TUNGALA VENKATESWARLU Vs. DISTRICT JUDGE GUNTUR

JUDGEMENT

(1.) The petitioners are the cultivating tenants. The respondents laid an application under Section 13 of the Andhra Pradesh (Andhra Area) Tenancy Act (for short 'the Act') for ejectment of the petitioners on the ground that they committed default in payment of rents. From the appellate order it is seen that P.W. 1 was examined on April 19, 1983 and it was adjourned for one year and finally posted to February 9, 1984 as a last chance. On that day the petitioners were absent. As a result they were set ex parte. The evidence of P.W. 1 was considered and decree of ejectment was made. To set aside the ex parte decree, an application under Order 9 Rule 13 C.P.C. has been made to the Special Officer and that was dismissed. On appeal in A.T.A. No. 159/84 dated October 29, 1985 it was, confirmed. Assailing the legality of that order, the present writ petition has been filed.

(2.) The first contention raised by the learned counsel for the petitioners is that the Court is devoid of jurisdiction to dismiss the petition for default. it has to be considered only on merits and dispose it of according to law. Therefore, the action taken by the Tribunals below in confirming the exparte decree and refusing to condone the delay is patent error apparent on the face of the record warranting interference. No doubt in Commissioner of Income Tax, Madras vs. Chenniappa Mudaliar it was held that the Income-tax Appellate Tribunal has no power to dismiss the appeal for default of the appearance of the appellant and it has to decide only under Rule 24 as amended as per Rules. Thereby it is ultra vires the power. This ratio was followed by this Court in Jammula Atchayya vs. Revenue Divisional Officer wherein Kondaiah, J. as he then was considered tbe scope of Section 16 (2) read with Sections 3(5) and 5(5) of the Act and held that the Tahsildar and the Revenue Divisional Officer have no jurisdiction to dismiss the applicacation or the appeal for default. But, they have to decide the matter only on merits. It is seen that under the Amendment Act, 1976, the powers of the Tribunals have been taken away and have been invested in the District Munsif as Special Officer and the District Judge as appellate authority. It is now well settled legal position that once the jurisdiction in respect of special enactments is conferred on regularly established Courts without any special procedure as to bow tbe application for the appeal are to be disposed of, the established procedure prescribed under the relevant procedural code should be followed. In this case, C.P.C. would stand attracted. Therefore the procedure provided under C.P.C. would be applicable for disposal of the application filed under Section 13 of the Act and the appeal filed under Section 16 of the Act by the Special Officer and the District Judge respectively. Therefore, the Special Officer and the appellate Court have jurisdiction to dismiss for default when the matters are not being prosecuted diligently. Unless the procedure prescribed under the relevant procedural Code, viz., either Criminal Procedure Code or Civil Procedure Code are expressly extended to such special Tribunals, they cannot have any power to dismiss for default. There is another line of decisions that the Courts have held that, when the Tribunal has got power to entertain a petition it has power to dismiss it for default. But it is unnecessary to traverse into that area because the power to adjudicate under the Act has been expressly conferred on the Special Officer (established Court of the District Munsif having jurisdiction) and the appellate power has been conferred on the District Judge to whom the appeals against the District Munsif lie. Under these circumstances, I have little hesitation to hold that the Special Officer cum-District Munsif and the District Judge have got power under the C.P.C. to dismiss for default the applications or appeals respectively. They have also got power to restore the application or the appeals under the Code.

(3.) The question thereby emerges whether the Courts below have failed to exercise their jurisdictions or committed any manifest error of law in refusing to condone the delay. The appellate Court has elaborately mentioned various dates on which the adjoumments have been granted from the time of the examination in chief of the landlord the first respondent. The adjournments underwent mainly at the behest of the petitioners. The case was posted as a last chance on February 9, 1984 after a lapse of nearly one year. Even then they were not ready. The ground mentioned for the absence is that the first petitioner was suffering from fever and loose motions. There are two petitioners. Nothing prevented the second petitioner to approach the counsel and inform him of the indisposition of the first petitioner who was alleged to be prosecuting the case on their behalf. It is also an admitted fact that the counsel also was not present when the case was called on. When the decree was passed exparte, no steps have been taken immediately. It was filed almost at the end of the period of limitation prescribed to file an application to set aside the exparte decree. In those circumstances it clearly indicates that the petitioners intended to drag on proceedings as long as possible, and this step is one such step in this regard. Considering from proper perspective, the appellate Court having considered all the circumstances has rightly refused to set aside the exparte decree. 1 do not find any manifest error on the face of the record warranting interference. In view of the changed law conferring the jurisdiction from the revenue officials to the established Civil Courts, the ratio laid down in the earlier decisions is no longer applicable. Therefore the ratio is of little assistance. The writ petition is dismissed. No costs.