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Judgment
G. Rajasuria, J.—S.A. No. 250 of 2000 is focussed as against the judgment and decree of the learned Additional District Judge cum Chief
Judicial Magistrate, Sivagangai, dated 17.08.1999 in A.S. No. 118 of 1998, in confirming the judgment and decree of the learned Subordinate
Judge, Devakottai, dated 30.04.1998 in O.S. No. 19 of 1996. W.P. No. 3265 of 2006 is focussed to get issued a Writ of Certiorari calling for
the records relating to the impugned order of the 5th respondent in Arbitration Dispute No.7 of 2005 - 2006 dated 21.02.2005 and quash the
same.
The parties, for convenience sake, are referred to hereunder according to their litigative status before the trial Court.
A re''sume'' of facts absolutely necessary and germane for the disposal of S.A. No. 250 of 2000, would run thus:
(i) One M.M. v. Alagappan and M.M.V. Narayanan jointly filed the suit in O.S. No. 19 of 1996 on the file of the Sub Court, Devakottai, seeking
the following reliefs:
(a) declaring that the suit property absolutely belongs to the plaintiffs and consequently;
(b) directing the 2nd defendant do deliver vacant possession of the suit property after removing the superstructure put up by him including the
fencing without let or hindrence.
(c) directing the 2nd defendant by a mandatory injunction to remove the superstructure including the fencing put up by him in the suit property
within a time fixed by the Court and in default to have the same done through Court at the expense of the 2nd defendant.
(d) directing the defendants to pay the plaintiffs the costs of the suit.
(e) granting to the plaintiffs such further or other relief or reliefs as the nature and circumstances of the case do require or admit of.
(ii) The first respondent, Karaikudi Cooperative House Building Society Ltd., represented by its Special Officer, Karaikudi, herein earlier allotted
a housing plot which forms part of the suit property in favour of one C.T.Azhagia Sundaram, not a party here on 22.05.1992, who in turn, without
raising any structure thereon sold the said plot in favour of the plaintiffs, vide sale deed dated 02.09.1994. While so, the Co-operative Society on
08.11.1995 cancelled the allotment in favour of C.T.Azhagia Sundaram on the ground that suppressing certain facts, the said C.T.Azhagia
Sundaram the member of the society got the property sold in his favour. After such cancellation, the Co-operative Society sold the same plot in
favour of the second defendant B.Azhakusundaram herein. The plaintiffs therefore filed the suit for declaration and injunction. During the pendency
of the suit, since the said B.Azhakusundaram trespassed into the land and constructed the structure, a prayer for injunction was got converted into
one for recovery of possession.
The Co-operative Society remained exparte.
The second defendant filed the refutatory written statement disputing and challenging the averments/allegations in the plaint. He would contend
that he acquired right over the property as a member of the Co-operative Society and that sale deed executed in his favour was true and valid.
The trial Court framed the relevant issues.
During trial, the first plaintiff examined himself as P.W.1 and Exs.A.1 to A.6 were marked and the second defendant examined himself as
D.W.1 and Exs.B.1 to B.9 were marked and Exs.C.1 and C.2 were marked.
Ultimately, the trial Court dismissed the suit by giving a finding that the civil Court is having no jurisdiction.
Challenging the same, A.S. No. 118 of 1998 was filed in the Additional District Court cum Chief Judicial Magistrate, Sivagangai, which Court
confirmed the judgment and decree of the trial Court.
Impuging the judgments of both the Courts below, this second appeal has been filed on the grounds inter alia thus:
The judgments and decrees of both the Courts below are against law and weight of evidence. The civil Court only has got jurisdiction to entertain
the suit as there are no adequate remedies available under the Tamil Nadu Co-operative Societies Act, so as to get redressal by the plaintiffs in the
facts and circumstances of the case as highlighted supra. The authorities under the Tamil Nadu Co-operatives Societies Act, could act within the
frame work of the Act and they cannot demolish the structure put up by the second defendant herein and put the plaintiffs in possession and
whatever remedy they could give is only within the four corners of the Act which would not in any way be equivalent to the prayer in the suit which
are one for declaration of title and recovery of possession. Without considering all these significant factors, simply the trial Court as well as the first
appellate Court has held as if the civil Court is having no jurisdiction. Accordingly, they prayer for setting aside the judgments and decrees of both
the Courts below and for decreeing the original suit.
At the time of admitting the second appeal, my learned Predecessor framed the following substantial questions of law:
(i) Whether the Courts below are right in holding that the jurisdiction of the Civil Court is barred in view of Sec.90 and 156 of T.N.Co-operative
Societies Act, when the issues raised and the reliefs claimed by the appellants can be granted only by the Civil Court?
(ii) Whether the findings of the Courts below that the appellant should raise dispute under Sec.90 of T.N.Co-operative Societies Act 1983, when
the appellants are not the members of the Society and the releifs claimed against the respondent can be granted only by the Civil Court?
(iii) Whether the reasonings of the lower appellate Court that the issues raised in the suit filed by the appellants against the respondents can be
decided only by the Registrar under Sec.73 of the T.N.Co-operative Societies Act, when the Society has executed a regular sale deed in favour of
the vendor of the appellants under Ex.A.2 as per Sec.54 of the Transfer of Property Act?
During the pendency of the second appeal, it so happened that in compliance with the direction of the first appellate Court, the plaintiffs got the
matter processed u/s 90 of the Tamil Nadu Co-operative Societies Act and it appears, the authority concerned decided the matter in favour of the
plaintiffs holding that the cancellation of the sale deed effected by the first respondent, the Co-operative Society, was illegal and as such,
recognised the right of the plaintiffs'' vendor C.T.Azhagia Sundaram.
Instead of filing appeal before the Tribunal challenging the same under the Tamil Nadu Co-operative Societies Act as per Section 152 of the
Act, the second defendant herein did choose to file a writ challenging the order.
The fourth respondent in the writ petition filed the counter challenging the right of the writ petitioner in filing the writ petition without
approaching the Tribunal.
As such, the second appeal and the writ petition are before me. 17. Heard both sides.
The point for consideration in this writ petition is as to whether the writ would lie in the wake of effective remedy of filing appeal before the
Tribunal is contemplated under the Act?
All the points in the second appeal as well as in the writ petition, are taken together for discussion as they are interlinked and interwoven with
one another.
The Points:
The learned Counsel for the plaintiffs drawing the attention of this Court to various provisions of of the Tamil Nadu Co-operative Societies Act
and Rules and also the precedents on the subject, would develop his arguments to the effect that both the Courts below have fallen into error in
holding that the Civil Court has no jurisdiction, even though as per Section 9 of the Code of Civil Procedure, such suit could be filed. He would
also try to highlight that effective remedy could not be given by the authority under the Tamil Nadu Co-operative Societies Act, as in this case,
B.Azhakusundaram, (the second respondent in the second appeal and petitioner in the writ petition) raised some construction over the plot.
Per contra, denying and disputing, challenging and also by way of torpedoing the arguments of the learned Counsel for the plaintiffs, the learned
Counsel for B.Azhakusundaram, would submit that the decision of both the Courts below cannot be found fault with as the Sub Court has no
jurisdiction in this matter. He would also place reliance on the decision of this Court in Baghavathy Ammal v. The Chingleput Co-operative
H.B.S.Ltd., reported in 1990 (I) M.L.J. 156. An excerpt from it, would run thus:
7.... In this case it is clear that the first respondent acquired a right only by virtue of the statute, namely. Tamil Nadu Co-operative Societies Act,
to the said plot and the said statute provided the Special Tribunal to decide the dispute between the member, past member and the person claiming
through a member on the one hand and the society oil the other: There is adequate remedy for appeal and execution and in the circumstances even
though there is no express bar of the jurisdiction and only the Special Tribunal, namely the Registrar as contemplated u/s 73 of the Tamil Nadu Co-
operative Societies Act alone has got jurisdiction to try the dispute in question.
(emphasis supplied)
The aforesaid decision highlights that relating to the dispute which arose concerning allotment of the plot by the Co-operative Society, the civil
Court has got no jurisdiction to go into those aspects.
Whereas the learned Counsel for the plaintiffs cited the decision in M.T.Publications Pvt. Ltd v. Shriram Transport and Finance Co. Ltd.
reported in AIR 1991 SUPREME COURT 626, which is relating to an agreement entered into between three persons namely, the Co-operative
Society, a member of the Co-operative Society and a non-member of that Society, relating to the sale of a building. In that case, the interest of a
third party, a non-member, was also involved and the Co-operative Society directly entered into a contract with them and from out of it, specific
performance suit emerged and in that context, the Honourable Apex Court held that the suit for specific performance was maintainable. As such, to
the facts and circumstances of this case, the ratio decidendi of the cited decision is not applicable.
One other decision in Sathyanarayanan, P and another v. Tamil Nadu Electricity Board Employees Cooperative House Construction Society
and others reported in 1995-2-L.W. 785 has also been cited by the learned Counsel for the plaintiffs, which is relating to the allotment of a plot by
an unregistered Society earlier and afterwards the registration of the Society, there was refusal to execute the sale deed.
It is therefore amply clear by virtue of the well settled propositions relating to interpretation of statutes, including the Golden Rule of
interpretation (Heydon''s rule) and the maxims ""(i) Expressio unius, exclusio alterius (ii) Expressum facit cessare taciturn (iii) Generalia specialibus
non derogant"", the civil Court has no jurisdiction on this issue. Simply because a member of the Society had put up construction of a plot, the
statutory power of the authority under the Act, cannot be held to have be ousted, if held so, it would render otiose the statutory provisions and
would amount to giving enormous power to a member at his discretion to do some act and thereby keep the statutes inactive or inoperative or
ineffectual.
At this juncture, I would like to quote the famous maxim ""quando aliquid prohibetur, prohibetur of omne per quod devenitur ad illud"", in the
famous treatise ""Maxwell on The Interpretation of Statutes"" Twelfth Edition by P.St.J.Langan. An excerpt from it, would run thus:
I never understand,"" said Lord Cranworth L.C (at.P.89), ""what is meant by evading an Act of Parliament. Either you are within the Act or you are
not; if you are not within it, you are right; if you are within it, the course is clear, and it cannot be said that you are not within it because the very
words of the Act may not have been violated."" On the other hand, there is no doubt that ""the office of the Judge is, to make such construction as
will suppress the mischief, and advance the remedy, and to suppress all evasions for the continuance of the mischief."" To carry out effectually the
object of a statute, it must be so construed as to defeat all attempts to do, or avoid doing, in an indirect or circuitous manner that which it has
prohibited or enjoined: ""quando aliquid prohibetur, prohibetur et omne per quod devenitur ad illud"".
This manner of construction has two aspects. One is that the courts, mindful of the mischief rule, will not be astute to narrow the language of a
statute so as to allow persons within its purview to escape its net. The other is that the statute may be applied to the substance rather than the mere
form of transactions, thus defeating any shifts and contrivances which parties may have devised in the hope of thereby falling outside the Act. When
the Courts find an attempt at concealment, they will, in the words of Wilmot C.J., ""brush away the cobweb varnish, and shew the transactions in
their true light.
Once again, it is clear that the aforesaid decision is also not applicable to the facts and circumstances of the as mere perusal of it, would reveal
the same and no more elaboration in this regard is required.
After filing of the second appeal, the plaintiffs have chosen to seek remedy within the meaning of Section 90 of the Act in compliance with the
first appellate Court''s judgment and decree and that itself would speak volumes that the plaintiffs virtually had given a go-by to this second appeal
and in that, the order was also passed in their favour as under:
It is ex faice and prima facie clear that against the order passed if at all, the writ petitioner was aggrieved, he ought to have approached the
Tribunal under the Act, but instead of doing so, he has filed straight away the writ petition challenging and impugning the order passed as well as
the jurisdiction exercised by the Arbitrator. In support of his contention, he has cited the decision in Whirlpool Corporation v. Registrar of Trade
Marks, Mumbai and others reported in (1998) 8 Supreme Court Cases 1 = 1999-2-L.W.200. An excerpt from it, would run thus:
The power to issue prerogative writs under Article 226 of the Constitution is plenary in nature and is not limited by any other provision of the
Constitution. This power can be exercised by the High Court not only for issuing writs in the nature of habeas corpus, mandamus, prohibition, quo
warranto and certiorari for the enforcement of any of the Fundamental Rights contained in Part III of the Constitution but also for ""any other
purpose"".
As such, applying the ratio decidendi as found emerged from the Honourable Apex Court''s decision, is not legally possible as the facts here
are entirely different as already set out supra.
In this connection, the Full Bench decision of this Court in K.Marappan v. The Deputy Registrar of Co-operative Societies, Namakkal Circle,
Namakkal - 636 001 and another reported in 2006 (4) CTC 689 = 2006-2-L.W. 544, could rightly be cited. A bare perusal of the Full Bench
decision of this Court would amply make the point clear that the writ petition as against the Tamil Nadu Co-operative Societies Act would not lie
in matters of this nature and no more elaboration is required in this regard.
The grievance of the petitioner in this writ petition is broadly to the effect that the authority exercised his power without jurisdiction and that too
during the pendency of the second appeal. Now then, as already highlighted supra, by way of approaching the authority concerned u/s 90 of the
Act in compliance with the direction of the first appellate Court, the plaintiffs virtually had given a go-by to the second appeal and furthermore, on
merits also, I have held supra that the civil Court has got no jurisdiction.
Furthermore, whatever grievance the writ petitioner/second respondent might have as against the order of the Arbitrator, he could have
preferred appeal before the Tribunal and it cannot be countenanced that the Tribunal is having no power to hear the grievances of the writ
petitioner herein.
In view of the decision above, I am of the considered opinion that the second appeal and the writ petition are not sustainable and they have to
be dismissed.
Accordingly, the substantial question of law No.(i) is decided to the effect that in the facts and circumstances of the case, the Civil Court is
having no jurisdiction to entertain the suit as effective remedy is contemplated under the Tamil Nadu Co-operative Societies Act; the substantial
question of law No.(ii) is decided to the effect that the plaintiffs were claiming right only as the member of the Society as against the Co-operative
Society and one other member of the Co-operative Society and the dispute has arisen relating, to sale of plot only and consequently, Section 90
and other provisions of the Act are applicable, and they are very much covered as contemplated u/s 90 of the Act. The Arbitrator u/s 90 of the
Act, is the competent authority to decide the validity of the cancellation or otherwise of the matter and also the subsequent sale deed executed by
the Society in favour of the writ petitioner herein.
The learned Counsel for the plaintiffs made an extempore submission to the effect that the authority under the Tamil Nadu Cooperative
Societies Act, must be in a position to implement the order or any direction by it effectively.
I am of the opinion that in view of the clear and categorical finding given by this Court, the Tamil Nadu Co-operative Society and the
authorities concerned are fully competent to implement the order passed in this case as the order is passed already as against a member(R.2) and
not as against any third party so to say, the writ petitioner herein is a member of the Co-operative Society. In this case, there should not be any
embargo for implementing the decision of the authority under the said Act.
The learned Counsel for the writ petitioner would submit that since the writ petition is being dismissed on the ground that without exhausting the
remedy available u/s 152 of the act, by approaching the Tribunal, the writ petitioner may be given liberty to approach the Tribunal excluding the
time taken for prosecuting this writ petition.
I am of the considered view that such a submission could be acceded to and accordingly, the writ petitioner is at liberty to approach the
Tribunal excluding the time taken for prosecuting this writ petition. However, in the event of any appeal filed before the Tribunal, the Tribunal has
to see to it that it is disposing of the same within a period of two months from the date of filing of the appeal. In the result, both the second appeal
as well as the writ petition are dismissed. No costs.