Kalyani Amma Bhargavi Amma v. Ouseph Varkey Of Attukadavil House And Others

Velu Pillai, J.:— The principal question which arises in this petition and for the decision of which this bench has been constituted, is whether an application under Act 1 of 1964 for the determination of fair rent, which was dismissed by the Land Tribunal for default of prosecution can be restored by it. Three learned Judges of this Court have taken the view, that the Land Tribunal has no power analogous to the power of the civil Court under Order 9 of the CPC. Vaidialingam, J. in O.P 2245 of 1962 (Ker) and Mathew, J. in Ammad Haji v. Kelu, 1966 Ker LT 819, held that the Land Tribunal has no jurisdiction to set aside an ex parte order and Gopalan Nambiyar, J. held in Annamma Chacko v. Mathew, 1967 Ker LT 95, that the Land Tribunal has no jurisdiction to restore an application dismissed for default.

2. Section 101 of Act 1 of 1964 enacts:

“The Land Board and the Land Tribunal constituted under this Act shall have all the powers of a civil Court while trying a suit under the Code of Civil Procedure, 1908, in respect of the following matters, namely:—

(a) summoning and enforcing the attendance of any person and examining him on oath;

(b) requiring the discovery and production of any document;

(c) receiving evidence on affidavit;

(d) issuing commissions for the examination of witnesses or for local investigation; and

(e) any other matter which may be prescribed”.

3. The other provision in the Act which is relevant relates to the rule-making power conferred by Section 129, sub-section (2)(e) of which enacts:—

“In particular, and without prejudice to the generality of the foregoing power, such rules may provide for the following matters:

(a)… … …

(b)… … … ….

(c)… … …

(d)… … … ….

(e) the procedure to be followed by the Land Tribunal and the Land Board”.

4. Rule 60 of the Kerala Land Reforms (Tenancy) Rules, 1964, framed under the Act provides, that “for the purpose of implementing the provisions of the Act or those rules, the Land Tribunal shall have power to issue commissions grant injunctions, appoint receivers and make such other interlocutory orders as may appear to the tribunal to be Just and necessary to meet the ends of justice”. There is one more rule, which is pertinent and on it depends the decision of this case; it is Rule 99 reading as follows:—

“In all proceedings before the Land Tribunal and the Land Board, the procedure prescribed as regards applications in the Code of Civil Procedure 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 these rules”.

5. An application under Act 1 of 1964 for the fixation of fair rent being an original proceeding, Rule 99 has reference to applications under the Civil Procedure Code which are of the nature of original proceedings. By virtue of Section 141 of the CPC, the procedure applicable to such applications under the Civil Procedure Code is the procedure in it in regard to suits, as far as it can be made applicable. In other words, if an application for the determination of fair rent were really an application under the Civil Procedure Code, there is little doubt, that the provisions of Order 9 would apply to it. But Section 141 of the CPC, has reference only to Courts of civil jurisdiction, and not perhaps to Land Tribunals. Hence the need for a separate and independent prescription, as in Rule 9.9 In this view, the provisions of Order 9, including those for dismissal for default, for decision ex parte, and for setting aside such dismissals and decisions are all applicable to proceedings before the Land Tribunal. but it was contended by the petitioner's learned counsel, that while Section 101 of the Act 1 of 1964 confers specified powers on she Land Board, a power of restoration is not one of them and that Rule 60 framed in accordance with clause (c) of Section 101 is silent about it, and Rule 99 prescribes only procedure, but confers no power. The argument makes a compartmental distinction between powers and procedure, and overlooks that even procedure may involve the exercise of powers. We cannot therefore accede to the argument, and are of the view that Rule 99 may well be supported as a prescription under Clause (e) of Section 101. There is little force in the contention that this power might well have been provided for specifically in Sec. 101. However that be, Rule 99, which we have already interpreted, is a rule specifically with in the rule-making power in Section 129 Clause (e) of the Act. There is no reason to interpret Sec. 129(e) in a narrow or restricted sense or to think that it is in any way controlled by Section 101 as enacted.

6. If we hold, that there is no jurisdiction for the Land Tribunal to restore, logically it must also be held, that it has no jurisdiction to dismiss for default either, and that such dismissal is void and must be treated as non est. It is not however necessary to rest the decision on this ground, as in our view. Rule 99 confers such jurisdiction. Of course, on this interpretation of Rule 99, the Land Tribunal has jurisdiction to pass order ex parte, to dismiss for default, and to set aside ex parte orders and orders of dismissal for default. That, we venture to think is, as it should be.

7. Before Vaidialingam, J. Rule 182 framed under Act 4 of 1961 corresponding to Rule 99 was not relied on. Mathew, J. did refer to Rule 182 and Gopalan Nambiyar, J. to Rule 99 aforesaid, but they held, that these cannot attract the provisions of Order 9 read with Section 141 of the CPC to proceedings before the Land Tribunal.

8. With respect, we agree from light of our interpretation or Rule 99, we do not think it necessary to deal with other decided cases to which our attention was drawn at the hearing.

9. We hold, that the application for restoration was competent. Restoration was allowed without notice and the petitioner 19 entitled to a rehearing of the application for restoration. The order impugned is quashed and the case is sent back to the Land Tribunal. The application for restoration will be heard afresh and disposed of in due course of law by the Land Tribunal on the merits. This writ petition is allowed in the above manner. Before closing, we record our appreciation of the assistance given to us by Mr. T.M Mahalinga Iyer, who acted as amicus curiae, at our request.

HK/GMJ/D.V.C

10. Petition allowed.