IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No 629 of 2001 For Approval and Signature: HON'BLE MR.JUSTICE K.S.JHAVERI ============================================================ 1. Whether Reporters of Local Papers may be allowed : NO to see the judgements? 2. To be referred to the Reporter or not? : NO 3. Whether Their Lordships wish to see the fair copy : NO of the judgement? 4. Whether this case involves a substantial question : NO of law as to the interpretation of the Constitution of India, 1950 of any Order made thereunder? 5. Whether it is to be circulated to the concerned : NO Magistrate/Magistrates,Judge/Judges,Tribunal/Tribunals? -------------------------------------------------------------- RAKHIAL DUDH UTPADAK SAHAKARI MANDALI LTD Versus PATEL PRABHUDAS LAKHABHAI -------------------------------------------------------------- Appearance: 1. Special Civil Application No. 629 of 2001 MR PF ADHVARYU for Petitioner No. 1 MR PRAVIN GONDALIYA for Respondent No. 1 MR ASIM J PANDYA for Respondent No. 2 -------------------------------------------------------------- CORAM : HON'BLE MR.JUSTICE K.S.JHAVERI Date of decision: 25/11/2004 ORAL JUDGEMENT 1. The petitioner has preferred this petition in order to quash and set aside the judgment and order dated 25/08/2000 passed in Review Application No.8 of 1998 by the Gujarat Cooperative Tribunal, Ahmedabad, at Annexure-C to the petition, and to confirm the orders passed in Appeal No.210 of 1995 and Lavad Suit No.623 of 1993. 2. The respondents herein were the Chairman and Secretary of the petitioner Society. It was alleged against the respondents that during the period between 1985-1986 to 1988-1989 they had misappropriated funds belonging to the petitioner Society. The petitioner Society preferred Lavad Suit No.6230 of 1993 before the Board of Nominees Court at Mehsana, for the recovery of the said amount along with interest. The Board of Nominees Court passed order in favour of the petitioner Society by its award dated 27/04/1995, at Annexure-A to the petition. 3. Feeling dissatisfied by the award of the Board of Nominees Court, the respondents herein preferred appeal before the Gujarat Cooperative Tribunal, Ahmedabad, being Appeal No.210 of 1995. The said Appeal was also rejected by a Bench of the Cooperative Tribunal by order dated 27/02/1998, at Annexure-B to the petition. 4. The respondents preferred Review Application No.8 of 1998 before another Bench of the said Tribunal. The Tribunal by order dated 25/08/2000 allowed the said Review Application, at Annexure-C to the petition. Feeling aggrieved by the said order, the petitioner Society has preferred this petition before this Court. 5. Mr.P F Adhvaryu for the petitioner Society has contended that the original appeal which was dismissed by the Tribunal was heard by a Bench consisting of Mr.M.P.Bhatt, who was the President and Mr.M.D.Takodara, who was a Member of the Cooperative Tribunal, at the relevant point of time, and that the review application was heard by a Bench consisting of Mr.B.S.Jaiswal, who was the incharge President and Mr.R.M.Thakkar, who was a Member of the Tribunal. He has contended that according to the provisions of Order 47 Rule 1 of the Civil Procedure Code, the Bench which decided the Review Application had no jurisdiction to hear the same. Therefore, he has prayed for quashing the said order of the Tribunal. 6. Mr.P S Gondalia for respondent no.1 has submitted that generally a Review Application is to be heard by the same Bench which had heard the appeal, but, as the Bench which had heard the appeal was not available at the relevant time, as the President i.e. Mr.M.P.Bhatt had retired and the Member Mr.B.D.Takodara, was transferred, it could not be heard by the same Bench. Therefore, the Review Application was heard by another Bench. 7. I have heard learned counsel for the parties and have perused the relevant documents placed on record. Having gone through the averments made in the petition, it appears that the Bench which had heard the Appeal was not available, as one of the members had retired and the other had been transferred. Moreover, the above contention was not even raised by the petitioner Society before the Bench which had heard the Review Application. The Tribunal would have dealt with the said contention, if the petitioner Society had raised that before it. 8. In view of the settled legal position that in case the Judges who had heard the matter are not available, then the Bench which is available and having jurisdiction, can take up the matter. The contentions raised by the petitioner Society are devoid of any merits and the same cannot be entertained in a petition under Article 227 of the Constitution of India. 9. Moreover, the Tribunal has remanded the matter back to the Board of Nominees Court for considering the matter afresh on merits. Therefore, no prejudice is caused to the petitioner Society to raise all the contentions before the Board of Nominees Court. Hence, the petition is dismissed. Rule is discharged. Ad-interim relief granted earlier stands vacated. (K. S. Jhaveri, J.) pravin/