S.MAHALINGA BHATTA Vs. ASSANARE BEARY

JUDGEMENT

(1.) THE petitioner in these revision petitions is the plaintiff in the suit O. S. No. 487 of 1966 on the file of the Munsiff's Court Kasaragod. The suit is one for recovery of possession of the plaint schedule properties from the defendant alleging that there has been trespass by him. The suit, after having undergone several adjournments was posted to 28 -7 -1967 as a last chance. On 28 -7 -1967 the learned Munsiff happened to be on leave. The suit was therefore reposted to 14 -8 -1967. On 14 -8 -1967 again the defendant was not ready and as a very very last chance the suit was posted to 30 -8 -1967. On 30 -8 -1967 the defendant was not present in court and his counsel reported no instructions. The result was, the suit was decreed as prayed for on 30 -8 -1967.

(2.) ON 4 -9 -1967 the defendant filed R. I. A. 1983/67 under Order 9, Rule 13 of the Code of Civil Procedure for setting aside the ex parte decree passed against him on 30 -8 -1967. The learned Munsiff in and by his order dated 30 -9 -1970 dismissed the petition for setting aside the ex parte decree. Aggrieved by the order of the learned Munsiff dated 30 -9 -1970 the defendant filed C. M. A. No. 35 of 1970 on the file of the Subordinate Judge Kasaragod. On 29 -6 -1971 the learned Subordinate Judge passed an order which reads as follows : -

(3.) AS these revision petitions arise from one and the same matter, they were heard together. Sri V.K. Venkatakrishnan, learned counsel appearing for the revision petitioner has put forward various contentions challenging the validity of the orders and judgment from which these revisions have arisen. The first contention of the learned counsel is that inasmuch as the order of the learned Subordinate Judge dated 29 -6 -1971 in C. M. A. 35/70 is a conditional order on the failure of the fulfilment of the condition imposed, the order works out automatically and the dismissal of the petition takes effect from the date on which it was passed, namely 29 -6 -1971. According to the learned counsel, the court had become functus officio with respect to the entire matter on 29 -6 -1971 and, therefore, the further proceedings are without jurisdiction, and the orders subsequently passed are neither valid nor legal. The second contention is that the orders that have been passed on I. A. 141/71 and I. A. 246/71 and the judgment in C. M. A. 35/70 are all, in any event, orders that cannot be sustained, either on facts or in law.