Om Parkash vs Dodewala Co-op Agricultural Service Society

Gokal Chand Mittal, J.—Dodewala Cooperative Agricultural Service Society (hereinafter referred to as the Society) got a certificate dated 6th June, 1978, issued from the Deputy Registrar, Co operative Societies, Ferozepore, in their favour in the sum of Rs. 9,615/- and against Om Parkash u/s 67-A of the Punjab Co-operative Societies Act, 1961 (hereinafter referred to as ''the Act''). When the recovery was sought to be made, Om Parkash came to know about the certificate and filed present suit for permanent injunction restraining the Society from executing or making recovery from him on the basis of the aforesaid certificate, and the main plea was that no notice was issued to him before the issue of certifi ate because section 67(2) of the Act, specifically provided that an opportunity of being heard bad to be afforded before the grant of any such certificate. It was also pleaded that section 67A of the Act could be restored only against a member and that he was not a member. In para No. 4 of the plaint, it was specifically pleaded as follows:-

......... thus a notice for three months stating the cause of action was served on the Registrar, Co operative Societies, Punjab, Chandigarh.

The suit was contested by the Society mainly on two counts, amongst others; (1) that the civil Court had no jurisdkiion to try the suit ; and (2) that the certificate was not null and void and the plaintiff was afforded a bearing. However, in reply to para No. 4 of the plaint, only the following statement was made:-

That contents of para No. 4 of the plaint are formal Defenders are very well within their right to effect the recovery from the plaintiff on the basis of certificate issued by the Deputy Registrar, Ferozepore.

It deserves to be noticed that the plea of the plaintiff that notice of three months was served on the Registrar was not denied. After the issue were settled and evidence was led in the case, the trial Court, held that the civil Court had no jurisdiction because the plaintiff failed to prove that he was not afforded hearing before the certificate was issued. It also concluded that since the plaintiff failed to prove issue of notice u/s 79 of the Act, the suit could not be entertained. In the result by Judgment and decree dated 4th November, 1980, the suit was dismissed on appeal, the learned Additional District Judge confined himself first of all to the point of issue of notice u/s 79 of the Act It concluded that the plaintiff failed to prove that notice was u/s 79 of the Act and since it was a prerequisite for filing a suit, other matters were not gone into Accordingly, by Judgment and decree dated 26th February, 1982, the appeal was dismissed. This is plaintiff''s second appeal.

After hearing the Learned Counsel for the parties, I am of the view that this appeal deserves to be allowed.

In regard to service of notice u/s 79 of the Act, it is clear from a reading of para No. 4 of the plaint and para No. 4 of the reply, that it was specifically pleaded that a notice of three months, stating the cause of action was served on the Registrar, which plea was not denied in para No. 4 of the written statement. It has been held that even a vague reply is deemed to be an admission of the plea, but in this case there is no denial whatsoever. Accordingly, it will have to be assumed from the pleading of both the sides that it was admitted that a notice of three months, as required by law, was served on the Registra before filing the suit. In this view of the matter, the Courts below were in error in going into advance. Moreover, from the evidence also it is proved that notice was issued by the plaintiff because the certificate of posting under which the notice was issued, was produced in the case. The moment certificate of posting was produced in the case, presumption of issue of notice had to be raised and it was for the society to rebut the same, which the society failed to do. Accordingly. I reverse the finding of the two Courts below on this aspect of the matter and hold that notice was admitted to have been served on the Registrar which fact was further proved by the evidence produced.

The Learned Counsel for the Society did not dispute that before a certificate could be issued u/s 67-A of the Act, a hearing had to be afforded to the plaintiff. The recovery certificate issued in this case is Exhibit DA, which contains a recital that the Deputy Registrar after affording an opportunity was satisfied that amount of Rs. 9,615/- was due In this suit as also in the statement before the Court, the plaintiff specifically denied the service of any notice on him stated that the entire proceeding were behind his back. Firstly, the certificate Exhibit D-A does not contain the facts that notice was issued to the plaintiff and was served and in spite of service, he did not appear It merely contains cyclostyled words that after affording an opportunity, the Deputy Registrar was satisfied that the amount was due It does not contain the fact that the plaintiff was present before him or that he did not appear in spite of service Therefore, on the basis of certificate Exhibit D-A the trial Court clearly fell in error in raising a presumption of compliance with the provisions of the Act, specially when it was specifically stated by the plaintiff that he was never served with any notice of the proceeding. Even if initial was to be raised on the basis of Exhibit D-A, that stood rebutted by the statement of the plaintiff that he was never served with the notice. On these facts, it became the duty of the society to prove by evidence that notice was issued and was served on the plaintiff. On behalf of the society, a witness D.W.I, was produced with a file but in that file there was no material to show if any notice was ever issued to the plaintiff and was served on him. Therefore, the production of this witness or the file by him is of no assistance to the society. For the view that denial of the plaintiff shifts onus on the society to prove service of the notice on the plaintiff is supported by a decision of this Court in Puran Chand v. Smt. Lajya Wati (1972) 74 P.L.R. 930. Accordingly, I reverse the finding of the trial Court that proceedings u/s 67A of the Act were taken against the plaintiff after notice to him, and hold that the certificate was issued without affording a hearing to the plaintiff and thus would be null and void and unenforceable against the plaintiff.

Once it is held that the certificate was issued against the plaintiff u/s 67A of the Act. without following the procedure laid down in sub section (2) or in violation of the principles of natural justice because the issue of certificate created liability in the sum of Rs. 9,615/- which affected Civil rights of the plaintiff, it could not be enforced against him and he had a good cause to file a civil suit to seek protection of his rights. If notice had been served on him and certificate had been issued, then certainly the suit would not have been competent and he had to resort to remedy under the Act only. As held by the Supreme Court in Union Co-operative Insurance Society Ltd., Bombay Vs. Commissioner of Income Tax, Bombay, , even if the jurisdiction of the civil Court is specifically barred if the procedure prescribed by the statute is not followed and is against the fundamental principles of Judicial procedure, then certainly the suit is competent. Therefore, even if it is assumed that the jurisdiction of the civil Court was barred, on the peculiar facts of this case it would not be so in view of the aforesaid decision of the Supreme Court. Similar view was taken in 1974 P.L.J. 5 (DB) and 1978 P.L.J. 251. Accordingly I upset the findings of the Courts below to the contrary on this aspect of the matter.

For the reason recorded above, this appeal is allowed, the judgment and decrees of the two Courts below are set aside and'' the plaintiff''s suit is decreed with costs. Certificate dated 6th June, 1978, in the sum of Rs. 9,615/- in favour of the respondent-Society and against the plaintiff appellant is null and void and shall not be enforced against the plaintiff. However it is made clear that it will be open to the Society to have fresh proceedings regarding the sum claimed in accordance with Law.