Abdul Hakkim v. Arumugham — 1996 DIGILAW 238 (KER)

JUDGMENT V.V. Kamat, J. 1. Although apparently by the order dated 13-2 1991 of the learned single Judge the petition falls in the category of a referred matter, going through the bio data of the proceedings of this petition we shudder to observe that the rent control proceedings (as many as 10-9, 12, 13, 14, 15, 16, 17, 18, 19 and 20/78) taken up by the landlord respondent, wherein as far back as in 1978 - 79 the evidence of the landlord in chief having been over, those proceedings were part heard at the stage of cross examination of the landlord which was not then completed have remained in abeyance as a consequence of further orders. The landlord has been kept away from the right of trial, in the teeth of the consistent finding that he and his counsel could not remain present because they were coming to Alathur from Palghat and were prevented due to the puncture of the tyres of their vehicle, they could reach the Court only at 12.30 p.m. and by the time all the rent control petitions were dismissed for their absence. Throughout the further travel of these proceedings the fact that both the landlord and his counsel could not attend in time due to the tyre puncture of their vehicle would have to be referred and highlighted as an undisturbed situation. 2. The proceedings, as stated above stand on the file of the Rent Controller, Alathur for eviction of the present petitioner and other occupants under S.11 of the Kerala Buildings (Lease & Rent, Control) Act. On the day in question (as stated above) on 23-3-1979 both the respondent landlord and his counsel could not remain present. All the applications came to be dismissed which could be understood to be under the provisions of O.9 R.8 of the Code of Civil Procedure. 3. It is contended that the respondent landlord did not file any appeal to the appellate authority but instead approached the same authority by Interlocutory Application No. 394 of 1979. The application is styled to have been presented under S.23(h) of the Act and R.13(3) of the Kerala Buildings (Lease & Rent Control) Act praying for setting aside the said dismissal of the petitions. This petition was opposed by the petitioner tenant. The application is styled to have been presented under S.23(h) of the Act and R.13(3) of the Kerala Buildings (Lease & Rent Control) Act praying for setting aside the said dismissal of the petitions. This petition was opposed by the petitioner tenant. The contention was that there was no legal power or jurisdiction which could be only under S.23(h) of the Act and the R.13(3) of the Kerala Buildings (Lease and Rent Control) Rules. The remedy was, the tenant contended, only an appeal under S.18 of the Act. The Rent Controller by the order dated 23-8-1979 granted the applications, granted the first ground regarding the absence of the landlord by observing that the landlord and his counsel could not and for sufficient cause attend the Court. In this connection the Rent Control authority also emphasized total absence of contrary evidence in regard thereto. 4. However the rent control authority sought to draw a distinction between the order passed exparte on the one hand and the order of dismissal for default of appeals and on the basis thereof concluded that the petition under S.23(h) would not be maintainable. The process of reasoning shows that the term exparte to be found both in R.13(3) and in S.23(h) have the same meaning. The rent control authority also considered the alternative submission that in the event of the above provision not governing the situation the matter can be reviewed treating the application as one under O.47 R.1 C. P. C. The authority held that the application could not be considered as one for review treating it to be a restoration application. This position brought the tenant to the court of the learned Subordinate Judge, Palghat. All the matters thus came up before the learned Subordinate Judge, Palghat. This was in the nature of an appeal. The appellate authority agreed with the Rent Controller that S.23(h) of the Act would have no application. However, the appellate authority took the view that the petition can be treated as one for review under the provisions of S.23(k) of the Act leading to the conclusion that such an order of dismissal where absence was for sufficient cause can be reviewed. 5. However, the appellate authority took the view that the petition can be treated as one for review under the provisions of S.23(k) of the Act leading to the conclusion that such an order of dismissal where absence was for sufficient cause can be reviewed. 5. It is contended that the purported exercise of jurisdiction of the appellate authority as if the order is appealable and also without an enquiry into the question as to whether any of the conditions of O.47 R.1 of the Code of Civil Procedure are satisfied, would be an error of law. 6. In the context the petitioner tenant contended that reliance on the decision of this Court in 1979 KLT 260 (Asher v. Raru), by Janaki Amma, J is the situation for reconsideration. The petitioner has contended in such manner in the present petition. 7. Proceeding with the narration of the factual events the tenant carried the matter under S.20 of the Rent Control Act by way of a revision before the learned District Judge, Palghat. The order came to be confirmed by the judgment dated 21.11.1980. 8. The situation did not terminate there, the petitioner tenant approached this Court under S.115 of the Code of Civil Procedure by way of Civil Revision Petition No. 3239/80. The record shows that this revision petition was taken up for hearing by an order dated 5.2.1981 Ext. P4. The proceedings came to be referred to the Division Bench for reconsideration of the decision of this Court ( 1979 KLT 260 (supra). It is observed that the distinction between a Court and a Tribunal has to be borne in mind because of the major adjudicatory functions of the sovereign were traditionally vested in Courts, leaving only comparatively insignificant functions to tribunals. 9. It is then stated in the present petition that this order of reference could not fructify. This was because the revision itself was dismissed as not maintainable, on the basis of the well known jurisdictional emphasis in regard to the exercise of powers under S.115 of the Code of Civil Procedure spelt out in the decision of the Supreme Court ( 1987 (1) KLT 53 - Aundal Ammal v. Sadasivan Pillai). 10. It would be seen that this was not the end and the proceeding continued its life, because after the dismissal of the revision on 13.1.1987 the present O. P. came to be filed on 10.8.1987. 10. It would be seen that this was not the end and the proceeding continued its life, because after the dismissal of the revision on 13.1.1987 the present O. P. came to be filed on 10.8.1987. 11. The record of the proceedings of this O. P. No. 7443/87 has also a long life on the file of this Court. Several endorsements show, that the petition could not be taken up, on account of removal from the list to shorten the list, added to this the record also shows that on equal much more number of occasions just as it happen in the case of the landlord before the rent control authorities, as neither the present petitioner nor his counsel were present, the petition was dismissed. However the luck of the proceedings would show that every time there was an order of restoration. This was because the proceedings was under Art.227 of the Constitution of India. 12. It would be seen that although by the order dated 5.2.1981 there was order of reference in C. R. P. No. 3239/80, spelling out the necessity of reconsideration of the decision in 1979 KLT 260 , the same learned Judge (M. P. Menon, J.) Cheru Ouseph v. Kunjipathumma ( 1981 KLT 495 ) had an occasion to consider the provisions of S.23 of the Kerala Buildings (Lease and Rent Control) Act, 1965. It is observed in the said decision that a litigant may sometimes fail to reach a Court in time for reasons beyond his control. The train may be late, the bus may break down, the car may be held up at a railway crossing. If a Rent Control Court dismiss his application for default in the meanwhile, and if it is held to be powerless to restore it even when proper reasons are shown, that will be to allow the past to persist into the present, with all the merits on one side and dry technicality on the other. The learned Judge proceeds to observe further that S.23 of the Rent Control Act is not designed to make the tribunal powerless in such matters, but only to supplement its powers with some of the well known trappings of a Court, The said Court therefore has power in appropriate cases to restore an application dismissed for default. The learned Judge proceeds to observe further that S.23 of the Rent Control Act is not designed to make the tribunal powerless in such matters, but only to supplement its powers with some of the well known trappings of a Court, The said Court therefore has power in appropriate cases to restore an application dismissed for default. Reading these two reported judgments of this Court, ( 1979 KLT 260 - Asher v. Raru, 1981 KLT 495 - Cheru Ouseph v. Kunjipathumma) the view does not require any disturbance in regard thereto. In the process the said decision ( 1979 KLT 260 ) has been referred to. Reading of the said judgment would show that the learned Judge has proceeded to restore the application observing that the provision is not designed to make the tribunal powerless in such matters. 13. It appears that by an order dated 13.2.91 in this O. P. the learned Judge, probably being unaware of the above decision has referred the proceedings before us. 14. The situation of March 23, 1979 is before us in the same shape even though the basic feature that the petitioner and his counsel could not remain present because while they were on their way to the Court from Palghat their car punctured and therefore could not reach the court in time. 15. Our jurisdiction is invoked under Art.227 of the Constitution of India. This was in the background of the earlier orders of this Court treating revision application under S.115 of the Code of Civil Procedure as not maintainable. This was in C. R. P. 3239/80. This long travel of the proceedings stares in the face of the record especially when the absence of the petitioner and his counsel is more than justified and has been consistently held to be so without any dent in regard thereto and also coupled with an observation that there is no counter evidence in regard thereto for and on behalf of the other side the present petitioner. 16. The law of procedure has always been regarded as a helpmate in the process of justice. It is basic and elementary that every litigant comes to the Court and desires the decision on context. In the process of the travel of litigation there are certain eventualities that are appreciated by appropriate provisions of the procedural law. 16. The law of procedure has always been regarded as a helpmate in the process of justice. It is basic and elementary that every litigant comes to the Court and desires the decision on context. In the process of the travel of litigation there are certain eventualities that are appreciated by appropriate provisions of the procedural law. This is without touching the basic situation that as far as possible every litigation has to come to the end on contest. The undisputed position is that the respondent landlord and his counsel could not remain present for justifiable cause and it is also an undisputed record that both of them reached the Court at 12.30 p.m. on the day in question. It is not that they did not attend the court at all or could not attend the Court for the while day. This situation stares in our face while considering the question of exercise of jurisdiction of an extraordinary character. The exercise of extraordinary jurisdiction of a supervisory nature makes it abundantly clear that every order, may be illegal or against procedure may be arguable or even may be without jurisdiction need not be quashed if it is abundantly clear to this Court that such action has done the real justice to the proceedings before it. Interference under Art.227 of the Constitution of India is only to meet or to further the ends of justice. In the event of this Court seeing the situation that by interference, justice is going to be the first casuality, the Court has to remain away in favour of seeing that the real justice is done. In the process, whether the impugned order would have to be understood as an exparte order or as an order of dismissal for default would be an idle exercise especially on the facts and circumstances staring in the face of the record. Even if it is assumed that the controversy as to whether the order could be an order of dismissal for default or could be an order terminating the proceedings exparte and even in a situation that it can be argued ably on either side, the prime consideration before the Court exercising powers under the extraordinary and supervisory jurisdiction under Art.227 of the Constitution of India the interest of justice would have paramountcy. In fact for this proposition relating to the basic features for exercise of powers there is no need for any authority as the position is more than well settled in regard thereto. However this Court has already considered the position in the decision of the Division Bench to observe that the Court must be satisfied that interference is called for to meet or to further the order of justice. We also find that thereafter the above decision is also followed with respect by this Court again to observe in regard to the matter of removal of administrator, after holding that the removal could not be justified with the situation leaving no one to look after the affairs of the society would result in a situation that instead of aiding the cause of justice the legal result would be chaos and disorder dislocating the working of the society. 17. We find that the present proceedings are required to be seen and appreciated in the context of the above limitations relating to the exercise of extraordinary powers under Art.227 of the Constitution of India. It is for these reasons, we found it unnecessary to enter into the controversy as to whether the order would amount to dismissal for default or an exparte order as in our judgment such exercise would be futility in the context of the factual matrix already the period of time is nearing almost 18 years during which lime the respondent landlord who was already in the box having been completed his examination and was under cross examination although justified on (acts of being unable to attend the Court along with his counsel has been unjustifiably deprived of the process of Court in a legitimate manner. The result would be that O. P. No. 7443/87 would stand dismissed. The impugned order of the learned District Judge, Palghat as well as the learned principal Judge, Alathur stand confirmed (Exts. P3 and P2 respectively). The Munsiff and Rent Controller, Alathur is directed to proceed with the proceedings of R. C. P. Nos. 9, 12, 13, 14, 15, 16, 18, 19 and 20 of 1978 in pursuance of the order passed on I. A. 394/79 and others, on a top priority basis. P3 and P2 respectively). The Munsiff and Rent Controller, Alathur is directed to proceed with the proceedings of R. C. P. Nos. 9, 12, 13, 14, 15, 16, 18, 19 and 20 of 1978 in pursuance of the order passed on I. A. 394/79 and others, on a top priority basis. The parties are directed to appear before the rent control authority on 1.7.1996 at 11.00 a.m. and the learned Rent Controller is directed to proceed further in the matter according to law. Learned counsel appearing before us for the parties are requested to take necessary steps in the matter. Order accordingly.