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1982 DIGILAW 76 (KAR)

BABU. A v. BHASKER SHETTY

1982-03-10

N.D.VENKATESH

body1982
N. D. VENKATESH, J. ( 1 ) THIS revision is directed against an order dated 9 2-1982 of the 1st Addl. Munsiff, mangalore, on IA No. XIII in HRC No, 93 of 1976 pending on his file. ( 2 ) THE petitioner is the respondent in that HRC proceeding. The respondent herein has initiated that proceedipg under s. 21 of the Karnataka Rent Control Act, 1961 (the Act) to evict the petitioner from the premises in question. IA No. XIII was filed by this petitioner stating that that court has no jurisdiction to deal with the landlord's claim that the properties involved were agricultural properties that the Mangalore L?nd Tribunal had declared him as a tenant and that, therefore, the proceeding before it (the Court) should be dropped After hearing the parties concerned the learned Munsify has dismissed ia XIII. ( 3 ) A preliminary objection has been raised in this Court as to the maintainability of this revision. The learned counsel for the respondent, who was heard in the matter, submitted that this revision, filed as it is, under S. 115 of CPC, was not maintainable, since there is an effective alternate remedy open to this petitioner under the Act. He refers to sub-sec. (2) of S. 50 of the Act. On the other hand, it was argued by the learned counsel for the petitioner that to an order of this nature that provision is not attracted, since the implication of the impugned order is merely procedural not affecting the rights of 1m party: ( 4 ) ACCORDING to him a party to the proceeding can invoke sub-sec, (2) of S. 50 challenging the order of the Court only if by that order his rights in the cause are affected. ( 5 ) NORMALLY a revision under S. 115 of cpc is not entertained by this Court if there is an effective alternate remedy. ( 6 ) THE learned coundect for the petitioner in support of his contention refered to above place reliar a few the including two of she Supreme Court. ( 7 ) NOW, S. 30 of the Act stated as follows : "50. Revision :- (i) The High Court may, at any time call for and examine any order passed or or Acroding taken by the Court of Civil Judge under this Act or any order passed by the Controller under Ss. ( 7 ) NOW, S. 30 of the Act stated as follows : "50. Revision :- (i) The High Court may, at any time call for and examine any order passed or or Acroding taken by the Court of Civil Judge under this Act or any order passed by the Controller under Ss. 14, 15, 16 or 17 for the purpose of satisfying itself as to the legality or correctness of such order or proceeding and may pass such order in reference thereto as it thinks fit. (2) The District Judge may, at any time call for and examine any order passed or proceeding taken by the Court of Munsiff referred to in sub-el, (hi) of cl. (d) of S, 3 for the purpose of satisfying himself as to the legality or correctness of such order or proceeding and may pass such older in reference 'hereto as he think, fit. The order of the district Judge shall be final. (3) The cost of and incidental to all preceedings before the High Court or the District Judge shall be in the discretion of the High Court or the District judge, as the case may be". The relevant provision is, sub sec. (2) of s. 50. ( 8 ) IN Govinda v. Mory fernandrs (1) it was sub- sec. (1) of S 118 of the Karnataka land Reforms Act (Act No. 10/61), as it stood then, that came up. That provision reads as follows. : -- "save as otherwise provided in this Act, from every decision or order passed by the Tribunal all appeal the appellate authority and the order of the appellate authority on such appeal shall be final", in that a Division Bench of this court, lying on Central Bank of India v. (2) and Bant Singh Gill v. Shonti pevi (3) has herd as follows : "no appeal lies under S. 118 (1) from such interlocutory orders which do not affect the rights and liabilities of the parties as such and therefore a revision petition i' maintainable under S. 115 of the CPC. The learned Counsel for the petitioner also refened to the two decions of the supreme Court cited above. The learned Counsel for the petitioner also refened to the two decions of the supreme Court cited above. In Central rank of India's (2) case (supra) the Supreme court was considering the ambit and scope of S. 38 (1j of the Delhi Rent Control Act, 1958, which ready as follows:"an appeal shall lie from every order of the Contreller made under this Act to the Rent Control Tribunal (hereinafter referred to as tue Tribunal) consisting of one person only to be appointed by the Central Government by notification in the official Gazette". The Supreme Court was of the view that the words "every order the Controller made under this Act", did not include interlocutory orders, which are merely procedural and do not affect the rights or of the parties. In Bant Singh gill's (3) case the Supreme Court approved the ratio laid down in Central Bank of india's (2) case. The provision that came up to can ideration in Gill's (3) case was s 34 of the and Ajmer Rent Control ac' (38/52 ). S. 34 reads as fallows :"31 (1 ). Any person on aggrieved by any decree or order of a Court passed under this Act may. in such manner as may be prescribed, prefer an appeal- (a) to the Court of the senior subordinate judge, if any, where the value of the case does not exceed two thousand rupees ; provided that where there is no sensor subordinate judge, the appeal that he to the District Judge ; (b) to the Court of the District Judge where the value of the case exceeds two thousand rupee, but does not exceed ten thousand rupees ; and (c) to the High Court, where the value of the case exceeds ten thousand rupees. (2) No second appeal shall lie from any decree or order passed in any case under this Act". 'any decree or order' as used in sub-sec. (1) was given the same import and meaning as it had been given to similar words of S 38 (1) of the Delhi Rent Control Act, 1958, in the Central Bank of india's (2) case. An additional feature in gill's (3) case was that the order impugned therein had held that the suit had not abated and was maiptainable. (1) was given the same import and meaning as it had been given to similar words of S 38 (1) of the Delhi Rent Control Act, 1958, in the Central Bank of india's (2) case. An additional feature in gill's (3) case was that the order impugned therein had held that the suit had not abated and was maiptainable. Even in such a case the Supreme Court held that the decision was only a procedural ore and did not affect the right of the party who had raised that question. The Court has further held that if the trial Court had held that the suit had abated then, that would have been a final order afficting the right of the party and would have had the effect of a decree and before could have been appealed against. The learned Counsel for the peritiorer reying in panchayat on these observetions in Cills (3) case, submitted that what had happened in the instant case was that the trial Court ha 3 held that it had jurisdiction to proceed with the matter which finding has only a procedural implication and that there has been no final adjudication in the proceding and therefore he cannot avail sub- sec (2) of S. 50 and being, however, aggrieved by the order, can only approach this Court under S. 115 of CPC. According to the learned Counsel, if sub sec (2) of S. 50 is construed in the night ot the decisions reford to above we also would reach the tame conclusion. ( 9 ) BUT, if wl ai has. been stated m the afcrtsa'd decisions vicrt iu be or all fours with the facts of this case, then the result envisaged by the learned councel for the petitioner is incapable ; otherwise, not. ( 10 ) S 50 has been extracted above in full. Since we are concerned with sub sec. (2) only, we may note the difference in the wordings of sub sec. (2) with the provisions referred to in The aforesaid decisions. In none of those cases we have a provision similai to sub stc. (2) of S. 50 ot the Act. Under those provision what was provided was for an appeal from everviorder or against any order or decree. (2) with the provisions referred to in The aforesaid decisions. In none of those cases we have a provision similai to sub stc. (2) of S. 50 ot the Act. Under those provision what was provided was for an appeal from everviorder or against any order or decree. But, in the instant case"the Direc , at any time, call for and examine any order raised of proceeding to be by the Court of munsiff for the purpose of satisfying himself as to the legally or correctness of such order or proceeding and may pass such order in reference thereto a he thinks fit". It may be noted that the powers conferred on the District Judges are almost supervisery in futur. The words are of a very wide amplitude, and besides, it is not merely "any order" passed that comes within has revisional power but also proceeding also by it (the court District Munsifff ) Was stoud the District taken. What viculd there would procceding taken means in the context in which they arecused We may note that these word: and not fourd in any of those clauses that had come up tor consideration before ths Supreme Court in the decisions. referred to above. ( 11 ) THE term "proceeding' has several shades of meaning attached to it having regard to the context in which that term is used As observed by the Madras High court in K. J. Ling in v. Jt. CTO (4 ). "the term 'proceeding' is not a technical expression with a definite meaning attached to it, but one the ambit of whose meaning is governed by the statute. Therefore, the meaning to be attributed to the word proceeding' would depend upon the scope of the enactment wherein the expression is used and with reference to the particular con text wherein it occurs" (Head Note ). In that case S 33 of the Madras General sales Tax Act (1 of 1959) provided that "any perton objtcting to an order passed or proceeding recorded under this Act for which an appeal has not been provided for in S. 31, may. file an application for revision of such order or proceeding to the deputy Commissioner". In that case S 33 of the Madras General sales Tax Act (1 of 1959) provided that "any perton objtcting to an order passed or proceeding recorded under this Act for which an appeal has not been provided for in S. 31, may. file an application for revision of such order or proceeding to the deputy Commissioner". Construing that provision the learned Judge further observes in Lingan's (4) case (supra) as follows :"the very action of calling upon a dealer by the notice of compounding under S. 46 is a proceeding under the act. It is a step in aid or action taken by the concerned authority in the whole process of assessing a dealer on his turnover. It, therefore, follows that a revision will lie against such notice to the deputy Commissioner under S. 33 and to the Board of Revenue under S. 35 of the Act. This view is further strengthened by R. 53 of the MGS Rules of 1959" (Head Note ). ( 12 ) WE may further see that the revisional powers of the District Judge reaches to any order pased or "proceeding taken" by the Court. "any order passed", whereat ? ; must be in a cause or action initiated before it. So also, 'proceeding taken' means "proceeding taken" in a cause or action. The following observations made in Butterworth's Words and phrases, legally defined, relying on 1 Halsbury's Laws (3rd Edn) 5, 6 at page 182 may be noted : "the term 'proceeding' is frequently used to note a step in an action, and obviously it has that 'meaning in such phrases 'proceeding in any cause or matter'. When used alone, however, it is in certain statutes to be construed as synonymous with, or including 'action'". "proceeding taken by the Court of the munsiff " as used in sub-sec. (2) of S. 50 of the Act may, in the context in which they are used, mean, a step taken by that court in an action, a cause, or a case. In Blake v Summersby (5) the word "proceeding" as used in the Rules of Supreme court, 1883, came up for consideration and it was argued that "proceeding" in the rule meant a proceeding "towards" and not "after" judgment. In that case judgment had already been pronounced. They wanted an order directing foreclosure absolute. In Blake v Summersby (5) the word "proceeding" as used in the Rules of Supreme court, 1883, came up for consideration and it was argued that "proceeding" in the rule meant a proceeding "towards" and not "after" judgment. In that case judgment had already been pronounced. They wanted an order directing foreclosure absolute. In this connection Kay, J. , observed as follows :- "anything that precedes the final judgment or order is, in my opinion, a 'proceeding' in the action". In the same way "proceeding taken by the Court of the Munsiff ' may also mean "proceeding (aken in the action preceding the final judgment or order". Such a step taken in action preceding the final judgment or order, which also means during the pendency of that action, certainly include all types of interlocutory orders and also an order of the type with which we are presently concerned. ( 13 ) THERE is another way of looking at the matter. Sub sec. (2) of S. 50 of the act confers revisional powers on a fairly senior judicial officer like the District judge, though, in the hierarchy of Courts, the Court of Civil judges are Courts immediately superior to the Courts of Munsiffs. Sub sec. (2) of S. 50, in ambit and scope, is wider than S. 115 of CPC. Curtailing the powers of the District Judges in reviewing interlocutory orders of Munsiffs in Rent Control proceedings by placing a narrow construction on sub-sec. (2) of S. 50 may n t subserve the ends of justice. Besides this, the intention of the legislature. perhaps, also was that District Judges located in District headquarters should have powers of revising all orders of Munsiffs including interlocutory orders. And this is evidently to save ordinary litigants from enormous expenses and trouble which they may otherwise have to incur in pursuing their semedy, at the very first instance, in this Court. ( 14 ) FOR the reasons aforesaid I am of the view that the order impugned is an order amenable to the revisional jurisdiction of the District Judge. ( 15 ) SINCE there is an effective alternate remedy for the petitioner, this revision petition be returned to him or his counsel for presentation to proper Court. --- *** --- .