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TMI Blog1975 (2) TMI 112X X X X Extracts X X X X X X X X Extracts X X X X ..... rears of rent and future rent. On 24th September, 1965 the Controller passed the requisite order under section 15(2) of the Act. This order was passed againt the legal representatives of the tenant who are appellants before me. It directed them to pay or deposit arrears of rent at the rate of ₹ 100.00 per month calculated from 1st March, 1964 within a perion of one month and thereafter continue to pay monthly rent at the said rate within 15 days of its becoming due. It is not disputed that the appellants deposited the rent for some time in compliance with the said order. (3) However, on 17th February, 1966 the main petition for eviction was dismissed in default of appearance of the respondent landlady and an application filed for restoration was dismissed by the Additional Controller. Feeling aggrieved, the landlady filed an appeal before the Rent Control Tribunal and by order dated 5th February, 1969 the appeal was allowed and the main petition for eviction was restored to its original number and directed to be heard according to law. (4) The application for striking off the defense, which has given rise to the present appeal was filed by the respondent land lady on 18 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the case. (7) Under Order 9, Rule 8 of the Code where the defendant appears and the plaintiff does not appear (when the suit is called on for hearing), the court is required to make an order that the suit be dismissed. Under Rule 9, where a suit has been so dismissed, plaintiff may apply to have the dismissal set aside and if he satisfies the Court that there was sufficient cause for his non appearance when the suit was called on for hearing the court shall make an order setting aside the dismissal upon such terms as to costs or otherwise as it thinks fit and shall appoint a day for proceeding with the suit. It is, therefore, obvious that on setting the dismissal aside, the court has to appoint a day for proceeding with the suit and not for trying the suit de now. This indicates that the further proceedings in the suit have to start from the stage and point where they were pending before the suit was dismissed and there is no requirement of law that upon such restoration the entire proceedings must be reached again. Consequently on the restoration of a dismissed suit, all the previous proceedings and the interim orders revive and do not requir a fresh order to give them vigour. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Lahore 718, Ranchhod Lodha v. Madhabji Kanji 1974 Rcr 12, Kedar Nath v. Mohani, Devi, J974 Rcr 118 and Hari Chand v. Nandlal 1972 Rcr 387. However, all these cases deal with revival of attachments before judgment and it has been held that on a dismissal of the suit, the attachment effected before judgment ceased and if it were intended to continue the same after restoration of the suit, a fresh order was necessary to be passed. This view has been adopted on a construction of specific provision contained in rule 9 of Order 38oftheCPC which reads as follows. 9.Where an order is made for attachment before Judgment the court shall order the attachment to be withdrawn when the defendant furnishes the security required, together with security for the costs of the attachment, or when the suit is dismissed . (9) Construing the aforesaid provisions, these decisions have held that on the dismissal of the suit, even if it be for default of appearance, the attachment before judgment has ceased under Rule 9. I do not need to express any opinion on the correctness of the said decisions, since the case before me does not relate to cessation of an order for attachment. Even in cases of attachm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a Patrani's case, AIR. 1950. Mad. a Division Bench of the High Court of Madras observed that where in execution of a decree property was attached, but the petition for execution was dismissed for default and on appeal the order of dismissal for default was set aside, the effect of the appellate order was to restore the order attaching property and the trial court would have to proceed with the execution application from the statge at which it had interrupted it by dismissing it for default. The appellate order restoring attachment would relate back to the date when the attachment was first made and would render invalid any attachment before judgment, the principle of rule 9 has not been extended beyond the express words. In Daggupati Nayudama v. Saif Syyaraji Dharmachand Kettuyar Air 1943 Madras 515 the court observed that the moment a review was allowed the decree already passed was restored to file and with the restoration of the suit all ancillary orders also get restored and the decree passed subsequently was the decree of trial court itself. Similarly in Thampi Muhammad Abdulkhadhir Vi Padmanabha Pillaj Parameswaran Pillai, Air 1952 Travancore-Cochin 414 a Full Bench obser ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by the tenants during the said period will not render them liable to any penalties attaching to non-compliance with the said order. Nevertheless no sooner than the petition is restored, the interim order revives and the tenant must deposit all arrears of rent then due and refrain from committing any further default in compliance with the order except at his peril. The Rent Control Tribunal in the impugned order has taken good care of this point and the appellants had not been penalised for any default committed by them during the period occurring between the dismissal of the petition and its restoration under the orders of the appellate Tribunal. The defaults with which the appellants have been charged were those which had been committed by them long after the main petition for eviction had been restored. The appellants have, therefore, clearly violated the terms of the order passed under section 15(2) of the Act. (12) Under Section 15(7) of the Act, it was discretionary with the Controller whether or not to strike off the defense and in the facts and circumstances of the case he thought fit to strike off the defense of the appellants. His order has been affirmed by the Rent Co ..... X X X X Extracts X X X X X X X X Extracts X X X X
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