ORDER
1. The short question which arises for decision in this Civil Revision Petition is whether the Appellate Authority under the A.P. Buildings (Lease, Rent and Eviction) Control Act, 1960 (hereinafter called the Act) is competent to set aside an ex parte rendered by it on merits without hearing the parties and restore the appeal for re-hearing.
2. The facts necessary for proper appreciation of the question involved may be stated briefly:
The 1st respondent landlord filed an eviction petition against the petitioner herein
and two others under the Act before the Rent Controller, Kurnool. After enquiry the said eviction petition was dismissed by the Rent Controller. Questioning the same the 1st respondent preferred an appeal being CMA No.7 of 1991 on the file of the Court of Principal Subordinate Judge, Kumool who was the Appellate Authority under the Act. The appeal under-went repeated adjournments as both parties were not ready, Ultimatcly it was posted to 10-2-1995 for hearing. On that date the Counsel appearing for the appellant landlord failed to appear as he was stated to be engaged in another Court and a representation was made on his behalf seeking time. The learned Counsel for the tenant also reported not ready. The Appellate, Court declined to grant adjournment and reserved the appeal for judgment: on the same day an application was filed on behalf of the appellant for reopening the appeal and to hear the same on merits. The Appellate Court without passing any orders on the said application pronounced the judgment on 15-2-1995 dismissing the appeal. There upon the appellant-landlord filed IA 11 of 1995 for setting aside the order dated 15-2-1995 and for restoring the appeal to file. The said application was opposed by the tenant contending that since the appeal was dismissed on merits the remedy was only to file a revision in the High Court and the application for restoration of the appeal is not maintainable. The Appellate Court however, negatived the said objection raised by the tenant and allowed the said application by the impugned order dated 14-11-1995 and restored the appeal to file for hearing subject to the condition that the appellant pays Rs.100/- by way of costs to each of the respondents in the appeal on or before 24-11-1995 and in default the petition shall stand dismissed. Questioning this order the present revision is filed.
3. The learned Counsel for the petitioner has reiterated the same contentions before me. A perusal of the
judgment delivered by the Appellate Court on 15-2-1995, no doubt reveals that the Appellate Court purported to dismiss the appeal on merits. Admittedly the said judgment was pronounced without hearing the parties or their Counsel. Section 20(3) of the Act provides that “the Appellate authority shall send for the records of the case from the Controller and after giving the parties an opportunity of being heard and, if necessary, after making such further enquiry as he thinks fit, either personally or through the Controller, shall decide the appeal.” Rule 22(8) of A.P. Buildings (Lease, Rent and Eviction) Control Rules, 1961 inter alia provides that-
“The Controller or the appellate authority deciding the dispute shall record a brief note of the evidence of the parties and witnesses who attend and upon the evidence so recorded, and after consideration of any documentary evidence produced by the parties a decision shall be given in accordance with justice, equity and good conscience by the Controller or appellate authority. The decision given shall be reduced to writing. If any party duly summoned to attend, does not attend, the dispute may be decided ex parte.”
This rule undoubtedly confers power on the appellate authority to decide the dispute ex parte on merits, if any party duly summoned to attend, does not attend. In the instant case the appellate authority did so by pronouncing the judgment on merits as both parties failed to appear on the date of hearing. The question for consideration is whether the appellate authority has power to set aside such a judgment and restore the appeal for re-hearing. It is relevant to notice Rule 11(3) of the said Rules in this context. The said Rule 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
appellate authority, the party affected may, within thirty days from the date of the pronouncement of the order in open Court, apply to the appellate authority by whom the ex parle order of dismissal was passed, for an order to set it aside and if he satisfies the appellate authority that the summons was not duly served or that he was prevented by any sufficient cause from appearing when the appeal was called on for hearing or that such default was occasioned due to circumstances beyond his control, the appellate authority shall pass 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 appellate authority thinks fit, and shall appoint a day for proceeding with the appeal.”
A plaint reading of this Rule in my view makes it clear that the appellate authority has power to set aside an ex parte order passed by it, even on merits, without hearing the parties, if sufficient cause is made out.
4. In Palani Swamy v. Muthamma, (FB), a Full Bench of this Court after considering the above provisions of the Act held that the expression “ex parte orders” is used in a broad sense in the Act and the Rules. It includes orders passed ex parte against a petitioner or an appellant as well.” It was further held as follows:
“While it is true that there is no provision in the A.P. Rent Act which empowers the Controller or the Appellate Authority to dismiss a petition or an appeal for default of appearance of the petitioner or the appellant, Section 30(2)(d) of the Act empowers the Government to make rules for setting aside ex parte orders. Rule 22(8) framed under this provision empowers the Controller or the Appellate Authority to decide the dispute ex parte,
‘if any, party duly summoned to attend does not attend’. The power to dismiss a case for default of the petitioner or appellant is implied in this provision.”
“The provision in Section 20(3) enjoining upon the appellate authority to call for the records of the case from the Controller and after giving the parties an opportunity of being heard and if necessary, after making such inquiry as he thinks fit either personally or through the Controller to decide the matter, does not imply that the appellate authority had no jurisdiction to dismiss the appeal for default of appearance. Dismissal of an appeal for default of appearance of the appellant is nonetheless a decision of the appeal. The Appellate Authority, therefore, had jurisdiction to dismiss the appeal for default of appearance of the appellate either in person or by Counsel.”
5. In view of the said pronouncement of the Full Bench and also the specific provision contained in Rule 11(3) of the Rules, I have no hesitation in coming to the conclusion that the appellate authority has power to set aside the ex parte judgment rendered on merits, provided sufficient cause is made out. In the instant case an application was filed on behalf of the appellate landlord on 10-2-1995 itself to reopen the appeal and to hear the same. Without passing any orders thereon an ex parte judgment was pronounced on 15-2-1995 dismissing the appeal.
6. Under the circumstances, the lower Court was perfectly justified in setting aside the judgment dated 15-2-1995 and restoring the appeal for hearing. I do not, therefore, find any merit in the Civil Revision Petition and it is accordingly dismissed. No costs. Since the appeal is of the year 1995 the lower Court is directed to dispose of the appeal as soon as possible preferably within two months from today.