Babu A. vs Bhasker Shetty

This revision is directed against an order dated 9-2-1982 of the 1st Addl. Munsiff, Mangalore, on IA No. XIII in HRC No. 93 of 1976 pending on his file.

The petitioner is the respondent in that HRC proceeding. The respondent herein has initiated that proceeding under S. 21 of the Karnataka Rent Control Act, 1961 (the Act) to evict the petitioner from the premises in question, IA No. XIII was filed by this petitioner stating that that Court has no jurisdiction to deal with the landlord''s claim; that the properties involved were agricultural properties; that the Mangalore Land Tribunal had declared him asa tenant and that, therefore, the proceeding before in (the Court) should be dropped. After hearing the parties concerned the learned Munsiff has dismissed IA XIII.

Apreliminary objection has been raised in the Court of the maintainability of this revision. The learned counsel for the respondent who was heard in the matter submitted the thisrevision, filed as it under S. 115 of CPC, was not maintainable since there is an effective alternate remedy to this petitioner under the Act. He refers to sub sec. (2) of S. 50 of the Act. On the other hand, it was argued by the learned counsel for the petitioner that to an order of this nature thai provision is not attracted, since the implication of the impugned order is merely procedural not affecting the lights of his party.

According to him a party to the proceeding can invoke sub-sec. (2) of S. 50 challenging the order of the Court only if by that order his rights in the cause are affected.

Normally a revision under S. 115 of CPC is not entertained by this Court if there is an effective alternate remedy.

The learned course for the petitioner in support of his contention referred to above places reliance on a few decisions, including two of the Supreme Court.

Now, S. 50 of the Act reads as follows:

"50. Revision: (1) The High Court may, at any time call for and examine any order passed or proceeding taken by the Court of Civil Judge under this Act or any order passed by the Controller under Ss. 14, 15, 16 or 17 for the purpose of satisfying itself as to the legality or correctness of such order or proceeding and may pass such order in reference thereto as it thinks fit.

(2) The District Judge may, at any time call for and examine any order passed or proceeding taken by the Court of Munsiff referred to in sub-cl. (iii) of cl. (d) of S. 3 for the purpose of satisfying himself as to the legality or correctness of such order or proceeding and may pass such order in reference thereto as he thinks fit. The order of the District Judge shall be final.

(3) The cost of and incidental to all proceedings before the High Court or the District Judge shall be in the discretion of the High Court or the District Judge, as the case may be."

The relevant provision is sub sec. (2) of S. 50.

In Govinda v. Mary Fernandas, (1970) 2 Mys.L.J. 466, it was sub sec. (1) of S. 118 of the Karnataka Land Reforms Act (Act No. 10/61), as it stood then, that came up for consideration. That provision reads as follows:

"Save as otherwise provided in this Act, from every decision or order passed by the Tribunal an appeal shall lie to the appellate authority; and the orders of the appellate authority on such appeal shall be final."

In that case a Division Bench of this Court, relying on Central Bank of India v. Gokal Chand, AIR 1967 SC 799 and Bant Singh Grill v. Shanti Devi, AIR 1967 SC 1360, has held as follow:

"No appeal lies under S. 133 (1) from such interlocutory orders which do not affect the rights and liabilities of the parties as such and therefore a revision petition is maintainable under S. 115 of the CPC."

The learned Counsel for the petitioner also referred to the two decisions of the Supreme Court cited above. In Central Bank of India''s case (supra) the Supreme Court was considering the ambit and scope of S. 38 (1) of the Delhi Rent. Control Act, 1958, which rends as follows:

"An appeal shall lie from every order of the Controller made under this Act to the Rent Control Tribunal (hereinafter referred to as the Tribunal) consisting of one person only to be appointed by the Central Government by notification in the official Gazette."

The Supreme Court was of the view that the words everyonce of the Controller made under this Act", did not include interlocutory orders, which are merely procedural and do not affect the rights or liabilities of the parties. In Bant Singh Gill''s case, AIR 1967 SC 1360, the Supreme Court approved the ratio laid down in Central Bank of India''s case, AIR 1967 SC 799. The provision that came up for consideration in Gill''s case, AIR 1967 SC 1360, was S. 34 of the Delhi and Ajmer Rent Control Act (38/52). S. 34 reads as follows:

"34(1). Any person aggrieved by any decree or order of a Court passed under this Act may, in such manner as may be prescribed, prefer an appeal.

(a) to the Court of the senior subordinate judge, if any, where the value of the case does not exceed two thousand rupees;

Provided that where there is no senior subordinate judge, the appeal shall lie to the District Judge;

(b) to the Court of the District Judge where the value of the case exceeds two thousand rupees but does not exceed ten thousand rupees; and (c) to the High Court, where the value of the case exceeds ten thousand rupees.

(2) No second appeal shall lie from any decree or order passed in any case under this Act."

''Any decree or order'' as used in sub-sec. (1) was given the same import and meaning as it had been given to similar words of S. 38(1) of the Delhi Rent Control Act, 1958, in the Central Bank of India''s case, AIR 1967 SC 799. An additional feature in Gill''s case, AIR 1967 SC 1360, was that the order impugned therein had held that the suit had not abated and was maintainable. Even in such a case the Supreme Court held that the decision was only a procedural one and did not affect the right of the party who had raised that question. The Court has further held that if the trial Court had held that the suit had abated then, that would have been a final order affecting the right of the party and would have had the effect of a decree and therefore could have been appealed against. The learned Counsel for the petitioner relying in particular on these observations in Grill''s case, AIR 1967 SC 1360, submitted that what had happened in she instant case was that the trial Court has held that it had jurisdiction to proceed with the matter, which finding has only a procedural implication and that there has been no final adjudication in the proceeding and therefore he cannot avail Sub-sec. (2) of S. 50 and being, however, aggrieved by the order, can only approach the Court under S. 115 of CPC. According to the learned Council, if sub-sec. (2) of S. 13 construed in the light of the decisions referred to above we also would reach the same conclusion.

But, if what has been stated in the aforesaid decisions were to be on all fours with the facts of this case then the result envisaged by the learned counsel for the petitioner is intertables; otherwise, not.

S. 50 has been extracted above is full. Since we are concerned with sub-sec. (2) only, we may note the difference in the wordings of sub-sec. (2) with the provisions referred to in the aforesaid decisions. In none of those cases we have a provision similar to sub-sec (2) of S. 50 of the Act. Under there provisions what was provided was for an appeal "from every order or against any order or decree". But, in the instant case "the District Judge may, at any time, call for and examine any order parsed or proceeding taken by the Court of Munsiff....... for the purpose of satisfying himself as to the legality or correctness of such order or proceeding and may pass such order in reference thereto as he thinks fit". It may be noted that the powers conferred on the District Judges are almost supervisory in nature. The words are of a very wide amplitude, and besides, it is not merely "any order" passed that comes within his revisional rowers but also "proceeding taken" by it (the Court of the Munsiff). Why should the District Judge probe into the proceeding taken, if rot, to satisfy himself as to the legality or correctness of the same the proceeding taken. What would these voids "proceeding taken" mean in the context in which they are used. We may note that these words art not found in any of those Clauses that had come up for consideration before the Supreme Court in the decisions referred to above.

The term "proceeding" has several shades of meaning attached to it having regard to the context in which that term is used. As observed by the Madras High Court in K.J. Lingam v. Jt. CTO, AIR 1968 Mad 76.

"The term ''proceeding'' is not a technical expression with a definite weaning attached to it, but one the ambit of whose meaning is governed by thestatute. Therefore, the meaning to be attributed to the word ''proceeding'' would depend upon the scope of the enactment wherein the expression is used and with reference to the particular context wherein it occurs". (Head Note).

In that case S. 33 of the Madras General Sales Tax Act (I of 1959) provided that "any person objectingto aorder passed or proceeding recorded under this Act tor which an appeal has not been provided for in S. 31, may ..... the application for revision of such order or proceeding to the Deputy Commissioner". Constituting that provision the learned Judge further observes in Lingam''s case (supra) as follows:

"The very action of calling upon a dealer by the notice of compounding under S. 46 is a proceeding under the Act. It is a step in aid or action taken by the concerned authority in the whole process of assessing a dealer on his turnover. It, therefore, follows that a revision will He against such notice to the Deputy Commissioner under S. 33 and to the Board of Revenue under S. 35 of the Act. This view is further strengthened by R. 53 of the VGS Rules of 1959". (Head Note).

We may further see that the revisional powers of the District Judge reaches to any order passed or "proceeding taken" by the Court. "Any order passed", whereat?; must be in a cause or action initiated before it. So also, "proceeding taken" means "proceeding taken" in a cause or action. The following observations made in Butterworth''s Words and phrases, legally defined, relying on 1 Halsbury''s Laws (3rd Edn) 5, 6 at page 182 may be noted:

"The term ''proceeding'' is frequently used to note a step is an action, and obviously it has that meaning in such phrases ''Proceeding in any cause or matter'' When used alone, however, it is in certain statute to be construed as synonymous with, or including ''action''".

"Proceeding taken by the Court of the Munsiff" as used in sub-sec. (2) of S. 50 of the Act may, in the context in which they are used, mean, astep taken by that Court in an action, a cause, or a case. In Bloke v. Summersby, 1889 WN 39, the word "proceeding" as used in the Rules of Supreme Court, 1883, came up for consideration and it was argued that "proceeding" in the rule meant a proceeding "towards" and not "after" judgment. In that case judgment had already been pronounced. They wanted an order directing foreclosure absolute. In this connection Kay, J., observed as follows:

"Anything that precedes the final judgment or order is, in my opinion, a ''proceeding'' in the action".

In the same way "proceeding taken by the Court of the Munsiff" may also mean "proceeding taken in the action preceding the final judgment or order". Such a step taken in action preceding the final judgment or order, which also means during the pendency of that action, certainly include all type; of interlocutory orders and also an order of the type with which we are presently concerned.

There is another way of looking at the matter. Sub-sec. (2) of S. 50 of the Act confers revisional powers on a fairly senior judicial officer like the District Judge, though, in the hierarchy of Court; the Courts of Civil judges are Courts immediately superior to the Courts of Munsiffs. Sub-sec. (2) of S. 50, in ambit and scope, is wider than S. 115 of CPC. Curtailing the powers of the District Judges in reviewing interlocutory orders of Munsiff in Rent Control proceedings by placing a narrow construction on sub-sec. (2) of S. 50 may not subserve the ends of justice. Besides, this, the intention of the legislature, perhaps, also was that District Judges located in District headquarters should have powers of revising all orders of Munsiffs including interlocutory orders. And this is evidently to save ordinary litigants from enormous expenses and trouble which they may otherwise have toincur in pursuing their remedy at the very first instance, in this Court.

For the reasons aforesaid I am of the view that the order impugned is an order amenable to the revisional jurisdiction of the District Judge.

Since there is an effective alternate remedy for the petitioner, this revision petition be returned to him or his counsel for presentation to proper Court.