ABDUL KHADER v. ABDULRAHIMAN MASTER — 1987 DIGILAW 554 (KER)

Judgment :- 1. A tenant filed an application for review of the order passed by District Court in revision under S.20 of the Kerala Buildings (Lease and Rent Control) Act, 1965 (for short 'the Act'). That application was dismissed by the District Court. Hence the petitioner has come to this Court invoking jurisdiction under Art.227 of the Constitution. 2. Facts are these: A landlord filed an application before the Rent Control Court for an order of eviction of his tenant on different grounds, but the only ground now survives is bona fide need to reconstruct the building as per S.11(4)(ii) of the Act. Though the Rent Control Court and the Appellate Authority did not favour the landlord, he got an order from the District Court, Tellicherry in exercise of the power of revision. The order of the District Court is dated 4-2-1986. The tenant challenged the order in this Court under S.115 of the Code of Civil Procedure (for short 'the Code'). But this Court dismissed his application in the light of the decision of the Supreme Court which held that a second revision is not maintainable. (Vide Aundal Ammal v. Sadasivan Pillai, 1987 (1) KLT 53). He then filed an Original Petition under Art.227 of the Constitution challenging the order of the District Court. The Original Petition was dismissed in limine Subsequently, the tenant learnt that the licence obtained by the landlord for constructing a new building ceased to be effective (since the period of its validity expired as early as 14-12-1982). He filed an application under 0.47. R.1 of the Code before the new District Court of Kasaragod. The tenant urged that the order of eviction was vitiated by an apparent error in that the Court was not told that the landlord did not have a valid licence to construct a new building. He chose to file the said application before the District Court, Kasaragod, since the village in which the building is situate now falls within the limits of the territorial jurisdiction of the District Court, Kasaragod. The District Court dismissed the application by Ext. P2 order dated 5-8-1987. It is the legality of the said order which is challenged now. He chose to file the said application before the District Court, Kasaragod, since the village in which the building is situate now falls within the limits of the territorial jurisdiction of the District Court, Kasaragod. The District Court dismissed the application by Ext. P2 order dated 5-8-1987. It is the legality of the said order which is challenged now. The application for review was dismissed mainly on three grounds, (a) District Court, Kasaragod does not have jurisdiction to entertain the application for review of the order passed by the District Court, Tellicherry, (b) The application for review is barred by limitation, as the same was filed only seventeen months after the passing of the order of eviction, (c) There is lack of bona fides in filing the application since the tenant did not mention about the expiry of the licence period either when he filed second revision under S.115 of the Code or when he filed the earlier Original Petition in this Court. 3. On 4-2-1986 when the District Court, Tellicherry gassed an order of eviction in exercise of revisional jurisdiction, the new District Court of Kasaragod was not in existence. It was only on 26-3-1986 (as per GO (Ms) 31/86/Home dated 13-2-1986) that the District Court, Kasaragod, came into being. Its territorial jurisdiction was defined by GO (Ms) 527/86 dated 26-3-1986. All the villages now filling within the limits of the territorial jurisdiction of the new District Court were earlier within the jurisdiction of the District Court, Tellicherry. 4. Under 0.47 R.1 of the Code an application for review shall be filed before "the court which passed the decree or made the order." District Court, Kasaragod, is admittedly not the court which passed the order. Bat learned counsel contended that new District Court gets jurisdiction to entertain the application for review by virtue of S.150 of the Code. 4. Under 0.47 R.1 of the Code an application for review shall be filed before "the court which passed the decree or made the order." District Court, Kasaragod, is admittedly not the court which passed the order. Bat learned counsel contended that new District Court gets jurisdiction to entertain the application for review by virtue of S.150 of the Code. That Section reads thus: "Save as otherwise provided, where the business of any Court is transferred to any other Court, the Court to which the business is so transferred shall have the same powers and shall perform the same duties as those respectively conferred and imposed by or under this Code upon the Court from which the business was so transferred." The contention is that with the formation of the new District Court all the business relating to cases in respect of those villages now included in the new District must be deemed to have been transferred to the new District. When jurisdiction is conferred on a court as per provisions of the Kerala Civil Courts Act, 1957, such jurisdiction is based on territorial as well as pecuniary limits. As per S.3(2) of the said Act Government has the power to establish a District Court for each District. As the Government formed a new revenue District of Kasaragod, a notification under S.3(2) of the said Act became a necessary follow up step. Thus, what is to be decided is whether by the inclusion of those villages within the jurisdictional limits of the new District, business in respect of such villages has been transferred from the District Court, Tellicherry to the new District. There is nothing in the two Government Orders referred to above to indicate that business was also transferred to the new District Court. There was no transfer of the proceedings pending before the District Court, Tellicherry to the new District Court as provided in S.24 of the Code. The mere fact that a new District Court was formed, comprising of some of the villages which formed part of the District Court, Tellicherry, cannot lead to the inference that business relating to those villages got automatically transferred to the new District Court. 5. A similar doubt may arise when the question of execution of the decrees passed by the District Court, Tellicherry comes up. 5. A similar doubt may arise when the question of execution of the decrees passed by the District Court, Tellicherry comes up. Under S.38 of the Code a decree can be executed either by the Court which passed it, or by the Court to which it is sent for execution. When such a question arose, a Full Bench of the Madras High Court held that execution application cannot be filed in the new court merely because the village wherein the subject matter falls has been transferred to the new District Court subsequent to the date of passing of the decree. (Vide Seeni Nadan v. Muthuwamy Pillai, AIR 1920 Madras 427). As a Division Bench of the Madras High Court took a different view, later the question was again considered by another Full Bench in Ramier v. Muthu Krishna (AIR 1932 Madras 418). It was held that Seeni Nadan's case was correctly decided and hence no rethinking was necessary. The principle laid down in those two decisions were followed by the Division Benches of the Mysore High Court and Andhra Pradesh High Court. (Vide Gopalakrishna v. Laxman, AIR 1964 Mysore 34 and Hanumayya v. Venkata Subbayya, AIR 1964 Andhra Pradesh 68). A Full Bench of the Travancore-Cochin High Court had also considered the same question (vide Maryarul Nadar v. Nanu Pillai, AIR 1957 TC 69). It was held by the Full Bench that "by the mere transfer of territorial jurisdiction from one Court to another all powers of the first Court will not automatically be transferred to the transferee Court and when there has been only a mere transfer of territorial jurisdiction from one Court to another and nothing is said, whether expressly or impliedly, about the transfer of pending or past business, S.150 of the Code of Civil Procedure cannot be invoked for the purpose of enabling the transferee Court to get jurisdiction in respect of the pending and past business." In that case, a new Subordinate Judge's Court for the area in which the immovable properties involved was established. Prior to the establishment of the new court, a District Court, had passed a decree on a hypothecation bond. Execution proceedings were taken out in the new Subordinate Judge's court. It was held that the new court cannot get jurisdiction even by virtue of S.150 of the Code. Prior to the establishment of the new court, a District Court, had passed a decree on a hypothecation bond. Execution proceedings were taken out in the new Subordinate Judge's court. It was held that the new court cannot get jurisdiction even by virtue of S.150 of the Code. Though all the above mentioned decisions were in respect of S.38 of the Code, the principle involved therein is nevertheless applicable here. The District Court, Kasaragod has therefore rightly held that it has no jurisdiction to entertain the application for review. 6. Even otherwise, petitioner is not entitled to get the order reviewed, as there is no error apparent on the face of the record. If the period of licence granted by the local authority for reconstruction of the building lapsed during pendency of proceedings under S.11 of the Act, and if the court passed an order of eviction in respect of such building, it cannot be said that the order is erroneous. Requirement of law is that the landlord should satisfy the court that he has the plan and licence, if any required. This Court had held that the plan and licence need not be produced along with the petition at the first instance itself. (Vide Ammini v. Leelamma 1977 KLT 441). Even if the landlord obtains the licence only during the pendency of proceedings, court can have the satisfaction that the landlord has the licence. That being the position, court need not refuse to have the satisfaction merely because the period mentioned in the licence expired during pendency of rent control proceedings. It happens usually that the period of such licence gets expired during pendency of rent control proceedings because of the long duration of such pendency in three tiers of courts. The landlord cannot, normally, be blamed for such delay. In most of the cases the landlords are anxious to have petitions filed by them disposed of as early as possible. But the delay in disposing of cases under the rent control proceedings is mostly due to the tightness of the schedule and the work load of the court. Hence a landlord shall not suffer the consequences of the period of licence getting lapsed during pendency of eviction proceedings. But the delay in disposing of cases under the rent control proceedings is mostly due to the tightness of the schedule and the work load of the court. Hence a landlord shall not suffer the consequences of the period of licence getting lapsed during pendency of eviction proceedings. When the Rent Control Court, or the Appellate Authority, or the Revisional Authority, as the case may be, is satisfied that the landlord has a plan and licence to reconstruct building, his petition is not to be dismissed on a finding that the period of licence expired during the pendency of proceedings under the Act. It is true that there is a possibility of a contumacious or recalcitrant landlord adopting dilatory tactics and also trying to take advantage of the expiry of the period of licence by refusing to reconstruct the building. Bat it must be remembered that court has ample powers, in such cases, to provide necessary safeguards in the order for protecting the tenant's right of first option to have the reconstructed building allotted to him. One such safeguard is the power to impose a condition in the order that actual delivery be given to the landlord only if the landlord produces a renewed licence or a new licence granted by the local authority for the purpose of reconstruction of the building. The first and second provisos in Clause (iv) of S.11(4) of the Act can also be invoked to meet such eventualities as and when necessary. The power conferred by the third proviso is not restricted by any period. The Rent Control Court can issue any direction regarding the reconstruction of the building. 7. It is open to the tenant to move the District Court, Tellicherry, for incorporating of such safeguards in the impugned order in exercise of the power under 0.47 R.1. If any such motion is made, it is for the said District Court to decide whether there are sufficient reasons to condone the delay in making application for review. Though provisions of the Limitation Act are not applicable to the Rent Control Court and the Appellate Authority, the position is different in the case of District Court. All the powers of the Civil Court under the Code could be exercised by the District Court while hearing revision petitions. S.23 of the Act does not limit the power of the District Court. All the powers of the Civil Court under the Code could be exercised by the District Court while hearing revision petitions. S.23 of the Act does not limit the power of the District Court. (Vide Haneefa v. Subhalekshml Ammal,1980 KLT 627). In this connection it is apposite to bear in mind the observations of the Full Bench in Vareed v. Mary (1968 KLT 583). "In exercising the revisional power under this Section the revisional authority functions as a court and not as a persona designata in as much as the jurisdiction has been conferred under the Act on the court itself. Since the statute in the case before us has conferred the revisional jurisdiction on one of the ordinary courts of the country viz., the District Court, the procedure as well as the orders and decrees of that court will be governed by the ordinary rubs of civil procedure". (Though the said decision was overruled by the Supreme Court in Aundal Ammal's case (cited supra) on another aspect, the observations extracted above hold good and ware not disapproved by the Supreme Court). Subject to the aforesaid observations, I dismiss this Original Petition in limine.