Full Judgment Text
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2005:BHC-AS:13177
IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO. 4383 OF 2005 WRIT PETITION NO. 4383 OF 2005 WRIT PETITION NO. 4383 OF 2005
WITH WITH WITH
WRIT PETITION NO. 4402 OF 2005 WRIT PETITION NO. 4402 OF 2005 WRIT PETITION NO. 4402 OF 2005
Shri Veershaiv Co-operative Bank Ltd.. ..Petitioners.
its registered office at 517/A-1,
Tara Rani Chowk, Kolhapur.
Versus
Arvind Daulu Patil ..Respondent.
of Kolhapur, at present residing at
G.S.No. 24/5E Ward, Tembalaiwadi
Kolhapur (M.S.)
---
Mr. A.Z. Mookhtiar for the Petitioners.
Mr. P.D. Dani for the Respondent.
-----
CORAM : S. A. BOBDE, J. CORAM : S. A. BOBDE, J. CORAM : S. A. BOBDE, J.
DATED : 25TH JULY, 2005. DATED : 25TH JULY, 2005. DATED : 25TH JULY, 2005.
ORAL ORDER : ORAL ORDER : ORAL ORDER :
1. Rule, returnable forthwith.
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. Mr. Dani, learned Advocate waives service of
rule for the respondent in both the petitions.
. Heard by consent.
2. The parties in both the petitions are the
same. The petitioners have challenged the orders of
the Maharashtra State Co-operative Appellate Court in
these two writ petitions, which are being disposed of
by this common order.
3. Writ petition No. 4383/2005 is directed
against the order of the Maharashtra State
Co-operative Appellate Court dated 15th January, 2005
by which the learned Co-operative Court has struck off
the preliminary issue framed by the trial court in the
dispute filed by the respondent. The respondent has
instituted the dispute C.S.S No. 1773/2001 in the
Co-operative Court, Belapur. By the said dispute the
respondent has challenged the resolution, terminating
his services and the termination. He has also
questioned the legality and propriety of the enquiry
proceedings. Before the trial court, the petitioner
made an application praying for - framing a
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preliminary issue in accordance with the decision of
the Supreme Court in the Cooper Engineering Ltd., vs.
P.P. Mundhe, reported in AIR 1975 S.C. 1900 and for
an order to prevent the respondents from examining a
particular witness in the enquiry. Admittedly, the
said witness was not examined in the enquiry. The
trial court came to the conclusion that a preliminary
issue regarding the legality and the propriety of the
departmental enquiry has to be framed and would be
required to be answered. But came to the conclusion
that the respondent does not have a right to examine
the witnesses proposed to be examined by him.
4. In the revision preferred by the respondent,
the State Co-operative Appellate Court set aside the
order of the trial court, framing the preliminary
issue. That order is challenged by the Society in
this present petition. The learned counsel for the
petitioner submitted that the while deciding the
revision, the appellate court has committed an error
in observing that a preliminary issue cannot be framed
at any stage of the proceedings, particularly, after
issues have already been settled. For this purpose,
the appellate court relied on Order 14, Rule (2).
However, in my view, the appellate court has clearly
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failed to notice Order 15 Rule 3, which reads as
follows:-
. 3. Parties at issue.-- (1) Where the
parties are at issue on some question of law
or of fact, and issues have been framed by the
Court as hereinbefore provided, if the Court
is satisfied that no further argument or
evidence than the parties can at once adduce
is required upon such of the issues as may be
sufficient for the decision of the suit, and
that no injustice will result from proceeding
with the suit forthwith, the Court may proceed
to determine such issues, and, if the finding
thereon is sufficient for the decision, may
pronounce judgment accordingly, whether the
summons has been issued for the settlement of
issues only or for the final disposal of the
suit:
. Provided that, where the summons has
been issued for the settlement of issues only,
the parties or their pleaders are present and
none of them objects.
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(2) Where the finding is not sufficient for
the decision, the Court shall postpone the
further hearing of the suit, and shall fix a
day for the production of such further
evidence, or for such further argument as the
case requires.
5. It is obvious that the court is entitled to
decide a preliminary issue and if the finding thereon
is sufficient for the decision, it may be pronounced
accordingly. In other words, it is then not necessary
for the trial court to pronounce on other issues.
This is clearly a salutary provision intended to save
the time of the court. In this view of the matter the
observations of the Appellate Court, while allowing
the respondents’s revision are erroneous and the order
suffers from an error of law apparent on the face of
it. The impugned order is, therefore, liable to be
set aside.
6. The petitioner preferred another Appeal being
A.O. No. 136/2003,being aggrieved by the order of
allowing the respondent to examine his witness. In
the said Appeal, the appellate court by order dated
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29.04.2005 confirmed the order of the trial court and
permitted the respondent to examine his witness. This
order dated 29.04.2005, which is challenged in the
writ petition No. 4402/2005, is also in view of the
above observations, liable to be set aside.
7. In this view of the matter, the trial court
shall proceed to decide the preliminary issue as was
required to be framed per Cooper’s case (supra) first
and depending on the finding of the trial court on
that issue, the trial court may proceed with the
dispute in accordance with law.
25.07.2005 (S.A.BOBDE,J.)
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2005:BHC-AS:13177
IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO. 4383 OF 2005 WRIT PETITION NO. 4383 OF 2005 WRIT PETITION NO. 4383 OF 2005
WITH WITH WITH
WRIT PETITION NO. 4402 OF 2005 WRIT PETITION NO. 4402 OF 2005 WRIT PETITION NO. 4402 OF 2005
Shri Veershaiv Co-operative Bank Ltd.. ..Petitioners.
its registered office at 517/A-1,
Tara Rani Chowk, Kolhapur.
Versus
Arvind Daulu Patil ..Respondent.
of Kolhapur, at present residing at
G.S.No. 24/5E Ward, Tembalaiwadi
Kolhapur (M.S.)
---
Mr. A.Z. Mookhtiar for the Petitioners.
Mr. P.D. Dani for the Respondent.
-----
CORAM : S. A. BOBDE, J. CORAM : S. A. BOBDE, J. CORAM : S. A. BOBDE, J.
DATED : 25TH JULY, 2005. DATED : 25TH JULY, 2005. DATED : 25TH JULY, 2005.
ORAL ORDER : ORAL ORDER : ORAL ORDER :
1. Rule, returnable forthwith.
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. Mr. Dani, learned Advocate waives service of
rule for the respondent in both the petitions.
. Heard by consent.
2. The parties in both the petitions are the
same. The petitioners have challenged the orders of
the Maharashtra State Co-operative Appellate Court in
these two writ petitions, which are being disposed of
by this common order.
3. Writ petition No. 4383/2005 is directed
against the order of the Maharashtra State
Co-operative Appellate Court dated 15th January, 2005
by which the learned Co-operative Court has struck off
the preliminary issue framed by the trial court in the
dispute filed by the respondent. The respondent has
instituted the dispute C.S.S No. 1773/2001 in the
Co-operative Court, Belapur. By the said dispute the
respondent has challenged the resolution, terminating
his services and the termination. He has also
questioned the legality and propriety of the enquiry
proceedings. Before the trial court, the petitioner
made an application praying for - framing a
::: Downloaded on - 01/04/2024 15:49:51 :::
-: 3 :-
preliminary issue in accordance with the decision of
the Supreme Court in the Cooper Engineering Ltd., vs.
P.P. Mundhe, reported in AIR 1975 S.C. 1900 and for
an order to prevent the respondents from examining a
particular witness in the enquiry. Admittedly, the
said witness was not examined in the enquiry. The
trial court came to the conclusion that a preliminary
issue regarding the legality and the propriety of the
departmental enquiry has to be framed and would be
required to be answered. But came to the conclusion
that the respondent does not have a right to examine
the witnesses proposed to be examined by him.
4. In the revision preferred by the respondent,
the State Co-operative Appellate Court set aside the
order of the trial court, framing the preliminary
issue. That order is challenged by the Society in
this present petition. The learned counsel for the
petitioner submitted that the while deciding the
revision, the appellate court has committed an error
in observing that a preliminary issue cannot be framed
at any stage of the proceedings, particularly, after
issues have already been settled. For this purpose,
the appellate court relied on Order 14, Rule (2).
However, in my view, the appellate court has clearly
::: Downloaded on - 01/04/2024 15:49:51 :::
-: 4 :-
failed to notice Order 15 Rule 3, which reads as
follows:-
. 3. Parties at issue.-- (1) Where the
parties are at issue on some question of law
or of fact, and issues have been framed by the
Court as hereinbefore provided, if the Court
is satisfied that no further argument or
evidence than the parties can at once adduce
is required upon such of the issues as may be
sufficient for the decision of the suit, and
that no injustice will result from proceeding
with the suit forthwith, the Court may proceed
to determine such issues, and, if the finding
thereon is sufficient for the decision, may
pronounce judgment accordingly, whether the
summons has been issued for the settlement of
issues only or for the final disposal of the
suit:
. Provided that, where the summons has
been issued for the settlement of issues only,
the parties or their pleaders are present and
none of them objects.
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(2) Where the finding is not sufficient for
the decision, the Court shall postpone the
further hearing of the suit, and shall fix a
day for the production of such further
evidence, or for such further argument as the
case requires.
5. It is obvious that the court is entitled to
decide a preliminary issue and if the finding thereon
is sufficient for the decision, it may be pronounced
accordingly. In other words, it is then not necessary
for the trial court to pronounce on other issues.
This is clearly a salutary provision intended to save
the time of the court. In this view of the matter the
observations of the Appellate Court, while allowing
the respondents’s revision are erroneous and the order
suffers from an error of law apparent on the face of
it. The impugned order is, therefore, liable to be
set aside.
6. The petitioner preferred another Appeal being
A.O. No. 136/2003,being aggrieved by the order of
allowing the respondent to examine his witness. In
the said Appeal, the appellate court by order dated
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-: 6 :-
29.04.2005 confirmed the order of the trial court and
permitted the respondent to examine his witness. This
order dated 29.04.2005, which is challenged in the
writ petition No. 4402/2005, is also in view of the
above observations, liable to be set aside.
7. In this view of the matter, the trial court
shall proceed to decide the preliminary issue as was
required to be framed per Cooper’s case (supra) first
and depending on the finding of the trial court on
that issue, the trial court may proceed with the
dispute in accordance with law.
25.07.2005 (S.A.BOBDE,J.)
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