K. C. ABDULLA v. SALVADORE MASCARANHAS — 1982 DIGILAW 96 (KAR)

K. S. PUTTASWAMY, J. ( 1 ) ANOTHER classic case of abuse of the process of this Court that should have met its watery grave on 4-1-1982, on which day the case was posted for preliminary hearing, but, alas that did not happen. On the other hand, this case has lingered on from that day with a series of interim orders made from time to time. In order to highlight the abuse of the process of the Court and the contentions urged by sri S. K. Venkataranga Iyengar, learned senior Advocate appearing for the petitioner with his usual and remarkable perseverance, it is necessary to notice in the first instance the facts that are not in dispute. ( 2 ) ONE Salvadore Mascarenhas was the owner of residential premises bearing door no. 25 524j (1) situated at ward No. 25 of Mangaiore city. On or about 11-8-1966 the said owner leased the said premises to the petitioner on a monthly rent of Rs. 150 (Annexure A ). In the course of my order I will refer to Salvadore Mascarenbas who is now dead and is represented by his legal representatives as the landlord. ( 3 ) ON 20-2-1975 the landlord instituted a petition in HRC No. 52 of 1975 in the court of the Munsiff, Mangalore (Annexure B) for eviction of the petitioner under cls. (c) and (h) of S. 21 of the Karnataka Rent Control Act, 1961 (hereinafter referred to as the Act) which was naturally resisted by the tenant on diverse grounds. On 9 10 1975 the landlord filed ia No. I under S. 29 (3) and (4) of the act for stoppage of the proceedings on the ground that the tenant had failed to deposit the arrears of rent due by him which was opposed by the tenant. On 7-4-1976 the learned Munsiff found that the tenant was due in a sum of Rs, 2,550 for the period from 1-11-1974 to 31-3-1976 (Annexure-C) and made an order in these terms :"ia No. I is allowed, directing the respondent to pay to the petitioner or deposit in Court Rs. 2,550 the arrears of rent between 1 11-1974 and 31-3-1976, within one (1) month from the date of this order, failing which, further proceedings shall be stopped and the respondent directed to put the petitioner in possession of the schedule premises, with costs". 2,550 the arrears of rent between 1 11-1974 and 31-3-1976, within one (1) month from the date of this order, failing which, further proceedings shall be stopped and the respondent directed to put the petitioner in possession of the schedule premises, with costs". Notwithstanding the abovs concessional order, the tenant did not deposit the aforesaid sum within the stipulated time and, therefore the learned Munsiff made a further order on 9-9-1976 (Annexure-D) in these terms :"further proceedings are stopped under S. 29 (4) of the Karnataka Rent control Act, the Respondent shall place the petitioner in possession of the schedule premises with costs, within one (1) month from the date of this order". Against the said order of the learned munsiff, the petitioner filed a revision petition on 13-10-1976 before the District judge, SK, Mangalore in CRP No. 135 of 1976. On 15-11-1976 the learned District judge dismissed the said revision petition and upheld the order of the learned Munsiff (Annexure F ). ( 4 ) ON 24-2 1977 the petitioner challenged the aforesaid orders in WP No. 2127 of 1977 under Art. 226 of the Constitution, as this Court had not decided on the maintainability of a revision petition under S. 115 of CPC. On 25-2 1977 this Court issued rule nisi in the case and stayed the operation of the said orders. In view of the Full Bench ruling of this Court in haricharandas v. V. K. Satyanarayan (1) the petitioner filed a memo on 23-11 1978 praying for permission to convert that writ petition into a civil revision petition which was allowed by this Court on the same day in these terms. "learned counsel for the petitioner has sought for permission to convert the writ petition into a civil revision petition in view of the Full Bench ruling of this Court in CRP Nos. 376 and 377 of 1977. Permission sought for is granted. Register the case as civil revision petition and post the same for admission before an appropriate Bench". After the said order, matters did not move with the speed and despatch that is expected from this office or from the learned Counsel for the petitioner. 376 and 377 of 1977. Permission sought for is granted. Register the case as civil revision petition and post the same for admission before an appropriate Bench". After the said order, matters did not move with the speed and despatch that is expected from this office or from the learned Counsel for the petitioner. ( 5 ) ON or about 313 1980, the petitioner presented a formal memorandum of revision petition impleading the landlord as a respondent in that petition, though he had died by that time, which was registered by this Court on 1-4-1980 as CRP No. 972 of 1980 and was posted for admission with IA No. I on 15 4 1980, On 15 -4-1980 the case was adjourned to 17 4-1980 on which day Mahendra, J. directed the case to be called after vacation and granted interim stay of the orders. On 26-5-1980 the case was posted for admission before the same learned Judge, who adjourned the case to next week. Accordingly, the above case was posted for admission before the same learned Judge on 4-6 1980. ( 6 ) EVEN before the memorandum of re vision petition was presented by the petitioner, one Sri H. Thipperudrappa, an advocate of this Court had entered caveat annexing vakalathnama executed by the legal representatives of the landlord. Evidently taking note of that fact and the submission made thereto by Sri Thipperudrappa, the then learned Counsel for the petitioner that was appearing in that case, brought on record the two legal representatives of the respondent/landlord and then addressed his arguments on merits in the case. On a consideration of the contentions urged and submissions made in that case, Mahendra, J. , made an order on 4 6 1980 in these terms:"no ground calling for interference under S. 115 of CPC. CRP is rejected. By consent of parties, the petitioner is given time till 31 12 1981 to quit and deliver vacant possession of the premises to the respondent landlord subject to the petitioner paying rent regularly on or before 10th of each month without making any default. On the petitioner committing default in paying the arrears or in paying the rents for two months, the respondent is entitled to possession". As the petitioner did not vacate the premises within the time stipulated in the aforesaid order, the LRs. On the petitioner committing default in paying the arrears or in paying the rents for two months, the respondent is entitled to possession". As the petitioner did not vacate the premises within the time stipulated in the aforesaid order, the LRs. of the landlord sued out execution and are even stated to have obtained possession of the premises. ( 7 ) ON 11 12 1981 the petitioner presented this WP under Arts. 226 and 227 of the Constitution challenging the orders dated 7-4-1976 and 9-9-1976 of the learned munsiff (Aunexures C and D) and the order dated 15 11-1976 of the learned District judge (Annexure F) impleading the landlord as respondent No. 1 and his two legal representatives as respondents 2 and 2 (a), the learned Munsiff and the learned District judge as respondents 3 and 4 with an interim prayer in these terms : -"this Hon'ble Court may be pleased to issue an interim order staying the operation of the impugned orders dated 9-9-1976 passed in IA No. II in HRC no. 52 of 1975 on the file of 3rd respondent and also stay of operation of order dated 5-11 4976 passed in CRP No. 135 of 1976 on the file of the 4th respondent and the alleged consent order dated 4-6-1980 in CRP No. 972 of 1980 on the file of this Hon'ble High Court, in the interest of justice". On 4-1-1982 Bopanna, J. , before whom the writ petition was posted for preliminary hearing, made an order in these terms:"pest this petition for preliminary hearing after notices to respondents. The petitioner shall not be dispossessed from the suit premises for a period of three weeks from this date". On 11-1-1982 the petitioner filed IA No. 1 for a direction to restore possession of the premises delivered on 4-1-1982 in contravention of the interim order made by this Court on the same day. On that application Bopanna, J. , on 18-1-1982 made an order in these terms: 'issue notice on IA No. I to respondents 1, 2 and 2 (a) by emergent notice. Interim order will continue until further orders". IA No. II filed by respondent No. 2 for vacating the interim order was not ultimately granted. On that application Bopanna, J. , on 18-1-1982 made an order in these terms: 'issue notice on IA No. I to respondents 1, 2 and 2 (a) by emergent notice. Interim order will continue until further orders". IA No. II filed by respondent No. 2 for vacating the interim order was not ultimately granted. But, on 2-3-1982 I made an order staying the proceedings filed by the petitioner for restitution before the executing Court till the disposal of this petition and posted the case for preliminary hearing in 'group-B' on 10 3 1982. On 11th, 12th and 19th March, 1982 I heard the case in full and reserved the case for orders. ( 8 ) WHILE adverting to the above legal proceedings including the order made by this Court in CRP No. 972 of 1980, the payments made by him toward arrears of rents either to the landlord or to his legal representatives, the petitioner has assailed the orders impugned in this writ petition on a large number of grounds. But, in the view I propose to take, I do not consider it necessary to set out all those grouods. ( 9 ) AS seen earlier, the orders impugned in this writ petition had been challenged by the petitioner before this Court originally in a writ petition which was later converted into a revision petition and the same had been rejected by this Court. In this view, the first and the foremost question that arises for my determination is whether this petition under Arts. 226 and 227 of the Constitution is at all maintainable. ( 10 ) SRI lyengar urged that this petition challenging the impugned orders was maintainable, notwithstanding the order made by Mahendra, J. in CRP No. 972/80. Sri lyengar maintained that the rejection of the revision petition at the admission stage without a speaking order or without giving reasons does not amount to affirming the orders challenged in that revision petition resulting in their merger in the order made by this Court and, therefore, it is open to the petitioner to challenge them over again in this writ petition ignoring the order made by this Court in CRP No 972 of 1980. In support of his contention Sri lyengar, while strongly relying on the ruling of the Supreme court in Daryao v. State of UP (2), urged that the principles enacted in Shankar ramachandra v. Krishnaji Dattatraya (3) had no application. ( 11 ) EARLIER I have set out the order made by Mahendra, J. , in its entirety. On an examination of the merits of the contentions urged for the petitioner before him, the learned Judge found that there were no merits in any of them and rejected the revision petition holding that there were no grounds for interference under S. 115 of the CPC. 11 (a ). Firstly, it is difficult to hold that the revision petition was rejected by this Court without giving reasons. Secondly, the principle of rejection of a writ petition at the preliminary hearing stage without giving reasons by a High Court cannot properly be made applicable to a proceeding before it in its revisional or appellate jurisdiction. A summary rejection of a revision or an appeal by a High court is as much a final order as is an order made after its admission. In either case the orders of the subordinate Courts would merge themselves in the order of the high Court and it is not open to a person who has availed of the legal remedy of a revision or an appeal to ignore the same and over again challenge the orders of the subordinate Courts in a separate and independent proceeding under Arts. 226 and 227 of the Constitution. Any such attempt by a litigant is fraught with grave danger and will destroy the very legal system of our country. In these circumstances, I find it difficult to uphold the submission of Sri lyengar that it is open to the petitioner to ignore the order made by this Court in the earlier revision petition. ( 12 ) IN Daryao's (2) case followed in workmen of Cochin Port Trust v. Board of trustees of the Cochin Port Trust (4) the supreme Court was not examining a similar position as has arises in this case. ( 12 ) IN Daryao's (2) case followed in workmen of Cochin Port Trust v. Board of trustees of the Cochin Port Trust (4) the supreme Court was not examining a similar position as has arises in this case. In those cases the Supreme Court was examining the effect of a summary order-made on a petition under Art. 226 of the Constitution in maintaining a petition before it under Art. 32 of the Constitution ignoring the order made by the High Court and the bar of res judicata that arises in such cases and vice cersa. But, that is not the position in the present case. In my view, the principles enunciated in Daryao's (2) case and the Workmen of Cochin Port Trust's (4) case do not really govern the question. In my view the dicta in AIR 1979 Kerala 18 does not help Sri lyengar. ( 13 ) ON almost similar facts as in the present case, the Supreme Court in Shankar ramachandra Abhayankar's (3) case had occasion to examine the maintainability of a petition under Arts. 226 and 227 of the Constitution. In that case, the supreme Court disagreeing with the view taken by the High Court of Bombay observed thus:"6. 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 purrpose of rectifying the error of the Court below. S. 115 of the CPC 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. 7. It may be useful to refer to certain other decisions which by analogy can be of some assistance in deciding the point before us. 7. It may be useful to refer to certain other decisions which by analogy can be of some assistance in deciding the point before us. In U. J. S. Chopra v. State of Bombay, AIR 1955 SC 633 the principle of merger was considered with reference to S. 439 of Cr. PC which confers revisional jurisdiction on the High court. In the majority judgment it was held, inter alia, that a judgment pronounced by the High Court in the exercise of its appellate or revisional jurisdiction after issue of a notice and a full hearing, in the presence of both the parties, would replace the judgment of the lower Court, thus constituting the judgment of the High Court the only final judgment to be executed in accordance with law by the Court below. In chandi Prasad Chokhani v. State of Bihar (1962) 2 SCR 276 - ( AIR 1961 SC 1708 ) it was said that save in exceptional and special circumstances this Court would not exercise its power under Art. 136 in such a way as to by pass the High court and ignore the latter's decision which had become final and binding by entertaining an appeal directly from orders of a Tribunal. Such exercise of power would be particularly inadvisable in a case where the result might lead to a conflict of decisions of two Courts of competent jurisdiction. In our opinion the course which was followed by the high Court, in the present case, is certainly one which leads to a conflict of decisions of the same Court". On these principles which govern the question it has to be held that the orders impugned in this writ petition have merged in the order made by this Court in CRP no. 972 of 1980 and this petition challenging those orders under Arts. 226 and 227 of the Constitution is not maintainable and is, therefore, liable to be rejected in limine. ( 14 ) ASSUMING that this petition is maintainable, in such an event also, this is a fit case in which this Court should decline to interfere with the impugned orders which were not interfered by this Court in revisional jurisdiction. 226 and 227 of the Constitution is not maintainable and is, therefore, liable to be rejected in limine. ( 14 ) ASSUMING that this petition is maintainable, in such an event also, this is a fit case in which this Court should decline to interfere with the impugned orders which were not interfered by this Court in revisional jurisdiction. In this connection the observations made at para 8 in Shankar ramachandra Abhayankar's (3) case are apposite and they read thus:"even on the assumption that the order of the appellate Court had not merged in the order of the single Judge who had disposed of the revision petition, we are of the view that a writ petition ought not to have been entertained by the High Court when the respondent had already chosen the remedy under S. 115 of the CPC. If there are two modes of invoking the jurisdiction of the High Court and one of those modes has been chosen and exhausted it would not be a proper and sound exercise of discretion to grant relief in the other set of proceedings in respect of the same order of the Subordinate Court. The refusal to grant relief in such circumstances would be in consonance with the anxiety of the Court to prevent abuse of process as also to respect and accord finality to its own decisions". ( 15 ) ANOTHER equally important ground on which this Court should decline to interfere with the orders is that the order made by this Court in CRP No. 972 of 1980, at any rate so far as it related to the grant of time, was a consent order. The petitioner who has consented to that order had taken full benefit of if and it is only after the expiry of the period granted by this Court, has sought to challenge the impugned orders. The conduct of the petitioner is such that he is not entitled to invoke the equitable jurisdiction of this court under Arts. 226 and 227 of the Constitution. ( 16 ) LET me assume that the petitioner can ignore the order made by this Court in crp No. 972 of 1980 and this petition is maintainable. The conduct of the petitioner is such that he is not entitled to invoke the equitable jurisdiction of this court under Arts. 226 and 227 of the Constitution. ( 16 ) LET me assume that the petitioner can ignore the order made by this Court in crp No. 972 of 1980 and this petition is maintainable. But, still in challenging the impugned orders there is a delay of more than 5 years, for which the petitioner has not given any satisfactory explanation either in his petition or at the hearing of this case. In my view there is no justification to ignore this inordinate delay of more than 5 years on any ground. In this view also, this is a fit case in which this court should decline to exercise its extraordinary jurisdiction in favour of the petitioner. ( 17 ) IN the view I have taken on the maintainability of the petition or on ground of refusal to exercise the extraordinary jurisdiction, it is not necessary for me to notice and examine the merits of the contentions urged for the petitioner. ( 18 ) BEFORE parting with this case, it is necessary to notice the intemperate and unedifying language used by the petitioner against the order made by Mahendra, J. , in CRP No. 972 of 1980, which reads thus:"but, His Lordship Hon'ble Justice mahendra before whom the matter on 4-6-1980 scuttled it at admission stage asking the counsel appearing in the absence of the petitioner to report settlement in which case he offered to give time literally to quit. This was done notwithstanding the fact that the proceedings before his Lordship had abated as the landlord, the 1st respondent died in "1979 and his legal representatives were not brought on record within 15 days allowed by law. Law should, doubtless prevail, notwithstanding involuntary settlement virtually extorted and the tenant should get the benefit by strict enforcement of law and rules, as was done in the case of the petitioner in s. 29 (4) petition". While hearing this case I noticed the above passage and felt extremely unhappy over the same. Law should, doubtless prevail, notwithstanding involuntary settlement virtually extorted and the tenant should get the benefit by strict enforcement of law and rules, as was done in the case of the petitioner in s. 29 (4) petition". While hearing this case I noticed the above passage and felt extremely unhappy over the same. Interrupting the proceedings I read out the above passage in Court and requested Sri Iyengar who was being assisted by Sri Abdur Rahim Ahmed, an advocate of this Court that had drafted and filed this petition, who before resuming his practise was a number of the karnataka judiciary, whether he would justify the aforesaid intemperate and unedifying language employed in the petition. Sri lyengar without any reservation and very rightly stated that he would not justify the language used and readily expressed regret for himself and for Sri abdur Rahim Ahmed. Sri Abdur Rahim ahmed who was also present in Court expressed his personal regret over the same. As Sri Abdur Rahim Ahmed has expressed his unqualified regret. I do not propose to initiate any action in the matter. But, I do hope that this will be the last occasion when Sri Abdur Rahim ahmed would use such language against any Judge. ( 19 ) A narration of the facts and the contentions urged for the petitioner reveal the frivolous, unjust and inequitable nature of the proceedings instituted by him and persisted with unwarranted vehemence with the sole object of delaying and defeating the execution of the decree that has become final. In these circumstances, I am of the opinion that this is a fit case in which I should levy exemplary costs of rs. 1,000. ( 20 ) IN the light of my above discussion, i reject this writ petition at the preliminary hearing stage with exemplary costs of respondents 2 and 2 (a ). Advocate's fee Rs. 1,000. --- *** --- .