Back
2008 Supreme(Guj) 99
2008 (3) GCD 2000 (Guj)
Hon’ble Mr. Justice Jayant Patel
Kusumben Narandas Patel
Versus
Swami Gunatitnagar Co-operative Housing Society Ltd.
Special Civil Application No. 7535 of 1997 —Decided on 14/03/2008
Appearance :
Mr. Tushar Mehta, for the Petitioners No. 1, 1.2.1, 1.2.2, 1.2.3, 1.2.4, 1.2.5.
Mr. Mihir H. Joshi, for the Respondent No. 1.
Point in Issue :
Whether power of review can be exercised because of understanding or error for considering the decision of a Court.
Headnote:Head Note :
Gujarat Co-operative Societies Act — Section 151 — Civil Procedure Code, 1908 (Central Act 5 of 1908) — Section 114 and Order 47 Rule 1 — Review — Power of — Scope and ambit — Finding of — Tribunal judgment dated 15.09.1997 passed on review application 20 of 1995 is under challenge on ground of jurisdiction — It is contended that Tribunal has no jurisdiction or power by way of review to set aside the judgment passed by earlier Bench of Tribunal — The position of law with regard scope and ambit of the power of review is by now clear and well settled — Once what is decided on merit cannot be decided again on review application — In the case power of review is exercised because of error for considering the decision of the Court — The error for understanding the decision of the higher forum cannot be said as a valid ground for exercising of the power of review — If the very decision is already considered by the earlier Bench and having considered the said decision a final view is expressed it cannot be upset or reviewed merely because the understanding of the another Bench of the same judgment is different — Therefore, in the case exercise of power by Tribunal was beyond the scope and ambit of the power of the Tribunal by way of review — In view of this impugned order passed by Tribunal below review application can not be sustained — It is quashed and set aside.
Held :
It appears that it is a case where the power of review is exercised because of understanding or error for considering the decision of this Court. As such, the error for understanding the decision of the higher forum cannot be said as a valid ground for exercising of the power of review. If such powers are read, the very basic structure of resorting to the remedy of approaching before the higher forum and the power of the higher forum to reverse the decision of the lower authority would be frustrated. The ground on the basis of which the power is exercised by the Tribunal can at the most be termed as an error of improper consideration or misunderstanding of the precedent of this Court. If the very decision is already considered by the earlier bench and having considered the said decision, a final view is expressed, it cannot be upset or reversed merely because the understanding of the another Bench of the same judgement is different. Therefore, Court finds that the exercise of the power by the Tribunal for review is beyond the scope and ambit of the power of the Tribunal for review under Section 151 of the Act. [Para 10]
Law Laid Down :
The power of review cannot be exercised because of understanding or error for considering the decision of the higher Court.
Case Law Analysis :
Dolat Industries vs. Krishna Oil Industries, 2001 (3) GLH 665 [Para 6];; Smt. Meera Bhanja vs. Nirmala Kumari Choudhury, AIR 1995 SC 455 [Para 6];; Ajit Kumar Rath vs. State of Orissa & Ors., 1999 (9) SCC 596 [Para 6];; Haridas vs. Smt. Usha Rani Banik & Ors., 2006 (4) SCC 78 [Para 7];; Jitendra Natverlal Thaker & Ors. vs. Hirabag Co-operative Housing Society Ltd. & Ors., 1978 (19) GLR 92 [Paras 9 & 11];; Arjunbhai K. Vegda vs. Tejvir Park Co-operative Housing Society Ltd. & Ors., 2002 (4) GLR 3026 [Para 11].—Relied on
Petition Allowed
Jayant Patel, J.—The short facts of the case appear to be that the petitioners are the member of the respondent Societies residing in Tenement No. 47. The Society passed a Resolution dated 26.12.1993 for expulsion of the petitioners as members on the grounds mentioned in the Resolution. On 10.01.1994, the petitioner filed Lavad Suit for declaration and perpetual injunction praying that the proceedings of the meeting dated 26.12.1993 are illegal, malafide, void etc. and the permanent injunction was also prayed restraining the Society or its agents or servants from implementing the proceedings of the meeting dated 26.12.1993. The learned Nominee entertained the suit and passed order on 15.02.1994 below application for temporary injunction, whereby the interim injunction came to be granted restraining the Society, its members, and agents from implementing the proceedings of the meeting dated 26.12.1993. It appears that the respondent Society carried the matter in revision being Revision Application No. 106/94 before the Gujarat Cooperative Tribunal. The learned Tribunal after hearing both the sides, passed the Judgement on 28.06.1995, whereby the revision was dismissed and principally accepted the contention that as on the date when the suit was filed, no proposal was pending before the District Registrar, the Nominee had the jurisdiction. It appears that thereafter, the Society filed Review Application No. 20/95 against the said Judgement of the Tribunal and the Tribunal thereafter, heard the review application and vide another Judgement dated 15.09.1997, allowed the revision and set aside the order passed by the Nominee and also recalled and reviewed the earlier Judgment of the another Bench of the Tribunal. It is under these circumstances, the petitioners have approached to this Court by preferring the present petition.
2. Heard Mr. K. D. Shah for Mr. Mehta for the petitioner and Ms. Thakore for Mr. Joshi for the respondents.
3. As such, the facts are not in dispute and the principal aspect deserves for consideration is the exercise of the power by another Bench of the Tribunal in review. It is the contention of the petitioner that the Tribunal cannot exercise the power of review as if to sit in appeal over the judgement of the Tribunal delivered earlier. Whereas, it is the contention of the respondent that if there is error apparent on the face of the record for not properly considering the binding decisions of this Court, such can be corrected in review and the Tribunal was well within the power to review the judgement and has rightly allowed the revision application by setting aside the order of the learned Nominee in the Suit proceedings.
4. The examination of the aforesaid contention mainly arises for considering the scope and ambit of the review powers of the Tribunal. Section 151 of the Gujarat Cooperative Societies Act (hereinafter ‘the Act’ for short) reads as under :
“Review of orders of Tribunal :—
(i) The Tribunal 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 Tribunal is satisfied that there has been 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,
(ii) An application for review under Sub-section (1) by any party, shall be made within ninety days from the date of the communication of the order of the Tribunal”
The aforesaid provision as such
