Chandramathi vs District Judge and Others.

K.P. Radhakrishna Menon, J.—An Original Petition under Article 227 of The Constitution. The building in dispute belongs to the petitioner. This had been let out to the fourth respondent on a rental of Rs. 35/-. The fourth respondent, according to the petitioner, sub-leased the building to the fifth respondent and therefore the petitioner moved the petition u/s 11 of The Kerala Buildings (Lease and Rent Control) Act before the Rent Control Court for an order directing the fourth respondent to put the petitioner in possession of the building. Respondents 4 and 5, in their joint counter statement, have stated that the sub-lease pleaded is not true. The building though taken on lease by the fourth respondent under a koolikychit, was taken to house the business carried on by respondents 4 and 5 jointly or in any event in partnership. The Rent Control Court after considering the various aspects of the case has found that the sub-letting stands established and based on the said finding ordered eviction (vide Ext. P1 order). The appeal taken therefrom by respondents 4 and 5 was allowed by the appellate authority (vide Ext. P2). The revision taken therefrom by the petitioner was rejected by the District Court, by Ext. P3 which is under challenge in this O.P.

The petitioner originally had challenged this order by filing a revision petition u/s 115 of the C.P.C. This revision petition was withdrawn in the light of the decision of the Supreme Court in Aundal Arnmal v. Sadasivan Pillai (1987(1) KLT 53 (SC)) and this O.P. under Article 227 was later filed. This court admitted the same and ordered notice to the opposite side. That is how the matter is now before me.

The learned counsel for the petitioner submits that the appellate authority instead of considering the case pleaded by respondents 4 and 5 namely that the building was taken on lease by the fourth respondent after executing a koolikychit, considered a different case not set up by respondents 4 and 5 either in their counter statement or even in the memorandum of appeal, namely that, the building was taken on oral lease by the fourth respondent for and on behalf of himself and the fifth respondent to carry on a stationary business. On going through the pleadings as also the order of the Rent Control Court it is clear that the case considered by the appellate authority is one which has not been set up by respondents 4 and 5 either in the counter statement or in the memorandum of appeal. The learned counsel for respondents 4 and 5 nonetheless contended that the evidence the parties had produced in the proceeding, particularly the evidence of the petitioner landlord would show that the building was taken on lease by both respondents 4 and 5 who were carrying on the business in partnership. May be that the said evidence would suggest that the petitioner was aware of the fact that respondents 4 and 5 carrying on the stationary business in partnership in the shop building. May be that the petitioner has been receiving the rent of the building either from the fourth respondent or from the fifth respondent. But this aspect of the case was found by the Rent Control Court as not relevant to decide the issue. Whatever that be, this case which was not pleaded before the Rent Control Court, nor for that matter raised in the memorandum of appeal, was accepted by the Appellate Authority and consequently held that the petition for eviction was not sustainable Accordingly the order of the Rent Control Court was set aside. The Revisional Court which could consider only the legality, regularity or propriety of that order has upheld the order of the appellate authority without adverting to any of these aspects (vide Ext. R3). The Revisional Court, under the circumstances, must be held to have failed to exercise the jurisdiction properly. Ext. P3 order therefore is liable to be set aside.

After setting aside the order, ordinarily the matter should go back to the District Court for a de novo consideration. Whether a remand to the District Court of the matter after the Government Notification dt. 31-8-1989 published on. 26-9-1989 conferring the appellate jurisdiction u/s 18 of The Rent Control Act on the District Judges having jurisdiction over the areas within which the provisions of the said Act have been extended is possible, is the question before us. Construing the scope of this Notification U.L. Bhat, J speaking for the Division Bench in Vasu v. pathooty Umma (1990 (1) KLT 670) has observed thus:-

The Government Notification dated 31-8-1989 published on 26-9-1989 has brought about a significant change in the appellate forum and this has an impact on the revisional forum...The Subordinate Judges have become denuded of the power of appellate authorities and the District Judges have become clothed with such power. This has an impact on the revisional forum in certain cases by virtue of the provisions of S. 20. S. 20 it may be recalled, make the District Court the revisional forum in cases where the appellate authority is the Subordinate judge and the High Court in cases where the appellate authority is the District Judge....

(Emphasis supplied)

The Division Bench at the same time has upheld the ruling of Krishnamoorthy, J. in Joseph v. Malathy Amma, 1989 (2) KLT 958 as also Mathew v. Gilbert, 1990 (1) KLT 139 where the learned Judge has held that in regard to all appellate orders passed on or before 26-9-1989, revision lay before District Court. That means in a case where the Subordinate Judge as appellate authority has disposed of a case prior to 26-9-1989 the revision lay before the District Court. If that be the position the revision from out of which this proceeding arises can be remanded to the District Court for a de novo disposal because the order which was under challenge before the revisional court was admittedly one passed by the Subordinate Judge as appellate authority, prior to 26-9-1989.

The counsel for respondents 4 and 5 then argued that this preeminently is a fit case where the District Court necessarily should remand the case to the appellate authority namely the Sub Judge to consider the alternate case respondents 4 and 5 had argued before it, afresh, after giving the parties an opportunity of being heard. The counsel for the petitioner however, contended that such a remand is not possible because, going by the Division Bench ruling in Vasu, the Sub Judges have no competence to entertain the appeal after 26-9-1989, the date on which the Notification came into force''. The counsel in this connection made particular reference to the following observations:-

The Sub-Judges have become denuded of the power of appellate authorities. Once that power is taken away, the officer though he does not cease to be a judge presiding over the Subordinate Judge''s Court, the officer cease to be appellate authority for the purpose of Sec. 18 of The Act. Thereby he loses his Jurisdiction, competency and power to function as appellate authority. As long as the notification dt. 31-8-1989 stands, Subordinate Judges cannot be asked to hear and dispose of an appeal filed before him at a time when he had the power of appellate authority: nor can be entertain any appeal against an order passed by Rent Controller in a petition filed before 31-8-1989. If the Subordinate Judge proceeds to entertain or dispose of such an appeal after he is denied of the power of appellate authority by virtue of the notification dated 31-8-1989 he will be doing an act without authority.

I would have accepted the above argument because it was supported by the above Division Bench ruling and stopped the discussion here. But that has become impossible in view of a later decision of another Division Bench (see order in C.R.P. 2025 of 1986) where U.L. Bhat, J speaking for the Division Bench has stated as follows:-

We hold that Section 23 of the Act does not deal with the powers and jurisdiction of the District Court exercising revisional power u/s 20 of the Act; in hearing and disposing of revision petitions, District Court has all the power of a civil court under the CPC and this naturally will include power to allow amendment of pleadings, to receive additional evidence and to order remand in appropriate cases to advance the cause of justice....

(Emphasis supplied)

This observation of the Division Bench understood in the light of the ruling of Krishna Moorthy, J approved in Vasu makes it however, impossible to accept the above argument of the counsel for the petitioner. It is all the more so because Section 20A is there in the statute even after the promulgation of The Notification. The District Court, in other words, has ample power to remand the case if the District Court finds such remand necessary, to the lower authority including the appellate authority (in this case that appellate authority is the Subordinate Judge because the order which was under challenge in the revision u/s 20 before the District Court was that of the Sub Judge). That the District Court'' as a revisional authority has the power to remand a case to the Subordinate Judge is beyond challenge in view of the later decision of the Division Bench in C.R.P. 2025 of 1986. In cases like the one on hand if the revisional authority that is the District Court, decides to remand the case then the same requires to be remanded to the Subordinate Judge because it is the order of the said appellate authority (passed prior to 26-9-1989) which was under challenge before the revisional court. The District Court which is also functioning as the appellate authority after the Notification, in the light of what is stated above, in my view, has no jurisdiction to consider such appeals after remand. However it is argued that after the Division Bench ruling in Vasu it may not be possible to remand the case to the Subordinate Judge because according to the Division Bench, ruling the jurisdiction of that authority has completely been denuded. But the later ruling of the Division Bench would indicate that it is possible; or else, the Division Bench would not have observed that in order to do justice even a remand is possible.

These two Division Bench rulings as regards the competence of the Subordinate Judge to hear the appeal on the same being remanded by the District Court (a rehearing by Sub Judge is possible in view of the later Division Bench railing) in the exercise of its revisional power u/s 20A, are not in the same strain, as contended for by the counsel for the parties. That means there are two conflicting binding authorities and touching upon peculiar situation brought about by conflicting decisions, this is what Allen in his treatise Law in the Making (7th edition) has said:-

Nothing but sympathy can be felt for judge who is constrained to say, as Hamphreys J. said in By us v. Stepney Borough Council (1940) 2 K.B. 663 : I find myself confronted with authorities all of which I should like to follow and all of which are binding on me, but with regard to which I have the greatest possible difficulty in understanding how they can all be right.

The well established principle that will be followed in such circumstances brought about by conflicting authorities, is this: the earlier decision in point of time should not be accepted; in other words the later binding authority shall, be followed.

It is in this background the request of respondents 4 and 5 for the issuance of a direction to the District Court, to which the revision I propose to remit, to remand the appeal to the Subordinate Judge requires to be considered. In the light of the latest ruling of the Division Bench the District Court, in the exercise of its revisional jurisdiction, has power to remand the appeal to advance cause of justice. It is all the more so because Section 20A empowers the revisional court to remand the case to the appellate authority or even to the first authority depending upon the facts and circumstances of the given case. If such a view is not taken, to my mind, Section 20A which is still there in the statute becomes futile or otiose. This shall not happen going by the cardinal rule of interpretation that a construction that makes, any provision of a Statute nugatory, otiose or dead-letter shall be rejected In other words until and unless repealed a provision/section in the statute shall be allowed to operate the field, the legislature has allowed it. (See Jaswantrai Tricumlal Vyas Vs. Bai Jiwi and Others, ; Binod Kumar Dugar and Others Vs. Superintendent of Police and Registering Authority and Others, , Bhaskar Atmaram Joshi Vs. State of Maharashtra and Others, ). To put it briefly, Section 20A, since the same has not so far been repealed, makes it impossible to hold that the Subordinate Judges on whom the appellate power had been conferred, are denuded of that power on the promulgation of the Notification as held in Vasu. The said power of the Sub Judges, at least for the limited purpose of hearing the appeals on the same being remanded by the District Court, is still there, can be presumed for two reasons (1) Section 20A has not so far been repealed and (2) the order in C.R.P. 2025 of 1986 finding the power in the District Court to remand the appeal to advance the cause of justice. It is all the more so here, because the alternative case for the first time was taken before the appellate authority, the counsel submits. Nonetheless I refrain from pronouncing on this because this is an aspect that can be looked into by the District Court to which the revision is remanded for a de novo consideration.

In the light of what is stated above the District Court has the jurisdiction to remand the case to the lower authorities to advance the cause of justice, if the District Court finds that such a remand is found necessary. The order, Ext. P3 therefore is set aside and the revision is remanded to the District Court for a de novo consideration.

The O.P. under Article 227 is allowed. Before I Part with this judgment I would like to place on record my appreciation of the commendable assistance rendered by Mr. T.P. Kelu Nambiar as amicus curiae, in deciding the issue.