1. The short point that arises for determination in these two cases is as to whether an application under Section 151 of the CPC would lie to set aside an order of dismissal of an application for review filed by the tenant in a proceeding under the Calcutta Thika Tenancy Act. There was an order for ejectment passed on terms and thereafter the present petitioner filed an application for review. That application was set down for hearing on the 1st August, 1964 and on that date the parties had filed Hazira and though the opposite party was found to be present, the petitioner was found to be absent and the learned Judge, therefore, dismissed that Misc case for default. Thereafter the petitioner filed an application under S. 151 of the CPC for setting aside that order of dismissal. The learned Controller held that there was no scope for an application under Section 151 of the CPC and accordingly rejected that application. The present Rules were issued in respect of that order.
2. On behalf of the opposite party, Mr. M.M Mukherjee relies on a decision of this Court as (1964) 68 Cal WN 1064, Sibani Rani Dutta v. Balai Chandra Dutta. Clearly, if this decision holds the ground, the learned Munsifs opinion that there was no scope for an application under Section 151 of the CPC would stand.
3. It would however appear that there is a contrary decision of this Court by another Division Bench in Civil Rule No. 1901 of 1957 (Cal). That matter was disposed of on the 23rd July 1958 and there an application under Order 21, Rule 90 was dismissed for default and an application under Section 151 of the CPC filed by the judgment-debtor was rejected by the learned Subordinate Judge on the ground that an application under Section 151 of the CPC did not lie. But this Court held that though an appeal did lie against such an order still there was scope for application under Section 151 of the CPC
4. In this case Mr. Mukherjee has further pointed out that every order passed by the Thika Tenancy Controller is appealable and accordingly this impugned order in this case was appealable and as such Section 151 of the CPC would have no application. He relies on the decision (1964) 68 Cal WN 1064.
5. It is clear that there is a conflict of decisions between the Division Benches on the point in issue. In Civil Rule No. 3828 of 1967 (Cal) disposed of by me on the 11th July, 1969, I have preferred to follow the unreported decision of this Court in Civil Rule No. 1901 of 1957 (Cal). To me it appears that the scope of an appeal is limited and the point of absence cannot be usually considered. But an application under Section 151 of the CPC would enable the Court to do that and would lie in the circumstances, and the application should have been considered by the learned Controller on merits.
6. The result, therefore, is that both these Rules are made absolute. The impugned order passed by the learned Controller is set aside and he is directed to dispose of the applications on merits. As the matter is dragging for long, he should dispose of the applications within two months from the date of the arrival of the records. If the petitioners take no steps to adduce evidence on the applications under Section 151 of the CPC the learned Controller would have every jurisdiction to dismiss that application for default.
7. Order accordingly.