KARTHIYANI Vs. APPELLATE AUTHORITY

JUDGEMENT

(1.) The 2nd respondent herein filed an application, O. A. No. 376/71, under S 80B of the Kerala Land Reforms Act, 1963 for purchase of the kudikidappu. The said application was dismissed as per Ext. P1 order of the Land Tribunal, Kozhikode. The second respondent preferred an appeal against the said decision as A. A. No. 421 of 1975 before the Appellate Authority (LR) Kozhikode, who is the first respondent herein That appeal was dismissed for default on 4-10-1976. Ext P2 is the decision dismissing the appeal for default. The second respondent thereafter filed Ext. P3 application to readmit the appeal on 24-1-1977 The petitioner herein, who was the respondent in O. A. No. 376/71 and A. A. 421/1975, preferred Ext. P4 objections thereto. Overruling the objections the Appellate Authority allowed Ext. P3 application. This is impugned before me mainly on the ground that the Appellate Authority has no jurisdiction to restore an appeal dismissed for default.

(2.) S.102(3) of the Kerala Land Reforms Act 1963 provides that 'in deciding appeals under sub-s.(1), the appellate authority shall exercise all the powers which a court has and follow the same procedure which a court follows in deciding appeal against the decree of an original court under the Code of Civil Procedure, 1908. The section confers power on the Appellate Authority and also prescribes the procedure which that authority has to follow. Powers conferred are those which the Appellate Authority has while dealing with an appeal from a decree under the Code of Civil Procedure, 1908. The procedure is also the same, namely, that an appellate court should follow in deciding the appeal against a decree under the provisions of the Code of Civil Procedure, 1908. Obviously the dismissal for default on 4-10-1976 was by virtue of the power the Appellate Authority has under S.102(3) read with the provisions in O.41 of the Code of the Civil Procedure, 1908. If the provisions in O.41 of the Code of Civil Procedure, 1908 were not to govern the procedure in deciding the appeal, the Appellate Authority could not have dismissed the appeal for default -- it could have dismissed the appeal for default only by exercising the power that is conferred on an appellate court under R.17 of O.41, which provides that when the appellant does not appear when the appeal is called for hearing the court may make an order that the appeal be dismissed. If R.17 in O.41 is attracted, necessarily and logically R.19 in that Order should also govern the case. R.19 in O.41 provides for readmission of an appeal dismissed for default on the appellant proving that he was prevented by any sufficient cause from appearing when the appeal was called on for hearing.

(3.) That the position is as aforesaid is well settled by a decision of the Full Bench of this court in Bhargavi Amma v. Varkey ( 1967 KLT 317 : 1967 KLJ 367 ) relied on behalf of the second respondent. Considering the question as to whether the Land Tribunal has jurisdiction to pass orders ex parte, to dismiss for default and to set aside the ex parte order and pass orders restoring an application dismissed for default, the Full Bench said as follows: