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Salvari Vishwanadham Vs. Mankali Venkatamma - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtAndhra Pradesh High Court
Decided On
Case NumberCivil Revn. Petn. No. 1782 of 1962
Judge
Reported inAIR1964AP388
ActsAndhra Pradesh Buildings (Lease, Rent and Eviction Control) Rules, 1961 - Rule 11(3); Code of Civil Procedure (CPC) - Order 9, Rule 13
AppellantSalvari Vishwanadham
RespondentMankali Venkatamma
Appellant AdvocateM. Shankaraiah, Adv.
Respondent AdvocateT. Dasarath Ramayya, Adv.
DispositionAppeal dismissed
Excerpt:
.....suit for eviction by lessor - appeal preferred before small causes court against order of eviction passed by rent controller - appeal dismissed due to default of both parties in appearance - application to restore appeal dismissed by small causes court - revision petition before high court - high court observed term 'ex parte order' in sub-rule (3) to rule 11 to mean order passed in favour of one party in absence of party who chooses not to appear before court after receiving summons - dismissal of appeal or case due to default cannot be said to be ex parte order - rule 11 (3) does not apply - rule analogous to order 9 rule 13 of code of civil procedure and contemplates only order passed against a party - held, petitioner's application to restore appeal cannot stand and petitioner liable..........act, 1960 (xv of 1960) was filed for evicting the tenant. on a number of occasions, orders were passed ex parte directing the eviction of the petitioner but they were subsequently set aside; ultimately, in october 1960, an order of eviction was passed after holding an enquiry in the presence of both parties.4. the petitioner, who was aggrieved by the order of the rent controller, secunderabad, carried an appeal to the chief judge, small causes court. the appeal was posted for hearing to 15-3-1962. on that date the petitioner and his counsel were both absent with the result that the appeal was dismissed with costs.5. for the restoration of this appeal, i. a. no. 122/4/62 was filed. the chief judge, court of small causes, dismissed the application, in the view that it was not competent.....
Judgment:

Chandra Reddy, C.J.

1. The point that calls for determination in this civil revision petition is whether an application to restore an appeal dismissed for default falls within the protection of Rule 11 (3) of the Andhra Pradesh Buildings (Lease, Rent and Eviction Control) Rules, 1961.

2. This revision petition was first heard by our learned brother, Sharfuddin Ahmed, J., on 21-6-1963 and he desired it to be placed before a Bench for an authoritative pronouncement as he felt that it is a matter of much importance.

3. A few material facts may be recited for an appreciation of the contentious arising in this petition. The petitioner is a lessee of a certain premises belonging to the respondent in the Secunderabad town. As he defaulted in the payment of rent for four months, an application under Section 10 of the Andhra Pradesh Buildings (Lease, Rent and Eviction) Control Act, 1960 (XV of 1960) was filed for evicting the tenant. On a number of occasions, orders were passed ex parte directing the eviction of the petitioner but they were subsequently set aside; ultimately, in October 1960, an order of eviction was passed after holding an enquiry in the presence of both parties.

4. The petitioner, who was aggrieved by the order of the Rent Controller, Secunderabad, carried an appeal to the Chief Judge, Small Causes Court. The appeal was posted for hearing to 15-3-1962. On that date the petitioner and his counsel were both absent with the result that the appeal was dismissed with costs.

5. For the restoration of this appeal, I. A. No. 122/4/62 was filed. The Chief Judge, Court of Small Causes, dismissed the application, in the view that it was not competent for him to grant that relief. It is to revise this order that the present revision was filed.

6. The short point for decision is whether an application to restore an appeal dismissed for default was cognisable by the appellate court. The answer to this turns upon the interpretation to be placed on Rule 11 (3) of the Andhra Pradesh Buildings (Lease, Rent and Eviction Control) Rules, 1961. It recites :

'(1) 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 enquiry, 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 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 bearing, 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 proceeding 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'

7. We are here concerned only with Sub-rule(6), which clothes the appellate Court with power to set aside an ex parte order.

8. The argument advanced by Sri Sankariah, learned counsel for the petitioner is that the expression 'an order is passed ex parte' occurring in Sub-rule (3) embraces within its comprehension an order of dismissal for default. According to him, this construction is fortified by the clause 'an order is passed ex parte against a tenant or a landlord.'

9-10. We are not persuaded that the language of the rule warrants such a broad proposition. His argument proceeds upon the assumption that an appeal is always brought only by the tenant and the landlord always is the respondent. That clause 'against a tenant or landlord' does not denote 'a tenant as appellant or land-lord as respondent,' as suggested by him. That clause only means 'when an order is passed ex parte either against a tenant or a landlord who happens to be the respondent.' This is made clear by the last portion of the rule which says :--

'......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 proceeding with the appeal.'

That supports the above conclusion.

11. Further, the expression 'ex parte order' occurring in Clause (3) has a definite connotation, namely, an order passed in favour of one person in the absence of the other. It is difficult to postulate that the dismissal of an appeal for non-prosecution is an order passed ex parte against the appellant.

12. The meaning of the word 'ex parte' as given in the Wharton's Law Lexicon is this :

'(On behalf of), a proceeding by one party in the absence of the other.'

13. Similar is the meaning of that term in Ramanatha Ayyar's Law Lexicon :

'from, of, or by one side, or one party; hence partial, done for or by one party; on the application of one party.'

14. One of the meanings given for this word in the Chambers Twentieth Century Dictionary is this:

'On one side only.'

15. As we have already remarked, the dismissal of an appeal or a case for default cannot be described as an order passed in favour of the respondent and at his instance in the absence of the appellant or the petitioner. Such an order does not possess the attribute of an 'ex-parte order.' The distinction becomes clearer it we bear in mind the fact that an opposite party to a case is declared ex parte when, on receipt of summons or notice, he does not choose to appear in Court or the Tribunal concerned. But when the person, who has initiated the proceedings, chooses to absent himself, the proceeding is dismissed for non-prosecution. It cannot be said that in such a situation he is set ex parte.

16. This distinction becomes clear from a perusal of Order 9, Rules 6 and 9, C. P. C.

17. The distinction between a dismissal for default and an order ex parte against the other side is a well-recognised one and it is difficult to ignore it. In our opinion, Rule 11 (a) 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, This rule is analogous to Order 9, Rule 13 C. P. C. The rule-making authority had obviously in mind the case where one party obtains an order behind the back of the other either without notice to him or when the other party is prevented by sufficient cause from appearance. This rule does not seem to take in the case of dismissal of an appeal for default.

18. The present rule seems to be a sequence to a decision of this Court in Khaja Gulam v. Collector, Medak, AIR 1958 Andh Pra 442 in which it was ruled that it was not open to the appellate authority under the Hyderabad Houses (Rents, Eviction and Lease) Control Act (20 of 1954) to have recourse to the provisions of Order 9, Rule 13. C. P. C. to set aside an ex parte order passed in the exercise of its appellate jurisdiction. On the date of that decision a rule similar to the present Rule 11(3) was not in existence. It is to get over the difficulty created by this ruling that Rule 11 (3) was inserted in the Andhra Pradesh Buildings (Lease, Rent and Eviction Control) Rules, 1981.

19. It may incidentally be mentioned here that the Madras Buildings (Lease and Rent Control) Rules also did not contain a similar provision before 1951. The absence of such a provision led to the decision by a Division Bench of the Madras High Court in Abdul Khadir v. Murthy, 60 Mad L W 739 : (A I R 1948 Mad 235) that an appellate court could not set aside its previous order allowing an appeal, as the provisions of Order 9, Rule 13, C. P. C., were unavailable to the appellate authority constituted under the Madras Buildings (Lease and Rent Control) Act, 1946. In such a situation, the Government of Madras (composite State) inserted a rule which is in pari materia to the rules now under interpretation. In fact, the present Rule 11 (3) appears to be based upon Rule 12 of the Madras rules.

20. This opinion of ours gains support from the judgment of the Madras High Court in Hanumantha Rao v. Anantharama Iyer, (1962) 1 Mad LJ 441. It was ruled there that Rule 12 (3) of the rules made under the Madras Buildings (Lease and Rent Control) Act, 1949 which corresponds to Rule 11 (3) now under interpretation, did not empower an appellate authority to restore an application to set aside an ex parte order passed in an appeal, dismissed for default. Jagadisan J., who spoke for the court, observed in the course of his judgment :

'An order of dismissal o[ an application or any other proceeding for default of appearance of the applicant or the person who commenced the proceeding cannot appropriately be described as an ex-parte order against the applicant or the individual. It is only in a case where relief is sought in an application, suit or other proceeding against a person, and that person fails to appear to show cause why the relief prayed for should not be granted, the court or Tribunal declares him ex parte and thereafter proceeds to deal with the matter on its merits.'

The Bench referred with approval to the judgment of Ramachandra Ayyer J. (as he then was) in C. R. P. No. 431 of 1959 (Mad).

21. On a consideration of the language of Rule 11 (3) and the principles enunciated by the decided cases, we have reached the conclusion that Rule 11 (3) excludes from its ambit dismissals of applications or appeals for default and that its operation is confined to setting aside orders passed in favour of the petitioners or the appellants, as the case may be.

22. In the circumstances, the order under revision based upon a ruling of the Madras High Court referred to above cannot be successfully impugned.

23. In the result, the civil revision petition is dismissed with costs. Advocate's fee--Rs. 50/- (fifty).

24. The petitioner will forthwith vacate the premises occupied by him and deliver possession thereof.

25. It should he remembered that the order directing the petitioner to vacate the premises was passed as far back as 1960 and it is regretful that by obtaining orders of stay he could drag on the matter for so many years and deprive the respondent of possession of his property.


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