1. The agent to the Governor, Vizagapatam, was directed by this Court in C.M.P. No. 152 of 1909 to investigate and decide the question whether the petitioner Raghunatha Doss is the lawful Mahant of Sri Balajiswami Mutt in Jeypore or not and to dispose of the application for restitution of property accordingly. The result is that we have before us a finding of the special Assistant Agent that the said individual is the lawful Mahant, an order dated 6th March 1913 of the Agent to the Governor made without hearing the parties accepting the Special Assistant Agent's finding, two written endorsements dated 12th March 1913 on petitions objecting to the Special Assistant Agent's finding and asking for a hearing and an order dated 22nd May 1913 made after hearing both sides deciding that Raghunatha Doss was not the lawful Mahant.
2. We are now asked under Rule XX of the Agency Rules to direct the Agent to review his last order on the ground that having once passed an order in the matter he had no jurisdiction to review it without a fresh direction from the High Court.
3. There are no merits in the present application to recommend it. I have no doubt that the final order of the Government Agent, which follows the carefully considered decision of a former Governmnt Agent Mr. H.G. Turner, is right. If the matter had come before us on appeal from the first order of the Government Agent, we should feel the necessity of directing him to pass a final order after hearing the parties.
4. Now that he has decided the case in a proper way, it will serve no useful purpose to again remand it. To ask us to declare in favour of the first order is in effect to ask us to prefer a worse judgment to a better upon a purely technical objection. It is an elementary principle of justice that every litigant is entitled to be heard before an order is made to his prejudice. If any authority be needed for this self evident proposition it will be found in the wording of Agency Rules XVIII which speaks of 'the officer hearing the appeal' and in Yendamuri Jaganadhan v. Yendamuri Seshachellam I.L.R. (1905) MAD. 404 and in Gaheswar Singh v. Ganesh Das I.L.R. (1906) Cal. 1178 The Privy Council lay down in the latter case that the proper remedy of a party against whom an order has been made without hearing him is to apply to the same authority for a rehearing, as was done in the present case. The first order having been passed without notice to the parties had thus no judical value. As the whole matter is before us and the parties have been fully heard and as I am satisfied that the order appealed against is a just order, the proper course in my opinion is to dismiss the present application with costs.
5. This is sufficient to dispose of this petition, but as the question has been raised and argued at length whether the Agent acted without jurisdiction in reviewing his own order, I may state how I think that plea fails.
6. Under the Civil Procedure Code if a Court passes an order or decree without hearing one of the contesting parties, it is provided that that party may apply to the Court that passed the order to set aside its exparte order or decree (See Order IX Rr. 6, 8, 9 and 13). The procedure to be followed when an order is passed exparte both of plaintiff and defendant is similar (See Order IX Rr. 3 and 4).
7. Although it has been held that exparte decrees and orders are capable of being reviewed under the provisions of the Civil Frocedure Code (Vide Bam Prasad v. Rai Kishen I.L.R. (1883) All. 66 and Amir Hasan v. Ahmed Ali I.L.R. (1886) A 36) yet the ordinary procedure for dealing with the consequences of the nonappearance of parties is distinguishable from the procedure for review of judgment and is contained in Order IX of the Civil Procedure Code.
8. Now the Agency Rules are silent as to the procedure to be followed by Agency Courts in the event of parties not appearing at the hearing of suits and appeals. It is only as regards the examination of witnesses that Rule XIII specifically states that the rules prescribed by the Civil Procedure Code will apply. But Rule X C1. 4 invests the Agent and his Divisional Assistants with the same powers as are vested in District and Subordinate Courts respectively, subject to the modifications contained in these rules.
9. Where nothing appears to the contrary, it may therefore be reasonably assumed that a Government Agent, who takes the step that a District Court, acting as directed by the Civil Procedure Code, would take under similar circumstances, is acting legally. When the matter before the Agent is an appeal not summarily dismissed, Rule XVIII states positively that he 'will proceed as directed by the Code of Civil Procedure.' In this view, the order dated 22nd May 1913 was not ultra vires. The petition is dismissed with costs.
10. Under Rule 10 of the Rules framed for the Vizagapatam Agency tracts, the Agent to the Governor has the powers of a District Court, subject to any modifications contained in the rules and under that rule, the agent has held that he has the power of reviewing his own order and purports to do so in the case now under reference. For petitioner, it is contended that the agent has no such power and secondly that even if he has such power his present order is wrong because it is review of a review. I think the second objection may be disposed of briefly on the ground that the Agent has not reviewed an order passed in review. The petitions put in by counter-.petitioner on 5th March 1913 and 8th March 1913 were apparently written before the order of 6th March 1913 had been received by him and they are certainly not applications to review that order. The first is merely a petition asking for a hearing before orders are passed and the second is a petition setting forth the objections which counter-petitioner wished to urge against the finding of the Senior Assistant Agent. There was no hearing of either petition, but the Agent summarily dismissed them on the ground that counterpetitioner was not entitled to a hearing and that orders had already been passed. As the orders were not passed on any application to review the original order, of which counter-petitioner was then unaware, they cannot be treated as orders passed in review. I think it unnecessary to deal with the more difficult question whether the Agent has the power of review, for I agree with my learned brother that on the merits petitioner has no case. Even if I were of opinion that the Agent has no power of review and that the order under reference was passed without jurisdiction, it would be manifestly unjust to set aside and restore the order of 6th March 1913 which was passed without hearing the parties. Both orders would have to be set aside and the whole proceedings commenced afresh. However, I do not think that this course is necessary now, for the order under reference corrects an order which had been made previously without hearing the parties. It is an elementary principle that a party is entitled to be heard before an order is passed to his prejudice and the agent acted illegally in passing the order of 6th March 1913 without hearing either party. Even if he considered it to be an appeal, which it was not, the Agency Rules do not empower him to dismiss an appeal without allowing the appellent to be heard in support of it, although he need not summon the respondent. In a case where a Deputy Commissioner passed orders in the absence of a party who had died and subsequently reviewed his order, it was held by the Privy Council that he was right and Lord Shaw remarked 'Quite apart from Section 151, any court might have rightly considered itself to have an inherent power to rectify the mistake which it had inadvertently made' Raja Debi Baksh Singh v. Habib Shah : (1913)15BOMLR640 . When a party can have a mistake corrected by the Court which made the mistake, he should adopt that course rather than resort to the Appellate Court. Vide Vint v. Hudspith (1885) 29 Ch. D. 322 and Laliteswar Singh v. Ramakrishna Das (1906) 16 M.L.J. 365. In this view, as the whole case is open before us, I agree that we should not interfere in a case where an initial injustice has been corrected and substantial justice done.