Telangana High Court
The Sajjana Cooperative Housing ... vs The State Of Telangana, on 24 February, 2025
THE HONOURABLE SMT. JUSTICE T. MADHAVI DEVI
WRIT PETITION NO.18483 OF 2015
ORDER
In this writ petition, the petitioner society is seeking a Writ of
Certiorari by calling for the records from the 2nd respondent Tribunal in
C.T.A.No.16 of 2013 and consequently to set aside the judgment
dt.18.03.2014 passed by the 2nd respondent Tribunal by declaring it as
illegal, arbitrary, unconstitutional, discriminatory and void and also as
being in violation of principles of natural justice and consequently to
uphold the decision of the 3rd respondent in I.A.No.44 of 2012 in
A.R.C.No.9 of 2008 dt.04.02.2013 and to pass such other order or
orders.
2. Brief facts leading to the filing of the present Writ Petition are
that the petitioner society was formed on 10.07.1975 and had accepted
to purchase an extent of 28,006 square yards in Plot Nos.6, 7, 9, 10 and
part of 8 at Rs.13/- per square yard. The plots were formed by the legal
heirs of two persons Dr. Syed Hussain and Mr. Nawab Mir Ahmed Ali
Khan who jointly owned Ac.16.5 guntas of non-agricultural land in
Survey Nos.129/34 and 129/35 of Shaikpet Village. After purchase of
the plots, the petitioner society allotted 20 plots to 20 members who
have contributed to the land cost. The petitioner society was formed
with 35 members and other members were in the waiting list when the
plots were allotted in the year 1978. The petitioner society, thereafter,
with a view to start second venture, approached the Government of
Andhra Pradesh in the year 1980 and requested to provide 100 acres of
land to the petitioner society and in order to acquire the said land, the
petitioner society enrolled around 600 members and the 4th respondent is
at wait list membership No.421. However, the attempt of the petitioner
society to acquire more land failed and subsequently, the members
including the 4th petitioner remained in the waiting list.
3. It is submitted that the 4th respondent filed an application before
the Arbitrator in A.R.C.No.9 of 2008 for allotment of a plot and initially
the petitioner society which was arrayed as respondent was served with
notice and the petitioner had appeared and attended the proceedings till
24.04.2010 and the next date of hearing was 01.05.2010, on which day
the learned counsel appeared and he was informed that the next date of
hearing would be informed subsequently and since the petitioner society
was not informed of the next date of hearing, there was no appearance
and an ex parte award was passed on 26.11.2011. Thereafter, the
petition was also referred to Civil Court in E.P.No.79 of 2012 and it was
at that point of time, the petitioner society claims to have come to know
about the ex parte award. In view thereof, the petitioner society filed
I.A.No.44 of 2012 in A.R.C.No.9 of 2008 and the Arbitrator, vide orders
dt.04.02.2013, set aside the ex parte order and reopened the arbitration
proceedings. Challenging the same, the 4th respondent filed appeal in
C.T.A.No.16 of 2013 under Section 76(1) of the A.P. Co-operative
Societies Act, 1964 before the Tribunal and vide judgment
dt.18.03.2014, the Tribunal has allowed the appeal by observing that by
passing the award, the Arbitrator has become functus officio and further
that when the award has already been referred to civil Court for
execution, the Arbitrator could not have reopened the award by himself
and the only option available to the aggrieved party is to approach the
Co-operative Tribunal under Section 76 of the A.P. Co-operative
Societies Act, 1964. Challenging the same, the present Writ Petition is
filed.
4. Learned counsel for the petitioner submitted that in the arbitration
proceedings, the petitioner who was the respondent had appeared and
the 4th respondent herein, who was the applicant before the Arbitrator,
had not filed any evidence and therefore, the petitioner society could not
have filed any counter or any evidence and therefore, the ex parte award
passed by the Arbitrator was not on merits. Therefore, it is not an
appealable order and the petitioner, therefore, has filed an application
for setting aside the ex parte decree along with the application to
condone the delay and the Arbitrator has considered the same and has
not only condoned the delay but also set aside the ex parte decree.
According to the learned counsel for the petitioner, if the Tribunal has
power to pass an ex parte decree under Rule 49 Sub-rule (4) of the
Telangana Co-operative Societies Rules, 1964, it has also the power to
set aside the ex parte decree under Order XVII Rule 2 of C.P.C. In
support of his contention that where an order is not passed on merits, it
cannot be treated as an order under Rule 49 of the TCS Rules, he placed
reliance upon the decision of the Single Judge of the A.P. High Court in
the case of BHEL (R&D) Employees' Coop. Housing Socy. Ltd. Vs.
The Co-op. Tribunal Hyd & Ors 1. In support of his contention that
Order IX Rule 13 of CPC petition can be filed for setting aside the
decree and even if the order is an ex parte order, it is liable to be set
aside, he placed reliance on the judgment of the Hon'ble Supreme Court
2005 (1) A.P.L.J. 61 (HC)
of India in the case of B.Janakiramaiah Chetty Vs. A.K. Parthasarthi
and Ors 2.
5. The 4th respondent has filed a counter affidavit and has supported
the stand of the Tribunal. It is submitted that the ex parte award can only
be challenged before the Tribunal and the Arbitrator has no authority or
jurisdiction to set aside the ex parte order.
6. Having regard to the rival contentions and the material on record,
this Court finds that the Arbitration Application was filed by the 4th
respondent herein before the Arbitrator and under Rule 49 of TCS
Rules, the procedure for arbitration and settlement of disputes is
provided. Sub-rule (4) thereof provides that the Arbitrator or other
person deciding the dispute shall record a brief note of the evidence of
the parties and witnesses who attended and upon the evidence so
recorded, and after consideration of any documentary evidence
produced by the parties and pass a decision in accordance with justice,
equity and good conscience and such a decision shall be given in writing
and in the absence of any party duly summoned to attend, the dispute
may be decided ex parte.
AIR 2003 SC 3527
7. In this case, admittedly, the petitioner society was the 1st
respondent before the Arbitrator and had attended the proceedings on
24.04.2010 and on 01.05.2010 and thereafter, did not attend the hearings
from 15.05.2010 onwards and the award was passed on 26.11.2011. The
Tribunal has observed that the Arbitrator has not set the respondents ex
parte but has passed the award under Rule 49(4) of the TCS Rules,
1964. As seen from Rule 49 Sub-rule (4) of the said Rules, the
Arbitrator has the power to pass award if the evidence of the parties and
witnesses is already recorded and documentary evidence, if any, is also
produced by the parties. In this case, it is claimed that no evidence has
been filed by the petitioner therein before the Arbitrator and therefore,
the respondents also did not lead any evidence and the arbitration award
was passed. However, this Court, after going through the award, finds
that the petitioner society being the respondent has filed a counter
affidavit and the 12th respondent therein has also got herself examined as
R.W.1 and Exs.B1 to B16 were also marked. The other respondents
were set ex parte. Therefore, it is noticed that the petitioner society,
which was the 1st respondent therein, has not set ex parte and the order
was passed under Rule 49 Sub-rule (4) of the TCS Rules on merits.
Therefore, it is not an ex parte order and the Arbitrator could not have
recalled the same.
8. Further, as rightly observed by the Tribunal, as the arbitration
award is not an ex parte award, there is no case for interference under
Order IX Rule 13 of CPC as the Arbitrator having passed the order,
became functus officio and cannot reopen the award under any
circumstances. Therefore, as rightly observed by the Tribunal, the only
option available to the petitioner society was to file an appeal before the
Co-operative Appellate Tribunal. The learned counsel for the petitioner
has relied upon the decision of the A.P. Co-operative Tribunal at
Hyderabad in the case of S. Naganna Vs. The Divisional Co-operative
Officer, Secunderabad Division and another3. In the said case, the
Tribunal did not consider any legal position to hold that the ex parte
award of the Arbitrator could be set aside. Further, the judgments relied
upon by the learned counsel for the petitioner are with regard to the
merits of the award and not on the powers or the jurisdiction of the
Arbitrator in setting aside the ex parte award passed by the Arbitrator.
Therefore, the said decisions are not applicable to the case on hand.
C.T.A.No.137 of 2011 dt.28.06.2013
9. In view of the above, this Court does not find any merit in the
Writ Petition and it is accordingly disposed of. It is noticed that vide
orders dt.08.10.2015, this Court in W.P.M.P.No.23912 of 2015 had
granted stay of all further proceedings in E.P.No.79 of 2012 on the file
of the III Additional Chief Judge, City Civil Court at Hyderabad for a
period of five weeks and the said interim order has not been extended
subsequently. However, in order to enable the petitioner society to file
an appeal against the award of the Arbitrator, this Court grants stay of
all further proceedings pursuant to the impugned order for a period of 90
(ninety) days and thereafter, the 4th respondent herein shall proceed with
E.P.No.79 of 2012 on the file of the III Additional Chief Judge, City
Civil Court at Hyderabad in accordance with law.
10. The Writ Petition is accordingly disposed of. No order as to costs.
11. Pending miscellaneous petitions, if any, in this Writ Petition shall
stand closed.
___________________________
JUSTICE T. MADHAVI DEVI
Date: 24.02.2025
Svv
