J.P. HANUMANTHA RAO Vs. N. ANANTARAMA IYER

JUDGEMENT

(1.) THE petitioner is the owner of a premises in Madras, and the respondent is his tenant in that premises. The respondent filed an application before the Rent Controller under the Madras Buildings (Lease and Rent Control) Act of 1949 seeking to have fair rent fixed for the said premises. After an enquiry into the matter the Controller fixed the fair rent in a certain amount. The petitioner aggrieved by the said decision filed an appeal, H.R.A. No. 272 of 1959 on the file of the Court of Small Causes, Madras. The respondent was duly served with notice of appeal and the appeal was posted for final hearing on 3rd November, 1959. The respondent failed to appear on that date before the appellate authority with the consequence that he was declared ex parte, and the appeal was allowed. On the next day, 4th November, 1959 the respondent filed an application, M.P. No. 2321 of 1959, before the appellate authority, the Court of Small Causes at Madras, for setting aside the ex parte judgment in the appeal, H.R.A. No.272 of 1959. Notice of this application was ordered to the petitioner, and the application stood posted for disposal on 5th December, 1959. The respondent failed to take steps to prosecute the application and the result was that M.P. No. 2321 of 1959 stood dismissed for default. The respondent next filed an application, M.P. No. 2597 of 1959 in the Court of Small Causes praying for restoration of the petition, M.P. No. 2321 of 1959 which was dismissed for default on 5th December, 1959. The petitioner was not served with notice of this application. On 12th December, 1959 the Court of Small Causes ordered M.P. No. 2321 of 1959 to be restored to the file of the Court. The petitioner ha& preferred this Civil Revision Petition against the order of the Court of Small Causes in M.P. No. 2597of 1959.

(2.) IT is certainly extraordinary that the learned Judge of the Court of Small Causes should have granted relief to the respondent without notice to the petitioner. The learned Judge acted quite illegally and failed to discharge his duties properly. The order of the Court below in M.P. No. 2597 of 1959 deserves to be set aside on this one ground alone, namely, that the petitioner was not heard in the matter.

(3.) THIS rule provides for an application enabling a tenant or a landlord to obtain cancellation of ' an ex parte order '. An order of dismissal of an application or any other proceeding for default of appearance of the applicant or the person who commenced the proceeding cannot appropriately be described as an ex parte order against the applicant or the individual. It is only in a case where relief is sought in an application, suit or other proceeding against a person, and that person fails to appear to show cause why the relief prayed for should not be granted, the Court or Tribunal declares him ex parte and thereafter proceeds to deal with the matter on its merits. A suitor who has moved a Court or Tribunal to obtain redress is not set ex parte when he fails to appear on the date of hearing, but his application or action is dismissed summarily for default of prosecution, while an ex parte order is always a decision on the merits of the dismissal for default is never such a decision. In the former case the matter is heard though in the absence of one of the parties, while in the latter case the matter is not heard at all. We are clearly of opinion that the respondent's application in the Court below, M.P. No. 2597 of 1959, is not sustainable under Rule 12(3).