Jullunder duree and Niwar Manufacturing Co. vs R.M. Jayadevan and Others

K.K. Usha, J.—This revision petition is at the instance of respondents-tenants in R.C.P. 190/92. Rent control petition was dismissed on 4th August 1994 on the failure of the Petitioner to appear on that day. I.A. 3175/94 was filed to restore rent control petition which was dismissed for default. The petition was allowed by the rent control authority by order dated 7th February 1996 on payment of cost of Rs. 500 to the Respondents. Aggrieved by the above, Respondents-tenants took up the matter in appeal before the rent control appellate authority as R.C.A. 74/96. A reading of the above order would show that even though a contention had been taken in the memorandum of appeal that rent control Court has no power for restoration since the provisions of Order 9, Rule 9 CPC is not applicable to rent control proceeding, that argument was not seriously pressed before the appellate authority. The appeal was argued on merits and, as mentioned above, the same was dismissed.

In this revision petition, Petitioner has again taken up the contention that I.A. 3175/94 filed under Order IX, Rule 9 was not maintainable as this Court has hold that the provisions of Order IX, Rule 9 are not applicable to rent control proceedings. Reliance was placed by learned Counsel on a decision of a Single Judge of this Court in K.P. Pius Vs. Mrs. Albina Rozario and Another, in support of the above contention.

Order IX, Rule 9(1) reads as follows:

Decree against Plaintiff by default bars fresh suit.- (1) Where a suit is wholly or partly dismissed under Rule 8, the Plaintiff shall be precluded from bringing a fresh suit in respect of the same cause of action. But he may apply for an order to set the dismissal aside, and if he satisfied the Court that there was sufficient cause for his non-appearance when the suit was called on for hearing, the Court shall make an order setting aside the dismissal upon such terms as to costs or otherwise as it thinks fit, and shall appoint a day for proceeding with the suit.

The question that came up for consideration before the learned Single Judge was whether a second application for eviction is maintainable at the instance of the landlord whose first application was dismissed for default. Learned Judge took the view that the procedural provisions of the CPC may be applied to rent control proceedings in the absence of express provision to the contrary or in the absence of a conflict between the provisions of the CPC and provisions of the Kerala Buildings (Lease and Rent Control) Act or the Rules framed thereunder. Then the learned Judge took the view that the provisions under Order IX, Rule 9 which creates a bar to a fresh suit or proceeding when an earlier suit stands dismissed for default depriving the Plaintiff or the Petitioner of a substantive right of suit is not a mere procedural provision, but a substantive provision barring a right which otherwise inheres in every person to approach the Court for redressal of his grievance. The bar of fresh suit in Order IX, Rule 9, according to the learned Judge, in the absence of an express provision in the Act will not be applicable to the rent control proceedings. On a reading of the entire judgment, it is very clear that what had been considered by the learned Judge was only that provision contained in Order IX, Rule 9 which created a bar of fresh suit and its application to the rent control proceedings. Therefore, the statement in paragraph 13 of the judgment that Order IX, Rule 9 CPC cannot therefore be invoked to preclude the landlady in that case from claiming relief, has to be understood in the light of the reasoning given by the learned Judge that the bar of a suit under Order IX, Rule 9 cannot be made applicable to rent control proceedings, since it has the effect of taking away the substantive right of the party concerned. This decision cannot be taken as an authority for a proposition that the remedy given under Order IX, Rule 9 to a Plaintiff to make an application to set aside the dismissal of the suit is not applicable to the rent control proceedings.

A Bench of this Court had occasion to consider the applicability of the provision contained under Order IX, Rule 9 CPC to proceedings under the Land Reforms Act, 1964, in Achutha Menon v. Narayanan 1974 KLT 485. Rule 99 of the Kerala Land Reforms (Tenancy) Rules, 1964 provides that in all proceedings before the Land Tribunal and the Land Board, procedure prescribed as regards the applications in the CPC or the Rules made thereunder shall, as far as can be made applicable, be followed except to the extent otherwise provided in the Act or in the Rules. It was held that Rule 99 attracts only the procedural provisions of CPC and not the substantive provision such as first part of Order IX, Rule 9 which bars the maintainability of an application. A Full Bench of this Court in Kalyani Amma Bhargavi Amma v. Ouseph Varkey 1967 KLT 317, took the view that the provisions of Order IX including those for dismissal for default, for decision ex parte and for setting aside such dismissals and decisions, are applicable to proceedings before the Land Board. In Thamukutty v. Athankutty 1961 KLT 31, the question that came up for consideration was whether a second application u/s 16 of the Malabar Tenancy Act, 1929 is maintainable. When the previous application u/s 16 was dismissed for default and an application made for its restoration was also dismissed. It was argued that the provisions of CPC being made applicable to the hearing of an application under the Malabar Tenancy Act by the Rent Court by Section 15(2) and to proceedings relating to application under the Act by Section 49, the provisions of Order IX, Rule 9 CPC would preclude a party from making a subsequent application for fixation of fair rent. Learned Judge took the view that the provisions of Order IX, Rule 9 CPC cannot be wholly applied to the application under Rule 16. Therefore, it cannot be contended that dismissal of the application for restoration operates as bar to the second application u/s 16.

In Cheru Ouseph v. Kunjipathumma 1981 KLT 495, M.P. Menon, J. took the view that Rent Control Court has the power in appropriate cases to restore an application dismissed for default. In the above case, the revision Petitioner sought reconsideration of the view taken by Janaki Amma, J. in Asher v. Raru 1979 KLT 260, to the effect that the Rent Control Court has no power to restore a petition dismissed for default; but, at the same time, by exercising the power of review conferred under Clause (k) of Section 23(1) of the Kerala Buildings (Lease and Rent Control) Act, the Rent Control Court can restore a petition dismissed for default. It was argued that the Court''s power u/s 114 and Order 47 of CPC is distinct and different from the power under Order IX, Rule 9 and when Section 23(1)(k) of the Kerala Buildings (Lease and Rent Control) Act confers only one of these powers on the Rent Control Court, the other should be deemed to have been denied. It was further contended that if the power under clause (ii) of Section 23(1) to set aside ex parte orders is not substituted for the power under Order IX, Rule 9 Code of Civil Procedure, the same must be said about the power of review under Clause (k) also. M.P. Menon, J. approached the issue from a different angle and observed that in respect of procedural matters, all powers which are not specifically denied by the statute or the statutory rules, should be vouchsafed to a tribunal so that it may effectively exercise its judicial function. If the petition was happened to be dismissed on the failure of the Petitioner to appear in time due to reasons beyond his control, the Rent Control Court has the power to restore the application. Section 23 of Act 2/65 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 the Court.

A similar view was taken in the matter of application of the provisions of order XLI, Rule 22 of CPC to rent control proceedings by John Mathew, J. in Sukumaran v. Susy Isacc 1985 KLT 1128. It was held that there is no statutory provision enabling any party to the rent control proceeding to file a memorandum of cross-objection or cross appeal in an appeal filed by the opposite party. The provisions of Order XLI, Rule 22 CPC are not inconsistent with any of the provisions of the Kerala Buildings (Lease and Rent Control) Act. Therefore, Order XLI, Rule 22 or in any case the principles contained in that rule are applicable to proceedings before the appellate authority under the Rent Control Act also. In taking the above view, the learned Judge had relied on a decision of the Andhra Pradesh High Court, by Chinnappa Reddi, J. (as he then was) in Bhagavatula Pullayya v. M. Anandam Chetti AIR 1972 A.P. 66. It was held therein as follows:

I am of the opinion, that the provisions of Order 41, Rule 22 CPC are not inconsistent with any of the provisions of the Act and are, therefore, applicable to proceeding before the appellate authority under the Act.

The Petitioner, therefore, was entitled, both on general principles and on the application of Order 41, Rule 22 to sustain the order of the Rent Controller before the Appellate Authority on the grounds decided against him by the Rent Controller.

We are in full agreement with the view taken by M.P. Menon, J. that in the interest of justice, authorities under the Kerala Buildings (Lease and Rent Control) Act should have the power in appropriate cases to restore an application dismissed for default. The procedure prescribed under Order IX, Rule 9 CPC should therefore be made applicable to the proceedings under the Kerala Building (Lease and Rent Control) Act to enable the rent control authority to restore an application dismissed for default. Neither Section 23 nor any other provision of the Act is contradictory to the procedural provisions contained under Order IX, Rule 9 Code of Civil Procedure. There is no doubt that the first portion of Order IX, Rule 9, which creates a bar to a fresh proceeding, cannot be made applicable to rent control proceedings, since it takes away substantive right available to the party and there is no statutory provision which either expressly or by necessary implication bars such right. But, as far as the later portion of the Rule is concerned, it is only a procedural provision and its principles can be applied in rent control proceedings also.

In the result, we affirm the judgment in R.C.A. 74/96 and the order in E.A. 3175/94 and dismiss the Revision Petition.