The main legal point established is that the Land Tribunal has the jurisdiction to restore an application dismissed for default under Act 1 of 1964.

1. The principal question which arises in this petition and for the decision of which this bench has been constituted, is whether an application under Act 1 of 1964 for the determination of fair rent, which was dismissed by the Land Tribunal for default of prosecution, can be restored by it. Three learned judges of the Court have taken the view, that the Land Tribunal has no power analogous to the power of the civil court under O.9, CPC. Vaidialingam, J. in O. P. 2245 of 1962 and Mathew, J. in Ammad Haji v. Kelu 1966 KLT. 819 held that the Land Tribunal has no jurisdiction to set aside an ex parte order and Gopalan

Nambiyar, J. held in Annamma Chacko v. Mathew 1967 KLT. 95 that the Land Tribunal has no jurisdiction to restore an application dismissed for default.

2. S.101 of Act 1 of 1964 enacts:

"The Land Board and the Land Tribunal constituted under this Act shall have all the powers of a civil court while trying a suit under the Code of Civil Procedure, 1908, in respect of the following matters, namely:

(a) summoning and enforcing the attendance of any person and examining him on oath;

(b) requiring the discovery and production of any document;

(c) receiving evidence on affidavit;

(d) issuing commissions for the examination of witnesses or for local investigation; and

(e) any other matter which may be prescribed."

The other provision in the Act which is relevant relates to the rule-making power conferred by S.129, sub-section (2) (e) of which enacts:

"In particular, and without prejudice to the generality of the foregoing power, such rules may provide for the following matters:

(a)

(b)

(c)

(d)

(e) the procedure to be followed by the Land Tribunal and the Land Board."

3. R.60 of the Kerala Land Reforms (Tenancy) Rules, 1964, framed under the Act provides, that "for the purpose of implementing the provisions of the Act or these rules, the Land Tribunal shall have power to issue commissions, grant injunctions, appoint receivers and make such other interlocutory orders as may appear to the Tribunal to be just and necessary to meet the ends of justice." There is one more rule, which is pertinent and on it depends the decision of this case; it is R.99 reading as follows:

"In all proceedings before the Land Tribunal and the Land Board, the procedure prescribed as regards applications in the Code of Civil Procedure or the rules made thereunder shall, as far as can be made applicable, be followed except to the extent otherwise provided in he Act or is these rules."

4. An application under Act 1 of 1964 for the fixation of fair rent being an original proceeding, R.99 has reference to applications under the Civil Procedure Code which are of the nature of original proceedings. By virtue of S.141, CPC., the procedure applicable to such applications under the Civil Procedure Code, is the procedure in it in regard to suits, as far as it can be made applicable. In other words, if an application for the determination of fair rent were really an application under the Civil Procedure Code, there is little doubt, that the provisions of Order 9 would apply to it. But S.141, CPC. has reference only to courts of civil jurisdiction, and not perhaps to Land Tribunals. Hence the need for a separate and independent prescription, as in R.99. In this view, the provisions of 0.9, including those for dismissal for default, for decision ex parte, and for setting aside such dismissals and decisions, are all applicable to proceedings before the Land Tribunal.

5. But it was contended by the petitioner's learned counsel, that while S.101 of Act 1 of 1964 confers specified powers on the Land Board, a power of restoration is not one of them and that R.60 framed in accordance with clause (e) of S.101 is silent about it, and R.99 prescribes only procedure, but confers no power. The argument makes a compartmental distinction between powers and procedure, and overlooks that even procedure may involve the exercise of powers. We cannot therefore accede to the argument,