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1995 DIGILAW 271 (KER)

Shahul Hameed & Ors. v. S. Gangadhara Warrier

1995-08-25

B.N.PATNAIK, K.G.BALAKRISHNAN

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Judgment :- Balakrishnan, J. One Nagoor Pichai Ahamed Kannu filed R.C.P. No. 170/81 against the respondent - tenant for eviction from a building on the ground of arrears of rent. Pending proceedings Ahamed Kannu died and the petitioners were impleaded as legal heirs. The Rent Control Court dismissed the application and an appeal was preferred against the order of the Tribunal before the Appellate Authority, namely, Sub Judge, Thiruvananthapuram. as R. C. A. 12/86. The first respondent was declared exparte in that proceedings and the appeal was allowed ordering eviction on the ground of arrears of rent. Petitioners later filed an application for execution of the order of eviction passed by the appellate authority. During the pendency of the application for eviction, Govt. by a notification issued under S.18 of the Act divested the powers of the appellate authority conferred on the Sub-Judge and by a separate notification conferred the powers of appellate authorities on District Judges in supersession of all previous notification on the subject. The respondent then filed I. A. No. 2729/93 before the 1st Additional District Judge to set aside the exparte order. The petitioners have contended that the application should have been filed before the Subordinate Judge's Court who passed the order of eviction. This plea was rejected and the First Additional District Judge by the impugned order held that the powers of the appellate authority now vest with District Court, and therefore, an application to set aside exparte order could be entertained only by an appellate authority invested with such powers under the Act. This C. R. P. is directed against that order. 2. The short question that arises for consideration is whether an application to set aside an exparte order is to be entertained by the original appellate authority who passed the eviction order in spite of the charge of jurisdiction effected by the statutory notification. The counsel for the petitioners contended that R.16(3) of the Kerala Buildings (Lease and Rent Control) Rules, 1979 is the relevant provision, which enables a party to file an application to set aside eh exparte order passed by the appellate authority. It is pointed out that such an application is to be filed before the appellate authority who has passed the order. Therefore an application filed before the appellate authority who got powers subsequent to the passing of the original order of eviction is not maintainable. It is pointed out that such an application is to be filed before the appellate authority who has passed the order. Therefore an application filed before the appellate authority who got powers subsequent to the passing of the original order of eviction is not maintainable. R.16(3) of the Kerala Buildings (Lease and Rent Control) Rules reads as follows: "In any case in which the order is passed exparte against a tenant or a landlord the tenant or the landlord, as the case may be, may within 15 days from the date of receipt of the order apply to the Appellate Authority by whom the order was passed for an order to set aside; and if the tenant or the landlord, as the case may be, satisfied the Appellate Authority that: the summons was not duly served or dial he was prevented by any sufficient cause from appearing when the appeal was called on for hearing, the appellate authority shall make such order as it deems fits and shall appoint a day for proceeding with the appeal." (emphasis supplied). The argument of the petitioners' counsel centres around the words' by whom the order was passed ' and it is urged that even after the divestiture of powers of the Subordinate Judge, an application should be filed before that authority even though the powers of the appellate authority is now conferred on the District Judge. We are not inclined to accept this contention. After the notification of the Government issued under S.18 of the Act, the Subordinate Judges are no longer the appellate authorities as envisaged under the Act. By notification of the Government issued on 31.8.89 the powers of the appellate authority are conferred on' District Judges. As the original order of eviction was passed by an appellate authority, such an order could be reversed or varied only by an appellate authority envisaged under the Act. As the subordinate judge is no longer an appellate authority such as power cannot be exercised by him. 3. The provisions of the Code of Civil Procedure are generally applicable to proceedings before the Rent Control Authorities. S.150 of the Civil Procedure Code deals with general powers of the civil court in case there is transfer of business. As the subordinate judge is no longer an appellate authority such as power cannot be exercised by him. 3. The provisions of the Code of Civil Procedure are generally applicable to proceedings before the Rent Control Authorities. S.150 of the Civil Procedure Code deals with general powers of the civil court in case there is transfer of business. S.150 reads as follows: "Transfer of business : Save as otherwise provided, where the business of any court is transferred to any other Court, the Court to which the business is so transferred shall have the same powers and shall perform the same duties as those respectively conferred and imposed by or under this Code upon the court from which the business was so transferred". When there is a transfer of any business, the transferee court can exercise the powers of the transferor court. By virtue of the notification referred to earlier, the District Court became the appellate authority and the Sub-ordinate Judge's Court is denuded of its powers of appellate authority. Therefore, the words 'By whom the order was passed' in Rule 16(3) of the Kerala Buildings (Lease and Rent Control) Rules have no significance and they have no application because the appellant authority who passed the original order is divested of its powers. A question of similar nature was considered by the Madras High Court in. N. Kalathi Mitdaliar v. Ellammal (AIR 1964 Mad. 463) where, by the transfer of territorial jurisdiction the Sub Court Vellore became the authority competent to consider petitions for dissolution of marriage under the Hindu Marriage Act. Originally, the Sub Court Chittur was the competent court and it had passed exparte order of dissolution of marriage. An application was filed to set aside this exparte order before the Sub Court, Vellore. The respondent therein contended that the application was not maintainable. The court held that the business of the Chittor Court having been transferred to Vellore Sub Court, the application filed for setting aside the exparte order was certainly maintainable before the Sub Court, Vellore. 4. In C. Suryarao v. C. Ramachandra Rao (AIR 1975 Andhra Pradesh 275) also a similar question was raised. In a land acquisition reference case before the Sub Court, Elur one of the claimants was set exparte. By a Govt. 4. In C. Suryarao v. C. Ramachandra Rao (AIR 1975 Andhra Pradesh 275) also a similar question was raised. In a land acquisition reference case before the Sub Court, Elur one of the claimants was set exparte. By a Govt. notification, the local limits of District Court and Subordinate Judge's Court were refixed and the area covered by the territorial jurisdiction of the Sub Court, Eluru came within the jurisdiction of Sub Court, Tanaku. The claimant filed an application to set aside the exparte order. The lower court held that the Sub Court, Tanuku alone has jurisdiction to entertain application under Order9,R.13C.P.C. This was upheld by the High Court. The court was of the view, that in the case of original applications under Order 9, R.13 C. P. C., which require after the setting aside the exparte decree a trial of the suit a fresh, the court should have territorial jurisdiction over the subject matter and so when the territorial jurisdiction has been transferred by virtue of a notification to the other court, the application under Order 9, R.13 C. P. C. cannot be entertained by the Court which originally passed the exparte decree. 5. In the instant case, as the Subordinate Judge is no longer the appellate authority under the provisions of the Kerala Buildings (lease and Rent Control) Rules, he is not competent to consider an application to set aside the exparte order passed by an appellate authority. If any other view is taken, that amounts to conferring a jurisdiction on an authority which does not have such powers. By the impugned order, the learned District Judge has rightly held that the petition is maintainable. We decline to interfere with the impugned order. The C. R. P. is dismissed.