1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH : NAGPUR WRIT PETITION NO. 4707 OF 2008 (Smt. Jijabai wd/o Dharamdas Nitnaware vs. Vatsalabai Parmeshwar Thool & Ors.) Office Notes, Office Memoranda of Coram, appearances, Court's orders Court's or Judge's orders or directions and Registrar's orders. CORAM : B.P. DHARMADHIKARI, J. DECEMBER 03, 2008. Heard finally Shri Panpalia, learned counsel for the petitioner and Shri Parchure, learned counsel for respondent No.1. The petitioner – disputant wanted to show existence of 10 plots as he has purchased Plot No. 10 from Respondent No.3. The contesting respondent No.1 came up with specific defence that there were only seven plots. The petitioner wanted to examine Dhore, the then Secretary of the Society but then he could not be examined as he was reported to be unwell. The petitioner during the cross examination of Respondent No.1 produced certified copy of sale deed in relation to Plot No. 8 executed by Dhore as the then Secretary in favour of her husband. The said sale deed was denied. The petitioner got that certified copy only on 15.7.2008 and therefore, he moved an application before the trial Court and the trial Court permitted him to call Dhore and to 2 examine him on commission. That order was then challenged in revision under Section 149(9) of the Maharashtra Cooperative Societies Act, 1960, before the Cooperative Appellate Court and the Cooperative Appellate Court observed that it was the effort to fill in lacuna and, therefore, allowed the revision. Shri Panpalia, learned counsel for petitioner – disputant contends that document in relation to Plot No. 8 was obtained subsequently and it was sought to be put to Respondent No.1 and as Respondent No.1 denied it, it became essential to examine Shri Dhore again. He points out that the said sale deed is in relation to plot No.8 and if Plot No. 8 is existed then the claim that there were only seven plots, is proved to be incorrect. He states that after noticing that evidence of both sides was closed, the Cooperative Court has exercised its discretion in favour of the petitioner in a particular way and the appellate authority should not interfere in that discretion. He relies upon the judgment of this Court in the case of Babasaheb vs. Sumanbai, reported at 2008(4) Mh. L.J. 502, in support of his contention. Shri Parchure, learned counsel for respondent No.1 contends that the Cooperative Appellate Court has found that it was open to the 3 petitioner to examine Dhore earlier but he gave up that witness and after both sides closed their evidence, in order to fill in lacunae, application was moved. It is contended that the Cooperative Court had erroneously granted that application. It is apparent that the petitioner – disputant has purchased Plot No. 10 from the Society and in order to rebut the contention that there were only seven plots, he wanted to bring on record sale deed in the name of husband of Respondent No.1. The said sale deed reveals that it was in relation to plot No. 8. Realising this and the fact that the society did not take any specific stand in the matter and Shri Dhore, the then Secretary did not choose to enter the witness box before the Cooperative Court, it found that it was necessary to bring truth on record. This use of its powers by the Court cannot be treated as erroneous or perverse. The appellate Court has found that it was an effort to fill in lacunae as the application was moved after both the sides closed their evidence. It is apparent that after cross examination, Respondent No.1 may have closed her evidence but that does not mean that the petitioner – disputant could not have been given an opportunity to point out the correct position in relation to sale deed 4 dated 15.7.2008. When the Cooperative Court found that the examination of Dhore, the then Secretary was essential and it also found that such powers could have been exercised by it suo motu, it is clear that in revisional jurisdiction, the Cooperative Appellate Court could not have exercised its powers. Therefore, said revisional order needs to be quashed and set aside. Accordingly, the said order dated 30.09.2008 is quashed and set aside. The order of Cooperative Court dated 14.8.2008 is accordingly restored. Writ Petition is disposed of. Rule accordingly. No order as to costs. JUDGE *GS.