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1976 DIGILAW 234 (KER)

KANAKAMMA v. SIVASANKARAN NAIR

1976-11-02

P.JANAKI AMMA

body1976
Judgment :- 1. The petitioner in an application filed under S.11 of the Kerala Buildings (Lease & Rent Control) Act (for Short 'the Act') has filed this revision petition. The respondent was a tenant of a building belonging to him. An order of eviction was passed by the Rent Control Court, Trivandrum on 19 21974 on the ground that the respondent made default of payment of rent and also on the ground that the building was required by the petitioner for the purpose of reconstruction. The respondent claimed Kudikidappu right in respect of the building. The matter was referred to the Land Tribunal who held that the building was not a hut. An order of eviction was passed in due course which was confirmed in appeal A revision petition was filed under S.20 of the Act before the District Court. The District Court confirmed the order of the Rent Control Court and the Appellate authority. The respondent preferred C.R.P. 1418 of 1974 before this Court challenging the finding of the Rent Control Court and the appellate authority and the District Court regarding her alleged Kudikidappu right. This Court dismissed the revision petition but allowed time to vacate the building. After the disposal of the revision petition, the respondent filed I. A. 13261 of 1974 before the Rent Control Court under S.11(2) (c) of the Buildings (Lease & Rent Control) Act for vacating the order of eviction on deposit of the arrears of rent. The Rent Control Court dismissed the petition The appellate authority confirmed the order. In a revision petition filed against the order under S.20 of the Act, the District Court allowed the petition and directed the tenant to deposit the arrears due till the date of the order along with the costs incurred by the landlord within one month from that date. This order is challenged before this Court. 2. The contention put forward on behalf of the petitioner is that S.11(2) (c) is not applicable to the order of the High Court exercising powers of revision and, therefore, unless the deposit is made within the time prescribed by the Rent Control Court or within such extended period, the order of eviction is liable to be executed. 2. The contention put forward on behalf of the petitioner is that S.11(2) (c) is not applicable to the order of the High Court exercising powers of revision and, therefore, unless the deposit is made within the time prescribed by the Rent Control Court or within such extended period, the order of eviction is liable to be executed. Therefore, the point for consideration is whether the period of one month referred to in S.11 (2) (c) is available for deposit of arrears when the final order passed is that of the High Court in revision No ruling of this Court interpreting Sec 11 (2) (c) has been pointed out. 3. S.11(2) (c) reads: "The order of the Rent Control Court directing the tenant to put the landlord in possession of the building shall not be executed before the expiry of one month from the date of such order or such further period as the Rent Control Court may in its discretion allow; and if the tenant deposits the arrears of rent with interest and cost of proceedings within the said period of one month or such further period, as the case may be, it shall vacate that order." 4. The contention put forward is that the revisional jurisdiction of the High Court is confined to the four corners of S.115 of the Code of Civil Procedure and therefore, the principle of merger that is usually applied in the cases of orders and decrees passed in appeal is not available in the case of orders passed in revision. Reference has been made in this connection to the decision in State v. Guruviah Naidu (AIR. 1968 Madras 137), a case which arose under the Madras General Sales tax Act of 1939. The decision recognises the general principle that the order appealed against merges in the appellate order and that the appellate order is the only effective and enforceable order but states that this principle. is not unqualified in its application. The decision may not be of help in interpreting S.11 (2) (c) of the Act. 5. Another case which has been referred to is Palleri Chandu v. Abdul Kader Badsha (ILR.1960 Kerala 1110). The case arose under the Buildings (Lease and Rent Control) Act of 1959. is not unqualified in its application. The decision may not be of help in interpreting S.11 (2) (c) of the Act. 5. Another case which has been referred to is Palleri Chandu v. Abdul Kader Badsha (ILR.1960 Kerala 1110). The case arose under the Buildings (Lease and Rent Control) Act of 1959. There was an order of eviction passed against the tenant in that case under the Madras Buildings (Lease and Rent Control) Act, 1949 on 21st July, 1958 by the District Judge in revision, which was confirmed by this Court. After the coming into force of the Kerala Act of 1959, a petition was filed by the tenant to avoid the order of eviction under S.34 of the new Act which conferred the option to the tenants to avoid orders of eviction passed between 12th February, 1958 and 3rd April, 1959. The petition under S.34 was filed in the District Court. The landlord then contended that the proper forum for the tenant to agitate his right under S.34 was either the Rent Control Court or the High Court which passed the final order in revision and not the District Court. The question arose as to whether the order of eviction passed by the District Court merged in the order of the High Court. A Division Bench of this Court observed as follows: "The exercise of the revisional jurisdiction of the High Court under S.115 of the Code of Civil Procedure is not the same or similar to the exercise of the appellate jurisdiction. While acting under S.115, the High Court will interfere with the order of the Subordinate Court only if it is satisfied of the existence of one or more of the grounds specified in that section. If the High Court is not so satisfied, it will refuse to exercise its jurisdiction under that section. It will not be correct to say that the refusal to interfere in revision amounts to a confirmation of the order of the Subordinate Court. The position is different in the case of an appeal. When once an appeal is entertained, the appellate judgment may be for confirming, varying or reversing the decree from which the appeal is preferred, as is indicated by R.32 of Order XLI of the Code of Civil Procedure. The position is different in the case of an appeal. When once an appeal is entertained, the appellate judgment may be for confirming, varying or reversing the decree from which the appeal is preferred, as is indicated by R.32 of Order XLI of the Code of Civil Procedure. The decision in the appeal will be the final decision, no matter whether it is one confirming, varying or reversing the decree or order appealed against. Even where the appellate court has merely confirmed the decree or order of the lower court, there will be a merger of the lower court's order in the order of the appellate court. The dismissal of C.R.P 731/1958 by the High Court on account of its refusal to interfere with the order of the District Court cannot be equated to the dismissal of an appeal by the High Court against the order of the District Court and the consequent confirmation of that court's order. It follows, therefore, that the order passed by the District Court in C.R.P. 1/1958 ordering the eviction of the tenant from the building remains the final order in the proceedings initiated by the landlord against the tenant." The reasoning followed in the above case has no force in view of the decision of the Supreme Court in Shankar v. Krishna (AIR 1970 SC. 1). The case arose under the Bombay Rents, Hotel and Lodging House Rates Control Act of 1947. After an order in revision passed by the High Court the defeated party moved under Art.226 and 227 of the Constitution for vacating the order. In that connection, the scope of the revisional jurisdiction of the High Court came up for consideration. The Supreme Court referred to the roll wing passage in Nagendra Nath Dey v. Suresh Chandra Dey (59 Ind App 283 at page 287: AIR. 1932 PC. In that connection, the scope of the revisional jurisdiction of the High Court came up for consideration. The Supreme Court referred to the roll wing passage in Nagendra Nath Dey v. Suresh Chandra Dey (59 Ind App 283 at page 287: AIR. 1932 PC. 165 at p. 167): "There is no definition of appeal in the Code of Civil Procedure, but their Lordships have no doubt that any application by a party to an Appellate Court, asking it to set aside or revise a decision of a subordinate Court, is an appeal within the ordinary acception of the term..." The Supreme Court further observed: "Now when the aid of the High Court is invoked on the revisional side it is done because it is a superior Court and it can interfere for the purpose of rectifying the error of the Court below. S.15 of the Code of Civil Procedure circumscribes the limits of that jurisdiction but the jurisdiction which is being exercised is a part of the general appellate jurisdiction of the High Court as a superior Court. It is only one of the modes of exercising power conferred by the Statute; basically and fundamentally it is the appellate jurisdiction of the High Court which is being invoked and exercised in a wider and larger sense. We do not, therefore, consider that the principle of merger of orders of inferior Courts in those of superior Courts would be affected or would become inapplicable by making a distinction between a petition for revision and an appeal." 6. There is also no distinction between cases where the appellate authority or the revisional authority interferes with the decision of the subordinate authority and cases where such appellate or revisional authority confirms the decision of the subordinate authority. The point has been dealt with the Supreme Court in Commissioner of Income-tax, Bombay v. Amritlal-Bhogilal and Co., (1959 SCR. 713: AIR. 1958 SC. 868) in the following passage: "There can be no doubt that, if an appeal is provided against an order passed by a tribunal, the decision of the appellate authority is the operative decision in law If the appellate authority modifies or reverses the decision of the tribunal, it is obvious that it is the appellate decision that is effective and can be enforced. In law the position would be just the same even if the appellate decision merely confirms the decision of the tribunal. As a result of the confirmation or affirmance of the decision of the tribunal by the appellate authority the original decision merges in the appellate decision and it is the appellate decision alone which subsists and is operative and capable of enforcement." The identical principle has been affirmed in Collector of Customs v. East India Commercial Co. (AIR. 1963 SC. 1124) in these words: "It is this principle, viz., that the appellate order is the operative order after the appeal is disposed of, which is in our opinion the basis of the rule that the decree of the lower court merges in the decree of the appellate court, and on the same principle it would not be incorrect to say that the order of the original authority is merged in the order of the appellate authority whatsoever its decision - whether of reversal or modification or mere confirmation." 7. One other ground on which the order passed by the District Court is challenged is that in the instant case, the revision before the High Court was confined to the question of Kudikidappu and the ground relating to arrears of rent had not been taken up and, therefore, the order in revision has no effect on the question of arrears of rent. The contention has no force, in the light of the principles laid down by the Supreme Court in the case already referred to. It goes without saying that if the tenant's contention that he is a Kudikidappukaran had been accepted by the High Court, the order of eviction on the ground of arrears of rent would have been of no avail. 8. In this connection, I may also refer to the decision of this Court in Kurien v. Saramma Chacko (1964 KLT.1 (F.B.)) which arose under the Kerala Buildings (Lease and Rent Control) Act of 1959. S.11 (2) (b) of that Act also provided for deposit of arrears of rent after the order for eviction. The question arose as to whether the Rent Control Court meant the appellate and revisional Courts. S.11 (2) (b) of that Act also provided for deposit of arrears of rent after the order for eviction. The question arose as to whether the Rent Control Court meant the appellate and revisional Courts. The Full Bench held: "We are of the view that the expression "the Rent Control Court" does not necessarily mean only the original Rent Control Court in all the provisions where that expression occurs; and the expression will have that meaning only where that restricted meaning will not lead to any anomaly or absurdity. That expression in S.11 (2) (b) will include both the appellate and the revisional authorities as well. Consequently, the deposit made by the appellant in this case was proper and in time." 9. The language of S.11 (2) (c), 18 and 20 in the new Act is similar to that of the corresponding provisions in the Act of 1959. It is true that the deposit in the above case was after the disposal of a revision petition by the District Court and not the High Court. The Act does not specifically provide for a revision by the High Court of the order passed under S 20. The revisional powers of the High Court are derived from the general law contained in S.115 CPC. Even so it is upto the High Court in the exercise of its revisional powers either to pass an order of eviction or to vacate an order of eviction passed by the District Court in revision. Therefore, the major part of the reasoning adopted by the Full Bench would apply to the final order of the High Court. In the result, the revision petition is dismissed. The parties will bear their costs. Dismissed.