HON’BLE Dr. JUSTICE G. YETHIRAJULU W.P.Nos.26777 and 27098 of 1996 Dated this the 6th day of February, 2008 W.P.No.26777 of 1996: Between: The Jubilee Hills Cooperative House Building Society Ltd., Jubilee Hills, Hyderabad, Rep.by its Secretary C.V. Rao …. Petitioner AND R.K. Gonela and others …. Respondents W.P.No.27098 of 1996: Between: The Jubilee Hills Cooperative House Building Society Ltd., Jubilee Hills, Hyderabad, Rep.by its Secretary C.V. Rao …. Petitioner AND G. Renu Gonela and others …. Respondents HON’BLE Dr. JUSTICE G. YETHIRAJULU W.P.No.26777 of 1996 COMMON ORDER: These Writ Petitions have been filed by the Jubilee Hills Co-operative House Building Society Limited, Hyderabad, seeking to quash the award of the second respondent-Deputy Registrar of Cooperative Societies, Hyderabad, in A.R.C.Nos.80 and 82 of 1993, dated 30.12.1994, which was confirmed by the third respondent- Cooperative Tribunal, Hyderabad, in C.T.A.Nos.28 of 1995, dated 30.08.1995. 2) The petitioner is a Cooperative House Building Society. The first respondent in both the writ petitions claimed that as they are members of the petitioner-society, they are entitled for house sites on par with other members. The petitioner-society has been contending that the said respondents have not submitted any applications and the earlier applications filed by them were withdrawn voluntarily by taking refund of the membership fee and they managed to get a certificate from the erstwhile president of the society to the effect that he received the applications of the first respondent in both the writ petitions and forwarded them to the secretary for the purpose of making necessary entries. 3) It is assertion of the petitioner-society that no applications were given, no applications were traced and no demand drafts were also encashed and it is only a vague statement given by the president that he might have received the applications and forwarded them to the secretary for the said purpose. When the matter came up for enquiry, some witnesses were examined by the first respondent in both the writ petitions, but the second respondent did not give any opportunity to cross examine the witnesses and the applications filed by the petitioner-society requesting to permit them to cross examine the witnesses were also dismissed and the cases were allowed in favour of the first respondent in both the writ petitions. Being aggrieved by the same, the petitioner-society preferred appeals before the Co- operative Tribunal at Hyderabad through C.T.A.Nos.28 and 29 of 1995. 4) The Co-operative Tribunal while holding that no opportunity was given to the petitioner-society to cross-examine the witnesses made the following observations. “It is a fact that the arbitrator’s proceedings are summary proceedings, but wherever necessary and wherever it is required, the evidence Act and Civil Procedure Code have to be applied. The Arbitrator while setting the dispute is expected to record a brief note of evidence of both parties. Thus when the Arbitrator is required to record evidence he is bound to record the evidence in chief examination, cross-examination and re-examination. The only evidence of a witness is said to be completed. In the instant case, the Arbitrator has only examined the petitioner in chief examination. The Arbitrator did not give opportunity to cross-examine this witness in spite of the request by the appellant/society. Subsequently the appellant society also filed application to direct this witness to face the cross-examination and the said application was dismissed. Evidence, as contemplated in Evidence Act includes chief examination, cross-examination and re-examination. If the witness was not permitted to be cross-examined such evidence cannot be taken into consideration as the evidence of that witness. In this regard the counsel for the appellant cited a decision APR 1957 Madha Bharat at Page 55. In the above citation it is clearly held that if the court debars the opponent party to cross-examine the witness and the same amounts to illegality. Likewise, some other decisions were also produces before the Arbitrator by the learned counsel for the appellant. I too concur with the contention of the learned counsel for the appellant that the Arbitrator ought to have given an opportunity to the appellant to cross-examine the witness in this regard.” 5) I concur with the view expressed by the learned counsel for the petitioner-society that the arbitrator ought to have given an opportunity to the petitioner-society to cross-examine the witnesses in this regard. By making the above said observations, the Cooperative Tribunal further held as follows: “But on the face of the record it is evident that the application sent by the first respondent and his daughter were received by the President. It is also an undisputed fact that both of them also sent requisite DDs along with their applications. The contention of the appellant that they were not sent to the office by the President cannot be accepted. Nextly, the contention that the applications were sent in personal capacity to the President also cannot be accepted. Nextly, the contention of the appellant that the amounts alleged to have sent through DDs were not found in the records also cannot be accepted. If the DDs sent to the Society were not encashed by the Society it is only the mistake and default of the society and the same has nothing to do with the petitioners. Further, the society also did not take any steps for producing the records before the Arbitrator to establish their case. Hence, in such circumstances when it has been clearly established that the applications for admission as Members and also the necessary DDs were received by the society through their President and when it is also established that even after 60 days or so no reply was given to the appellants by the society, practically there is no case on behalf of the appellants to put forward.” 6) Whenever any disputed documents are relied on the validity or otherwise of those documents, it will be decided through oral evidence by way of adducing the chief examination and giving opportunity to the other side to cross-examine the witnesses. The Co- operative Tribunal having observed that sufficient opportunity was not given to the petitioner-society to cross-examine the witnesses dismissed the appeals by relying that the disputed documents are not in accordance with the principles of natural justice and the procedure established under law. 7) In view of the above circumstances, I am of the view that the error committed by the Tribunals can be corrected by giving opportunity to the petitioner-society to cross-examine the witnesses and that is possible only by remanding the matter to the second respondent by setting aside the orders passed by both the second and third respondents. 8) Accordingly, both the Writ Petitions are allowed and the order of the third respondent-Co-operative Tribunal and the order of the second respondent-Deputy Registrar of Co-operative Societies/Arbitrator (Housing) are set aside. The matter shall be remitted back to the second respondent and the second respondent is directed to restore the matter to its original file and give an opportunity to both parties to adduce the evidence, if any, and after giving opportunity to the petitioner-society to cross-examine the witnesses examined by the first respondent in both the writ petitions, the second respondent shall pass appropriate orders according to law. No order as to costs. __________________ Dr.G. YETHIRAJULU, J Date: 06.02.2008 Isn