GOPAL NAIK Vs. HABEEB ALI
HIGH COURT OF ANDHRA PRADESH
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GOPAL RAO EKBOTE,J. -
(1.) This revision is directed against the order dated 6-4-1968 of the Chief Judge, City Small Causes Court, Hyderabad, in Rent Appeal No. 68/67.
(2.) The point of law involved in this revision petition is whether in a proceeding under the Andhra Pradesh Buildings (Lease Rent and Eviction) Control Act, 1960 where a petition is dismissed for default, could the petitioner file a fresh application for eviction on the same grounds as mentioned in the petition which was dismissed for default or whether he should file a petition for restoration under R. 8(3) of the Rules framed under the said Act which provides for the filing of a restoration petition. The Madras High Court in Miss Revathi v. M. Venkataraman 1949 (2) M.L.J. 594 and in P. Rangathaman v. Sankarlal Devey 1949 (2) M.L.J. 597 has held that where a petition for eviction is dismissed for default, a fresh application on similar grounds is not a bar because the words "finally decided" appearing in S. 10 of the Madras Buildings (Lease and Rent Control) Act 1946, are words found in S. 11 of the Civil Procedure Code and there is no reason why the same interpretation should not be given to the said words as has been given in rulings dealing with S. 11 C.P.C. Since under the Code of Civil Procedure, a fresh suit is barred because of the provisions of Order 9, Rule 9 in the absence of a similar provision in the Madras Act, a fresh application on the same grounds is maintainable. It is to be noted that there Were no provisions in the Madras Act for filing an application to restore a petition dismissed for default. In Andhra Pradesh, the position is slightly different. R. 8(3) of the Rules provides.
"where an order is passed Ex-parte against a tenant or a landlord, or an order of dismissal for default is passed by the Controller, the party affected may, within thirty days from the date of the pronouncement of the order in open Court, apply to the Controller by whom the ex-parte order or the order of dismissal was passed for an order to set it aside, and if he satisfies the Controller that the summons was not duly served, or that he was prevented, by any sufficient cause from appearing when the application was called on for hearing, or that such default was occasioned due to circumstances beyond his control, the Controller shall make an order setting aside the ex-parte order or the order of dismissal passed, as the case may be, upon such terms as to costs, payment into court or otherwise, as the Controller thinks fit, and shall appoint a day for proceeding with the application."
(3.) The above sub-rule (3) of R. 8 was substituted for the earlier sub rule (3) by G.O. Ms. 2436 dated 28-12-1965. Prior to this substitution, sub-rule (3) of R. 8 provided only for ex-parte orders and it was held by a Full Bench of this Court in Palaniswamy Chetty v. Salla Muthamma AIR 1967 Andhra Pradesh 1 that there is no reason why the provisions of sub-rule (3) should apply to orders of dismissal for default. Thus it will be seen that R. 8(3) does contain the words "the plaintiff shall be precluded from bringing a fresh suit in respect of the same cause of action" as found in Order 9, Rule 9 C.P.C.;
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