Hiralal Son of Fattechand Gandhe and Nandkumar Son of Hiralal Gandhe Vs. Ramdas Son of Dondbaji Chapale - Court Judgment

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civil - jurisdiction - sections 55 and 57 of the maharashtra agricultural produce marketing (regulation) act, 1963 - plaintiff sold cotton to defendants - defendants failed to pay price of goods - suit filed by plaintiff for recovery of amount - trial court decided matter in defendant's favour and suit dismissed - on appeal, appellate court partly allowed plaintiff's claim in respect of agricultural produce and rejected his claim in respect of fodder and cement bags - hence, present appeal by defendant - jurisdiction of civil court for deciding the matter challenged - held, neither the provisions of section 55 nor section 57 of apmc act come into play - jurisdiction of civil court not barred - finding of fact by appellate court need not be interfered - no perversity found in findings of appellant court - appeal dismissed - code of criminal procedure, 1973 [c.a. no. 2/1974]. section 41: [ swatanter kumar, cj, smt ranjana desai & d.b. bhosale, jj] arrest of accused - held, a police officer or a person empowered to arrest may arrest a person without intervention of the court subject to the limitations specified under the provisions of the code. the provisions of section 41 of the code provides for arrest by a police officer without an order from a magistrate and without a warrant. a distinct and different power under section 44 of the code empowers the magistrate to arrest or order any person to arrest the offender. under section 44 of the code, that power is vested in the court of the magistrate when an offence is committed in his presence. if the legislature has taken care of providing such specific power under section 44 of the code, then there could be no reason for such a power not to be specified under the provisions of chapter xii of the code. in terms of section 41, a police officer may arrest a person without a warrant or order from the magistrate for any or all of the conditions specified in that provision. language of this provision clearly suggested that the police officer can arrest a person without an order from the magistrate. thus, there appears to be no reason why on the strength of section 156(3) of the code, any restriction should be read into the power specifically granted by the legislature to the police officer. of course, freedom of investigation is the essence of these provisions but in order to suppress the mischief it is sufficiently indicated under different provisions of the code that the arresting officer should exercise his power or discretion judiciously and should be free of motive. some kind of inbuilt safeguard is available to the accused in the cases where the magistrate directs investigation under section 156 (3) of the code by taking recourse to the provisions of section 438 of the code by approaching the court of session or the high court for such relief. thus, during the course of investigation of a criminal case, an accused is not remediless and that would further buttress the above view. [jagannath singh v dr. ajay upadyay & anr 2006 cri lj 4274; 2006 (5) air bom r held per incuriam]. - since defendants failed to pay the price of goods, plaintiff filed suit for recovery of rs. 1. learned trial court recorded a finding that plaintiff failed to prove sale of any of the items stated in the suit and consequently, he was not entitled to recover amount as alleged. l who was not licence holder could have very well made purchases from the plaintiff.a.p. bhangale, j.1. by this appeal, appellants/original defendants have challenged the appellate judgment and order dated 17th august 1993 passed in regular civil appeal no. 88 of 1990 whereby the 2nd additional district judge, yavatmal set aside the judgment and decree dated 18th august 1980 passed by the civil judge, junior division, kelapur in regular civil suit no. 46 of 1986 and thereby partly decreed the suit of original plaintiff (present respondent).2. dispute is in a narrow compass. plaintiff sold 4 quintals of cotton for rs. 2200/- to the defendants on 17th april 1983. then on 24th april 1983 he sold to the defendants 92 kg of til for rs. 595/- and 7.05 qtl of tur for rs. 3535/- to the defendants. defendants' diwanji issued receipts. on 24th april 1983 plaintiff supplied fodder of rs. 1100/- and cement worth rs. 225/- to the defendants. since defendants failed to pay the price of goods, plaintiff filed suit for recovery of rs. 7645/-against defendants. the defendants denied suit claim in toto. they denied that there was any such transaction as is alleged in the suit. they stated that till 1983 defendant no. l was licence holder operating in agricultural produce market committee and thereafter it is defendant no. 2 who is operating and, therefore, there was no question of entering into any transaction of purchase outside the market yard. it was then alleged that they had supplied 800 feet tiles worth rs. 1600/- to the plaintiff, and filing of suit was tactics to avoid payment of that outstanding sum. they prayed for dismissal of suit.3. before the trial court, plaintiff examined himself and one witness by name dashrath while defendants examined defendant no. 1. learned trial court recorded a finding that plaintiff failed to prove sale of any of the items stated in the suit and consequently, he was not entitled to recover amount as alleged. as regards tenability of suit, learned trial court held that its jurisdiction was not ousted. ultimately, suit came to be dismissed.4. on appeal by plaintiff, learned 1st appellate court partly allowed the appeal and held that plaintiff is entitled to recover rs. 6320/- from defendants as worth of agricultural produce sold by him. the 1st appellate court negatived the claim of plaintiff for recovery of rs. 1100/-and rs. 225/- on account of alleged sale of fodder and cement bags. it has concurred with the finding rendered by the learned trial court that jurisdiction of the civil court is not ousted. it is against this judgment and order of the 1st appellate court that original defendants have preferred instant appeal.5. this appeal has been admitted on 13.12.1993 treating grounds no. 1,2,3, 5 and 7 in the memo of appeal as substantial questions of law which read thus -1. whether in view of the provisions of sections 55 and 57 of the maharashtra agricultural produce marketing (regulation) act, 1963 ousting the jurisdiction of civil court the courts below could try and decree the instant suit?2. whether the jurisdiction of civil court was ousted to try the present suit?3. whether the lower appellate court erred in not keeping in mind the twin principles while approaching the rival contentions that the court of appeal interferes not only when the judgment order attacked is not right but only when it is shown to be wrong and erred in reverting the judgment while reappreciating the findings of fact which were not only right but were not shown to be wrong?5. whether the lower appellate court while deciding the questions of fact was right while concluding differently without assigning reasons as to how the judgment of trial court was wrong and as to how the reasons given by the trial court are unsatisfactory when it had not advantage of having seen or hearing the witnesses?7. whether the lower appellate court misconstrued the law laid down in 1985 mh. l.j. 971 prakashchandra v. ramkrishna?6. heard learned counsel for the parties. ms savitri dave, learned counsel for appellants contends that the provisions of section 55 of the maharashtra agricultural produce marketing (development and regulation) act, 1963 (for short, the 'apmc act') are clear-cut and unambiguous and no suit can be filed against the committee or any member acting under the direction of market committee in absence of statutory notice. she further submits that if any dispute arises whether a sum is due to the market committee or any agriculturist, it shall be referred to a tribunal constituted for the purpose. learned counsel submits that if at all there was any transaction between the parties, it admittedly took place in market yard and defendants acting on behalf of the market committee and, therefore, issuance of notice and reference of dispute to a tribunal was mandatory.7. at the first place, in the written statement the appellants have merely stated that they were licence holder and were operating as such in the market yard. they have, however, not made clear as to whether they were operating as 'broker' or 'commission agent' or 'trader' as is defined respectively in section 2 (c), 2 (e) and 2 (t) of the apmc act. besides this, it is stated in the written statement that till 1983 defendant no. 1 was operating and thereafter it is the defendant no. 2 who is operating as a licence holder. therefore, defendant no. l who was not licence holder could have very well made purchases from the plaintiff. apart from this, defendants have denied the transactions stated by the plaintiff in entirety. had it been a case that transactions were admitted and defendants acted as agent of the market committee, it would have been open for the defendants to insist that issuance of statutory notice was mandatory and that jurisdiction of the civil court was ousted.8. in view of the above, i hold that neither the provisions of section 55 nor section 57 of the apmc act come into play and both the courts below have rightly held that the jurisdiction of the civil court was not barred.9. plaintiff had examined himself and p.w. 2 dashrath who was working as diwanji with defendants. plaintiff produced two receipts (exhibit 32 and 33) dated 17th april 1983 and 24th april 1983. it is established on record that plaintiff supplied goods and defendants received the same. receipts (exhibits 32 and 33) were issued by p.w. 2 dashrath on behalf of defendants. defendants' say that p.w. 2 dashrath was not working with them and receipts in question are vague. if that be so, there was nothing to prevent the defendants from placing on record account books to indicate that no transaction had taken place on the relevant dates between the parties. in my opinion, therefore, the 1st appellate court has rightly allowed the claim of plaintiff in part on the basis of both oral and documentary evidence on record.10. finding of fact given by the 1st appellate court need not be interfered in this appeal. there is no perversity in the findings rendered by the 1st appellant court warranting interference by this court in this appeal under section 100 of the code of civil procedure.in the result, appeal is dismissed with no order as to costs.