THE KALYAN PEOPLE'S CO-OPERATIVE BANK versus DULHANBIBI, AQUAL AMINSAHEB PATIL

DAS GUPTA, ·J.-Disputes having arisen between the appellant, a Co-operative Bank and one Amin Saheb Patil, who had taken loans from the Bank and Kutubuddin Mohamad Ajim Kazi, who h11d stood E1uety in respect of tlie lollJJB they w,ere '• referred to arbitration in two references under s.54 of the Bombay Co-operative Societies Act, 1925. The Board of Arbitrators originally consisted of Mr. L. V. Phadke, Mr. C. IC Phadke and Mr. Trilokekar. After the Board had several meetings and recorded some evidence Mr. Trilokeker, who was the nominee of the borrower, Amin Saheb, retired. Thereafter the B0ard was re-constituted with Mr. Kotwal as the new nominee of the borrower. This Board also reoorded some evidence but after sometime M.r. Kotwal also retired. There was a fresh constitution of the Board with the otht>r two members as hefore and Mr. M. D. Thakur as the nominee of tho borrower. Further eviden~e was recorded by the Board thus constituted and finally the Board gave its award in the matters on March 14, 1955.

pp. 349–350

Dissatisfied with these awards Amin Saheb filed two revision applica.tions before the Bombay Co-operative Tribunal. Apart from certain objections on the merits of the awards a preliminary objection was ta.ken before the Tribunal as regards the legality of the awards on the ground that the Boa.rd as Ia.st constituted had acted on evidence not recorded before it. The Tribunal accepted this preliminary objootion, St'lt aside the a.wards and remanded the cases to the Assistant Registrar for re-hearing.

p. 350

Shortly after this· Amin Saheb died but his heirs and legal representatives made two applioationn to the Bombay High Court under Art. 227 of the Constitution against the Tribunal's decision. The High Court hold that the Tribunal had erred in thinking that the Board of Arbitrators had l\,Oted iU~gally . in eeting on the evidence recorded by the previous Boards when this was done with the full knowledge of the parties and without any objection on either side. Accordingly, they set a.aide the orders ~ by the Tribunal and restored the awards made by the Board . of Arbitrators.

pp. 350–351

The Bank has now appealed against the decision of the High Court after obtaining special 1.iave from thifi Court. · · - ·

p. 351

Three points are raised before us in support of the appeal. The first is that the Tribunal had not made any error-in holcling that the Board had acted illegally in acting upon the evidence recorded by the previous Boards. Secondly, it is urged that even if the Board had erred it was not such an error as _would entitle tho High Court to interfere under Art. 227 of the Constitution. Lastly", it was contended that in any case, the High Co"urt was not ju~tified in setting aside the awards -when· the Tribunal had disposed of the application only_ on preliminary points and had not considered it on merits. Iri our opinion there is no substance in the first two contentions. As the High Court has pointed out normally it would have been wrong and indeed illegal -for the Tribunal to act on evidence not taken before it. The position is however different when the parties expressly-. or impliedly agree that some evidence - not taken before the Tribunal should be treated as evidence and taken into consideration. It is settled law that question of mode of proof is a question of procedure and is capable of being waived and therefore evidence taken in a previous judicial proceeding can be made admissible in a subsequent proceeding by con~ent of parties. This applies to proceedings of a civil nature. While what is not relevant under the Evidence Act cannot in proceedings to which Evidence Act applies, made relevant by consent of parties, relevant evidence can be brought on the record for consideration of Court or the Tribunal without following the regular mode, if Frties -~· The reason behind · thill rule if! that it would be unfair to ask any party to prove particular fact when the other party has already admitted that the way it has been brought before Court has sufficiently proved it. We are therefore opinion that in the facts of these -cases when ·appellant Bank not only raised no objection to Board as last constituted proceeding on the evidence already recorded before the previous Boards, but indeed appears to have invited the Board to act such evidence previously recorded, the "appellant cannot be allowed later on to object to the Board having considered the evidence-merely because the decision has goes against it. 'I he Tribunal was clearly wrong in thinking otherwise and _the error cannot but be considered to be an error apparent the face of the record and as Pu ch the .High Court had not -onli the power -but duty to interfere with the Tribunal's order. - _ - - • -

pp. 351–352

It appears to us how-ever that having come to the conclusion - that the Tribunal was wrong in allowing the _preliminary objection raised before it the High Court was not entitled to ignore the fact that before the. Tribunal other questions had been raised which had not been considered by it. The proper order to pass iri such a case, our opinion, would be to set aside the order of Tribunal and direct it to decide the applications for revision on their merits.

p. 352, margin A

We therefore allow the appeals in part, and order, in modification of. the order made ·by High Court; that the Tribunars order _ remanding the cases tci the Assistant Registrar be set aside the Tribunal should now proceed to hear the revision applications on their merits. In the circum· stances of the case, we order that the parties will ·bear their own costs.

p. 352, margin A

Appeals allou·ed in :part.

p. 352, margin A