OP(C) No. 2493 of 2014 (O)

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** ## **THE HONOURABLE MR.JUSTICE P.BHAVADASAN** **TUESDAY, THE 9TH DAY OF DECEMBER 2014/18TH AGRAHAYANA, 1936** ## **OP(C).No. 2493 of 2014 (O)** ## **-------------------------------------** **ARC NO.44/2012 BEFORE THE CO-OPERATIVE ARBITRATION COURT, NORTHERN KOZHIKODE** **.....** **PETITIONER(S)/DEFENDANTS 2 TO 4 AND 6 TO 10 AND 15:** **-----------------------------------------------------------------------------------** **1. M.P.ABDUL MAJEED, AGED 49, S/O MAMMU, MANDENKANDI PUTHIYAPURAYIL, P.O. KANHIRODE, KANNUR DISTRICT.** **2. M.P.C. HAMSA, AGED 60, S/O MUHAMMEDALI, M.P.C. HOUSE, P.O.KANHIRODE, KANNUR DISTRICT.** **3. M. KUMARAN, AGED 62, S/O KANNAN, KALAPURAYIL HOUSE, P.O.KANHIRODE, KANNUR DISTRICT.** **4. M.A. UTHAMAN, AGED 54, S/O BAPPU, EDAPPARA HOUSE, P.O.KANHIRODE, KANNUR DISTRICT.** **5. K. LALITHA, AGED 62, D/O RAVUNNI, LEENALAYAM, P.O.KANHIRODE, KANNUR DISTRICT.** **6. C.P RAMANI, AGED 55, W/O PURUSHOTHAMAN, JISHA NIVAS, P.O.KANHIRODE, KANNUR DISTRICT.** **7. T.K. SHAHARBAN, AGED 42, W/O ABDULLA, IDUKKILAKATH, P.O.KANHIRODE, KANNUR DISTRICT.** **8. A.P FALGUNAN, AGED 55, S/O RAMAN, SARAVANA, P.O.KANHIRODE, KANNUR DISTRICT.** **9. KANHIRODE KSHEEROLPADAKA SAHAKARANA SANGHAM LTD NO. C 113 (D), P.O. KANHIRODE, KANNUR DISTRICT, REPRESENTED BY ITS SECRETARY** ## **BY ADV. SRI.P.U.SHAILAJAN** **msv/** **-2-** **-2-** ## **OP(C).No. 2493 of 2014 (O)** **--------------------------------------** ## **RESPONDENT(S)/PLAINTIFF & DEFENDANTS 1 AND 11 TO 14:** - **----------------------------------------------------------------------------------------** **1. K.MANOHARAN,, AGED 53,** - **S/O KUNHIRAMAN, KAVUNKAL HOUSE, THALAMUNDA, P.O.KANHIRODE, KANNUR DISTRICT - 670592.** **2. O. ASOKAN, AGED 51,** - **S/O ANITHAN, SHIMALAYAM, P.O.KANHIRODE, KANNUR DISTRICT - 670592.** **3. B.P KRISHNAN,, AGED 75,** - **S/O RAMAN, KANDATHIL HOUSE, P.O.KANHIRODE, KANNUR DISTRICT - 670592.** **4. PALLIKKAL MAMMU,, AGED 60, S/O MAMMALI, PALLIKKAL HOUSE, P.O.KANHIRODE, KANNUR DISTRICT - 670592.** **5. P.P. NALINI, AGED 65,** - **W/O KUNJIRAMAN, PUTHENPURAYIL HOUSE, P.O.KANHIRODE, KANNUR DISTRICT - 670592.** **6. CO-OPERATIVE ARBITRATION COURT (NORTHERN), KOZHIKODE, HOUSEFED COMPLEX, 5TH FLOOR, SASTHRI NAGAR ROAD, ERATHIPALAM P.O., KOZHIKODE - 673001.** **R1, R2, R4 & R5 BY ADVS. SRI.K.P.SREEKUMAR** **SRI.P.M.SATHEESH** **THIS OP (CIVIL) HAVING BEEN FINALLY HEARD ON 09-12-2014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **msv/** ## **OP(C).No. 2493 of 2014 (O)** **--------------------------------------** ## **APPENDIX** ## **PETITIONER(S)' EXHIBITS** ## **-------------------------------------** ## **EXHIBIT P1: TRUE COPY OF THE PLAINT IN ARC 44/2012 ON THE FILE OF THE CO-OPERATIVE ARBITRATION COURT, (NORTHERN) KOZHIKODE.** **EXHIBIT P2: TRUE COPY OF THE WRITTEN STATELEMTN FILED BY THE DEFENDANTS 2 TO 9 AND 15 IN ARC 44/2012.** - **EXHIBIT P3: TRUE COPY OF THE DOCUMENT LIST SUBMITTED BY THE DEFENDANTS 2 TO 9 IN 15 IN ARC 44/2012.** - **EXHIBIT P4: TRUE COPY OF THE REJOINDER SUBMITTED BY THE PLAINTIFF IN ARC 44/2012.** **EXHIBIT P5: TRUE COPY OF THE CHIEF AFFIDAVIT OF THE PLAINTIFF IN ARC 44/2012.** **EXHIBIT P6: TRUE COPY OF THE PETITION AND AFFIDAVIT IN I.A NO 123/2014 IN ARC 44/2012.** ## **RESPONDENT(S)' EXHIBITS:** **-----------------------------------------** ## **NIL** ## **//TRUE COPY//** ## **P.S.TO JUDGE.** Ms **v/** ## **P.BHAVADASAN, J.** - - - - - - - - - - - - - - - - - - - - - - - - ## O.P.(C) No. 2493 of 2014 - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 09[th] day of December, 2014 ## **J U D G M E N T** This is a petition filed under Article 227 of the Constitution of India seeking transfer of ARC NO. 44/2012 pending before the Co-operative Arbitration Court, Kozhikode to the Co-operative Arbitration Court, Thiruvananthapuram. 2. The election to the 9[th] respondent society was conducted on 16.08.2012. Challenging that election, the petition was laid on 07.09.2012. During the course of trial, it so happened that the petitioners before the Tribunal called upon the society to produce two documents. The same was produced and the relevant entries were marked from the side of the petitioners as Exts. P7 and P8. Thereafter, the petitioner seems to have moved Ext.P6 petition praying to the Arbitration Court to issue a Commission to seize the Compulsory Savings Scheme Account Book which according ## **O.P.(C) No. 2493 of 2014** **-2-** to the petitioner, is maintained by the society to show that the entries in the two registers produced by the society are false. 3. It is not in dispute that when the petition was taken up in the first instance, notice was given to the petitioners herein and the case was posted to 06.11.2012. Later in the day, it so happened that the court _suo motu_ took up the matter and passed an order directing issuance of a Commission and also directing the Commissioner to seize the documents sought for without issuing notice to the other side. 4. The petitioners would say that they came to know about subsequent order only when the commissioner came to the office to seize the registers. 5. The learned counsel appearing for the petitioners highlighted two aspects which according to him, are sufficient to show that the court is considerably prejudiced against the petitioners herein and that they bonafide believe ## **O.P.(C) No. 2493 of 2014** **-3-** that they will not get justice at the hands of the court. They pointed out that registers which were got produced by direction to the society should have been marked by the petitioner in the Arbitration proceedings only as exhibits of the defence and not as evidence of petitioners. The second ground taken is that after having adjourned the petition for issuance of a Commission to 06.11.2012, it was quite improper on the part of the Arbitration Court to have taken up the petition in the absence of the petitioners herein and passed an order directing seizure of the documents. More so, no notice needs to be given to the petitioners herein. 6. It is pointed out by the learned counsel for the petitioners that the above two aspects are sufficient to show that the petitioners feels that they will not get justice from the Arbitration court and if that be so, relying on the decision reported in **Rev. Fr. Punnen Thomas and Another** v. **Moran Mar Bassalios and Others** [1963 KHC 360], it is contended that it is only proper that the matter be ## **O.P.(C) No. 2493 of 2014** **-4-** transferred to another court. According to the learned counsel, by doing so, no prejudice is caused to the respondents herein. It is also highlighted that Ext.P6 order was passed after the evidence of the petitioners had been closed. Accordingly, it is contended that the matter may not be allowed to be pursued by the Co-operative Arbitration Court at Kozhikode. 7. The learned counsel appearing for the respondents pointed out that there is no basis for the above contentions and this is only a method adopted to see that the matter gets dragged on so that the committee which has been illegally elected can continue in office for the full term. 8. As regards the first contention, the learned counsel pointed out that it is against all norms of marking of documents and law of evidence and even assuming that the documents were got produced by the petitioners before the court below, when the particular entry in those registers are marked as evidence on the part of the petitioners, it can be ## **O.P.(C) No. 2493 of 2014** **-5-** marked only as documents of the petitioners. The contention that it should have been marked as defence documents cannot be accepted. As regards the second contention, the learned counsel pointed out that at best or at worst, it could be said that act amounted to irregularity but that is far from saying that the court is biased. If the order is irregular, there are procedures known to law to get it set right and petition for transfer is not the remedy. 9. The learned counsel drew attention of this Court to the averments in Ext.P6 which is the basis for ordering the issuance of a Commission and seizure of the documents. 10. After having heard the learned counsel on both sides, and after having gone through the records, there seems to be little merit in the petition. 11. The first of the contentions regarding the marking of documents is devoid of merits. The dispute did arise regarding the membership in the society and it was in that context that the petitioners before the court below had to ## **O.P.(C) No. 2493 of 2014** **-6-** summon the registers kept by the society. It was as a part of their evidence that they sought for the documents. The mere fact that the society was called upon to produce the documents does not mean that when the petitioners adduced evidence in support of their case, as a document of their own it should be marked defence evidence. The Civil Rules and Practice say that a document marked on the side of the petitioner can be marked only as A series. It must be remembered that the petitioners before the court below were adducing evidence in support of their case and they relied on certain entries in the register. It can be marked only as their document. So the first contention has no basis. As far as the second contention is concerned, one has to necessarily refer to the averments in the petition for issuance of a Commission. Paragraph 2 of the affidavit is very eloquent in this regard which reads as follows: “2. In the above case I have challenged the validity of election on various grounds. One of **-7-** ## **O.P.(C) No. 2493 of 2014** the reasons for filing the case is that there are in eligible voters in the final list of voters. So in order to prove the said aspects Producers Ledger and Milk Dues Ledgers were produced on the application filed by me and I have examined the clerk of the defendant society on the last hearing date so as to substantiate the allegations with reference to the above ledgers. The clerk who was examined as PW2 deposed that the producers ledger and milk dues ledger produced by the 15[th] defendant are not the original ledgers kept in the office but a concocted ledgers for the purpose of the case. It is submitted that the 15[th] defendant society is keeping COMPULSORY SAVING SCHEME ACCOUNT BOOK and if this account book is cross checked with the Producers Ledger and Milk Dues ledger it can be seen that the Producers Ledger and Milk Dues Ledger produced before this Hon'ble Court are concocted documents and the defendants No.2 to 10 were not qualified to contest in the election.” 12. The learned counsel appearing for the respondents pointed out that probably the court applied its mind at a later point of time and found merit in the petition and issued ## **O.P.(C) No. 2493 of 2014** **-8-** a Commission. In the affidavit the reasons had been given as to why immediate seizure of the document was necessary in the facts and circumstances of the case. 13. True, in the decision reported in **Rev. Fr. Punnen Thomas and Another** v. **Moran Mar Bassalios and Others** [1963 KHC 360], it was held that justice should not only be done but should also appear to have been done and if there are reasonable grounds for a party to apprehend bias on the part of the court concerned, it will be only appropriate for the court to transfer the case to another court for final disposal. 14. When one goes through the facts of the above case, it can be seen that there were several incidents highlighted before the court for seeking transfer. It was fairly conceded before the court that an incident by itself was not sufficient. But the cumulative effect of the various circumstances created a doubt of bias and that is sufficient. Though this Court was not inclined to accept the plea of ## **O.P.(C) No. 2493 of 2014** **-9-** bias, the court felt that in the facts and circumstances of the case, it may be appropriate to transfer the case to another court. 15. In the case on hand, the only incident which may cause apprehension is regarding the issuance of Commission. That could be as a result of the bonafide mistake also. It is here one has to appreciate the circumstances under which the petition was filed. A staff of the society who was keeping registers when produced, deposed before the court that registers produced are concocted one and the original documents have been replaced. It was in this context that the petitioners before the court below prayed for seizure of the documents by a Commission. 16. This is not to justify the act of the court below in having ordered a Commission in the absence of the petitioners before this Court especially when they were given the impression that the matter was being adjourned ## **O.P.(C) No. 2493 of 2014** **-10-** and stands posted to 06.11.2012. But that is far from saying that there was bias on the part of the court. It might be possible to presume that the petitioners before the court below later might have brought to the notice of the court the necessity for an urgent Commission and that might have persuaded the court below in passing the order of seizure. That by itself is not sufficient to warrant a conclusion that the court below is biased and that causes a reasonable apprehension that the petitioners will not get justice from the Arbitration Court at Kozhikode. 17. If such a yardstick is to be applied, it will be extremely difficult for any Tribunal or court to function. Remarks made, queries put or and any orders passed cannot be the criterion to determine bias nor are they sufficient to create a doubt in the mind of litigants about bias. One cannot afford to hold that such acts on the part of court are the criterion to asses bias. ## **O.P.(C) No. 2493 of 2014** **-11-** 18. For the above reasons, this Court finds no reason to transfer the case pending before the Co-Operative Arbitration Court Kozhikode to the Co-operative Arbitration Court, Thiruvananthapuram. This petition is devoid of merits and it is accordingly dismissed. Sd/- **P.BHAVADASAN JUDGE** ds //True copy// P.A. to Judge