G. Ashok Kumar vs G. Saraswathi

G. Rajasuria, J.—Inveighing the return endorsements dated 06.07.2010 made by the learned VIII Small Causes Court, Chennai in M.P. Sr.

Nos. 9261 and 9260 of 2010 in RCA No. 45 of 2007 respectively, these two civil revision petitions are focussed.

Heard both sides.

The short facts absolutely necessary and germane for the disposal of these two revisions would run thus:

The respondent herein filed the RCOP as against the revision petitioner herein and the Rent Controller fixed the fair rent. Whereupon appeal was

filed by the tenant in RCA No. 45 of 2007. Indubitably and indisputably, the RCA was not argued by the revision petitioner herein/appellant

therein. However, the Appellate Authority discussed the pros and cons of the matter and ultimately dismissed the RCA. Whereupon application in

M.P. Sr. No. 9261 of 2010 u/s 5 of the Limitation Act r/w Section 11 of the Tamil Nadu Buildings (Lease and Rent Control) Rules was filed so as

to get the delay of 250 days condoned in filing the application to get set aside the order of dismissal dated 03.09.2009 along with an application in

M.P. Sr. No. 9260 of 2010 under Order IX Rule 9 r/w Section 151 of the CPC r/w Section 11 of the Tamil Nadu Buildings (Lease and Rent

Control) Rules to get set aside the dismissal order dated 03.09.2009.The court returned both the applications with the following endorsements:

M.P. Sr. No. 9261 of 2010

06.07.10 - Returned. Petition to set aside the ex parte order is returned as not maintainable. Hence, this petition also is returned.

M.P. Sr. No. 9260 of 2010

06.07.10 - Returned. This court has disposed the appeal on merits. Therefore how the petition to set aside the ex parte order is maintainable.

Copy of the affidavit and petition furnished to other side.

Correction to be initiated.

(extracted as such)

Being aggrieved by and dissatisfied with the same, these two civil revision petitions have been filed.

The Learned Counsel for the revision petitioner inviting the attention of this Court to the typed set of papers would develop his argument to the

effect that in the order dated 03.09.2009 the appellate authority clearly pointed out that the appeal was not argued as the Counsel for the appellant

was absent on that day. In such a case, simply because the Appellate Authority discussed certain facts, it cannot be taken as though it was ordered

on merits after hearing both sides.

Accordingly, he prays for directing the Appellate Authority to number the necessary applications and process it as per law.

The Learned Counsel for the respondent in all fairness, would agree with the submission made by the Learned Counsel for the revision

petitioner.

The points for consideration is as to whether the returns made by the Appellate Authority are in accordance with law?

At the outset itself, I would like to re-collect and call-up the decision of the Hon''ble Apex Court reported in Asit Kumar Kar Vs. State of West

Bengal and Others, . An excerpt from it would run thus:

It is a basic principle of justice that no adverse orders should be passed against a party without hearing him. This is the fundamental principle of

natural justice and it is a basic canon of jurisprudence. In the seven Judge Constitution Bench of this Court in A.R. Antulay v. R.S. Nayak it has

been observed in para 55 thereof (SCC p.660).

...So also the violation of the principles of natural justice renders the act a nullity.

One of the Counsel relied upon another five Judge Constitution Bench decision in Rupa Ashok Hurra v. Ashok Hurra. it is true that in para 9 of

the judgment it has been observed that this Court under Article 32 of the Constitution cannot hold as invalid a judgment of this Court by treating it

as a nullity. However, the aforesaid judgment does not say that we cannot pass a recall order when that order has been passed without hearing a

party.

There is a distinction between a petition under Article 32, a review petition and a recall petition. While in a review petition the Court considers

on merits where there is an error apparent on the face of the record, in a recall petition the Court does not go into the merits but simply recalls an

order which was passed without giving an opportunity of hearing to an affected party.

A mere poring over and perusal of the judgment would reveal that the without hearing the parties concerned if any order is passed it cannot be

presumed that the order was passed after hearing the party who was absent. In the absence of the appellant, if an order is passed, then it should be

taken that the appeal is dismissed for default and even if an order is passed without hearing the respondent but on hearing the appellant only, then it

could only be taken as an ex parte one.

Hence, I am of the considered view that the order dated 03.09.2009 passed by the Appellate Authority should be construed only as an order of

dismissal of appeal for default. As such the Appellate Authority is bound to number at the first instance the application u/s 5 of the Limitation Act

and process it as per law. In the event of allowing the application filed u/s 5 of the Limitation Act, the question of numbering the other application

to get set aside the order of dismissal would arise. In case of the Appellate Authority allowing the application u/s 5 of the limitation act, the other

application to get set aside the dismissal order may be numbered and processed as per law. On representing the papers, the Appellate Authority is

directed to dispose of the application u/s 5 of the Limitation Act within 15 days from the date of appearance of the parties before it.

With the above direction, both these civil revision petitions are disposed of. No costs. Consequently, the connected application is closed. Office

is directed to return the relevant papers to the Learned Counsel for the petitioner for representing the same before the Appellate Authority.