RAGHAVENDRAN Vs. BHARATHAN

JUDGEMENT

(1.) DEFENDANTS 1 and 3 are the appellants. They faced an exparte decree from the Trial Court in a suit for recovery of possession. They had contested the suit contending that they were tenants. Based on S.125(3) of the Kerala Land Reforms Act 1963, the issue was referred to the Land Tribunal, by the civil court. Land Tribunal found that there was no tenancy and the finding was endorsed to the Trial Court. At that stage in the Trial Court, the appellants were absent. The Trial Court passed a decree in the following terms: "Suit to recover possession of the plaint B schedule property from the defendants on the strength of plaintiff's title and for costs of suit. Plaintiff and counsel present. Defendants called absent. Defendant's counsel reports no instruction. Defendants set ex parte. Plaintiff filed affidavit. A decree is passed allowing the plaintiff to recover possession of the B schedule property from the defendants, with costs. At that time the order of the Land Tribunal, was available with the civil court. It is true that the defendants 1 and 3 were absent. In spite of that without going into the merits of the case, the suit was decreed exparte as mentioned above. That was challenged by defendants 1 and 3 before the lower appellate court. The lower appellate court dismissed the appeal stating that the appellants have no case that they were prevented by sufficient cause in not appearing in the court below on the date when they were declared ex parte. They had contentions against the findings of the Land Tribunal. On the aspect the lower appellate court found that even if the lower court had appended the order of the Land Tribunal along with its decree, the lower appellate court would not have been able to sit in judgment over that order on merits since the appeal was only against the disposal of the case on expire. It is this decree, which is impugned in this appeal.

(2.) AS already mentioned above, the suit was contested by the defendants 1 and 3 contending that a decree for recovery of possession cannot be granted, as they were tenants. When a tenancy is set up in a suit, naturally it has to be referred to the Land Tribunal under S.125(3) of the Land Reforms Act. Land Tribunal had gone into the evidence and circumstances of the case. The Land Tribunal considered the issue, and came to a finding that defendants 1 and 3 were not tenants and forwarded the finding to the Trial Court. It was at that stage the defendants did not appear and the suit was decreed exparte as mentioned above. In such circumstances, the procedure to be followed by the Trial Court was as contained in the Explanation to O.17 R.2 C.P.C. R.2 provides that if any of the parties failed to appear on the hearing date, the court shall proceed in terms of the provisions contained in O.9. But the explanation to the said rule provides that, where the evidence or a substantial portion of the evidence of any party has already been recorded and such party fails to appear on any day to which the hearing of the suit is adjourned, the Court may, in its discretion, proceed with the case as if such party were present. In this case, the finding entered into by the Land Tribunal on the basis of the evidence was available with the Trial Court when it passed the exparte decree. It is provided under S.125(5) of the Kerala Land Reforms Act that; the civil court shall on receipt of the decision of the Land Tribunal proceed to decide the suit or other proceedings accepting the decision of the Land Tribunal on the question referred to it. Even though the defendants had not appeared on the date when the suit was disposed of, exercising the jurisdiction in a just manner it was incumbent on the Trial Court to consider the case depending upon the finding of the Tribunal and to pass a decree accepting the same in terms of sub-s.(5) of S.125 of the Kerala Land Reforms Act. That was the natural course to be adopted by the Trial Court. But the Trial Court did not do so. The Trial Court had only declared the defendants exparte and passed exparte order without accepting the order of the Land Tribunal.

(3.) THE substantial question of law that emerges in this case is whether the Trial Court was justified when the finding of the Land Tribunal based on evidence was available before it in terms of S.125(4) of the Kerala Land Reforms Act, to pass an exparte decree without accepting the same. In terms of Explanation to R.2 of O.17 as discussed above, the Trial Court should have exercised its discretion in a judicious manner to accept the finding of the Land Tribunal as mandated by S.126(6) of the Kerala Land Reforms Act and to pass a judgment and decree on merit as enabled in terms of the Explanation to R.2 of O.17 C.P.C. Thus, the substantial question of law is answered in favour of the appellant setting aside the decree of the courts below and directing the Trial Court to pass a decree afresh accepting the finding of the Land Tribunal. The parties shall appear before the Trial Court on 17-1-2000. Second Appeal is allowed to the above extent. No costs.