G SATYANARAYANA Vs. J S DEVASTHANAM

JUDGEMENT

(1.) This revision petition arises out of the proceedings initiated under the Andhra Pradesh (Andhra Area) Tenancy Act (for short "the Andhra Tenancy Act"). The petitioner is the tenant. The respondent is the landlord. (Hereinafter the parties will be referred to as tenant and landlord). The landlord filed A.T.C. No.309/81 before the Special Officer-cum-Principal District Munsif, Tanuku, praying for eviction of the tenant from the petition schedule land on the ground of default in payment of rent for 1388 and 1389 faslies. On the basis of the material available on record the Special Officer ordered eviction of the tenant. Dissatisfied with the said order of eviction, the tenant filed an appeal A.T.A.No.56/1985 in the Court of the District Judge, West Godavari, Eluru. Thereafter the advocate of the tenant passed away. When on 16-8-1988 the case was taken up for hearing nobody was present for the tenant; the advocate had already died, and as the appellant was not aware of the death of his advocate, so he was not present. However, the appellate court decided the appeal on merits and dismissed the same. Having come to know of the dismissal of his appeal, the tenant filed I.A.No.2478/89 under Section 151 C.P.C read with Rule 18 of A.P. (Andhra Area) Tenancy Rules, 1980 (for short "the Andhra Tenancy Rules") to set aside the order of dismissal of the appeal. By order dt.22-10-1990 the learned District Judge dismissed the petition on the ground that as the appeal was dismissed on merits, the application for restoration of the appeal was not maintainable. It is the correctness of this order that is assailed in this C.R.P.

(2.) Mr. C.V.N, Sastry, learned counsel for the petitioner, submits that the order of the District Judge, dismissing the appeal on merits on 16-8-1988, was without jurisdiction, therefore, the order should have been construed as the order dismissing the appeal for default and the appeal should have been restored on the application of the petitioner. Sri R. Sreeramulu, learned counsel for the respondent, on the other hand, contends that as the tenant and his counsel were absent on the date of the hearing of the appeal, the appellate court was justified in deciding the appeal on merits. As the appeal was decided on merits it could not be construed as having been dismissed for default, therefore the order under revision cannot be interfered with.

(3.) On these rival contentions, the short question which arises for consideration is, whether the order of the appellate court dated 16-8-1988 dismissing the appeal on merits in the absence of the tenant and his counsel, can be construed as the order dismissing the appeal for default. If so, is the application to restore the appeal maintainable?