RAVJIBHAI DESAIBHAI PATEL Vs. RAJPATH CO OP SOCIETY

JUDGEMENT

(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-officebearer of a co-operative society against the society concerned and its present office-bearers. The trial Court has taken the view that the Registrars Nominee alone would have jurisdiction by reason of the provision contained in sec. 96 read with sec. 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 sec. 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 Registrars 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 secs. 96 98 and 166 and (2) that the suit was liable to fail on the ground that the notice contemplated by sec 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. Sec. 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 complaints 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 connection 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 sec. 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 snit and the delivery of a notice to the Registrar is not a condition precedent to the institution of the suit inasmuch as sec. 167 is not attracted at all in the view that I am taking. The result would 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