Ranganayaki Ammal vs M. Krishnan

Ismail, J.—The petitioner herein sought the eviction of the respondent, who was her tenant, on several grounds, one of them hiring that the respondent was in default in payment of rent for the period from January 1963 to December 1964, at the rate of Rs. 12 per month amounting to Rs. 288 and in payment of electric charges from May 1961 to December 1964 at the rate of Rs. 3 per month, totaling Rs. 24. The respondent, though admitted the default in payment of rent from March 1963 to December, 1964, and electric charges, contended that the default was not wilful, and the amount had not been paid sine the petitioner''s ton, who used to collect the rent, had not come and collected the same. The Rent Controller, by his order dated 17th March 1965, found that the respondent committed wilful default in payment of rent and ordered his eviction. He came to the conclusion that the case of the respondent that he had paid the rent for the months of January and February 1963 was not true. The respondent preferred an appeal against the said order to the learned Subordinate Judge, Kumbakonam. The learned Subordinate Judge by his order dated 18th August, 1965 dismissed the appeal Against the order in appeal, the respondent preferred a revision petition to the learned District Judge of West Thanjavur, who, by his order dated 4th February, 1966 reversed the conclusion of the Rent Controller as well as the appellate authority, and dismissed the petition filed by the petitioner herein. It is against this order of the learned District Judge the petitioner herein has preferred this civil revision petition under S. 115 Civil Procedure Code. Before I proceed to deal with the controversy between the parties, I must mention one fact. The appellate Court in its order came to the conclusion that the evidence of R.W. 1. was not acceptable and that his explanation for non-reply to the notice dated 1st January, 1964 demanding arrears of rent was not convincing and was contradictory I must also refer to a further fact that the learned District Judge proceeded on the basis that the respondent''s case that he had paid the rent for January and February 1963, was correct. For the purpose of coming to this conclusion, the learned District Judge stated the petitioner''s son had received an amount of Rs. 30 on 20th March, 1963 and made an entry in the Kachayat Book belonging to the respondent that he bad received the amount towards the arrears of rent upto that date.

The learned counsel for the petitioner drew my attention to three vitiating factors in the order of the learned District Judge. The first factor was that the learned District Judge without any basis on evidence assumed that the petitioner''s son had recited when he received a sum of Rs. 30 on 20th March, 1963, that he was receiving the rent to wards arrears of rent due upto that date, since that expression was not to be found in the Kacayat Book. The second vitiating factor pointed out by the learned counsel is that the learned Subordinate Judge has not at all adverted to the fact that the evidence of R.W. 1 was said to be contradictory and not convincing by the Rent Controller as wail as the learned Subordinate Judge. The third vitiating factor referred to by the learned counsel is that the learned District Judge has not at all considered the inaction of the respondent even after the receipt of the lawyer''s notice demanding payment of rent which was issued on 1st October 1964 even though the eviction petition was itself filed more than two months thereafter on 10th December 1564.

In my opinion, normally speaking, these three circumstances are sufficient to vitiate the order of the learned District judge. Before me it was contended by the learned counsel for the respondent that the learned District Judge under S. 25 of the Madras Buildings (Lease and Rent Control Act, 1960, had jurisdiction to go into the findings of the fact arrived at by the Rent Controller and the appellate authority and come to a conclusion of his own. In support of this contention and in support of the contrary contention, several authorities of this court were placed before me. In my opinion, it is difficult and indeed it may be even undesirable to define in general terms with any degree of inflexibility as to the exact scope of the revisional jurisdiction under S. 25 of the Madras Buildings (Lease and Rent Control) Act, 1960. All that can be said is that under S. 23 of the Act an appeal having been provided against an order of the Rent Controller, it cannot be said that the jurisdiction of the revisional court under S. 25 of the Act is intended to be as wide as that of the appellate court. Again, at the same time, it must be pointed out that in view of the power conferred on the revisional court under S. 25 to examine the legality, regularity or propriety of an order or proceeding made under the Act, the extent and scope of the power of the revisional court under Sec. 25 cannot be so restricted as only to matters relating to jurisdiction as provided for by S. 115. Civil Procedure Code. Apart from stating this obvious, it is very difficult to say that where exactly the jurisdiction of the revisional court under S. 25 is limited or restricted except to state it lies somewhere between the revisional jurisdiction of the High Court under S. 115 CPC and the normal appellate power of an appellate authority.

As far as the present case is concerned, I am of opinion that the learned District Judge has exceeded his jurisdiction and has acted purely as an appellate court. I have already pointed out that the Rent Controller as well as the appellate authority have accepted the evidence of P.W. 1 and have rejected the evidence of R.W. 1 for the reasons given by them, namely, that his evidence was net convincing and was self-contradictory. On the other hand, with out any reference whatever to these circumstances, the learned District Judge has chosen to reject the evidence of P.W. 1 and accepted the evidence of R.W. 1 Normally to accept the credibility or otherwise of a particular witness is the function of the trial court, which has the opportunity of observing the demeanour of the witness when he is in the witness box, and the appellate authority generally will be handicapped with reference to this particular situation. Not withstanding that, it is certainly open to an appellate court to ignore or reject the evidence of a particular witness for compelling and cogent reasons. But apart from this, it cannot be said that either the appellate authority or the revisional authority is in the same position as a trial court for accepting or rejecting the veracity or reliability of a witness in relation to what he has deposed to before the court, I have already pointed out the vitiating factors in relation to the order of the learned District Judge in this case. Certainty those factors can at any event be brought within the category of material irregularities in the exercise of his jurisdiction so as to call far interfere by this court under S. 115 C.P. Code. In these circumstances, I allow this civil revision petition, set aside the order of the learned District Judge and restore those of the appellate authority and the Rent Controller. Two months time is given to the respondent to vacate the premises. There will be no order as to costs in this civil revision petition.