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Ravjibhai Desaibhai Patel Vs. Rajpath Co-operative Society and anr. - Court Judgment

LegalCrystal Citation
SubjectTrusts and Societies
CourtGujarat High Court
Decided On
Judge
Reported in(1976)17GLR1010
AppellantRavjibhai Desaibhai Patel
RespondentRajpath Co-operative Society and anr.
Excerpt:
- - 1. an interesting question has been raised namely as to whether the jurisdiction of the civil court would be ousted in a case where damages for malicious prosecution are sought by an ex-office bearer of a co-operative society against the society concerned and its present office-bearers. (1) that the jurisdiction of the civil court was barred in view of the combined effect of section 96, 98 and 166, and (2) that the suit was liable to fail on the ground that the notice contemplated by section 167 of the act had not at all been sent to the the registrar before the institution of the suit. if on the other hand the court comes to the conclusion that it was not false and/or malicious and/or vexatious, the suit would fail on merits......prosecution of a member of a society. it cannot be a part of the business of a society to file a false or vexatious complaint against any one much less against members of the society. a suit claiming damages on the premise that a false and vexatious prosecution was launched against the plaintiff cannot, therefore, be said to raise a dispute relating to a matter touching the business of the society. the learned trial judge was, therefore, in error in holding that the jurisdiction of the civil court was ousted. so also he was in error in taking the view that notice contemplated by section 167 was a condition precedent to the institution of the suit. the findings recorded by the learned trial judge on both these issues are reversed and set aside. the trial court has the jurisdiction to.....
Judgment:

M.P. Thakkar, J.

1. An interesting question has been raised namely as to whether the jurisdiction of the Civil Court would be ousted in a case where damages for malicious prosecution are sought by an ex-office bearer of a co-operative society against the society concerned and its present office-bearers. The trial court has taken the view that the registrar's nominee alone would have jurisdiction by reason of the provision contained in Section 96 read with Section 166 of the Gujarat Co-operative Societies Act, 1961, (hereafter called the 'Act') and has ordered that the plaint should be returned to the plaintiff for presentation before the registrar of co-operative societies. The plaintiff has preferred the present appeal from order and has contended that the trial court was in error in holding that the civil court had no jurisdiction in the matter.

2. The combined effect of Section 96 and 98 inter alia is that notwithstanding anything contained in any other law any dispute touching the constitution, management or business of society shall be referred to the registrar's nominee. The question, therefore, is whether a claim for damages for malicious prosecution would fall within the parameters of the expression 'touching the constitution, management or business of a society'. The society, concerned, Rajpath Co-operative Society Ltd., (respondent No. 1) is a co-operative housing society. Its principal object is to construct houses to provide housing accommodation to the members of the society. In the course of its dealings with the appellant, respondent No. 1 had an occasion to file a criminal complaint against the appellant-plaintiff levelling an accusation to the effect that the appellant was guilty of misappropriation of the funds belonging to the society. The appellant was acquitted by the Criminal Court. Thereupon the appellant has instituted the suit giving rise to the present appeal claiming damages for malicious prosecution on the ground that the complaint lodged by respondent No. 1 society against him through respondent No. 2 was false and vexatious. The respondents inter alia raised two contentions: (1) that the jurisdiction of the civil Court was barred in view of the combined effect of Section 96, 98 and 166, and (2) that the suit was liable to fail on the ground that the notice contemplated by Section 167 of the Act had not at all been sent to the the registrar before the institution of the suit. Both the issues were tried as preliminary issues. The learned trial Judge was of the opinion that the criminal complaint had to be filed against the appellant on account of the affairs relating to the society which were handled by him and inasmuch as the suit for damages had its origin in the complaint arising out of matters touching the business of the society, the jurisdiction of the civil court was barred. Section 167 provides that no suit shall be instituted before the expiration of two months next after a notice in this behalf is delivered to the Registrar or left at his house. The learned trial Judge was of the opinion that for the same reasons notice was necessary inasmuch as the suit related to a matter touching' the business of the society.

3. The Learned Counsel for the appellant is right in his submission that filing a false or malicious or vexatious complaint cannot be considered to be any part of the legitimate Activities of the society. It is settled law that the expression 'touching the business of the society' must be interpreted liberally and the widest connotation must be given to the said expression. However wide the interpretation may be, it would, not take within its sweep a dispute arising out of a charge of false and vexatious prosecution of a member of a society. It cannot be a part of the business of a society to file a false or vexatious complaint against any one much less against members of the society. A suit claiming damages on the premise that a false and vexatious prosecution was launched against the plaintiff cannot, therefore, be said to raise a dispute relating to a matter touching the business of the society. The learned trial Judge was, therefore, in error in holding that the jurisdiction of the civil Court was ousted. So also he was in error in taking the view that notice contemplated by Section 167 was a condition precedent to the institution of the suit. The findings recorded by the learned trial Judge on both these issues are reversed and set aside. The trial Court has the jurisdiction to entertain and try the suit and the delivery of a notice to the registrar is not a condition precedent to the institution of the suit inasmuch as Section 167 is not attracted at all in the view that I am taking. The result would be that if the Court comes to the conclusion that the complaint was false or malicious and/or vexatious, the Court would decide the matter in accordance with law. If on the other hand the court comes to the conclusion that it was not false and/or malicious and/or vexatious, the suit would fail on merits. appeal is allowed. The findings recorded by the learned trial Judge on the two preliminary issues, namely, issues Nos. 6 & 7 are reversed and set aside. The trial Court will proceed to dispose of the suit in accordance with law. There will be no order regarding costs of this appeal.


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