KESHAV DNYANU GORAMBEKAR Vs. DNYANU RAMA PATIL

JUDGEMENT

(1.) THE question that arises for consideration in this case is whether a second application under Section 70(b) of the Bombay Tenancy and Agricultural Lands Act, 1948, for a declaration that a particular person is a tenant or not, would lie when the first application has been dismissed as abated on account of failure of the petitioner to bring legal representatives of the deceased party on record.

(2.) THE question arose thus : One Keshav, the petitioner before us, filed on June 2, 1956, an application under Section 70(b) of the Act for a declaration, that he is the sole tenant of S. No. 358/2, area 2 acres and 10 gunthas, situate in village Parite, Taluka Karveer, District Kolhapur. To this petition lie had joined one Rama, who also was claiming tenancy rights in the same field along with Keshav, and Krishna, who is the landlord of this field. Rama died on March 5, 1956, On June 29, 1956, the petitioner made an application to bring on record the five sons of Rama, Dnyanu, Satuna, Shiva, Ganpat and Dashrath as legal representatives of the deceased Rama. On January 23, 1958, the Tenancy Aval Karkun dismissed the application under Section 18(3) of the Mamlatdars' Courts Act, on the ground that the application for bringing the legal representatives on record not having been made within the period of 30 days, the application had abated. On June 22, 1958, Keshav filed another application under Section 70(b), praying for a declaration that he is the sole tenant of the aforesaid field. To this petition, he joined the five sons of Rama and the landlord Krishna as parties. Now, one of the contentions raised on behalf of the sons of Rama was that this application was not maintainable. The Tenancy Aval Karkun framed a preliminary issue : 'Whether the present application is tenable or not?' He took the view that the first application having been dismissed on account of abatement, it was not open to Keshav to file a second application on the same cause of action, and in this view of the matter, he dismissed the application of Keshav. Keshav filed an appeal before the District Deputy Collector. The District Deputy Collector did not agree with the view taken by the Tenancy Aval Karkun, but accepted the contention of Keshav that the second application was not barred under any of the provisions of the Mamlatdars' Courts Act. He, therefore, allowed the appeal, set aside the order of the Tenancy Aval Karkun and remanded the case to the Tenancy Aval Karkun for disposal on merits. In support of his conclusion he has placed reliance on a decision of this Court in Motiram Raoji v. Sidram Tippanna : (1957)59BOMLR1076 . The five sons of Rama then preferred, a revision to the Tribunal, The Tribunal, agreeing with the view taken by the Tenancy Aval Karkun, has reversed the order of the District Deputy Collector, and restored that of the Tenancy Aval Karkun, dismissing the application of Keshav on the preliminary issue. The Tribunal has also referred to two decisions of this Court. But counsel for the parties have frankly stated before us that the decisions would have no application to the facts of this case. It is, therefore, not necessary to refer to them.

(3.) THE matter can be looked at from another aspect also. The sheet -anchor of the argument of Mr. Samant in support of his contention, that the provisions of Order XXII, Rule 9 apply to the proceedings under the Mamlatdars' Courts Act, is Section 141 Civil Procedure Code. In our view, on the language of Section 141, it is not possible to extend the provisions of Order XXII, Rule 9 to a proceeding under the Mamlatdars' Courts Act. That section reads: The procedure provided in this Code in regard to suits shall be followed, as far as it can be made applicable, in all proceedings in any Court of civil jurisdiction. It is to be noted that what is made applicable to all proceedings in any Court of civil jurisdiction is the procedure provided in the Civil Procedure Code, and nothing else. It is well established that all the provisions in the Civil Procedure Code do not relate to procedure only. Some of them confer substantive rights also on the parties, for instance, the provisions relating to appeals, provisions relating to referring a matter to arbitration etc. It is not necessary to give an exhaustive list of such provisions. The question is can it be said that the provisions of Order XXII, Rule 9 are provisions relating to procedure only. We find it difficult to so hold. Order XXII, Rule 9 enacts a penalty. It provides that where a suit abates or is dismissed under Order XXII, no fresh suit shall be brought on the same cause of action. The only remedy to a party who fails to bring the legal representatives of the deceased on record is to apply for setting aside the abatement and to get the suit, that had abated, restored. These being the provisions of Rule 9 of Order XXII, which, as already stated, enacts a penalty, in our view, they confer a substantive right on the opposite side. The provisions thus being one enacting a substantive right cannot be called provisions relating only to the procedure. These provisions, therefore, even with the aid of Section 141, Civil Procedure Code, cannot be made applicable to the proceedings under the Mamlatdars' Courts Act. We find some support in the decision reported in Somanna v. Chinnayya A.I.R. [1945] Mad. 107. There a petition filed under the Madras Village Courts Act was dismissed for default, and an application was made for restoration of the said application. The question arose whether there was power to restore such application under the said Act. It was contended on behalf of the applicant that in the circumstances, the provisions of Order IX, Rule 9 were applicable in view of the provisions in Section 141, Civil Procedure Code. This contention was rejected by the Madras High Court, and Byers J. repelling the contention observed: Section 141, Civil P.C., only empowers the Judges to regulate judicial proceedings by rules of procedure in the Civil Procedure Code and does not make the Civil Procedure Code, applicable in its entirety to such proceedings including the provisions recognising substantive rights. The remedy under Order 9, Rule 9., Civil P.C., is not a matter of procedure. Now, by the same analogy of reasoning it can be said that the provisions of Order XXII, Rule 9 cannot be made applicable to an application made under Section 70(b) of the Tenancy Act. For the reasons stated above, we find it difficult to sustain the order made by the Tribunal, and that order is, therefore, liable to be quashed as the error is apparent on the record.