M THANGIAH Vs. K RANGASWAMY

JUDGEMENT

(1.) THIS revision by the tenant, is directed against the order of the Appellate Authority, rejecting as not maintainable, his application under Rule 16 (3) of the Tamil Nadu Buildings (Lease and Rent control ) Rules, 1974 (herein-after referred to as the Rules) read with sec. 148, C. P. C. filed to restore his earlier application under Rule 16 dismissed for failure to pay costs with in the stipulated time and which had been filed to restore his appeal against the order of eviction, which had been dismissed for default.

(2.) FACTS briefly are: The respondent filed R. C. O. P. No. 38 of 1983 before the Rent Controller (District Munsif) Thirumangalam, against the petitioner on the ground of wilful default in the payment of rent. Eviction was ordered, against which the petitioner filed R. C. A. No. 11 of 1985 before the appellate Authority (Subordinate Judge) Madurai . On 16. 7. 1985 due to the absence of the petitioner and also his counsel and there being no representation on their behalf, the above appeal was dismissed for default. On 17-7-1985 the petitioner filed I. A. No. 172 of 1985 under Rule 16 of the Rules read with Sec. 151, C. P. C. for restoration of the appeal. Though, initially the respondent filed a counter objecting to the restoration. On 17-12-1985, both parties made a joint endorsement that the application might be allowed on heavy terms. Accordingly the Appellate Authority ordered that the application would stand allowed on the petitioner paying a sum of Rs. 200 as costs, directly to the respondent or to his counsel, on or before 2-1-1986, failing which the petition would stand dismissed. The petition was posted to 3-1-1986. On 3-1-1986, since the costs were not paid by the petitioner, LA. No. 172 of 1985 was dismissed. On 13-1-1986 the petitioner filed an application under Rule 16 (3) of the Rules read with Sec. 148, C. P. C. to restore LA. No. 172 of 1985 on the ground that the petitioner, due to ill-health, was not able to contatct his counsel and pay the costs. The application was kept unnumbered in view of the doubt regarding its maintainabiliy and after hearing both sides, the Appellate Authority passed the impugned order, rejecting the application as not maintainable, since it would amount to review of the order earlier passed and the appropriate remedy of the petitioner would be either an appeal or a revision before this Court. The correctness of this order, is challenged in this revision.

(3.) IT-is clear from the above rule that the Appel-late authority has statutory power to set aside the order of dismissal of an appeal for default, upon such terms as the Authority may think fit. The Rule also contemplates a second and subsequent applications to restore appeals dismissed for the second or subsequent time. The powers of an Appellate Authority in the matter of setting aside orders dismissing appeals for default have been clearly enumerated above. No additional powers regarding these matters, are granted under Sec. 23 of the Act which deals with appeals before the Appellate authority. The statutory power, therefore, does not include re-opening and reconsidering orders passed on such applications, even to vary the terms of the orders, by extending time. Any order passed upon an application under Rule 16 (3) therefore, becomes a final order, against which the aggrieved party under sec. 25 of the Act, will have a right of revision to this Court. Sec. 25 of the act makes it clear that the High Court may, on the application of any person aggrieved by an order of the Appellate Authority, call for and examine the record of the Appellate Authority to satisfy itself as to the regularity of such proceedings or the correctness, legality or propriety of any decision or order passed therein. This Court has powers to modify, annul, reverse or remit for reconsideration any such decision or order. IT would, therefore, follow that the party aggrieved by an order on an application under Rule 16 (3) of the rules, has a statutory right of revision to this Court.