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1989 DIGILAW 508 (KER)

Thankamma v. Krishna Pillai

1989-11-24

SHAMSUDDIN, V.SIVARAMAN NAIR

body1989
Judgment :- Sivaraman Nair, J. 1. This Civil Revision Petition has come up before us pursuant to an order of reference made by our learned brother Varghese Kalliath, J. on the question whether the revision petition is maintainable in view of two decisions of the Supreme Court in Visheh Kumar v. Shanti Prasad, AIR 1980 SC 892, and Aundal Ammal v. Sadasivan Pillai, 1987 (1) KLT 53. 2. We should have thought that the question is not open in view of the decisions of the Supreme Court reported in Syamaraju Hegde v. Venkatesha Bhat,1987 (2) KLT 977 and M/s. Jetha Bai & Sons v. Sunderdas Rathenai,1988(1) KLT 386. In Aundal Ammal (supra), one of the reasons mentioned by the Supreme Court to hold, that the revision under S.115 of the Code of Civil Procedure would not lie against a revisional order under S.20 of the Kerala Buildings (Lease and Rent Control) Act (hereinafter referred to as the Act) was, that "that would mean there would be a trial by four courts, that would be repugnant to the scheme manifest in the different sections of the Act in question. Public policy or public interest demands curtailment of law's delay and justice demands finality with quick disposal of case". An additional reason to support the conclusion was that sub-section (5) of S.18 of the Act clearly stipulates, that a decision of the appellate authority and subject to such decision an order of the rent control court "shall be final" and "shall not be liable to be called in question in any Court of law", except in the manner provided under S.20. The court held, that in view of the finality and the specific bar enacted as above, the, High Court, under S.115 of the Code of Civil Procedure, may not revise a revisional order passed under S.20 of the Act. 3. In Shyamaraju Hedge v. Venkatesha Bhat,1987 (2) KLT 977, another Bench of the Supreme Court took a different view, and held, that "The High Court has powers to entertain revision under S.115 C.P.C. against the revisional order of the District Court. The fact that the order of the District Judge under S.50(2) of Karnataka Rent Control Act, 1961 is made final does not affect the jurisdiction of the High Court under S.115 to revise that order in the absence of any express words the statute taking away such jurisdiction". The fact that the order of the District Judge under S.50(2) of Karnataka Rent Control Act, 1961 is made final does not affect the jurisdiction of the High Court under S.115 to revise that order in the absence of any express words the statute taking away such jurisdiction". The apparent conflict between Aundal Ammal and Shyamaraju Hegde was sought to be reconciled by a Bench of three judges of the Supreme Court in M/s. Jetha Bai & Sons v. Sunderdas Rathenai 1988 (1) KLT 386. The majority, consisting of Sabyasaji Mukherji J., and Natarajan, J. the former being one of the judges in the Bench which decided Aundal Ammal, confirmed Aundal Ammal with specific reference to the provisions contained in S.20 of the Act and S.115 of the Code of Civil Procedure. The court found that the decision in Shyamaraju Hegde (Supra) was occasioned by the removal of the right of appeal from the Karnataka Rent Control Court and the substitution of a two tier instead of a three tier system of courts which was in existence previously. The court observed: "There is, therefore, no conflict between the decision rendered in Aundal Ammal's case (supra) and Shyamaraju's case (supra). As to the question whether a fresh thinking is called for on the scope of S.20 read with S.18(5) of the Kerala Act, we do not find any grounds for reconsidering the view taken in Aundal Ammal's case and on the contrary our renewed discussion of the matter only calls for a reiteration of the view expressed in Aundal Ammal's case". We are, therefore, bound by the decision in Aundal Ammal's case since that decision, as also M/s. Jetha Bai & Sons, was rendered under the Act in question. 4. Counsel for the petitioner referred us to the decision of our learned brother Radhakrishna Menon, J., reported in Anilatmajan v. Manoharan,1988 (1) KLT 877, where it was held, with specific reference to the Act, and S.115 of the Code of Civil Procedure, that "The order, the revisional court would pass under the proviso to S.14 of the Act therefore is revisable under S.115 C.P.C. It should in this connection be remembered that "the Munsiff executes the order passed under the Act not as a person a designata but one filling the office of Munsiff. An order passed by a court subordinate to the High Court is amenable to the revisional jurisdiction of the High Court under S.115 C.P.C. An order passed under the proviso to S.14 is revisable under S.115 C.P.C.". Eventhough that decision was rendered on 30th May, 1988, it contains no reference to M/s. Jetha Bai and Sons, which was decided on 4-2-1988 and reported earlier than Anilatmajan. 5. A similar question, whether a revision under S.115 of the Code could be entertained against an order of the District Court under S.16 of the Telegraph Act came up before this court on two subsequent occasions in Neelandan v. K. S. E. Board, 1988 (2) KLT 656, and K. S. E. Board v. Thampi,1988 (2) KLT 941. In the former, this court found that the determination by the District Judge under sub-section (4) of the dispute as to the persons entitled to receive compensation for apportionment as between them, though final under sub-section (5), the proviso to the latter enables any person to recover by suit the whole or any part of the compensation paid by the telegraph authority from the person who has received the same. The learned judge held, that provision of an alternative remedy in the above proviso inhibits a revision under S.115 of the Code against the order of the District Judge under sub-section (4) of S.16 of the Telegraph Act. The correctness of these two decisions was the subject matter of consideration by a Division Bench in K.S.E. Board v. Cheriyan Varghese, 1989(1) KLT 451. In two separate but concurring judgments, the Division Bench overruled Neelandan (supra) and K. S. E. Board (supra) The reasoning adopted by the Division Bench was that but for the provisions in S.16(5), it would have been open to a person aggrieved by the judgment of the District Court under S.16(4) to file an appeal and a second appeal under the Code of Civil Procedure, and the finality provided by the above sub-section justified invocation of revisional powers under S.115 of the Code. 6. As far as the Kerala Rent Control Act is concerned, the decisions in Aundal Ammal (supra) and M/s. Jetha Bai (supra) are conclusive and we are bound to follow the same. 6. As far as the Kerala Rent Control Act is concerned, the decisions in Aundal Ammal (supra) and M/s. Jetha Bai (supra) are conclusive and we are bound to follow the same. The main considerations stated by the Supreme Court in Aundal Ammal to hold, that a second revision was not entertainable were threefold: (1) that S.18(5)of the Act provided finality to the decision of rent control or appellate authority, except as provided in S.20 and that such decisions shall not be liable to be called in question in a court of law; (2) that a second revision would mean that there would be a trial by four courts and that would be repugnant to the scheme manifest in the different sections of the Act in question; and (3) that public policy or public interest demands curtailment of law's delay and justice demands finality with quick disposal of case; and the language of the provisions of S.18(5) read with S.20 inhibits further revision. 7. It is true that in Shymaraju Hegde (supra), the Supreme Court held, that in spite of finality provided in S.50 of the Karnataka Rent Control Act, the High Court has jurisdiction under S.115 of the Code to revise that order in the absence of any express words in the statute taking away the revisional jurisdiction. As we have stated above, M/s. Jetha Bai (supra) was an attempt by the Supreme Court to reconcile the apparent conflict in Aundal Ammal and Shyamaraju Hegde. The court approved the view in Aundal Ammal, that the Kerala Act was a self-contained Code and therefore a second revision could not be entertained under S.115 of the Code. Dealing with Shyamaraju Hegde, the Court noticed that by the Amendment Act, 31 of 1975, the Karnataka Legislature had removed the provisions of S.48(1) of the Karnataka Rent Control Act, which provided for an appeal against the order of the Rent Controller or the Rent Control Court. It also noticed that S.50 of the Act, as amended, provided for revisions both to the High Court and the District Court. It was noticed, that in the place of a three tier system, the amendment provided only two viz., the original and revisional courts. It also noticed that S.50 of the Act, as amended, provided for revisions both to the High Court and the District Court. It was noticed, that in the place of a three tier system, the amendment provided only two viz., the original and revisional courts. The court held, that it was in the context of this drastic departure from the pre-existing law that the Supreme Court in Shyamaraju Hegde held that a revision was entertainable, with specific reference to Aundal Ammal (supra) and Vishesh Kumar, AIR 1980 SC 892. The court observed: "The Legislature in its wisdom has thought that on account of the ample opportunity given to a party to put forth his case before three courts viz., the Trial Court, the Appellate Court and the Revisional Court, there was no need to make the revisional order of the District Court subject to further scrutiny by the High Court by means of a second revision either under the Act or under the Civil Procedure Code". The Court adverted to the specific objection, that by a strict construction of S.20(1) read with S.18(5), the High Court's power of superintendence over the District Court, even when it functions as a revisional court under S.20(1) of the Kerala Act, will stand forfeited. It was held, that "We may also point out that the Legislature has not taken away and indeed it cannot take away the power of superintendence of the High Court under Art.227 of the Constitution over all courts and tribunals which are within the territories in relation to which the High Court exercises its jurisdiction". 8. We are of the opinion that the emphasis in all the decisions of the Supreme Court, as explained in M/s. Jetha Bai (supra), is an anxiety to reduce the delay in disposal of cases by reasonable reduction in the number of fora. Against orders under S.11 of the Rent Control Act, an appeal under S.18 and a revision under S.20 of the Act were found to provide sufficient opportunities to the aggrieved litigant. We are of the opinion that we shall follow the same reasoning in restricting the number of fora in the matter of execution of orders of rent control court. This shall be in spite of the presence or absence of provision relating to finality as contained in S.18(5) of the Act. We are of the opinion that we shall follow the same reasoning in restricting the number of fora in the matter of execution of orders of rent control court. This shall be in spite of the presence or absence of provision relating to finality as contained in S.18(5) of the Act. We should note that inspite of finality provided in S.16(5) of the Telegraph Act, the Division Bench of this court in K. S. E. Board v. Cherian Varghese, 1989(1) KLT 451, held that a revision would lie. That was against the order determining compensation, apparently since the Act provided only two opportunities and a third and final court was the revisional court under S.115 of the Code. Following the same reasoning as in Aundal Ammal and M/s. Jetha Bai, we hold, that it shall be the anxiety of the courts to reasonably restrict the number of fora, so as to avoid undue delay in Irrigative exercises. We are further of the opinion that this shall be more so in the case of execution petitions. 9. One other reason which persuades us to come to the same conclusion is that an ordinary civil litigant gets only one opportunity to call in question orders of executing courts. S.14 of the Rent Control Act also provides such an opportunity. We are not persuaded to hold that the Legislature intended that a litigant under the Kerala Buildings (Lease and Rent Control) Act should get a third opportunity to agitate the correctness of an order in execution. He is in the same position as an ordinary litigant. He is not entitled to claim an advantage which is not available to ordinary litigants. We therefore hold that revisional order in execution is not liable to be further revised under S.115 of the Code. 10. In Anilatmajan (supra) our learned brother Radhakrishna Menon, J. held that a revision would lie to the High Court under S.115 of the Code from orders in execution for two reason: (1) that there is no inhibition against such order being called in question in any court of law as in S.18(5) of the Act; and, (2) that the Munsiff who executes the order passed under the Act not being a persona designata, but a court subordinate to the High Court is amenable to the revisional jurisdiction of the High Court under S.115 of the Code. He relied on the decision in Mamoo v. Krishnan, 1978 KLT 101. We find it difficult to accept this proposition. It is clear from the decision of the Division Bench in K. S. E. Board, 1989 (1) KLT 451, that finality attached to a decision of the District Court may not, by itself, be conclusive of the question of revisability of an order under S.16 of the Telegraph Act., Far more important is the fact that both in Aundal Ammal and M/s. Jetha Bai the Supreme Court held that a revision would not lie against an order passed by the District Court under S.20 of the Act. 11. It is true that there is nothing in S.115 of the Code which precludes the High Court from exercising its revisional jurisdiction in relation to any order passed by any court subordinate to it. We are afraid that this argument cannot be countenanced in view of Aundal Ammal and M/s. Jetha Bai (supra). Though S.20 of the Act provides for a revision to the District Court and there are no words limiting the power of the High Court in S.115 of the Code, the Supreme Court held, that a second revision will not be entertained. In this case also, what is sought to be revised is a revisional order of the District Court. We are of the opinion that a second revision to the High Court under S.115 of the Code having been frowned upon in specific terms in the two decisions for the reason, that public policy and public interest require speedier disposal of rent control cases, it is not possible now to hold that in execution proceedings under S.14 of the Act a second revision is permissible. 12. We are of the opinion that the question of revisability has to be considered in the light of the provisions of the statute as also the policy of the law and public interest. So viewed, we hold, that a second revision from a revisional order passed by the District Court under S.20 of the Rent Control Act in execution proceedings is not liable to be further revised in a second revision by this Court in exercise of its powers under S.115 of the Code. The statue itself specifically provides for utmost expedition in the matter of disposal of proceedings under the Act. 13. The statue itself specifically provides for utmost expedition in the matter of disposal of proceedings under the Act. 13. We read the provisions of S.11(1) to the effect, that- "Notwithstanding anything to the contrary contained in any other law or contract a tenant shall not be evicted, whether in execution of a decree or otherwise, except in accordance with the provisions of this Act". to mean that the Rent Control Act shall be a self-contained code in relation to eviction of tenants. S.24 of the Act provides for expeditious disposal of proceedings before Rent Control Court. This, we understand, is an indication that the intention of the Legislature is to avoid any delay in such proceedings. In the context of these provisions, we are of the opinion that a second revision under S.115 of the Code was not meant to be entertained against revisional orders of the District Court under S.20 of the Act from orders passed by Munsiff under S.14 of the Act. We therefore hold, that the decisions in Anilatmajan, 1988(1) KLT 887, and Mamoo 1978 KLT 901, are not correct. We hold, following the observations contained in the decisions in Aundal Ammal and M/s. Jetha Bai, that a second revision is not maintainable, from orders passed by the Munsiff, under, S.14 and which was the subject of revision under S.20 of the Act. 14. The High Court has got power of superintendence over all courts under Art.227 of the Constitution of India. Even if a second revision is not entertainable, it is open to this court in cases of manifest injustice and other like causes to revise orders of subordinate courts. We are of the opinion that the power of this court under Art.227 of the Constitution of India is sufficient and effective safeguard even in the absence of a second revision under S.115 of the Code of Civil Procedure. 15. Even assuming that a revision is entertainable, its scope is considerably limited, as observed by the Supreme Court in Kesavan v. Ammukutty Amma,1988(1) KLT 104. The facts of this case as found by the Munsiff and affirmed by the District Court do not justify exercise of that limited jurisdiction. The Rent Control Court passed an order of eviction on 22-6-1970 on the ground of arrears of rent. Five years thereafter, the legal representatives of the landlord executed Ext.A1 sale deed to one Smt. Parvathy Ammal. The facts of this case as found by the Munsiff and affirmed by the District Court do not justify exercise of that limited jurisdiction. The Rent Control Court passed an order of eviction on 22-6-1970 on the ground of arrears of rent. Five years thereafter, the legal representatives of the landlord executed Ext.A1 sale deed to one Smt. Parvathy Ammal. Under Ext.A2 the present petitioner purchased the property from Parvathy Ammal. On 22-2-1978, the present petitioner and the legal representatives of the deceased landlord Shri. Vyasarajan Poti filed E.P.No.176 of 1978 before the Munsiff, Trivandrum for execution of the order dated 22-6-1970. The defence of the tenant was that he had paid arrears which occasioned the order of eviction to the landlord Vyasarajan Poti along with a further amount of Rs.127/- as is evident from Exts.B1 to B6 during the period from 25-2-1967 to 14-12-1974 and therefore the order of eviction was not executable. He pleaded that a new tenancy commenced when the landlord accepted arrears and rent which had accrued subsequently. It was thereafter that his legal representatives executed Ext.Al sale deed dated 15-11-1972 in favour of Parvathy Ammal. There was no mention in that document of the fact that the tenant was liable to be evicted under the order dated 22-6-1970. The acceptance of arrears a1ongwith rent for a fairly long period of over four years thereafter by the landlord and non-mention in Ext.A1 of the order of eviction were rightly relied upon by the Munsiff to hold that the decree for eviction was no longer in force. The District Court referred to these aspects and held further that the conduct of the landlord indicated his conscious and positive assent to renew or continue the tenancy notwithstanding the order of eviction. These are findings of fact. We are not inclined to upset that findings even assuming that the impugned order is revisable under S.115 of the Code. Counsel for the petitioner referred us to the decision of Padmanabhan, J. in Kunjunni Pillai v. Viswambharan, 1986 KLT 1153, to the effect that the mere fact that the landlord received rent subsequent to an order of eviction would not by itself justify a finding that the tenancy was continued or renewed or that a new tenancy was created. Receipt of rent and conduct indicating positive and conscious assent on the part of the landlord stands on a different footing. Receipt of rent and conduct indicating positive and conscious assent on the part of the landlord stands on a different footing. The facts and circumstances found by the courts below indicate that the landlord had received arrears of rent and rent accrued after the order of eviction, and by subsequent conduct his legal representatives consciously assented to the continuance or renewal of tenancy rendering the order of eviction non-executable. In this view, the revision petition has to be and is hereby dismissed. Parties will suffer their respective costs. Dismissed.