C. Ganapathy v. R. Anbalagan — 1982 DIGILAW 439 (MAD)

Judgment :- 1. The petitioner is a cultivating tenant within the meaning of the Tamil Nadu Cultivating Tenants Protection Act 25 of 1955, hereinafter referred to as the Act. The respondents herein are the landlords within the meaning of the Act. The landlords filed application T.C.T.P. 212 of 1982, on the file of the Special Deputy Collector, Revenue court, Tirunelveli, under S. 3(4)(a) of the Act. The ground alleged for eviction is arrears of rent in respect of the lands concerned, for the years 1980#1511981. From the order passed by the Revenue court, dt. 11th June, 1982, it is found that notice was sent by registered post to the cultivating tenant and he refused to receive the same, as could be seen from the postal endorsement on the cover of the notice sent. The Revenue court accepted this endorsement as sufficient proof of service and set the cultivating tenant ex parte and passed an order on 11th June, 1982, accepting the evidence of second of the landlords who was examined in the case, and ordered the cultivating tenant to deposit Rs. 1,200 towards the lease arrears in respect of the lands concerned due to the landlords for 1980-1981 within 15 days from that date. This order of the Revenue Court was admittedly not communicated to the cultivating tenant. The Revenue court took up the matter for orders on 12th July, 1982, and since the cultivating tenant did not pay the lease arrears as per the order, dt. 11th June, 1982, ordered the eviction of the cultivating tenant from the lands concerned. This order of the Revenue court is the subject-matter of challenge in the present revision. 2. Mr. The Revenue court took up the matter for orders on 12th July, 1982, and since the cultivating tenant did not pay the lease arrears as per the order, dt. 11th June, 1982, ordered the eviction of the cultivating tenant from the lands concerned. This order of the Revenue court is the subject-matter of challenge in the present revision. 2. Mr. M. Srinivasan, learned, counsel for the cultivating tenant, would submit that R. 8 (ii) (a) of the rules framed under the Act, hereinafter referred to as the Rules, directs that the proceedings of the Revenue Court shall be summary and shall as far as possible be governed by the provisions of the C.P.C., 1908, hereinafter referred to as the Code, with regard to the issue and service of summons and in the instant case, there had been a transgression of the concerned provisions of the Code with regard to the issue and service of summons and hence, the entire process adopted by the Revenue Court in proceeding ex parte against the cultivating tenant is tainted with illegality and material irregularity, and on this ground, learned counsel seeks interference in revision. I shall deal with the submissions made by the learned counsel for the cultivating tenant in this behalf as the counter submission made by Mr. S. Sivasubra-maniam, learned counsel for the landlords, in seriatim. 3. Mr. M. Srinivasan, learned counsel for the cultivating tenant, would state that the provisions of O. 5 of the Code will apply with equal force to the proceedings batter the Revenue Court under the Act with regard to the issue and service of summons and he wants this Court to construe the expression ‘as far as possible’ occurring in R. 8 (ii) of the Rules as conveying the earning that in the absence of any inhibition, express or implied, in the Act or the Rules, O. 5 of the Code will have to govern the issue and service of summons under the Act and the rules. As against this, Mr. As against this, Mr. S. Sivasubramaniam, learned counsel for the landlords, would state that the expression ‘as far as possible’ needs not to be stretched to spell out a proposition that the provisions of O. 5 of the Code will have to be strictly applied and the learned counsel would further submit that a discretion still lay with the in Revenue Court to adopt the said provisions according to exigencies. 4. In Hinder v. Brayan 1 a Division Bench of this Court, consisting of lnnes and Muthusami Ayyar, JJ., had occasion to consider the meaning to be attached to the expression ‘as far as may be’ occurring in S. 587 of the cold Code civil Procedure with reference to dealing of second appeals by the High Court. In that case, the High Court in second appeal, called for finding on fact from the lower appellate court. Ss. 566 and 557 which regulated the procedure upon the finding on an issue sent down by the appellate court formed part of Chapter 41 of the old Code and the provisions of that Chapter were made applicable by Chapter 42 to proceedings in appeals from appellate decrees ‘as far as may be’, lines, J. delivering the judgment of the Division Bench, observed as follows— “If these words had the wide meaning of ‘as far as possible’, we think it would not be contended that we are precluded from going into the facts in the present case. But we think the meaning must be ‘as far as’ is consistent with proceedings in second appeal.” The above observation, to a very great extent, indicates that a wider connotation and not a restricted one should be attached to the expression ‘as far as possible’ in contrast to ‘as far as may be’. Hence, it is permissible to lay down that by virtue of the expression ‘as far as possible’, occurring in R. 8(ii) of the rules, the entirety of O. 5 of the Code with regard to the issue and service of summons will have to govern the proceedings before the Revenue Court under the Act. 5. Hence, it is permissible to lay down that by virtue of the expression ‘as far as possible’, occurring in R. 8(ii) of the rules, the entirety of O. 5 of the Code with regard to the issue and service of summons will have to govern the proceedings before the Revenue Court under the Act. 5. In Rani v. Deputy Director of Consolidate 2 the meaning and effect to be annexed to the expression ‘as far as possible’ occurring in U.P. Consolidation of Holdings Act 1953 came up for consideration before Dhawan, J. and the learned Judge opined as follows:— “This phrase really means that the principles are to be observed unless it is not possible to follow them in the particular circumstances of a case.” In Muthia Nattar v. Ibrahim Rowther 3 Ramaprasada Rao, J. as he then was, dealt with the question of addition of parties as contemplated under R. 8(ii) (c) of the Rules and the following observations of the learned Judge are worth noting: “R. 8 of the Madras Cultivating Tenants Protection Rules, ordains that every court constituted under the Madras Cultivating Tenants Protection Act shall have the powers exerciseable by a civil court in the trial of suits and in particular provides, under R. 8 (ii), that the proceedings before the Rent Court shall ‘as far as possible’ be governed by the provisions of the Code of civil Procedure, 1908. We are here concerned with the addition of parties expressly provided for in R. 8 (ii) (e) of the Madras Cultivating Tenants Protection Rules. It is common ground that unless there is anything in the Madras Cultivating Tenants Protection Act, or the rules prohibiting the application of any provisions of the Code of civil Procedure, the Code is applicable to the proceedings in the Revenue court. No doubt, the provisions of the Code of civil Procedure, ought not to be strictly iron-jacketed and rendered in elastic. No doubt, the provisions of the Code of civil Procedure, ought not to be strictly iron-jacketed and rendered in elastic. As the Code is mainly concerned with the procedural law, intended to facilitate justice, its application has to be sought instead of being avoided, if it is so required in the interests of justice.” In Kandaswamy Gounder v. Vamimuthu 4 Gokulakrishnan, J. referred to the observations of Rama prasada Rao, J. as he then was, in the above deci ion and opined that the provisions of the Code are in all force applicable to service of summons in respect of parties before the Revenue Court under the Act. 6. Neither the provisions of the Act nor of the rules lay down the procedure for issue and service of summons, it is only in this light we have to give due significance and effect to the expression ‘as far as possible’ occurring in R. 8 (ii) of the rules. The principles of justice require that an adjudication of a controversy should take place in the presence of both the parties and when proceedings are initiated by one party against another, the presence of the ‘another’ must be secured, so as to afford him an opportunity to make his say in the matter of grievance expressed by the party initiating the proceeding and it is only with this end in view, the imperative provisions of issue and service of summons or notice get adumbrated in the procedural law and this is what has been done in O. 5 of the Code. In the absence of a rule of exclusion, express or implied, either in the Act or the rules, I have to hold, taking note also of the judicial pronouncements referred to above that there is no escape from O. 5 of the Code with regard to issue and service of notice in proceedings before the Revenue Court under the Act. 7. Mr. M. Srinivasan, learned counsel for the cultivating tenant, submits that the Revenue court acted in utter disregard of the relevant provision of O. 5 of the Code with regard to service of notice on the cultivating tenant; and it ought not to have resorted to the process of sending notice by registered post alone, and taken the postal endorsement of refusal as proof of service. It is not in dispute that notice was sent by registered post in the first instance itself. On the other hand, Mr. S. Sivasubramaniam, learned counsel for the landlords, wants this Court not to take exception to the procedure adopted by the revenue court in sending the notice by registered post only, and the learned counsel does not want to make any distinction between notice being taken in the first instance and subsequently and wants to sustain the procedure adopted by the Revenue court as perfectly in consonance with the relevant provisions of O. 5 of the Code. 8. Before I deal with the legal aspect, certain facts which are not disputed before me, need restatement. There was no attempt at all to serve the cultivating tenant by personal service. Straightway, in the first instance itself, service by registered post has been resorted to, and the postal endorsement of refusal has been treated as proof of service and the cultivating tenant, on the hearing date, was set ex parte . 9. The relevant rules in O. 5 of the Code have undergone several changes, both at the Central and State level. But, we are concerned with the rules, as they stood on the relevant dates when proceedings were initiated before and notice was sent by the Revenue court. But, it will be worthwhile to refer to the rules, as they stood earlier and the decisions rendered construing them for the purpose of appreciating the implications and import of the rules as they stand today. Rr. 9 to 19 of O. 5 of the Code lay down the process for service of summons personally on the defendants. Of course, certain changes were introduced in R. 9 in this State earlier, bringing in service of summons by post on the defendant and which changes now stand omitted and I will have occasion to refer to them presently. R. 9 originally had two clauses and it stood as follows— “9(1) Where the defendant resides within the jurisdiction of the court in which the suit is instituted or has an agent resident within that jurisdiction who is empowered to accept the service of the summons, the summons shall unless the court otherwise directs, be delivered or sent to the proper officer to be served by him or one of his subordinates. (2) The proper officers may be an officer of a court other than that in which the suit is instituted, and, where he is such an officer, the summons may be sent to him by post or in such other manner as the court may direct. The rules which followed R. 9 upto R. 19, dealt with the procedure to be adopted for securing service of summons contemplated under R. 9. As R. 9, stood originally as aforesaid as well as in R. 19, there was no specific reference to service of summons by post. Yet, my attention has been drawn to two deci ions where it was recognised that the court had discretion to order service of summons by post. 10. In Khiroda Sundari Dasi v. Narin Chandra Saha 1 , a Division Bench of the Calcutta High Court, referring to the expressions order such service as it thinks fit’ occurring in R. 19, opined that it is open to the court, even where there has been a technical compliance with the provisions of R. 17 to order service in another mode, if the court thinks fit to do so, in the interests of justice, and the Division Bench indicated registered post as a mode of serving the summons in a case of the description dealt with by it. 11. In K.A. Desai and Co. v. Vijaysinhji, 1 Chhatpar, J. took note of the expression ‘unless the court otherwise directs’ occurring in R. 9 as well as the expressions ‘or such service as it thinks fit’ occurring in R. 19 and that they enabled the court to serve notice by post. The learned Judge referred to the other rule, namely, Rr. 20, 25 and 30 (3) of O. 5 of the Code contemplating service of summons by post. But they would come into play at different contingencies which did not exist in the present case. Mr. S. Sivasubramaniam, learned counsel for the landlords would place reliance on the above pronouncements to state that the court can order service of summons by post only, without resorting to service of summons personally, and wants to sustain the action of the Revenue Court in ordering service of notice by post only on the cultivating tenant and that too, in the first instance. How much assistance the learned counsel could derive from these pronouncements for his proposition will be seen when the subsequent changes introduced into the rules, and in particular R. 19-A introduced by Central Act 104 of 1976 are discussed in the following paragraphs. That would also cover the aspect as to how far the court can treat the postal endorsement of refusal as proof of service. 12. On 23rd October, 1981, sub-R. (3) was inducted into R. 9 in this State and the said sub-rule read as follows— “(3) Where the defendant resides in India whether within the jurisdiction of the court in which the suit is instituted or not, the court may direct the proper officer to cause a summons under this order to be addressed to defendant at the place where he ordinarily resides or carries on business or works for gain and sent to him by registered post prepaid for acknowledgment. An acknowledgment purporting to be signed by the defendant shall be deemed to be sufficient proof of service of such summons.” This sub-R. (3) gave a discretion to the court to direct service by registered post, where the defendant resides in India, whether within the jurisdiction of the court or not and it further enjoined the court to treat a postal acknowledgment as sufficient proof of service. However, it did not enable the court to straightway accept the bare postal endorsement of refusal as sufficient proof of service. After the introduction of sub-R (3) as aforesaid in this State, in Murugayyan Kangiar v. Marudayyammal 2 Rajamannar, C.J., dealt with a case where the summons sent to the defendant by registered post was returned with the endorsement of the postman ‘refused’. After the introduction of sub-R (3) as aforesaid in this State, in Murugayyan Kangiar v. Marudayyammal 2 Rajamannar, C.J., dealt with a case where the summons sent to the defendant by registered post was returned with the endorsement of the postman ‘refused’. The learned Chief Justice after pointing out that there was no specific provision as to the procedure to be followed when a defendant refused to receive a summons sent to him by registered post, held that probably O. 5 R. 17 of the Code was intended also to serve a case where the defendant refused to receive the summons sent by registered post and to sign the acknowledgment thereof, and the words in R. 17, ‘where the defendant or his agent or such other person as aforesaid refuses to sign the acknowledgment’ are sufficiently wide to include the case of a defendant refusing to sign the acknowledgment of receipt of a summons sent to him by registered post. Since, admittedly, there was no affixture of a copy of the summons as required by R. 17 of O. 5. it was held that there was no due service of summons in accordance with law. The decision was render ed on 5th January, 1956. 13. Subsequently, by Central Act 66 of 1956, R 20-A was introduced into O. 5. The said rule read as follows— “20-A. (1) Where for any reason whatsoever, the summons is returned unserved, the court may, either in lieu of or in addition to the manner provided for service of summons in the foregoing rules, direct the summons to be served by registered post addressed to the defendant or his agent empowered to accept service at the place where the defendant or his agent ordinarily resides or carries on business or personally works for gain. (2) An acknowledgment purporting to be signed by the defendant or the agent or an endorsement by a postal employee that the defendant or the agent refused delivery to take may be deemed by the court issuing summons to be prima facie proof service.” This rule enabled the court if summons could not be properly served under the normal procedure in the first instance to order either in lieu of or in addition to the manner provided for service of summons in the preceding rules that summons be served by registered post and gave a discretion to the court to accept either the acknowledgment or the postal endorsement of refusal as prima facie proof of service. That could be the only construction possible on the aforesaid rule. In Sri Krishna Rice Mills v. Rajagopala 1 Panchapakesa Ayyar, J. dealt with the case of postal endorsement of refusal of summons taken out under R 9 (3) (incorporated in this State) of O. 5 and the learned Judge found that there was no compliance with R. 17 and following the dictum of Rajamannar, C.J. in Murugayyan Kangiar v. Marudayyammal 2 held that service was not sufficient. Of course, the learned Judge did not take note of R. 20-A introduced by Central Act 66 of 1956; but this does not alter the princi le as pointed out by the subsequent pronouncement of a Division Bench of this Court, which is the one I am going to refer to now. 14. In Pichai Amma v. Vellayya 3 a Division Bench of this Court consisting of Ramachandra Iyer, C.J. and Anantanarayanan, J. as he then was, was concerned with a case where the defendant refused to accept the first summons sent by registered post. The learned Judges took note of R. 20-A introduced by Central Act 56 of 1956 and declined to accept the stand that the said rule could be availed of in the case of a first summons sent by registered post and they were further inclined to follow the deci ion of Rajamannar, C.J. in Marugayyah Kangiar v. Marudayyammal 2 with regard to failure to follow the procedure of affixing the copy of the summons as required by R. 17. The learned Judges further indicated that sub-sec (2) of R. 20-A vested a discretion in the court to accept the refusal of postal summons as proper service or not. The learned Judges further indicated that sub-sec (2) of R. 20-A vested a discretion in the court to accept the refusal of postal summons as proper service or not. This deci ion of the Division Bench was rendered on 25th October, 1962. On 27th March, 1963 R. 9 was re-cast, so far as this State is concerned, by the amendment of this Court, in the following terms and R. 20-A was omitted as a whole: “9(1) Where the defendant resides in India, whether within or without the jurisdiction of the court in which the suit is instituted, the court may direct the proper officer to cause a summons under this order to be addressed to the defendant at the place where he ordinarily residence carries on business or works for gain and sent to him by registered post preparative acknowledgment. “2. Where the summons is returned unversed or the defendant does not appear on the day fixed in the summons, the court may direct that the summons shall be delivered or sent to the proper officer to be served on him or one of his subordinates on the defendant. 3. The proper officer may be an officer of a court other than that in which the suit is instituted and where he is such an officer, the summons may be sent to him by post or in such other manner as the court may direct 4. Notwithstanding anything contained in sub-R. (1), where proceedings in court are taken for— (i) issue of an injunction; or (ii) punishment of a party for contempt of court; or (iii) bringing to sale any property in execution of a decree or order of court, notices shall be served inly in the manner provided for in sub-Cl. (2)” After the substitution in this State Cl. (1) of R. 9 enabled the court to cause summons to be served on defendant by registered post even in the first instance. Cl. 2 of R. 9, however, stated that if the summons was returned un served or the defendant did not appear on the day fixed in the summons, the court should resort to the normal process of personal service. There was no provision to treat the postal endorsement of refusal as sufficient proof of service. 15. Cl. 2 of R. 9, however, stated that if the summons was returned un served or the defendant did not appear on the day fixed in the summons, the court should resort to the normal process of personal service. There was no provision to treat the postal endorsement of refusal as sufficient proof of service. 15. In Kandaswamy Gounder v. Vaunimuthu 4 Gokulakrishnan, J. dealt with a case arising under the Act, where the revenue court treated the postal endorsement of refusal of notice sent through post in the first instance as proof of service and an ex parte order of eviction was passed. Construing the provisions of R. 9 of O. 5 of the Code, as substituted in this State, the learned Judge held that the Revenue Court ought to have followed the procedure under Cl. (2) of R. 9 and in the absence of such procedure having been opted the service was defective and the ex parte order of eviction needed setting aside. 16. Central Act 104 of 1976 brought about very many changes into the Code. It did away with R. 20-A (which rule even earlier stood omitted so far as this State is concerned with effect from 27th March, 1963) and introduced R. 19-A reads as follows— “19-A. Simultaneous issue of summons for service by post in addition to personal service—(1) The Court shall in addition to and simultaneously with, the issue of summons for service in the manner provided in Rr. 9 to 19 (both inclusive), also direct the summons to be served by registered post, acknowledgment due, addressed to the defendant, or his agent empowered to accept the service, at the place where the defendant, or his agent actually and voluntarily resides or carries on business or personally works for gain; Provided that, nothing in this sub-rule shall require the court to issue a summons for service by registered post, where, in the circumstances of the case, the court considers it unnecessary. (2) When an acknowledgment purporting to be signed by the defendant or his agent is received by the court or the postal article containing the summons is received back by the court with an endorsement purporting to have been made by a postal employee to the effect that the defendant or, his agent had refused to take delivery of the postal article containing the summons, when tendered to him, the Court issuing the summons shall declare that the summons had been duly served on the defendant; Provided that, where the summons was properly addressed, prepaid and duly sent by registered post, acknowledgment due, the declaration referred to in this sub-rule shall be made notwithstanding the fact that the acknowledgment having been lost or mislaid, or for any other reason, has not been received by the court within thirty days from the date of the issue of the summons.” R. 17 was also slightly amended by Central Act 104 of 1976, but it did not very much alter the substance of the procedure to be adopted when the defendant refuses to accept service or cannot be found. In 1980, by amendments introduced by this Court in S.R.O. C. 43/80, R. 9 introduced earlier with effect from 27th March, 1963 was repealed and the word ‘shall’ in sub-R. (2) or R. 19-A occurring, between the words the court issuing the summons and ‘declare’ that the summons had been’ was substituted by the word ‘may’ and the proviso to sub-R. (2) was repealed. Sub-R. (2) of R. 19-A, as per the Central enactment could be construed to state that it was a mandate to the court to treat the postal endorsement of refusal as due service on the defendant. But, the amendments introduced by this Court in this State gave a discretion to the court to treat the postal endorsement of refusal as due service on the defendant by the significant substitution of the word ‘may’ in the place of ‘shall’. Furthermore, R. 9, as it stood originally enacted, has been restored for its application in this State. 17. On the date when the proceedings were initiated against the cultivating tenant by the landlords before the Revenue Court, R. 9, in its original form and R. 19-A, as amended in this State, governed the situation. Furthermore, R. 9, as it stood originally enacted, has been restored for its application in this State. 17. On the date when the proceedings were initiated against the cultivating tenant by the landlords before the Revenue Court, R. 9, in its original form and R. 19-A, as amended in this State, governed the situation. In the light of these rules, can it be stated that the court can order service of summons by registered post only and treat the postal endorsement of refusal as proof of service on the defendant? Sub-R. (1) of R. 19-A along with its proviso, is unambiguous and is clear in its terms when it lays down that whenever the court deems fit to order service of summons by registered post, it shall be only in addition to, and simultaneously with the issue of summons for service in the manner provided in Rr. 9 to 19 (both inclusive). No power could be spelt out for the court to order service of summons by registered post only, so long as the matter comes within the ambit of Rr. 9 to 19-A. The other rules, like Rr. 20, 25 and 30 (3) will come into play in different contingencies, about which we are not concerned in the present case. As to how far the court could accept the postal endorsement of refusal as sufficient proof of service on the defendant in those contingencies, is a question that does not require an investigation, and answer in the present case. The expression ‘unless the court otherwise directs’ occurring in sub-R. (1) of R. 9 and the expressions ‘order such service as it thinks fit’ occurring in R. 12, will have to be viewed for the purpose of any direction or order by the court for service by registered post only in the light of the mandate found expressed in R. 19-A. So long as the matter comes within the ambit of Rr. 9 to 19-A, the court could order service of summons by registered post only in addition to, and simultaneously with the issue of summons for service on the defendant personally, as contemplated in Rr. 9 to 19 (both inclusive). There is no escape from this legal implication. 9 to 19-A, the court could order service of summons by registered post only in addition to, and simultaneously with the issue of summons for service on the defendant personally, as contemplated in Rr. 9 to 19 (both inclusive). There is no escape from this legal implication. Sub-R.(2) of R. 19-A also cannot be read as casting a mandate on the court to accept the postal endorsement of refusal as sufficient proof of service on the defendant, because so far as this State is concerned, the expression ‘shall’ occurring in the last portion of the sub-rule has been deleted and significantly the expression ‘may’ has been substituted in its place. Hence, the discretion remains with the court to accept the postal endorsement of refusal as proper service or not. 18. Before a Division Bench of the Kerala High Court, the impact of R. 19-A introduced by Central Act 104 of 1976, on sub-R. (3,) of R. 9, came up for consideration in Mohan Traders v. A.V.M. Cattle and Poultry Manufacturing Industries 1, and it has been observed as follows: “It follows that under the law, as it stands now, service of summons through registered post is permitted only in addition to and simultaneously with the issue of summons for service in the manner provided in rules 9 to 19. An endorsement of refusal can be acted upon only if the procedure in Order 5, rule 19-A has been followed.” The Division Bench further held that sub-R. (3,) of R. 9 prevailing in that State, which rule was pari materia the same as the one introduced in this State on 23rd October, 1951, stood repealed by virtue of its inconsistency with the amendments introduced by Central Act 104 of 1976. 19. Apart from the explicit language of the provisions concerned, as they stand framed in this State, there is a valid nail sound reason for construing the said provisions in the above manner. When the matter comes within the purview of Rr. 9 to 19-A, personal service as such cannot be skipped over. Service by registered post could only be in addition to and simultaneous with the process of personal j service. The object of the provisions is apparently to secure the presence of the defendant. J The process of personal service will necessarily have to adhere to the rules governing the same, and in particular R. 17. Service by registered post could only be in addition to and simultaneous with the process of personal j service. The object of the provisions is apparently to secure the presence of the defendant. J The process of personal service will necessarily have to adhere to the rules governing the same, and in particular R. 17. When service by registered post is resorted to, both in addition to and simultaneous with the process for personal service there is a discretion with the court to accept or not to accept either the postal acknowledgment duly signed or the postal endorsement of refusal, as sufficient proof of service. The vesting of such a discretion with the court, as stated above, has got a sound and valid rea son behind it. It is not as if courts have not come across cases of malpractices on the part of, not every honest postman making endorsements of ‘refusal’ at the instance of the opposite party without even tendering the postal cover to the concerned party and if the court is to be left without a discretion, but to accept such an endorsement as sufficient proof of service it will definitely lead to a miscarriage of justice. While Cl. (1) of R. 19-A with the proviso thereto enjoins upon the court, if it thinks necessary to order postal service, only in addition to and simultaneous with personal service, Cl. (2) with the appropriate amendment in this State, has given the discretion to the court to accept or not to accept the postal endorsement either of the acknowledgment or of refusal, as sufficient proof of service. Hence, we can take it that personal service is the normal and inescapable rule when the matter remains within the ambit of Rr. 9 to 19-A and service by registered post, wherever the court thinks it necessary, can only be in addition to and simultaneous with personal service. In the present case, there has been a clear transgression of the express mandate of the relevant previsions of O. 5 of the Code and hence, the Revenue Court committed a grave error of law when it chose to proceed against the cultivating tenant ex parte. 20. Mr. In the present case, there has been a clear transgression of the express mandate of the relevant previsions of O. 5 of the Code and hence, the Revenue Court committed a grave error of law when it chose to proceed against the cultivating tenant ex parte. 20. Mr. S. Sivasubramaniam, learned counsel for the landlords, would submit that as against orders passed ex parte by the Revenue Court, the cultivating tenant has a remedy by way of application to set aside the ex parte orders and R. 8 (ii) (f) of the rules provides for such a remedy and the question of propriety on the part of the revenue court in proceeding against the cultivating tenant ex parte should be agitated only by resorting to such process and not in the revision against the final orders. When an ex parte decree has been passed, the party aggrieved can either seek to have it set aside by resorting to the process provided therefor, or file an appeal as against the ex parte decree. Both the remedies can also be prosecuted concurrently as long as no deci ion is given in either of them. But, where the appellate court gives a deci ion in the appeal, then the ex parte decree of the first court is superseded and the process of setting aside the ex parte decree cannot be prosecuted. If, before the decision in the appeal is given, the ex parte decree is set aside, the decree appealed against ceases to exist and the appeal becomes infructuous. Where no application has been filed to set aside the ex parte decree and only a regular appeal has been filed, the appellate court can go into the question of propriety in setting the defendant ex parte and if it finds a warrant for it, can remand the case for retrial. The above view has been expressed by a Full Bench of this Court in Krishna Iyer v. Kuppan Ayyangar 1. If, however, the application to set aside the ex parte decree has been dismissed on merits, the appellate court is precluded from discussing the propriety in setting the defendant ex parte , but can decision the case on merits. This is the settled view of this Court. If, however, the application to set aside the ex parte decree has been dismissed on merits, the appellate court is precluded from discussing the propriety in setting the defendant ex parte , but can decision the case on merits. This is the settled view of this Court. Reference could be made to the deci ion of a Division Bench of this Court in Asethu v. Kesavayya, 2 where the deci ion of the Full Bench in Krishna Ayyar v. Kuppan Ayyangar, 1 was distinguished, as well as the subsequent decision of another Division Bench of this Court in Levai Sahib v. Ammenammal, 3 and the deci ion of a single Judge of this Court in Lakshmi Ammal v. Devadasi Nayudu 4. 21. The above pronouncements of this Court have been adhered to by a Division Bench of the Andhra Pradesh High Court in Munassar Bin v. Fatima Begum 5. If there had been no adjudication on merits with regard to the propriety of proceeding against the defendant ex parte , in the application preferred to set aside the ex parte decree as in a case where such an application was dismissed for default or withdrawn and there is no finding on merits, it will be competent for the appellate court to go into the question of propriety in proceeding against the defendant ex parte . The principle is, the appellate court is clothed with the same powers as the first court in passing appropriate orders, but if a decision has already been rendered by the first court on merits in an application to set aside the ex parte decree, that will have to govern the situation and that will inhibit the appellate court, which is seized with the regular appeal as against the ex parte decree, from going into the propriety of setting the defendant ex parte, and it is open to the defendant to canvass the order passed by the first court in the application to set aside the ex parte decree in accordance with the process provided therefor. But, if there has been no application preferred for setting aside the ex parte decree or if such an application preferred had not been adjudicated on merits, such as in the case of dismissal for default or withdrawal, the appellate court can canvass the propriety of setting the defendant ex parte. But, if there has been no application preferred for setting aside the ex parte decree or if such an application preferred had not been adjudicated on merits, such as in the case of dismissal for default or withdrawal, the appellate court can canvass the propriety of setting the defendant ex parte. The above principles will apply with equal force, irrespective of the fact that the remedy is one of revision instead of an appeal, when a revision alone is the remedy available as against the final order. 22. In the present case, Mr. M. Srinivasan, learned counsel for the cultivating tenant, has brought to my notice that applications preferred by the cultivating tenant to set aside the ex parte order as well as for stay had been returned by the Revenue Court, stating that the application for setting aside the ex parte order was time-barred and further, there was no provision to grant stay and the cultivating tenant has not prosecuted this process further. Learned counsel produces the original papers returned by the Revenue Court and has also filed a typed set consisting of copies of the same. This is not being disputed by the learned counsel for the landlords. This establishes that there is no prosecution of process for setting aside the ex parte order and there is no adjudication on merits in any application to set aside the ex parte order. The rule enuncited in Krishna Ayyar v. Kuppan Ayyangar 1 would squarely apply and this Court need not be deterred from adjudicating in this revision the propriety of setting the cultivating tenant ex parte. When there is a blatant omission to follow the procedural imperatives by the revenue court, the fact that the cultivating tenant is not inclined to follow up the other remedy need not stand in the way of this Court exercising the power of revision. 23. It is true that the matter has come past the two stages, namely, the stage of determining the arrears of rent and granting time to the cultivating tenant to deposit and the second stage of passing an order of eviction on account of the failure of the cultivating tenant to make the deposit. The first order is dated 11th June, 1982 and the second order is dated 12th July, 1982. The first order is dated 11th June, 1982 and the second order is dated 12th July, 1982. The second order is only consequential to the first one and the legal infirmity of setting the cultivating tenant ex parte continued even at the second stage because, admittedly, there was no communication of the first order to the cultivating tenant and the second order also stands tainted with the same legal infirmity. But, the present revision having been preferred only against the second order dated 12th July, 1982 this Court could only interfere in so far as the order is concerned. Mr. M. Srinivasan, learned counsel for the cultivating tenant, submitted that his client will be content if the second order is set aside and he does not want to canvass the determination with regard to the quantum of the arrears of rent, and he further states that his client will be satisfied if the revenue court affords him an opportunity to make the deposit within a time to be provided therefor. 24. The discussion of law on the background of the facts of the case compels me to interfere in revision and accordingly, this revision is allowed and the order of the Special Deputy Collector, Revenue court, Tirunelveli, made in T.C.T.P. 212 of 1982 is set aside and the matter will stand remitted back to his file for him to consider the same afresh after affording an opportunity to the cultivating tenant to make the deposit of the arrears of rent determined and giving him the requisite time therefor. There will be no order as to costs in this revision. 25. After the judgment was pronounced, Mr. M. Srinivasan, learned counsel for the cultivating tenant, submits that pursuant to the order passed by the Revenue court, the landlords have got delivery of possession recorded through the Revenue court and he requests this Court to exercise the powers under S. 6-BB of the Act. Mr. S. Sivasubramaniam, learned counsel for the landlords, submits that his clients have in fact taken possession. Now that the order of eviction passed by the Revenue court has been set aside, I find a warrant for exercising the powers under S. 6-BB of the Act. While the learned counsel for the landlords would state that there are standing crops, the learned counsel for the cultivating tenant would not admit this. Now that the order of eviction passed by the Revenue court has been set aside, I find a warrant for exercising the powers under S. 6-BB of the Act. While the learned counsel for the landlords would state that there are standing crops, the learned counsel for the cultivating tenant would not admit this. The landlords are directed to restore possession of the lands in question to the cultivating tenant and as a matter of caution the landlords will have three months from today to restore possession of the lands in question to the cultivating tenant.