NAZIMBUNNISA BI AND ORS. Vs. SYED BASHUR SAHIH

JUDGEMENT

(1.) THE point raised in this revision proceeding is an interesting one, and, -after careful consideration, I am inclined to the view that the order of the lower Court is correct. The facts are that the revision petitioners attempted to evict the cultivating tenant under the Madras Cultivating Tenants Protection Act (XXV of 1955), upon two broad grounds (1) that the tenant denied the title of the landlords, and (2) that he was in arrears of rent, and hence liable to be evicted. The facts are that there was a previous petition upon the same averments taken on file as T.P. No. 5 of 1959, which was dismissed due to the default of appearance by the petitioners, who were in the position of plaintiffs. Without seeking to have this dismissal set aside under Order 9, Rule 9, Civil Procedure Code, the petitioners filed the present petition, and the learned Sub -Collector has held that this petition was barred under the principle of Order 9, Rule 9, which applied to the procedure under the Madras Cultivating Tenants Protection Act.

(2.) IT is not in dispute before me that, originally, there were no such provision clothing the Revenue Court with power to make such ex parte orders or orders of dismissal for default of appearance, or with similar powers to have such orders set aside on cause being shown. This was pointed out and affirmed by this Court in Chinnathirumalal v. Chelapati, (1957) 1 M.L.J. 349 Subsequently, Rule 8 of the Rules framed under the Act was formulated in the following terms:

(3.) THE argument of the learned Counsel for the revision petitioners is that the wording of this rule does not directly or by necessary implication, attract Order 9, Rule 9(1), Civil Procedure Code, or its principle. The learned Counsel would rely upon the decision of Satyanarayana Rao, J., in AyyaluReddy v. Malla Reddy : (1948) 1 MLJ 381 but that decision is totally distinguishable, and actually, even the principles of that decision were different. That decision related to rules framed in Madras as Rules 104 and 105of Order 21, Civil Procedure Code. The learned Judge pointed out that in framing these rules, a provision analogous to the one contained in Order 9, Rule 9, Civil Procedure Code, was not framed, presumably advisedly, so that the bar of that rule did not apply to applications made in execution of a decree, The learned Judge further pointed out that it was a question for consideration by the Rules Committee whether it would be proper to add such an analogous provision to the Rules, regarding execution. But until that was done, a decree -holder whose execution applications had been dismissed for default, was entitled with impunity to make any number of applications so long as they were in time. I think it is obvious that the circumstances and the principle of this decision were totally different. Specific rules had been framed as part of Order 21, and a rule analogous to Order 9 Rule 9, Civil Procedure Code, was not then framed as applicable to execution petitions. Further, the execution of a decree itself stands upon a different footing from a suit or petition in enforcement of rights under a law : a decree is executable until it is finally satisfied, subject to the bar of limitation. But apart from this, the wording of Rule 8 set forth by me above is deliberately wide, and it does not limit to specific provisions of the Code of Civil Procedure. On the contrary, under Rule 8 (i) the Court is clothed with the power to function like a civil Court in the trial of suits. Under Rule 8 (ii)(1) and (g), the Court is again invested with power to act under the provisions of the Civil Procedure Code relating to these two broad categories. It seems to me to be indisputable that the rules of Order 9 in general, and particularly, Rules 2 to 14 in Order 9, are concerned with (1) the passing of ex parte orders, (2) setting aside of such orders on due cause being shown (3) orders of dismissal for default of appearance, and (4) setting aside such orders for adequate cause. Considering the wide and inclusive language of Rule 8 (ii), I do not see why it should be construed that Order 9, Rule 9, alone is excluded from the scope of this amended rule. Consequently, I am of the view that the lower Court was not in error in coming to the conclusion that it was entitled to reject this second petition, for the reason that the first dismissal for default had not been set aside upon due application.