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Palani Swamy Chetty Vs. Salla Muthamma - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtAndhra Pradesh High Court
Decided On
Case NumberCivil Revn Petn No. 1302 of 1963
Judge
Reported inAIR1967AP1
ActsAndhra Pradesh Buildings (Lease, Rent and Eviction) Control Act, 1960 - Sections 20(3) and 30(2); Andhra Pradesh Buildings (Lease, Rent, Eviction Control) Rules, 1961 - Rules 11(3), 8(3) and 22(8)
AppellantPalani Swamy Chetty
RespondentSalla Muthamma
Appellant AdvocateG. Srikrishna Prabhu, Adv.
Respondent AdvocateM.V. Subbaiah, Adv.
Excerpt:
.....8 (3) and 22 (8) of andhra pradesh buildings (lease, rent, eviction control) rules, 1961 - whether appellate authority had jurisdiction to dismiss appeal for default of appearance and later restore it - under section 30 (2) (d) of act government was empowered to make rules to set aside ex parte order - under rule 22 (8) appellate authority can decide dispute ex parte if party summoned does not appear - power to dismiss appeal for default of appellant was implied in these provisions - application to set aside orders dismissing appeal for default was maintainable under rules 8 (3) and 11 (3) - decision of appellate authority upheld. - - the controller or the appellate authority deciding the dispute shall record a brief note of the evidence of the parties and witnesses who attend, and..........act: (2-3) in exercise of the powers conferred by section 30. the governor of andhra pradesh made rules. rule 11, cl, (1) prescribed the procedure to be followed by the appellate authority in disposing of an appeal preferred to it against an order passed by the controller and it reads as follows: 'when an appeal under the act is preferred the appellate authority shall fix a day for hearing the appeal and send notice thereof to the appellant or appellants and the respondent or respondents mentioned in the appeal and shall also send a copy of the appeal along with the notice to the respondent or respondents.' '(2) if the appellate authority decides to make further inquiry, he may take additional evidence or require such evidence to be taken by the controller. (3) in any case in which an.....
Judgment:

Chandrasekhara Sastry, J.

(1) In this batch of civil revision petitions, two questions arise for determination:

(1) Whether the appellate authority under the Andhra Pradesh Buildings (Lease, Rent and Eviction Control) Act, 1960 (hereinafter called the Act) can dismiss an appeal for default of appearance of the appellant and

(2) Whether the appellate authority has power to restore such an appeal dismissed for default of appearance of the appellant on an application made by the appellant?

For deciding those two questions, it is necessary to refer to the relevant sections of the Act and rules framed thereunder Appeals against the orders passed by the Controller are provided by Section 20 of the Act, which reads:

'20 (1) Any person aggrieved by an order passed by the Controller may, within thirty days, from the date of such order, prefer an appeal in writing to the Chief Judge. Small Causes Court in the cities of Hyderabad and Secunderabad and elsewhere to the Subordinate Judge or if there are more than one Subordinate Judge, to the Principal Subordinate Judge having original jurisdiction over the area aforesaid. In computing the said period of their days, the time taken to obtain a certified copy of the order appealed against shall be excluded.

(2) On such appeal being preferred, the appellate authority may order stay of further proceedings in the matter pending decision on the appeal.

(3) The appellate authority shall send for the records of the case from the Controller and after giving the parties an opportunity of being heard and, if necessary, after making such further inquiry as he thinks fit either personally or through the Controller, shall decide the appeal.

Explanation - The appellate authority may, while confirming the order of eviction passed by the Controller grant an extension of time to the tenant for putting the landlord in possession of the building.

(4) The decision of the appellate authority and subject to such decision, an order of the Controller shall be final and shall not be liable to be called in question in any Court of law, except as provided in Section 22'

Power to make rules is conferred on the Government by Section 30, which reads'

'30 (1) The Government may by notification in the Andhra Pradesh Gazette, make rules to carry out the purposes of this Act.

(2) Without prejudice to the generality of the foregoing power, such rules may provide for-

X X X X X X X

(b) the procedure to be followed by controllers and appellate authorities in the performance of their functions under this Act:

X X X

(d) Setting aside ex parte orders passed under this Act:

(2-3) In exercise of the powers conferred by Section 30. The Governor of Andhra Pradesh made rules. Rule 11, Cl, (1) prescribed the procedure to be followed by the appellate authority in disposing of an appeal preferred to it against an order passed by the Controller and it reads as follows:

'When an appeal under the Act is preferred the appellate authority shall fix a day for hearing the appeal and send notice thereof to the appellant or appellants and the respondent or respondents mentioned in the appeal and shall also send a copy of the appeal along with the notice to the respondent or respondents.' '(2) If the appellate authority decides to make further inquiry, he may take additional evidence or require such evidence to be taken by the Controller.

(3) In any case in which an order is passed ex parte against a tenant or a landlord, he may, within fifteen days from the date of receipt of the order, apply to the appellate authority by whom the order was passed for an order to set it aside, and if he satisfies the appellate authority that the summons was not duly served or that he was prevented by any sufficient cause from appearing when the appeal was called on for hearing, the appellate authority shall make an order setting aside the order passed against the tenant or landlord, as the case may be, and shall appoint a day for proceedings with the appeal:

Provided that no ex parte order shall be set aside on any such application as aforesaid unless notice thereof has been served on the opposite party'

It will be useful to refer to Rule 8 also, which provides for the procedure to be followed by the Controller and which is as follows:

'8 (1) When an application under the Act is presented to the Controller he shall fix the date on which and the place at which the inquiry in respect of the application will be held and send a copy of the application along with the notice to the respondent or respondents:

Provided that in the case of application for evictions filed under sub-section (2) or sub-section (3) of Section 1 C in respect of buildings of which the State Government or the Central Government are tenants he shall not be bound to give such notice unless he considers such notice necessary, regard being had to the averments in the petition or any other material circumstance.

(2) The Controller shall give to the parties a reasonable opportunity to state their case. He shall also record a brief note of the evidence of the parties and witnesses, if any examined on either side and upon the evidence so recorded and after consideration of any documentary evidence which may be produced by the parties pass orders on the application.

(3) In any case in which an order is passed ex parte against a tenant or a landlord, he may, within fifteen days from the date of receipt of the order, apply to the Controller by whom the order was passed for an order to set it aside; and if he satisfies the Controller that the summons was not duly served or that he was prevented by any sufficient cause from appearing when the application was called on for hearing, the Controller shall make an order setting aside the order passed against the tenant or landlord, as the case may be and shall appoint a day for proceeding with the application:

Provided that no ex parte order shall be set aside on any such application as aforesaid unless notice thereof has been served on the opposite party.'

Reference also has to be made to C1. (8) of Rule 22, which reads:

'The Controller or the appellate authority deciding the dispute shall record a brief note of the evidence of the parties and witnesses who attend, and upon the evidence so recorded, and after consideration of any documentary evidence produced by the parties, a decision shall be given in accordance with justice, equity and good conscience by the Controller or appellate authority. The decision given shall be reduced to writing. If any party duly summoned to attend, does not attend, the dispute my be decided ex parte.'

(4) It will be noticed that this C1. 8 of Rule 22 refers to both the proceedings before the controller and the appellate authority. Sub-section (2) (d) of Section 30 empowered the Government to make rules providing for setting aside ex parte order passed under the Act Clause (3) of Rule 11 provided that, in any case in which an order is passed ex parte against a tenant or a landlord, he may apply to the appellate authority is given power to set aside the order passed against a tenant or a landlord as the case may be and to proceed with the appeal if the tenant or the landlord satisfies it that the summons was not duly served or that he was prevented by any sufficient cause from appearing when the appeal was called on for hearing Rule 8 made a similar provision for setting aside an order passed ex parte against a tenant or a landlord.

(5) The question for determination is whether the expression 'ex parte orders' in Section 30 (2) (d) of the Act or the expression 'an order is passed ex parte against a tenant or a landlord' in C1 3 of Rules 11 and 8 refers only to an order passed against a respondent before the Controller or the appellate authority in the absence of the respondent whether he be the tenant or the landlord, or whether they include also orders passed dismissing a petition before the Controller for default of the appearance of the petitioner before him, or an order passed by the appellate authority dismissing the appeal before him for default of the appearance of the appellant.

(6) The argument for the respondents in these revision petitions is that the expression 'an order is passed ex parte against a tenant or a landlord' refers only to an order passed against a tenant or a landlord, who happens to be the respondent. Distinction is sought to be made by the respondents between an order of dismissal for default of the appearance of the petitioner or the appellant as the case may be, and order passed ex parte against a respondent before the Controller or the appellate authority. It has to be seen whether there is any warrant for making any such distinction in the rules made under the Act, No doubt, under Order 9, C. P. C. of 1908, a distinction is made between an order of dismissal for default and an order passed ex parte against a respondent. Rule 8 requires the Controller to fix a date on which the enquiry in respect of the application before him will be held and to send notice thereof both to the applicant and the respondent. Similarly, C1. (1) of R. 11 prescribes that, when an appeal is preferred under the Act, the appellate authority shall fix a day for hearing the appeal and send notice thereof to the appellant and the respondent mentioned in the appeal. In so far as these Rules 8 and 11 prescribe that notice of the petition before the Controller or of the appeal before the appellate authority shall be sent to the petitioner or the appellant as the case may be, they provide for a procedure different from the one under the Code of Civil Procedure, 1908. In the case of a suit in a Civil Court, Order 5, Rule 1, C. P. C. provides only for the issue of summons to the defendant to appeal and answer the claim on a day to be therein specified. Similarly, Order 41, Rule 14, C. P. C. provides for the notice of the day fixed for the hearing of the appeal under Rule 12 being served on the respondent. The Code of Civil Procedure does not provide for service of notice of the day fixed for hearing on the plaintiff under the Code of Civil Procedure, no provision is made for setting aside an order of dismissal for default of a suit or an appeal on the ground that the summons was not duly served on him for the obvious reason that the Code does not provide for any such service on him.

(7) But, both Rules 8 and 11 provide for notice of the date fixed for enquiry or the hearing of the appeal being sent both to the applicant and the respondent. That is why provision is made in C1. (3) of Rule 8 as well as in C1. (3) of Rule 11 to the effect that, in any case in which an order is passed ex parte against a tenant or a landlord, he may apply to the Controller or the appellate authority to set aside the said order also on the ground that the summons was not duly served on him as required by C1. (1) of Rule 8 of C1. (1) of Rule 11 as the case may be. If the expression 'an order is passed ex parte' is to be restricted only to an order passed against a respondent in his absence either by the Controller or the appellate authority then it would follow that a petitioner before the Controller or an appellant before the appellate authority who is not served with notice of the date fixed for the enquiry of the petition or the hearing of the appeal by the appellate authority, cannot apply to set aside the order. It is not possible to give such a restricted meaning to the expression 'ex parte orders' in Section 30 (2) (d) of the Act or the expression 'an order is passed ex parte' in C1. 3 of Rules 8 and 11, because such a view will lead to wholly discriminatory and unjust results. Further, the provision in C1. (8) of R. 22 to the effect that, if any party duly summoned to attend, does not attent, the dispute may be decided ex parte clearly indicates that an ex parte order may be one passed against the petitioner or the appellant in his absence. Any party referred to herein may be the petitioner or the respondent before the Controller, or the appellant or the respondent before the appellate authority. If any of them is absent on the date fixed, the Controller or the appellate authority is given power to decide the dispute ex parte. If it is intended to refer only to a case where the respondent does not appear, the rule making authority would have used the expression 'if any respondent duly summoned to attend,' instead of the existing expression 'if any party duly summoned to attend' in the last sentence in this clause. Similarly, in C1. (3) of Rules 8 and 11 also, which provide for an application for setting aside the order passed ex parte, the expression 'against the respondent' would have been used instead of the words :against a tenant or a landlord.' Therefore, whatever may be the meaning to be given to the expression 'ex parte orders' in other contexts in other Acts or rules, we hold that the said expressions are used in this Act and the rules framed thereunder in a broad sense so as to include the orders passed by the of appearance of the petitioner or the appellant as well as respondent. It follows that applications to set aside orders dismissing a petition or an appeal for default are maintainable under Rules 8 (3) and 11 (3) at the instance of the tenant or the landlord though he be the petitioner or the appellant in the proceeding.

(8) But, for the respondents, reliance is placed upon the decision in Vishwanadham v. Venkatamma, : AIR1964AP388 . In that case, a tenant, aggrieved by an order of eviction passed by the Rent Controller in favour of the landlord, presented an appeal to the Chief Judge. Small Causes Court, who is the appellate authority. The appeal was posted for hearing to 15th March, 1962. On that date, the appellant and his Counsel were absent and the appeal was dismissed with costs. Then, the appellant filed an application for restoration of the appeal; but the appellate authority dismissed the same as incompetent. The question for decision before the High Court was whether the expresssion 'ex parte order', includes an order dismissing an appeal for default of appearance of the appellant. It was held that the expression 'ex parte order' has a definite connotation, namely, an order passed in favour of one person in the absence of the other and that it is difficult to postulate that the dismissal of an appeal for non-prosecution is an order passed ex parte against the appellant. It was pointed out that Rule 11(3) contemplates only an order passed against the opposite party, who was either not served with notice or was prevented by sufficient cause from appearance when the appeal was called on for hearing and that this rule is analogous to Order 9, Rule 13, C. P. C. Therefore, the learned Judge held that an application by an appellant, whose appeal was dismissed for default, to restore the appeal was not maintainable under Rule 11 (3). But the learned Judges, while noticing that Rule 11 (3) contemplates on order passed against the opposite party, who was not served with notice, did not take note of the fact that, under Rule 11 (1), the appellate authority is bound to send notice of the date fixed for hearing the appeal both to the appellant and the respondent, mentioned in the appeal. If Rule 11 (3) applies to a case where a party, who was bound to be served with notice, was not in fact served, we do not see how it does not apply to an appellant also, who had to be served under Rule 11 (1) with notice of the date fixed for hearing of the appeal. Further, the learned Judges had assumed that the distinction made in Or. 9. C. P. C. between an order dismissing a suit for default and a decree passed ex parte against a defendant is warranted by the procedure prescribed by the rules under the Act. It is already pointed out above that there is no warrant for any such distinction. Further, restricting the meaning of the expression 'an order is passed ex parte' only to an order passed against a respondent, who was absent, will virtually amount to adding the words 'who is a respondent' after the words 'against a tenant or a landlord' in C1. 3 of Rule 11. In our view, the decision in : AIR1964AP388 is not correctly decided and is, therefore, overruled.

(9) The next question for determining is whether the appellate authority had jurisdiction to dismiss the appeal for default. It is argued by the learned Counsel for the petitioners that the appellate authority is bound, under Section 20 of the Act read with C1. (8) of Rule 22 to peruse the record and give its decision on the merits, but has no jurisdiction to dismiss the appeal for default. In support of this argument, it is pointed out that, under Section 20 (3), the appellate authority shall send for the records of the case from the Controller and after giving the parties an opportunity of being heard and, if necessary, after making such further inquiry as he thinks fit either personally or through the Controller, shall decide the appeal. Reliance also is placed upon C1. (8) of R. 22, which provides that, upon the evidence recorded and after consideration of any documentary evidence produced by the parties, a decision shall be given in accordance with justice, equity and good conscience by the Controller or appellate authority. It is further argued, that there is no express provision in the Act or the rules which empowers the Controller or the appellate authority to dismiss a case for default and that, in the absence of any such provision, the Controller or the appellate authority has to decide a case on its merits instead of dismissing the same for default. In support of this argument, reliance is placed upon the decision of the Supreme Court in Sankatha Singh v. State of U. P. : AIR1962SC1208 , wherein it was held that a criminal appeal cannot be dismissed for default of the appearance of the appellants or their Counsel and that the Court has either to adjourn the hearing of the appeal to enable them to appear or should consider the appeal on merits and pass the final order. That obviously is because of Section 423, Cr. P. C. which prescribes the procedure to be followed by the appellate Court in disposing of criminal appeals. As pointed out by the Supreme Court in Sukhpal Singh v. Kalyan Singh, : [1963]2SCR733 , the appellate Court, under the said Section 423, Cr. P. C. is enjointed to pass the final order in the appeal after it had perused the record and heard the appellant or his pleader and the Public Prosecutor. The Supreme Court, in the later case, pointed out that the persual of the record is enjointed on the Court and that the Court cannot dispose of the appeal merely after hearing the appellant or his pleader and the public prosecutor, but that it has to persue the record.

(10) In the present case, Section 20 (3) merely provides that the appellate authority shall decide the appeal after sending for the records of the case from the Controller and after giving the parties an opportunity of being heard and, if necessary, after making such further inquiry as he thinks fit either personally or through the Controller. No doubt, there is no section in the Act, which empowers the Controller or the appellate authorit to dismis a petition or an appeal for default of appearance of the petitioner or the appellant; but Section 30 (2) (d) empowers the Government to make rules for setting aside an ex parte order. Similarly, C1. (8) of Rule 22 empowers the Controller or the appellate authority to decide the dispute ex parte 'if any party duly summoned to attend' does not attend. In our vies, the power to dismiss a case for default of the petitioner or the appellant is implied in these provisions. In this context, we may refer to the decision in re, Radhakrishnan, AIR 1950 Mad 448.

(11) In that case, an appeal under the Madras Buildings (Lease and Rent Control) Act (XV of 1946), was dismissed with the following order:

'Appellant called, absent, Dismissed.'

(12) Then, an application was taken to issue a writ of certiorari to quash the order of the appellate authority on the ground that it was incumbent on the appellate authority to have decided the appeal on its merits under Section 12 (3) of the Madras Act. But, Rajamannar, Chief Justice, held.

'In our opinion, when neither the appellant nor his advocate appeared to show how the Rent Controller erred and it was not shown that the decision of the Rent Controller was in any way erroneous, the appellate authority had no other course but to dismiss the appeal. The dismissal of the appeal in such circumstances is nevertheless a decision of the appeal. There is no ground for interference by certiorari. The application is dismissed.'

This is clear authority for the position that the dismissal of an appeal for default of the appearance of the appellant is a decision of the appeal. Even in the case of the Controller, if the petitioner does not appear in person or by Counsel and does not satisfy the Controller that his application is well founded, the Controller will have no option, but to dismiss the application for default.

(13) We hold that the appellate authority had jurisdiction to dismiss an appeal for default of the appearance of the appellant either in person or by Counsel. These revision petitions will be posted for final orders.

(14) Reference answered accordingly.


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