01.2014, respondent No. 1 had agreed to transfer the membership of the Society in favour of the petitioner. The Managing Committee of the Society passed a resolution on 08.02.2014 whereby the membership of respondent No. 1 was cancelled for his inability to ply any vehicle against said membership despite repeated reminders. The resolution was approved by the General House on 27.04.2014. 5. Respondent No. 1 claims that he had submitted an application to the Society praying for grant of permission to ply one multi axle truck and one six tyre truck. He received a communication dated 16.03.2021 from the Society informing him that his membership stood cancelled, as aforesaid and his request could not be allowed. 6. 5. Respondent No. 1 claims that he had submitted an application to the Society praying for grant of permission to ply one multi axle truck and one six tyre truck. He received a communication dated 16.03.2021 from the Society informing him that his membership stood cancelled, as aforesaid and his request could not be allowed. 6. Aggrieved against the communication dated 16.03.2021 and his termination/expulsion from the Society, respondent No. 1 has preferred an appeal under Section 93 of the Himachal Pradesh Cooperative Societies Act (for short ‘the Act’), before the Assistant Registrar Cooperative Societies, Solan, District Solan, H.P. During the pendency of the appeal of respondent No. 1, an application was filed by the petitioner under Order 1 Rule 10 of CPC for impleading him as party to the appeal. The application was preferred on the premise that the petitioner was a necessary party to the appeal as respondent No. 1 had transferred his membership alongwith token in favour of the petitioner on 08.01.2014, whereafter respondent No. 1 had ceased to be the member of the Society and, therefore, the question of termination of membership of respondent No. 1 by the Society did not arise. It was further averred that respondent No. 1 was claiming himself to be the member of the Society by concealing true facts regarding transfer of membership in favour of petitioner and had willfully omitted to implead the petitioner as party in the appeal. 7. The application of petitioner was contested by respondent No. 1 on the grounds that the application was not maintainable as respondent No. 1 had not prayed any relief against the petitioner. It was further averred that the Society had not rejected the prayer of respondent No. 1 for permission to ply the vehicles on the ground that his membership and token stood transferred to the petitioner, rather such rejection was on the ground that the membership of respondent No. 1 had been cancelled for his inability to ply the vehicle since long. As per respondent No. 1, the petitioner was neither a necessary nor a proper party to the proceedings. The petitioner was also accused of having filed the application merely to delay the proceedings of the case. As per respondent No. 1, the petitioner was neither a necessary nor a proper party to the proceedings. The petitioner was also accused of having filed the application merely to delay the proceedings of the case. Respondent No. 1 also raised a specific plea that the affidavit executed by him evidencing the factum of transfer of his membership in favour of the petitioner on 08.01.2014, had not matured and thus the affidavit could not be acted upon. The petitioner had not initiated any legal process on the basis of said affidavit knowing fully well that the transaction had not matured and the affidavit was a waste paper. 8. I have heard learned counsel for the parties and have also gone through the records of the case carefully. 9. The application dated 15.03.2021 submitted by respondent No. 1 to the Administrator of the Society reveals that request was made for granting permission to purchase/replace new vehicles in place of vehicle No. token No. HP-51B-0557/B-812. Respondent No. 1 had made such prayer on the premise that his vehicle No. HP-51B-0557 was registered in the name of his wife Smt. Lata Devi and was financed by Shriram Transport Finance Company. Due to his financial conditions, respondent No. 1 could not pay the monthly instalments and consequently the vehicle was repossessed by the Financer and was auctioned subsequently. 10. In his appeal preferred to the Assistant Registrar, Cooperative Societies, Solan against the communication dated 16.03.2021, respondent No. 1 has specifically averred that the said respondent on earlier occasions had also made request for purchasing another vehicle by replacement of vehicle No. HP-51B-0557, during the years 2016-17, but his request was put off on one or the other pretext by the Society. It has also been averred in the appeal by respondent No. 1 that the bye-laws of the Society permitted the plying of three single axle vehicles or one multi axle vehicle with one single axle vehicle at a time. Thus, respondent No. 1 had put-forth his case for permission to purchase new vehicles. Noticeably, the prayer clause of the appeal filed by respondent No. 1 reads as under: (i) That the impugned action of the respondent-society to terminate/expel the appellant from the membership of the respondent-society may kindly be quashed and set-aside and the membership of the appellant be ordered to be restored to its original number. Noticeably, the prayer clause of the appeal filed by respondent No. 1 reads as under: (i) That the impugned action of the respondent-society to terminate/expel the appellant from the membership of the respondent-society may kindly be quashed and set-aside and the membership of the appellant be ordered to be restored to its original number. (ii) That the respondent-society may kindly be directed to grant the permission to the appellant to purchase one multi axle vehicle and one single axle vehicle, since as per the bye-laws of the respondent-society, one member can ply three single axle vehicles or one multi axle and one single axle vehicle with the respondent-society at a time and justice be done. 11. No doubt, the prayer No. (ii) made by respondent No. 1 in his appeal will depend on the decision on prayer No. (i). In case, prayer No. (i) of respondent No. 1 is granted, his entitlement for purchase of new vehicles will become relevant. In such view of the matter, the prayer of petitioner to implead him as a party in the appeal does not appear to be unjustified. Rather, the petitioner is a necessary party to the appeal as in the event of the Appellate Authority deciding the appeal in favour of respondent No. 1, the claim of the petitioner being transferee of membership and token from respondent No. 1, will remain unheard. Before delving further on the subject, it will be apt to deal with another submission of learned counsel for respondent No. 1 that this Court in exercise of jurisdiction under Article 227 of the Constitution of India will not sit as a Court of appeal and will also not substitute its own opinion or view having regard to the restrictive jurisdiction. Reliance has been placed on Para-7 of the judgment passed by the Hon’ble Supreme Court in Sadhana Lodh vs. National Insurance Company Ltd. and Another, (2003) 3 SCC 524 , which reads as under: “7. The supervisory jurisdiction conferred on the High Courts under Article 227 of the Constitution is confined only to see whether an inferior court or tribunal has proceeded within its parameters and not to correct an error apparent on the face of the record, much less of an error of law. In exercising the supervisory power under Article 227 of the Constitution, the High Court does not act as an appellate court or the tribunal. In exercising the supervisory power under Article 227 of the Constitution, the High Court does not act as an appellate court or the tribunal. It is also not permissible to a High Court on a petition filed under Article 227 of the Constitution to review or reweigh the evidence upon which the inferior court or tribunal purports to have passed the order or to correct errors of law in the decision.” 12. Similarly, Para-15 of the judgment passed by the Hon’ble Supreme Court in Garment Craft vs. Prakash Chand Goel, (2022) 4 SCC 181 , has been pressed into service, which reads as under: “15. Having heard the counsel for the parties, we are clearly of the view that the impugned order is contrary to law and cannot be sustained for several reasons, but primarily for deviation from the limited jurisdiction exercised by the High Court under Article 227 of the Constitution of India. The High Court exercising supervisory jurisdiction does not act as a court of the first appeal to re-appreciate, reweigh the evidence or fact upon which the determination under challenge is based. Supervisory jurisdiction is not to correct every error of fact or even a legal flaw when the final finding is justified or can be supported. The High Court is not to substitute its own decision on facts and conclusion, for that of the inferior court or tribunal. The jurisdiction exercised is in the nature of correctional jurisdiction to set right grave dereliction of duty or flagrant abuse, violation of fundamental principles of law or justice. The power under Article 227 is exercised sparingly in appropriate cases, like when there is no evidence at all to justify or the finding is so perverse that no reasonable person can possibly come to such a conclusion that the court or tribunal has come to. It is axiomatic that such discretionary relief must be exercised to ensure there is no miscarriage of justice.” 13. There cannot be any dispute as to proposition of law canvassed on behalf of respondent No. 1. It is axiomatic that such discretionary relief must be exercised to ensure there is no miscarriage of justice.” 13. There cannot be any dispute as to proposition of law canvassed on behalf of respondent No. 1. In Garment Craft (supra), it has been held that the power under Article 227 of the Constitution is to be exercised sparingly in appropriate cases, like when there is no evidence at all to justify, or the finding is so perverse that no reasonable person can possibly come to such a conclusion that the court or tribunal has come to. It has further been held “it is axiomatic that such discretionary relief must be exercised to ensure there is no miscarriage of justice.” Thus, it becomes the duty of this Court to intervene in case the facts before it reveal the possibility of miscarriage of justice. 14. Reverting to the facts of the case, the petitioner has registered his claim with the authorities on the membership and token earlier held by respondent No. 1. The possibility of success of such claim could not be an issue of consideration at the stage of deciding the prayer for impleadment as party. What was to be seen was the possible effect of the final verdict in the appeal on the projected claim of the petitioner. 15. As noticed above, in case of grant of prayer made by respondent No. 1 in his appeal, the projected claim of petitioner will be impliedly defeated. Petitioner has based his claim on the basis of transaction dated 08.01.2014. Respondent No. 1 was allegedly terminated/ expelled from the membership of the Society by a subsequent decision dated 08.02.2014. Though, the decision of the Society to cancel the membership of respondent No. 1 was not based on the factum of transfer of membership in favour of petitioner, yet it cannot be said that the projected claim of petitioner is completely alien to the controversy before the Appellate Authority. The refusal of prayer of petitioner to implead him as a party in appeal, therefore, will cause miscarriage of justice and having held so, this Court is within its power to exercise jurisdiction under Article 227 of the Constitution. 16. Another contention that has been raised on behalf of respondent No. 1 is that he was dominus litus in the appeal and no one can be permitted to be impleaded as respondent against his wish. 16. Another contention that has been raised on behalf of respondent No. 1 is that he was dominus litus in the appeal and no one can be permitted to be impleaded as respondent against his wish. In support of such contention, reliance has been placed on the judgment passed by the Hon’ble Supreme Court in Sudhamayee Pattnaik and Others vs. Bibhu Prasad Sahoo and Others, 2022 Live Law (SC) 773 while dealing with the proposition under Order 1 Rule 10 of CPC, the Hon’ble Supreme Court has observed that though the wish of plaintiff becomes relevant as regards the prayer for impleadment of third party as defendant as he is the dominus litus, but such an action is always at the risk of the plaintiff. On the basis of such observations, in Para-7 of the judgment, it has been held as under: “7. However, at the same time, considering the fact that defendants have also filed counterclaim for declaration of their right, title and interest over the suit property and permanent injunction and in case the counter-claim is allowed, as the plaintiffs are opposing to implead the subsequent purchasers as party defendants, thereafter it will not be open for the plaintiffs to contend that no decree in the counter-claim be passed in absence of the subsequent purchasers. Therefore, non-impleading the subsequent purchasers as defendants on the objection raised by the plaintiffs shall be at the risk of the plaintiffs.” 17. It is not the case of respondent No. 1 that he will not object to the projected claim of petitioner or will not derive any benefit, which may accrue to him as a result of non-impleadment of petitioner as a party in the appeal. 18. It is further seen that Rule 10 of Order 1 of the CPC, vests the Court with power to add party at any stage of the proceedings, either upon or without the application of either party, and on such terms as may appear to the Court to be just. The relevant considerations for exercise of such power is either the party sought to be impleaded ought to have been joined as a plaintiff or defendant, or whose presence before the Court may be necessary in order to enable the Court effectually and completely to adjudicate upon and settle all the questions involved in the suit. The relevant considerations for exercise of such power is either the party sought to be impleaded ought to have been joined as a plaintiff or defendant, or whose presence before the Court may be necessary in order to enable the Court effectually and completely to adjudicate upon and settle all the questions involved in the suit. The Appellate Authority while deciding the application under Order 1 Rule 10 of the CPC of the petitioner, has erred in not taking aforesaid relevant factors in consideration. As held above, the projected right of petitioner will be impliedly effected by grant of prayers made by respondent No. 1 in the appeal. 19. In light of above discussion, the petition is allowed. Order dated 14.02.2022, Annexure P-11, passed by the Assistant Registrar, Cooperative Societies, Solan, District Solan, H.P. is set-aside. The petitioner is ordered to be impleaded as party-respondent in the appeal filed by respondent No. 1 and pending before the Assistant Registrar, Cooperative Societies, Solan, District Solan, H.P. 20. The petition stands disposed of in the aforesaid terms, so also the pending applications, if any.