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1985 DIGILAW 388 (KER)

KUNJAMMA v. GEORGE

1985-12-01

SUKUMARAN, THOMAS

body1985
Judgment :- 1. This matter has been referred to a Division Bench by a learned single judge as he considered that the question involved in this case is of general importance which requires to be heard by a Bench of this Court. The question relates to the interpretation of the proviso to S.14 of the Kerala Buildings (Lease and Rent Control) Act, 1965 (for short the Act'), regarding proper forum for preferring a revision. 2. Facts necessary for the disposal of this revision are these: An order of eviction has been passed by a Rent Control Court, which was confirmed in appeal. After the death of the landlord, one of his sons (the present respondent) filed an execution petition on behalf of himself and also as the power of attorney-holder of his brother, being the legal representatives of their deceased father. Without issuing any notice to the tenant (judgment-debtor) the Munsiff has ordered delivery on 8-1-1979 and the Amin reported that the delivery was effected on 8-1-1979. The judgment-debtor had challenged the said order for delivery and also the report of the Amin. He filed E.A. No. 64 of 1979 before the Munsiff 's Court for setting aside the delivery kychit holding that the delivery has not been actually effected. Alternatively he prayed for a re-delivery, in case the delivery is found to have been validly effected. The Munsiff has allowed the said E. A. and set aside delivery and also the delivery kychit. He ordered the E. P. to be re-admitted to the file. Against the said order of the Munsiff, an application was filed by the present respondent before the Sub Court, Kottarakara for revision under S.14 of the Act. The said revision was allowed by the Sub Judge as per his order dated 25-6-1980. It is that order which is under challenge in this Civil Revision Petition. 3. The only point urged by the learned counsel for the petitioner is that the Sub Judge, Kottarakka has no jurisdiction to entertain a revision under S.14 of the Act. 4. The learned counsel for the respondent has raised a preliminary objection that this revision petition cannot be maintained at all without joining the other legal representative of the original decree-holder. The only point urged by the learned counsel for the petitioner is that the Sub Judge, Kottarakka has no jurisdiction to entertain a revision under S.14 of the Act. 4. The learned counsel for the respondent has raised a preliminary objection that this revision petition cannot be maintained at all without joining the other legal representative of the original decree-holder. While admitting the fact that this respondent and the judgment debtor alone were the parties in the revision petition filed before the Sub Court, Kottarakkara, the learned counsel has contended that inasmuch as the order impugned is one of dismissing the E. A. No. 64 of 1979 the advantage of that order has enured to the benefit of his co-legal representative also and hence a reversal of that order cannot be made without him on the party array. The decisions cited by him are Gouri Amma v. Gopalakrishna Panicker (1966 KLT. 715), Gopala Pillai v. Chellappan Pillai (1966 KLT. 1154) and Ammukutty Amma v. Madhavi Amma (1971 KLT. 50). In those decisions the maintainability of the appeals without all the parties in whose favour the decree appealed against stands were found against. Those decisions cannot help the respondent herein, for, the present one is not an appeal, but only an application to exercise the supervisory jurisdiction under S.115 of the Code of Civil Procedure. Dismissal of a revision on the technical ground of non joinder of a necessary party is not to be resorted to, since the result of an exercise of supervisory jurisdiction is binding on all concerned. At the most, this Court may have to issue notice to the other legal representative also in this revision. But in this case the said person cannot have any possible grievance because in the E. P. signed by the respondent he claims that he is acting on his own as also on behalf of his brother who had given him a power of attorney to represent biro in this execution proceedings. Therefore, we are not persuaded to dismiss this revision merely on the ground that the other legal representative of the landlord is not made a formal party in this petition. 5. While coming to the main question to be decided it is necessary to quote below the proviso to S.14 of the Act. "Execution of orders... Therefore, we are not persuaded to dismiss this revision merely on the ground that the other legal representative of the landlord is not made a formal party in this petition. 5. While coming to the main question to be decided it is necessary to quote below the proviso to S.14 of the Act. "Execution of orders... x x x x x x x x Provided that an order passed in execution under this section shall not be subject to an appeal but shall be subject to revision by the Court to which appeals ordinarily lie against the decisions of the said Munsiff". 6. The simple question, in turn, is whether the Sub Court, Kottarakkara is the court to which an appeal ordinarily lies from the decree passed by the Munsiff, Punalur. 7. The right of appeal is provided by S.96 of the Code of Civil Procedure, and the forum of appeal is provided by S.13(1) of the Kerala Civil Courts Act, 1957. The relevant portion of that Section as amended by Act 22 of 1973 reads as follows: "Appellate jurisdiction of District Court and Subordinate Judge's Court: (1) Appeals from the decrees and orders of a Munsiff's Court and where the amount or value of the subject matter of the suits does not exceed ten thousand rupees from the original decrees and orders of a Subordinate Judge's Court shall, when such appeals are allowed by law, lie to the District Court: Provided that whenever a Subordinate Judge's Court is established in any district at a place other than the place where the District Court is stationed, appeals from the decrees or orders of the Munsiff's Courts within the local limits of the jurisdiction of such Subordinate Judge's Court may be preferred in such Subordinate Judge's Court". (As the second proviso is not relevant in the case that is omitted). 8. It is to be noted here that the Subordinate Judge's Court is established at Kottarakkara with territorial jurisdiction over the areas covering the local limits of the Munsiff's Court, Punalur also. The District Court is situated at Quilon only. It is not in dispute that appeals from the decrees of the Munsiff's Court, Punalur are usually (if not always) preferred in the Subordinate Judge's Court, Kottarakkara. 9. S.13(1) of the Civil Courts Act thus confers power on two courts to entertain appeals against decrees passed by the Munsiff's Court, Punalur. The District Court is situated at Quilon only. It is not in dispute that appeals from the decrees of the Munsiff's Court, Punalur are usually (if not always) preferred in the Subordinate Judge's Court, Kottarakkara. 9. S.13(1) of the Civil Courts Act thus confers power on two courts to entertain appeals against decrees passed by the Munsiff's Court, Punalur. They are the District Court, Quilon and the Sub Court, Kottarakkara. Both the courts cannot entertain an application for revision under S.14 of the Act because the proviso allows such revision to be preferred only to that court in which the appeal 'ordinarily' lies. It cannot be said that appeals would ordinarily lie in both the said courts from the decrees of the Munsiff's Court, Punalur. 10. The word 'ordinarily' is given different meanings as can be understood in the context in which that word is used. Considering the context in which that word appears in the relevant section, the following meanings are helpful for its interpretation. It means: "normal; usual; often; something regular etc". (Lexicon Websters Dictionary 1978 edition). If the word 'ordinarily' in the proviso is to be understood in its plain meaning, then the court, in which the appeals are normally preferred, or usually filed, is the court which can exercise the revisional jurisdiction under S.14 of the Act. 11. The learned counsel for the petitioner has cited the decision reported in Kuldip Singh v. The State of Punjab (AIR. 1956 SC. 391). In that decision the words "appeals ordinarily lie", as contained in S.195(3) of the Code of Criminal Procedure, were considered. There, although a senior Sub Judge and the District Court, both had jurisdiction to entertain an appeal against the decrees passed by the junior Sub Judge, the Senior Sub Judge was held to be not an authority to which the appeals ordinarily lie. Though at first blush, reliance on this decision may appear to be sufficient to hold that the Sub Court, Kottarakkara is not the court in which appeals from decrees of the Munsiff Court, Punalur ordinarily lie, a closer reading of the decision reveals that the said decision does not help the stand taken by the learned counsel for the petitioner. Though at first blush, reliance on this decision may appear to be sufficient to hold that the Sub Court, Kottarakkara is not the court in which appeals from decrees of the Munsiff Court, Punalur ordinarily lie, a closer reading of the decision reveals that the said decision does not help the stand taken by the learned counsel for the petitioner. The Supreme Court, in the said decision, has referred to S.39 of the Punjab Courts Act, 1918, which provides that an appeal lies from orders and decrees of a Sub Judge to the District Court, if the value of the suit does not exceed Rs. 5,000/-, and to the High Court in other cases. But S.39(3) of that Act has empowered the High Court to issue a notification that appeals lying to the District Court can be preferred to any other Subordinate Judge. The Punjab High Court availed of that power and had issued a notification conferring appellate powers on the Senior Subordinate Judge from orders or decrees passed by the other Subordinate Judges. It was in that background the Supreme Court had to consider whether the appeals would ordinarily lie to the senior Subordinate Judge. It was held that would not. But there is a noticeable distinction between the power of the Sub Judge under the Kerala Act and that in the Punjab Act, which can be found out from Para.19 of the decision. As per the notification issued by the Punjab High Court, appeals were allowed to be preferred to a senior Sub Judge from decrees or orders passed by any other Subordinate Judge "in two classes of cases which are specified". Dealing with this power the Supreme Court has observed in Para.20 of that decision that: "Applying the rule we have set out above, the appeal to the Senior Subordinate Judge cannot be termed "ordinary" because the special appellate jurisdiction conferred by the notification is not the ordinary jurisdiction of the Senior Subordinate Judge but an additional power which can only be exercised in a certain limited class of cases" (emphasis supplied) The Supreme Court has on that ground observed that it cannot be said that the appeals from the courts of the various Subordinate judges 'ordinarily' lie to the Senior Subordinate Judge. In a decision reported in Krishnan Dayal v. General Manager, Nor. Rly (AIR. In a decision reported in Krishnan Dayal v. General Manager, Nor. Rly (AIR. 1954 Punjab 245) the word 'ordinarily' appearing in R.2046 of the Indian Railway Establishment Code was considered. In that Code a ministerial servant is required to retire at the age of 55 years and at the same time if he continues up to the age of 60 years, it is provided, that he should ordinarily be retained in service. Khosala, J. has observed that the word 'ordinarily' means "in a large majority of cases". The same word appearing in the same Code is given an identical meaning by the Supreme Court in the decision reported in Kailash Chandra v. Union of India (AIR. 1961 SC. 1346). 'Ordinarily' means "in the large majority of cases but not invariably". 12. Judged from the above standards, we are of the view that by the term'ordinarily' the legislature would have intended that the revision must be preferred to such of the appellate courts to which appeals are usually or very often filed from the decrees of the Munsiff. There is no doubt, and it is not disputed also, that appeals are usually preferred before the Subordinate Judge's Court, Kottarakkara from the decrees of the Munsiff of Punalur. We, therefore, hold that the revisional jurisdiction under the proviso to S.14 of the Act, from the orders of the Munsiff. Punalur can be exercised by the Subordinate Judge, Kottarakkara. Thus, there is no jurisdictional error in the order under attack. We accordingly dismiss this revision, without any order as to costs. Dismissed.