IN THE HIGH COURT OF KERALA AT ERNAKULAM
WA No. 2178 of 2007()
1. AYMANAM MARIYATHURUTHY SERVICE
... Petitioner
Vs
1. THE KERALA CO-OPERATIVE TRIBUNAL
... Respondent
2. M.CHANDRASEKHARAN NAIR,POITHITTAYIL
3. SENIOR CO-OPERATIVE INSPECTOR,
For Petitioner :SRI.P.SANKARANKUTTY NAIR
For Respondent : No Appearance
The Hon'ble the Chief Justice MR.H.L.DATTU
The Hon'ble MR. Justice K.T.SANKARAN
Dated :19/09/2007
O R D E R
H.L. DATTU, C.J. & K.T. SANKARAN, J.
...................................................................................
W.A. No. 2178 OF 2007
...................................................................................
Dated this the 19th September, 2007
J U D G M E N T
H.L. Dattu, C.J.:
The petitioner/appellant is a society registered under the provisions of
the Kerala Co-operative Societies Act, 1969 (hereinafter referred to as ‘Act’).
2. In this appeal, the petitioner/appellant questions the correctness or
otherwise of the orders passed by the learned single Judge in O.P. No.23823
of 2002 dated 26th March, 2007. The learned single Judge has rejected the
Original Petition. Aggrieved by the order of the learned single Judge, the
present appeal is filed.
3. The Appellant had raised a dispute before the Arbitrator under the
provisions of Section 69 (1) of the Act. The Arbitrator, by order dated
21.10.1999 had rejected the dispute. The order passed by the Arbitrator reads
as under:
“Advocate Abraham K. Jacob appeared for the petitioner.
The trial commenced from 05.01.1991 onwards. Since
the records were in the Vigilance Court, the trial could not
be commenced till 15.06.1998. The trial was conducted
on various days during the period from 03.03.1999 to
21.10.1999. Exhibit P1 to P67 were marked. As the
petitioner Bank could not establish that the respondent
was responsible for the incident which is the subject
matter of the case, the above case is dismissed on
21.10.1999 at 3 p.m.”
4. Aggrieved by the order passed by the Arbitrator, the
petitioner/appellant-Society had filed Appeal No. 32 of 2000 before the Kerala
W.A. No. 2178 OF 2007
2
Co-operative Tribunal, Thiruvananthapuram. By order dated 10th October,
2000, the Tribunal has rejected the appeal for non-prosecution. The order
passed by the Tribunal reads as under:
“Appellant called. Absent. No representation even.
Hence dismissed for default.”
5. After the dismissal of the appeal for non-prosecution, the
petitioner/appellant-Society had filed an application for restoration of the
appeal, viz., Restoration Application No.55 of 2000. The said application has
also been rejected by the Tribunal by order dated 6th August, 2001, for non-
prosecution. The order passed by the Tribunal reads as under:
“No representation for the petitioner. Hence
petitioner called. Petitioner also is absent.
In the result I dismiss this Restoration
Application for default. No costs.”
6. Thereafter the petitioner/appellant-Society had filed one more
application for restoration of dismissed application, in Restoration Application
No.85 of 2001. The said application has also been rejected by the Tribunal by
its order dated 10th September, 2001. The order passed by the Tribunal is as
under:
“This is restoration application filed on second time
in A.P.No. 32/2000. The appeal was being
dismissed for default on 10.10.2000 and notice
12.12.2000 as averred in the affidavit Restoration
W.A. No. 2178 OF 2007
3
Application 55/2000 filed on 08.11.2000 was also
being dismissed for default on 06.08.2001. This
application is filed to restore Restoration Application
55/2000. On a perusal of the records, it is seen that
the appellant/petitioner was not at all diligent in
prosecuting the appeal and only wanted to due that
the Appeal on an application for restoration atleast is
kept pending on file. I am not of the view that the
culpable latches on the part of the appellant and his
lawyer can be taken lightly so as to allow this
application for restoration of the Restoration
Application.
In the result, I dismiss this Restoration
Application with however no order as to costs.”
7. Aggrieved by the aforesaid order passed by the Tribunal, the
petitioner/appellant-Society was before this court in O.P. 23823 of 2002 and
the said Original Petition is rejected by the learned Single Judge by his order
dated 26.3.2007.
8. The learned counsel for the petitioner/appellant-Society would
submit, the learned single Judge was not justified in rejecting the Original
Petition filed by the Society on the grounds mentioned in the impugned order.
Therefore, the learned counsel requests us to interfere with the said order
passed by the learned single Judge and to remand the matter to the Tribunal
to restore the appeal filed by the petitioner/appellant-Society and to decide the
same on merits by the Tribunal.
W.A. No. 2178 OF 2007
4
9. We are not inclined to accede the request made by the learned
counsel for the petitioner/appellant-Society.
10. Rule 113 of the Kerala Co-operative Societies Rules 1969
(hereinafter referred to as ‘ Rules’) provides for rejection of an appeal by the
Tribunal ex parte. Rule 114 of the Rules provides for filing of an application
for restoration of the appeal dismissed for default/non-prosecution and for
restoration of the appeal, if for any reason, the Tribunal is satisfied with the
explanation offered in the application for restoration. The relevant rules are
extracted below:
“113. Hearing:-(1) Where on the date fixed for hearing or on
any other date to which the hearing may be adjourned, any
party does not appear when the proceedings is called on for
hearing , the Tribunal may dispose of the proceedings ex-
parte.
(2) On the date fixed for hearing or on any other date to which
the hearing may be adjourned, the appellant or applicant shall
ordinarily be heard first in support of the appeal or application.
The respondent, if necessary, shall be heard next and in such
a case the party beginning shall be entitled to reply.
114. Restoration of appeals and applications:-(1) Where a
principal application is disposed of ex-parte any absentee
party, if aggrieved, may apply to the Tribunal, within 30 days
from the date of communication of the order, for restoring
such proceeding to the file and where it is shown to the
satisfaction of the Tribunal that he was prevented by sufficient
cause from appearing when the proceeding was called on for
hearing, the Tribunal shall restore the same and proceed with
W.A. No. 2178 OF 2007
5
it. Provided that where the other party had appeared at the
hearing such party shall be given notice and an opportunity of
being heard before the order for restoration of the appeal or
application is made.
(2) The provisions of these rules relating to appeals or
applications shall mutatis mutandis apply to application for
restoration. ”
11. In the instant case, since the petitioner/appellant-Society was not
present before the Tribunal when the matter was called for hearing, the
Tribunal, in exercise of its powers under Rules 113 of the Rules, has rejected
the appeal. Rule 114 of the Rules authorises the appellant, whose appeal was
rejected for non-prosecution/default, to make an application for restoration of
the appeal. The said rule also authorises the Tribunal to restore the appeal, if
the Tribunal is satisfied with the reason that the appellant was prevented by
sufficient cause from appearing when the proceeding was called for hearing.
12. The appeal filed by the petitioner society is posted before this court
for admission. We asked the learned counsel appearing for the appellant
Society to furnish us the application filed by the petitioner society to satisfy
ourselves whether the petitioner society has made out sufficient grounds for
restoration of the appeal. The learned counsel for the appellant pleads his
inability to produce that application.
13. In the instant case, as we have already noticed, that on the date
when the matter was posted for hearing before the Tribunal, neither the
appellant nor its counsel was present before the Tribunal. The Tribunal, in
W.A. No. 2178 OF 2007
6
exercise of its powers under Rules 113 of the Rules has rejected the appeal
for non-prosecution/default. The said appeal could have been restored by the
Tribunal, if reasonable explanation was shown by the appellant in the
application filed for restoration of the appeal. Whether sufficient cause has
been shown or not in the application for restoration, to the satisfaction of the
Tribunal for the absence of the appellant at the time when the proceeding was
called for hearing, can be ascertained only if the application for restoration
filed before the Tribunal is produced before us. Since that application is not
filed/produced before us, we are of the opinion that the Tribunal was justified in
rejecting not only the appeal but also the application for restoration of the
appeal.
11. In view of the above, for the reasons other than the reasons
mentioned by the learned single Judge, the Writ Appeal requires to be rejected
and it is rejected.
Ordered accordingly.
H.L. DATTU,
CHIEF JUSTICE.
K.T. SANKARAN,
JUDGE.
lk/DK.