CHERU OUSEPH Vs. KUNJIPATHUMMA

JUDGEMENT

(1.) The landlord was not present in Court when her eviction petition under Act 2/65 was taken up for trial, and the petition was dismissed for default. She applied for restoration and the Rent Control Court allowed the application, on being satisfied that there was sufficient cause to do so. The tenant appealed, but without success. His revision under S.20 fared the same fate. And that is how he has come to this Court, under S.115 Civil Procedure Code.

(2.) The question whether a Rent Control Court has power to restore a petition dismissed for default was considered by this Court in Asher v. Raru ( 1979 KLT 260 ). The rival contentions were based on the provisions of S.23 of the Act. Clause (h) of S.23(1) confers on the Rent Control Court the same powers as are vested in a Civil Court in the matter of setting aside ex parte orders; and clause (k) ropes in the power of review also. Janaki Amma, J. held that the power to restore was different from the power to set aside ex parte orders, and that clause (h) was not applicable. At the same time it was indicated that the power to review conferred by clause (k) could be used for restoring a petition dismissed for default.

(3.) Counsel for the revision petitioner suggests that the above approach requires reconsideration. The argument is that if the power under clause (h) of S.23(1) to set aside ex parte orders is not a substitute for the power under O.9, R.9 Civil Procedure Code, the same must be said about the power of review under clause (k) also. The court's power under S.114 and O.47 is distinct and different from the power under O.9 R.9; and when S.23(1)(k) of the Act confers only one of these powers on the Rent Control Court, the other should be deemed to have been denied. A tribunal, it is said, can exercise only those powers specifically conferred by statute; and when the legislature has addressed itself to the question as to what powers of a civil court could be conferred on a Tribunal and has chosen to confer only a few of them, the others cannot be found to exist. No other decision has been cited; and if the power to restore were traceable solely to S.23(1)(k), I would have bestowed more serious attention to the objection raised in the above form. But I think, as I will presently show, that an entirely different approach is possible.