Palani Swamy Chetty vs Salla Muthamma on 29 September, 1965
(8) But, for the respondents, reliance is placed upon the decision in Vishwanadham v. Venkatamma, . In that case, a tenant, aggrieved by an order of eviction passed by the Rent Controller in favour of the landlord, presented an appeal to the Chief Judge. Small Causes Court, who is the appellate authority. The appeal was posted for hearing to 15th March, 1962. On that date, the appellant and his Counsel were absent and the appeal was dismissed with costs. Then, the appellant filed an application for restoration of the appeal; but the appellate authority dismissed the same as incompetent. The question for decision before the High Court was whether the expresssion "ex parte order", includes an order dismissing an appeal for default of appearance of the appellant. It was held that the expression "ex parte order" has a definite connotation, namely, an order passed in favour of one person in the absence of the other and that it is difficult to postulate that the dismissal of an appeal for non-prosecution is an order passed ex parte against the appellant. It was pointed out that Rule 11(3) contemplates only an order passed against the opposite party, who was either not served with notice or was prevented by sufficient cause from appearance when the appeal was called on for hearing and that this rule is analogous to Order 9, Rule 13, C. P. C. Therefore, the learned Judge held that an application by an appellant, whose appeal was dismissed for default, to restore the appeal was not maintainable under Rule 11 (3). But the learned Judges, while noticing that Rule 11 (3) contemplates on order passed against the opposite party, who was not served with notice, did not take note of the fact that, under Rule 11 (1), the appellate authority is bound to send notice of the date fixed for hearing the appeal both to the appellant and the respondent, mentioned in the appeal. If Rule 11 (3) applies to a case where a party, who was bound to be served with notice, was not in fact served, we do not see how it does not apply to an appellant also, who had to be served under Rule 11 (1) with notice of the date fixed for hearing of the appeal. Further, the learned Judges had assumed that the distinction made in Or. 9. C. P. C. between an order dismissing a suit for default and a decree passed ex parte against a defendant is warranted by the procedure prescribed by the rules under the Act. It is already pointed out above that there is no warrant for any such distinction. Further, restricting the meaning of the expression "an order is passed ex parte" only to an order passed against a respondent, who was absent, will virtually amount to adding the words "who is a respondent" after the words "against a tenant or a landlord" in C1. 3 of Rule 11. In our view, the decision in is not correctly decided and is, therefore, overruled.