KANDULA LAKSHMI DEVI Vs. YERRA VENKATA KRISHNAMMA

JUDGEMENT

(1.) This is an application to revise the order of the Agent to Government, East Godavari, Kakinada, in C.R.P. No. 3 of 1955. The petitioner herein filed a suit for recovery of rent as against the defendant. The suit was posted for trial to 15th June, 1954. The advocate appearing for the petitioner in the trial Court noted in his diary ,that the suit was posted to 23rd June, 1954, for hearing. As a result of this mistake the plaintiff did not appear on the date of hearing. As the suit was dismissed for default under rule 26 (2) of the Agency Rules on 15th June, 1954, C.M.P. No. 13 of 1954, was filed by the petitioner herein to set aside the order of dismissal for default in the Court of the Agency Munsif, Badhrachalam. The application was dismissed on the ground that the mistake of the counsel was not a sufficient cause to set aside the order of dismissal. Under rule 55 of the Agency Rules, a revision was filed before the Agent to Government, East Godavari at Kakinada and it was also dismissed on the same ground. The petitioner has preferred this C.R.P. under section 115, Civil Procedure Code, as against that order.

(2.) The first question that arises for decision is whether a bona fide mistake committed by the counsel is not a sufficient ground to set aside the order of dismissal under rule 26 (2) of the Agency Rules. Rule 26 (2) runs in the following terms :-

(3.) The next question that arises for consideration is whether a revision petition filed under section 115, Civil Procedure Code, lies to this Court. Having regard to the terms of section 1, sub-section (3), of Civil Procedure Code, read with the Agency Rules, it is clear that the terms of section 115, Civil Procedure Code, do not apply. This view that Civil Procedure Code does not apply to Agency Tracts, was taken by the Madras High Court in Manyam Mahalakshmamma Garu v. Muchika Appalaraju, (1917) 34 M.L.J. 473. Sri K. Ramachadra Rao, the learned advocate for the respondent strenuously contended that as against the order of the Agent to Government, East Godavari, the petitioner ought to have filed an application under rule 59 of the Agency Rules. Rule 59 is as follows :-