The main legal point established in the judgment is that while the first portion of O. IX R.9 C.P.C. cannot be made applicable to rent control proceedings as it takes away substantive rights, the later portion of the rule is only a procedural provision and its principles can be applied in rent control proceedings.

K.K. Usha, J.

This revision petition is at the instance of respondents-tenants in R.C.P. 190/92. Rent control petition was dismissed on 4.8.1994 on the failure of the petitioner to appear on that day. I. A. 3175/94 was filed to restore rent control petition which was dismissed for default. The petition was allowed by the rent control authority by order dated. 7.2.1996 on payment of cost of 500/- to the respondents. Aggrieved by the above, respondents-tenants took up the matter in appeal before the rent control appellate authority as R.C. A. 74/96. A reading of the above order would show that even though the contention had been taken in the memorandum of appeal that rent control court has no power for restoration since the provisions of 0.9 R.9 C.P.C. is not applicable to rent control proceeding, that argument was not seriously pressed before the appellate authority. The appeal was argued on merits and, as mentioned above, the same was dismissed.

2. In this revision petition, petitioner has again taken up the contention that LA. 3175/94 filed under O. IX R.9 was not maintainable as this Court has held that the provisions of O.IX R.9 are not applicable to rent control proceedings. Reliance was placed by learned counsel on a decision of a Single Judge of this Court in K.P. Pius v. Mrs. Albino Rozario & Ann, 1989 (2) KLJ 643 in support of the above contention.

3. O. IX R.9(1) reads as follows:

"9. Decree against plaintiff by default bars fresh suit:- (1) where a suit is wholly or partly dismissed under R.8, the plaintiff shall be precluded from bringing a fresh suit in respect of the same cause of action. But he may apply for an order to set the dismissal aside, and if he satisfied the Court that there was sufficient cause for his non-appearance when the suit was called on forbearing, 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".

The question that came up for consideration before the learned Single Judge was whether a second application for eviction is maintainable at the instance of the landlord whose first application was dismissed for default. Learned Judge took the view that the procedural provisions of the C.P.C. may be applied to rent control proceedings in the absence of express provision to the contrary or in the absence of a conflict between the provisions of the C.P.C. and provisions of the Kerala Buildings (Lease & Rent Control) Act or the Rules framed thereunder. Then the learned judge took the view that the provisions under O. IX R.9 which creates a bar to a fresh suit or proceeding when an earlier suit stands dismissed for default depriving the plaintiff or the petitioner of a substantive right of suit is not a mere procedural provision, but a substantive provision barring a right which otherwise inheres in every person to approach the court for redressal of his grievance. The bar of fresh suit in O. IX R.9, according to the learned judge, in the absence of an express provision in the Act will not be applicable to the rent control proceedings. On a reading of the entire judgment, it is very clear that what had been considered by the learned judge was only that provision contained in O. IX R.9 which created a bar of fresh suit and its application to the rent control proceedings. Therefore, the statement in paragraph 13 of the judgment that 0. IX R.9 C.P.C. cannot therefore, be invoked to preclude the landlady in that case from claiming relief, has to be understood in the light of the reasoning given by the learned judge that the bar of a suit under 0. IX R.9 cannot be made applicable to rent control proceedings, since it has the effect of taking away the substantive right of the party concerned. This decision cannot be taken as an authority for a proposition that the remedy given under O. IX R.9 to a plaintiff to make an application to set aside the dismissal of the suit is not applicabl