P. Kemvan vs Parameswaran Namboodiripad

These are petitions filed u/s 24(1)(b) of the Code of Civil Procedure. Section 24(1)(b) is to the following effect:

General power of transfer and withdrawal.--(1) On the application of: any of the parties and after notice to the parties and after hearing such of them as desired to be heard; or of its own motion without such notice, the High Court or the District Court may at any stage-

(a)...

(b) withdraw any suit, appeal or other proceeding, pending in any Court subordinate to it; and

(i) try or dispose of the same; or

(ii) transfer the same for trial or disposal to any Court subordinate to it and competent to try or dispose of the same: or

(iii) retransfer the same for trial or disposal to the Court from which it was withdrawn.

Deceased Easwari Amma, wife of the petitioner, and the petitioner were defendants 1 and 2 in O.S. No. 29 of 1974, Sub Court, Ernakulam. The 1st respondent herein and late Brahmadathan Namboodiripad filed the above suit for recovery of arrears of rent alleged to be due from the petitioner and late Easwari Amma, from 1971 onwards. The suit was dismissed by the trial court by judgment dated 22-12-1979, It was held that there was no arrears of rent. The appeal filed by the plaintiffs from the aforesaid decree is pending in this Court as A.S. No. 235 of 1980. Pending appeal Easwari Amma died and respondents 7 to 16 herein were impleaded as her heirs. Respondents 2 to 6 herein are the heirs of late Brahmadathan Namboodiripad. The plaintiffs in O.S. 29 of 1974 filed O.S. 227 of 1974 against the same defendants for eviction on the ground of arrears of rent. By the common judgment delivered on 22-12-1979 it was also dismissed. The appeal filed by the plaintiffs therein is A.S. No. 234 of 1980, pending in this court. The plaintiffs in the suit filed R.C.P. No. 33 of 1974 before the Rent Control Court, Ernakulam for eviction against late Easwari Amma and the petitioner. The eviction was sought on the ground of arrears of rent as on 31-7-1973. It was dismissed by the trial court. The landlord filed R.C.A. No. 122 of 1980 before the appellate authority. Ft was allowed by judgment dated 13-9-1983. The petitioner herein filed R.C.R.P. No. 109 of 1983 before the District Court, Ernakulam, which is still pending.

Alleging that the questions involved in O.S. 29 of 1974 (A.S. 235 of 1980) and also R.C.P. No. 33 of 1974 are one and the same and the fundamental question involved in both the cases being whether the petitioner had defaulted payment of rent and whether there is any arrears of rent as on 31-7-1973, the petitioner has filed this petition praying that the two proceedings could be heard together and the revision filed from R.C.P. No. 33 of 1974 pending in the District Court, R.C.R.P. No. 109/83, may be withdrawn to this court to be heard along with A.S. No. 235 of 1980. It is also stated that R.C.R.P. No. 109 of 1983 pending in the District Court, Ernakulam and A.S. 234 of 1980 are similarly connected matters. Stating that the questions involved in both the proceedings pending in the District Court and the High Court are one and the same, the petitioner has filed the petition to withdraw R.C.R.P. No. 109 of 1983 to be heard along with A.S. Nos. 234 and 235 of 1980. The prayer contained in these petitions are opposed by the respondents. Respondents'' counsel Mr. M. K. Narayana Menon urged the following points in opposition to the above petitions for withdrawal of the revision pending in the District Court being withdrawn to this court to be heard along with the appeals pending in this court.

(1) The revision pending in the District Court, R.C.R.P. No. 109/83 is one filed u/s 20 of the Buildings (Lease and Rent Control) Act. On a reading of section 20 of the Act along with Rules 14 and 17 of the Rules it is evident that the jurisdiction of this court to hear the revision pending in the District Court is excluded. There is implied prohibition in hearing the said revision by this court. Even assuming that the revision can be withdrawn from the District Court and the proceedings once they reach the District Court are governed by the provisions of C.P.C., when there is implied prohibition--the powers vested in this court under the section cannot be exercised.

(2) Joint trial of a revision filed u/s 20 of the Act and an appeal filed under the CPC is not permissible.

(3) The decision of the first appeal has nothing to do with the revision pending in the District Court u/s 20 of the Act. The power of the Rent Control Court and also the power of the revisional court therefrom u/s 20 of the Act are so done in the exercise of exclusive jurisdiction and no consolidation of two mutually different proceedings is permissible.

(4) Even in cases where both the proceedings are civil suits, in case, the evidence to be considered are different and were separately taken, no joint trial or hearing is possible.

(5) The powers to be exercised by this Court u/s 24 of the C.P.C. is a discretionary jurisdiction and should not be exercised in this case,

I have considered the various objections of the respondent. I do not think that there is any legal bar in withdrawing R.C.R.P. No. 109 of 1983 pending in the District Court to be heard along with the appeals pending in this Court--A.S. Nos. 234 and 235 of 1980. The essential and substantial issue in the appeals as also in R.C.R.P. 109 of 1983 is whether the petitioner, the tenant, had defaulted payment of rent and whether there is any arrears of rent as on 31-7-1973. If that fundamental issue which arises in all these proceedings is decided by the same court, it will avoid conflict of decisions. It will also facilitate an early and effective disposal of the crucial controversy between the parties. Much hardship and injury that are likely to be caused by the proceedings being pursued or continued in different forums can also be avoided. The only essential question is whether there is any legal bar in transferring R.C.R.P. 109 of 1983 from the District Court to the file of this Court to be heard along with A.S. Nos. 234 and 235 of 1980.

It cannot be doubted that R.C.R.P. No. 109 of 1983 is a "proceeding" pending in a court subordinate to this court. The expression "proceeding" used in Section 24(1)(b) of the C.P.C. came up for consideration before the Supreme Court. In Ramchandra Aggarwal and Another Vs. State of Uttar Pradesh and Another, the Court held:

The expression "Proceedings'' used in this section is not a term of art which has acquired a definite meaning. What its meaning is when it occurs in a particular statute or a provision of a statute will have to be ascertained by looking at the relevant statute. Looking to the context in which the word has been used in S. 24(1)(b) of the CPC it would appear to us to be something going on in a Court in relation to the adjudication of a dispute other than a suit or an appeal. Bearing in mind that the term "''proceeding" indicates something in which business is conducted according to a prescribed mode it would be only right to give it, as used in the aforesaid provision, a comprehensive meaning so as to include within it all matters coming up for judicial adjudication and not to confine it to a civil alone.

A Full Bench of this Court in Ouseph Vareed v. Mary (1968 KLT 583 F.B) held that a decision rendered by the District Court in exercise of the revisional powers conferred on it by Section 20(1) of the Kerala Buildings (Lease and, Rent Control) Act. 1965 is liable to be revised by this Court u/s 115 of the Code of Civil Procedure. His Lordship Balakrishna Eradi, J. (as he then was) speaking for the Full Bench observed as follows;

It is now well-established that where by a statute matters are referred to the determination of a court of record with no further provision, the necessary implication is that the court will determine the matter "as a court". Its jurisdiction is enlarged, but all the incidents of such jurisdiction including the right of appeal from its decision remain the same. The legal position has been stated thus by Viscount Haldane L.C. in National Telephone Company Limited v. Postmaster-General, 1913 AC 546:-

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 decisions like-wise attaches.

Since the statute in the case before us has conferred the revisional jurisdiction on one of the ordinary courts of the country, viz.. the District Court, the procedure as well as the orders and decrees of that court will be governed by the ordinary rules of civil procedure.

Proceeding further at page 588 His Lordship observed:

In the light of the aforesaid statements of law as laid down by the Privy Council and our Supreme Court we have no hesitation to hold that in exercising the revisional power under S. 20(1) of the Kerala Buildings (Lease and Rent Control) Act the revisional authority, viz., the District Court functions as a court and that the ordinary incidents of the procedure of that court, including any rights of appeal or revision, will attach to the decision rendered by the District Court in the exercise of the jurisdiction conferred by S. 20, so long as there is no statutory provision excluding such right of appeal or revision.

From the above, it cannot admit of any doubt that the revision filed u/s 20 of the Act R.C.R.P. 109 of 1923 is a "proceeding" in a Court "subordinate" to this Court. It is also clear that the procedure attached to the District Court including appeals and revision are clearly applicable. If that be so, it cannot be doubted that this court is competent to withdraw R.C.R.P. 109 of 1983 from the District Court and dispose of the same along with A.S. Nos. 234 and 235 of 1980. If the jurisdiction to hear revision u/s 20 of the Act is vested in a court subordinate to this Court, there is no reason to hold that this court which is a superior court cannot itself hear and dispose of that revision. I do not find any implied prohibition therefor, on a perusal of section 20 of the Act read along with Rules 14 and 17 of the Rules. Rules 14 and 17 of the Kerala Building (Lease and Rent Control) Rules provide for distinct and different matters and do not affect the power of this court to transfer and hear a revision pending in a court subordinate to this court.

Once it is found that this Court is competent to transfer and hear and dispose of a revision pending in the District Court u/s 20 of the Act, I do not find any legal bar in hearing such a revision along with the appeals filed under the Code of Civil Procedure. This court in withdrawing the revision pending in the District Court u/s 20 of the Act in considering and disposing of it essentially exercises the powers vested in it under the Code of Civil Procedure. Equally unsustainable, is the argument that the powers exercised by the District Court in a revision u/s 20 of the Act is an exclusive jurisdiction and so, such a revision cannot be heard along with the appeals pending in this Court. It is true that the rent control proceedings are initiated before courts of exclusive jurisdiction. The moment the proceedings therein (Rent Control Proceedings) reach a court subordinate to this court, all further procedure, including the power to hear and dispose of the same, is governed by the law which attaches itself to that court, in which such revision is filed. I do not also find sufficient justification to hold that R.C.R.P. 109 of 1983 and A.S. Nos. 234 and 235 of 1980 cannot be heard together for the reason that the evidence considered in both the proceedings are different and distinct and that no joint trial or hearing is possible. It should not be forgotten that the essential question in controversy between the parties in these two proceedings are similar if not the same. The parties in both the proceedings are substantially the same. Considering the substantial identity of the issues in the two proceedings, I am of opinion that considerable public time and expense could be saved if the revision pending in the District Court is withdrawn and heard along with the appeals in this Court. The fact that the evidence in the two proceedings were recorded separately will not by itself deter such a course being adopted, especially in a case, as the instant one, where the crucial issue in controversy is substantially the same in both the proceedings. It is true that the power vested in this court u/s 24 of the C.P.C. is a discretionary one. It is trite law that the discretion vested in this court is a judicial one and it should be exercised in accordance with law. Having regard to the substantial identity of the fundamental issue involved in the two proceedings, I am of the view, that in order to facilitate a proper, effective and early disposal and to reach a finality in the litigation between the parties which will also save much public time and money; it is eminently a fit case where the powers of this court vested u/s 24 of the C.P.C. should be exercised.

In the net result, C.M.C. Nos. 2 and 3 of the 1984 are allowed. R.C.R.P. No. 109 of 1983 pending before the District Court, Ernakulam, is directed to be withdrawn to this court for being heard and decided by this court along with A.S. Nos. 234 and 235 of 1980. The C.M.Cs. are allowed. There shall be no order as to costs.