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1964 DIGILAW 81 (KER)

Mariyan v. State of Kerala

1964-03-10

P.GOVINDA NAIR

body1964
Judgment :- 1. The short question arising for determination in this writ application is whether the writ petitioner, the tenant of the building who had been ordered to be evicted from the building both by the Rent Control Court and by the Appellate Authority, the Subordinate Judge, can be heard to say in this writ application that the Revisional Authority (In this case it was the Additional District Judge who heard the revision taken by the petitioner) had no jurisdiction to hear the revision petition and on that ground seek the quashing of the order passed in revision. Ex. P-1 is the order of the Additional District Judge passed in revision. 2. A revision is provided by S.20 of the Kerala Buildings (Lease and Rent Control) Act, 1959. S.20 runs as follows: "20. Revision: (1) In cases where the appellate authority empowered under S.18 is a Subordinate Judge, the District Court, and in other cases the High Court, may, at any time, on the application of any aggrieved party, call for and examine the records relating to any order passed or proceedings 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 incident to all proceedings before the High Court under subsection (1) shall be in its discretion." 3. In this case, the Appellate Authority under S.18 was admittedly the Subordinate Judge. The District Court was, therefore, the Revisional Authority. The contention that is raised by counsel on behalf of the petitioner is that the Additional District Judge cannot be considered to be "the District Court". He invited my attention to S.3 of the Kerala Civil Courts Act, 1957, which enacts: "3. Establishment of District Courts: (1) For the purposes of this Act, the Government may, by notification in the Gazette, divide the State into civil districts ... and alter the limits or the number of such districts. He invited my attention to S.3 of the Kerala Civil Courts Act, 1957, which enacts: "3. Establishment of District Courts: (1) For the purposes of this Act, the Government may, by notification in the Gazette, divide the State into civil districts ... and alter the limits or the number of such districts. (2) The Government shall establish a District Court for each district and a judge (hereinafter called the District Judge) shall be appointed to such court." Counsel then invited my attention to S.4 of the Kerala Civil Courts Act and said that Additional District judges may be appointed and that an Additional District Judge shall discharge all or any of the functions of the District Judges under the Act (Kerala Civil Courts Act) which the District Judge may assign to him or which under the provisions of S.7 of the Act may be instituted before him and in the discharge of those functions he shall exercise the same powers as the District Judge. 4. Emphasis was laid on the fact that the Additional District Judge will have the same powers as the District Judge in the discharge of his functions only in respect of matters which the District Judge may assign to him or which under the provisions of S.7 may be instituted before him. My attention was also drawn to S.11 of the Civil Courts Act and it was urged that the jurisdiction of the District Court and the Subordinate Judge's Court only pertains to all original suits and proceedings of a civil nature. Counsel on behalf of the petitioner contended that the proceeding under the Kerala Buildings (Lease and Rent Control) Act does not give rise to any civil proceeding within the meaning of S.11 of the Civil Courts Act. On this basis it was contended that the Authority who heard the revision petition, which though instituted before the District Court was transferred by the District Judge to the Additional District Judge's file, had no jurisdiction to hear the revision petition. I will assume, without deciding, for the purposes of this case that the Additional District Judge was incompetent to hear the revision petition. Even so, I am of the view that the writ applicant having not raised this contention before the Additional District Judge should not now be allowed to raise that point in support of this writ petition. I will assume, without deciding, for the purposes of this case that the Additional District Judge was incompetent to hear the revision petition. Even so, I am of the view that the writ applicant having not raised this contention before the Additional District Judge should not now be allowed to raise that point in support of this writ petition. The principle behind this view has been stated in fairly powerful language in a decision of the Bombay High Court in Gandhinagar Motor Transport Society v. State of Bombay AIR. 1954 Bombay 202. This is what Their Lordships said: "But this principle is different when the petitioner comes to this court for a writ. The Court must tell the petitioner: 'It was open to you to raise that point before the tribunal whose order you are challenging. You have sat on the fence, you have taken a chance of the tribunal deciding in your favour, and it is not open to you now to come to us and ask for a writ." And, as I understand the decisions of this Court and that of the Travancore-Cochin High Court which have been fairly uniform for nearly a decade, the principle enunciated by the Bombay High Court and laid down much earlier in an English decision in Rex v. Williams Phillips, Ex-Parte (1914) I. K. B. 608 has been followed at least on five occasions. See P.M. John v. State 1958 KLT. 568, Venkitasubramonia Iyer v. Catholic Bank of India Ltd. 1957 KLT. 411, Gopalan v. Central Road Traffic Board, Trivandrum 1958 KLT. 410, Kumaraswamy Reddiar v. Noordeen 1960 KLT. 778, and Kumaran v. First Additional Income-tax Officer, Kozhikode 1960 KLT. 1340. Notwithstanding this fairly long array of decisions against him, counsel on behalf of the petitioner ventured to suggest a distinction that this principle which I have stated above can apply only in cases of an irregular or excessive exercise of jurisdiction and cannot touch cases where the point raised goes to the root of the matter and which would affect jurisdiction to such an extent as to make the orders passed by the authorities a nullity. Reliance in support of this distinction was sought to be drawn from the observations of Kania, C. J. in United Commercial Bank Ltd. v. Their Workmen AIR. 1961 SC. 230. 5. Reliance in support of this distinction was sought to be drawn from the observations of Kania, C. J. in United Commercial Bank Ltd. v. Their Workmen AIR. 1961 SC. 230. 5. The distinction between the exercise of a jurisdiction which is nonexistent and an irregular exercise of jurisdiction is too well known. But the cases that were quoted above are about the discretionary exercise of jurisdiction by this Court in acting under Art.226 of the Constitution and in regard to such exercise of jurisdiction I am unable to discern any distinction between a case of total lack of jurisdiction and acting in excess of jurisdiction. The principle is that this Court refuses to exercise its jurisdiction in favour of a writ applicant who, as observed by the Bombay High Court, sat on the fence, took the chance of the decision before that authority and then turned round and challenged the jurisdiction of the authority. 6. I dismiss this writ application, but make no order as to costs.