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Abdur Rahmani Bai Vs. Fatima Bee and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAndhra Pradesh High Court
Decided On
Case NumberCivil Revn. Petn. No. 549 of 1959
Judge
Reported inAIR1960AP492
ActsCode of Civil Procedure (CPC) , 1908 - Sections 115 - Order 21, Rules 58 and 63; (Andhra Pradesh) Civil Rules of Practice - Rule 143
AppellantAbdur Rahmani Bai
RespondentFatima Bee and ors.
Appellant AdvocateM.F. Farooqui, Adv.
Respondent AdvocateK.V. Rangachari, ;S.M. Hasan, ;A.L. Narayana Rao and ;Abdur Rahman, Advs.
DispositionRevision allowed
Excerpt:
.....with sub-rule (3) by the tenant. the payment or deposit of rent under section 11 read with sub-rule (6) of rule 5 arises only in respect of a tenant who did not take recourse to section 8 or section 9 before an application for eviction has been made against him in respect of any rent in arrears by date of that application, whereas in respect of rent that becomes subsequently due since date of application for eviction, the tenant is bound to pay or deposit regularly until termination of proceedings in order to enable him to contest the application. any violation of section 11(1) to (3) and sub-rule (6) of rule 5 makes the tenant liable for the adverse consequences under sub-section (4) of section 11. thus, the provisions of section 11 and sub-rule (6) of rule 5 are intended only to..........with rule 180 of the civil rules of practice and form 66, the further observations of the learned district munsif are neither material nor necessary and the dismissal of the application could not be treated as one on merits. the relevant portion of the order of the learned district munsif reads thus:'as the petition is not on the proper form and verification is also not written on this petition, is rejected. 'when an order of rejection of the petition has been passed for these reasons stated by the learned district munsif, he is not entitled, in my view, thereafter to consider the petition on merits. therefore i am inclined to accept the argument for the petitioner that the petition could not be considered as having been decided on merits, and therefore the question of rejection.....
Judgment:
ORDER

Munikanniah, J.

1. This revision petition is directed against the orders of the learned District Munsif of Kodangal rejecting an application purported to have been filed under Order XXI Rule 58 C, P. C. The respondents object to the maintainability of this petition on the ground that the procedure that ought to have been adopted by the petitioner is that provided under Rule 63 of Order XXI and that a revision will not lie. This contention is sought to be met on behalf of the petitioner by pointing out that inasmuch as the petition has been rejected for non-compliance with Rule 180 of the Civil Rules of Practice and form 66, the further observations of the learned District Munsif are neither material nor necessary and the dismissal of the application could not be treated as one on merits. The relevant portion of the order of the learned District Munsif reads thus:

'As the petition is not on the proper form and verification is also not written on this petition, is rejected. '

When an order of rejection of the petition has been passed for these reasons stated by the learned District Munsif, he is not entitled, in my view, thereafter to consider the petition on merits. Therefore I am inclined to accept the argument for the petitioner that the petition could not be considered as having been decided on merits, and therefore the question of rejection of the petition could be questioned in this revision petition.

2. The next point that arises is as to the order which the learned District Munsif has to pass. When a claim petition under Order XXI, Rule 58 is sought to be filed not by means of a verified petition but by a petition supported by an affidavit, no doubt, in such a case as the affidavit would contain only the Jurat in respect of the affirmation and not the verification specifying what the petitioner believes to be true or states on information or otherwise, there is indeed a difference in the form to be adopted by the petitioner in the matter of seeking this relief. It cannot be said that while the petitioner seeks to support the petition by means of an affidavit, the allegations in the affidavit are on a par with the averments in a verified application. But the important question that arises is, is it necessary when a certain application is not in the prescribed form, as in this case in form No. 66, that the Court should entertain the petition at all so as to dismiss it or reject it, or that it be scrutinised at the time of receiving the petition with a view to return the petition, if necessary, or call for a petition on the proper form. It may be when the defect is pointed out and there has been non-compliance with the return, that there may be option left to the Court to deal with the petition as it is couched. But such may not be the case where the procedure of return is not adopted which normally is expected of the Courts when a certain petition is not in the proper prescribed form. There is nothing in the Rules of Practice or in the Civil Procedure Code that the rejection of the petition should be necessarily the result of a mistaken or improper or irregular adoption of the form prescribed for a petition or even when rules are not complied with. We have only rule 143 which speaks of a defective execution application; and there the option of return or rejec-tion is left to the Court. While so, it would be j salutary not to be hard upon the petitioners I in adopting the only procedure of rejection when compliance or rectification of defects is possible if a return is made. In this view I consider that this is not a case where the learned District Munsif felt that he was exercising an option between return or rejection and therefore his discretion should not be interfered with. But on the other hand, he seems to have felt that rejection of the petition is the only thing that he is bound to order and there-fore this order of rejection must be taken to havebeen passed by the learned District Munsif withmaterial irregularity even though in exercise of hisjurisdiction. I therefore set aside the order ofrejection of the claim petition, and direct the District Munsif to restore it to file and allow the petitioner to make the claim by means of a verifiedpetition and deal with it according to law. In thecircumstances no order as to costs.


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