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Kuttapan and ors. Vs. Chellamma and anr. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKerala High Court
Decided On
Case NumberO.P. No. 5640 of 1972
Judge
Reported inAIR1974Ker91
ActsKerala Land Reforms Act, 1963 - Sections 101; Code of Civil Procedure (CPC) - Order 9, Rule 13
AppellantKuttapan and ors.
RespondentChellamma and anr.
Appellant Advocate T.V. Ramakrishnan and; K. Ravindran, Advs.
Respondent Advocate Varghese Kalliath, Adv.
DispositionPetition dismissed
Cases ReferredKalyani Amma Bhargavi Amma v. Ouseph Varkey
Excerpt:
- - (2) the land tribunal, after such en-quiry as it deems fit, and on being satisfied that the applicant has complied with all the conditions mentioned in sub-section (2) or sub-section (4), as the case may be, of section 75, may pass an order requiring the kudikidappukaran to shift the kudikidappu before such date as may be specified in the order:.....on for hearing, the writ petitioner herein, (who was the respondent in the application before the land tribunal) was absent the tribunal nevertheless heard the petitioner before it. examined the objections which had been filed by the respondent before it (the writ petitioner); and allowed the application for shifting. the writ petitioner thereupon filed i. a. no- 6 of 1972 to re-open the ex parte decision of the tribunal on the ground that he had not been heard, and should be afforded an opportunity of substantiating his objections the application was dismissed by the tribunal on the ground that it had no jurisdiction to set aside the order already passed, and that the said order was passed on the merits, after giving due consideration to all the points raised in the objections. ext p2.....
Judgment:
ORDER

V.P. Gopalan Nambiyar, J.

1. The Respondent in this writ petition filed an application under Section 75 (2) of the Land Reforms Act for the purpose of shifting the kudikida-ppu of the writ petitioner. On the day the application came on for hearing, the writ petitioner herein, (who was the Respondent in the application before the Land Tribunal) was absent The Tribunal nevertheless heard the petitioner before it. examined the objections which had been filed by the Respondent before it (the writ petitioner); and allowed the application for shifting. The writ petitioner thereupon filed I. A. No- 6 of 1972 to re-open the ex parte decision of the Tribunal on the ground that he had not been heard, and should be afforded an opportunity of substantiating his objections The application was dismissed by the Tribunal on the ground that it had no jurisdiction to set aside the order already passed, and that the said order was passed on the merits, after giving due consideration to all the points raised in the objections. Ext P2 is a copy of the order of the Tribunal. This writ petition has been filed to quash the same.

2. The question debated is whe-ther a Land Tribunal has got the power to set aside an ex parte order passed by it. Section 77 which is the relevant sec-tion dealing with the disposal of an application to shift the kudikidappu in so far as it is relevant, reads as follows:

'77. Procedure to enforce shifting of kudikidappu in certain cases: (1) If the kudikidappukaran does not comply with the requisition made under Sub-section (2) or Sub-section (4) of Section 75 by the person in possession of the land to shift to a new site, such person may apply to the Land Tribunal having jurisdiction to entertain an application under Section 80-B in respect of the kudikidappu to be shifted, to enforce compliance with such requisition:

Provided that no application under this sub-section shall be made without giv-ing the kudikidappukaran one month's notice by registered post.

(2) The Land Tribunal, after such en-quiry as it deems fit, and on being satisfied that the applicant has complied with all the conditions mentioned in Sub-section (2) or Sub-section (4), as the case may be, of Section 75, may pass an order requiring the kudikidappukaran to shift the kudikidappu before such date as may be specified in the order:

Provided that no such order shall be passed in any case where a certificate of purchase has been issued under Section 80-C in respect of the kudikidappu.

(3) If the kudikidappukaran does not shift the kudikidappu before the date specified in the order under Sub-section (2), the Land Tribunal shall cause the kudikidappukaran to be evicted from the kudikidappu.'

No rules have been framed defining the mode and manner of enquiry either under Section 77 or under Section 75 (which deals with an application for evicting the kudikidappukaran from the kudikidappu). Section 101 confers on the Tribunal certain specifically enumerated powers of a civil court while trying a suit under the Code of Civil Procedure in respect of certain specified matters. But the power under Order 9, Rule 13, of setting aside an ex parte decree or order is not one of the specifically conferred or enumerated powers. Section 101 (1) (e) provides that the Land Tribunal mav have the powers of a Civil Court under the Civil Procedure Code in respect of any other matter which mav be 'prescribed'; but no such prescription was broueht to my notice. In the face pf these, the Land Tribunal, being essentially a statutory Tribunal with specifically enumerated powers, cannot have the power to set aside an ex parte decree or order. The Full Bench decision of this Court in Kalyani Amma Bhargavi Amma v. Ouseph Varkey (1967 Ker LT 317) = (AIR 1967 Ker 287 FB), ruled, with respect to the provisions of Sections 101. 129 (2) (e) to the Land Reforms Act and Rule 99 of the Land Reforms Tenancy Rules that the Land Tribunal had Power to set aside an ex parte order. The re-quisite power was found under the pro-visions of Rule 99. The Full Bench overruled the contrary view taken by three of us, each sitting alone. As the conclusion was rested solely on Rule 99 of the Rules and as there is now no such or similar rule. I am unable to hold that there is a power in the Land Tribunal to set aside an ex parte decree Mvself and Mr. Justice Krishnamoorthy Iyer in C. R. P. No. 270 of 1969) (Ker) considered the Full Bench decision and held that the former part of Order 9. Rule 9 providing for the bar of a fresh suit on the same cause of action would not be attracted as far as the Land Tribunal is concerned. The Tribunal was correct in refusing to set aside the ex parte order passed by it, and in refusing to re-hear the application on which orders had been passed by it. I dismiss this writ petition, but in the circumstances without costs.


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