Allowed

The Alwaye Ksheera Vyvasaya Co-Operative Society v. B.T. Babu

Kerala HC3 Nov 2016WP(C)/16166/2014

Case brief

AI extract

What is this about?

The High Court, Ernakulam, analyzed the Kerala Cooperative Tribunal's exercise of power under Rule 115(c) to admit additional evidence. The Court held the Tribunal failed to provide the petitioner an opportunity to rebut or cross-examine. Consequently, the judgment was set aside, and the appeal to be reheard after affording the opportunity.

What did the court decide?

The judgment of the Kerala Cooperative Tribunal (Ext.P11) is set aside. The appeal is to be reheard after giving the petitioner an opportunity to adduce rebutting evidence, including cross-examination

The Alwaye Ksheera Vyvasaya Co-Operative… — Civil Procedure and Limitation | Kerala HC (2016)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT:

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THE HONOURABLE MR. JUSTICE A.MUHAMED MUSTAQUE

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THURSDAY, THE 3RD DAY OF NOVEMBER 2016/12TH KARTHIKA, 1938

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WP(C).No. 16166 of 2014 (U)

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APPEAL NO.48/2009 OF KERALA CO-OPERATIVE TRIBUNAL, THIRUVANANTHAPURAM.

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PETITIONER(S):

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THE ALWAYE KSHEERA VYAVASAYA CO-OPERATIVE SOCIETY LTD. NO.4313, U.C. COLLEGE P.O., ALWAYE, ERNAKULAM DISTRICT, REPRESENTED BY ITS PRESIDENT K.P. KRISHNAKUMAR.

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BY ADVS.SRI.P.V.BABY, SRI.A.N.SANTHOSH.

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RESPONDENT(S):

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1. B.T. BABU, BAVELIL HOUSE, EAST VELIYATHUNADAU, U.C. COLLEGE P.O., ALWAYE,

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ERNAKULAM DISTRICT, PIN: 683 102.

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2. THE INSPECTOR OF CO-OPERATIVE SOCIETIES, V UNIT, OFFICE OF THE DAIRY DEVELOPMENT OFFICE, ALWAYE, ERNAKULAM DISTRICT, PIN: 683 102.

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3. THE KERALA CO-OPERATIVE TRIBUNAL, THIRUVANANTHAPURAM, PIN: 695 001.

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R1 BY ADV. SRI.P.P.JACOB. R2 & R3 BY SR. GOVT. PLEADER SRI.B. VINOD.

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THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 03-11-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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rs.

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WP(C).No. 16166 of 2014 (U)

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APPENDIX

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PETITIONER'S EXHIBITS:-

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EXT.P1:	A TRUE PHOTOCOPY OF THE IN A.R.C. NO.1/2002 DATED 02/11/2002 FILED BY THE PETITIONER BEFORE THE 2ND RESPONDENT.
EXT.P2:	A TRUE PHOTOCOPY OF THE WRITTEN STATEMENT FILED 1ST RESPONDENT IN ARC NO.1/2002 DATED 28/05/2013 BEFORE THE 2ND RESPONDENT.
EXT.P3:	A TRUE PHOTOCOPY OF THE AWARD DATED 16/09/2009 IN ARC NO.1/2002 ISSUED BY THE 2ND RESPONDENT.
EXT.P4:	TRUE PHOTOCOPY OF THE DEPOSITION GIVEN BY THE 1ST RESPONDENT IN A.R.C.1/2002.
EXT.P5:	TRUE PHOTOCOPY OF THE PETITION ALONG WITH AFFIDAVIT DATED 04/02/2010 FILED BY THE 1ST RESPONDENT BEFORE THE 3RD RESPONDENT.
EXT.P6:	TRUE PHOTOCOPY OF THE LIST OF DOCUMENTS SUBMITTED ALONG WITH EXT.P2 BY THE 1ST RESPONDENT BEFORE THE 3RD RESPONDENT.
EXT.P7:	A TRUE PHOTOCOPY OF THE COUNTER AFFIDAVIT AGAINST EXT.P5 DATED 20/03/2010 FILED BY THE PETITIONER BEFORE THE 3RD RESPONDENT.
EXT.P8:	A TRUE PHOTOCOPY OF THE ORDER DATED 19/11/2010 IN I.A NO.2010 IN A.P NO.48/2009 OF THE 3RD RESPONDENT.
EXT.P9:	A TRUE PHOTOCOPY OF THE JUDGMENT IN WPC NO.37096/2010 DATED 11/11/2013 FILED BY THE PETITIONER.
EXT.P10:	TRUE PHOTOCOPY OF THE PROOF AFFIDAVIT DATED 19/11/2010 FILED IN AP NO.48/2009 BY THE 1ST RESPONDENT BEFORE THE 3RD RESPONDENT.
EXT.P11:	TRUE PHOTOCOPY OF THE JUDGMENT IN APPEAL NO.48/2009 DATED 14/03/2014 RENDERED BY THE 3RD RESPONDENT RECEIVED BY THE PETITIONER ON 04/05/2014.

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RESPONDENT'S EXHIBITS:- NIL.

//TRUE COPY//

P.S. TO JUDGE

rs.

A. MUHAMED MUSTAQUE, J.

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W.P.(C) No. 16166 of 2014

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Dated this the 3^rd day of November, 2016

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J U D G M E N T

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1.The writ petitioner, who is a cooperative society, filed

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ARC No.1/2002, an arbitration case under Section 69 of the Kerala Co-operative Societies Act r/w Rule 67 of the Kerala Co-operative Societies Rules, before the Deputy Director Dairy, Civil Station, Kakkanad, Ernakulam, against the first respondent for recovery of a sum of 1,04,493.90/- from 01.04.1999. The first₹ respondent was the former Secretary-in-charge of the society. Aggrieved by Ext.P3 award in arbitration, the first respondent filed Appeal No.48/2009 before the Kerala Cooperative Tribunal, Thiruvananthapuram. In the appeal, additional evidence was adduced on the side of the appellant/first respondent herein. This was accepted by the Tribunal by Ext.P8 with a rider that the question as to the acceptance of additional

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W.P.(C) No. 16166 of 2014

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..2..

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evidence shall be decided at the final hearing of the appeal on merits.

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2.It appears from Ext.P8 order that the relevancy of those additional documents to be decided by the tribunal at the final hearing. The tribunal, while considering the appeal, opined that those documents are necessary for disposal of the appeal and accordingly, received those documents as additional evidence and marked as Exts.P1 to P17 invoking the power under Rule 115(c) of the Kerala Co-operative Societies Rules and thereafter, relying on the additional documents adduced, allowed the appeal as per Ext.P11 judgment.

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3.Rule 115 of the Kerala Co-operative Societies Rules, reads as follows;

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“ 115. Fresh evidence in appeal :- (1) The parties to an appeal shall not be entitled to produce additional evidence, whether oral or documentary, in the Tribunal but if -”

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(a) the authority, from whose order the

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appeal is preferred has refused to admit evidence which ought to have been admitted;

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(b) the party seeking to adduce additional evidence satisfies the Tribunal that such evidence, notwithstanding the exercise of due diligence, was

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W.P.(C) No. 16166 of 2014

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..3..

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not within his knowledge or could not be produced by him at or before the time the order under appeal was passed; or

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(c) The Tribunal requires any document to be produced or any witness to be examined to enable it to decide the case for any other substantial cause, the Tribunal may allow such evidence or document to be produced or witness to be examined.

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(2) No order for admission of additional evidence shall be passed on the application of any party without affording an opportunity to the opposite party to be heard in the matter.

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(3) Where additional evidence is allowed or directed to be produced, the Tribunal shall record the reasons for its admission and shall specify the points to which the evidence is to be confined.

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(4) When either party produces additional evidence the opposite party shall be entitled to produce rebutting evidence.

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(5) Wherever additional evidence is allowed to be produced the Tribunal may either take such evidence or direct any officer of the Tribunal to take such evidence in the presence of the parties. The party calling a witness shall examine him in chief and the opposite party may cross examine him, in which case the party calling may examine the witness in re.

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(6) The documents proved in appeal shall be exhibited marking 'P' series for the appellant and 'R' series for the respondent and the witnesses examined shall be separately numbered serially, designating 'PW' and 'RW' respectively.

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(7) The evidence of every witness examined before the Tribunal shall be taken down in writing by or in the presence and under the personal direction and superintendence of the Tribunal.”

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4.In fact, there was a challenge against Ext.P8 order

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..4..

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W.P.(C) No. 16166 of 2014

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before this Court. This Court, by Ext.P9 judgment, directed the tribunal to follow the procedure contemplated under Rule 115 of the Kerala Co-operative Societies Rules, 1969, while accepting the additional evidence. In Ext.P8 order, the tribunal had also opined that the relevancy of those documents were not mentioned in the affidavit. However, in terms of Rule 115(1)(c), the tribunal has every power to allow such evidence for any substantial cause. Therefore, the tribunal found that those documents would have a substantial impact upon the outcome of the appeal.

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5.Certainly, the tribunal has necessary power to allow such evidence to be adduced on the side of either party. However, the question is, when additional evidence is adduced on the side of the appellant, an opportunity ought to have been given to the opposite party to rebut such evidence adduced. Giving an opportunity for admission of additional evidence is different from giving an opportunity to the opposite party to rebut such evidence adduced before the tribunal. The tribunal

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..5..

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W.P.(C) No. 16166 of 2014

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appears to have moved by the fact that once an additional evidence has been permitted to be adduced, there is no necessity of having further proceedings for relying on such evidence. However, the tribunal is bound to give an opportunity to the opposite party to rebut such evidence adduced before the tribunal.

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6.It is submitted by the learned counsel for the 1^st respondent that when additional evidence is adduced along with a proof affidavit, the petitioner has not reserved any right to cross-examine the deponent or to have the additional evidence rebutted.

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7.On the other hand, the learned counsel for the petitioner would submit that the tribunal merely accepted the additional evidence without any further proceedings and without giving a further opportunity to the petitioner to rebut the evidence adduced.

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8.This Court is of the view that acceptance of additional evidence, like any other procedure, has to be followed by due proceedings. There should be proceedings in accordance with law for accepting additional evidence

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W.P.(C) No. 16166 of 2014

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by giving opportunity to adduce further evidence to the opposite side for rebuttal. The contention of the petitioner before this Court is that if the tribunal had adverted to such procedure, they could have adduced rebutting evidence. However, Ext.P11 judgment of the tribunal does not show that such an opportunity was given to the petitioner. Neither an opportunity to cross-examine the deponent nor to adduce rebutting evidence was given to the petitioner.

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9.It is provided in Rule 115(4) that when either party produces additional evidence, the opposite party shall be entitled to produce rebutting evidence, which clearly indicates that an opportunity should be extended to the opposite party to produce rebutting evidence. In view of the fact that the procedure followed by the tribunal does not indicate that such an opportunity was given to the petitioner, Ext.P11 judgment has to be set aside and the appeal has to be reheard, after giving the petitioner an opportunity to adduce rebutting evidence.

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10.Accordingly, the writ petition is disposed of, as

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W.P.(C) No. 16166 of 2014

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..7..

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follows;

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Ext.P11 judgment is set aside.

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Appeal No.48/2009 on the files of the Kerala Cooperative Tribunal, Thiruvananthapuram, shall be reheard, after giving the petitioner an opportunity to adduce rebutting evidence.

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It is made clear that the admission of additional evidence already ordered by the tribunal is not interfered by this Court in this judgment. The only question to be decided by the tribunal is whether the additional evidence can be relied on or not, after giving an opportunity to the petitioner to rebut the evidence, including cross-examination of the deponent.

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The matter shall be decided as expeditiously as possible.

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Sd/- A. MUHAMED MUSTAQUE JUDGE

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bka/-

The Alwaye Ksheera Vyvasaya Co-Operative Society v. B.T. Babu

Case brief

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The Alwaye Ksheera Vyvasaya Co-Operative Society v. B.T. Babu

Case brief

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