T V SUBBA RAO Vs. T KOTESWARA RAO

JUDGEMENT

(1.) This revision petition is directed against the judgment and order of the District Collector of Kurnool, dated 18/01/1959, in R.S.A. 1 of 1958 reversing the judgment and order of the Revenue Divisional Officers Court, Markapur, in R.P. No. 1 of 1958 on the file of the said Court.

(2.) This revision is preferred under Section 115 of the Civil Procedure Code. The facts leading up to this revision may be briefly noticed. The petitioner herein is the defendant in Revenue Suit No. 5 of 1954 in the Court of the Collector (Revenue Divisional Officer) Markapur, and the respondent is the plaintiff in that suit. That suit was brought under Section 13(1) of the Madras Hereditary Village Offices Act (Act III of 1895) (hereinafter referred to as the Act) wherein he claimed his right to the office of Karnam of Papinepalli, Kambham Taluk, Kurnool District. After the appearance of the defendant, the suit was posted for hearing to 1-12-1957. As that date was not convenient for the plaintiff and as he was apparently not likely 10 be ready on that day, he appeared before the Dy. Collector, Markapur and applied by way of a petition for an adjournment of the suit to some date beyond 1-12-1957. The suit was accordingly adjourned by the Dy. Collector to 13-12-57 and on that date as the plaintiff had not appeared when, the suit was called, the same was dismissed for default of the plaintiffs appearance.

(3.) Coming to know of the dismissal of his fait for default, the plaintiff-respondent applied for restoration of the suit under Rule 38 of the Rules framed under the Act. This application was dismissed by the Collector on 31-3-1958 holding that the plaintiff must have been aware of the date of hearing, and that his absence, therefore, when the suit was called must have been wilful and as such he could not have sufficient cause to be absent. Against this judgment and order of Collector, Markapur, an appeal was filed before the District Collector, Kurnool, who is the appellate authority under Rule 38 of the Rules framed under the Act, The District Collector allowed the appeal, set aside the order dismissing the suit for default and directed the Collector, Markapur to proceed with the hearing of the suit on its merits. The learned District Collector held that there was no satisfactory proof that the plaintiff was aware of the date to which the suit was adjourned for hearing viz., 13-12-1957 or that the plaintiff had been informed of that date by the Collector. He further was of the view that although there was evidence that a letter of intimation of the adjourned date of hearing was posted to the plaintiff, there is nothing to show that it has actually been received by him. His accordingly held that there was sufficient cause for the absence of the plaintiff on 13-12-57, the date of the hearing of the suit and so holding, he set aside the order dismissing the suit for default and directed the Dy. Collector. Markupur i.e., the Revenue Divisional Officer, to hear and dispose of the suit on its merits. It is this order of the District Collector. Kurnool, that it questioned before me in this revision petition.