Edara Pavana Venkateswara Mitra Vs. State of Andhra Pradesh - Court Judgment

Excerpt:
- all india services act, 1951.sections 8 & 11 & a.p. buildings (lease, rent and eviction) control rules, 1961, rule 5: [v.v.s. rao, g. yethirajulu & g. bhavani prasad, jj] refusal by landlord to receive rent - deposit of rent in court - held, a tenant has the option to take recourse to section 8 in case of refusal or evasion by landlord to receive rent and if landlord were to not name a bank or refuse even the money order of rent, the tenant can deposit the rent in accordance with sub-rules (1) to (3) of rule 5. the notice to person entitled to rent and proper maintenance of accounts of such deposits under sub-rules (4) and (5) of rule 5 are solely dependent on compliance with sub-rule (3) by the tenant. the payment or deposit of rent under section 11 read with sub-rule (6) of rule 5 arises only in respect of a tenant who did not take recourse to section 8 or section 9 before an application for eviction has been made against him in respect of any rent in arrears by date of that application, whereas in respect of rent that becomes subsequently due since date of application for eviction, the tenant is bound to pay or deposit regularly until termination of proceedings in order to enable him to contest the application. any violation of section 11(1) to (3) and sub-rule (6) of rule 5 makes the tenant liable for the adverse consequences under sub-section (4) of section 11. thus, the provisions of section 11 and sub-rule (6) of rule 5 are intended only to ensure the payment and deposit of rent including arrears during pendency and till termination of proceedings for eviction. the forfeiture of right of tenant to contest in case of default is to protect the rights and interests of landlord pending such an application for eviction, but not to confer any right on tenant to plead that all defaults committed by him prior to application for eviction can never be considered wilful, if he were to deposit all arrears of rent due within fifteen days under rule 5(6) read with sub-section (1) of section 11. the object and effect of section 11 and sub-rules (1) to (5) to rule 5, the former being for protection of landlord during pendency of eviction proceedings and the later being for protection of tenant to avoid any liability for eviction on ground of wilful default. consequently, while taking recourse to section 8 by tenant is optional, once that option is exercised, compliance with sub-rules (1) to (5) of rule 5 becomes mandatory in the sense that any non-compliance with prescribed procedure will positively indicate the wilful nature of default committed in paying or tendering rent as prescribed. while deposit of rent in terms of provisions of act and the rules amounts to valid tender of rent to landlord, the failure to comply with rule 5 (3) requiring delivery of a copy of the challan for deposit of rent in office of controller or appellate authority, as the case may be, so as to enable controller or appellate authority to cause maintenance of proper accounts under sub-rule (5) and give notice of deposit to person amounts to wilful default in making valid payment or lawful tender of the rent by the tenant to the landlord. thus, where a tenant obtains an order to deposit rent, same shall be deposited at least by the last day of the month following that for which rent is payable and rent challan shall be delivered in the office of controller within a reasonable time so that rent controller can take necessary action for service of notice of deposit under sub-rule (4) of rule 5 of the rules within seven days of such delivery. in the absence of compliance in so depositing rent and delivering challan in the office of controller, tenant shall be deemed to have committed wilful default. - thus all these cases are clearly distinguishable from the facts of the present case.ordergangadhara rao, j.1. i have disposed of this criminal revision on merits on 8th april, 1976. smt. ramaseshamma an advocate filed this revision. the case was posted in the daily list for hearing. still she did not appear and the matter was disposed of on merits by me.2. now this petition is filed by sri y. sivarama sastry that i should set aside my order dated 8th april 1976 and re-hear the matter.3. i am afraid i cannot do that. this is not a case where the petitioner's advocate had no notice of the hearing of the petition. secondly, i cannot dismiss a criminal revision for default of the appearance of the party or the advocate. thirdly, i have disposed of the matter on merits.4. in this connection the learned counsel for the petitioner has relied upon the decisions in keshav lal v. gaveria ; ram dass v. state : air1952all926 ; mohammad wasi v. state : air1951all441 ; t. somu naidu in re air 1924 mad 640 : 26 cri lj 370, lal singh v. state and swarth mahto v. dharmdeo : 1972crilj879 . but in keshav lal v. gaveria, the case was dismissed for default, for the non-appearance of the party. it was not disposed of on merits. similar is the case in ram dass v. state, in mohammad wasi v. state : air1951all441 it has been held that if the order is erroneous on its face it could be reviewed. t. somu naidu in re is a case where a sentence was enhanced without giving notice to the accused. swarth mahto v. dharmdeo relates to a case where the cause list was printed in the high court without mentioning the names of the respondent and his advocate in an appeal preferred by the state against the acquittal of the accused and it was allowed and subsequently the accused filed a petition for re-hearing of the case which was dismissed. in the appeal preferred against that judgment to the supreme court, the supreme court has observed that the application for re-hearing of the appeal in the high court should have been allowed because no notice was, in fact given to the accused's advocate. there is no discussion of the question whether the high court has the power to review its own order. thus all these cases are clearly distinguishable from the facts of the present case.5. the learned counsel for the petitioner has referred me to a decision of a full bench of the high court of punjab and haryana reported in lal singh v. state 1970 cri lj 267 (punj) (fb) where it has been held that the high court has inherent power under section 561-a of the old code to revoke, review, recall or alter its own earlier decision in a criminal revision and to re-hear the same. but a full bench of this court has taken a different view in public prosecutor v. devireddi air 1962 andh pra 479 : 1962 2 cri lj 727 (fb). it has been' held by the full bench that there is no inherent power in the high court under section 561-a to alter or review its own judgment once it has been pronounced except in cases where it was passed without jurisdiction or in default of appearance, that is, without affording an opportunity to the accused to appear. it was further held that the only remedy open to the accused was to file an appeal to the supreme court. i am bound by this judgment.6. it is also argued by the learned counsel for the petitioner that if the accused had no effective opportunity to present his case, then it should be treated as if the case was heard without notice to him and the matter could be reheard. i find that there is a distinction between disposing of a case without notice to a party and after notice to a party. if a notice is given to the party or to his advocate then the fact that he is not present will not make any difference in a revision.7. in the result, i hold that, on the facts of the case, the petition for rehearing is not maintainable and i dismiss it.

Judgment:
ORDER

Gangadhara Rao, J.

1. I have disposed of this criminal revision on merits on 8th April, 1976. Smt. Ramaseshamma an advocate filed this revision. The case was posted in the daily list for hearing. Still she did not appear and the matter was disposed of on merits by me.

2. Now this petition is filed by Sri Y. Sivarama Sastry that I should set aside my order dated 8th April 1976 and re-hear the matter.

3. I am afraid I cannot do that. This is not a case where the petitioner's advocate had no notice of the hearing of the petition. Secondly, I cannot dismiss a criminal revision for default of the appearance of the party or the advocate. Thirdly, I have disposed of the matter on merits.

4. In this connection the learned Counsel for the petitioner has relied upon the decisions in Keshav Lal v. Gaveria ; Ram Dass v. State : AIR1952All926 ; Mohammad Wasi v. State : AIR1951All441 ; T. Somu Naidu in re AIR 1924 Mad 640 : 26 Cri LJ 370, Lal Singh v. State and Swarth Mahto v. Dharmdeo : 1972CriLJ879 . But in Keshav Lal v. Gaveria, the case was dismissed for default, for the non-appearance of the party. It was not disposed of on merits. Similar is the case in Ram Dass v. State, In Mohammad Wasi v. State : AIR1951All441 It has been held that if the order is erroneous on its face it could be reviewed. T. Somu Naidu In re is a case where a sentence was enhanced without giving notice to the accused. Swarth Mahto v. Dharmdeo relates to a case where the cause list was printed in the High Court without mentioning the names of the respondent and his advocate in an appeal preferred by the State against the acquittal of the accused and it was allowed and subsequently the accused filed a petition for re-hearing of the case which was dismissed. In the appeal preferred against that judgment to the Supreme Court, the Supreme Court has observed that the application for re-hearing of the appeal in the High Court should have been allowed because no notice was, in fact given to the accused's advocate. There is no discussion of the question whether the High Court has the power to review its own order. Thus all these cases are clearly distinguishable from the facts of the present case.

5. The learned Counsel for the petitioner has referred me to a decision of a Full Bench of the High Court of Punjab and Haryana reported in Lal Singh v. State 1970 Cri LJ 267 (Punj) (FB) where it has been held that the High Court has inherent power under Section 561-A of the old Code to revoke, review, recall or alter its own earlier decision in a criminal revision and to re-hear the same. But a Full Bench of this Court has taken a different view in Public Prosecutor v. Devireddi AIR 1962 Andh Pra 479 : 1962 2 Cri LJ 727 (FB). It has been' held by the Full Bench that there is no Inherent power in the High Court under Section 561-A to alter or review its own judgment once it has been pronounced except In cases where it was passed without jurisdiction or in default of appearance, that is, without affording an opportunity to the accused to appear. It was further held that the only remedy open to the accused was to file an appeal to the Supreme Court. I am bound by this judgment.

6. It is also argued by the learned Counsel for the petitioner that if the accused had no effective opportunity to present his case, then it should be treated as if the case was heard without notice to him and the matter could be reheard. I find that there is a distinction between disposing of a case without notice to a party and after notice to a party. If a notice is given to the party or to his advocate then the fact that he is not present will not make any difference in a Revision.

7. In the result, I hold that, on the facts of the case, the petition for rehearing is not maintainable and I dismiss it.