THE HON’BLE JUSTICE MOUSHUMI BHATTACHARYA CIVIL REVISION PETITION NO.2548 OF 2024 Mr. Nadipally Ananda Rao, learned counsel for the petitioner.

Mr. B. Mahender Reddy, learned counsel for the respondent No.1.

ORDER

The Civil Revision Petition (C.R.P.) arises out of an order dated 07.03.2024 passed by the District Judge/Chairman of the Telangana Co-operative Tribunal at Warangal.

2. The impugned order was passed suo motu by the Court on a petition filed by the respondent No.1 under section 61 (3) and (4) of The Telangana Co-operative Societies Act, 1964.

3. The contention of the respondent No.1, who was the petitioner before the Tribunal, was that the petitioner herein should be disqualified under section 21-A (1-A) of the 1964 Act on the ground of the petitioner having 3 children. The petitioner (the respondent No.1 in the O.P.) denied this contention.

4. The statutory position needs to be clarified before I proceed any further with the rival contentions made by learned counsel appearing for the parties.

5. Section 21-A of the 1964 Act provides for disqualification for membership of committee as defined in section 2(b) of the 1964 Act i.e, the governing body of a Co-operative Society which controls the management of the affairs of a Society. Society has been defined in section 2(p) of the 1964 Act to mean a Co-operative Society registered/deemed to have been registered under the 1964 Act.

6. Section 21-A (1-A) of the 1964 Act was inserted into the Act with effect from 02.01.1995 and stipulates that a person having more than 2 children shall be disqualified for election or for continuing as a member of the Committee.

7. The first proviso to section 21-A (1-A) of the 1964 Act further stipulates that if an additional child is born within 1 year from commencement of The Andhra Pradesh Co-operative Societies (amendment) Act, 1995 i.e., between 02.01.1995 and 01.01.1996, the additional child shall not be taken into consideration for the purposes of disqualification under section 21-A (1-A) of the 1964 Act.

8. The question here is not whether the petitioner should have been disqualified under the above provisions but whether the Tribunal erred in passing the docket order dated 07.03.2024 and directing that the petitioner (the respondent No.1 before the Tribunal) should lead evidence and depose as to the particulars of his wife and children and other details. The Tribunal took into account section 102 of The Indian Evidence Act, 1872.

9. I have heard learned counsel appearing for the parties.

10. Section 101 of the 1872 Act lays down the sequence of giving the evidence and provides that he who asserts must prove certain facts exist and section 102 of the 1872 Act puts the onus i.e., the burden of proof on the person who would fail if no evidence were to be given on either side.

11. In the present case, section 102 of the 1872 Act puts the onus on the respondent No.1 before this Court i.e., the petitioner before the Tribunal since absence of the evidence given by the parties would result in direct prejudice to the petitioner before the Tribunal i.e., have a prejudicial bearing on the O.P.

12. Therefore, the reasoning of the Tribunal to put the onus on the petitioner (the respondent No.1 in the Tribunal) to lead evidence is not tenable.

13. Second, even if section 101 of the 1872 Act was to apply, the onus will still be on the respondent No.1 herein (the petitioner before the Tribunal) since the respondent No.1 has not been able to show any assertion made by the petitioner in the counter filed to the O.P. The Court could have understood a direction given to the petitioner to lead evidence first if the petitioner had made an assertion contrary to any statement made in the O.P.

14. The above reasons persuade this Court to set aside the impugned order.

15. Since the subject matter of the O.P. relates to an election conducted in December, 2022 with a term of 5 years which will be ending in December, 2027, the Tribunal is directed to expedite the hearing of