Het Ram vs The Registrar, Co-operative Societies etc.

R.S. Pathak, C.J.—There was a dispute between the Petitioner and the Mathiana Co-operative Society Limited. The dispute was referred for arbitration u/s 87 of the Himachal Pradesh Co-operative Societies Act, 1956, to the District Inspector of Co-operative Societies, Mahasu in 1968. The District Inspector made an award against the Petitioner. The Petitioner says that the objections filed by him to the maintainability of the reference were not considered by the Arbitrator. Against the award the Petitioner appealed u/s 113 of the Act. The appeal was fixed for hearing by the Appellate authority in December, 1969, but thereafter it was adjourned to January 20, 1970. The Petitioner alleges that on account of heavy snow-fall he was unable to appear before the Appellate authority on that date. The Appellate authority then made an order'' noting that the Appellant was absent without reason and, apparently for that reason, dismissed his appeal. On February 16, 1970, the Appellant applied for setting aside that order, but on April 1, 1970, the Appellate authority informed the Petitioner that his application could not be granted because "the case has already been proceeded ex-parte on 20-1-1970". The Petitioner now prays for relief under Article 226 of the Constitution.

Learned Counsel for the Petitioner urges that the Appellate authority erred in refusing to entertain the Petitioner''s application for setting aside the ex-parte order dismissing his appeal merely on the ground that the appeal had been disposed of ex-parte. In other words, the Appellate authority appears to have taken the view that it had no jurisdiction to entertain the application. Now it seems to me that there is inherent power in a quasi judicial tribunal to recall an order passed ex-parte, if the facts show that it had been erroneously passed ex-parte and that the interests of justice warrant its being recalled. An appeal dismissed in default can be restored if there is sufficient ground for doing so. In that view of the matter the Appellate authority was bound to entertain the application of the Petitioner for setting aside the order dismissing the appeal. In declining to do so the Appellate authority refused to exercise jurisdiction vested in it.

It is urged by learned Counsel for the Respondent society that the Petitioner should not be granted relief by this Court because of the existence of an alternative remedy by way of revision to the State Government u/s 114 of the Act. Where an order suffers ex-facie from a jurisdictional infirmity an alternative remedy is no bar to its being examined by a Court in the exercise of its writ jurisdiction. It is now settled law that the mere existence of an alternative remedy does not deprive the Court of its power to interfere under Article 226 of the Constitution; the existence of an alternative remedy is only one of the circumstances to be taken into account in deciding whether the Court will [interfere in the exercise of its judicial discretion. In every case the Court will consider the particular facts and circumstances and decide whether it should so interfere. In the present case, it appears that the transactions concerning which the impugned award was given relate to a period before 1959. The award was made in 1969, holding the Respondent-society entitled to Rs. 17,087.97 from the Petitioner. The appeal filed by the Petitioner, in which he claims that he had raised certain substantial objections to the maintainability of the award, has been dismissed ex-parte. In the circumstances, I think this is a case in which this Court should interfere in the sound exorcise of its judicial discretion.

It is not necessary in this case to decide whether the application for setting aside the Appellate order should be allowed. That is a matter lying within the discretion of the Appellate authority, and it is appropriate that the matter should be considered by the Appellate authority itself.

It is contended on behalf of the Respondents that the Petitioner has not come to Court with clean hands because the facts stated in the writ petition explaining why the Petitioner failed to present himself before the Appellate authority on the date fixed for the hearing of the appeal, are not in accord with the case set out by him in the application presented before the Appellate authority for restoring the appeal. Having considered the matter, I am unable to find any substance in the objection of the Respondents. Moreover, the question whether the Petitioner had sufficient cause for being absent on the date fixed for the hearing of the appeal is a matter essentially for decision by the Appellate authority.

The petition is allowed. The order dated April 1, 1970, of the Appellate authority is quashed. The Appellate authority will now consider the application dated February 16, 1970, of the Petitioner for setting aside the ex-parte order dismissing the Petitioner''s appeal. The Petitioner is entitled to his costs which I assess at Rs. 100 against Respondent No. 3.