LexTHE KALYAN PEOPLE'S CO-OPERATIVE BANK versus DULHANBIBI, AQUAL AMINSAHEB PATIL
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i \ ' ! ' . April t:J._ .. .. \ ' --- ' ,,_- -,.. , ' / 348 · SUPREME COURT R_~PORT~ [1963] THE KALYAN PEOPLE'S CO·OPERATIVE BANK v. DULHANBIBI, AQUAL AMINSAHEB· PATIL (J. L. Kutra, K. C. DAS GuPrA and . RAGHUBAR DA~AL; JJ.) Co-operative Society-Arbitration:_Tribunal, if and whe1' can act. on· evidence taken befOTe previous Tribunal-Party con- aenting to· such\evidence-if can object later-Bombay Co-oper. ative Societies Act, 1925 (Bo~. VII of 1925), s. 54. · '~, ) The dispute between the appellant a co-operative bank -J- . and A who had taken loan and his surety was referred to . arbitration under s. 51 of the Bombay Co-operative Societies Act. The Board of Arbitrators consisted of three members; after -the Board has recorded some evidence, the nominee of the borrower retired. Thereafter, the Board was reconstituted. :_This Board also recordCd some evidence ;·but after some time, the newly appointed nominee of the borrower retired. There was a fresh constitution of the Board with the· other two . · members as before and a new member as th< nominee of the r borrower. Further evidence was recorded by the Board thus constituted and finally the Board gave its award in the matter. Dissatisfied With this award A filed revision applications be~ . fore the Bombay Co-operative Tribunal.' Apart from certain objections on merit a preliminary objection was taken· as · regards ·the legality of the award on the ground that the Board as· last constituted had acted on evidence not recorded before it. The Tribunal accepted this preliminary ·objection and set aside the award and remanded the cases to the Assistant Registrar. Shortly after this A died but his heirs and legal · 1 representatives moved the Bombay High Court under Art. 227 of the Constitution against the Tribunal's decision. It set -/" aside the orders pa>sed by the Tribunal and restored· the award made by the Board of Arbitrttors. The Bank came up in appeal by special leave to the Supreme. Held, that. when the parties expre!Sly or impliedly agree that some evidence not taken before the Tribunal should be ~ treated as evidence and taken into consideration, it will not be wrong. or illegal for the Tribunal to act on such evidence not taken before it, the question of· mode of proof is a question. of procedure and is capable of being waived and therefore evidence taken in a previous judicial proc~Cding of a· civil nature can te Ir•C• •<'mi!sible in a •ubs<<jUtnt proceeding hr ·coment of farti~. · · · 2 S.C.R. SUPREME COURT REPORTS While what is not relevent under the Evidence Act cannot in proceedings to· which Evidence Act applies, be made relevant by consent of parties, relevant evldence can be brought on the record for consideration of the Court or the Tribtinal without following .the regular mode, if parties agree. When a party does not only raise no objection before a Court or Tribunal to proceed un the evidence already re- corded before the previous Court or Tribunal and impliedly invites the Court . or Tribunal to act on such evidence pre- viously recorded, he cannot be allowed later on to object to the Court or Tribunal having considered such evidence. The High court having come to the conclusion that the Tribunal was wrong in allowing the preliminary objec- tien 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 pro- per order to pass in such · a case ordinarily would be to set aside the order of the Tribunal and direct it to decide 'the applications for revision on their merits. CIVIL APPELLATE JURIBDIOTION: Civil Appeal Nos. 555 & 556 of 1960. Appeals by special leave from the judgment arid order dated July 17, 1956, of the Bombay Hillh Court in Special Civil Applications Nos. 580 and 581 of 1956. A. V. Viswanatha Sastri, B. R. Nayak and N aunit Lal, for appellants. Abdurrahman Adam Omer, S. N. Andley, Rameshwar Nath and P. L. Vohra, for the respon- dents No. l and 3 to 6. 1962. April 23,-The Judgment of the Court was delivered by DAS GUPTA, ·J.-Disputes having arisen bet- ween 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 '• • 11111 TIM Eal1a PU1J11'1 Co-opmditt, llw v. . Du!hanblbi Aqual dminsalub P•til
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