1. The petitioner is the owner of a premises in Madras, and the respondent is his tenant in that premises. The respondent filed an application before the Rent Controller under the Madras Buildings (Lease and Rent Control) Act of 1949 seeking to have fair rent fixed for the said premises. After an enquiry into the matter the Controller fixed the fair rent in a certain amount. The petitioner aggrieved by the said decision filed an appeal, H.R.A. No. 272 of 1959 on the file of the Court of Small Causes, Madras. The respondent was duly served with notice of appeal and the appeal was posted for final hearing on 3rd November, 1959. The respondent failed to appear on that date before the appellate authority with the consequence that he was declared ex parte, and the appeal was allowed. On the next day, 4th November, 1959 the respondent filed an application, M.P. No. 2321 of 1959, before the appellate authority, the Court of Small Causes at Madras, for setting aside the exparte judgment in the appeal, H.R.A. No.272 of 1959. Notice of this application was ordered to the petitioner, and the application stood posted for disposal on 5th December, 1959. The respondent failed to take steps to prosecute the application and the result was that M.P. No. 2321 of 1959 stood dismissed for default. The respondent next filed an application, M.P. No. 2597 of 1959 in the Court of Small Causes praying for restoration of the petition, M.P. No. 2321 of 1959 which was dismissed for default on 5th December, 1959. The petitioner was not served with notice of this application. On 12th December 1959 the Court of Small Causes ordered M.P. No. 2321 of 1959 to be restored to the file of the Court. The petitioner ha& preferred this Civil Revision Petition against the order of the Court of Small Causes in M.P. No. 2597of 1959.
2. It is certainly extraordinary that the learned Judge of the Court of Small Causes should have granted relief to the respondent without notice to the petitioner. The learned Judge acted quite illegally and failed to discharge his duties properly. The order of the Court below in M.P. No. 2597 of 1959 deserves to be set aside on this one ground alone, namely, that the petitioner was not heard in the matter.
3. Learned Counsel for the petitioner contends that M.P. No. 2597 of 1959 is not maintainable under the Rules framed in pursuance of the rule making power under the Madras Buildings (Lease and Rent Control) Act of 1949. The only rule invoked by the respondent in support of the maintainability of the application is Rule 12(3), which is as follows:
In any case in which an order is passed ex parte against a tenant or a landlord, he may within 30 days from the date of pronouncement of the order in open Court, or from the date of service of the order as provided in Rule 18 apply to the appellate authority by whom the order 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 Dy any sufficient cause from appearing when the appeal was called on for hearing, the appellate authority shall make an order setting aside the order passed against the tenant or landlord, 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.
Provided that no order shall be set aside on any such application as aforesaid unless notice thereon has been served on the opposite party.
4. This rule provides for an application enabling a tenant or a landlord to obtain cancellation of ' an ex parte order '. An order of dismissal of an application or any other proceeding for default of appearance of the applicant or the person who commenced the proceeding cannot appropriately be described as an ex parte order against the applicant or the individual. It is only in a case where relief is sought in an application, suit or other proceeding against a person, and that person fails to appear to show cause why the relief prayed for should not be granted, the Court or Tribunal declares him ex parte and thereafter proceeds to deal with the matter on its merits. A suitor who has moved a Court or Tribunal to obtain redress is not set ex parte when he fails to appear on the date of hearing, but his application or action is dismissed summarily for default of prosecution, while an ex parte order is always a decision on the merits of the dismissal for default is never such a decision. In the former case the matter is heard though in the absence of one of the parties, while in the latter case the matter is not heard at all. We are clearly of opinion that the respondent's application in the Court below, M.P. No. 2597 of 1959, is not sustainable under Rule 12(3).
5. In C.R.P. No. 431 of 1959, Ramachandra Iyer, J., as he then was, considered the applicability of Rule 9 of the Rules under the Madras Buildings (Lease and Rent Control) Act for restoration of an application for eviction, which was dismissed for default. Rule 9(3) is word for word the same as Rule 12(3). The learned Judge held that the distinction between ex parte orders and orders for dismissal for default is well recognised, and that the phraseology of Rule 9(3) cannot permit the filing of an application for restoration of petitions dismissed for default. We express our respectful concurrence with the judgment of the learned Judge.
6. Learned Counsel for the respondent, however, maintained that Madras Act XVIII of 1960 which came into the statute book on 30th September, 1960 governed the present proceedings by reason of the pendency of this Civil Revision Petition at the time when the enactment came into force. Our attention is also drawn to the fact that Rules framed under this Act, Madras Act XVIII of 1960, specifically provide for the filing of an application to set aside orders of dismissal for default.
7. Section 35 of Madras Act XVIII of 1960 is in these terms:
(1) The Madras Buildings (Lease and Rent Control) Act, 1949, is hereby repealed.
(2) Notwithstanding the repeal of the said Act by Sub-section (1)-
(a) All rules made, or deemed t-o have been made, notifications issued or deemed to have been issued, orders passed or deemed to have been passed, decisions made or deemed to have been made, proceedings or action taken or deemed to have been taken, and things done or deemed to have been made, issued, passed, taken or done by the appropriate authority under the corresponding provision of this Act and shall have effect accordingly.
(b) Any liability or penalty incurred or deemed to have been incurred, any punishment awarded or deemed to have been awarded, any atmlica'-ion made or deemed to have been made and any prosecution commenced or deemed to have been commenced under any provision of the said Act shall be deemed to have been incurred, awarded, made or commenced under the corresponding provision of this Act.
8. Neither the provisions of Sub-section (2)(a) or (2)(b) can help the respondent to contend that the application filed by him in the Court below should now be deemed to be an application competently laid under the Rules as they now stand. It must be remembered that the application filed by the respondent was wholly incompetent and unsustainable under the law as it then stood. It cannot therefore be said that it was an application made or a proceeding commenced under any provision of the repealed Act or the Rules framed thereunder.
9. There is no specific provision in Madras Act XVIII of 1960 applying it to all proceedings pending at the commencement of the Act. The general rule is that rights of parties in a pending action are governed by the law obtaining at the time of the commencement of the action. Statutes which come into force during the pendency of an action relating to substantive rights of the parties, as opposed to procedural rights, cannot govern such actions unless the Legislature has expressed a contrary intention explicitly or by necessary implication. In Vedavalli Narasayya v. Magamma and four Ors. (1904) 14 M.L.J. 340 : I.L.R. 27 Mad. 538 Benson and Bashyam Ayyangar, JJ., held as follows:
It is a general rule that when the Legislature alters the rights of parties by taking away or conferring any right, of action its enactments, unless in express terms they apply to pending actions do not affect them.
10. Maxwell on Interpretation of Statutes, 10th edition sets out the rule thus (at page 221):
In general when the law is altered during the pendency of an action, the rights of the parties are decided according to the law as it existed when the action was begun unless the new statute show a clear intention to vary such rights.
11. Craies in his Statutes, 5th edition, sets out the rule thus at page 369:
And in the absence of anything in an Act to show that it is to have a retrospective operation it cannot be so construed as to have the effect of altering the law applicable to a claim in litigation at the time when the Act is rassed and so far as regards repealing Acts this rule is clearly recognised by Section 38(2) of the Interpretation Act, 1889. Where however the necessary intendment of an Act is to affect pending causes of action, the Court will give effect to the intention of the Legislature even though there is no express reference to pending actions.
12. We find nothing in the provisions of Madras Act XVIII of 1960 to warrant the view that the Act is necessarily intended to govern all pending actions or proceedings at the commencement of the Act.
13. In our judgment the respondent's application, M.P. No. 2597 of 1959 was clearly unsustainable and ought to have been dismissed by the Court below. The Civil Revision Petition is allowed with costs the judgment and order of the Court below are set aside and M.P. No. 2597 of 1959 is hereby directed to be dismissed.