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Paili Narayan Rao Vs. State of Orissa and ors. - Court Judgment

LegalCrystal Citation
SubjectTrusts and Societies
CourtOrissa High Court
Decided On
Case NumberO.J.C. No. 624 of 1969
Judge
Reported inAIR1973Ori54
ActsConstitution of India - Article 226
AppellantPaili Narayan Rao
RespondentState of Orissa and ors.
Appellant AdvocateP.V. Ramdas, Adv.
Respondent AdvocateY.S.N. Murty, Adv. and ;Govt. Adv.
DispositionApplication dismissed
Cases Referred(Zora Singh v. J.M. Tandon
Excerpt:
.....proceeding we would hold that we have no jurisdiction to take a different view on the materials on record and we are not in a position to hold that the conclusion reached by the revisional authority can be interfered with. accordingly the writ application must fail and is dismissed......court in the case of syed yakoob v. radhakrishnan, 1964 scd 22 (n) p 22 = (air 1964 sc 477). 'a writ of certiorari can be issued for correcting errors of jurisdiction committed by inferior courts or tribunals; these are cases where orders are passed by inferior courts or tribunals without jurisdiction, or is in excess of it, or as a result of failure to exercise jurisdiction. a writ can similarly be issued where in exercise of jurisdiction conferred on it, the court or tribunal acts illegally or improperly, as for instance, it decides a question without giving an opportunity to be heard to the party affected by the order, or where the procedure adopted in dealing with the disputes is opposed to principles of natural justice. there is, however, no doubt that the jurisdiction to issue a.....
Judgment:

R.N. Misra, J.

1. The petitioner has asked for a writ or certiorari for quashing an award made against him under the Orissa Co-operative Societies Act (11 of 1952) as affirmed by the appellate and revisional authorities.

2. On 2-7-58, it was alleged by the Garbandha Co-operative Society, that the petitioner took a loan of Rs. 1,500/-. The opposite party No. 2 and one Appanna Das not impleaded in this proceeding stood as sureties. It appears that Appanna Das was the then President of the society. On 10-9-60, the society filed a dispute before the Assistant Registrar of Co-operative Societies for realisation of the money with interest in all Rs. 1892.38 and the said dispute was registered as Dispute Case No. 334 of 1960.61. The petitioner who was the defendant No. 1 in the dispute appeared and admitted his signature in the loan application, hut denied to have received the loan. He also disputed his signature against the relevant entry in the cash book which was relied upon by the plaintiff-society. The defendant No. 2 went ex parte and the defendant No. 3 appeared and indifferently contended that he did not remember whether he was in fact a surety for the transaction. The original authority passed an award as prayed for. Upon appeal the Deputy Registrar directed remand of the proceeding to the original forum for a further determination. The original loan bond had not been produced. The appellate authority,therefore, called upon the plaintiff-society to prove the same. A revision was carried against the said order of remand and the Registrar vacated the remand order and sustained the award of the original Court. The petitioner's revision before the State Government was disposed of without hearing him. Therefore, he challenged the propriety of the disposal of the revision petition before this Court in a writ application bearing No. 129 of 1964. This Court quashed the revisional order by judgment dated 4-12-68 and called upon the Secretary in the Department of Co-operation of the State of Orissa to decide the matter afresh in accordance with law after giving the petitioner an effective opportunity to place and represent his case.

The matter was disposed of by the Secretary afresh by his order dated 9-5-69 and he came to hold that the award as upheld by the Registrar was proper. The present writ application is directed against the final decision of the State Government dated 9-5-69 in the aforesaid revision case.

3. Mr. Ramdas for the petitioner contended that it was obligatory for the plaintiff-society to produce the loan bond and as the plaintiff-society had not laid the foundation for receiving secondary evidence the plaintiffs claim should have been dismissed. The revisional authority should not have over-looked the fact that the loss of the loan bond had not been pleaded upto that stage and for the first time such a plea was advanced when the proceeding was in revision. He next contended that there having been clear denial of the signature in the cash book which alone was the document produced by the plaintiff in support of the claim of advancement of the loan, the revisional authority should have directed that document to be examined by an expert and should not have taken the responsibility upon himself. It is contended that the Secretary to Government was not aware of Telegu writings and as such comparison by him of the signature in the cash book with the admitted signature in the loan application was not justified. Reliance is placed in support of such a proposition on a decision of the Madras High Court in AIR 1956 Mad 566 (C. Silva Bai v. J. Noronha Bai).

4. There is no averment in the writ petition that the Secretary to Government who disposed of the revision petition was not conversant with Telegu writings. Paragraph 14 which makes the allegation in relation to comparison of the hand-writing is silent on that aspect. We, therefore, attach no importance to the contention of Mr. Ramdas on the basis of the aforesaid Madras decision.

The only other contention which is pressed by Mr. Ramdas is that the production of the loan bond should have been insisted upon and in the absence of the bondthe plaintiff should not have been given a decree. We find that the revisional authority has accepted as a fact the loss of the document. In paragraph 6 of its order it has been said.

'As regards the production of the original loan-cum-surety bond, which is insisted upon by the Advocate for the petitioner, it is admitted by the Advocate for the opposite party that the original document is lost and is untraced. This being the case, the Court has necessarily to go by other evidence in the shape of entries in the Cash Book, Ledger, Loan Verification Statement etc. which is available, to determine whether the loan was actually taken by the petitioner or not. When a document is admittedly lost, the insistence that such documents should be produced before the Court, does not hence carry any weight.'

In view of what has been said by the re-visional authority we indeed find it very difficult for us to accept the contention of Mr. Ramdas. Ours is not an appellate forum. While dealing with a certiorari proceeding against the appellate decision tinder the Orissa House Rent Control Act in (1971) 37 Cut LT 802 (K.K. Rathore v, K.S. Vasudevan) we indicated.

'It is not disputed that the jurisdiction which this Court would exercise in a certiorari proceeding is not appellate. It has been laid, down by their Lordships of the Supreme Court in the case of Syed Yakoob v. Radhakrishnan, 1964 SCD 22 (N) P 22 = (AIR 1964 SC 477).

'A writ of certiorari can be issued for correcting errors of jurisdiction committed by inferior Courts or tribunals; these are cases where orders are passed by inferior Courts or tribunals without jurisdiction, or is in excess of it, or as a result of failure to exercise jurisdiction. A writ can similarly be issued where in exercise of jurisdiction conferred on it, the Court or Tribunal acts illegally or improperly, as for instance, it decides a question without giving an opportunity to be heard to the party affected by the order, or where the procedure adopted in dealing with the disputes is opposed to principles of natural justice. There is, however, no doubt that the jurisdiction to issue a writ of certiorari is a supervisory jurisdiction and the Court exercising it is not entitled to act as an appellate Court. This limitation necessarily means that findings of fact reached by the inferior Court or Tribunal as result of the appreciation of evidence cannot be reopened or questioned in writ proceedings. An error of law which is apparent on the face of the record can be corrected by a writ but not an error of fact, however grave it may appear to be. In regard to a finding of fact recorded by the Tribunal, a writ of certiorari can be issued if it is shown that in recording the said finding, the Tribunal had erroneously refused to admit admissible and materialevidence which has influenced the impugned finding. Similarly, if a finding of fact is based on no evidence, that would be regarded as an error of law which can be corrected by a writ of certiorari.....'

The legal position is restated recently by their Lordships of the Supreme Court in the case of Parry & Co, v. Judge of the Second Industrial Tribunal, Calcutta, AIR 1970 SC 1334, thus:

'A mere wrong decision cannot be corrected by a writ of certiorari as that would be using it as the cloak of an appeal in disguise but a manifest error apparent on the face of the proceedings based on a clear ignorance or disregard of the provisions of law or absence of or excess of jurisdiction, when shown, can be so corrected. Where the Tribunal having jurisdiction to decide a question comes to a finding of fact, such a finding is not open to question under Article 226 unless it could be shown to be wholly unwarranted by the evidence. Where the Tribunal has disabled itself from reaching a fair decision by some considerations extraneous to the evidence and the merits of the case or where its conclusion on the very face of it is so' wholly arbitrary and capricious that no reasonable person can ever have arrived at that conclusion interference under Article 226 would be justified.'

In a more recent decision in AIR 1971 SC 1537 (Zora Singh v. J.M. Tandon) a similar view has also been reiterated and it has been indicated that even if some conclusion of the Tribunal is bad, if there is some evidence to support the ultimate conclusion relief in certiorari is not available,

5. Keeping this as the legal position, with reference to the present proceeding we would hold that we have no jurisdiction to take a different view on the materials on record and we are not in a position to hold that the conclusion reached by the revisional authority can be interfered with. Accordingly the writ application must fail and is dismissed. We would, however, make no order as to costs of the proceeding.

Das, J.

6. I agree.


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