CIVIL APPELLATE JURISDICTION: Civil Appeal No. 5032 of
From the Judgment and Order dated 20.8.1985 of the Kerala High Court in C.R.P. Nos. 1643 and 2552 of 1980. P.S. Poti and E.M.S. Anam for the Appellant.
G. Vishwanath lyer, P.K. Pillai and K. Dileep Kumar for the Respondent. The Judgment of the Court was delivered by
SABYASACHI MUKHARJI, J. This appeal by special leave from the decision of learned single judge of the High Court of Kerala is disposed of on a short question of law.
The appellant is a tenant. The High Court had reversed the concurrent findings and the decisions of three courts below it and ordered eviction of the appellant.
The dispute relates to a portion of the ground floor of a three-storeyed building situated in one of the busiest commercial areas Pazhavangadi of the city of Trivandrum. where the appellant had been conducting a tea shop by name ’Sourashtra Hotel’. In the adjacent rooms on the ground floor, the landlord was conducting a business in textiles namely ’Sarada Textiles’. The tenancy began on 12th June, 1965. The tenancy was taken by the husband of the appellant. The rent was Rs. 140 per month. The husband of the appellant died. Thereafter the appellant had been conducting the business from there.
On or about 15th April, 1976, the respondent purchased.a three storeyed building. The petition schedule premises is a portion of the ground floor of the said three storeyed building. It is the case of the appellant that there were seven rooms on the first floor of the said building out ’of which four were in the possession of the respondent and three rented out as aforesaid. The premises on the second floor were used by the respondent-landlord as a lodge. On 9th April, 1977, the respondent filed an application under section 17 of the Kerala Buildings (Lease and Rent Control) Act, 1965 (hereinafter called the Act) for permission to convert the non-residential building to a residential building. On 30th November, 1977, the Accommodation Controller rejected the said application.
On 2nd June, 1978, the respondent filed the petition for eviction of the appellant on the ground of bona fide need of the premises in question for his residence. Arrears of rent was also one of the grounds taken against the appellant. The tenant duly filed his objection. On 31st October, 1978, the Rent Control Court dismissed the respondent-landlord’s petition for eviction. It was found that the landlord had other buildings in his own possession and therefore. no order of eviction could be passed by virtue of the first proviso to section 11(3) of the Act. The Rent Control Appellate Authority on or about 2nd July, 1979 dismissed the respondent-landlord’s appeal.
On 28th March, 1980, the revision petition filed by the respondent was also dismissed by the District Court.
The High Court was moved by the respondent-landlord under section 115 of the Code of Civil Procedure.
The husband of the appellant died on 8th May, 1985. She was therefore impleaded as the legal representative and she is conducting the business since the death of her husband;
By the order dated 20th August, 1985, the High Court by its impugned order has set aside all the orders of the courts below. The tenant, the appellant herein has come up in appeal to this Court under article 136 of the Constitution.
Several questions were posed before us in this case, inter alia, (i) whether the revision under section 115 of the Code of Civil Procedure lies to the High Court from a revision order passed under section 20 of the said Act? (ii) whether the High Court has exceeded its jurisdiction under section 115 in setting aside the judgments and orders of the courts below in ordering eviction of the appellant from the premises in question reversing the findings of facts? (iii) whether eviction of a tenant from a non-residential building could be ordered for the user of the building for residence of the landlord, if the Accommodation Controller had refused permission under section 17 of the Act to convert the building from non-residential to residential? (iv) where the Accommodation Controller refused the permission to convert the building from non-residential to residential, does the claim to the building by the landlord for a residential purpose become illegal and not recognised by law and whether the claim of the landlord can still be held to be bona fide? (v) whether in ordering eviction the special reasons relied on by the High Court on a reappreciation of facts are borne out from the evidence in this case and whether the facts stated by the High Court constitute "special reasons" required under the first proviso to section 11 (3) in ordering eviction and setting aside the judgments and orders of the courts below.
For the present purpose, it is relevant to refer to section 11(3) of the Act which provides as follows:
"11 (3). A landlord may apply to the Rent
Control Court for an order directing the
tenant to put the landlord in possession of
the building if he bona fide needs the build-
ing for his own occupation or for the occupa-
tion by any member of his family dependent on
him;
Provided that the Rent Control
Court shall not give any such direction if the
landlord has another building of his own in
his possession in the same city, town or
village except where the Rent Control Court is
satisfied that for special reasons, in any
particular case it will be just and proper to
do so:
Provided further that the Rent
Control Court shall not give any direction to
a tenant to put the landlord in possession, if
such tenant is depending for his livelihood
mainly on the income derived from any trade or
business carried on in such building and there
is no other suitable building available in the
locality for such person to carry on such
trade or business;
Provided further that no landlord whose right
to recover
possession arises under an instrument of
transfer inter vivos shall be entitled to
apply to be put in possession until the expiry
of one year from the date of the instrument;
Provided further that if a landlord
after obtaining an order to be put in posses-
sion transfers his rights in respect of the
building to another person, the transferee
shall not be entitled to be put in possession
unless he proves that he bona fide needs the
building for his own occupation or for the
occupation by any member of his family depend-
ent on him."
In the view we have taken on the question that no revision lay to the High Court, it is not necessary to refer to other provisions of the Act or to the details of the facts of this case. It is, however, necessary to refer to sections 18 and 20 of the Act which are as follows:
"18. Appeal--(1) (a) The Government may, by
general or special order notified in the
Gazette, confer on such officers and authori-
ties not below the rank of a Subordinate Judge
the powers of appellate authorities for the
purposes of this Act in such areas or in such
classes of cases as may be specified in the
order.
(b) Any person aggrieved by an order
passed by the Rent Control Court may, within
thirty days from the date of such order,
prefer an appeal in writing to the appellate
authority having jurisdiction. In computing
the thirty days aforesaid, the time taken to
obtain a certified copy of the order appealed
against shall be excluded.
(2) On such appeal being preferred,
the appellate authority may order stay of
further proceedings in the matter pending
decision on the appeal.
(3) The appellate authority shall
send for the records of the case from the Rent
Control Court and after giving the parties an
opportunity of being heard and, if necessary,
after making such further inquiry as it thinks
fit either directly or through the Rent Con-
trol Court, shall decide the appeal.
Explanation:--The appellate author-
ity may, while confirming the order of evic-
tion passed by the Rent Control
Court, grant an extension of time to the
tenant for putting the landlord in possession
of the building.
(4) The appellate authority shall
have all the powers of the Rent Control Court
including the fixing of arrears of rent.
(5) The decision of the appellate
authority, and subject to such decision, an
order of the Rent Control Court shall be final
and shall not be liable to be called in ques-
tion in any Court of law, except as provided
in section 20.
20. Revision:--(1) In cases where
the appellate authority empowered under sec-
tion 18 is a Subordinate Judge, the District
Court, and in other cases the High Court may,
at any time, on the application of any ag-
grieved party, call for and examine the re-
cords relating to any order passed or proceed-
ings taken under this 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.
(2) The costs of and incidental to
all proceedings before the High Court or
District Court under Sub-section (1 ) shall be
in its discretion."
It has further to be borne in mind that the Act in question was an Act to regulate the leasing of buildings and to control the rent of such buildings in the State of Kerala.
It was contended by Shri Poti, learned counsel for the appellant, that no revision lay to the High Court. He submitted that section 18(5) read with section 20 of the Act has completely ousted the High Court’s jurisdiction to interfere in this matter under section 115 of the Code of Civil Procedure.
Under the scheme of the Act it appears that a landlord who wants eviction of his tenant has to move for eviction and the case has to be disposed of by the Rent Control Court. That is provided by sub-section (2) of section 11 of the Act. From the Rent Control Court, an appeal lies to the Appellate Authority under the conditions laid down under sub-section (1)(b) of section 18 of the Act. From the Appellate Authority a revision in certain circumstances lies in case where the appellate authority is a Subordinate Judge to the District Court and in other cases to the High Court. In this case as mentioned hereinbefore the appeal lay from Rent Control Court to the appellate authority who was the Subordinate Judge and therefore the revision lay to the District Judge. Indeed it is indisputed that the respondent has in this case taken resort to all these provisions. After the dismissal of the revision by the District Judge from the appellate decision of the Subordinate Judge who confirmed the order of the Rent Controller, the respondent-landlord chose again to go before the High Court under section 115 of the Code of Civil Procedure. The question, is, can he have a second revision to the High Court? Shri Poti submitted that he cannot. We are of the opinion that he is fight. This position is clear if sub-section (5) of section 18 of the Act is read in conjunction with section 20 of the Act. Sub-section (5) of section 18, as we have noted hereinbefore, dearly stipulates that the decision of the appellate authority and subject to such decision, an order of the Rent Controller ’shall be final’ and ’shall not be liable to be called in question in any court of law’, except as provided in section 20. By section 20, a revision is provided where the appellate authority is Subordinate Judge to the District Judge and in other cases, that is to say, where the appellate authority is District Judge, to the High Court. The ambits of revisional powers are well-settled and need not be re-stated. It is inconceivable to have two revisions. The scheme of the Act does not warrant such a conclusion. In our opinion, the expression ’shall be final’ in the Act means what it says.
In Kydd v. Watch Committee of City of Liverpool. [1908] Appeal Cases 327 at 331-332. Lord Loreburn L.C., construing the provisions of section 11 of the Police Act, 1890 of England which provided an appeal to quarter sessions as to the amount of a constable’s pension, and also stipulated that the Court shall make an order which would be just and final, observed:
"Where it says, speaking of such an order,
that it is to be final, I think it means there
is to be an end of the business at quarter
sessions ....... "
The said observation could most appropriately be applied to the expression used by the legislature in sub-section (5) of section 18 of the Act in question. It means what it says that subject to the decision of the appellate authority, the decision of the Rent Controller shall be final and could only be questioned in the manner provided in section 20 and in no other manner. The intention of the legislature in enacting the said Act is clear and manifest from this section and the scheme of the Act, that is to say, to regulate the leasing of buildings and to control the rent of such buildings and to provide a tier of courts by themselves for eviction of the rented premises. This is writ large in the different provisions of the Act. This Court, referring to the aforesaid observations of Lord Loreburn, L.C. in the case of South Asia Industries Private Ltd. v.S.B. Sarup Singh and Others. [1965] 2 S.C.R. 756 observed at page 766 of the report that the expression "final"prima facie meant that an order passed on appeal under the Act was conclusive and no further appeal lay. This Court was construing sections 39 and 43 of the Delhi Rent Control Act, 1958 and the effect thereof in the context of Letters Patent Appeal. There sections 39 and 43 provided as follows:--
"Section 39. (1) Subject to the provisions of
sub-section (2), an appeal shall lie to the
High Court from an order made by the Tribunal
within sixty days from the date of such order.
(2) No appeal shall lie under sub-
section (1), unless the appeal involves some
substantial question of law.
Section 43. Save as otherwise ex-
pressly provided in this Act, every order made
by the Controller or an order passed on appeal
under this Act shall be final and shall not be
called in question in any original suit,
application or execution proceedings."
This Court observed at page 766
that a combined reading of the said two sec-
tions made it clear that subject to the fight
of appeal to the High Court on a substantial
question of law, the order passed by the
Controller or an order passed on appeal was
final and could not be called in question in
any original suit, application or execution
proceeding. The use of the expression "shall
be final" will have to be understood in the
proper context and keeping in view the purpose
of the different sections.
On behalf of the respondent, Shri
Iyer relied on a decision of the Full Bench of
the Kerala High Court on which the High Court
had rested its decision in Ouseph Vareed v.
Mary, [1968] K.L.T. 583 in repelling the
submission by the appellant on this aspect.
There the High Court was concerned with the
identical Act. Balakrishna Eradi, J. speaking
for the Full Bench of the Kerala High Court on
this contention after referring to several
decisions observed at pages 588-589 of the
report as follows:
"The contention of the respondent that the
decision of the District Court rendered under
S. 20(1) is not amenable to revisional juris-
diction of the High Court under S. 115 of
the Civil Procedure Code is based mainly on
the provision for
finality contained in S. 18(5) of the Act.
That Section is in the following terms:--
"The decision of the appellate authority, and
subject to such decision, an order of the Rent
Control Court shall be final and shall not be
liable to be called in question in any Court
of law, except as provided in S. 20."
What is to be noted here is that there is
nothing in the Section which says that the
decision of the revisional authority under S.
20 shall be final and shall not be called in
question in any higher court."
The learned judge referred to the decision of the Judicial Committee in the case of Maung Ba Thaw and Another--Insolvents v. Ma Pin, AIR 1934 P.C. 111. The learned judge also referred to a decision of this Court in South Asia Industries (P) Ltd. v. S.B. Sarup Singh & Ors. (supra). The learned judge concluded that so long as there was no specific provision in the statute making the determination by the District Court final and excluding the supervisory power of the High Court under section 115 of the Code of Civil Procedure, it had to be held that the decision rendered by the District Court under section 20(1) of the Act being a decision of a court subordinate to the High Court to which an appeal lay to the High Court was liable to be revised by the High Court under section 115 of the Code of Civil Procedure. In that view of the matter, the Full Bench rejected the view of the division bench of the Kerala High Court in Kurien v. Chacko, [1960] KLT 1248. With respect, we are unable to sustain the view of the Full Bench of the High Court on this aspect of the matter. In our opinion, the Full Bench misconstrued the provisions of subsection (5) of section 18 of the Act. Sub-section (5) of section 18 clearly states that such decision of the appellate authority as mentioned in section 18 of the Act shall not be liable to be questioned except in the manner under section 20 of the Act. There was thereby an implied prohibition or exclusion of a second revision under section 115 of the Code of Civil Procedure to the High Court when a revision has been provided under section 20 of the Act in question. When section 18(5) of the Act specifically states that "shall not be liable to be called in question in any Court of law" except in the manner provided under section 20, it cannot be said that the High Court which is a court of law and which is a civil court under the Code of Civil Procedure under section 115 of the Code of Civil Procedure could revise again an order once again after revision under section 20 of the Act. That would mean there would be a trial by four courts, that would be repugnant to the scheme manifest in the different sections of the Act in question. Public policy or public interest demands curtailment of law’s delay and justice demands finality within quick disposal of case. The language of the provisions of section 18(5) read with section 20 inhibits further revision. The courts must so construe.
Judicial Committee in Maung Ba Thaw v. Ma Pin (supra) was dealing with the Provincial Insolvency Act and the Judicial Committee observed that when a right of appeal was given to any of the ordinary courts of the country, the procedure, orders and decrees of that Court would be governed by the ordinary rules of the Civil Procedure Code, and therefore an appeal to Privy Council was maintainable from the decision of the High Court. Here in the instant case the right of appeal has been given under the Act not to any ordinary court of the country under the Code of Civil Procedure but to the courts enumerated under the Rent Act. In that view of the matter, the ratio of that decision cannot be applied in aid of the submission for respondent in this case.
Indeed this view, in our opinion, is concluded by the decision of this Court in the case of Vishesh Kumar v. Shanti Prasad, [1980] 3 S.C.R. 32 where this Court was concerned with section 115 of the Code of Civil Procedure and the amendments made therein which superseded the bifurcation of the revisional jurisdiction between the High Court and the District Court. The High Court possessed revisional jurisdiction from an order of District Judge disposing of revision petition. This Court observed that section 115 of the Code of Civil Procedure conferred on the High Court of a State power to remove any jurisdictional error committed by a subordinate court in cases where the error could not be corrected by resort to its appellate jurisdiction. There after tracing the history of the amendment of the Code of Civil Procedure by Amendment Act, 1976, this Court observed that the amendment superseded the scheme of bifurcation of revisional jurisdiction with effect from 1 st February, 1977. Section 25 of the Provincial Small Cause Courts Act was amended from time to time in its application to the State of U.P. The two questions that fell for consideration before this Court were (i) whether the High Court possessed the revisional jurisdiction under section 115 of the Code of Civil Procedure in respect of an order of the District Court under section 115 disposing of a revision petition and (ii) whether the High Court possessed revisional jurisdiction under section 115 of C.R.C. against an order of District Court under section 25 of Provincial Small Cause Courts Act. It was held that the High Court was not vested with that. revisional jurisdiction. This Court was of the view that an order under section 25 of the Provincial Small Cause Courts Act was not of a court of District Court and was not amenable of revisional jurisdiction. This COurt ’further observed that an examination of the several provisions of the Provincial Small Cause Courts Act indicated that it was selfsufficient code so far as the enquiry covered by that Act was concerned. All the indications in the Act were to that effect. After analysing the scheme and referring to the decisions of this Court, this Court held that the jurisdiction of the High Court under section 115 of the Code of Civil Procedure was excluded.
In that view of the matter, we are of the opinion that the Full Bench of the Kerala High Court was in error and the High Court in the instant case had no jurisdiction to interfere in this matter under section 115 of C.P.C.
It was urged that in case we are of the opinion that a revision under section 115 of the Code of Civil Procedure does not lie, the case should be remitted to the High Court for consideration as a petition under article 227 of the Constitution. We are unable to accede. A petition under article 227 of the Constitution is different from revision under section 115 of the Code of Civil Procedure. The two procedures are not interchangeable though there are some common features. It must, however, be emphasised that we are not dealing in this appeal with the constitutional powers of the High Court under article 227 of the Constitution nor are we concerned with the powers of the High Court regulating appeals under the Kerala High Court Act, 1958. We are concerned in this case whether the High Court, in view of the scheme of the Act, had jurisdiction to interfere under section 115 of the Code of Civil Procedure. We reiterate that to vest the High Court with any such jurisdiction would be contrary to the scheme of the Act, would be contrary to the public policy, and would be contrary to the legislative intent as manifest from the different sections of the Act.
In that view of the matter, the appeal must be allowed on that ground alone and it is not necessary for us to refer to the other grounds. We must necessarily overrule the decision of the Full Bench of the Kerala High Court referred to hereinbefore.
Before we conclude, we must, however, note that Shri Poti appearing for the tenant has conceded that rent should be increased to Rs. 500 per month for the premises in question, as the existing rent is too low. The appeal is accordingly allowed and we direct on the concession of Shri Poti that rent would be Rs. 500 per month from this date. The judgment and order of the High Court are set aside. In the facts and circumstances of this case, there will be no order as to costs. M.L.A. Appeal allowed.