NARAYANI Vs. BRIJ BEHARILAL

JUDGEMENT

(1.) THIS is a revision against the order of the Additional Commissioner Jaipur, dated 25. 5. 1961, by which he has set aside the order of the Assistant Collector Bairath dated 19. 11. 60 accepting an application for restoration of the suit and ordered the case to be remanded with the direction that the application be re-heard after giving due notice to the opposite party. The judgment has been assailed on the ground that the learned Additional Commissioner had no jurisdiction to hear the appeal against the order of the Tehsildar Bairath as he has done. THIS objection is, however, mis-conceived in the sense that the clear provision of sec. 225 (1) of the Rajasthan Tenancy Act (hereinafter referred to as the Act) is ignored while advancing this argument. An appeal against such an order might not have been provided under O. 43 of the Code of Civil Procedure (hereinafter referred to as the Code ). But it has been certainly provided under sec. 225 (1) of the Act. The provisions of the Code are applicable to the suits under the Act (as the suit out of which these proceedings arise undoubtedly is) only so far as they are not inconsistent with the provisions of the Act itself. When sec. 225 (1) of the Act provides an appeal, the provisions of O. 43 of the Code would not come into application on account of this being inconsistent with this clear provision of the Act. The learned counsel for the applicants, Shri Makhan Lal, however, further presses his argument on an incorrect reading of the provisions of sec. 208 of the Act which deals with the application of the provisions of the Code to the suits and proceedings under this Act. It is that he reads the provisions of sub-sec. (c) of sec. 208 as meaning that the provisions contained in List I of the Fourth Schedule shall apply to all suits and proceedings under this Act subject to the modification contained in List II of the Fourth Schedule". It is however, very clearly not so. Simply because the expression "shall apply to all suits and proceedings under this Act subject to the modification contained in List II of the Fourth Schedule 'has been printed in the same line as provisions of cl. (c),' provision contained in List I of the Fourth Schedule," it cannot mean that the expression "shall apply to all suits and proceeding under this Act subject to the modifications contained in List II of the Fourth Schedule" is related only to the, provisions of clause (c) referred to above and not to other provisions of the section. THIS expression "shall apply to. . . . . . . . . the Fourth Schedule" does, as a matter of fact, form part of the sentence, the "subject" whereof is. The provisions of the Code of Civil Procedure 1908 (Central Act Vs. of 1908) except" occurring in the first two lines of the sec. 208. The section reads: "the provisions of the Code of Civil Procedure 1908 (Central Act V of 1908), except: " (a) Provisions inconsistent with anything in this Act, so far as the inconsistency exists, (b) Provisions applicable only to special suits or proceedings outside the scope of this Act; and (c) Provisions contained in List I of the IV Schedule,shall apply to all suits and proceedings under this Act, subject to the modification contained in Lists II of the IV Schedule".

(2.) THAT is to say, this section lays down that the provisions of the Code shall apply to the suits and proceedings under this Act with the modifications contained in List II of the Fourth Schedule but only when they are not inconsistent and when they neither relate to any special suits or proceedings provided by the Code nor form part of List 1 of the Fourth Schedule. It does not lay down, as the learned counsel for the applicant contends, that the provisions not contained in List I of the Fourth Schedule of the Code, shall always apply to the suits and proceedings under this Act. This contention is negatived even by the fact that the List I of the Fourth Schedule does not contain the list of the sections and orders of the Code which "apply" to the proceedings under the Act; but on the other hand, contains only a list of the sections and orders of the Code which 'do not apply' to the suits or proceedings under this Act. I