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1984 DIGILAW 75 (KER)

RUKKIYA v. ABOOBACKER KOYA

1984-03-02

PARIPOORNAN

body1984
Judgment :- 1. The revision petitioners were petitioners in I.A. 5856 of 1983 in R.C. P. No. 139 of 1978 on the file of the Rent Control Court, Kozhikode-II. They are tenants. The respondents are landlords. The Rent Control Court passed an order of eviction against the revision petitioners under S.11(2)(b) of the Kerala Buildings (lease and Rent Control) Act on 31-7-1979. An appeal filed from the said order was dismissed by the appellate authority on 24 9-1981. The revision filed from the aforesaid order was dismissed on 8-8-1983 by the District Court. It is said that the revision petitioners deposited the entire arrears on 6-10-1983. They invoked S 11(2)(c) of the Act (Act 2 of 1965). S.11(2)(c) of the Kerala Buildings (Lease and Rent Control) Act, 1965 is to the following effect: "11(2)(c). 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." 2. Admittedly the arrears were deposited and the court moved more than one month after the order was passed by the District Court in revision. The order in revision was passed on 8-8-1983 and the deposit was made only on 6-10-1983. But the revision petitioners contend that they filed CRP. No. 2646 of 1983 before this court against the order of the District Court passed in revision. The said Civil Revision Petition was dismissed only on 28th September, 1983 and so when the deposit was made on 6-10-1981 the period of one month has not elapsed. The revision petitioners are entitled to get a period of one month from the date of the dismissal of CRP. No. 2646 by this Court on 28-9-1983. 3. It is conceded that CRP. No. 2646 of 1983 was dismissed by my learned brother Justice Sri. K. Sukumaran on 28-9-1983 The revision was dismissed in limine. According to the revision petitioners, the order passed by the District Court in revision on 8-8-1983 has merged in the order passed by this court in CRP. 3. It is conceded that CRP. No. 2646 of 1983 was dismissed by my learned brother Justice Sri. K. Sukumaran on 28-9-1983 The revision was dismissed in limine. According to the revision petitioners, the order passed by the District Court in revision on 8-8-1983 has merged in the order passed by this court in CRP. No. 2646 of 1983 dated 28-9-1983 and so, the period of one month should be calculated from the date of rejection of the Civil Revision Petition by this court, i.e. from 28-9-1983. 4. I am afraid, the contention of the counsel for the revision petitioners is devoid of force. In Palleri Chandu v. Abdul Kader Badsha (ILR.1960 Ker.1110 at page 1115), a case wherein the scope of rejection of a CRP. at the admission stage came up for consideration, Sankaran, C. J. speaking for the Bench held 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. The dismissal of CRP. 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." Similarly in Padmalaya v. Shyamsundar (AIR. The dismissal of CRP. 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." Similarly in Padmalaya v. Shyamsundar (AIR. 1980 Orissa 1) R. N. Misra, J. fas he then was) held as follows: "Judicial view seems to be almost unanimous that dismissal of a proceeding in the higher forum 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." In the light of the above, it cannot be contended that the order passed by the District Court on 8-8-1983 merged in the decision of this court in CRP. No. 2646 of 1983 dated 28-9-1983. So, on 6-10-1983 when the deposit was made and the court's jurisdiction under S.11(2) (c) of Act 2 of 1965 was invoked, the period to deposit the amount, to get the order vacated had already expired. 5. Mr. V.P. Mohan Kumar, counsel for the revision petitioners, contended that revision is only a restricted form of appeal and even if an appeal or revision is dismissed without notice to the opposite party, in law, the order or judgment of the trial court will merge in that of the appellate or revisional court. Counsel placed reliance on the decisions reported in Ramchandra Abhyankar v. Krishnaji (AIR. 1970 SC. 1), Komalchand v. Pooranchand (AIR. 1970 M. P. 199) and Kanakamma v. Sivasankaran Nair (1976 KLT 911) and other decisions to the same effect. In my opinion, these decisions are distinguishable and should be confined to the facts disclosed in those cases. It is true that in Ramchandra Abhyankar's case (AIR. 1970 SC. 1) the Supreme Court held that the exercise of revisional jurisdiction by the High Court under S.115 of the Code of Civil Procedure is part of the general appellate jurisdiction of the High Court. It should be noted, as held in Padmalaya v. Shyamsundar (AIR 1980 Orissa 1), that it is implicit from the Supreme Court decision that in order to attract "Merger" the revision application should be dismissed on merit and after hearing both sides. It should be noted, as held in Padmalaya v. Shyamsundar (AIR 1980 Orissa 1), that it is implicit from the Supreme Court decision that in order to attract "Merger" the revision application should be dismissed on merit and after hearing both sides. So also, it can be seen that notwithstanding the very wide interpretation for the word 'appeal', that occurred in Art.182(ii) of the Limitation Act 1908, the Judicial Committee of the Privy Council specifically referred to the fact of the disposal of the matter after notice to the opposite party and after hearing him. (Vide Nagendra Nath v. Suresh (AIR 1932 PC. 165)). In Kanakamma's case (1976 KLT. 911), the scope of the revisional order considered and relied on (CRP. 1418 of 1974) was passed on merit and after notice to the opposite parties and hearing them. That was not a case where revision was rejected in limine. In that case, the decision in Palleri Chandu v. Abdul Kader Badsha (ILR 1960 Kerala 1110) was held to have been impliedly overruled in view of the decision of the Supreme Court in Ramchandra Abhyankar v. Krishnaji (AIR 1970 SC. 1). On the facts of that case, the question that is posed herein did not arise for consideration. The disposal of the revision considered in that case (Kanakamma's case, 1976 KLT 911) was on merits and after notice to the opposite parties and hearing them. It is evident from the Supreme Court decision reported in Ramchandra Abhyankar v. Krishnaji (AIR. 1970 SC. 1), and also the Privy Council decision, Nagendra Nath's case (1932 PC. 165), that in order to attract "merger" the relevant decision, in appeal or revision, should be rendered on merit and after notice to the opposite parties and hearing them. Both the aforesaid decisions expressly make mention of this vital fact. Those were not cases in which the appeal or revision was disposed of "in limine". without notice to the opposite parties and without hearing them. So, in my opinion, the decisions cited by the learned counsel for the revision petitioners are distinguishable, and are not relevant for the purpose of considering the question involved in this case which lies, in a very narrow compass as to the effect of an order passed in revision under S.115 of the Code of Civil Procedure rejecting the revision in limine (at the admission stage). So also, the observations contained in the decisions in Komalchand's case (AIR 1970 MP. 199 (203) to the effect that there is no difference whether the appeal is dismissed "after notice or without notice" are too wide. Nonetheless, it is worth mentioning that in that case also, the disposal was one referred to be, "on the merits". In the light of the Division Bench decision in Palleri Chandu v. Abdul Kader Badsha (ILR 1960 Ker.1110) and the decision reported in Padmalaya v. Shyamsundar (AIR 1980 Orissa 1), I have no doubt that there is no merger in a case where the revision was rejected in limine. The observations in Kanakamma's case (1976 KLT 911) to the effect "that the reasoning followed in Palleri Chandu's case (ILR 1960 Ker.1110) has no force in view of the decision of the Supreme Court in Ramchandra Abhvankars case (AIR 1970 SC. 1)" were obiter and may require reconsideration in an appropriate case. The courts below were justified in refusing to vacate the order of eviction passed in the case. The order passed by the District Court in RCRP. No. 14 of 1984 dated 10-2-1984 confirming the order of the appellate authority in RCA No. 297 of 1983 dated 3-2-1984 and that of the Rent Control Court in IA. No. 5856 of 1983 dated 7-12-1983 do not call for any interference. It is seen that the tenants moved the appellate authority by way of IA. No. 5370 of 1983 in RCA. No. 297 of 1983, independently, to extend the time till 6-10-1983. The appellate authority found that the tenants wanted to "dodge and delay matters to the extent possible", and that "there is no bona fides" in their plea and refused to extend the time prayed for. The District Court in RCRP No. 15 of 1984 dated 10-2-1984 agreed with the above conclusion of the appellate authority and dismissed the revision. No argument was advanced before me, attacking the above orders. No other point was raised in this revision. 6. For the above reasons the Revision Petition is without merit. The order of the learned District Judge is perfectly justified in law. There is no jurisdictional error or infirmity or illegality and no interference is called for. The Civil Revision Petition is rejected in limine. Dismissed.