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Aymanam Mariyathuruthy Service vs The Kerala Co-Operative Tribunal on 19 September, 2007

Kerala High Court
Aymanam Mariyathuruthy Service vs The Kerala Co-Operative Tribunal on 19 September, 2007
       

  

  

 
 
  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.

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