G. Ganapathy vs R. Anbalagan and Others

Nainar Sundaram, J.—The Petitioner is a cultivating tenant within the meaning of the Tamil Nadu Cultivating Tenants Protection Act XXV 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. No. 212 of 1982 on the file of the Special Deputy Collector, Revenue Court, Tirunelveli u/s 3(4) (a) of the Act. The ground alleged for eviction is arrears of rent in respect of the lands concerned, for the year 1980-81. From the order passed by the Revenue Court, dated 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 the 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 1980-81. 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, dated 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.

Mr. M. Srinivasan learned Counsel for the cultivating tenant would submit that Rule 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 Code of Civil Procedure, 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 well as the counter submissions made by Mr. S. Sivasubramaniam learned Counsel for the landlords in seriatim.

Mr. M. Srinivasan learned Counsel for the cultivating tenant would state that the provisions of Order V of the Code will apply with equal force to the proceedings before the Revenue Court under the Act with regard to the issue and service of summons and he wants this Court to construe the expressions as far as possible occurring in Rule 8(ii) of the rules as conveying the meaning that in the absence of any inhibition express or implied in the Act or the rules, Orders V of the Code will have to govern the issue and service of summons under the Act and the rules. As against this Mr. S. Sivasubramaniam learned Counsel for the landlords would state that the expression as far as possible need not be stretched to spell out a proposition that the provisions of Order V of the Code will have to be strictly applied and the learned Counsel would further submit that a discretion still lay with the Revenue Court to adopt the said provisions according to exigencies.

In Hinde v. Brayan ILR 7 Mad. 52. a Division Bench of this Court consisting of Innes and Muttusami Ayyar, JJ., had occasion to consider the meaning to be attached to the expression as far as may be occurring in Section 587 of the Old CPC with reference to dealing of second appeals by the High Court. In that case the High Court in second appeal called for a finding on fact from the lower appellate Court. Sections 566 and 567 which regulated the procedure upon the finding on an issue sent down by the appellate Court formed part of Chapter XLI of the Old Code and the provisions of that Chapter were made applicable by Chapter XLII to proceedings in appeals from appellate decrees as far as may be. Innes J., delivering the judgment of the Division Bench observed as follows (at page 53):

If these words bad the wide meaning of ''as far as possible we think it could 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 observations to a very great extent indicate 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 Rule 8(ii) of the Rules the entirety of Order V 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.

In Smt. Rani Vs. Deputy Director of Consolidation, Bareilly and Others, . the meaning and effect to be annexed to the expression as far as possible occurring in Uttar Pradesh Consolidation of Holdings Act, 1953 came up for consideration before Dhawan, J., and the learned Judge opined as follows (at page 526):

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 Muthiah Nattar Vs. N.S. Ibrahim Rowther alias N.S. Mohammed Ibrahim and Another, , Ramaprasada Rao, J., as he then was dealt with the question of addition of parties as contemplated under Rule 8(ii)(e) of the rules and the following observations of the learned Judge are worth noting (at page 192):

Rule 8 of the Madras Cultivating Tenants Protection Rules ordains that every Court constituted under the Madras Cultivating Tenants Protection Act shall have the power exercisable by a civil Court in that trial of suits and in particular provides under Rule 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 Rule 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 CPC the Code is applicable to the proceedings in the Revenue Court. No doubt the provisions of the CPC ought not to be strictly iron-jacketed and rendered inelastic. As the Code is mainly concerned with the procedure law intended to facilitate justice, its application has to be sough, instead of being avoided if it is so required in the interests of justice.

In Kandaswamy Gounder Vs. Vannimuthu Gounder and Another, ., Gokulakrishnan, J., referred to the observations of Ramaparasada Rao, J., as he then was in the above decision 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.

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 Rule 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 proceedings 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 Order V 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 Order V of the Code with regard to issue and service of notice in proceedings before the Reverse Court under the Act.

Mr. M. Srinivasan, learned Counsel for the cultivating tenant submits that the Revenue Court acted in utter disregard of the relevant provisions of Order V 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, M.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 Order V of the Code.

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. Straight, away, 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 bearing date, was set ex parte.

The relevant rules in Order V 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 decision rendered construing them for the purpose of appreciating the implication and import of the rules as they stand today. Rules 9 to 19 of Order V of the Code lay down the process for services of summons personally on the Defendant. Of course, certain changes were introduced in Rule 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. Rule 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 Rule 9 upto 19, dealt with the procedure to be adopted for securing service of summons contemplated under Rule 9. As Rule 9 stood originally as aforesaid as well as in Rule 19 there was no specific reference to service of summons by post. Yet, my attention has been drawn to two decisions where it was recognised that the Court had discretion to order service of summons by post.

In Khiroda Sundari Dasi v. Narin Chandra Saha AIR 1916 Cal. 600. a Division Bench of the Calcutta High Court, referring to the expression order such service as it thinks fit, occurring in Rule 19, opined that it is open to the Court, even where there has been a technical compliance with the provisions of Rule 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.

In K.A. Desai v. Vijayasinhji AIR 1954 san. 84., CHHATPAR J., took note of the expressions unless the Court otherwise directs occurring Rule 9 as well as the expression or such service as it thinks fit occurring in Rule 19 and held that they enabled the Court to serve notice by post. The learned Judge referred to the other rules, namely, Rules 20, 25 and 30(3) of Order V 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 Rule 19-A introduced by Central Act CIV of 1976 are discussed in the following paragraphs. That would also cover the aspect as to how for the Court can treat the postal endorsement of refusal as proof of service.

On 23rd October, 1951, Sub-rule (3) was inducted into Rule 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-rule (3) gave a discretion to the Courts direct service by registered post, where the Defendant resided 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 straightaway accept the bare postal endorsement of refusal as sufficient proof of service. After the introduction of Sub-rule (3) as aforesaid in this State, in Murugayyan Kangiar v. Marudayyammal (1956) 69 L.W. 563., 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 refuse to received a summons sent to him by registered post, held that probably Order V, Rule 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 Rule 17 where the Defendant or his agent or such other person as aforesaid refused to sign the acknowledgment are sufficiently wide to include the case of a Defendant refusing to sign the acknowledgment or receipt of summons sent to him by a registered post. Since, admittedly, there was no affixture of a copy of the summons as required by Rule 17 of Order V it was held that there was no due service of summons in accordance with law. The decision was rendered on 5th January, 1956.

Subsequently by Central Act LXVI of 1956, Rule 20-A was introduced into Order V The said rule read as follows:

20-A. (1) Where for any reasons 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 of 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 to take delivery may be deemed by the Court issuing the summons to be prima facie proof of 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 A.S.N.S. Naina Pillai Marakkayar Vs. State of Madras by Secretary, Revenue Department, , Pahohapakesa Ayyar J. dealt with the case of postal endorsement of refusal of summons taken out under Rule 9(3) incorporated in this State of Order V and the learned Judge found that there was no compliance with Rule 17and following the dictum of Rajamannar, C.J., in Murugayyans Kangiar v. Marudayyammal (1956) 69 L.W. 563, held that service was not sufficient. Of course, the learned Judge did not take note of Rule 20-A introduced by Central Act LXVI of 956, but this did not alter the principle 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.

In Pichai Ammal Vs. Vellayya Thevar alias Ochu Thevar, a Division Bench of this Court consisting of Ramachandra Iyer, C.J. and Anahta Narayanan, J. (as he then was), concerned with a case where the Defendant refused to accept the first summons sent by registered post. The learned Judges took note of Rule 20-A introduced by Central Act LXVI 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 decision of Rajamannar, C.J. in Murugayyan Kangiar v. Marudayyammal (1956) 69 L.W. 563 with regard to the failure to follow the procedure of affixing the copy of the summons as required by Rule 17. The learned Judges further indicated that Sub-clause (2) of Rule 20-A vested a discretion in the Court to accept the refusal of postal summons as proper service or not. This decision of the Division Bench was rendered on 15th October, 1962. On 27th March, 1963 Rule 9 was re-cast so far as this State is concerned by the amendment of this Court in the following terms and Rule 20-A was omitted as a whole:

(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 resides or carries on business or works for gain and sent to him by registered post prepaid for acknowledgment.

(2) Where the summons is returned unserved or the Defendant does not appear on the day fixed in the summons, the court may direct that the summon should be delivered or sent to the proper Officer to be served by him or one of his subordinate of the Defendant.

(3) The proper Officer may be an Officer of a Court other than that 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-rule (1), where proceedings in Court are taken for:

(1) issue of an injunction, For

(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 only in the manner provided for in Sub-clause (2).

After the substitution in this State Clause (1) of Rule 9 enabled the Court to cause summons to be served on Defendant by registered post even in the first instance. Clause (2) of Rule 9 however, stated that, if the summons was returned unserved 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 provisions to treat the postal endorsement of refusal as sufficient proof of service.

In Kandaswamy Gounder Vs. Vannimuthu Gounder and Another, , 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 Rule 9 of Order V of the Code, as substituted in this State, the learned Judge held that the Revenue Court ought to have followed the procedure Under Clauses (2) of Rule 9 and in the absence of such procedure having been and opted the service was defective and the ex parte order of eviction needed setting aside.

Central Act CIV of 1976 brought about very many changes into the Code. It did away with Rule 20-A (which rule even earlier stood omitted so far as this State is concerned with effect from 27th, March, 1963) and introduced Rule 19-A. Rule 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 is Rules 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 stall 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 bad been duly served on the Defendant:

Provided that where the summons was properly addressed, prepared 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.

Rule 17 was also slightly amended by Central Act CIV of 1976, but it did not very much alter the substance of the procedure to b; adopted when the Defendant refuses to accept service or cannot be found. In 1980, by amendment introduced by this Court in SRO, C-43/80, Rule 9 introduced earlier with effect from 27th September, 1963 was repealed and the word shall in Sub-Rule 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-rule (2) was repealed Sub-rule (2) of Rule 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 amendment introduced by this Court in this State given 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. Further more, Rule 9, as it stood originally enacted, has been restored for its application in this State.

On the date when the proceedings were initiated against the cultivating tenant by the landlords before the Revenue Court, Rule 9, in its original form and Rule 19 A, as mended in this State governed the situation. In this 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 proud of service on the Defendant? Sub-rule-Rule (1) of Rule 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 older 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 Rules 9 to 19 (both inclusive). No power could be spelt out for the Court to order service of sum months by registered post only, so long as the matter comes within the ambit of Rules 9 to 19-A. The other rules, like Rules 20, 25 and 30(3), will come into play indifferent 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 cases The expression unless the Court otherwise directs occurring in Sub-rule (1) of Rule 9 and the expression order such service as it thinks fit occurring in Rule 19, will have to be viewed for the purpose so any direction or order by the Court for service by registered post only in the light of the mandate found expressed in Rule 19-A. So long as the matter comes within the ambit of Rules 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 Rules 9 to 19 (both inclusive). There is no escape from this legal implication. Sub-rule (2) of Rule 19-A also cannot be read as casing 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.

Before a Division Bench of the Kerala High Court, the impact of Rule 19-A introduced by Central Act CIV of 1976 on Sub-rule (3) of Rule 9 came up for consideration in Mohan Traders v. A.V.M. Cattle and Poultry Feed and Manufacturing Industries ILR [1980] Ker. 612 and it has been observed as follows (at page 617:

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 V, Rule 19-A has been followed.

The Division Bench further held that Sub-rule 3 of Rule (9) prevailing in that State, which Rule was in parimated the same as the one introduced in this State on 23rd October, 1951, stood repealed by virtue of its inconsistency with the amendment introduced by Central Act CIV of 1976.

Apart from the explicit language of the provisions concerned as they stand framed in this, State, there is a valid and sound reason for construing the said provisions in the above manner. When the matter comes within the purview of Rules 9 to 19-A. personal service as 9uch oar not be shipped over Service by registered post could only be in addition to and simultaneous with tie profess for personal service. The object of the provisions is apparently to secure the presence of the Defendant. The process of personal service will necessarily have to adhere to the Rules governing the same and in particular Rule 17. When service by registered post is resorted to, both it. 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 e sound and valid reason behind it. It is not as if Courts have not come across cases of malpractices on the part of, not a very honest postman making endorsements of refusal at the instance of the opposite party without even rendering 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 Clause (1) of Rule 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 Clause (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 if that personal service is the normal and inescapable rule when the matter remain within the ambit of Rules 9 to 19-A and service by registered post, wherever he 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 mandates of the relevant provisions of Order V of the Code and hence, the Revenue Court committed and grave error of law when it chose to proceed against the cultivating tenant ex parte.

Mr. S. Sivasubramaniam, learned Counsel for the land-lords, would submit that as against Orders parsed ex parte by the Revalue Court, the Revenue court the cultivating tenant has u remedy by way of an application to set aside the ex parte orders and. Rule 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 resetting to such process and rot 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 procedures provided therefor, or file an appeal as against the ex parte decree. Both the remedies can also be prosecuted concurrently as long as no decision is given in either of them. But, where the appellate Court gives a decision in the appeal, then the ex parte decree of the first Court is superseded and tie 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 in fructuous. 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 of seeing 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 Fell Bench of this Court in Krishna Ayyar v. Kuppan Ayyangar1 If, however, the application to set aside the ex parte decree has beer dismissed on merits, the Appellate Court is precluded from discussing the propriety of setting the Defendant ex parte, but can decide the case on merits,. This is tie settled view of this Court. Reference could be made to the decision of a Division Bench of this Court in Asethu v. Kesavayya AIR 1920 Mad. 962. 2 where the decision of the Full Bench in Krishna Ayyar v. Kuopan Ayyangar ILR (1907) Mad. 54 (F.B.) was distinguished; as well as the subsequent decision of another Division Bench of this Court in Bava Levvai Sahib and Others Vs. Ammeenammal and Others, and the decision of a Single Judge of this Court in Lakshmi Ammal Vs. Devadasi Nayadu and Others, . The above pronouncements of this Court have been adhered to by a Division Bench of the Andhra Pradesh High Court in Munassar Bin Jan Nisar Yarjung (died) his Lrs. Marian Begum and Others Vs. Fatima Begum and Others, . 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 of 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 appeals against the ex parte decree, from going into the propriety of seething 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 had been no application preferred for seething aside the ex parte decree or if such an application preferred has not been adjudicated on merits such as in this case of a dismissal for default or withdrawal, the Appellate Court can canvass the property of setting the Defendant ex parte. The above principles will apply with equal force, irrespective of the fact that the remedy of revision instead of an appeal, when a revision alone is the remedy provided against the final order. In the present case Mr. M. Srinivasan, learned Counsel for the cultivating tenant his brought to my notice that application preferred by the cultivating tenant to set aside the ex parte order as well as for stay had been returned by the Revenue Court, staging 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 Produce the original paper 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 landlord. This establishes that there is no prosecution of the 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 enunciated in Krishna Ayyar v. Kuppan Ayyangar ILR (1970) Mad. 54 (F.B.) would squarely apply and this Court need not be deferred 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.

It is true that the matter has come past the two stages, namely, he 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 allure 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 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 he same legal infirmity. But, the present revision having been preferred only against the second order, dated 12th July, 1982, this Court can only interfere in so far as this 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.

The discussion of law on the back ground 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. No. 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.

After the judgment was pronounced, Mr. M. Shrinivasan, learned Counsel for the cultivating tenants, submits that pursuant to the order passed by the Revenue Court, the landlords have got delivery of possession recorded through the Revenue Courts and he requests this Court to exercise the powers u/s 6-BB of the Act. Mr. S. Siva Subramanian, 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 u/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.