The prayer in the writ petition is for a Writ of Certiorarified Mandamus, to quash the order passed by the 1st respondent, dated 15.10.2004 and direct the third respondent Record Officer, Tenkasi to set aside the case which was dismissed for default on 23.10.2000 and to restore the case in T.R.No.11/2000 to his file and disposed of the same on merits.
2.The petitioner had filed a petition before the third respondent under provisions of the Tamil Nadu Cultivating Tenant Record of Tenancy Act for the purpose of recording his name as a tenant in respect of the lands in question. The respondent has also filed a counter affidavit opposing the claim. The said petition came to be dismissed by the third respondent by an order dated 23.10.2000 on the ground that neither the petitioner nor the respondent were present. An appeal was presented before the second respondent in A.P.No.31 of 2000. In the memorandum of grounds of Appeal, the petitioner contended that the Record Officer ought to have noted that the petition filed by the petitioner was posted on 23.10.2000 for filing counter on side of the respondent and the observation made by the Record Officer that the case was posted for enquiry is erroneous. It was further stated that Record Officer could conduct an enquiry only after filing a counter by the respondent as well as necessary documents. Therefore, the prayer in the appeal was to set aside the exparte order and restore the matter to the file of the third respondent. The respondent filed a counter affidavit in which they have in extenso stated about the merits of the claim they have pleaded that the agreement itself is ab initio void as it is a fraud and the proceedings are collusive in nature and prayed for dismissal of the petition. The second respondent by an order in A.P.No.31 of 2000 rejected the petition. It was stated that a revision could be filed against the said order before the first respondent and which has been taken up for enquiry and the revision came to be dismissed by an order dated 15.10.2004. In the penultimate paragraph, it has been stated that no documents have been produced and they have not appeared for the adjournments and therefore, the revision is liable to be rejected.
3.Mr.P.Senthurpandian, learned counsel for the petitioner would contend that the authorities concurrently erred by going beyond the scope of the petition which was filed by the petitioner, that is to set aside the exparte order passed against the petitioner by the third respondent. The question of filing documents does not arise at this stage since even as per the petition presented before the third respondent, it was stated in column Nos.2 and 6 that documents would be filed at the time of enquiry. When the stage of enquiry has not arisen, the question of filing document does not arise.
4.Per contra, Mr.D.Sadiq Raja, learned counsel appearing for the fourth respondent would vehemently oppose the claim made by the petitioner. He would submit that a petition has been presented before the the Special Deputy Collector, Revenue Court, Madurai under Section 19 of the Madras Public Trust Act against the petitioner's brother who is said to have been an Advocate. He would further submit that the present proceedings initiated by the petitioner herein is collusive.
5.Heard Mr.P.Senthur Pandian, learned counsel for the petitioner, Mr.Pala.Ramasamy, learned Special Government Pleader for the respondents 1 to 3 and Mr.D.Sadiq Raja, learned counsel for the fourth respondent and perused the materials available on record.
6.For the purpose of disposal of the present writ petition, I do not propose to go into any of the factual issues raised since the matter is taken up for consideration only on the technical ground raised by the petitioner.
7.Admittedly, the petitioner filed an appeal before the second respondent in A.P.No.31 of 2000 praying to allow the appeal and thereby set aside the exparte order passed in TR.No.11 of 2000, dated 23.10.2000 on the file of the Record Officer. Therefore, the first appellate authority was required to consider, whether there was sufficient cause for setting aside the exparte order. The first appellate authority was not called upon by the petitioner to embark into enquiry as regards the merits of the claim or the rival contentions of the parties. However, the second respondent proceeded to pass an order which came to be confirmed in revision by the first respondent. The authorities concurrently went to the merits of the claim when no oral or documentary evidence was adduced before the Record Officer, the third respondent.
8.Therefore, on this short ground alone, I am inclined to allow the writ petition by setting aside the orders impugned in this writ petition and the matter is remitted back to the third respondents for disposal on merits and in accordance with law. The third respondent shall issue notice to the petitioner as well as the fourth respondent herein by fixing a date for enquiry. On that date both parties shall submit their documents without seeking for any further time. Thereafter, the third respondent shall fix a date for leading oral evidence, if any. After conclusion of the examination of the documents, so produced, the third respondent shall pass orders on merits and in accordance with law, within a period of four weeks therefrom. It is made clear that this Court has not made any observation as regards the veracity of the claim of the petitioner or as regards the defence raised by the fourth respondent for the purpose of disposal of the writ petition.
Accordingly, the writ petition is allowed as indicated. No costs. Consequently, M.P.(MD)No.2 of 2009 is closed.
sms To
1.The District Revenue Officer, Tirunelveli.
2.The Revenue Court/The Special Deputy Collector, Kamarajar Street, Tallakulam, Madurai.
3.The Record Officer/Tahsildar, Tenkasi Taluk, Tenkasi, Tirunelveli District.