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1974 DIGILAW 95 (KER)

Pathummal v. State of Kerala

1974-06-05

T.CHANDRASEKHARA MENON, V.P.GOPALAN NAMBIYAR

body1974
JUDGMENT K. Gopalan Nambiyar, J. 1. This appeal is against the order in I. A. 2213 of 1972 in L.A.R. 15 of 1971 on the file of the II Additional Sub Court, Trivandrum, dismissing the Land Acquisition Reference under section 20 of the Act, for default of appearance of the applicant. I.A. No. 2213 of 1972 was entertained and treated by the court below as a petition filed under Order IX, rule 9 of the C.P.C. But the court below dismissed it on the ground that the applicant had not shown that she was prevented by sufficient cause from appearing and conducting the case. Hence this appeal. 2. On the strength of the ruling of Bhaskaran, J. in Kallianikutty Amma v. State of Kerala 1974 K.L.T. 107, it was contended that no appeal lies, and only a revision can be entertained against the order. The correctness of the decision and the view expressed therein have been canvassed before us. 3. The two material provisions of the Kerala Land Acquisition Act on which the decision should turn, are sections 59 and 60. These sections are as follows: "59. Code of Civil Procedure to apply to proceedings before court. ”Save in so far as they may be inconsistent with anything contained in this Act, the provisions of the Code of Civil Procedure, 1908, shall apply to all proceedings before the court under this Act. 60. Appeals in proceedings before court. ”Appeals shall lie from the award or from any part of the award of the court as if the award or part of the award is a decree, passed by a civil court under the provisions of the Code of Civil Procedure, 1908, and subject to such rules as may be prescribed." The corresponding provision in the Central Land Acquisition Act I of 1894 are sections 53 and 54. These sections read: "53. Code of Civil Procedure to apply to proceedings before court.” Save in so far as they may be inconsistent with anything contained in this Act, the provisions of the Code of Civil Procedure shall apply to all proceedings before the courts under this Act. 54. Appeals in proceedings before court. These sections read: "53. Code of Civil Procedure to apply to proceedings before court.” Save in so far as they may be inconsistent with anything contained in this Act, the provisions of the Code of Civil Procedure shall apply to all proceedings before the courts under this Act. 54. Appeals in proceedings before court. ” Subject to the provisions of the Code of Civil Procedure, 1908, applicable to appeals from original decrees, and notwithstanding anything to the contrary in any enactment for the time being in force, an appeal shall only lie in any proceedings under this Act to the High Court from the award, or from any part of the award of the court and from any decree of the High Court passed on such appeal as aforesaid an appeal shall lie to the Supreme Court subject to the provisions contained in section 11 of the Code of Civil Procedure, 1908, and in Order XLV thereof." 4. It would be noticed that there is a difference between the scheme of the Central Land Acquisition Act and the Kerala Act. Under the Central Act, appeal only lies in any proceedings under the Act, to the High Court, from the award or any part of the award. Under the Kerala Act, on the other hand, under section 60, the award is by fiction be treated as a decree passed by a civil court, and an appeal against the award or part of the award is thereby provided. The scope and purpose of the fiction seems to be to provide for a right of appeal against the award. 5. On first impression, it appears to us to be eminently just and necessary that an order dismissing a proceeding under the Land Acquisition Act, for default of appearance should be subject to a right of appeal. We should deplore the result, if any contrary conclusion were to follow. Reading sections 59 and 60 of the Kerala Act, it appears to us that the earlier of these, is wide enough to attract the right of appeal. That section attracts the provisions of the Civil Procedure Code to all proceedings under the Act, except to the extent they are inconsistent with it. This is sufficient to attract Order IX, rule 9 of the Civil Procedure Code. That section attracts the provisions of the Civil Procedure Code to all proceedings under the Act, except to the extent they are inconsistent with it. This is sufficient to attract Order IX, rule 9 of the Civil Procedure Code. The first part of this rule has been held to be a substantive and not a mere procedural provision by a Division Bench of this court, to which one of us was a party, in C.R.P. 270 of 1969. If Order IX, rule 9 were to be attracted, we think the right of appeal provided under Order XLIII, rule 1 (e) of the Civil Procedure Code against any order under the said provisions, would also follow. We should therefore think that a right of appeal is available and that this appeal has been properly filed. We are unable to sustain the contrary view taken by our learned brother Bhaskaran, J. in 1974 K.L.T. 107, which does not take into account the effect or the scope of section 59 of the Act. 6. In State of Kerala v. Kunhammed Koya Haji 1970 K.L.T. 1065 a Division Bench of this Court, had to consider the question whether a right of review which is not a procedural right was available in proceedings under the Land Acquisition Act. The Bench found that it was, and rested it on the provisions of section 59 of the Act. 7. We may usefully refer to certain observations of a Full Bench of this Court in Palakattumala Devaswom v. Ulahannan Pylee 1969 K.L.T. 275. The Full Bench was concerned with the question whether the appeals there considered lay to the District Court or to the High Court. But the observations of the Full Bench in explaining the scope and the scheme of the provisions of the Kerala Act are quite instructive. We shall extract the following: "5. The Full Bench was concerned with the question whether the appeals there considered lay to the District Court or to the High Court. But the observations of the Full Bench in explaining the scope and the scheme of the provisions of the Kerala Act are quite instructive. We shall extract the following: "5. But justice obviously requires that in such cases there should be appeals as in an ordinary suit on title; the legislative intent to vouchsafe such appeals is manifest from the opening words of section 54 of the Central Act and section 38 of the Travancore Act, "subject to the provisions of the Code of Civil Procedure applicable to appeals from original decree", and seems to us implicit in sections 28 and 60 of the Kerala Act; and, with great respect, we think the courts rightly brushed aside the difficulties created by lapses in draftsmanship. 8. An adjudication on title on a reference under section 18 of the Central Act stands on the very same footing as such an adjudication on a reference under section 30 or on a deposit under sub-section (2) of section 31 unaccompanied by a reference. If such an adjudication is of its own force, and without resort to the fiction in sub-section (2) of section 26, a decree within the meaning of the Civil Procedure Code, and is not an award within the meaning of section 54 of the Central Act, then the forum of appeal would depend, just as in an ordinary suit on title, on the provisions of the relevant Civil Courts Act. But, if it is an award within the meaning of section 54, an appeal would lie only to the High Court. The conventional view reached by an application of the principle laid down in Ramachandra Rao v. Ramachandra Rao (I.L.R. 45 Mad. 320) seems to be that such an adjudication, whether or not it is accompanied by an adjudication regarding the amount of the compensation (the reference under section 18 being a composite reference), is only a decree as defined by section 2 (2) of the Civil Procedure Code and is not an award within the meaning of the Central Act. 320) seems to be that such an adjudication, whether or not it is accompanied by an adjudication regarding the amount of the compensation (the reference under section 18 being a composite reference), is only a decree as defined by section 2 (2) of the Civil Procedure Code and is not an award within the meaning of the Central Act. As we have indicated, the result might well be the obviously unsatisfactory result that, in a given case, the appeal in respect of that part of the adjudication that relates to title lies to the District Court whereas the appeal with regard to the part that relates to the amount of the compensation lies to the High Court. For ourselves, we see little difficulty in reading sub-section (1) of section 26 of the Central Act as requiring the award to specify the amount awarded to each of the claimants under each of the clauses of subsection (1) of section 23 having regard to the fact that the adjudication of the court on a composite reference under section 18 has, in addition to determining the amount to be awarded as compensation, to determine to whom the compensation is to be awarded. If that be so, the adjudication regarding title would also be an award to which section 54 would apply; and, we might mention that, after observing that so far as appeals to the Privy Council were concerned, the distinction drawn between an award and a decree in Ramachandra Rao v. Ramachandra Rao (I.L.R. 45 Mad. 320) had become academic in view of the amendment of section 54 of the Central Act which provides for such appeals in the case of awards. Bhagwati v. Ram Kali (A.I.R. 1930 P.C. 133) went on to recognize that sub-section (2) of section 26 inferentially provides for a determination by the award of a dispute as to the persons interested. 9. Section 26, sub-section (2) of the Central Act [section 28 (2) of the Kerala Act] says that every award made thereunder shall be deemed to be a decree within the meaning of section 2, clause (2) of the Civil Procedure Code. Had nothing more been said this would have sufficed to attract the provisions for appeals in sections 96, 100 and 109 of the Code to an award. Had nothing more been said this would have sufficed to attract the provisions for appeals in sections 96, 100 and 109 of the Code to an award. But the forum for a first appeal is specified not by section 96 of the Code which only says that the appeal shall lie to the court authorised to hear appeals from the decisions of the court which passed the decree, but by the concerned Civil Courts Act. And, under those Acts, the value of the subject-matter would ordinarily determine whether an appeal from a decision of a Subordinate Judge lies to the District Court or to the High Court. As a matter of policy, it was thought that all appeals from awards determining the amount of the compensation as distinguished from mere decrees adjudicating only the question of title, should lie to the High Court, and, therefore, section 54 of the Central Act provides that, subject to the provisions of the Civil Procedure Code with regard to appeals from original decrees, and notwithstanding anything to the contrary in any enactment for the time being in force, an appeal from an award shall only lie to the High Court. The Kerala Act apparently did not appreciate the difference between adjudications that are awards and those which are mere decrees when it provided by section 60 [quite unnecessarily in view of sub-section (2) of section 28] that appeals shall lie from the award as if the award were a decree made by a civil court under the provisions of the Civil Procedure Code. And, under the Travancore Act before its amendment by the Kerala Civil Courts Act appeals could lie only to the High Court since references were heard only by District Courts ”Section 38 thereof, accordingly provides for an appeal to the High Court from an award leaving appeals from mere decrees to be governed by the Civil Procedure Code. Thus it is clear that under the Central and Travancore Acts, appeals from awards lie only to the High Court whatever be the value of the subject matter. 10. As pointed out above, having provided in section 28 (2) of the Act that every award shall be deemed to be a decree, the further limited provision in section 60 of the Act, seems to be redundant and unnecessary. 10. As pointed out above, having provided in section 28 (2) of the Act that every award shall be deemed to be a decree, the further limited provision in section 60 of the Act, seems to be redundant and unnecessary. On the strength of section 28 (2) read with section 59, it appears to us that a right of appeal should be available.11. But our attention was called to certain decisions which, it was said, have pronounced against the right of appeal, in a case of this type. We shall examine these. In Hasun Molla v. Tasiruddin 39 Cal. 393 in the course of a short judgment, Chief Justice Jenkins held that a right of appeal under section 54 of the Central Act is available only against an award or part of an award. Section 53 of the Act was not considered. We need not examine whether the view is sustainable on the restricted provisions of section 54 of the Central Act, which we have quoted earlier. For, the scheme and the provisions of the Kerala Act are different; and as we will show, even with respect to the provisions of the Central Act, judicial opinion has not been uniform in regard to the availability of a right of appeal. The view taken in 39 Cal. 393 was followed in Sarat Chandra Ghose v. The Secretary of State for India I.L.R. 46 Cal. 861. The order sought to be appealed against was one under section 49, rejecting the owner's application that the whole of his land, and not merely a part of it, should be acquired as his brickfield was a ''manufactory" within the meaning of the said section. It was held that the order was not an award and therefore no appeal would lie under section 54 of the Act. Section 53 was not noticed. In an earlier decision, Dalchand Singhi v. The Secretary of State for India I.L.R. 43 Cal. 665, the question of appealability of an order passed under section 49 of the Centra Act had arisen for consideration. While referring to I.L.R. 39 Cal. 393 that such an order would not be an award, it was ruled that such an order had been treated as appealable by the decisions of the Allahabad and the Madras High Courts and that it had not been doubted that an appeal would lie. While referring to I.L.R. 39 Cal. 393 that such an order would not be an award, it was ruled that such an order had been treated as appealable by the decisions of the Allahabad and the Madras High Courts and that it had not been doubted that an appeal would lie. Assuming it did not, it was pointed out that the learned Judge would have interfered in revision. This was treated as not a definite or considered pronouncement on the point in the later ruling in I.L.R. 46 Cal. 861. In Mulambath Kunhammad and others v. Acharath Parakat Kathiri Kutty and others 1916 (31) M.L.J. 827 the question arose whether a power to review could be exercised by the District Judge, so as to alter his own award given previously under the Land Acquisition Act. There was a difference of opinion on the point, between Justice Ayling and Justice Srinivasa Aiyangar who decided the matter. Justice Ayling expressed himself thus : "It is not necessary to accept Mr. Menon's argument that section 53 of the Land Acquisition Act extends even to appellate proceedings and would confer the ordinary right of appeal given by the Code of Civil Procedure, even if section 54 were non-existent. But I see no reason why review proceedings under section 114 of the Code of Civil Procedure should not be regarded as " proceedings before the Court under this Act " within the meaning of section 53 of the Land Acquisition Act or why, as Mr. Sundaram would have it, the application of section 53 should necessarily terminate with the pronouncement of the award by the court ? If this view is correct, it would seem to follow that even section 152 of the Code of Civil Procedure is inapplicable to such proceedings as the present; and the court would be unable to rectify even clerical and arithmetical mistakes in its award. This is not seriously contended; and if a court is entitled to correct such a mistake on the application of a party, as part of the proceedings under section 53 of the Land Acquisition Act, it is difficult to see why it should not exercise a similar power in respect to material errors in its award which may be no less patent. I think a distinction can be drawn between the power of the court to alter its own order (review) and the power of another court to alter it (appeal) and that the one might be legitimately viewed as proceedings before the court, though not the other". 11. But as the matter arose in an application for revision, under section 115, the learned Judge agreed with Srinivasa Aiyangar, J. that the interests of justice did not warrant interference in revision. Srinivasa Aiyangar, J. in the course of his discussion rejected the argument that section 54 of the Central Act would attract the other provision in the Code as regards appeals either from decrees or orders. The learned Judge stated : " I am unable to agree with this contention ; except for section 54 I think no appeal will lie from the decision of the court and that section instead of qualifying or otherwise restricting the unqualified powers assumed to be given under section 53, really confers a power of appeal which otherwise did not exist. I also think for the same reason that the view taken by the Calcutta High Court in Balaram Bhramaratar Ray v. Shamsunder Narendra (1896 I.L.R. 23 Cal. 526) that an appeal lies to the High Court from every award irrespective of the court which passed it or its value, is right arid the opposite view taken in some of the decisions of the Bombay High Court, [See Ranchhodbhai v. Collector of Kaira (1897 I.L.R. 22 B. 802) ] is not correct. Turning to the language of section 53, the provisions of the Code of Civil Procedure which are applicable are limited by the words "proceedings under the Act" and before the "court" which means the Court of the Judicial Officer specially appointed to whom references are made under one or other of the sections of the Act. Those words would exclude the provisions of the Code relating to appeals from the award as they are not proceedings before the court and I think the provisions relating to review are equally inapplicable for as soon as a determination of the matters referred to 'the court is arrived at by that court and the award is made, all proceedings under the Act ' before the court, is at an end. There are, it is to be observed, special provisions in the Act as to the appearance of pleaders, representation of persons interested if they are not capable of representing themselves, and services of notices, provisions which would scarcely be necessary if all the provisions of the Code of Civil Procedure were intended to be incorporated in the Act." 12. In Banshidhur Marwari and others v. Secretary of State for India A.I.R. 1927 Cal. 533 a Division Bench pointed out that the addition of words "only" in section 54 of the Central Act should be taken to signify that an appeal would not lie from any order unless it was an award; and that the addition of the words "in any proceedings" does not make any difference. As we pointed out, the language and the scheme of the Kerala Act, are both different. In Bahary Lal Sur and others v. Nandalal Goswami 11 Cal. Weekly Notes 430 a right of appeal was found on the basis of section 53 of the Central Act. 13. We are of the opinion that the decisions which hold against a right of appeal, do not bestow sufficient attention to the scope and effect of the provisions of section 54 of the Central Act. In any event, on the scheme and scope of the provisions of section 59 of the Kerala Act, we think that an appeal lies in this case. 14. On the merits, we are satisfied that the court below was not justified in refusing to set aside the dismissal for default under Order IX, rule 9 of the Code. The facts disclosed are that the appellant's property and her son's property were adjacent to each other. The acquisition of the son's property was the subject-matter of L.A.R. 38 of 1971; and of the appellant's property of L.A.R. 15 of 1971. The appellant had made in an application on 13th February 1972 for a joint trial of the two references. L.A.R. 15 of 1971 stood posted for trial to 5th April 1972. As the application for joint trial had been made, the appellant did not present himself and was not ready to offer his evidence on 5th April 1972 to which date the matter stood; whereupon, the reference was dismissed under Order IX, rule 8. We think that in the circumstances, the appellant's application under Order IX, rule 9 should have been allowed. 15. We think that in the circumstances, the appellant's application under Order IX, rule 9 should have been allowed. 15. We allow this appeal, set aside the order of the learned Judge and direct that the Reference Case be reheard of and disposed of in accordance with law. There will be no order as to costs.