J.P. Chetrath vs Shamboo Dayal

J.P. Chetrath, J.—This is a tenant''s revision petition u/s 15(5) of the East Punjab Urban Rent Restriction Act, 1949.

Goel Building is situated in Ganj Bazar, Solan. It is owned by Shamboo Dayal. At the relevant time it was occupied by J.P. Chetrath as tenant. On March 9, 1971, Shamboo Dayal instituted proceedings under Sub-sections (2) and (3) of Section 13 of the East Punjab Urban Rent Restriction Act for an order directing the tenant to put him in possession. The petition was brought on the ground that the tenant was in arrears of rent and that he, the landlord, required the building for his own occupation. The Controller, Solan, rejected the landlord''s petition, but an appeal by the landlord has been allowed by the Appellate Authority. The tenant now applies in revision.

The Appellate Authority allowed the landlord''s appeal holding that the landlord bona fide required the building for his own occupation. On the question whether the tenant had fallen in arrears of rent no serious dispute was raised by the tenant, and it appears that the tenant tendered the arrears on the first date of hearing before the Controller and payment was accepted by the landlord. The principal dispute between the parties has arisen on the question whether the building was bona fide required by the landlord for his own occupation.

At the outset learned Counsel for the tenant has invited my attention to an application filed by him for bringing on the record additional documentary material. The material is intended to show that the landlord does not require the building for his own occupation and that the finding of the Appellate Authority to the contrary is erroneous. The material consists of documents indicating that the landlord had obtained the sanction of the Municipal Committee, Solan, on October 19, 1974, for further construction and that the said construction was completed in June, 1975. The application is opposed by the landlord, who alleges that an additional storey was constructed on the existing building by his brother, Roshan Lal Goel, and that Roshan Lal Goel is in possession, and that he, the landlord, has no share in that property nor is he in possession of it. An affidavit of Roshan Lal Goel has been filed, with a receipt for property tax showing that payment has been made by Roshan Lal Goel. It is apparent that there is a dispute as to whether the further construction in question belongs to, and has been occupied by, the landlord.

A question at once arises whether the additional material can be permitted on the record in order to demonstrate that the order of the Appellate Authority is vitiated by error.

Section 15(5) provides:

(5)--The High Court may, at any time, on the application of any aggrieved party or on its own motion, call and examine the records relating to any order passed or proceedings taken under this Act for the purpose of satisfying itself as to the legality or propriety of such order or proceedings and may pass such order in relation thereto as it may deem fit.

It is clear that the jurisdiction exercised by the High Court u/s 15(5) is a revisional jurisdiction, entitling it to interfere only where an order has been passed or proceedings taken contrary to law or propriety. There is no doubt that the revisional power conferred on the High Court u/s 15(5) of the aforesaid Act is wider than that conferred by Section 115 of the Code of Civil Procedure. The law was clearly so stated by the Supreme Court in Moti Ram Vs. Suraj Bhan and Others, and reaffirmed by it in Maharaj Jagat Bahadur Singh v. Badri Parshad Seth 1963 P.L.R. 452.

Now, in order to decide whether the order or proceeding is not legal or proper it is contemplated that the High Court will call for and examine the record relating to such order or proceeding. The defect in the order or proceeding must be discovered from the record. It is only where the record discloses such defect that the High Court can interfere. For that purpose it is not open to the High Court to consider material which was not on the record at the time when the relevant authority passed the impugned order or took the impugned proceeding. The record as it stood at the time defines the limits within which the High Court can enquire for deciding whether it should interfere. When on such enquiry, the High Court decides that the case is one calling for interference, it must then determine what order should be passed. For that purpose the High Court may pass order "as it may deem fit". It may deem fit that having regard to circumstances which have since arisen or having regard to material which was not then before the Controller it should pass a certain kind of order. It may be an order which because of the different state of the record before him the Controller would not have passed. The words "as it may deem fit" connote a wide envelope of jurisdiction. It is not an appellate jurisdiction, and therefore the order which may be passed by the High Court need not be confined by considerations within which appellate orders must need be bounded. That there is a real distinction between an appeal and a revision has been pointed out by the Supreme Court in Hari Shankar v. Rao Girdhari Lal Choudhary AIR 1963 S.C. 698, For the purpose of determining what is the appropriate order to pass the High Court may entertain additional material on the record in order that justice may be done between the parties. It must be remembered that revisional jurisdiction is essentially discretionary in character, and the High Court will interfere exdebito justified only. The order it will make must be such as should sub-serve the interests of justice. It is for that reason that the order envisaged by the statute when exercising revisional jurisdiction is such order as the court "may deem fit", that is to say, an order which is consonant with justice, equity and good conscience.

Learned Counsel for the tenant urges that this Court has power to consider additional material at this stage in order to decide whether the impugned order of the Appellate Authority is contrary to law or propriety. My attention has been invited to Pasupuleti Venkateswarlu Vs. The Motor and General Traders, That case, to my mind, does not assist the tenant. There, the landlord filed a petition for eviction of the tenant on the ground that he needed the premises for his own use. The petition was dismissed, and so also was the subsequent appeal. In revision, however, the High Court remanded the case to the Appellate Authority who in turn remitted the whole case to the Rent Controller. Against the appellate order of remand the landlord applied in revision to the High Court, and while hearing that revision the High Court found that certain material events relevant to the maintainability of the eviction proceeding had come into existence, and it therefore decided to mould the relief in the light of those events. It dismissed the revision petition and with it the eviction petition. The Supreme Court did not find fault with the approach adopted by the High Court. It will be noticed that the High Court dismissed the revision petition. That fact is sufficient to distinguish the case. It could have dismissed the revision petition on the ground that the impugned order was not defective on its merits having regard to the record on the basis of which it was made. In addition, the High Court could have found that having regard to events which had since come into existence the Petitioner in revision could not possibly maintain his eviction petition and, therefore, the revision petition itself was pointless. It is in this light that the observations of the Supreme Court call for consideration. The Supreme Court observed:

If a fact, arising after the has come to court and has a fundamental impact on the right to relief or the manner of moulding it, is brought diligently to the notice of the tribunal, it cannot blink at it or be blind to events which stultify or render inept the decretal remedy...We affirm the proposition that for making the right or remedy claimed by the party just and meaningful as also legally and factually in accord with the current realities, the court can, and in many cases must, take cautions cognizance of events and developments subsequent to the institution of the proceeding provided the rules of fairness to both sides are scrupulously obeyed.

(Emphasis added).

I am unable to see how these observations are relevant to the question whether the court can take additional material on the record at the instance of the Petitioner in revision for deciding whether it will interfere in the exercise of its revisiohal jurisdiction. Reference has been made on behalf of the tenant to Maharaj Jagat Bhadur (supra), but all that the Supreme Court said there was that the learned District Judge, as the Appellate Authority, was entitled to take into consideration facts which had come into existence after the eviction petition u/s 13 of the Act had been filed. The Supreme Court referred to appellate powers and not to revisional jurisdiction.

The view taken by me finds support from The State of Kerala Vs. K.M. Charia Abdullah and Co., where the Supreme Court regarded it as beyond doubt "that the revising authority may only call for the record of the order or the proceeding, and the record alone may be scrutinised for ascertaining the legality or propriety of an order or regularity of the proceeding". But where the revising authority is satisfied that the subordinate officer has committed an illegality or impropriety in the order or irregularity in the proceeding, the Supreme Court pointed out that in the words of Sub-section (2) of Section 12 of the relevant statute the Deputy Commissioner could "pass such order with respect thereto as he thinks fit", and that meant such order as may in the circumstances of the case be regarded by him as just for rectifying the defect. It was observed that the power to pass such order as the revising authority thinks fit may in some cases include power to make or direct such further enquiry as the Deputy Commissioner may find necessary for rectifying the illegality or impropriety of the order or irregularity in the proceeding. The case was referred to with approval by the Supreme Court in Swastik Oil Mills Ltd. Vs. H.B. Munshi, Deputy Commissioner of Sales Tax, Bombay, and it was pointed out that once the revisional powers were invoked the actual interference had to be based on sufficient grounds and if it was considered necessary that some additional enquiry should be made to arrive at a proper and just decision, there was no bar to the revising authority holding a further enquiry. Nothing in that case can be construed as detracting from the weight of the observations made in K.M. Charia Abdulla (supra) that for the purpose of determining whether the impugned order or proceeding suffered from the alleged defect the record alone could be scrutinised.

In my opinion, the additional material which the tenant now seeks to bring on the record cannot be considered for deciding whether the impugned order of the Appellate Authority is contrary to law or propriety. The application made by the tenant in that behalf is rejected.

It is then contended for the tenant that the statutory requirements of Clauses (b) and (c) of Section 13(3)(a)(i) of the Act have not been pleaded in the eviction petition and therefore the Appellate Authority erred in allowing the eviction petition. It seems to me that the essential pleas were taken in the eviction petition and the evidence led by the parties clearly shows that they were not taken by surprise merely because one or more of the pleas was not clearly set out in the eviction petition, Reference may be made to Puran Chand v. Jagdish Lal ILR 1974 (HIM) 309.

A faint attempt was made to show that the evidence on the record was not correctly appraised by the Appellate Authority when it found that the landlord bana fide required the building for his own occupation. The contention has no substance and must be rejected.

Accordingly, the revision petition fails and is dismisses with costs.