Sitaram Mohabia vs Paramanand Painter

Hon''ble Shri N.K. Agarwal, J.—This order shall govern disposal of both the Civil Revisions i.e. C.R. Nos. 134 and 136 of 2008. Sitaram Mohabia, who is petitioner in both the revisions, is challenging the legality and propriety of the order dated 04.07.2008 passed by the Rent Controlling Authority, Durg (for short ''RCA'') in case No. 04/A-90/04-05 and 05/A-90/04-05 by filling revision u/s 23E of the Chhattisgarh Accommodation Control Act, 1961 (for short ''the Act'').

Earlier revisions were filed challenging the order dated 04.07.2008 and later on by filing IA No. 2 i.e. application for appropriate orders, the petitioner also seeks to challenge the order dated 09.05.2006 and 06.10.2007 after condoning the delay.

In the peculiar facts and circumstances of the case and in the interest of justice, IA No. 2 is allowed and petitioner is permitted to challenge the orders dated 09.0.5.2006 and 06.10.2007 along with order dated 04.07.2008.

For proper appreciation of the legal issues involved in the cases, the facts in CR No. 134/2008 are set-down hereunder:

i. The petitioner/landlord instituted two petitions for eviction of tenants/respondents u/s 23A of the Act on the ground of his bona fide need as envisaged u/s 23-A(b) of the Act in the year 2005. After seeking leave to contest the eviction petition, the respondents in both the cases, filed their written statement.

ii. RCA framed issues on 19,10.2005 and the matter was fixed for evidence of the parties on 09.11.2005. On 09.11.2005, the evidence was not recorded and the matters were adjourned due to several interim applications filed by the respondents/tenants.

iii. Ultimately, the matter was fixed for evidence of the parties on 09.05.2006. On 09.05.2006, by filing an application (Annexure P/1), adjournment was sought by the respondents on the ground that civil suit has been filed by them against the petitioner herein as well as against the RCA, and have also tiled an application for transfer of the case.

iv. The learned RCA, instead of adjourning the case for sometime to enable the respondents to obtain the stay order from the Civil Court and to produce the same before the R.C.A., stayed the proceedings pending before it until further orders. Again, vide order dated 06.10.2007, the RCA stayed the further proceedings in the case till orders are passed in Civil Suit No. 176-A/07 and also dismissed the petitioner''s review petition vide order 04.07.2008. Hence these revisions.

I have heard the counsel appearing for the parties and perused the order impugned.

Shri Raja Sharma, learned Counsel for the respondents raised a preliminary objection regarding maintainability of the revisions, inter alia on the ground that u/s 23-E of the Act, the High Court exercise the same powers and follow the same procedure as it does for disposal of revision u/s 115 of CPC. The orders impugned, being interlocutory orders and even if these revisions are allowed, it will not dispose of the proceedings pending before the R.C.A. Therefore, in view of amended provision of Section 115 of the CPC, the revisions are not maintainable. In support of his contention, he placed reliance upon the judgment of learned single Judge this Court in case of Kanti Prasad Rathor Vs. Smt. Gunwantin Ben Tank, decided on 09.03.2007).

In sub section 2 of Section 23-E of the Act, provision is made for revision and powers are conferred on High Court to revise the order of the RCA in the same manner as if it was a court of subordinate jurisdiction to such High Court. The High Court may revise the aforesaid order of the RCA--

i. Suo Motu, at any time;

ii. on the application of any person aggrieved if such an application is presented within ninety days of the date of the order sought to be revised,

iii. For the purpose of satisfying itself as to the--

a. Legality, or

b. Propriety, or

c. Correctness of any order passed, or

d. As to the regularity of the proceedings of the RCA.

The scope and ambit of the revisional jurisdiction of the High Court u/s 23-E has been considered by learned single Judge of this court in case of Parivar Sewa Sanstha Vs. Padmawati Dixit, 2006 (2) CGLJ 280 (CR No. 80/2005 , decided on 20.07.2006), wherein this court has held: u/s 23-E of the Act, revisional jurisdiction of the High Court is little more than the revisional jurisdiction exercisable u/s 115 of CPC, and less than the appellate jurisdiction.

The Supreme Court in case o Bhoolchand and Another Vs. Kay Pee Cee Investments and Another, while dealing with High Court''s power of revision under the almost pari materia provisions of Section 50 of Karnataka Rent Control Act, 1961, has held: the power of revision is not narrow as in Section 115 CPC but wider requiring the High Court to examine the impugned order ''for the purpose of satisfying itself as to the legality or correctness of such order or proceeding'' which enables the High Court to ''pass such order in reference thereto as it thinks fit''. It is clear that the High Court in a revision u/s 50 of the Act is required to satisfy itself not only as to the legality of the impugned order or proceeding but also of its correctness.

In view of above, it is amply clear that the High Court''s powers of revision u/s 23-E of the Act are not narrow as in Section 115 of the CPC but wider requiring the High Court to examine the proceedings for the purpose of satisfying itself as to the legality or its correctness which enable the Court to pass such order in reference thereto, as it thinks fit and are little more than the revisional power exercisable u/s 115 of the CPC and less than the appellate powers.

It appears, the above decisions were not brought to the notice of learned Single Judge in the case of Kantiprasad Rathor 2007 (3) CGLJ 387 (supra). Applying the ration of law laid down by the Supreme Court in the case of Bhoolchand and Another Vs. Kay Pee Cee Investments and Another, and of this Court in the case of Parivar Sewa Sanstha Vs. Padmawati Dixit, 2006 (2) CGLJ 280 (CR No. 80/2005 n my opinion, the High Court''s powers of revision u/s 23-E of the Act are not narrow as in Section 115 of the CPC and the present revisions challenging the correctness of the proceedings are maintainable. The contention raised by Shri Raja Sharma, therefore, being devoid of merit is rejected.

Coming to the merits of the matter, it is settled principle that the court must discharge its statutory functions whether discretionary or obligatory according to law in dispensing justice because it is the duty of a court not only to do justice but also to ensure that justice is being done. (Please see A. Shanmugam Vs. Ariya Kshatriya Rajakula Vamsathu Madalaya Nandhavana Paripalanai Sangam Represented by Its President etc.,

Benefit has been provided to the landlord, as defined in Section 23-J of the Act, who can avail the speedy remedy under Chapter III-A of the Act. It is also trite law, mere filing of suit impleading the R.C.A. as party will not debar the R.C.A. to exercise jurisdiction vested in it and to decide the case pending before it unless the proceedings are stayed by a Court of competent jurisdiction. If the proceedings are stayed by the R.C.A. merely on the ground that a Civil Suit has been filed by a tenant in which he also impleaded the R.C.A., then probably the R.C.A. would not be able to decide any petition filed under Chapter III-A of the Act.

Therefore, without there being any stay order of the Court of competent jurisdiction, the R.C.A. has certainly committed a serious jurisdictional error in staying the eviction proceedings and keeping it in abeyance for years.

Considering every aspect of the matter, in my opinion, the RCA should not have stayed the matter without there being any stay order passed by a competent court of jurisdiction for such a long time and also should not have restrained itself from deciding the case in accordance with law.

For the reasons mentioned herein above, the orders impugned passed by the R.C.A. are not sustainable in law, which deserve to be and are hereby set aside. The RCA is directed to proceed with the eviction matters in accordance with law expeditiously, if no stay order is passed by the competent court of jurisdiction staying the proceedings pending before the RCA.

Accordingly, both the revisions are allowed. Parties are directed to appear before the R.C.A. on 13.09.2012. No order as to costs.