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1981 DIGILAW 24 (KER)

KARTHIYANI v. APPELLATE AUTHORITY

1981-01-30

GEORGE VADAKKEL

body1981
Judgment :- 1. The 2nd respondent herein filed an application, 0. A. No. 376/71, under S 80B of the Kerala Land Reforms Act, 1963 for purchase of the kudikidappu. The said application was dismissed as per Ext. P1 order of the Land Tribunal, Kozhikode The second respondent preferred an appeal against the said decision as A. A. No. 421 of 1975 before the Appellate Authority (LR) Kozhikode, who is the first respondent herein That appeal was dismissed for default on 4-10-1976. Ext P2 is the decision dismissing the appeal for default. The second respondent thereafter filed Ext. P3 application to re-admit the appeal on 24-1-1977 The petitioner herein, who was the respondent in 0 A. No. 376/71 and A. A. 421/1975, preferred Ext. P4 objections thereto. Overruling the objections the Appellate Authority allowed Ext. P3 application. This is impugned before me mainly on the ground that the Appellate Authority has no jurisdiction to restore an appeal dismissed for default 2. S.102(3) of the Kerala Land Reforms Act 1963 provides that 'in deciding appeals under sub-section (1), the appellate authority shall exercise all the powers which a court has and follow the same procedure which a court follows in deciding appeal against the decree of an original court under the Code of Civil Procedure, 1908. The section confers power on the Appellate Authority and also prescribes the procedure which that authority has to follow. Powers conferred are those which the Appellate Authority has while dealing with an appeal from a decree under the Code of Civil Procedure, 1908. The procedure is also the same, namely, that an appellate court should follow in deciding the appeal against a decree under the provisions of the Code of Civil Procedure, 1908. Obviously the dismissal for default on 4-10-1976 was by virtue of the power the Appellate Authority has under S.102(3) read with the provisions in 0.41 of the Code of the Civil Procedure, 1908. Obviously the dismissal for default on 4-10-1976 was by virtue of the power the Appellate Authority has under S.102(3) read with the provisions in 0.41 of the Code of the Civil Procedure, 1908. If the provisions in 0.41 of the Code of Civil Procedure, 1908 were not to govern the procedure in deciding the appeal, the Appellate Authority could not have dismissed the appeal for default it could have dismissed the appeal for default only by exercising the power that is conferred on an appellate court under R.17 of 0.41, which provides that when the appellant does not appear when the appeal is called for hearing the court may make an order that the appeal be dismissed. If R.17 in 0.41 is attracted, necessarily and logically R.19 in that Order should also govern the case. R.19 in 0.41 provides for re-admission of an appeal dismissed for default on the appellant proving that he was prevented by any sufficient cause from appearing when the appeal was called on for hearing. 3. That the position is as aforesaid is well-settled by a decision of the Full Bench of this court in Bhargavi Amma v. Varkey (1967 KLT 317 = 1967 KLJ. 367) relied on on behalf of the second respondent. Considering the question as to whether the Land Tribunal has jurisdiction to pass orders ex parte, to dismiss for default and to set aside the ex parte order and pass orders restoring an application dismissed for default, the Full Bench said as follows: " If we hold, that there is no jurisdiction for the Land Tribunal to restore, logically it must also be held, that it has no jurisdiction to dismiss for default either, and that such dismissal is void and must be treated as non est. It is not however necessary to rest the decision on this ground, as in our view. R.99 confers such jurisdiction. Of course, on this interpretation of R.99, the Land Tribunal has Jurisdiction to pass orders exparte, to dismiss for default, and to set aside ex parte orders and orders of dismissal for default. That, we venture to think, is as it should be." 4. R.99 confers such jurisdiction. Of course, on this interpretation of R.99, the Land Tribunal has Jurisdiction to pass orders exparte, to dismiss for default, and to set aside ex parte orders and orders of dismissal for default. That, we venture to think, is as it should be." 4. The learned counsel for the petitioner relied on the decisions of this Court in Thomme Ouseph v lype Paily and others (1973 KLT 133 = and Asher v. Raru (1979 KLT 260) In the first of these two decisions this Court took the view that R.22 in 0.41 is not attracted to an appeal filed under S.102 of the Kerala Land Reforms Act, 1963 from an order passed under S.31 of the said Act. This court appears to have taken the view that R.22 in 0.41 conferring a right on the respondent to take any cross-objection to the decree which he could have taken by way of appeal within one month from the date of service on him or his pleader the notice of the date fixed for hearing of the appeal or such further time as the Appellate Court may see fit to allow is not available to the respondent in an appeal under S.102 of the Kerala Land Reforms Act, 1963. The view as aforesaid appears to have been taken for the reason that, the Code of Civil Procedure, 1908 has not been made applicable to an appeal preferred under S.102 of the Land Reforms Act, 1963, but only the procedure which a Court of Appeal may follow has been made applicable to such appeals. It is not necessary to examine the proposition stated as aforesaid and advanced before me on behalf of the petitioner by his learned counsel in so far as for the present purpose it is sufficient to notice that the appellate authority is conferred with all the powers which a court of appeal has in deciding an appeal against the decree of an original court under the Code of Civil Procedure 1908, One of the powers an appellate court has in deciding an appeal against the decree of an original court under the Code of Civil Procedure, 1908 is the power conferred on it under R.19 of 0.41, namely, to readmit the appeal dismissed for default. The appellate authority has, therefore, that power. 5. The appellate authority has, therefore, that power. 5. There was some argument before me as regards the correctness of the decision in Thomme Ouseph v. lype Paily and others (1973 KLT 133). It was submitted on behalf of the second respondent that this decision does not lay down the correct law. It was argued that if the principle stated in that decision is extended logically and applied to all situations arising in an appeal before the appellate authority, it would not be possible to invoke the provisions of Order XXII in the Code of Civil Procedure, 1908 made applicable to proceedings in appellate court by R.11 thereof (Order )XII). There appears to be some force in the contention as aforesaid and if it were necessary to examine the scope of the expression "follow the same procedure which a court follows in deciding appeals against the decree of an original court under the Code of Civil Procedure, 1908" in S.102 (3) of the Kerala Land Reforms Act, 1963, I would have referred the matter to a larger Bench for decision. As already indicated it is not necessary to examine the scope of that expression in so far as under the said provision the same powers have been conferred on the appellate authority as an appellate court has in deciding an appeal from a decree of an original court under the Code of Civil Procedure, 1908. 6. The decision in Asher v. Raru (1979 KLT. 260) concerned proceedings before the Rent Control Court. Construing S.23 of the Buildings (Lease and Rent Control) Act, 1965 a learned Single Judge of this Court has taken the view that under that provision the Rent Control Court has no power to restore an application dismissed for default However, this Court therein took the view that such an application can be treated as an application for review and proceedings dismissed for default can be restored to file. I do not think that I am called upon to examine the provision in S.23 of the Buildings (Lease and Rent Control) Act, 1965. I do not think that I am called upon to examine the provision in S.23 of the Buildings (Lease and Rent Control) Act, 1965. There again perhaps it could be said that if the provisions of Order IX of the Code of Civil Procedure, 1908 do not govern the proceedings before the Rent Control Court, that court would have no power to dismiss for default, and consequently, if that court has got power to dismiss for default, that court also should have power to restore proceedings dismissed for default However, I make it clear that I have not fully examined the said question, since, in my view, it is not necessary to decide the case on hand. 7. There was some contention before me that the appellate authority went wrong in allowing Ext. P3 application in so far as there was no application to condone the delay in filing that application The submission is on the basis that Ext. P3 application was filed beyond 30 days of the dismissal for default of the appeal As pointed out by the appellate authority, though there is no separate application filed along with Ext. P3 application praying that the delay be condoned, Ext. P3 application is a composite application praying that the delay in filing that application be condoned and the appeal be restored to file In that view there is no merit in the contention advanced on behalf of the petitioner as aforesaid. 8. There was some argument about the propriety of the impugned order Ext. P5. The appellate authority has given sufficient reason for exercising the discretion in favour of allowing Ext. P3 application It was pointed out that that authority is satisfied that the appellant was prevented for sufficient cause from appearing when the appeal was called, in so far as the appellant's (second respondent) wife was seriously laid up at the relevant time. In support of the contention as aforesaid, the second respondent has produced before the appellate authority a medical certificate also. It was relying on that medical certificate and other attendant circumstances that the appellate authority has chosen to allow Ext. P3 application. In view of what is stated hereinbefore, there is no merit in this writ petition. The same is dismissed. In the circumstances of the case, there will be no order as regards costs.