S.V.K.M. Sivaram Akrishna Aiyar vs The State of Madras, by the Collector of Ramnad at Madura and others

Rajagopala Ayyangar, J.—The petitioner is a sharer in the village of Vembattur, Sivaganga Taluk, Ramanathapuram District Proceedings were taken in respect of declaring this village as an in am estate before the Settlement Officer, who held that the village was not an in am estate within Madras Act XXVI of 1948. The ryots took up the matter in appeal to the Estates Abolition Tribunal, Madura, in R.A. No. 347 of 1950 but the appeal was dismissed for default of appearance. The appeal was taken up for hearing at 1 p.m. The appellant''s vakil who owing to congestion of traffic was unable to reach the office of the Tribunal in time, turned up at 2 p.m. on the same day, but meanwhile, as already stated, the appeal had been dismissed for default of appearance. In these circumstances the tenants filed an application for restoration of their appeal, but this application was opposed principally on the ground that the Tribunal had no jurisdiction to pass such an order. The objection was overruled, and the the Tribunal passed an order restoring the appeal to its file. It is the legality of this order of restoration that is challenged by the petitioner in this application for a writ of certiorari. Mr. Sundaram Aiyar, learned Counsel for the petitioner, contends that the Tribunal is not vested with the power of a civil Court functioning under the CPC dealing with appeals, and that once they dismissed the appeal before them they became functus office and have no jurisdiction to direct the restoration of appeal. Reliance is placed principally on the decision of a Bench of this Court reported in Kotireddi v. Venkayya (1961) 1 M.L.J. 517 = 64 L.W. 801. This case dealt with the powers of an Election Tribunal constituted by the rules under the Madras Local Boards Act, R. 6 of which provided :

Every election petition shall be enquired into by the election commissioner, as nearly as may be in accordance with the procedure applicable under the Civil Procedure Code, 1908 to the trial of suits; provided that it shall only be necessary for the Election Commissioner to make a Memorandum of the substance of the evidence of any witness examined by him.

The Election Commissioner had refuted an adjournment prayed for on behalf of the respondent in an election petition and let aside an election ex parte . An application was thereupon made to get this order set aside under O. 9, R. 7, C P.C. and this application was allowed. An application was thereupon filed to this Court to quash the order purporting to be under O. 9, R. 7 C.P.C. by the issue for a writ of certiorari on the ground that the Election Tribunal had no such power, and the learned Judges granted the relief.

The whole basis of this judgment was that the Election Commissioner was not by R. 6 above set out vested with the powers and jurisdiction of an ordinary civil Court governed by the Civil Procedure Code. Under this rule the provisions of the Code as to the trial of suits might have been rendered applicable to an enquiry of an election petition, but the learned Judges were not prepared to hold that the provisions of the Code dealing with matters arising after the final disposal of a suit would also apply to the enquiry of election petitions.

It is therefore necessary to examine the provisions of the Estates Abolition Act and the rules to see how far the powers of the Tribunal have been approximated to those of a civil Court.

The powers conferred by S. 8 (4) of the Act on the tribunals are not really relevant in the present context S. 67 (2) of the Act confers on Government power to make inter alia rules providing (b) the procedure to be followed by the tribunals appointed or having jurisdiction under the Act, and (c) the application of the provisions of the C.P.C. of 1908 and the Indian Limitation Act to applications, appeals and proceedings under the Act. By virtue of these powers the rule framed by the Government enacts :

(1) Every tribunal constituted under S. 8(1) of the Act.... shall have all the powers exercisable by a civil Court in the trial of suits and in appeals;

(2) the proceedings of a tribunal shall be summary and shall be governed as far as practicable by the provisions of the C.P.C. 1908 particularly in regard to (d) the fasting of order.

It would immediately be seen that the powers conferred on and the procedure to be followed by the Tribunal created under S. 8(1) of the Abolition Act are in no way analogous to those of the Election Tribunals under R. 6, of the rules under the Local Boards Act, already set out. Rules 1 and 2 deal with powers and procedure respectively and by their combined operation establish as it were their identity with civil Courts as regards these topics. The powers of a civil Court dealing with appeals include the power to restore an appeal dismissed for default under O. 41, R. 19, O. 41 of the Code deals with appeals, and R. 19, occurs under the sub-heading " Procedure on hearing", which starts with R. 16. Without going so far as to say that these tribunals have the inherent powers of a civil Court, in my judgment rules 1 and 2 are sufficient to confer on them these powers of a civil Court as regards trial of suits and appeals which are specifically set out in the Code, and this includes the power set out in O. 41, R. 19, of the code.

Mr. Sundaram Aiyar also referred me to the decisions of the learned Chief Justice and Somasundaram, J. short noted in Arasu v. Venkatachalam Chetti (1951) 1 M.L.J. S.N. 81. I have perused the text of the., judgment and I find that it does not touch upon the points arising here. The case arose under S. 12 of the Madras Buildings (Lease and Rent Control) Act, 1949, and their Lordships held that a Presidency Small Causes Court hearing appeals from orders of a Rent Controller had no power to restore an appeal dismissed for default. It will be noticed that neither the Rent Control Act nor the rules made under it made the provisions of the Code applicable to proceedings there under. But under S. 8 and O. 51 C. P. C. the provisions in the body of the Code are in general made inapplicable to the Presidency Small Causes Courts, unless extended by notification issued by the High Court. Their Lordships therefore held that in the circumstances a Judge of the Presidency Small Cause Court had not vested in him the power conferred by O. 41, R. 19 C.P.C., on a Court hearing appeals.

In my judgment, rules 1 and 2 framed under S. 67 (2) (e) of the Abolition Act confer on the tribunals constituted under S. 8 of the Act the power to restore appeals dismissed for default. This writ petition fails and is dismissed with costs of the third respondent which 1 fix at Rs. 50.