Gadamsetti Satyanarayana vs Sri Janardhana Swamy Devasthanam

Syed Shah Mohammed Quadri, J.—This revision petition arises out of the proceedings initiated under the Andhra Pradesh (Andhra Area) Tenancy Act (for short "the Andhra Tenancy Act"). The petitioner is the tenant. The respondent is the landlord. (Hereinafter the parties will be referred to as tenant and landlord). The landlord filed A.T.C. No. 309/81 before the Special Officer-cum-Principal District Munsif, Tanuku, praying for eviction of the tenant from the petition schedule land on the ground of default in payment of rent for 1388 and 1389 faslies. On the basis of the material available on record the Special Officer ordered eviction of the tenant. Dissatisfied with the said order of eviction, the tenant filed an appeal A.T.A. No. 56/1985 in the Court of the District Judge, West Godavari, Ehrru. Thereafter the advocate of the tenant passed away. When on 16-8-1988 the case was taken up for hearing nobody was present for the tenant; the advocate had already died, and as the appellant was not aware of the death of his advocate, so he was not present. However, the appellate court decided the appeal on merits and dismissed the same. Having come to know of the dismissal of his appeal, the tenant filed I.A. No. 2478 /89 u/s 151 C.P.C. read with Rule 18 of A.P. (Andhra Area) Tenancy Rules, 1980 (for short "the Andhra Tenancy Rules") to set aside the order of dismissal of the appeal. By order dt. 22-10-1990 the learned District Judge dismissed the petition on the ground that as the appeal was dismissed, on merits, the application for restoration of the appeal was not maintainable. It is the correctness of this order that is assailed in this C.R.P.

Mr. C.V.N. Sastry, learned counsel for the petitioner, submits that the order of the District Judge, dismissing the appeal on merits on 16-8-1988, was without jurisdiction, therefore, the order should have been construed as the order dismissing the appeal for default and the appeal should have been restored on the application of the petitioner. Sri R. Sreeramulu, learned counsel for the respondent, on the other hand, contends mat as the tenant and his counsel were absent on the date of the hearing of the appeal, the appellate court was justified in deciding the appeal on merits. As the appeal was decided on merits it could not be construed as having been dismissed for default, therefore the order under revision cannot be interfered with.

On these rival contentions, the short question which arises for consideration is, whether the order of the appellate court dated 16-8-1988 dismissing the appeal on merits in the absence of the tenant and his counsel, can be construed as tine order dismissing the appeal for default. If so, is the application to restore the appeal maintainable?

The proceedings initiated under the Andhra Tenancy Act are governed by the procedure prescribed under the Andhra Tenancy Rules. We shall refer to the Rules dealing with appeals under the Act. The relevant rules are Rules 8,9 and 18. Rule 8 deals with the procedure for filing the appeal, court fee, limitation, etc. Rule 9 enjoins that on receipt of an appeal under Rule 8, the District judge shall fix the date on which and the time and the place at which the appeal shall be heard and shall issue notice thereof to the appellant and the respondent. Sub-rule (5) of Rule 9 provides that on the date fixed for the hearing of the appeal under sub-rule (1) or any other date or dates to which the hearing may be adjourned, the District Judge shall give a reasonable opportunity to the parties to state their case and adduce their arguments and shall thereupon pass such orders as he deems fit. Rule 18 provides that all proceedings before the Special Officer or the District Judge under the Act shall be summary and shall be governed, as far as may be, by the provisions of the Code of Civil Procedure.

In Tungala Venkateswarlu v. The District Judge, Guntur 1990 (1) ALT 33., which also arose out of proceedings initiated under the Andhra Tenancy Act, the Special Officer ordered the eviction of the tenant ex parte. The application to set aside ex parte order of ejectment was dismissed by the Special Officer. The Appellate Authority confirmed that order. On revision to this Court, it was contended that the order of eviction passed by the Special Officer was without jurisdiction. Repelling this contention Ramaswamy, J. (as he then was) held that the Special Officer and the District Judge had power to dismiss for default an application or the appeal and restore the same as the provisions of the CPC were applicable.

The relevant provisions of the CPC dealing with appeals are contained in Order 41. Rule 17 of Order 41 provides that where on the date fixed or on any other day to which the hearing may be adjourned, the appellant does not appear when the appeal is called on for hearing, the Court may make an order that the appeal be dismissed. The question whether under Rule 17 the Court can dispose of the appeal on merits, gave rise to divergence of opinion among the High Courts. Now it may not be necessary to consider this aspect in detail in view of the fact that by Amendment Act, 1976, an explanation is added to sub-rule (1) of Rule 17, which says that the sub-rule shall not be construed as empowering the court to dismiss the appeal on merits. However, sub-rule (2) provides mat where the appellant appears and the respondent does not appear, the appeal shall be heard ex parte. Thus it follows that if on the date fixed for hearing of the appeal, the appellant is present and the respondent is absent, the appeal can be heard ex-parte and decided accordingly. But if on the date fixed for hearing of the appeal, the appellant is absent and the respondent is present, the appellate court may dismiss the appeal for default, but it cannot dispose of the same on merits. Rule 19 of Order 41 C.P.C. deals with re- admission of appeal dismissed for default. It enables the appellant whose appeal is dismissed under Rule 11 sub-rule (2) or Rule 17, to apply to the appellate court for re-admission of the appeal and if he proves to the satisfaction of the appellate court that he was prevented by any sufficient cause from appearing when the appeal was called on for hearing or from depositing the sum so required, the appellate court has to re-admit the appeal on such terms as to costs or otherwise as it thinks fit.

It is, however, urged that in view of the provisions of Order 9, Rule 8 and Order 17, Rules 2 and 3, the appellate court was empowered to decide the appeal on merits. Order 17, C.P.C. deals with adjournment of the suits. Rule 3 of Order 17 provides: where any party to a suit to whom time has been granted fails to produce his evidence or to cause the attendance of his witnesses, or to perform any other act necessary to the further progress of the suit, for which time has been allowed, the court may, if the parties are present, proceed to decide the suit forthwith, but if the parties or any one of them are not present, proceed under Rule 2. Rule 2 says: where on the day to which the hearing of the suit is adjourned, the parties or any of them fail to appear, the court may proceed to dispose of the suit in one of the modes directed in that behalf by Order 9 or make such other order as it thinks fit. The explanation added to Rule 2 by Amendment Act, 1976, empowers the Court to proceed with the case, where the evidence or a substantial portion of the evidence of any party has already been recorded and such party fails to appear on any day to which the hearing of the suit is adjourned, as if such party were present. Rule 8 of Order 9 provides that where the defendant appears and the plaintiff does not appear when the suit is called on for hearing, the Court shall make an order that the suit be dismissed unless the defendant admits the claim or part thereof,in which case the Court has to pass a decree against the defendant upon such admission, and dismiss the suit so far as it relates to the remainder. An order of dismissal passed under Rule 8 can be set aside on sufficient cause being shown for non-appearance under Rule 9 of the said Order. But in view of specific provisions of Order 41 dealing with the appeals, the appellate court has to pass order in the absence of the appellant or his advocate under Rule 17 of that Order.

From the above discussion it follows that on 16-8-1988 when the appeal was posted for hearing in the absence of the appellant and his counsel, the only course open for the appellate court was to dismiss the appeal for default and not to decide the same on merits. If under the rules the Court had the power only to dismiss the appeal for default but not to decide it on merits, the order passed by the appellate authority on 16-8-1988 cannot be treated as dismissal of the appeal on merits as that would amount to giving effect to the order passed without jurisdiction. Therefore the said order has to be treated only as an order dismissing the appeal for default. In this view of the matter an application under Rule 19 of Order 41 to restore the appeal would lie.

The same view is taken by the Madras High Court in Lajja Bai v. Rajamani 98 L.J. 914 .

In Salammal v. Mannangatti 1978 (1) MLJ 277, the question before a learned Single Judge of the Madras High Court was whether the order of the appellate Court dismissing the appeal on merits in the absence of the appellant and his counsel cannot be treated as dismissal of the appeal on merits. The learned Judge took the view that the order can be treated only as one within the ambit of Order 41, Rule 17 C.P.C.

For the above reasons the order of the appellate Court dated 22-10-1990 holding that the I.A. for restoration of the appeal is not maintainable, suffers from error of jurisdiction. Accordingly the said order is set aside.

Having regard to the fact that the advocate of the" tenant has died after filing of the appeal and he was not aware of the same therefore he could not be present on the date when the appeal was called and in view of the observations of the Supreme Court in Rafiq and Another Vs. Munshilal and Another, that a party who, as per the present adversary legal system, has selected his advocate, briefed him and paid his fee can remain supremely confident that his lawyer will look after his interest and such an innocent party who has done everthing in his power and expected of him, should not suffer for the inaction, deliberate omission or misdemeanour of his counsel, mere is sufficient cause for non-appearance of the appellant, I am of the view mat the tenant has shown sufficient cause for his non-appearance on 16-8-1988. Accordingly, the order under revision dated 22-10-1990 passed in I.A. No. 2478/89 is set aside and the LA. is allowed; consequently the appeal is restored to file. The appellate court is directed to dispose of the appeal in accordance with law.

The C.R.P. is accordingly allowed, but in the circumstances of the case, without costs.