- (1.)THIS is a revision by the petitioner in I. A. Nos. 4299 and 4300 of 1970 in L. A. No. 42 of 1967 on the file of the Subordinate Judge's Court, Ernakulam. I A. No. 4299 of 1970 was one for condoning the delay in filing I. A. No. 430c of 1970 which is a petition for restoration of L. A. No. 42 of 1967 which was dismissed for default on 22-6-1970.
(2.)THE court below dismissed both the petitions; hence this revision. The learned counsel for the revision petitioner submits that L. A. No. 42 of 1967 was one of the many land acquisition reference cases arising out of acquisition of land for the cochin Division of F. A. C. T. , awaiting enquiry, and that the petitioner as well as her agent were under the bona fide belief that this case would come for evidence and enquiry along with the other reference cases only. In fact, it is averred, a petition was filed by petitnoner's counsel for trial of L. A. No. 42 of 1967 along with L. A. No. 41 of 1967 in which he was appearing. No order rejecting the petition was, according to the petitioner, pronounced on 22-6-1970, on which date the petition for joint trial was made. However, contrary to the hopes and belief of the petitioner's counsel, L. A. No. 42 of 1967 happened to be called and dismissed on 22-6-1970 itself which fact the petitioner was not aware of till 24-12-1970. The clerk of the petitioner's advocate noticed the mistake on 20-12-1970 and. reported it to her on 24-12-1970, and that is how she came to know about the dismissal of the reference. It is further submitted that all parties concerned had taken it for granted that L. A. No. 42 of 1967 also was included in the series of cases, numbering about one thousand, for joint trial, so much so that even the government had taken it for granted that enhancement of compensation, as in the case of other connected reference cases, was ordered in L. A. No. 42 of 1967 also, and on that assumption a notice to receive compensation at the enhanced rate was, as a matter of fact, issued to the petitioner, not knowing that in this particular case no enhancement was ordered, but it was dismissed for default.
(3.)MR. Augustine, the learned Government Pleader, has raised a preliminary objection to the maintainability of the civil revision petition. His contention is that by virtue of Section 59 of the Kerala Land Acquisition Act, the procedure prescribed by the Code of Civil Procedure, as far as be, has been made applicable to proceeding under the Land Acquisition Act, and the dismissal of I. A. No. 4299 of 1970 inasmuch as it is an order on an application filed under O. IX, Rule 9, Civil procedure Code, it is appealable, no revision could be maintained, and an appeal alone should have been filed. It is also pointed out that under Section 106, Civil procedure Code where an appeal from an order is allowed, it shall lie to the Court to which an appeal would lie from the decree in the suit in which such an order was made. It is also argued that it is because of this enabling provision to file an appeal that the Full Bench of this Court in Palakattumala Devas-wom v. Pylee, 1969 Ker LT 275 = (AIR 1970 Ker 30) (FB) took the view that an appeal lies to the high Court from orders of references made under the Land Acquisition Act. According to the learned Counsel the provisions contained in Order XLIII, Rule 1 (c), Civil Procedure Code are attracted to the facts of this case.