Johny Kottoor vs Ernakulam Co-operative House Construction Society Ltd. and Another

G.H. Guttat, J.—This is a petition under, Articles 226 and 227 of the Constitution of India. The question for consideration is whether an appeal to the Kerala Co-operative Tribunal, dismissed for omission to cure the defect of failure to pay the requisite fees makes the decision appealed from "the subject matter of the Appeal", within the meaning of the first proviso to Section 84 of the Kerala Co-operative Societies Act ("the Act" for brevity).

The question arises out of the facts set out in paragraph 2 below.

The Petitioner secured, u/s 70 of the Act, an award in A.R.C. 21 of 1979 against the Ernakulam Co-operative House Construction Society Limited, the Respondent No. 1 herein. The latter filed an appeal before the Kerala Co-operative Tribunal, Respondent No. 2. The appeal was not registered as the payment of the prescribed fees was irregular inasmuch as the amount had been credited to a wrong head of account. For this reason, the appeal did not conform to the provisions of the Kerala Co-operative Societies Rules ("the Rules" for short) and constituted a defect within the meaning of Sub-rules (3), (4) and (5) of Rule 100 of the rules. This defect was not removed by the Respondent No. 2. Eventually, the defective appeal was placed before the Tribunal, the Respondent No. 2 who dismissed the appeal for failure of the Respondent No. 1 to cure the defect.

Section 84 of the Act confers revisional power on the Tribunal. The first proviso to Section 84 precludes the Respondent No. 2 from making any order, under its revisional jurisdiction, if "the decision or order has been made the subject matter of an appeal". The Respondent No. 1, whose appeal was dismissed in the aforesaid circumstances, invoked the revisional jurisdiction of the Respondent No. 1 u/s 84 of the Act. The Petitioner, who questioned the competence of the revision petition (R.P. No. 2/1989) urged that the Respondent No. 1 by filing the appeal which was dismissed in the circumstances stated in paragraph 2 above, made the decision in A.R.C. 21/1977 "subject matter of an appeal". The Respondent No. 2 held that since the appeal filed by the Respondent No. 1 was defective and was dismissed by reason of such defect, the decision in A.R.C. 21 of 1977, which was appealed from was "not made subject matter" of the appeal. Consequently the Tribunal by its order dated 20th February, 1991 in R.P. No. 2/1989, directed issue of notices of hearing on the remaining points.

Clause (b) of the first proviso to Section 84 of the Act, precludes the Kerala Co-operative Tribunal from exercising its revisional jurisdiction, if the decision sought to be revised "has been made the subject matter of an appeal". When is a decision made subject matter of an appeal? The "making" of a decision "subject matter of an appeal" necessarily involves an act by the Appellant which shows his intention to make the impugned decision, the bone of contention. To "make" the decision "subject matter of an appeal" is to bring into question the correctness of the decision, by the prescribed procedure. This is done through the vehicle of the appeal memo. The subjection of the decision to the judicial scrutiny, through the vehicle of the memorandum of appeal, is an act of "making" it the "subject matter" of the appeal. The words "has been made subject matter of an appeal" do not imply the hearing or entertaining, an appeal by the Court. When an appeal, defective or not, is presented, the Appellant subjects the decision appealed from to the examination by the Appellate Tribunal. There may be procedural requirements like deposit of fees, annexation of copy of the order appealed from, and so on. These requirements are prescribed for completing the proceedings and readying them for its consideration on merits. But this, in no way derogates from the fact that the Appellant reached the Appellate Tribunal with the intention of subjecting the decision appealed from to the examination by the Tribunal.

The act of making a decision the "subject matter of an appeal" should not be confused with the hearing and consideration of the merits of the contentions urged in the memorandum of appeal. The merits of an appeal may not have been admitted to the consideration of the Tribunal. That is, an act of the Tribunal. The "making" of the decision "subject matter" of an appeal is an act which the Appellant performs. The act is complete as soon as the Appellant flies the appeal.

I am of the opinion that an appeal comes into existence, the moment, an aggrieved party reaches the Appellate Tribunal with the prayer that the order appealed from be set aside or modified. It continues to exist as an appeal until it is terminated by a decision of the Appellate Tribnual. The appeal may be terminated by an adjudication on its merits or by dismissing it for failure to cure the defect, or for default of appearance of the Appellant. In each of such cases, there is, in existence, an appeal. The existence of defects or deficiencies in the constitution of an appeal, does not affect its existence. An appeal, is an appeal even if it is irregular, incompetent (1)(a) Mela Ram and Sons Vs. The Commissioner of Income Tax Punjab, , (b) Andhra Steel Corporation v. State of Kerala, 1987 (2) KLT 503 and (c) Thankappan v. Trivandrum District Co-operative Bank Ltd., 1986 KLT 263 or otherwise aberrant.

In this case the Respondent by filing the appeal which was dismissed in the circumstances set out in paragraph No. 2 above, "made" the decision in A.R.C. 21/1977 "subject matter of an appeal". Therefore the first proviso to Section 84 of the Act was clearly attracted. Consequently the Tribunal exceeded its authority in proceeding to consider the merits of the contentions in the revision petition. I therefore allow this petition and set aside the order of the Tribunal dated 20th February, 1991 in R.P. No. 2/1989 and order that the R.P. No. 2/1989 shall stand dismissed.