T. Hanmanthu vs L.A., OP, PJP

P.S. Narayana, J.—Heard Sri N. Vasudeva Reddy, learned Counsel representing revision petitioner. The respondent had been served, proof of service had been filed and none represents the respondent.

Sri N. Vasudeva Reddy, learned Counsel representing the revision petitioner would maintain that the learned Senior Civil Judge, Narayanpet, committed a serious irregularity in holding that the claimant-petitioner is not entitled for interest from 22.3.1999 i.e., the date of dismissal of O.P. till the disposal of the main O.P. The learned Counsel also would maintain that the learned Judge ought to have appreciated the fact that the grant of interest is a statutory relief under the provisions of Land Acquisition Act, 1894 (as amended by Act 68 of 1984) as such the said relief cannot be denied nor subjected to any condition. The learned Counsel also would maintain that the learned Judge ought to have appreciated that fact that the interest is payable on the market value, solatium and the additional market value from the date of taking possession of the lands under acquisition, as a matter of right, as it is mandatory and it is not discretionary. Further, the learned Counsel had taken this Court through different provisions of the Land Acquisition Act, 1894 and also would maintain that in the facts and circumstances case the very making of the default order is not sustainable and further the Counsel would contend that in addition thereto imposition of onerous condition also cannot be sustained. The learned Counsel placed strong reliance on the decisions in Vijay Kumar Madan and Others Vs. R.N. Gupta Technical Education Society and Others, and State of Andhra Pradesh Vs. Bondapalli Sanyasi and Others, .

The civil revision petition is filed as against an order made in LA. No. 141 of 2007 in old O.P. No. 340 of 1995 (new O.P. No. 36 of 2007) dated 23.11.2007 wherein the learned Judge while restoring the main O.P. observed that the restoration is subject to the condition to be passed in the application under Order IX Rule 9 of CPC and in the application under Order IX Rule 9 it was observed that since LA. No. 813 of 2003 is allowed, this petition is allowed subject to the condition that the petitioner is not entitled for interest from 22.3.1999 till disposal of the O.P. Both parties are directed to be ready for early disposal of the main O.P.

In Khazan Singh (dead) by LRs. v. Union of India (supra), the Apex Court while dealing with the provisions of Sections 18 and 26 of the Land Acquisition Act, 1894, observed at Paras 6 to 10 as hereunder:

Section 18 of the Act empowers a person interested in the land to move by a written application to the Collector requiring that the matter be referred for determination of the Court, whether his objection be to the measurement of the land, the amount of compensation, the person to whom it is payable, or the apportionment of the compensation among the persons interested. If the application for reference is in order the Collector is bound to make a reference of it to the Court. Section 20 of the Act enjoins on the Court to "proceed to determine the objection". The Court shall after holding such inquiry as may be necessary pass an award. Section 26 of the Act reads thus:

Form of Awards.-(1) Every award under this Part shall be in writing signed by the Judge, and shall specify the amount awarded under clause first of Sub-section (1) of Section 23, and also the amounts (if any) respectively awarded under each of the other clauses of the same sub-section, together with the grounds of awarding each of the said amounts.

(2) Every such award shall be deemed to be a decree and the statement of the grounds of every such award a judgment within the meaning of Section 2 Clause (2) and Section 2 Clause (9), respectively, of the Code of Civil Procedure, 1908.

The provisions above subsumed would thus make it clear that the civil Court has to pass an award in answer to the reference made by the Collector u/s 18 of the Act. If any party to whom notice has been served by the civil Court did not participate in the inquiry it would only be at his risk because an award would be passed perhaps to the detriment of the party concerned. But non-participation of any party would not confer jurisdiction on the civil Court to dismiss the reference for default.

It appears that various High Courts have taken the aforesaid view in a number of decisions : Bhagirath Bilgaiya Vs. Rishabh Kumar and Others, , Bhadar Munda and Another Vs. Dhuchua Oraon, , Shyam Shankar Sahai and Others Vs. State of Bihar, , Joseph v. Government of Kerala (1991) 2 KLT 69 and Jogi Sahu and Another Vs. Collector, Cuttack, .

In Joseph v. Government of Kerala (1991) 2 KLT 69, Paripoornan, J. (as he then was) speaking for a Division Bench has made reference to two earlier decisions of Single Judges, one by the same High Court and the other by the Kamataka High Court which held the same view.

In Jogi Sahu and Another Vs. Collector, Cuttack, , Pasayat, J., (as he then was) further held that an application for restoration of the reference can be entertained u/s 151 of the Code albeit the same was filed quoting Order 9 Rule 9 of the Code.

Further reliance was placed on the decision in Vijay Kumar Madan and Ors. v. R.N. Gupta Technical Education Society and Ors. (supra), wherein the Apex Court at Paras 7 and 8 observed as hereunder:

Power in the Court to impose costs and to put the defendant-applicant on terms is spelled out from the expression "Upon such terms as the Court directs as to costs or otherwise". It is settled with the decision of this Court in Arjun Singh Vs. Mohindra Kumar and Others, , that on an adjourned hearing, in spite of the Court having proceeded, ex parte earlier the defendant is entitled to appear and participate in the subsequent proceedings as of right. An application under Rule 7 is required to be made only if the defendant wishes the proceedings to be relegated back and re-open the proceedings from the date wherefrom they became ex parte so as to convert the ex parte hearings into bi-parte. While exercising power of putting the defendant on terms under Rule 7 the Court cannot pass an order which would have the effect of placing the defendant in a situation more worse off than what he would have been if he had not applied under Rule 7. So also the conditions for taking benefit of the order should not be such as would have the effect of decreeing the suit itself. Similarly, the Court may not in the garb of exercising power of placing upon terms make an order which probably the Court may not have made in the suit itself. As pointed out in the case of Arjun Singh (supra), the purpose of Rule 7 in its essence is to ensure the orderly conduct of the proceedings by penalizing improper dilatoriness calculated merely to prolong the litigation. Arjun Singh Vs. Mohindra Kumar and Others, .

Costs should be so assessed as would reasonably compensate the plaintiff for the loss of time and inconvenience caused by relegating back the proceedings to an earlier stage. The terms which the Court may direct may take care of the time or mode of proceedings required to be taken pursuant to the order under Rule 7. For example, keeping in view the conduct of the defendant-applicant, the Court may direct that though the ex-parte proceedings are being set aside, the defendant must file the written statement within an appointed time or recall for cross-examination at his own cost and expenses the witnesses examined in his absence or that the defendant shall be allowed not more than one opportunity of adducing his evidence and so on. How the terms are to be devised and made a part of the order would depend on the facts and circumstances of a given case. In short, the Court cannot exercise its power to put the defendant/applicant on such terms as may have the effect of pre-judging the controversy involved in the suit and virtually decreeing the suit though ex-parte order has been set aside or to put the parties on such terms as may be too onerous. That apart, the order of the trial Court dated 9.1.1980 suffers from another infirmity of vagueness and want of clarity. In fact, during the course of hearing, the learned Counsel for the parties tried to place their own respective interpretation, certainly divergent to each other, on the order of the High Court as to what it means, that is, whether the trial Court directed to pay all the arrears of monthly lease and the amount being deposited along with filing of the written statement or for that month only and whether for future too, but we do not propose to deal further with this aspect as it is unnecessary. That condition in the order of trial Court having been set aside by the High Court, we are inclined to sustain the order of the High Court but subject to certain modification. In our opinion the High Court was justified in setting aside the condition imposed by the trial Court in its order which was too onerous, also vague, uncertain and suffering from want of clarity. The order of the High Court to the extent of setting aside the ex-parte proceedings and directing the expeditious trial of the suit has to be sustained as it serves the end of justice. But in view of the subsequent events brought to our notice and the statement made by the learned Counsel for the defendants-respondents during the course of hearing, the following directions are made:

The ex-parte order dated 2.5.1998, and the judgment and decree of the trial Court based on the ex-parte order dated 2.5.1998 are set aside. The interim order of this Court dated 28.2.2000 shall also stand vacated. The suit shall stand restored on the file of the trial Court.

As the plaintiffs have secured the possession of suit premises and the defendants-respondents have given up their right of restitution so far as the possession of the premises are concerned, the suit filed by the plaintiff- appellants shall now be treated as a money claim for recovery of arrears as claimed in the plaint as also for recovery of arrears pending suit for the period expiring on 1.11.2000, the date on which the plaintiff-appellants have secured possession over the tenancy premises.

Such of the witnesses as have already been cross-examined by the defendant-respondents shall not be recalled for further cross-examination, in view of that right having been given by the learned Counsel for the defendant-respondents before this Court. Such of the plaintiffs'' witnesses as were not cross-examined, shall be recalled for'' cross-examination at the cost and expenses of the defendant-respondents.

The parties shall have the liberty to lead such other evidence as they propose to do.

The trial Court may refuse to grant any avoidable adjournment at the trial which may have the effect of delaying the hearing of the suit. The suit shall be expeditiously heard and decided. The learned Counsel for the defendant-respondents has assured that the defendants shall co-operate therein.

To avail the benefit of the orders passed by the High Court and this order the defendants shall pay cost of Rs. 50,000/- to the plaintiff-appellants within four weeks as condition precedent.

On a careful analysis of the facts, this Court is thoroughly satisfied that imposition of such conditions while making an order cannot be sustained and it is needless to say that the petitioner is bound to succeed. Accordingly, the impugned order is hereby set aside and the civil revision petition is allowed. No order as to costs.