Jojo Mathew Poovathniyil & Rony Mathew v. V.G. Vijayakumar Vazhacharickal and others

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN THURSDAY, THE 12TH DAY OF DECEMBER 2013/21ST AGRAHAYANA, 1935 WP(C).No. 28681 of 2013 (I) ---------------------------APPEAL 78/2013 of KERALA CO-OP.TRIBUNAL, THIRUVANANTHAPURAM. PETITIONER(S): -------------------------- 1. JOJO MATHEW POOVATHNIYIL HOUSE, POOVARANY P.O., PALA KOTTAYAM DISTRICT-686 575. 2. RONY MATHEW THAKADIYEL HOUSE, LALAM VILLAGE, KIZHUTHADIYOOR KARA KIZHUTHADIYOOR P.O., MEENACHIL TALUK, PALA-686 575. BY ADV. SRI.LIJI.J.VADAKEDOM RESPONDENT(S): ---------------------------- 1. V.G.VIJAYAKUMAR VAZHACHARICKAL HOUSE, EZHACHERI P.O., PALA-686 651. 2. PRASANTHKUMAR ELIKUZHIYIL HOUSE, ARUNAPURAM P.O., PALA-686 574. 3. SARALA DEVI VADAKKANPARAMBIL HOUSE, PALA-686 575. 4. PRADEEP C.R. CHEERANMKAVIL HOUSE, EDAMATTOM P.O., PALA-686 575. 5. P.J.KURIAKOSE VATTUKUNNEL HOUSE, RAMAPURAM P.O., PALA-686 576. 6. SIVAPRASAD SIVALAYAM HOUSE, RAMAPURAM P.O., PALA-686 576. 7. SIBY - THOTTUPURAM HOUSE, KIZHUTHADIYOOR P.O., PALA-686 575. 8. SHERY MATHEW VETTUKALLEL HOUSE, UZHAVOOR EAST P.O., PIN-686 001. 9. A.S.CHANDRAMOHAN ANANTHANATTU HOUSE, MARANGATTUPALLY P.O., PIN-686 635. WP(C).No. 28681 of 2013 -2- 10. THE KERALA CO-OPERATIVE TRIBUNAL REPRESENTED BY ITS SECRETARY THIRUVANANTHAPURAM-695 001. 11. THE RETURNING OFFICER - (INSPECTOR OF CO-OPERATIVE SOCIETIES RAMAPURAM UNIT) - OFFICE OF THE ASSISTANT REGISTRAR(GENERAL) PALA-686 575. 12. THE CENTRAL MARKETING CO-OPERATIVE SOCIETY LTD.NO.K.1088 - PALA, KOTTAYAM DISTRICT-686 575. BY SRI.O.D.SIVADAS BY GOVERNMENT PLEADER SRI. NOUSHAD THOTTATHIL THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 12-12-2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No. 28681 of 2013 (I) ---------------------------- APPENDIX EXHIBITS --------------------- P1 : COPY OF THE AWARD DTD.30.5.2013 IN ARC 4/2011 BEFORE THE COOPERATIVE ARBITRATION COURT, THIRUVANANTHAPURAM. P2 : COPY OF APPEAL MEMORANDUM FILED BY RESPONDENTS 1 TO 9 BEFORE THE 10TH RESPONDENT KERALA CO-OPERATIVE TRIBUNAL. P3 : COPY OF THE JUDGMENT DTD.19.10.2013 ISSUED BY 10TH RESPONDENT-KERALA CO-OPERATIVE TRIBUNAL, THIRUVANANTHAPURAM. R1(a)- COPY OF THE PRELIMINARY OBJECTION FILED BEFORE THE ARBITRATION COURT R1(b)- COPY OF THE RESOLUTION DATED 4.6.2010 ISSUED BY THE MANAGING COMMITTEE R1(c)- COPY OF THE JUDGMENT IN WP(c).35259 OF 2013 R1(d)- COPY OF THE JUDGMENT DATED 2.8.2013 R1(e)- COPY OF THE CAVEAT O.P. DATED 0.7.2013 R1(f)- COPY OF THE COUNTER AFFIDAVIT FILED BY THE PETITIONERS BEFORE THE TRIBUNAL. //true copy// P.A.To Judge ## **K.VINOD CHANDRAN, J** - - - - - - - - - - - - - - - - - - - - W.P.(C).No. 28681 of 2013 - - - - - - - - - - - - - - - - Dated 12[th] December, 2013 - - - - - - - - - - - - - - - - - - - - - - - - ## **JUDGMENT** The petitioners are members of a Society, who had approached the Arbitration Court against the election conducted on 5.12.2013 to the 12[th] respondent/Society. The brief facts required for the disposal of this writ petition is that a valid election was scheduled on 5.12.2013 and respondents 1 to 9 along with two others were declared elected. The election was an undisputed one since there were only 11 valid nominations in an election to a Managing Committee of eleven. Later on, the petitioners, along with three other members, approached the Arbitration Court with an Election Petition under Section 69 of the Kerala Co-operative Societies Act, 1969. The same was numbered as ARC 4/2011. Though the party respondents herein appeared before the Arbitration Court and also filed preliminary objection, later on, they failed to appear and they were declared _ex-parte_ . Strangely enough the Returning Officer was included as the defendant in the Arbitration Case and he too was **WP(C).28681/13** 2 declared _ex-parte._ One of the plaintiffs having been examined as PW1, the Court considered the evidence on record and allowed the Election Petition declaring the election of nine members of the Committee of eleven, to be invalid. 2. In fact, the main contention raised against the election was the inclusion of 127 members as per the resolution passed by the erstwhile Managing Committee on 4.6.2010. While the petitioners/plaintiffs contended that there was no quorum when such a resolution was passed, the respondents 1 to 9 asserted that there was a valid quorum in that meeting. In any event, this Court is not called upon to go into that controversy at this point of time. It is also to be noticed that the election itself was uncontested and without polling and the inclusion or exclusion of members in the voters list is of no avail. When an _ex-parte_ Award was passed declaring election of respondents 1 to 9 as invalid, the Committee was superceded and an Administrative Committee was appointed by the Department. Respondents 1 to 9 were before this Court challenging the _ex-parte_ Award. This Court by judgment dated 2.8.2013 in W.P.(C).19098/2013 **WP(C).28681/13** 3 refused to interfere with the supercession, however left open the remedies available to respondents 1 to 9. Respondents 1 to 9 chose to file an appeal before the Tribunal. The Tribunal after hearing the parties, remanded the matter to the Arbitration Court. Such order of remand is assailed, as being without authority. 3. The learned counsel for the petitioners would contend that respondents 1 to 9 had three remedies against the _ex-parte_ order, being a review, an application to set aside the _ex-parte_ Award or an appeal on merits. The party respondents availed of the remedy of an appeal on merits, in which the order declaring the defendants _ex parte_ was not challenged. It is also the contention that they could not have and they have not; challenged it in an appeal. In the context of there being no such challenge, it should be inferred that they have no further evidence to lead before the Court below and on such inference, the Tribunal should have proceeded with the hearing of the appeal and ought to have appreciated the sustainability of the Award on the basis of the evidence on record. The order of **WP(C).28681/13** 4 remand especially when the respondents do not seek for setting aside the _ex-parte_ order or for adducing fresh evidence is not sustainable, is the contention. 4. The learned counsel for the respondents however, would raise a preliminary objection insofar as the Election Petition itself being not maintainable for not having impleaded all the members in the Managing Committee. It is also contended that the Returning Officer is a witness who could be summoned to substantiate the defence and the fact that the Returning Officer was impleaded as a defendant itself would show the _mala fides_ in the conduct of the petitioners/plaintiffs. The counsel for the respondent also would rely on Ext.R1(d) judgment to contend that in fact the remedy available to the party respondents was left open and respondents chose to file an appeal before the Tribunal and the Tribunal, after looking at the manner in which the Arbitration Court had proceeded, rightly remanded the matter to the Arbitration Court. 5. Definitely, as the learned counsel for the petitioners **WP(C).28681/13** 5 submitted, the defendants before the Arbitration Court could have availed of any of the remedies and they chose to avail of the appellate remedy, that too after having first approached this Court on the threat of supercession. The supercession itself was not interfered with by this Court for reason of the Court having found it not necessary to interfere with the same under Article 226 of the Constitution of India; since the supercession had already taken effect. While dismissing the writ petition filed against the order of supercession, this Court had specifically noticed that the defendants have an efficacious statutory remedy under Ext.P12 and also noticed the contention of the defendants that they had approached this Court only on the threat of supercession and that the time for instituting an appeal had not expired. Recording of the specific averment would only indicate that the Court did not wish at all, to interfere with the statutory remedies available to the petitioners. The statutory remedy was invoked and the matter was remanded to the Arbitration Court. 6. What the petitioners urge is that the party respondents **WP(C).28681/13** 6 could have filed an application before the Arbitration Court to set aside the _ex-parte_ order. A pre-emptive argument is also made that the mere fact that the absence of a provision conferring power on the Arbitration Court to set aside an _ex parte_ Award is no defence since it is trite that a Court which has power to do something also has the power to undo it. Reliance is placed on **Grindlays Bank Ltd., Central Government Industrial Tribunal and Others (1980 (Suppl).SCC 420)** and **Radhakrishna Mani Tripathi v. L.H. Patel & Another (2009 (2) SCC 81).** The defendants having not chosen to file such an application and the ex parte declaration, as such, having not been challenged; the Tribunal being the appellate authority ought to have considered the merits of the matter and not merely remanded the matter. In support reliance is placed on **Bhanu Kuman Jain v. Archana Kumar and Another (2005 (1) SCC 787)** . On the strength of **Sugunan v. Joseph (2009 (1) KLT 160)** it is contended that the appellate Court cannot remand a matter merely for enabling evidence to be led. **WP(C).28681/13** 7 7. **Bhanu Kuman Jain** (supra) dealt with the remedies available against an ex parte decree; being the ones available under Order 9 Rule 13, an application to set aside the order and under Section 96(2); an appeal. It is argued that in appeal under Section 96 the appellant could challenge the decree on merits and also challenge the order setting the appellant _ex-parte._ Again the argument is that there is no challenge against the order setting the respondents _ex-parte_ . Before looking at the facts, it has to be noticed that the Supreme Court was concerned with a simultaneous invocation of the remedies. It was declared that the right of appeal conferred upon a party, statutorily, cannot be taken away. The Court held so in paragraph 37 and 38 :- 37. We have, however, no doubt in our mind that when an application under Order 9 Rule 13 of the Code is dismissed, the defendant can only avail a remedy available there against viz., to prefer an appeal in terms of Order 43 Rule 1 of the Code. Once such an appeal is dismissed, the appellant cannot raise the same contention in the first appeal. If it be held that such a contention can be raised both in the first appeal as also in the proceedings arising from an application under Order 9 Rule 13, it may lead to conflict of decisions which is not **WP(C).28681/13** 8 ## contemplated in law. 38. The dichotomy, in out opinion, can be resolved by holding that whereas the defendant would not be permitted to raise a contention as regards the correctness or otherwise of the order posting the suit for ex parte hearing by the trial court and/or existence of a sufficient case for non-appearance of the defendant before it, it would be open to him to argue in the first appeal filed by him under Section 96(2) of the Code on the merits of the suit so as to enable him to contend that the materials brought on record by the plaintiffs were not sufficient for passing a decree in his favour or the suit was otherwise not maintainable. Lack of jurisdiction of the court can also be a possible plea in such an appeal. 8. In the instant case admittedly no application to set aside _ex-parte_ order was filed. Hence the defendants would be entitled to file a first appeal challenging the merits as also the _ex-parte_ order. The challenge against the latter order is not maintainable, only if it had been challenged Order 9 Rule 13 and carried forward in an appeal under Order 43 Rule 7 of the CPC. **Brijitha v. Kuttiyamma (2012 (1) KLT 661)** was also a case in which an application to set aside the ex-parte order was filed and dismissed and later, the judgment and decree were challenged in first appeal. That would not be applicable herein. **WP(C).28681/13** 9 9. It is to be noticed that in passing the _ex-parte_ Award the fact that the Returning Officer remained _ex-parte_ considerably weighed with the Arbitration Court. The election procedure was alleged to have been carried on without compliance of the provisions of the Act and Rules, and the Arbitration Court peremptorily accepted the contention of the petitioners without the evidence of the Returning Officer and without verifying as to whether in fact, a draft voters list and final list was published and there was a valid publication of the results. The defendants before the Arbitration Court had raised two preliminary objections one, the non-impleadment of all the members of the Committee and the other, the finding of the Registrar that the inclusion of 127 members were proper. They also took up a contention that the documents produced does not reveal any irregularity in the enrolment of members or in the manner in which the elections were carried on. The procedural irregularity, it was urged, could have been ascertained only by summoning the Returning Officer, who was admittedly made a defendant and declared ex-parte. **WP(C).28681/13** 10 10. Looking at the totality of the circumstances, curiously, the Returning Officer has been made a defendant before the Arbitration Court. The Returning Officer would have been a proper witness to be summoned to the Arbitration Court for giving evidence on how the election procedure was carried on. In fact, on a reading of Ext.P1, it is evident that the Returning Officer was not impleaded in his personal capacity and was impleaded as the Returning Officer, which position he would have vacated on the declaration of results. With respect to the election procedure carried on, there can be no better evidence than that of the Returning Officer and with respect to the resolution of 4.6.2010 necessarily it would be the duty of the respondents who are the defendants to adduce evidence as to its sustainability. 11. **Sugunan** (supra) is relied on to contend that a remand cannot be merely to enable the appellant to adduce evidence. The contention of the learned counsel that respondents 1 to 9 only intended retrial of the matter cannot be countenanced looking at the pleadings in the appeal or the **WP(C).28681/13** 11 impugned order Ext.P3. There can be no inference from the fact that no challenge was made against the _ex-parte_ order; that the defendants wanted no further evidence to be adduced. The evidence already led should substantiate the claim of the plaintiffs in the Arbitration Case. The Election Petition cannot be allowed merely because the respondents were absent before the Arbitration Court. The Tribunal found that the Arbitration Court had just done that. The peremptory finding of the Arbitration Court that the election was bad without properly appreciating the evidence has led to the matter being remanded. The Tribunal, correctly, found that the Arbitration Court could not have merely allowed the Election Petition for the reason only of the absence of the defendants and the Returning Officer, who also was made a defendant. Ext.P3 order of the Tribunal would further indicate that the Returning Officer had appeared before the Tribunal and had made a submission that he received no notice of the Election Petition. The records of the case was examined by the Tribunal and it was found that there is nothing in the records to show that a notice was, in fact, issued to the Returning Officer. The order of remand made by **WP(C).28681/13** 12 the Tribunal is perfectly in order; looking at the facts and circumstances detailed above. The Tribunal had remanded the matter for non-application of mind and lack of proper appreciation of the evidence. True, the Tribunal could have on such findings dismissed the election petition, which only would have prejudiced the petitioners. The order of remand, only comes to the aid of the petitioners and the present challenge made is found to be devoid of merit. This Court finds that under Article 226 of the Constitution of India, Ext.P3 order of the Tribunal, does not warrant interference. The parties shall appear before the Arbitration Court on 21.12.2013 as directed by the Tribunal. The Arbitration Court shall conclude the proceedings within two months from the date of such appearance. The writ petition is dismissed leaving the parties to suffer their costs. ## **Sd/-** **K.VINOD CHANDRAN, Judge** ## Mrcs