M J KUTINHA Vs. MRSNATHALAL PINTO BAI

JUDGEMENT

(1.) The Attavar Panchayat Court tried the suit with which we are concerned on 12 January, 1937, in the presence of both parties and adjourned it to 14th January, 1937 for further evidence. The plaintiff was then absent; but instead of dismissing the suit for default, as it should have done under Section 32, it purported to dispose of the suit on, the merits. The plaintiff later filed a petition before the Kadiri Panchayat Court, which had succeeded to the jurisdiction of the Attavar Panchayat Court, to set aside the decree of the Attavar Panchayat Court passed in default. In an elaborate judgment the Kadiri Panchayat Court held that the plaintiff had had good cause for non-appearance and set aside the decree and restored the suit. The defendants thereupon filed an application before the Principal District Munsif of Mangalore to have this order quashed as being without jurisdiction. The learned Munsif. held that the order restoring the suit was without jurisdiction and therefore acted under Section 73 of the Village Courts Act and quashed the order. The plaintiff has come to this Court in revision.

(2.) In Nasir Khan V/s. Itwari (1923) I.L.R. 44 All. 669, a somewhat similar question presented itself. In the absence of the appellant and his pleader, an appellate Court purported to dispose of the appeal on its merits; and the question that arose in the High Court was whether a second appeal would lie. If the appeal had been dismissed for default, no appeal would have Laid; but if it was dismissed on the merits, a second appeal did lie, and the learned Judges held that they had to consider not what the Court below ought to have done but what it actually did. It held that the lower appellate Court had in fact disposed of the appeal before it on the merits, even though it had no jurisdiction to do so. As it was disposed of on the merits, a second appeal lay. That decision was followed by a single Judge of the same High Court - who was also a party to that decision - in Madho Dass v. Maharajah of Benares (1924) 84 I.C. 521. In Phul Kuar V/s. Hashmatullah Khan (1915) I.L.R. 37 All. 460, which has been referred to for another purpose by the learned Advocate for the petitioner, it seems to have been agreed by both sides that although the lower Court should have disposed of the proceedings before it in default of appearance, it did not in fact do so and the disposal was treated in the High Court as being on the merits. So there is no doubt that the learned District Munsif was right in holding that the disposal of the Attavar Panchayat Court was a disposal on the merits and that the remedy of the respondent lay by way of an application to the District Munsif to quash the order that was passed without jurisdiction.

(3.) It is argued that even though the order of the Kadiri. Panchayat Court is one setting aside a decree passed in default, it is valid as a review of the previous judgment. In Phul Kuar V/s. Hashmatullah Khan (1915) I.L.R. 37 All. 460 such a remedy was allowed; but there was no difficulty there because the learned Judges were dealing, with an ordinary civil suit in which a petition for review lies. The Village Courts Act however makes no provision for reviews; and it has been made clear in many decisions . Anantaraju Shetty V/s. Appavu Hegade is one of them that unless a statute provides a remedy by way of review, the Court cannot review its own judgment except in very exceptional circumstances, such as for example, where it passed an order inadvertently or on account of some false representation by the officers of the Court. One cannot therefore take the order of the Kadiri Panchayat Court as a lawful order passed in review of the order of the Attavar Panchayat Court.