R.KUPPUSWAMY v. THE DEVIKULAM

S. SIRI JAGAN, J...............................................W.P(C) No. 32914 of 2009.................................................Dated this the 17th day of November, 2009J U D G M E N TThe petitioner was a former President of the 1st respondentCo-operative Society. On the allegation that the petitioner hasdrawn honorarium from the society in excess of his entitlement asper the orders and circulars issued by the Registrar of Co-operativesocieties, a petition under Section 69 of the Kerala Co-operativeSocieties Act was filed by the 1st respondent society against thepetitioner for recovery of the alleged excess amount. In thatproceedings the society was represented by the former HonorarySecretary, who was disqualified from functioning as Secretary byorder of the competent authorities including this court. Thereforeit was found that at the time when the petition was filed, he wasnot competent to verify the plaint. Therefore the society filed anapplication to substitute the name of the Secretary by that of thepresent Secretary as representing the society in those proceedings.That was dismissed by the Arbitrator and Arbitrator dismissed thearbitration case itself with liberty to file a fresh one. The petitionersociety 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 ofthe name of the Secretary in the plaint by that of the presentSecretary. That order is under challenge before me. 2. According to the petitioner, the Tribunal erred in holdingthat the provisions of order XXX of the Code of Civil Procedure isapplicable to such proceedings. According to the petitioner, underSection 98 of the Kerala Co-operative Societies Act certainprovisions of the Civil Procedure Code only are made applicable toproceedings under S.69, which does not include the provisionsrelied upon by the Tribunal to allow the appeal filed by the society.He relies on the decisions of the Supreme Court in New IndiaAssurance 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 certainprovisions of the Civil Procedure Code are applicable toproceedings under that Act other provisions cannot be invoked togive relief to the parties in the proceedings under the Act.3. I have considered the arguments of the learned Counselfor the petitioner.4. I am of opinion that the petitioner is too hyper-technical inhis 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 bySection 100 of the Kerala Co-operative Societies Act barredjurisdiction of the Civil Court in the matter. Therefore thearbitrator under Section 69 of the Kerala Co-operative SocietiesAct is basically exercising powers of the Civil Court. Therefore inmatters for which no provision is made in the Act, the arbitratorcan follow established principles of procedure which can includethose emerging from the Code of Civil Procedure although thoseprovisions as such are not applicable. In fact this has been so heldby 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 thatthe Tribunal, Registrar, Arbitrator or the Liquidator hascertain 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 enumeratedmatters the power extends and not beyond. We are unable toaccept the above contention. The very purpose of thedisputes redressal contemplated under the Act would bedefeated if such a narrow interpretation is given to theSection. It is to be noted that under S. 100 of the Act “nocivil or revenue court shall have any jurisdiction in respect ofany matter for which provision is made in this Act”. As can beseen from the instant case there is provision under the Act sofar as the Bank is concerned for realising the money alreadyadvanced 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 amechanism of dispute redressal cannot be defeated by anarrow interpretation regarding the jurisdiction conferred onthe system for redressal of the dispute. After all as held bythe Apex Court in the decision reported in Gujarat SteelTubes Ltd. v. Gujarat Steel Tubes Mazdoor Sabha, AIR 1980SC 1896, “a Tribunal is merely a seat of justice or a judicialbody with jurisdiction to render justice”.11. M.P. Menon, J. succinctly dealt with the purpose of theadministration of justice through tribunals in the decision inCheru Ouseph v. Kunhipathumma, 1981 KLT 495. Paragraphs 7and 12 of the said judgment are particularly relevant in thiscontext:“7. Two or three important things follow from what has beenseen so far. First, the administration of justice, or at anyrate, a substantial part of it is now patterned in a mannerdifferent from what it was some half a century ago. Second,the special tribunals which constitute the core of this newpattern are exercising judicial functions inherent in thesovereign State. Third, the powers exercised by them are inmany cases indistinguishable in content from those exercisedby courts of justice. Further, exercise of such powers bythem is vital to the citizen despite the supervisory powers ofsuperior courts over such exercise. If this be the trueposition, the reality which cannot be overlooked from thefunctional point of view, how are we to proceed in delimitingthe powers of these bodies in matters of procedure, at leastin areas not directly covered by statutes?xxxxxxxxx W.P(C) No. 32914 of 2009-5-12. What, after all, is the inherent power saved by S. 151 ofthe Code of Civil Procedure? A Court is constituted for doingjustice and must be deemed to possess all powers as may benecessary to do the right and undo wrongs in the course ofadministration of justice. Of course, the Court must havejurisdiction over the proceedings before it can exercise theinherent power; but when that is granted, its power toadvance the cause of justice by relying on unenumeratedpowers - on inherent or residuary power, as it is often called -cannot be denied to it. And therefore, where a tribunalexercises the same kind of power i.e., part of the judicialpower of the State, as the Supreme Court has observed, whyshould it be denied similar inherent or residuary powers? Ifyou do not like the name, call it by another; but so long as thetribunal is deciding legal disputes and determining the rightsof citizens as any other court, you cannot, withoutendangering its efficiency, deny to it all powers which arenecessary for the administration of justice. This is not toconvert every tribunal into a tyrant, but only to recognise thereality that tribunals have come to stay as instruments ofadministration of justice, and that occasions may arise wherethey too will have to step into areas unchartered by thestatute and the rules, in the interests of justice. If atribunal goes out of its way in the fullness of its powers, thesuperior courts are there to correct it, as noticed by Allen;and as also observed by him, the first adjudication is moreimportant to the litigant than the last”.This principle was approved by a Bench decision of this Courtin Gopalan Bhavani v. Raghavan Aravindakshan, 1989 (2) KLT118 wherein it is held at paragraph 6 as follows:“6. The position that emerges from these situations is thatthe Tribunal, if not conferred with specific power to dismissan 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 applicationfor default or to restore an application dismissed for default.Naturally, this would pose another question as to what has tobe done with an application, which has not been prosecuted bythe applicant. This expediency, in our view, should not forcethe court to boggle or equivocate its interpretive function.We feel that it is irrational for a court to hold the absence ofspecific provisions in the statutes that the Tribunal has gotonly the power to dismiss an application for default and has nopower to restore an application dismissed for default.”12. The question again came up for consideration in thebackground of the Kerala Buildings (Lease & Rent Control)Act, 1965 by a Bench of this Court in the decision reported inEbrahim Ismail Kunju v. Phasila Beevi, 1991 (1) KLT 861. It isprofitable to refer to paragraphs 3 and 5 of the saidjudgment:“3. There is a larger contention urged on behalf of therevision petitioner. That is about the absence of anenumerated power of the Rent Controller in permitting jointtrial of the cases. It does not appeal to us. A narrowerapproach to the Act will prompt an authority to search thelimited space of the statute and its scheme to find out anenabling power in relation to the joinder of trials. Such anarrow approach does not commend over itself for ouracceptance. A recent decision of the Supreme Court in M/s.Babu Ram Ram Gopal v. Mathura Dass & Ors., JT 1990 (3) SC25, has emphasised the message underlying this sociallybenevolent legislation intended to relieve the weakestsections of the society. In this connection, we would like toexpress our reservations in relation to many of the wideobservations as contained in Kochappan Pillai v. Chellappan,1976 KLT 1. Some of the findings have already becomeinoperative 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 RentController cannot take note of the subsequent events. Thiswas held to be an unsustainable proposition by the SupremeCourt. We may also refer to the discussion on furnishingnegative evidence as yet another area which appears to us tobe unsound in law. So too is the view expressed there onthequestion of pleadings. We are not unaware of a recentDivision Bench decision in Narayani & Anr. v. District Judge,1991 (1) KLT 646 = 1991 (1) KLJ 311 which has followed 1976KLT 1 supra, and over-ruled Rangaier Sons (P) Ltd. v.Rukhiyabi, 1982 KLT 658. With great respect, it has to bepointed out that some of the larger aspects have beendiscussed 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 onthe adequacy of pleadings made in 1982 KLT 658 supra andother decisions, had disciplined the proceedings before theRent Control Authorities.xxxxxxxxx5. The increasing importance of the Tribunals in the vastchanging life of the community cannot be ignored by a moderncourt. A modern ostrich even in the distant deserts may notmake such limited use of its eyes. Many valuable rights of themodern citizen are deeply involved with the adjudicator,processes of the Tribunals. Many areas hitherto occupied bycourts, are now the domains of the Tribunals. A liberalapproach towards their functioning and a larger view aboutthe powers they need, are the requirements of the times. ATribunal should be facilitated to do all that a court could do insimilar situations; and much more than that. Greater speedand a total liberation from the tentacles of technicalities, W.P(C) No. 32914 of 2009-8-give a better look and greater efficiency for effectivelymanned Tribunals. If there be no statutory prohibition, theTribunal should therefore normally be in a position to ordainits affairs and modulate its procedures in such a manner as tobest subserve the interest of the public, and in particular thelitigant public. Looked that way, even in the absence of anenumerated head of statutory power on the conjoint readingof S. 23 and the enumerated provisions of the C.P.C. referredto in that section, would have permitted the Tribunal to passan order which would better serve the interest of the litigantand of the Tribunal. However, the Rent Controller and theAppellate Authority should be circumspect in the invocation ofthe power and in the issue of an order invoking such ajurisdiction”.13. Referring to the position of the dispute redressal by theRegistrar in the background of the Bihar and Orissa Co-operative Societies Act the Apex Court in the decisionreported in Jugal Kishore v. Sitamarhi Central Co-op. Bank,AIR 1967 SC 1494, has held that the Registrar in suchexercise has not merely the trappings of a court but he isgiven 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 ofthe ordinary civil and revenue courts of the land is oustedunder 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 wouldotherwise have fallen on the ordinary civil and revenue Courtsof the land. The Registrar has not merely the trappings of aCourt but in many respects he is given the same powers as aregiven to ordinary civil courts of the land by the Code of CivilProcedure including the power to summon and examinewitnesses on oath, the power to order inspection of W.P(C) No. 32914 of 2009-9-documents, to hear the parties after framing issues, toreview his own order and even exercise the inherentjurisdiction of Courts mentioned in S. 151 of the Code of CivilProcedure. In such a case there is no difficulty in holdingthat in adjudicating upon a dispute referred under S. 48 ofthe Act, the Registrar is to all intents and purposes, a Courtdischarging the same functions and duties in the same manneras a Court of law is expected to do.”14. It may be seen that in the instant case also essentiallythe functions of the Arbitrator under the Act is that of anordinary civil court in deciding a suit. The decision in a suitdoes not mean merely the final decision. It takes in also theentire stages leading to the decision. Thus the Arbitrator inthe instant case is fully justified in passing the impugnedorder granting liberty to withdraw the suit and file a freshsuit after impleading necessary parties. It is significant tonote that none of the statutory rights of theappellants/defendants is in any way affected in the process..”As far as the decisions relied upon by the petitioner areconcerned, they are in respect of proceedings under the ConsumerProtection Act wherein the provisions are not comparable to thosein the Kerala Co-operative Societies Act. Further under theConsumer Protection Act, detailed procedure is prescribed forconsideration of petitions before the Consumer Disputes RedresselForum. Therefore, the decisions relied upon by the petitionercannot be applied to the facts of this case. In any event thepetitioner 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 mydiscretionary jurisdiction under Article 226 of the Constitution ofIndia and accordingly the writ petition is dismissed.S. SIRI JAGAN, JUDGErhs