CHANDRIKA AMMA v. MOHAMMED — 1984 DIGILAW 169 (KER)

Judgment :- 1. The question that is referred for decision by a Division Bench is whether on the mere filing of a revision petition before this Court under S.115 of the Code of Civil Procedure and its dismissal at the admission stage the tenant could still bargain for another one month provided under S 11(2)(c) of the Kerala Buildings (Lease and Rent Control) Act, 1965, hereinafter referred to as the Act. 2. The landlord, the revision petitioner, filed a petition for eviction under S. 1.1(2)(b) of the Act on the ground that rent is in arrears, which was allowed by the Rent Control Court. However, three months' time to pay the arrears was granted by the order of the Rent Control Court under S 11(2)(c) of the Act. The tenant, did not pay the arrears, but filed an appeal The appeal was dismissed. But the appellate authority granted another two months' time for depositing the arrears. The respondent did not deposit the arrears, but filed a revision petition under S.20 of the Act before the District Court. The District Court dismissed the revision petition, but granted another two months' time from 23-1-1978, i.e. the date of dismissal of the revision petition. Without paying the arrears, the tenant filed a revision petition under S.115 CPC. before this Court as CRP. No. 1584 of 1978 and that was dismissed at the admission stage, by order dated 14-6-1978 There is no dispute that the arrears of rent was deposited before the Rent Control Court within one month after the dismissal of the Civil Revision Petition. 3. Subsequently, the tenant-respondent filed IA No. 1533 of 1978 before the Rent Control Court under S.11(2) (c) of the Act for vacating the eviction order. The Rent Control Court held that the deposit was not made in time and dismissed the IA. However, the Appellate Authority reversed that decision and that decision was confirmed by the District Court in revision under S 20 of the Act. The present revision is filed under S 115 CPC. against the said order of the District Court. 4. The Rent Control Court held that the deposit was not made in time and dismissed the IA. However, the Appellate Authority reversed that decision and that decision was confirmed by the District Court in revision under S 20 of the Act. The present revision is filed under S 115 CPC. against the said order of the District Court. 4. S.11(2) (c) of the Act reads as follows: "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." 5. In the ruling reported in Kanakamma v. Sivasankaran Nair (1976 KLT. 911) this Court has held that the period of one month would be available from the date of disposal of a revision filed before the High Court under S.115 CPC. In the said decision Janaki Amma J. considered a prior decision of this Court reported in Pallari Chandu v. Abdul Kader Badsha (ILR.1960 Ker.1110). There this Court had held that 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. However, in view of the decision of the Supreme Court reported in Shankar v. Krishnaji (AIR. 1970 SC. 1) the latter decision held that the reasoning of the former decision has no force. 6. The case in Shankar v. Krishnaji (AIR. 1970 SC. 1) arose under the Bombay Rents, Hotel and Lodging House Rates Control Act of 1947. In that case, after the order of dismissal of a revision petition passed by the High Court, the defeated party moved the High Court under Art.226 and 227 of the Constitution for vacating the order. The Bench which heard the writ petition held that in spite of the dismissal of the petition under S 115 CPC. there could be interference under Art.226 and 227 of the Constitution on a proper case being made out. The Bench which heard the writ petition held that in spite of the dismissal of the petition under S 115 CPC. there could be interference under Art.226 and 227 of the Constitution on a proper case being made out. After going into the merits of the case it was held that the orders of the courts below were liable to be set aside. In an appeal against this order the Supreme Court considered the scope of S.115 CPC. and observed in para 3, as follows: "Now as is well known S.115 of the Civil Procedure Code empowers the High Court to call for the record of any case which has been decided by any Court subordinate to it and in which no appeal lies to it. It can interfere if the subordinate Court appears to have exercised the jurisdiction not vested in it by law or to have failed to exercise the jurisdiction so vested or to have acted in the exercise of its jurisdiction illegally or with material irregularity. The limits of the jurisdiction of the High Court under this section are well defined by a long course of judicial decisions. If the revisional jurisdiction is invoked and both parties are heard and an order is made the question is whether the order of the subordinate Court has become merged in the order of the High Court. If it has got merged and the order is only of the High Court, the order of the subordinate Court cannot be challenged or attacked by another set of proceedings in the High Court, namely, by means of a petition under Art.226 or 227 of the Constitution. It is only if by dismissal of the revision petition the order of the subordinate Court has not become merged in that of the High Court that it may be open to a party to invoke the extraordinary writ jurisdiction of that Court. Later on the Supreme Court observed as follows in Para.5: "It would appear that their Lordships of the Privy Council regarded the revisional jurisdiction to be a part and parcel of the appellate jurisdiction of the High Court. This is what was said in Nagendra Nath Dey v. Suresh Chandra Dey, 59 Ind. App 283 at p. 287: (AIR. 1932 PC. This is what was said in Nagendra Nath Dey v. Suresh Chandra Dey, 59 Ind. App 283 at p. 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 acceptation of the term" Similarly in Raja of Rammand v. Kamid Rowthen, 53 Ind App 74: (AIR. 1926 PC. 22) a civil revision petition was considered to be as appropriate form of appeal from the judgment in. a suit of small causes nature. A Full Bench of the Madras High Court in P.P.P. Chidambara Nadar v. C.P.A. Rama Nadar, AIR. 1937 Mad. 385 had to decide whether with reference to Art.182(2) of the Limitation Act 1908 the term'appeal' was used in a restrictive sense so as to exclude revision petitions and the expression 'appellate court' was to be confined to a Court exercising appellate, as opposed to revisional powers. After an exhaustive examination of the case law including the decisions of the Privy Council mentioned above the Full Bench expressed the view that Art.182(2) applied to civil revisions as well and not only to appeals in the narrow sense of that term as used in the Civil Procedure Code " 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 purpose of rectifying the error of the Court below. S.115 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." 7. 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. As a general rule, the appellate judgment stands in the place of the original judgment for all legal purposes. In other words, the decree of the lower court merges in the decree of the superior court. However the Supreme Court has thus cautioned in State of Madras v. Madurai Mills (AIR. 1967 SC. 681). "In our opinion, the application of the doctrine depends on the nature of the appellate or revisional order in each case and the scope of the statutory provisions conferring the appellate or revisional jurisdiction. For example in Amritlal Bhogilal and Co's case, 1958-34 ITR.130: (AIR. 1958 SC. 868) (supra) it was observed by this Court that the order of registration made by the Income-tax Officer did not merge in the appellate order of the Appellate Commissioner, because the order of registration was not the subject-matter of appeal before the appellate authority." 8. In Kanakamma's Case (1976 KLT 911) it is not clear whether the Civil Revision Petition under S.115 CPC. was dismissed in limine or dismissed after hearing the opposite party also. The report does not contain the name of the counsel for the respondent. In Shankar's case (AIR 1970 SC. 1) both parties were heard before the Civil Revision Petition was disposed of. The only case that was cited before us where a decision on the point whether there will be a merger in a case where the revision petition is dismissed in limine is the decision reported in Rukkiya's case (1984 KLT 364). In that case, Paripoornan J. relying on the decision reported in Pallpri Chandu's case (ILR.1960 Ker.1110) held that the dismissal of a proceeding at the stage of admission does not have the effect of merger of the decision of the subordinate forum with that of the higher forum The learned judge distinguished the ruling reported in AIR. 1932 PC. 165 and AIR 1970 SC. 1. on the ground that in those cases the civil revision petitions were disposed of after hearing the opposite parties. 1932 PC. 165 and AIR 1970 SC. 1. on the ground that in those cases the civil revision petitions were disposed of after hearing the opposite parties. Incidentally it may be observed that the decision reported in Rukkiya's case (1984 KLT 364) itself is a case of dismissal of a civil revision petition in limine. 9. We are unable to agree with this decision. R.11 of Order XLI CPC. provides for dismissal of appeal without sending notice to the lower court and the respondent, if the appellate court thinks fit so to do. Whether the judgement of the trial court merges with such an order of dismissal under R.11, has come up for consideration before different High Courts. The High Courts of Andhra Pradesh, Punjab and Hariyana, Madras, Calcutta and Allahabad have held that the order of the lower court merges with such an order of dismissal under R.11 (Vide Ramanna v. Sreeramulu:: AIR. 1958 Andhra Pradesh 768; Hakam Singh v. Jaswant Singh: AIR. 1974 Punjab and Haryana 235; Subbamma v. Madhavarao : AIR. (33) 1946 Mad. 492; Altap Ali v. Jamsur Ali: AIR 1926 Cal. 938 and Durga Singh v.Wahid Raza : AIR. 1965 All 226). Out of these, the Allahabad High Court was dealing with a case of dismissal of a second appeal by the High Court under Order XLI rule H. There also it was held that there is no difference in essence between a judgment dismissing an appeal under Order XLI rule II CPC. and that made under Order XLI R.37 We may also extract a passage from the judgment of Subba Rao C. J (as he then was) in Ramanna v. Sreeramulu (AIR 1958 Andhra Pradesh 768): "(18) If the argument of the learned counsel for the respondents be accepted, it would lead to an anomaly which should be avoided unless express provisions of the Civil Procedure Code sustain it. The dismissal of an appeal in limine is certainly the formal expression of an adjudication conclusively determining the rights of the parties with regard to all or any of the matters in controversy in the appeal. It is, therefore, a decree as defined under S.2(2), C.P.C It is common-place that the decree of the trial court merges with that of the appellate court. It is, therefore, a decree as defined under S.2(2), C.P.C It is common-place that the decree of the trial court merges with that of the appellate court. But if the respondents' contention is accepted, there will be two decrees, one that of the appellate court and the other that of the trial court. Each by force of law can be executed: There is no acceptable reason or principle why the legislature intended to have this consequence. The only reason that can be suggested is that the respondent may have had no notice of the appeal and, therefore, the appellate decree may be ignored. The non-issue of notice to the respondent may be a ground for holding that any decree made against him is not binding on him but it cannot efface the legal effect of a valid decree made by the appellate court." 10. Under S.22 of the Kerala Small Cause Courts Act, 1957, a revision of decrees and orders of small cause courts before the High Court is provided. A dismissal of such a revision in limine, according to the reasoning stated above, will amount to a decree. If the view that the decree of the lower court will not merge in the order of the High Court that is likely to create an anomalous situation as noticed in the Andhra Pradesh decision cited above. For all purposes by such a revision the aggrieved party is asking the superior court to set aside or revise a decision of a subordinate court and it has to be taken that the decree of the lower court merges in the decree of the superior court. 11. As held in the ruling reported in Shankar's case (AIR 1970 SC. 1), revisional jurisdiction is part and parcel of the appellate jurisdiction of the High Court. Therefore, there cannot be any distinction between an order of dismissal of an appeal under R.11 of Order XLI, CPC, and an order of dismissal in limine of a civil revision petition under S.115 CPC. Therefore, we hold that in this case the orders of the subordinate courts have merged in the order of dismissal of the Civil Revision Petition in limine and accordingly, the tenant is entitled to the benefit under S.11(2)(c) of the Act. Therefore, we hold that in this case the orders of the subordinate courts have merged in the order of dismissal of the Civil Revision Petition in limine and accordingly, the tenant is entitled to the benefit under S.11(2)(c) of the Act. Different aspects may have to be examined if the revision is filed under other statutes like the case which was being considered by the Supreme Court in State of Madras v. Madurai Mills (AIR. 1967 SC. 681). In this judgment we express no opinion about such cases. In the result, this civil revision petition is dismissed. There will be no order as to costs. Dismissed.