IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN TUESDAY, THE 17TH NOVEMBER 2009 / 26TH KARTHIKA 1931 WP(C).No. 32914 of 2009(H) -------------------------- PETITIONER(S): --------------- R.KUPPUSWAMY, INTUC OFFICE, NALLATHANNI ROAD, MUNNAR, MUNNAR P.O. BY ADVS. MR.N.K.SUBRAMANIAN MR.S.ANANTHAKRISHNAN RESPONDENT(S): --------------- 1. THE DEVIKULAM TALUK PLANTATION WORKERS CO-OPERATIVE CREDIT SOCIETY LTD. NO.K 382, DEVIKULAM, REPRESENTED BY ITS PRESIDENT/SECRETARY. 2. CO-OPERATIVE TRIBUNAL, THIRUVANANTHAPURAM. 3. ARBITRATOR/ASSISTANT REGISTRAR OF CO-OPERATIVE SOCIETIES (GENERAL), DEVIKULAM, MUNNAR. BY SR. GOVERNMENT PLEADER MR. K.C.SANTHOSH KUMAR THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 17/11/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: S. SIRI JAGAN, J ............................................... W.P(C) No. 32914 of 2009 ................................................. Dated this the 17th day of November, 2009 J U D G M E N T The petitioner was a former President of the 1st respondent Co-operative Society. On the allegation that the petitioner has drawn honorarium from the society in excess of his entitlement as per the orders and circulars issued by the Registrar of Co-operative societies, a petition under Section 69 of the Kerala Co-operative Societies Act was filed by the 1st respondent society against the petitioner for recovery of the alleged excess amount. In that proceedings the society was represented by the former Honorary Secretary, who was disqualified from functioning as Secretary by order of the competent authorities including this court. Therefore it was found that at the time when the petition was filed, he was not competent to verify the plaint. Therefore the society filed an application to substitute the name of the Secretary by that of the present Secretary as representing the society in those proceedings. That was dismissed by the Arbitrator and Arbitrator dismissed the arbitration case itself with liberty to file a fresh one. The petitioner society challenged the same before the Tribunal and by Ext.P1 W.P(C) No. 32914 of 2009 -2- order the Tribunal allowed the appeal and permitted substitution of the name of the Secretary in the plaint by that of the present Secretary. That order is under challenge before me. 2. According to the petitioner, the Tribunal erred in holding that the provisions of order XXX of the Code of Civil Procedure is applicable to such proceedings. According to the petitioner, under Section 98 of the Kerala Co-operative Societies Act certain provisions of the Civil Procedure Code only are made applicable to proceedings under S.69, which does not include the provisions relied upon by the Tribunal to allow the appeal filed by the society. He relies on the decisions of the Supreme Court in New India Assurance Company Ltd. v. Srinivasan [2000(2) KLT 462 (SC)] as well as that of this court in Kumar v. Bincy [2009(1) KLT 544] for the proposition that when the Act provides that only certain provisions of the Civil Procedure Code are applicable to proceedings under that Act other provisions cannot be invoked to give relief to the parties in the proceedings under the Act. 3. I have considered the arguments of the learned Counsel for the petitioner. 4. I am of opinion that the petitioner is too hyper-technical in his contentions. The very object of Section 69 is to make recovery W.P(C) No. 32914 of 2009 -3- of amounts due to a society easier and the legislature has by Section 100 of the Kerala Co-operative Societies Act barred jurisdiction of the Civil Court in the matter. Therefore the arbitrator under Section 69 of the Kerala Co-operative Societies Act is basically exercising powers of the Civil Court. Therefore in matters for which no provision is made in the Act, the arbitrator can follow established principles of procedure which can include those emerging from the Code of Civil Procedure although those provisions as such are not applicable. In fact this has been so held by this court in the Division Bench decision in Jacob Varkey v. Idukki District Co-operative Bank Ltd. [2001(2) KLT 77] wherein paragraphs 10-14 this court held thus: “ 10. S. 98 of the Act provides as already seen that the Tribunal, Registrar, Arbitrator or the Liquidator has certain powers of a Civil Court enumerated under sub-ss. (a) to (d) while trying a suit under the Code of Civil Procedure. The contention is that only in respect of those enumerated matters the power extends and not beyond. We are unable to accept the above contention. The very purpose of the disputes redressal contemplated under the Act would be defeated if such a narrow interpretation is given to the Section. It is to be noted that under S. 100 of the Act “no civil or revenue court shall have any jurisdiction in respect of any matter for which provision is made in this Act”. As can be seen from the instant case there is provision under the Act so far as the Bank is concerned for realising the money already advanced to the first appellant and others. The Bank is W.P(C) No. 32914 of 2009 -4- entitled to take recourse to only that system and that such a mechanism of dispute redressal cannot be defeated by a narrow interpretation regarding the jurisdiction conferred on the system for redressal of the dispute. After all as held by the Apex Court in the decision reported in Gujarat Steel Tubes Ltd. v. Gujarat Steel Tubes Mazdoor Sabha, AIR 1980 SC 1896, “a Tribunal is merely a seat of justice or a judicial body with jurisdiction to render justice”. 11. M.P. Menon, J. succinctly dealt with the purpose of the administration of justice through tribunals in the decision in Cheru Ouseph v. Kunhipathumma, 1981 KLT 495. Paragraphs 7 and 12 of the said judgment are particularly relevant in this context: “7. Two or three important things follow from what has been seen so far. First, the administration of justice, or at any rate, a substantial part of it is now patterned in a manner different from what it was some half a century ago. Second, the special tribunals which constitute the core of this new pattern are exercising judicial functions inherent in the sovereign State. Third, the powers exercised by them are in many cases indistinguishable in content from those exercised by courts of justice. Further, exercise of such powers by them is vital to the citizen despite the supervisory powers of superior courts over such exercise. If this be the true position, the reality which cannot be overlooked from the functional point of view, how are we to proceed in delimiting the powers of these bodies in matters of procedure, at least in areas not directly covered by statutes? xxx xxx xxx W.P(C) No. 32914 of 2009 -5- 12. What, after all, is the inherent power saved by S. 151 of the Code of Civil Procedure? A Court is constituted for doing justice and must be deemed to possess all powers as may be necessary to do the right and undo wrongs in the course of administration of justice. Of course, the Court must have jurisdiction over the proceedings before it can exercise the inherent power; but when that is granted, its power to advance the cause of justice by relying on unenumerated powers - on inherent or residuary power, as it is often called - cannot be denied to it. And therefore, where a tribunal exercises the same kind of power i.e., part of the judicial power of the State, as the Supreme Court has observed, why should it be denied similar inherent or residuary powers? If you do not like the name, call it by another; but so long as the tribunal is deciding legal disputes and determining the rights of citizens as any other court, you cannot, without endangering its efficiency, deny to it all powers which are necessary for the administration of justice. This is not to convert every tribunal into a tyrant, but only to recognise the reality that tribunals have come to stay as instruments of administration of justice, and that occasions may arise where they too will have to step into areas unchartered by the statute and the rules, in the interests of justice. If a tribunal goes out of its way in the fullness of its powers, the superior courts are there to correct it, as noticed by Allen; and as also observed by him, the first adjudication is more important to the litigant than the last”. This principle was approved by a Bench decision of this Court in Gopalan Bhavani v. Raghavan Aravindakshan, 1989 (2) KLT 118 wherein it is held at paragraph 6 as follows: “6. The position that emerges from these situations is that the Tribunal, if not conferred with specific power to dismiss an application for default and to restore the application W.P(C) No. 32914 of 2009 -6- dismissed for default, has no power to dismiss an application for default or to restore an application dismissed for default. Naturally, this would pose another question as to what has to be done with an application, which has not been prosecuted by the applicant. This expediency, in our view, should not force the court to boggle or equivocate its interpretive function. We feel that it is irrational for a court to hold the absence of specific provisions in the statutes that the Tribunal has got only the power to dismiss an application for default and has no power to restore an application dismissed for default.” 12. The question again came up for consideration in the background of the Kerala Buildings (Lease & Rent Control) Act, 1965 by a Bench of this Court in the decision reported in Ebrahim Ismail Kunju v. Phasila Beevi, 1991 (1) KLT 861. It is profitable to refer to paragraphs 3 and 5 of the said judgment: “3. There is a larger contention urged on behalf of the revision petitioner. That is about the absence of an enumerated power of the Rent Controller in permitting joint trial of the cases. It does not appeal to us. A narrower approach to the Act will prompt an authority to search the limited space of the statute and its scheme to find out an enabling power in relation to the joinder of trials. Such a narrow approach does not commend over itself for our acceptance. A recent decision of the Supreme Court in M/s. Babu Ram Ram Gopal v. Mathura Dass & Ors., JT 1990 (3) SC 25, has emphasised the message underlying this socially benevolent legislation intended to relieve the weakest sections of the society. In this connection, we would like to express our reservations in relation to many of the wide observations as contained in Kochappan Pillai v. Chellappan, 1976 KLT 1. Some of the findings have already become inoperative by the supersession of the views by those of the W.P(C) No. 32914 of 2009 -7- Supreme Court. As for example, the view that the Rent Controller cannot take note of the subsequent events. This was held to be an unsustainable proposition by the Supreme Court. We may also refer to the discussion on furnishing negative evidence as yet another area which appears to us to be unsound in law. So too is the view expressed there on thequestion of pleadings. We are not unaware of a recent Division Bench decision in Narayani & Anr. v. District Judge, 1991 (1) KLT 646 = 1991 (1) KLJ 311 which has followed 1976 KLT 1 supra, and over-ruled Rangaier Sons (P) Ltd. v. Rukhiyabi, 1982 KLT 658. With great respect, it has to be pointed out that some of the larger aspects have been discussed at greater length by Viswanatha Iyer, J. in C.R.P. No. 841 of 1978 and by the decision in 1982 KLT 658 supra. This trend is seen adopted by Padmanabhan, J. in Achamma v. Sankaran Nair, 1990 (1) KLT SN 26, Case No. 27 as well. Experience over the years would indicate that insistence on the adequacy of pleadings made in 1982 KLT 658 supra and other decisions, had disciplined the proceedings before the Rent Control Authorities. xxx xxx xxx 5. The increasing importance of the Tribunals in the vast changing life of the community cannot be ignored by a modern court. A modern ostrich even in the distant deserts may not make such limited use of its eyes. Many valuable rights of the modern citizen are deeply involved with the adjudicator, processes of the Tribunals. Many areas hitherto occupied by courts, are now the domains of the Tribunals. A liberal approach towards their functioning and a larger view about the powers they need, are the requirements of the times. A Tribunal should be facilitated to do all that a court could do in similar situations; and much more than that. Greater speed and a total liberation from the tentacles of technicalities, W.P(C) No. 32914 of 2009 -8- give a better look and greater efficiency for effectively manned Tribunals. If there be no statutory prohibition, the Tribunal should therefore normally be in a position to ordain its affairs and modulate its procedures in such a manner as to best subserve the interest of the public, and in particular the litigant public. Looked that way, even in the absence of an enumerated head of statutory power on the conjoint reading of S. 23 and the enumerated provisions of the C.P.C. referred to in that section, would have permitted the Tribunal to pass an order which would better serve the interest of the litigant and of the Tribunal. However, the Rent Controller and the Appellate Authority should be circumspect in the invocation of the power and in the issue of an order invoking such a jurisdiction”. 13. Referring to the position of the dispute redressal by the Registrar in the background of the Bihar and Orissa Co- operative Societies Act the Apex Court in the decision reported in Jugal Kishore v. Sitamarhi Central Co-op. Bank, AIR 1967 SC 1494, has held that the Registrar in such exercise has not merely the trappings of a court but he is given the same powers as are given to ordinary civil courts. At paragraph 11 of the said judgment it is held as follows: “11. It will be noted from the above that the jurisdiction of the ordinary civil and revenue courts of the land is ousted under S. 57 of the Act in case of disputes which fell under S. 48. A Registrar exercising powers under S. 48 must, therefore, be held to discharge the duties which would otherwise have fallen on the ordinary civil and revenue Courts of the land. The Registrar has not merely the trappings of a Court but in many respects he is given the same powers as are given to ordinary civil courts of the land by the Code of Civil Procedure including the power to summon and examine witnesses on oath, the power to order inspection of W.P(C) No. 32914 of 2009 -9- documents, to hear the parties after framing issues, to review his own order and even exercise the inherent jurisdiction of Courts mentioned in S. 151 of the Code of Civil Procedure. In such a case there is no difficulty in holding that in adjudicating upon a dispute referred under S. 48 of the Act, the Registrar is to all intents and purposes, a Court discharging the same functions and duties in the same manner as a Court of law is expected to do.” 14. It may be seen that in the instant case also essentially the functions of the Arbitrator under the Act is that of an ordinary civil court in deciding a suit. The decision in a suit does not mean merely the final decision. It takes in also the entire stages leading to the decision. Thus the Arbitrator in the instant case is fully justified in passing the impugned order granting liberty to withdraw the suit and file a fresh suit after impleading necessary parties. It is significant to note that none of the statutory rights of the appellants/defendants is in any way affected in the process..” As far as the decisions relied upon by the petitioner are concerned, they are in respect of proceedings under the Consumer Protection Act wherein the provisions are not comparable to those in the Kerala Co-operative Societies Act. Further under the Consumer Protection Act, detailed procedure is prescribed for consideration of petitions before the Consumer Disputes Redressel Forum. Therefore, the decisions relied upon by the petitioner cannot be applied to the facts of this case. In any event the petitioner is not in any way prejudiced by the order impugned. For W.P(C) No. 32914 of 2009 -10- all the above reasons, I am not inclined to exercise my discretionary jurisdiction under Article 226 of the Constitution of India and accordingly the writ petition is dismissed. S. SIRI JAGAN, JUDGE rhs