Ram Datt and Others vs Peshi Lal and Others

R.S. Pathak, C.J.—This is a land-owners second appeal arising out of proceedings u/s 11 (1) of the Himachal Pradesh Abolition of Big Landed Estates and Land Reforms Act.

An application was made by the tenants, the present Respondents, u/s 11 (1) of the Himachal Pradesh Abolition of Big Landed Estates and Land Reforms Act for the acquisition of proprietary rights in their tenancy land. On July 22, 1970, when the application came on before the Compensation Officer the tenants were absent and therefore the Compensation Officer dismissed the application in default. On August 19, 1970, Lachhman, one of the tenants, applied under Order 9, Rule 9 and Section 151 of the CPC for restoration of the application. He filed the restoration application against only Ram Dutt, one of the land-owners. The Compensation Officer ordered restoration, and the application u/s 11(1) of the Act stood restored with its scope restricted to the claim of Lachhman vis-a-vis the proprietary rights of Ram Dutt. On December 21, 1970, Lachhman made a statement before the Compensation Officer that he did not press the application u/s 11(1) of the Act and that it may be consigned. On the same date, the Compensation Officer made an order dismissing the application.

Thereafter, on March 10, 1971, a fresh application u/s 11 (1) of the Act was filed by all the tenants. The Compensation Officer over-ruled the objection of the land-owners that the original application u/s 11 (1) of the Act having been dismissed a second application was not competent. He made an order granting proprietary rights to the tenants. His order has been affirmed by the learned District Judge on appeal.

At the outset learned Counsel for the Appellants has formulated two points. The first is whether a second application u/s 11 (1) of the Act filed in the aforesaid circumstances is barred under Order 9, Rule 9 or under Order 23 Rule 1 of the Code of Civil Procedure. The second is whether the original application u/s 11 (1) having been dismissed on the statement of one of the tenants alone a second application by all the tenants was barred by the principle of res judicata.

On the first point, the contention of the Appellants is that the CPC applies to proceedings u/s 11 of the Act and therefore a second application u/s 11 (1), being regarded as a suit, was barred by Order 9, Rule 9 and Order 23 Rule 1 of the Code. It is urged that the Compensation Officer exercising jurisdiction on an application u/s 11 (1) of the Act is a court of civil jurisdiction and therefore by virtue of Section 141 of the Code the procedure set out therein is applicable and Order 9, Rule 9 and Order 23, Rule 1 are attracted. In support of the submission that the Compensation Officer is a court we have been referred to the characteristic feature of a court that its decisions are binding and final, that there is a lies between the land-owners and a tenant in a proceeding u/s 11(1) of the Act, and that the rights of the parties adjudicated by the Compensation Officer in these proceedings are rights of a civil nature and an adjudication on those rights is final subject to an appeal u/s 12(1). It is pointed out that no objection can be taken to that proposition on account of the powers vested in the State Government u/s 10 of the Act inasmuch as those powers are of an administrative nature merely and are not intended to control or guide the judicial functions of the Compensation Officer u/s 11 of the Act. Reliance has been placed on Thola v. Shri Kishan 4 (1968) D.L.T. 5 S.N , Shri Virindar Kumar Satyawadi Vs. The State of Punjab, and Brajnandan Sinha Vs. Jyoti Narain, Our attention has also been drawn to Amba Dutt v. Hira (1970) D.L.T. 36 and Smt. Chowli Devi v. Rukam Din ILR 1973 (Him) 253 for the purpose of demonstrating the nature of a civil proceeding. The Appellants also rely on S.A.L. Narayan Row and Another Vs. Ishwarlal Bhagwandas and Another, Ramchandra Aggarwal and Another Vs. State of Uttar Pradesh and Another, and Sailaja Kanta Mitra and Others Vs. State of West Bengal,

In my opinion, the contention of the Appellants that the CPC is applicable to proceedings u/s 11 of the Act is misconceived. There are provisions in the Act which clearly point to the exclusion of the CPC in its entirety. Section 26 of the Act confers power on the State Government to make rules for the purpose of giving effect to the provisions of the Act, and Section 26 (2) (b) specifically empowers it to make rules prescribing the procedure to be followed by Compensation Officers in the discharge of their duties and functions. What the procedure will be is a matter left to the State Government. It is open to the State Government to formulate such procedure as it considers desirable. In that connection it may formulate rules incorporating some or all of the principles underlying the procedure prescribed in the Code of Civil Procedure. So far as the specific provisions of the Code are concerned, it is only those which relate to the administering of oaths, taking evidence and for enforcing the attendance of witnesses and compelling the production of documents and material objects that have been specifically applied. That object is served by Section 25 of the Act. In my judgment, inasmuch as the procedure to be followed by the Compensation Officers in the discharge of their duties and functions has been particularly left to the State Government in the exercise of its rule making power there is clear indication that the Act does not intend to apply the CPC as such, except of course to the limited extent mentioned in Section 25 of the Act. The circumstance that Section 25 of the Act specifically applies the provisions of the Code in certain matters only reinforces the conclusion that in respect of other matters the provisions of the Code have not been applied by the statute. Wherever the statute intended to apply the CPC as such, it made clear provision in that behalf. In this regard reference may be made to Section 122 (2) of the Act. Accordingly, I hold that Order 9, Rule 9 and Order 23, Rule 1 of the Code do not apply to proceedings u/s 11 of the Himachal Pradesh Abolition of Big Landed Estates and Land Reforms Act.

It has been contended, in the alternative, that even though the CPC may not be applicable the principles underlying Order 9 Rule 9 and Order 23, Rule 1 of the Code are attracted. We have heard learned Counsel for the Appellants at length but it has not been shown to us that the proposition has force. Order 9, Rule 9 and Order 23, Rule 1, in so far as they forbid the institution of a second suit when the first has been dismissed in default or has been withdrawn, are inconsistent with the nature of the right contemplated by Section 11(1) of the Act. Section 11(1) entitles a tenant to apply "at any time" after the commencement of the Act for the acquisition of the right, title and interest of the land owner in the land of the tenancy held by him under the landowner. It is a right which may be exercised at any time; no period of limitation has been prescribed for the exercise of that right. So long as the tenancy subsists the right to apply inheres in the tenant. The right to apply u/s 11(1) is a continuing right, a right which accrues from time to time while the tenancy lasts. So long as there is no determination on the question whether the tenant is entitled to the right, title and interest of the existing landowner, there is no reason why any application made by him in that behalf cannot be entertained. The circumstance that an earlier application has been rejected cannot divest the tenant of the right to apply again on the same set of facts if the decision on the earlier application has not been rendered on the merits of the tenant''s claim. It is urged by the Appellants that if this view be taken it will be open to a tenant to apply u/s 11 (1) of the Act and to allow the proceeding to reach the stage where evidence is recorded and thereafter on finding that the application may fail the tenant can apply for withdrawing the application and subsequently file a fresh application. In this way, it is said, an abuse of the process before the Compensation Officer is permitted which can lead to considerable harassment of the landowner. The situation envisaged by the Appellants cannot be contemplated within the limits of normal practice. A tenant indulging in such practice will derive little advantage thereby. The conduct of the tenant and the state of evidence already recorded on the earlier application may operate as circumstances against him in a subsequent application filed u/s 11(1) of the Act.

I am of the view that in the circumstances of the present case the second'' application u/s 11 (1) of the Act made by the Respondents cannot be treated as barred either under Order 9 Rule 9 or Order 23, Rule 1 of the CPC or on any principle of the general law.

On the second point that is whether the dismissal of the original application made u/s 11 (1) of the Act on the statement of one of the tenants operates as res judicata against the second application filed by the tenants the answer is apparent. The first application was never tried on the merits. It was dismissed as not pressed. The plea of res judicata must fail.

The appeal fails and is dismissed with costs.