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2004 DIGILAW 11 (AP)

E. Ravinder Reddy v. D. Rama Krishnan

2004-01-06

L.NARASIMHA REDDY

body2004
L. NARASIMHA REDDY, J. ( 1 ) THE petitioner challenges the order dated 3-12-2001 in ARC No. 384/2001 passed by the Divisional Co-operative officer, Hyderabad West Division, the 3rd respondent, as confirmed by the Co-operative appellate Tribunal through its order dated 31-8-2002 in CTA. No. 257/2001. ( 2 ) THE petitioner claims that he has been allotted Plot No. 83 by the Teachers co-operatives Housing Society Limited, secunderabad, the 2nd respondent, in pursuance of a resolution passed in the year 1995. The plot is said to have been transferred through a registered deed. The 1st respondent raised a dispute under section 61 of the A. P. Co-operative Societies act (for short the Act ), alleging that he was the original allottee of Plot No. 83 and paid consideration therefor and that the then Secretary, who is the father-in-law of the petitioner herein, had illegally and unauthorisedly transferred the plot in favour of the petitioner. He challenged the action of the society in transferring the plot in favour of the petitioner and sought for a consequential relief of transferring the same in his name. The matter was referred to arbitration as provided for under sub-section (1) of Section 61 of the Act. It was taken up as ARC No. 384/2001. On receipt of notice, the 2nd respondent herein i. e. , the society filed written statement. It has 751 almost admitted the factum of allotment of the plot in favour of the 1st respondent and payment of consideration therefor. On behalf of the society, it was pleaded that the previous Secretary one Mr. R. Narsimha reddy, had resorted to several irregularities and has illegally transferred Plot No. 83 in favour of his son-in-law, the petitioner herein. The society in fact stated that it has no objection for the claim of the 1st respondent being allowed. ( 3 ) THE petitioner herein did not choose to file any written statement in the arc. On the basis of the material before him, the 3rd respondent passed an award dated 3-12-2001. Aggrieved thereby, the petitioner preferred an appeal before the Co-operative Appellate Tribunal. The Tribunal, in turn, dismissed the appeal. Hence, this writ petition. ( 3 ) THE petitioner herein did not choose to file any written statement in the arc. On the basis of the material before him, the 3rd respondent passed an award dated 3-12-2001. Aggrieved thereby, the petitioner preferred an appeal before the Co-operative Appellate Tribunal. The Tribunal, in turn, dismissed the appeal. Hence, this writ petition. ( 4 ) THE petitioner contends that as per the provisions of the Act and the rules made thereunder, any claim presented under Section 61 is to be treated as a suit and that the provisions of the Limitation act apply thereto. It is contended that the claim presented by the 1st respondent for cancellation of the sale deed in favour of the petitioner was barred by limitation and thereby the claim was not maintainable. It is his case that even in the absence of any written statement or plea raised by any respondent in the arbitration proceedings, it was obligatory on the part of the 3rd respondent to verify as to whether the claim was not barred by limitation. He further contends that he was not given adequate opportunity by the 3rd respondent to plead his case. ( 5 ) THE 1st respondent filed a counter- affidavit. He has narrated the circumstances under which he raised a dispute and the various steps that ensued thereafter. He alleged fraud against the petitioner and his father-in-law. He has pleaded that the petitioner was not a member of the society and despite the same he was allotted the plot, contrary to the bye-laws and that too ignoring the earlier allotment in his favour. ( 6 ) SRI Y. V. Ravi Prasad, learned counsel for the petitioner, submits that the petitioner was not given adequate opportunity to plead his case. He submits that the claim itself was presented without necessary records and that even though an application was filed by the petitioner for supply of documents, the request was not acceded to and that the 3rd respondent proceeded to decide the case. Learned counsel points out that the arbitration proceedings before the 3rd respondent is equivalent to a suit and the 3rd respondent was under obligation to verify as to whether the claim was not barred by limitation. It is his case that the 1st respondent submitted his claim in the year 2001 to set aside a document of the year 1995. Learned counsel points out that the arbitration proceedings before the 3rd respondent is equivalent to a suit and the 3rd respondent was under obligation to verify as to whether the claim was not barred by limitation. It is his case that the 1st respondent submitted his claim in the year 2001 to set aside a document of the year 1995. Placing reliance upon Section 61 of the Act and Rule 49 of the Rules made thereunder, as well as certain decided cases; the learned Counsel submits that the very claim of the 1st respondent was not maintainable in law. ( 7 ) LEARNED Government Pleader for co-operation and learned Counsel for respondent No. 1 submit that the claim presented by the 1st respondent was strictly in accordance with the Act and the Rules made thereunder and that no exception can be taken to the award passed by the 3rd respondent as well as the order of the appellate Tribunal. They contend that the claim was within limitation and that the petitioner has not taken any objection in that regard. They contend that having chosen not to file any written statement and being absent when the case was taken up, the petitioner cannot complain of any illegality or irregularity in the proceedings. ( 8 ) THE 1st respondent submitted a claim before the 3rd respondent under section 61 of the Act. The Act provides for resolution of disputes between members and the society, members inter se, etc. , by arbitration. A reading of Section 61 and rule49 discloses that for all practical purposes, the proceedings under Section 61 are to be treated as suits. Provisions of limitation Act apply to these proceedings. The 1st respondent pleaded that he is a member of the society, he was allotted plot No. 83 admeasuring 236 sq. yards and that he paid the entire consideration of rs. 4,500/ -. The payment as well as allotment are said to have been taken note of in the General Body Meeting of the society held in the year 1984. He also claimed that he paid the betterment charges of Rs. 1,947. 00 , under Receipt dated 16-3-1984. He alleged that the then Secretary, with an ulterior motive, had executed a sale deed in respect of Plot No. 83 in favour of the petitioner herein, who is his son-in-law, and was not a member of the society at all. He also claimed that he paid the betterment charges of Rs. 1,947. 00 , under Receipt dated 16-3-1984. He alleged that the then Secretary, with an ulterior motive, had executed a sale deed in respect of Plot No. 83 in favour of the petitioner herein, who is his son-in-law, and was not a member of the society at all. He pleaded that he gathered the relevant particulars as to the sale deed as well as the relationship of the petitioner vis-a-vis the society on 16-7-2001 in the form of a certificate issued by the society. He ultimately claimed the relief of cancellation of sale deed dated 22-2-1995 executed in favour of the petitioner and for registration of the said plot in his favour on the basis of his seniority. The society filed a written statement. It virtually admitted the entire claim of the 1 st respondent. In page 2 of its written statement, the society pleaded as under: "in fact the society ought to have registered the said Plot Nos. 83 and 84 to its member/beneficiary D. Ramkishen and j. Prakash Reddy respectively. It is not known that how R Narsimha Reddy, previous secretary of the society managed the late previous President D. K. Gopal Reddy to register the Plot No. 83 which belongs to the above member/beneficiary, in favour of his son-in-law, Respondent No. 2 herein who is a non-member/non-beneficiary of the society through a Deed No. 715/95 dated 22-2-1995, which is illegal and void and whereas on the same day, Plot No. 84 was registered to the original member/beneficiary j. Prakash Reddy, vide Deed No. 716/95. " it further pleaded as under: "arbitrator may be pleased to allow the main ARC 384/2001, since the plaintiff is the senior member/beneficiary who paid full sale consideration for the plot admeasuring 236 sq. yards as stated supra and the plaintiff is legally entitled to Plot No. 83. " the petitioner, who figured as 2nd respondent in the ARC, did not choose to file any written statement. Though he was represented through an Advocate, none appeared on his behalf, on 19-11-2001. Therefore, he was set ex parte. Thereafter the case was posted for further steps on 3-12-2001. On that day also none appeared on behalf of the petitioner herein. The 1st respondent herein was examined as pw. l and documents Exs. Al to A10 were marked. Though he was represented through an Advocate, none appeared on his behalf, on 19-11-2001. Therefore, he was set ex parte. Thereafter the case was posted for further steps on 3-12-2001. On that day also none appeared on behalf of the petitioner herein. The 1st respondent herein was examined as pw. l and documents Exs. Al to A10 were marked. The 3rd respondent discussed the evidence and ultimately passed an award allowing the claim of the petitioner. Under these circumstances, it cannot be said that the petitioner was not given an adequate opportunity of being heard in the matter. ( 9 ) LEARNED Counsel for the petitioner submits that it was obligatory on the part of the 3rd respondent to examine whether the claim was barred by limitation. According to him, when the 1st respondent sought for cancellation of a sale deed of the year 1995, the 3rd respondent ought not to have accepted the claim presented in the year 2001. It is true that the proceedings under section 61 are treated on par with suits and civil Courts are under obligation to satisfy themselves as to whether the claim made in a plaint is within the period of limitation. It was sold held by this Court in Mohd pasha Saheb v. Tribunal, Kuppam, 1979 (2) aplj 49 (SN), and R. Anand Kumar v. The co-operative Tribunal, 1989 (3) ALT 401 . Even in the absence of a plea raised by the defendant, the Court has to satisfy itself that the claim is not barred by limitation. The satisfaction of the Courts in this regard however varies from case to case. If there is no dispute or uncertainty about the starting point of limitation, the task of the court to verify the matter at the threshold is relatively easier. If a claim for recovery is made on the basis of a pro-note or similar document, there would be hardly any difficulty for the Court to verify as to whether the claim is presented within the period of limitation. ( 10 ) IN cases where the relief is for cancellation of any document and for consequential relief, two different kinds of situations would arise. Where the plaintiff to such a suit is party to a document, the limitation invariably starts from the date of such document. ( 10 ) IN cases where the relief is for cancellation of any document and for consequential relief, two different kinds of situations would arise. Where the plaintiff to such a suit is party to a document, the limitation invariably starts from the date of such document. Where, however, the plaintiff is not a party to a document, which is sought to be cancelled, the limitation starts from the date of knowledge. This, in turn, would be a matter of pleading and evidence. It is only when the claim of the plaintiff about the document in question is disputed by a contesting defendant, that there would be an occasion for the Court to frame an issue and record a finding thereon. In the absence of pleading the Court cannot be expected to undertake a roving enquiry into the matter at the threshold. If the Court itself is to examine all the issues, even where there is no opposition to the claim, the adversarial proceedings tend to become inquisitorial in nature. ( 11 ) LEARNED Counsel for the petitioner relied upon a judgment of the Supreme Court in Dilboo v. Dhanraji, (2000) 7 SCC 702 . It was held therein that where the suit is filed beyond period of limitation, the plaintiff must aver and then prove that the suit has been filed within the period of limitation, after his knowledge about the cause of action. The Hon ble Supreme Court dealt with the principles of limitation extensively and held that where the period of limitation is to start from the date of knowledge, the plaintiff has to plead and prove the necessary facts. In the present case, the 1st respondent has pleaded that he came to know about the acts of the Ex-Secretary and registration of Plot no. 83 in favour of the petitioner before he filed the ARC. The relevant pleadings reads as under: "recently it has come to the knowledge of the plaintiff that the Ex-Secretary with an ulterior motive registered that Plot No. 83 behind the back of the plaintiff and without any notice to the plaintiff, in the name of his son-in-law Sri E. Ravinder Reddy, S/o E. Raji Reddy and thereby deprived the plaintiff of his legitimate right and ownership of Plot no. 83 which was allotted to him and he was a senior member from the inception of the society. 83 which was allotted to him and he was a senior member from the inception of the society. " to be sure about the facts, he approached the society and sought for necessary information. It was on 16-7-2001 that the society issued the proceedings certifying the various facts relating to Plot No. 83. This pleading can constitute necessary basis for knowledge of the document in favour of the petitioner. It is true that the facts pleaded are required to be proved. It however needs to be observed that the necessity to prove a fact would arise where an issue is framed which in turn would arise where the pleading of a plaintiff is denied by a defendant. When the petitioner did not choose to file a written statement and when the evidence of the 1st respondent as PW. 1 remained unrebutted, the facts pleaded by him can be said to have been proved. Therefore, the ratio laid down by the Supreme Court in the case referred to above is of no help to the petitioner. ( 12 ) VIEWED from any angle, this Court does not find any error of jurisdiction or infirmity in the orders impugned in the writ petition. The writ petition is accordingly dismissed. No costs.