ASHER Vs. RARU

JUDGEMENT

(1.) The respondent in this revision petition filed R. C. O. P. No. 214/72 for eviction of the petitioner from a building that he had taken on rent. The claim was contested. On 4-3-1974 the petition was dismissed for default. On 18-3-74 the respondent filed IA. No. 919/74 for restoration of the petition to file. He also filed IA. No. 918/74 to get himself examined on commission. On 28-6-74 the respondent and his counsel were absent. There was default in depositing the commission bata as directed. IA. No. 918/74 and IA. No. 919/74 were therefore dismissed. The respondent filed IA. No. 1713/74 for restoring IA. 919/74. The Rent Control Court held that the petitioner did not explain his absence on 28-6-74 and dismissed the petition. In appeal , the Appellate Authority observed that the absence of the respondent stood explained in view of the fact that the application for issue of commission itself was filed on the ground of illness. The court having allowed that application was not justified in observing that the appellant was absent without sufficient reasons. Taking the above view the Appellate Authority restored to file RCOP. 214/72, without adverting to the fact that IA. 1713 of 1974 was filed to restore only IA. 919/74. The matter was taken up In revision before the District Judge, Kozhikode. The District Judge, Kozhikode set right the irregularity and directed that the order of restoration would be confined to IA. 919/74. The legality of this order is challenged in this revision.

(2.) There is no specific provision in the Kerala Buildings (Lease and Rent Control) Act (for short the Act) for restoring a petition dismissed for default. S.23 of the Act confers on the Rent Control Court, and the Appellate Authority the powers under the Code of Civil Procedure only in matters mentioned in that section. Under the said provision the Rent Control Court and the Appellate authority have the powers to set aside the ex parte orders and also to review their own orders. The section does not say that the provision of either O.9 R.8 or O.9 R.9 would apply in the case of petitions filed under the Act.

(3.) The respondent has a case that the order passed should be treated as one setting aside an ex parte order. But the general scheme of S.23 does not warrant such a course. The Code of Civil Procedure provides for the procedure to be followed when defendant only appears, in O.9 R.8 and 9 and for setting aside ex parte decree against defendant in O.9 R.19. The expression 'ex parte orders' is used in the Code of Civil Procedure only to denote orders passed in the absence of the party against whom a particular motion is made viz., defendant in the case of a suit and respondent in the case of other proceedings. The expression does not stand for orders passed in the absence of the plaintiff or the appellant or of a party who initiates particular proceedings. The expression should be presumed to be used in the same sense in S.23 of the Act which deals with powers under the Code of Civil Procedure. Therefore S.23(1)(h) which deals with the power to set aside ex parte orders has no application to a case where a petition is dismissed for default of appearance by the petitioner.