1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.8878 OF 2007 Mangesh Jadhav .. Petitioner Versus State of Maharashtra & Ors. .. Respondents Mr.Rakesh Bhatkar for petitioner Ms.Manda Loke for respondent No.2. Ms.P.S.Cardozo, A.G.P. for State. CORAM : S.C.DHARMADHIKARI, J. DATE : 24th January 2008 P.C. . This is one more judgement delivered by Mr.N.P.Dalvi, Presiding over as Member of Maharashtra State Appellate Court. This learned 2 Member has been repeatedly deciding matters either by casting aspersions on the Advocates whenever they have been appearing before him or delivering judgements affecting the vital rights of litigants in their Advocate’s absence. Several such orders have been impugned before me. They were quashed and set aside. This is one more order in that series. I should refrain from passing harsh remarks normally. However, when the litigant’s interest is at stake and the courts being protectors of the same, I am constrained to make these observations. 2. The petitioner was the original respondent in Appeal No.178 of 2006. To be precise, he was respondent No.1. Respondent No.2 is the original appellant. Respondent No.2 filed a dispute before the Cooperative Court, Ratnagari bearing No.CC/RTN/145 of 2004. Petitioner appeared and filed a written statement denying the averments in the dispute. It is the case of 3 petitioner that after hearing both sides and appraising oral and documentary evidence, the learned Member of Cooperative Court, rejected the dispute by an order dated 29th September 2006. 3. Aggrieved by that order, the second respondent filed an Appeal No.178 of 2006. The impugned judgement is delivered on 7th June 2007. The Appeal which was preferred by the second respondent - original Appellant has been allowed in his absence. It was also allowed in the absence of respondent No.1, petitioner before me, so also his Advocate. Learned Judge in the impugned order observed thus:- ".... After reading the judgement and the reasons thereof, in my view, there is no necessity to even call for record and proceedings. I am, therefore, proceeding to decide this appeal. 4 ".... It is not disputed that in one breath the original borrower denied the claim of the Bank but in the second breath he prayed for 24 instalments. If that be so, there is no contest in the dispute and the dispute ought to have been decreed on admission. If at all the learned Judge of the trial court wanted to grant instalments, it was its discretion. Evidence recorded in the trial court depicts that the loan documents, demand promissory note were proved by the Bank. It was never challenged in the trial Court." Proceeding on this line, the learned Member allowed the appeal, set aside the judgement and decree of the Coop.Court and passed an order directing the petitioner and other respondents to the appeal to pay a sum of Rs.56,456/- with interest at 15% p.a. from 2nd September 2002. 5 4. While it is true that the original appellant before the lower appellate court was absent, the appeal was under section 97 of the Maharashtra Coop.Societies Act, 1960, which reads as under:- "97:- Appeal against decision under section 96 and order under section 95:- Any party aggrieved by any decision of the Cooperative Court under the last preceding section, or order passed by the Cooperative Court or the Registrar or the authorised person under section 95 may, within two months from the date of the decision or order, appeal to the Cooperative Appellate Court". 5. Thus, as far as Maharashtra Coop.Societies Act, 1960 is concerned, the remedy of appeal may not be on par with Section 96 and 6 97 of C.P.C. which provides for appeal. However, it is still a remedy available to a litigant under the Act itself. Therefore, the same cannot be decided casually and mechanically. In this behalf, the observations of the Supreme Court in a decision reporeted in A.I.R. 2001 S.C. 2171 (Madhukar & Ors. Vs. Sangram & Ors) are a valuable guidance. The judgement proceeds thus:- "5. We have carefully perused the judgement and decree of the High Court in the first appeal. We find that substantial documentary evidence had been placed before the trial court including certified copies of certain public records besides copy of the judgement and decree of the earlier suit (O.S. No.93/71). Oral evidence had also been led by the parties before the trial court, which was noticed and appreciated 7 by the trial Court. However, the impugned judgement in the first appeal, is singularly silent of any discussion either of documentary evidence or oral evidence. Not only that, we find that though trial court had dismissed the suit on ground of limitation as also on the ground that the decision in the earlier suit (OS No.93 of 1971) operated as res judicata against defendant No.1 only the High Court has not even considered, much less discussed, correctness of either of the two grounds on which the trial court had dismissed the suit. Sitting as a Court of first appeal, it was the duty of the High Court to deal with all the issues and the evidence led by the parties before recording its findings. It has failed to discharge the obligation placed on a first appellate court. The judgement under appeal is so cryptic that 8 none of the relevant aspects have even been noticed. The appeal has been decided in a very unsatisfactory manner. First appeal is a valuable right and the parties have a right to be heard both on questions of law and on facts and the judgement in the first appeal must address itself to all the issues of law and fact and decide it by giving reasons in support of the findings". "6. In Santosh Hazari Vs. Purushottam Tiwari (dead) by Lrs. (2001) 2 JT (SC) 407: (2001 A.I.R. SCW 723) this Court opined (para 15 of A.I.R.): "The Appellate Court has jurisdiction to reverse or affirm the findings of the trial court. First appeal is a valuable right of the parties and unless 9 restricted by law, the whole case is therein open for rearing both on questions of fact and law. The judgement of the Appellate Court must, therefore, reflect its conscious application of mind, and record findings supported by reasons, on all the issues arising along with the contentions put forth, and pressed by the parties for decision of the Appellate Court." ....... ....... "While reversing a finding of fact the Appellate Court must come into close quarters with the reasoning assigned by the trial court and then assign its own 10 reasons for arriving at a different finding. This would satisfy the court hearing a further appeal that the first appellate court had discharged the duty expected of it." Insofar as the Rules are concerned, they make a provision with regard to the disposal of disputes in the Cooperative Court. Rule 78 deals with summonses, notices and fixing of dates, places etc. in connection with the dispute. There are further rules. Insofar as the appeal is concerned, the appeal is contemplated by the above provisions. Powers conferred upon the Cooperative Court are referred to in from Section 93 to 95. Section 94 of the MCS Act sets out procedure for settlement of disputes and powers of Cooperative Court. 11 6. Considering the provisions and more particularly section 91 to 93 and powers of the Cooperative Court enumerated in Section 94, there is no doubt in my mind that an appeal challenging the order of Coop.Court is indeed an important proceeding. Either the unsuccessful disputant or the opponent who suffers an adverse order in Cooperative Court can prefer appeal. The wording of section 97 is very wide, inasmuch as, it opens with the words "any party aggrieved by any decision of the Cooperative Court". The decision of the Cooperative Court is insofar as money claims are concerned is covered by section 96, which reads thus:- "96. Decision of Cooperative Court:- When a dispute is referred to arbitration, the Cooperative Court may, after giving reasonable opportunity to the parties to the dispute to be heard, make an award on the dispute, on the 12 expenses incurred by the parties to the dispute in connection with the proceedings, and fees and expenses payable to the Cooperative Court. In case of money claim preferred by society against a member, the amount of award representing the interest shall not be less than the amount of interest accrued thereon, in accordance with the contractual rate of interest, but where such money claim relates to any loan referred to in section 44A, the provisions of that section shall apply to such money claim as they apply to loan under Section 44A." 7. In my view, learned Member, therefore, should not have proceeded with the Appeal in the absence of either parties in the facts of this case. More so, when he was inclined to allow the appeal. It was not as if the appeal was directed 13 to be heard expeditiously by a Higher Court or that there was a time frame which was provided for its disposal otherwise. In the peculiar facts of this case, when the Advocates did not turn up on any day, there were other modes to ensure their presence. If the Advocates are not present, parties could have been put to notice. Learned Member does not take recourse to any of these modes but straight away proceeds to dispose of the appeal. Learned Judge has allowed the same. This order of the learned Judge has resulted in grave miscarriage of justice. Petitioner is justified in complaining that the appeal being allowed in his absence or that of his Advocate, has seriously prejudiced him and now the second respondent society would take coercive steps to recover the amount. 8. Learned Counsel for the petitioner has challenged the Judgement of the lower appellate 14 court also on merits. However, when I am satisfied that both sides were not present and even the Counsel for respondent No.2 before him has not disputed this position, then, interest of justice would be sub-served if the order under challenge is quashed and set aside and the appeal is restored to the file of the Coop.Court. The appeal shall now be re-heard on merits and in accordance with law, without in any manner being influenced by the observations in the order under challenge, which, needless to state is quashed and set aside. 9. If the anxiety of the Court below is that it is difficult to ensure presence of parties, then, that can be taken care of by asking the petitioner as well as Original Respondent No.2 before me, to remain present before it on a fixed date. Accordingly, they shall remain present before concerned Member of the Maharashtra State Coop.Appellate Court, to whom the appeal is 15 assigned on 17th March 2008. The office to sent intimation of this order prior to the said date to the Maharashtra State Coop.Court. Even the parties are at liberty to inform the Coop.Appellate Court of this order and the fact of restoration of the appeal. After the order is brought to the notice of the Coop.Appellate Court, the President Maharashtra State Appellate Court shall either take up the appeal himself or assign the same to the other Member for decision and disposal on merits appeal as expeditiously as possible. All contentions on merits are expressly kept open. 9. Registry is directed to forward a copy of this order to Mr.N.D.Dalvi who has been presently posted as Judge, Family Court, Bandra, Mumbai. 16 (S.C.Dharmadhikari, J)