Andhra HC (Pre-Telangana)
Mothukuri Ranga Rao And Anr. vs Royyala Laxminarayana And Ors. on 11 December, 2007
Equivalent citations: 2008(3)ALD311
ORDER Gopala Krishna Tamada, J.
1. This review petition is filed under Section 114 C.P.C. to review the order, dated 23.12.2005 passed by this Court in CRP No. 6929 of 2005.
2. Before going into the issue whether the order passed by this Court can be reviewed or not and the legal position thereof, it is necessary to refer to the facts involved in this revision. For the sake of convenience, the parties will be referred to as they are arrayed in CRP No. 6929 of 2005.
3. The petitioner, Royyala Laxmi Narayana, filed an application under Section 32 of the Andhra Pradesh (Telangana Area) Tenancy and Agricultural Lands Act, 1950 (for brevity "the Tenancy Act") for declaration that he is in undisputed possession of the petition schedule property and also for restoration of possession of the lands in question. The Mandal Revenue Officer, before whom the application was filed, conducted a detailed enquiry, and by his order dated 30.3.1998, dismissed the application. Aggrieved thereby, the petitioner filed an appeal before the Joint Collector, Warangal, under Section 90 of the Tenancy Act, along with an application under Section 5 of the Limitation Act, 1963, to condone the delay of about 153 days in filing the appeal. The Joint Collector dismissed the application on the ground that the delay was not properly explained. Questioning the order, dated 7.6.1999, the petitioner filed CRP No. 6929 of 2005 along with an application under Section 5 of the Limitation Act to condone the delay of 2081 days in filing the revision. When the petition to condone the delay came up for hearing, this Court ordered notice to the respondents, and the respondents 1, 2, 5 and 6, though received notices, did not put in their appearance either in person or through an advocate. So far as respondent Nos. 3 and 4 are concerned they refused to receive the notice. Then, this Court heard Sri Hari Sreedhar, learned Counsel for the petitioner.
4. According to the learned Counsel for the revision petitioner, his client i.e., the revision petitioner was informed by the Counsel, who appeared for him in the trial Court that he had made necessary arrangement for filing revision before the High Court and sent the papers to an Advocate at Hyderabad, and thus, his client was under bona fide impression that a revision was filed and the same is pending. But, after lapse of several years when his client contacted the Counsel, he was informed that though the papers for filing revision were sent by him to the Counsel in the High Court he did not have any communication with him, as such, the Counsel expressed his inability to inform the petitioner about the developments in the matter. Immediately thereafter, the petitioner contacted the present Counsel, Sri Hari Sreedhar, who on verification, stated that no revision is filed, and thus, he has filed the present civil revision petition. For this reason, there occurred a delay of about 2081 days. As there was no assistance from the respondents because of their non-appearance in the Court, though the delay is unduly long, as the petitioner shall not suffer for the lapses on the part of the Counsel, this Court, by its order dated 23.12.2005, condoned the delay, entertained the present CRP filed under Section 91 of the Tenancy Act, and allowed it setting aside the order dated 7.6.1999, and directed the Joint Collector to decide both the petition for condoning the delay and the appeal filed under Section 90 of the A.P. Tenancy Act.
5. As stated above, the respondents have filed the present Review Application under Section 114 CPC to review the order, dated 23.12.2005. As there is a delay of 506 days in filing the Review Application, the respondent Nos. l and 2 filed a petition to condone the delay. In the affidavit filed in support of this petition, it is admitted that the Joint Collector, by his order, dated 7.6.1999, dismissed the Appeal as well as the petition to condone the delay. Questioning the order dated 7.6.1999, the petitioner filed C.R.P. No. 5704 of 1999 under Section 91 of the Tenancy Act, and this Court, by an order, dated 9.6.2000, dismissed the revision for non-prosecution. It is also stated that suppressing the said fact i.e., about the dismissal of C.R.P. No. 5704 of 1999, the present revision is filed. Subsequent to the order, dated 23.12.2005 passed by this Court allowing C.R.P. No. 6929 of 2005, the Joint Collector condoned the delay, entertained the appeal filed under Section 90 of the Tenancy Act and allowed the appeal by his order dated 5.5.2007 reversing the orders passed by the Mandal Revenue Officer. Questioning the order passed by the Joint Collector, the respondents filed CRP No. 2335 of 2007, and this Court ordered status quo pending further orders as regards the nature and possession of the property. As the order of the Joint Collector was in consequence of the order, dated 23.12.2005 passed by this Court in CRP No. 6929 of 2005 and so long as this order is in existence, it causes irreparable loss, the respondents have filed this Review Application to review the order dated 23.12.2005.
6. Sri Y. Ramarao, learned Counsel for the review petitioners, has strenuously contended that questioning the order dated 7.6.1999 the revision petitioner already filed CRP No. 5704 of 1999 under Section 91 of the Tenancy Act, but it was dismissed on 9.6.2000 for non-prosecution. When CRP No. 5704 of 1999 was dismissed, a second revision i.e. CRP No. 6929 of 2005, challenging the same order is not maintainable as the order passed by this Court on 9.6.2000 operates as res judicata. Section 91 of the Tenancy Act is similar to the provisions of Section 115 CPC and the Civil Procedure Code can be squarely made applicable to the revisions filed under Section 91 of the Tenancy Act. According to the learned Counsel, Order IX Rule 9 CPC prohibits maintainability of second revision, and in this context, he has drawn my attention to the said provision.
7. Sri D.V. Seetharama Murthy, who is representing Sri Hari Sreedhar, learned Counsel for the revision petitioner (1st respondent in review petition), has contended that the factual aspect of filing CRP No. 5704 of 1999 is not within the knowledge of the revision petitioner and it is only on ascertaining the fact that no revision questioning the order dated 7.6.1999 passed by the Joint Collector was filed in this Court, Sri Hari Sreedhar filed CRP No. 6929 of 2005. According to him, neither the Counsel on record nor the revision petitioner suppressed any facts before this Court while CRP No. 6929 of 2005 was taken up for hearing. He has further contended that a second revision petition filed under Section 115 CPC is maintainable when the earlier revision filed under the same provision was dismissed for default. Though the revision is one filed under Section 91 of the Tenancy Act, the Civil Procedure Code can squarely be made applicable to the provisions of the Tenancy Act and there is no prohibition for maintaining a second revision. In this context, the learned Counsel has drawn my attention to the provisions of Order IX Rule 4 CPC and also Section 141 CPC and further relied on the judgments of various High Courts.
8. In pursuance of the order dated 23.12.2005 passed by this Court, the Joint Collector, condoned the delay, entertained the appeal and passed the order, dated 5.5.2007, and the same is questioned by the respondents (petitioners in CRP No. 2335 of 2007). In the light of the same, I am of the opinion that this Review Petition is purely academic. However, as an interesting point about the maintainability of a second revision petition under Section 115 CPC is involved, this Court has given its anxious consideration in the matter.
9. Order IX Rule 4 CPC says as to what a plaintiff can do when his suit is dismissed as per Rules 2 and 3 of Order IX. Order IX Rule 9 CPC deals with appearance of parties and consequences of non-appearance. Order IX Rule 4 CPC reads thus:
Plaintiff may bring fresh suit or Court may restore suit to file:-Where a suit is dismissed under Rule 2 or Rule 3, the plaintiff may (subject to the law of limitation) bring a fresh suit; or he may apply for an order to set the dismissal aside, and if he satisfied the Court that there was sufficient cause for (such failure as is referred to in Rule 2), or for his non-appearance, as the case may be, the Court shall make an order setting aside the dismissal and shall appoint a day for proceeding with the suit.
The next provision of law is Order IX Rule 9, according to which, when a decree is passed against the plaintiff, he cannot maintain a second suit. Order IX Rule 9 CPC read thus:
Decree against plaintiff by default bars fresh suit:
(i) 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 satisfies 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.
(ii) No order shall be made under this rule unless notice of the application has been served on the opposite party.
10. From the above provisions of law, it is clear that a Court, which is deciding the matter, can dismiss the suit if the plaintiff fails to pay costs in getting the summons served, and when both the parties are absent, the Court has every discretion to dismiss the suit, and similarly, when the plaintiff is absent and the defendant only appears in the Court in a suit, the Court may dismiss the suit and pass a decree against the plaintiff in which event the plaintiff cannot maintain a second suit. Of course, the said provision of law also states that if the defendant admits a part of the suit claim though the plaintiff is absent, the Court may direct the defendant to pay the admitted amount and decree the suit in part in spite of the fact that the plaintiff is absent. There is a clear distinction between Rule 4 and Rule 9 of Order IX CPC. Because there are lapses on the part of the defendant also in not appearing before the Court along with the plaintiff, the Legislature thought it to provide provision for maintaining a second suit by the plaintiff. If the lapse is not only on the part of the plaintiff but also on the part of the defendant, then only, the plaintiff can maintain a second suit. That is the purport of Order IX Rule 4, but when it comes to Order IX Rule 9, the position is different. The plaintiff is the one, who is making the defendant to come to the Court, and if the plaintiff is absent and the defendant is present, and no sufficient cause is shown the Court need not wait and may pass a decree against the plaintiff and when such a decree is passed it is not open for the plaintiff to file a second suit. In such cases, the only course left open to the plaintiff is to file an application to set aside the order of dismissal as contemplated under the provision of law. Section 141 CPC deals with miscellaneous proceedings, and the procedure contemplated in CPC in regard to suit shall be followed, as far as it can be made applicable in all proceedings in any Court of civil jurisdiction. According to Explanation to Section 141 CPC, the expression "proceedings" includes proceedings under Order XXI, but does not include any proceeding under Article 226 of the Constitution of India. From the above provision of law, it is clear that the proceedings before a Court whether it be a suit, appeal, revision or review petition are included in the said provision of law and the CPC has application of those proceedings. In a judgment reported in Ramchandra Agarwal and Anr. v. State of U.P. and Anr. , the Apex Court held to the following extent:
Though there is no discussion, this Court has acted upon the view that the expression "Civil proceeding" in Section 141 CPC is not necessarily confined to an original proceeding like a suit or an application for appointment of guardian, etc., but it applies also to a proceeding which is not an original proceeding.
From the above provision of law coupled with the judgment of the Supreme Court, it is clear that the procedure contemplated in the CPC with regard to the suits shall be followed in all proceedings in any Court of civil jurisdiction not only in original proceedings but also in other proceedings.
11. Section 89 of the Tenancy Act deals with the procedure and powers during the course of enquiries, and according to Sub-section (1), the provisions of Sections 149 and 150 of A.P. (Telangana Area) Land Revenue Act, 1317 Fasli shall apply to the recording of evidence and of decisions at enquiries held under the Act, and according to Sub-section (2), for the purposes of any such enquiry, the Tahsildar, the Tribunal and Collector may exercise all or any of the powers conferred on the Civil Courts by the C.P.C. including the power to award costs. From the above provision of law as it is not clear as to whether CPC in stricto senso applies to the proceedings under the Tenancy Act, a Full Bench of this Court in Radha Bai v. Banka Chinnayya and Ors. 1968 AWR 246 (FB), interpreted Section 89 of the A.P. (Telangana Area) Land Revenue Act, 1317 Fasli. In this case, an order passed by the Tahsildar was under challenge before the Joint Collector in appeal. The facts in that case are that the 1st respondent was the pattadar of certain lands, in respect of which, a protected tenancy certificate was issued in favour of the father of the 3rd respondent and husband of the 4th respondent. After his death, respondents 3 and 4 filed an application before the Tahsildar, Shadnagar surrendering their pattadari rights in the lands stating that they could not cultivate them. The Tahsildar allowed the said application and directed the Girdavar to put the petitioner landlady in possession of them. Thereupon, respondents 1 and 2 preferred an appeal to the Joint Collector contending that they and the person in whose favour the tenancy certificate was issued were all members of the joint family and after his death they were cultivating the lands, that they were not aware of the surrender application presented by respondents 3 and 4, that it was not binding on them, and therefore, they may be permitted to file the appeal. The Collector granted them permission to prefer the appeal. He set aside the order of the Tahsildar and remanded the matter to the Tahsildar for fresh enquiry and disposal according to law. It is this order of the Joint Collector that is challenged in the said revision contending:
(i) that Section 89(2) of the Andhra Pradesh (Telangana Area) Tenancy and Agricultural Lands Act, 1950 does not confer on the authorities under the Act all powers under the Civil Procedure Code.
(ii) That respondents 1 and 2, not being parties to the proceedings cannot file an appeal and;
(iii) That the order of remand made by the Joint Collector is outside the scope of the jurisdiction of the authority under Section 92 of the Act.
As an interesting question was involved in that matter, the matter was referred to the Full Bench and the learned Judges of the Full Bench referring to the judgment of this Court in G. Veera Reddy v. B. Venkayya CMP No. 5309 of 1960 in CRP No. 2089 of 1957 and of the Supreme Court in Martin Burn Ltd. v. R.N. Banerjee and Meenakshi Mills v. Their Workmen , took the view that the Appellate Tribunal is vested with the powers as are vested in the Civil Court under the CPC in view of Section 89 of the Tenancy Act.
12. Section 92 of the Act deals with the powers exercisable on appeal or revision and the appellate authorities are concerned with all powers conferred on the original authority by Sub-section (2) of Section 89 of the Tenancy Act. In the light of the interpretation given by the Full Bench that CPC has application to the proceedings under the Tenancy Act, the appellate authority can exercise the powers conferred under the Code of Civil Procedure.
13. During the course of arguments, the learned Counsel has drawn my attention to some of the judgments of Madars High Court reported in Pullayya v. Venkatasubbamma AIR 1943 Mad. 260 and Ramamurthi Iyer v. Meenakshisundarammal AIR 1945 Mad. 103, to establish the fact that a second revision is not maintainable. Similarly, another judgment of Jammu and Kashmir High Court reported in Rahim v. Karim AIR 1967 J&K 93, is also brought to the notice of this Court to establish that a second revision is maintainable. With due respect, this Court is unable to subscribe to the views of the Madras High Court and is in agreement with the views expressed by the learned Judge of Jammu and Kashmir High Court. In fact, in the said judgment, the learned Judge discussed the provisions of Section 141 and Order IX CPC and took the view that the said provisions can be invoked for dismissal as well as for restoration of the proceedings.
14. No doubt, Sri Y. Rama Rao, learned Counsel for the review petitioners (respondents in CRP No. 6929 of 2005) has contended that the order passed in C.R.P. No. 5704 of 1999 operates as res judicata, and thus the second revision in C.R.P. No. 6929 of 2005 is not maintainable. Concerning this contention, it is necessary to refer to Section 11 CPC which deals with res judicata. The same reads thus:
Res Judicata:-No Court shall try any suit or issue in which the matter has been directly and substantially in issue in a former suit between the same parties, or between parties under whom they or any of them claim, litigating under the same title, in a Court competent to try such subsequent suit or the suit in which such issue has been subsequently raised, and has been heard and finally decided by such Court.
15. The words which are cautiously used in this provision of law are "has been heard and finally decided by such Court" and it is only when a proceeding is heard and decided then Section 11 CPC comes into operation. But, in the instant case, the earlier revision was not heard and decided finally and it was dismissed only for default, and hence, this Court is of the view that the order passed by this Court on 23.12.2005 does not operate as res judicata. In fact, in identical facts, the Supreme Court in Shivashankar Prasad Sah and Anr. v. Baikunth Nath Singh and Ors. , took the similar view. The relevant portion of the judgment is extracted hereunder:
We shall first take up the contention that-the objection taken by the judgment-debtors is barred by principles of res judicata. Though at one stage, learned Counsel for the appellants-decree holders attempted to bring the case within Explanation 5, Section 11 of Civil Procedure Code, he did not pursue that line of argument but tried to support his contention on the broader principles of res judicata. The real question for decision in this case is whether the dismissal of Misc. Cases Nos. 94 and 110 of 1959 for default of the judgment-debtors can be said to be a final decision of the Court after hearing the parties. Before a plea can be held to be barred by the principles of res judicata, it must be shown that the plea in question had not only been pleaded but it had been heard and finally decided by the Court. A dismissal of a suit for default of the plaintiff, we think, would not operate as res judicata against a plaintiff in a subsequent suit on the same cause of action. If it was otherwise there was no need for the Legislature to enact Rule 9 Order IX CPC which in specific terms says that 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. The contention that the dismissal of a previous suit for default of the plaintiffs operates as res judicata in a subsequent suit in respect of the same claim was repelled by the Judicial Committee of the Privy Council in Maharaja Radha Parshad Singh v. Lal Sahab Raj (1890) 17 Ind App 150. Therein, the Judicial Committee observed thus:
None of the questions, either of fact or law, raised by the pleadings of the parties, was heard or determined by the Judge of the Shahabad Court in 1881; and his decree dismissing the suit does not constitute res judicata within the meaning of the Civil Procedure Code. It must fall within one or other of the Sections of Chapter VII of the Code; in the present case it is immaterial to consider which, the severest penalty attached to such dismissal in any case being that the plaintiff cannot bring another suit for the same relief.
From this decision it is clear that the Judicial Committee opined that before a plea can be held to be barred by res judicata that plea must have been heard and determined by the Court. Only a decision by a Court could be res judicata, whether it be statutory under Section 11 of Civil Procedure Code or constructive as a matter of public policy on which the entire doctrine rests. Before an earlier decision can be considered as res judicata the same must have been heard and finally decided.
The Courts in India have generally taken the view that an execution petition which has been dismissed for the default of the decree-holder though by the time that petition came to be dismissed, the judgment-debtor had resisted the execution on one or more grounds, does not bar the further execution of the decree in pursuance of the fresh execution petitions filed in accordance with law. Even the dismissal for default of objections raised under Section 47, the Civil Procedure Code does not operate as res judicata when the same objections are raised again in the course of the execution. We do not think that the decision on which the learned Counsel for the appellant placed great deal of reliance is correctly decided. Hence, we agree with the High Court that the plea of res judicata advanced by the appellant is unsustainable.
16. In the light of the above discussion, when this Court looks into the facts on hand, it is clear that it is only Order IX, Rule 4 which has to be invoked, but not Order IX Rule 9 CPC. As discussed supra, only when both the parties are absent Order IX Rule 4 comes into play and when the plaintiff only is absent and the defendant is present Order IX Rule 9 comes into play. In the case on hand, as both the parties were absent, particularly the revision petitioner, who is the 1st respondent in review petition, the learned Judge dismissed CRP No. 5704 of 1999 for default and he did not pass the order after hearing and deciding the question, either of fact or law, involved in it. As both the parties were absent, in my considered view, neither the principle of res judicata can be pressed into service nor Order IX Rule 9 CPC can be said to have any application to the facts of the case.
17. In the light of the aforementioned discussion, this Court has no hesitation to come to the conclusion that though CRP No. 6929 of 2005 decided by this Court on 23.12.2005 is a second revision questioning the order dated 7.6.1999 passed by the Joint Collector, the same is maintainable.
18. Hence, 1 see no merits in this review petition, and the same is accordingly dismissed.