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Banta Singh Khushal Singh Vs. Anjuman Imdad Bahmi and Thrift Society, Tanoli - Court Judgment

LegalCrystal Citation
SubjectTrusts and Societies
CourtPunjab and Haryana High Court
Decided On
Case NumberSecond Appeal No. 1648 of 1959
Judge
Reported inAIR1970P& H203
ActsCo-operative Societies Act, 1912 - Sections 17; Evidence Act, 1872 - Sections 114
AppellantBanta Singh Khushal Singh
RespondentAnjuman Imdad Bahmi and Thrift Society, Tanoli
Appellant Advocate H.L. Soni, Adv.
Respondent Advocate D.N. Aggarwal, Adv.
DispositionAppeal allowed
Excerpt:
.....passed by a single judge in exercising powers of superintendence under article 227 of the constitution. - 4. the trial judge held that the plaintiff was a member as well as a debtor of the defendant-society, he further found under issue no. 2 and 4 and held that the plaintiff was a member as well as a debtor of the defendant-society......co-operative bank at hoshiarpur, that the appellant was recorded as a debtor of the society in the audit notes, which the witness had brought with himself. those audit notes had been prepared under section 17(2) of the co-operative societies act, 1912, and as such, a presumption under section 114 of the evidence act that all official acts were regularly done would apply. since the appellant, according to d.w. 1, was recorded as a debtor of the society in the audit notes, he must be, according to the trial court, held to be a member of the society.the learned senior subordinate judge also had given the finding, on this point, in favour of the society, primarily on the evidence of d.w. 1. he had, however, observed that it was true that the defendant did not produce the register of members,.....
Judgment:

P.C. Pandit, J.

1. This is a plaintiff's second appeal against the decree of the learned Senior Subordinate Judge, Hoshiarpur, confirming on appeal the decision of the trial Court dismissing his suit.

2. Banta Singh, a resident of village Tanoli, District Hoshiarpur, brought a suit against Anjuman Imdad Bahmi and Thrift Society of his village for a declaration to the effect that the decree obtained by the defendant on the basis of an award against him was illegal and void. He also prayed for an injunction restraining the defendant not to realise the said decretal amount from him in execution of the aforesaid decree. His allegations were that though he was a resident of village Tanoli, but he was living in Rajasthan since 1930 and used to visit his village off and on. About six months before the institution of the suit in May, 1958, when he visited his village, he came to know that the defendant had obtained a decree against him on the basis of an award and was going to execute the said decree by attaching and selling his immovable property. He was neither a member of the defendant-Society nor had he borrowed any money from it. He did not even stand surety for any member of the Society for any debt. It was also averred by him that he received no notice from the Arbitrator to appear before him.

3. The suit was contested by the defendant-Society on a number of pleas which led to the framing of the following issues:--

1. Whether the plaint as signed by the plaintiff?

2. Whether the plaintiff is or was a member of the defendant society?

3. If issue No. 2 is proved, whether civil court has no jurisdiction to try the suit?

4. If issue No. 2 is proved, whether the plaintiff was a debtor and a surety for a debtor of the defendant Society?

5. If issue No. 4 is proved, whether the proceedings before the arbitrator were illegal, unauthorised, inoperative for the reasons given in para No, 4 of the plaint?

4. The trial Judge held that the plaintiff was a member as well as a debtor of the defendant-Society, He further found under issue No. 3 that the civil Court had no jurisdiction to try the suit, because the plaintiff could file an appeal against the award to the Registrar, Co-operative Societies. He did not consider it necessary to give any finding on issue No. 5, in view of his finding on issue No. 3. As a result of these findings he dismissed the suit.

5. When the matter went in appeal before the learned Senior Subordinate Judge, he confirmed the findings of the trial Court on issues Nos. 2 and 4 and held that the plaintiff was a member as well as a debtor of the defendant-Society. Under issue No. 5, his finding was that the plaintiff did not produce any evidence to show that he was not served with a notice regarding the appointment of the Arbitrator. He had also not established that the Arbitrator did not issue any notice to him. The bare statement of the plaintiff that he was not served with any notice was, according to the learned Judge, not sufficient to hold that no notice was served on him. The award was, consequently, legal and binding on the plaintiff.

So far as issue No. 3 was concerned, the learned Judge observed that if issue No. 5 had been proved by the plaintiff, the Civil Court might have jurisdiction to decide this case. In view of his finding on issue No. 5, the Civil Court, according to the learned Judge, had no jurisdiction to try the suit. The appeal was, consequently, dismissed. Against this decision, the present second appeal has been filed by the plaintiff.

6. It was conceded by the learned counsel for the respondent that if the appellant is held to be not a member of the defendant-Society, then the civil Court would have jurisdiction to try the present suit, because in that case the award given by the Arbitrator would obviously be without jurisdiction. The Arbitrator could decide disputes between the Society and its members and if the appellant was not a member, then the Arbitrator would have no jurisdiction to decide the alleged dispute and give the award in question.

7. It has been found by both the Courts below that the appellant was a member and a debtor of the defendant-Society. It has been alleged by the learned counsel for the appellant that this finding is vitiated, inasmuch as there was no legal evidence to support it. The trial Court, on this point, had observed that the records of the Society were alleged to have been lost. The defendant had proved from the statement of Manohar Lal, D.W. 1, who was a Clerk in the Central Co-operative Bank at Hoshiarpur, that the appellant was recorded as a debtor of the Society in the audit notes, which the witness had brought with himself. Those audit notes had been prepared under Section 17(2) of the Co-operative Societies Act, 1912, and as such, a presumption under Section 114 of the Evidence Act that all official acts were regularly done would apply. Since the appellant, according to D.W. 1, was recorded as a debtor of the Society in the audit notes, he must be, according to the trial Court, held to be a member of the Society.

The learned Senior Subordinate Judge also had given the finding, on this point, in favour of the Society, primarily on the evidence of D.W. 1. He had, however, observed that it was true that the defendant did not produce the register of members, but this omission was not fatal to its case, though to give a lie to the plaintiff's case, that register would have been a very important document. There was, according to the learned Judge, nothing on the record to show that the audit notes were incorrect. The original record was destroyed by a relative of the appellant and his bare statement was not, according to the learned Judge, sufficient to hold that he was not a member of tha Society.

8. During the course of arguments, learned counsel for the respondent sought to support the finding of the Courts below on this point on the basis of the evidence of D.W. 1. It is significant to mention that the audit notes are not on the record of the case. It appears that D.W. 1 brought the notes, gave evidence with regard to them and then took them back. What is stated was that according to the audit notes brought by him in Court, the appellant was entered as a member of the Society at No. 22 and further that he had taken loan from it. In cross-examination, he admitted that he had given hig entire evidence on the basis of the audit notes, which were not in his handwriting. He further admitted that in the said notes, there was no mention that any decree had been passed against the appellant in favour of the Society. Could it be said that there was any legal evidence in support of the finding that the appellant was a member of the Society? The audit notes, as I have said, were not produced on the record.

According to Section 59 of the Evidence Act, all facts, except the contents of documents, might be proved by oral evidence and documents under Section 64 of the same Act must be proved by primary evidence, except in the cases thereinafter mentioned. It was not the position of the respondent that in the present case, the audit notes could be proved otherwise than by primary evidence. Learned counsel, however, submitted that the objection regarding the mode of proof should have been taken at the time when D.W. 1 was giving evidence.

Counsel for the appellant, on the other hand, contended that if the audit notes had been exhibited without any objection from their side, perhaps the submission of the learned counsel for the respondent in that case might have some force. But in the instant case, those audit notes were not produced and made a part of the record of the case by the defendant-Society.

This apart, assuming for the sake of argument, even if the audit notes had been brought on the record, could it be said that a presumption of correctness with regard to their contents also arise? All that Section 17(1) of the Co-operative Societies Act, 1912, says is that the Registrar shall audit or cause to be audited by some person authorised by him the accounts of every registered Society once at least in every year. According to sub-Clause (2) of that section, the audit under sub-section (1) shall include an examination of overdue debts if any and evaluation of assets and liabilities of the Society. If the auditor, who had prepared those audit notes had appeared in the witness-box, he could be asked on what basis the entry regarding the appellant's membership of the Society was made therein. No law had been cited under which the contents of those audit notes could be presumed to be correct.

Section 114 of the Evidence Act, on which reliance was placed by the Courts below, would be of no assistance to the respondent in that behalf. The entries in the audit notes cannot be equated with judicial and official acts. Moreover, Section 114 does not raise a presumption regarding the correctness of the contents of a document covered by it. It is noteworthy that D.W. 3, Jai Singh, admitted that there was in existence the register containing the names of the members of the Society and that it was kept in the office of the Society. Curiously enough that register was not produced. There must also be the form of membership which must have been signed by the appellant when he became a member of the Society. That form is also not forthcoming on the record. There is no convincing evidence in support of the fact that the original records of the Society had been destroyed by a relative of the appellant. Under these circumstances, I am of the opinion that there was no legal evidence in support of the finding that the appellant was a member of the defendant-Society. That being so, the finding of the Courts below on issue No. 2 is vitiated in law and cannot be sustained. I would, therefore, hold that it has not been proved on the record that the plaintiff was a member of the defendant-Society and, consequently, the award made against him by the Arbitrator was without jurisdiction and void.

9. In this view of the matter, no other question admittedly arises for decision in this appeal.

10. The result is that the appeal succeeds, the judgments and decrees of theCourts below are set aside and the plaintiff's suit decreed. In the circumstancesof this case, however, the parties are leftto bear their own costs throughout.


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