V. Kesavan vs K.S. Raghavan and Others

Subramania Iyer, J.—This is an application by a tenant of a building situated in the Municipal town of Alleppey for quashing an order passed by the Government on 31-1-1950 reviewing their earlier order dated 13-9-1949 as having been passed without jurisdiction.

The third Respondent is the landlord. He filed R.C. Petition No. 52 of 1123 under the Travancore Building Rent Control Order, 1122, for eviction of the Petitioner on two grounds, first, default in the payment of rent, and second, necessity of the premises for the landlord''s own occupation. These are grounds which if made out would entitle the landlord to the relief sought. The Rent Controller found against the landlord on both the points and dismissed the application by order dated 20-3-1124. On appeal by the landlord to the Appellate Authority who is the District Magistrate the order of the Rent Controller was reversed on a finding that the tenant was in arrears. No finding was recorded upon the second point on which also the order for eviction was sought and made. The tenant applied to the Government for revision of the said order and succeeded, the Government being of the view that the order passed by the Appellate Authority was wrong and the one passed by the Rent Controller is right which was, therefore, restored by order dated 13-9-1949. The third Respondent filed an application for review of the order passed by Government on revision. The application for review was filed on 27-5-1949 and was disposed of on 31-1-1950 by the order which has led to this application.

In the application for review the ground relied upon is that the landlord appeared before the Government pursuant to the notice on the revision, that on the day on which, according to the notice, the matter was posted when landlord and his advocate appeared, the Petitioner tenant and his counsel were both absent and being under the impression that the petition for revision would either be dismissed for default of the Petitioner or would be adjourned to Anr. date of which he would get notice the landlord and his advocate left the place. On notice upon the application for review the tenant applied for time to file objections but he does not however appear to have filed any. At the hearing of the review he took objection orally to the jurisdiction of the Government to review the order already passed by them. The order passed in the review does not consider the truth of the ground on which the review was sought for. Nor does it discuss and decide the question of jurisdiction that was raised by the tenant. It says that on the merits the previous order dated 13-9-1949 is incorrect because the tender of the rent made by the tenant which was the ground on which it was held that there was no default was after and not anterior to the application before the Rent Controller. On this ground the previous order was vacated and that of 31-1-1950 substituted.

Learned Counsel for the Petitioner contends that the Government acted without jurisdiction in entertaining this application for review and passing an order thereon.

The statute under which the order was passed does not confer a power of review upon the Rent Controller, the Appellate or the Revisional Authority. The provisions of the Travan- core Building Rent Control Order, 1122, are in this respect at variance from those contained in the subsequent enactment, namely, the Travancore-Cochin Building Lease and Rent Control Order, 1950, in which by Section 15, Clause 4, a power of review is conferred upon the Rent Controller who deals with the matter in the first instance and the Appellate Authority. Even here no power of review is conferred upon the Government exercising the power of revision. When an authority is conferred with a jurisdiction to deal with a matter, on its exercise ordinarily the authority becomes ''functus officio'', the power being exhausted by the exercise of that jurisdiction. If, an accidental mistake arises in the exercise of that jurisdiction for which the authority exercising jurisdiction is responsible that authority has certainly not merely jurisdiction but the obligation on that mistake being discovered or pointed out, to rectify it. This is not a power of review but a power inherent in any authority to correct its own errors in order that no party should be affected thereby.

In a case where a Court disposed of a proceeding for default of the Plaintiff when in fact that Plaintiff had been dead, the Privy Council observed that the Court has got inherent jurisdiction to rectify this mistake and restore the proceedings to file at the instance of the legal representatives of the deceased Plaintiff. Death of a party is not his default. See - ''Debi Baksh Singh v. Habib Shah'' 35 All 331 at p. 337 (A). There are other decisions as well where the view has been taken, that if an error creeps in on account of the mistake of the Court, the Court is always entitled to rectify it whether ''suo motu'' or at the instance of a party. The Court may also have inherent power to rectify an order brought about by fraud practised on the Court by a party. The existence of this inherent power does not however indicate that the power of review of an order is inherent. As already stated, when the authority having a power exercises the power it becomes ''functus officio''. In order that that authority may further deal with it a power to do so must be actually conferred. Such a power is seen conferred by statute. By the CPC a power of review is conferred on Courts. In England under the rules of the Supreme Court the power of review is not so much or so wide as is contained in the Indian Code of Civil Procedure. There is no power of review in criminal cases. There are statutes conferring jurisdiction upon authorities to deal with particular matters wherein the power of review is conferred and there are Ors. where such a power is not conferred.

As already stated, in the Travancore-Cochin Building Lease and Rent Control Order, 1950, a power of review is conferred upon the Rent Controller and also upon the Appellate Authority and not upon the Government as an authority in revision. The existence and variety of legislation regarding review are indicative of the absence of inherent power to review. That the power of review is not inherent but has to be conferred is a principle which would appear to be elementary. It has been recognised in various cases. It is not necessary to give a catalogue of those cases. It is sufficient to refer to a few of them - ''Prayag Lal v. Jai Narain Singh'' 22 Cal 419 (B); - ''Baijnath Ram v. Kumar Singh'' 34 Cal 677 (C); - ''Baijnath Ram v. Nand Kumar Singh'' 40 Cal 552 (D); - ''Ram Chandra v. Beero Pollai'' AIR 1936 Mad 531 at p. 540 (PB) (E); - M.J. Kutinha Vs. Mrs. Nathalal Pinto Bai and Another, ; - '' 18 Ind Cas 988 (sic)''; - ''Dayabhai Sarup Chand v. Byramji'' 23 Bom 474 (G) - ''Charles E. Ring v. Collector of Bombay'' AIR 1948 Bom 387 (H); - ''Bepin Behari v. Jagat Kishore'' 22 Ind Cas 575, (Cal) (I) and -''Fernandez v. Ranganayakulu Chetty'' 1952 2 MLJ 10 (J). Indeed, there does not appear to have been any case, at any rate none has been brought to my notice, where a view contrary to this has been taken. The order passed by the Government on 31-1-1950/ is, therefore, without jurisdiction and has to be and is hereby quashed.

Learned Counsel for the third Respondent landlord says that the result of the quashing of the said order in these proceedings would be to, render an application by his client for a writ of certiorari to quash the order passed by the Government on 13-9-1949 because that order according to him is one vitiated by an error apparent on the face of the record which is a ground recognised by the Supreme Court as sufficient to sustain an application for a writ. I have not considered the merits of the order passed by Government on 13-9-1949 and I do not propose to say one way or the other as to its merits. Should an application for writ of ''certiorari'' be filed by the third Respondent to quash that order it would be considered on its merits. The circumstance that there is a possibility of Anr. application; 1953 for a similar relief in respect of Anr. order is however no ground why this Court should desist from exercising a jurisdiction vested in it whose exercise is called for by the facts of this case.

Mr. Narayana Pillai, learned Counsel for the third Respondent contended that his client had not had the opportunity of representing his case before the Government in connection with the revision. A comparison of Section 2, Clause 3 which provides for appeals and Clause 5 which provides for revision will snow that whereas in the case of an appeal there is an obligation for the appellate authority to hear the parties there is none such cast upon the authority dealing with a revision. It would thus be clear that no party to a revision is entitled as of right to be heard. The third Respondent''s contention is that he was present by his advocate. He does not say that he wanted to make representation and that he was prevented from doing so or that he was not allowed to do so. Nor does he say that the case stood adjourned to Anr. date when ho thought he might appear and make a representation. He only says that his impression was that the case might be dismissed for default of the Petitioner or adjourned to Anr. date.

There is no provision for dismissing an application for default in the relevant statute. If he entertained a wrong impression nobody is responsible therefore. Whatever the third Respondent had to say find been said before the Rent Controller as also before the Appellate Authority. It is not stated before me that there was anything more than what was said before the Rent Controller and the Appellate Authority or would appear on the face of the record that had to be presented before the Government in revision. In the absence of any such thing I do not consider that the circumstance that the Petitioner has not had an opportunity to address his oral arguments would affect the validity of the order passed on revision. Even in cases where it is provided that the party is entitled to be heard it does not necessarily mean that the party is entitled to address oral arguments. Reference may be made to- ''State of Travancore-Cochin v. Joseph Chacko'' AIR 1951 TC 241 at p. 243 (K), where a Division Bench of this Court has considered this question and has taken the view that a party can be said to be heard even if no oral arguments are addressed or allowed to be addressed by him provided he has had the opportunity of presenting his case in writing before the authority, considering the matter.

In the result, I allow this application and quash the order passed by the second Respondent on 31-1-1950 as bad for want of jurisdiction. As regards costs I consider that there is no ground to make either the first or the second Respondent liable for the costs of the Petitioner. There is no allegation of mala fide as against them. Nor is any other ground made out to render them liable. It may also be mentioned that the attitude of the learned Government Pleader who appeared for them in this Court was not one of opposition but really of submission of the case to the Court for its decision agreeing to accept what is decided as a guide for the future. As regards the third Respondent he has contested the proceedings here and as he has failed the consequence should be that he should be made liable for the costs. The third Respondent will pay the costs of the Petitioner with advocate''s fee which I fix at Rs. 100/-.