Research › Browse › Judgment

Kerala High Court · body

1998 DIGILAW 73 (KER)

Paul v. Asst. Registrar

1998-02-12

P.A.MOHAMMAD

body1998
Judgment :- P.A. Mohammed, J. The main question involved in this Writ Petition is whether the Registrar settling a dispute under R.67 of the Kerala Co-operative Societies Rules, 1969 (for short 'the rule') has power to set aside an ex-parte order passed by him in the proceeding. 2. The 1st respondent issued Ext. P1 demand notice to the petitioners under R.71 of the Rules calling upon them to pay an amount of Rs. 22,943/- due to the Society. On enquiry they came to understand that the 2nd respondent, the Varantharapilly Service Co-operative Bank limited, filed a claim petition against the petitioners before the 1st respondent as ARC 611/91 for an amount of Rs. 17,645/- with 18% interest and that on 30.5.1992 the first respondent declared them ex-parte. The case of the petitioners is that they did not receive any summons from the first respondent for appearance. In the aforesaid situation, their counsel filed two petitions before the 1st respondent, one for setting aside the exparte award and the other for staying the execution of the said award. Exts. P2 and P3 are the copies of those petitions filed on behalf of the petitioners. Though they were presented before the 1st respondent he refused to accept them. According to the first respondent he has no authority or power to set aside the ex-parte order passed by him even assuming there is material irregularity in passing the award. Ext. P4 is the affidavit prepared by the counsel who appeared before the 1st respondent narrating the stand taken by him. In the aforesaid background the petitioners came before this Court with the present Writ Petition. 3. The contentions have been urged before this Court by the learned counsel appearing for the petitioners. Firstly it is argued that the 1st respondent failed to communicate the gist of the award to the petitioners before initiating revenue recovery proceedings. The question is whether such a requirement is mandatory. R.68 of the Rules inter alia provides that a gist of the award shall also be communicated by the Registrar to the defendants by the post, in case they are not present at the time of delivering the order or decision. The order or decision contemplated under this rule is an ex-parte order or decision. R.68 of the Rules inter alia provides that a gist of the award shall also be communicated by the Registrar to the defendants by the post, in case they are not present at the time of delivering the order or decision. The order or decision contemplated under this rule is an ex-parte order or decision. The communication of the gist of the order to the defendants is indispensable because if they are aggrieved by such orders, they would be able to find out their remedy only on knowing the nature of the order passed against them. That would otherwise mean an opportunity is given to the defendants to challenge the order passed by the Registrar if they are aggrieved by such orders. When the provision is analysed in this premise, it can only be said that the requirement to communicate the gist of the award to the defendants by the post is mandatory. The complaint of the petitioners that the 1st respondent has violated the mandatory requirement in the present case has not been denied by him. Hence the proceedings for recovery of the amount as per Ext. P1 demand notice is quite unauthorised and illegal. 4. Secondly it was argued that the refusal to entertain an application to set aside ex-parte order and pass orders thereon was quite illegal. It is pointed out that though specific power has not been conferred on the Registrar to set aside an order passed by him ex-parte, he being a quasi-judicial authority has inherent power to do so. Sub-r.(4)(a) and (b) of the R.67 is as follows: "(4) (a) The Registrar or the person or the arbitrator deciding the dispute shall record a brief note in English or in the vernacular of the evidence of the parties to the dispute and witnesses who attend, and upon the evidence so recorded and after consideration of any documentary evidence produced by the parties a decision or award, as the case may be, shall be given in accordance with justice, equity and good conscience. Such decision or award shall be reduced to writing and pronounced at once or on some future date of which due notice shall be given to the parties. Such decision or award shall be reduced to writing and pronounced at once or on some future date of which due notice shall be given to the parties. (b) in the absence of any party to the dispute duly summoned to attend, the dispute may be decided ex¬parte." Sub-R.(4)(b) no doubt confers power on the Registrar to decide the dispute ex-parte in the absence of any party to the dispute duly summoned to attend. Of course this power is subject to the requirement contained in sub-r.(4) (a). The decision or award shall be given by the Registrar in paramount consideration of justice, equity and good conscience, When the statute specifically prescribes that a decision or award shall be given in accordance with justice, equity and good conscience, this Court cannot deny the existence of certain amount of inherent powers in dealing with the different situations by the Registrar. That necessarily means the Registrar has inherent power to set aside an order passed by him ex¬parte if he is satisfied that justice, equity and good conscience demands such a course of action. 5. Sub-s.(3) of S.70 of the Kerala Co-operative Societies Act, 1969 confers power on the Registrar to decide the dispute or the Arbitrator to pass an award in accordance with the provisions of the Act and the rules and the bye-laws. Pending decision or award, the Registrar or Arbitrator as the case may be, has power to pass interlocutory orders as may deem necessary in the interest of justice. The Registrar and Arbitrator deciding disputes and passing awards under S.70 of the Act are not civil courts but they are quasi-judicial authorities under the Act. The word 'quasi-judicial' implies judicial in some sense but not in every sense. Professor Wade in "Administrative Law" says "The term 'quasi judicial' accordingly came into vogue, as an epithet for powers which, though administrative, were required to be exercised as if they were judicial, i.e. in accordance with natural justice". J.F. Garner in his "Administrative Law" however observes "A true administrative decision will be subject to review on more restricted grounds than a judicial one; if the decision is "quasi judicial", the principles of natural justice will be applied only to the judicial part of that decision. However, as we shall see, in recent decisions the distinction between "quasi-judicial" and "administrative" had also become indistinct". However, as we shall see, in recent decisions the distinction between "quasi-judicial" and "administrative" had also become indistinct". When the principle of natural justice governs the function of quasi-judicial or administrative tribunals, it cannot be said such tribunals have no inherent powers to remedy the injustice caused to a party to a dispute. Indubitably the Tribunals exist in order to provide simpler, speedier, cheaper and more accessible justice than do the ordinary courts. 6. The power of the Administrative Tribunal to pass orders invoking its inherent powers is no longer res Integra, "Inherent jurisdiction is there even with tribunals of limited jurisdiction". This is a classic observation of Chandrasekhara Menon, J. in Dy. Conservator v. Sarojini (1981 KLN 28). This view was no doubt characterised initially as "revolutionary". But later it was strongly defended by M.P. Menon, J. while laying down his considered view in Cheru Ouseph v. Kunjipathumma (1981 KLT 495). Learned judge has very exhaustively dealt with the powers of the Tribunals in administration of justice while dealing with a case coming under the Kerala Buildings (Lease and Rent Control) Act, 1965. Following observation contained in the said judgment is apposite: "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 in jewel power; but when that is granted, its power to advance the cause of justice by relying on unremunerated powers - on in her ent or residuary power, as itis often called - cannot be denied to it. And therefore, where a tribunal exercises the same kind of power ie., part of the judicial power of the State, as the Supreme Court has observed, why should it be denied similar inherent or residuary powers?" (Emphasis supplied) It must be recalled as to how the learned judge justifies his conclusion with a live illustration which I propose to reproduce hereunder. "Litigant may sometimes fail to reach a court in time for reasons beyond his control. The train may be late, the bus may break down* the car may be held up at the railway-crossing. "Litigant may sometimes fail to reach a court in time for reasons beyond his control. The train may be late, the bus may break down* the car may be held up at the railway-crossing. If the Rent Control Court dismisses his application for default in the mean while, and if itis held to be powerless to restore it even when proper reasons are shown, that will be to allow the past to persist into the present, with all the merits on one side and dry technically on the other". 7. The principle emerges from the above decision is that the Tribunal engaged in administration of justice has inherent power to do whatever is required in the promotion of administration of justice. In this case R.67(4)(b) confers power to decide the dispute ex-parte when a party Xo the dispute is absent. What is pleaded by the petitioners is that they did not receive the summons from the 1 st respondent and in view of that they were absent when the case was taken up by the 1st respondent. When such cause is shown, it cannot be said that the 1 st respondent has no power to examine the merits of the case and to decide the petition to set aside the exparte order. This power is inbuilt in view of the nature of the decision to the taken by the 1st respondent while passing an award under R.67(4)(a) as discussed hereinabove. A Division Bench of this Court in Thankam R. Pillai v. Arbitrator (1996 (1) KLT 225) while dealing with the power of an Arbitrator to implead legal representatives of a deceased petitioner in a proceeding arising under S.70 of the Kerala Co-operative Societies Act, 1969 observed thus: "All powers which are not specifically denied by the statute or the statutory rules should be vouchsafed to a Tribunal so that it may effectively exercise its judicial function. A Tribunal in its wider connotation, embraced every adjudicatory organ including an Arbitrator. A "Tribunal literally means a seat of justice. May be, justice is dispensed by quasi-judicial body, an arbitrator, a commission, a court or other adjudicatory organ created by the State. A Tribunal in its wider connotation, embraced every adjudicatory organ including an Arbitrator. A "Tribunal literally means a seat of justice. May be, justice is dispensed by quasi-judicial body, an arbitrator, a commission, a court or other adjudicatory organ created by the State. The Arbitrator function ing under the Act is a quasi-judicial adjudicatory body fall ing wi thin the term "tribunal"' The preposition that emerges from the above decision is that all the powers which are not specifically denied by the statute or the statutory rules should be vouchsafed to a Tribunal. In the present case, I do not see any provision denying the powers to the 1st respondent to set aside an ex-parte order in a processing pending before him. 8. In view of what is said above, I am convinced that the stand taken by the 1st respondent does not conform to the legal requirements governing the issue. When the power is so implicit, it is the duty of the 1 st respondent to decide the application filed by the petitioners to set aside an ex-parte order. I therefore, direct the 1st respondent to decide Ext. P2 petition filed by the petitioners for setting aside the ex-parte order on merits and in accordance with law. 9. During the pendency of this Writ Petition in C.M.P. No. 29219 of 1992 the petitioners have obtained an interim order staying all proceedings pursuant to Ext. P1 demand notice. I am told the said interim order is still continuing in force. If that be so, I do not find any reason not to keep the said interim order till the matter is finally decided by the 1 st respondent as directed above. Therefore there will be a direction to keep alive the interim order passed by this Court in C.M.P. No. 29219 of 1992 till the matter is finally decided by the 1 st respondent as aforesaid. In view of the circumstances of the case, I direct the 1st respondent to take a final decision in the matter as above after affording a reasonable opportunity of being heard to all the interested parties, expeditiously, at any rate, within a period of two months from the date of receipt of a copy of the judgment. The Original Petition is disposed of as above.