M.A.M. Haneefa vs K.S. Subhalekshmi Ammal

Chandrasekhara Menon, J.—This civil revision petition arises in proceedings u/s 20 of the Kerala Buildings (Lease and Rent Control) Act, 1965 (Act 2 of 1965) hereinafter called the Act, for evicting the revision Petitioner-tenant from the petition schedule building on the ground that the landlord needs the building bona fide for her own occupation. The Rent Control Court dismissed the landlord''s petition for eviction. Thereupon, the landlord filed an appeal before the Sub Court, Trivandrum as B.R.C.A. No. 119 of 1976. The appellate court, going into the merits of the controversy in detail, did not agree with the order of the Rent Control Court. The appeal was allowed and the landlord''s prayer for eviction was granted.

This led to the revision Petitioner filing a revision petition before the District Court under the Act as R.C.R.P. No. 82 of 1978. The revision was posted to 12th October 1978 for return of notice and for hearing. On that day, neither the Petitioner nor his Counsel was present. The Respondent was also absent. The District Court dismissed the petition for default. The revision Petitioner therefore filed an application before that court for setting aside the ex parte order and for restoring the revision to file explaining the reason for the absence of himself and the Counsel at the time of hearing. This application was rejected by the revisional court stating that it has no power for restoring the application dismissed for default. The Court said:

Section 23 of the Rent Control Act alone need be looked into here. Section 23(h) does not deal with restoration of Petitions dismissed for default. It deals with setting aside ex parte orders. A provision similar to that contained in Order 9, Rule 4, CPC does not find a place in Section 23. Nor is Section 151 of the CPC made applicable to a proceedings under the Rent Control Act. Hence, since there is no provision to restore an application dismissed for default, I hold that this petition is not maintainable.

I have no hesitation in holding that this order is clearly wrong. u/s 20 of the Act, in cases where the appellate authority empowered u/s 18 is a Subordinate Judge, the District Court, and in other cases the High Court, may, at any time, on the application of any aggrieved party, call for and examine the records relating to any order passed of proceedings taken under the Act by such authority for the purpose of satisfying itself as to the legality, regularity or propriety of such order or proceedings, and may pass such order in reference thereto as it thinks fit. This Court has held in Vareed v. Mary 1968 KLT 583 that the decision rendered by the District Court is liable to be revised by the High Court u/s 115, Code of Civil Procedure. The District Judge is acting not as a personal designata. The matter comes to the District Court in the hierarchy of the Civil Courts. If that be so, then all the powers of the District Court as a Civil Court under the Code of Civil Procedure, could be exercised by that court in hearing the revision. This will be in accordance with the well settled principle of law succinctly stated by Viscount Haldane L.C. in National Telephone Co. Ltd. v. Post Master General (1913) A.C.C. 546 in these terms.--

When a question is stated to be referred to an established court without more, it in my opinion, imports that the ordinary incidents of the procedure of that court are to attach, and also that any general right of appeal from its decision likewise attaches.

The same view was expressed by the Privy Council in AIR 1948 12 (Privy Council) where it was said:

Where a legal right is in dispute and the ordinary courts of the country are seized of such dispute the courts are governed by the ordinary rules of procedure applicable thereto and an appeal lies if authorised by such rules, notwithstanding that the legal right claimed arises under a special statute which does not, in terms confer a right of appeal.

The observations in Secretary of State for India v. Chellikani Rama Rao AIR 1916 P.C. 21 to the following effect is also of relevance here.

It was contended on behalf of the Appellant that all further proceedings in courts in India or by way of appeal were incompetent, these being excluded by the terms of the statute just quoted. In their Lordships'' opinion this objection is not well-founded. Their view is that when proceedings of this character reach the District Court, that court is appealed to as one of the ordinary courts of the country with regard to whose procedure, orders and decrees the ordinary rules of the CPC apply.

These decisions were relied on by the Supreme Court in National Sewing Thread Co. Ltd. Vs. James Chadwick and Bros. Ltd. (J. and P. Coats Ltd., Assignee), . In that case the question that arose was where a matter comes to the High Court u/s 76(1) of the Trade Marks Act, 1940, which Act does not provide or lay down any procedure for the future conduct or career of that appeal in the High Court, can there be a Letters Patent appeal. Section 76(1) of the Trade Marks Act reads as follows:

Save as otherwise expressly provided in the Act an appeal shall lie within the period prescribed by the Central Government, from any decision of the Registrar under this Act or the rules made thereunder to the High Court having the jurisdiction.

Relying on the Privy Council decisions already referred to the Supreme Court said:

Though the facts of the case laying down the above rule were not exactly similar to the facts of the present case, the principle enunciated therein is one of general application and has an apposite application to the facts and circumstances of the present case. Section 76, Trade Marks Act confers a right of appeal to the High Court and. says nothing more about it. That being so, the High Court being seized as such of the appellate jurisdiction conferred by Section 76 it has to exercise that jurisdiction in the same manner as it exercises its other appellate jurisdiction and when such jurisdiction is exercised by a Single Judge, his judgment becomes subject to appeal under Clause 15 of the Letters Patent there being nothing to the contrary in the Trade Marks Act.

In trying to sustain the order of the learned District Judge, Shri M. Krishnan Nair, learned Counsel for the Respondent, referred to the decision reported in S.J.S. Fernandez v. V. Ranganayakulu Chetty AIR 1953 Mad 236. The question that arose there was whether there could be a right to review in respect of an order passed in a revision by the High Court under the Madras Buildings (Lease and Rent Control) Act. After pointing out that what so far as the invocation of the inherent powers of court is concerned, it has been held repeatedly and has now become well settled law that the power to review is not an inherent power of a judicial officer but such a right must be conferred by Statute, Ramaswami, J. went on to point out that Section 141, CPC is indicative of general enunciation of the principle by the Legislature that to all judicial proceedings the Code is applicable. But this arises only where the proceedings reach the Court appealed to as one of the ordinary Courts of the country with regard to whose procedure, orders and decrees the rules of the Code are applicable. The learned Judge was of further opinion that the Madras Buildings (Lease and Rent Control) Act is itself a self-contained one and the provisions of the CPC do not apply to a proceeding under that Act by reason of Section 141.

In the light of the Privy Council and Supreme Court decisions earlier referred to I do not want to examine in detail the correctness or otherwise of the principle enunciated by Ramaswami, J. in the Madras decision. As far as the Act with which we are concerned, namely the Kerala Buildings (Lease and Rent Control) Act, it is apparent from Section 20 that revisional power is exercised by the District Court as District Court. Section 23 of the Act by which only certain provisions of the CPC are made applicable, has reference only to the Accommodation Controller, the Rent Control Court and the appellate authority. Regarding the powers of the revisional court under the Act, namely the District Court and in some cases the High Court such powers are not enunciated in the Act, because even otherwise they have got the necessary powers, being established courts under the Code of Civil Procedure.

However, while I am of the view that the order of the District Judge is wrong, I do not think that there is any necessity for this Court to exercise its jurisdiction u/s 115, CPC in the matter. The powers u/s 115, CPC are intended to be exercised with a view to subserve and not to defeat the ends of justice. Therefore, if the order of the lower court even if erroneous, does not impose any injustice, High Court will not interfere in revision notwithstanding the apparent mistake in the order. If there be no useful purpose served by setting aside the order and remitting it back to the revisional court under the Act, there is no question of allowing this revision petition. In this case the revision to the District Court was taken from the order of the appellate authority who has of insidered the matter in extension on the evidence. I have gone through the appellate authority''s order as well as that of the Rent Control Court. I find no difficulty in coming to the conclusion that the appellate authority''s order is more correct. The jurisdiction of a revisional court under the Act chough wider than u/s 115 is not as wide as that in appeal. Therefore, if the view taken by the appellate authority is a reasonable one, I find no justification for sending back the case to the revisional authority, though the revisional authority, might have committed a mistake in holding that he is helpless in the matter of restoring the petition dismissed for default.

In this view, I dismiss this Civil Revision Petition. However in the circumstances of the case, there will be no order as to costs. I think it will be proper that the tenant-revision Petitioner is given three months'' time from today to vacate the building.