1. This is a revision under Section 115 of the Code of Civil Procedure by Charan Singh defendant, to challenge the order of the Civil Judge, Roorkee, deciding the preliminary issue in favour of the plaintiff, the Iqbalpur Cooperative Cane Development Union Ltd.. by holding that the suit was cognizable by the Civil Court and Rule 115 of the U. P. Co-operative Societies Rules was not a bar to the jurisdiction of the Civil Court.
2. The material facts of the case, in brief, are that the plaintiff society instituted the present suit for the recovery of Rs. 99,300/- from the defendants jointly and severally or from any of the defendants to the extent they were liable. The defendants were the officers of the plaintiff Society who are alleged to have, in pursuance of conspiracy, committed embezzlement and other acts of misappropriation etc. It appears that a sessions trial under Sections 409 and 120B, I. P. C. is also, pending against the defendants.
3. The defendants raised an objection to the jurisdiction of the Civil Court and the leained Civil Judge framed the following preliminary issue:
'Is the suit cognizable by the Civil Court in the face of Rule 115 of the Rules framed under Section 43. Co-operative Societies Act.'
4. Relying upon the decision of this Court in Kailash Nath Halwai v. Registrar, Co-operative Society. U. P. AIR 1960 All 294 it was held that reference of a dispute between a Society and its officers to the Registrar for decision or by arbitration under Rule 115 could not be made and, therefore, the civil suit was maintainable. The impugned order was passed on 15-12-1968 and evidently the Full Bench decision of this Court in Abu Bakar v. District Handloom Weavers' Cooperative Society Mau. AIR 1966 All 12 was not brought to the notice of the Civil Judge. In view of the Full Bench decision Rule 115 in so far as a dispute touching the business of the society betweenthe society and any officer of the society is valid and enforceable.
5. The revision came UP for hearing before Hon'ble G. C. Mathur, J., who has in view of the conflict in two Single Judge decisions of this Court in Sahkari Ganna Samiti Ltd. v. Mahendra Pratap Rao, AIR 1967 All 134 and Basti Sahkari Ganna Samiti Ltd., Basti v. Surai Nath Upadhyay, AIR 1967 All 218 referred the revision for hearing by a larger Bench.
6. In Sahkari Ganna Samiti Ltd., AIR 1967 All 134 (supra) the removal of the plaintiff, Sant Govind Rao, as delegate of a society to the Co-operative Cane Development Societv. under a notice served by the Honorary Secretary of the Society, was challenged on the ground that the removal was illegal and without jurisdiction. The Munsif trying that suit held that Rule 115 did not bar the jurisdiction of the Court in' cases where the plaintiff alleged that the impugned action was ultra vires and without jurisdiction. This finding was confirmed by the High Court on two grounds: firstly, that the Civil Court always retains the jurisdiction where the impugned order is alleged to be without jurisdiction -- it being the function of the Civil Court to ensure that statutory authorities do not exceed their powers under the statute; and secondly, that by virtue of Section 9 of the Code of Civil Procedure the jurisdiction of the Civil Court could be ousted only by an Act of the Legislature and not by a rule made by the executive.
7. There can be no dispute in thateven though the jurisdiction of the Civil Court has been expressly barred under some special statute it retains the jurisdiction to entertain a civil suit where the authority has acted without jurisdiction by in excess of the jurisdiction conferred under the statute. We, however, disagree with the view that Rule 115 does not have the effect of depriving the Civil Court of its ordinary jurisdiction in matters covered by this Rule. There are two kinds of rules framed by the State Government or by executive authorities. One set of Rules flows from the rule-making power conferred under the statute. 'Rules made under a statute must be treated for all purposes of constructions or obligation exactly as if they were in the Act and are to be of the same effect as if contained in the Act and are to be judicially noticed for all purposes of construction or obligation.' See State of Uttar Pradesh v. Babu Ram Upadhya, AIR 1961 SC 751. Consequently, Rule 115 of the U. P. Co-operative Societies Rules framed under Section 43 of the U. P. Co-operative Societies Act shall have the force of law, all the more, when Sub-section (5) of Section 43 clearly provides that after the publication all the rules made under Section 43 shall have effect as if enacted in the Act itself. Rule 115 can thus have the effect of the exception contemplated by Section 9, Civil P. C. to bar the jurisdiction of the Civil Court.
8. We are in agreement with the view expressed in Basti Sahkari Ganna Samiti Ltd., AIR 1967 All 218 (supra) that where a statute lays down a special forum for the adjudication of dispute remedy must be sought under that statute and not under the ordinary Civil Law, i.e., before the Civil Court. In case a civil suit is maintainable the Civil Court shall not be in a position to adjudicate; upon a dispute covered by Rule 115. It shall have to refer the dispute covered by Rule 115 to the Registrar for decision by him or by arbitration and the decision or the award can be challenged in appeal etc. as provided in the rules. Such decision is final and conclusive and cannot be called, in question in the civil suit. Consequently, the Civil Court shall be compelled to make a reference to the Registrar and to pass an order in the suit in accordance with the decision arrived at in the reference.
9. It could not be the intention of the Legislature to provide for a civil suit in which no matter can be subject of decision by the Civil Court and the Civil Court must, in each and every case, on all the matters accept whatsoever is decided by the Registrar or by the Arbitrator of course, subject to appeal or review as permissible under the rules.
10. We are, therefore, of opinion that though not expressly but for necessary implication Rule 115 of the U. P. Cooperative Societies Rules bars the jurisdiction of the Civil Court, and the present civil suit was not maintainable as admittedly the depute touches the business of the society and is between the society and the officers of the society.
11. The revision is hereby allowed and the impugned order is set aside. It is further ordered that the present suit was not cognizable by the Civil Court. Costs easy.