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1990 DIGILAW 404 (KER)

Anandan v. Soumini

1990-10-09

T.V.RAMAKRISHNAN, U.L.BHAT

body1990
ORDER : U.L. Bhat, J. Respondents are tenants of the building under the revision petitioner. Revision petitioner filed an eviction petition against the respondents under Sections 11(2) and 11(3) of Kerala Act 2 of 1965 contending that rent has been kept in arrears and landlord needs the building bonafide for the separate residence of his daughter Jalaja. The application was resisted by the tenants and dismissed by the Rent Control Court. The dismissal was confirmed by the appellate authority. Landlord filed revision before the District Court u/s 20 of the Act. During the pendency of the revision petition he filed an application to amend the eviction petition to incorporate amendment to the effect that his daughter Jalaja is dependent on him and that she has no other house of her own for separate residence. The District Court dismissed the application on the ground that the Revisional Court u/s 20 of the Act has no jurisdiction to permit amendment of the pleadings and because allowing the amendment would involve adducing further evidence. This order is now challenged. K.P. Radhakrishna Menon, J. who, heard the case referred the same to a Division Bench on the ground that there is a conflict of authority as seen from the decisions in Lalitha R. Prabhu v. Krishna Alias Lakshmi Bai ( 1967 KLT 182 ) and Adbulla v. Rent Controller ( 1984 KLT 865 ) and the order in C.R.P.No. 44 of 1986. 2. We are considering only the question of jurisdiction and power of the District Court to allow amendment, We do not propose to go into the merits of the amendment application which was not considered by the District Court. 3. Landlord seeking eviction of the tenant from a building ' has to apply to the Rent Control Court u/s 11 of the Act. Section 18 provides fox appeals against the orders of the Rent Control court and empowers the Government to constitute appellate authorities. Any person aggrieved by an order passed by the Rent Control court may prefer an appeal to the appellate authority and the decision of the appellate authority shall be final. Section 20 provides for revision being preferred before the District Court or the High Court as the case may be, depending upon whether the appellate authority is a Subordinate Judge or the District Judge. Section 20 provides for revision being preferred before the District Court or the High Court as the case may be, depending upon whether the appellate authority is a Subordinate Judge or the District Judge. According to Section 20, on the application of the aggrieved party, revisional authority may call for and examine the records relating to any order passed or proceedings taken under the Act by, the appellate authority for the purpose of satisfying itself as to the legality, regularity or propriety of suck order or proceedings, and may pass such order in reference thereto as it thinks fit. We may at once notice the decision of the Supreme Court of India in H.V. Mathai v. Subordinate Judge ( 1969 KLT 348 ) wherein the court observed. The words of Section 20 however are much wider than those in Section 115 of the Code of Civil Procedure. u/s 29(1) the District Court is empowered to call for and examine the records relating to any order passed or proceedings taken under the Act for the purpose of satisfying itself as to the legality, regularity or propriety of such order or proceedings, and pass such order in reference thereto as it thinks fit. On the words of this section, we cannot hold that a revision is limited to a mere question of jurisdiction. In our view the District Judge was empowered to consider whether on the evidence the finding of the Subordinate Judge was proper. 4. Section 23 delineates the power of the Accommodation Controller, the Rent Control Court and the appellate authority. Sub-section (1) states that subject to such conditions and limitations "as may be prescribed, these authorities shall have powers which and vested in a court under the Code of Civil Procedure, 1908, when trying a suit in respect of the matters specified therein. The matter specified in clause (j) is "power to amend any defect or error in orders or proceedings". Sub-section (2) invests on the above authorities power to summon and examine suo motu any person whose evidence appears to be material. A plain reading of Section 23 would indicate that what the legislature intended to lay down was the power and jurisdiction of specified authorities namely, Accommodation Controller, Rent Control court and the appellate authority. Sub-section (2) invests on the above authorities power to summon and examine suo motu any person whose evidence appears to be material. A plain reading of Section 23 would indicate that what the legislature intended to lay down was the power and jurisdiction of specified authorities namely, Accommodation Controller, Rent Control court and the appellate authority. The legislature did not think it fit to include the revisional authority, whether it be the District Court or the High Court, within the purview of Section 23. That is because specific conferment of powers is not necessary in the case of Revisional Courts which are civil courts. While the Rent Controller and the appellate authority function persona designata, revisional authority namely, District Court and High Court are not persona designata but courts in the existing hierarchy of courts. As such the revisional authority must necessarily have all the powers vested in the civil courts under the Code of Civil Procedure. This has been made clear by a Full Bench of this court in Ouseph Vareed. Mary ( 1968 KLT 583 (FB), where Eradi J. (as he then was) observed for the Full Bench: It is seen from Section 20(1) that the revisional power is conferred not upon any special tribunal or authority constituted under this statute but on an established court, viz., the District Court or the High Court, as the case may be. 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. It is now well-established that where by a statute matters are referred to the determination of a court of record with no further provision the necessary implication is that the court will determine the matter "as a court". Its jurisdiction is enlarged, but all the incidents of such jurisdiction including the right of appeal from its decision remain the same.....................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 rules of civil procedure. the District Court, the procedure as well as the orders and decrees of that court will be governed by the ordinary rules of civil procedure. The Full Bench proceeded to hold further that against the order of the District Court as revisional authority u/s 20 of the Act a further revision would lie to the High Court u/s 115 CPC. It is true that this conclusion that a second revision would lie to the High Court has been over-ruled by the Supreme Court in Aundal Ammal v. Sadasivan Pillai ( 1987 (1) KLT 53 ). But the decision of the Supreme Court on a view different from that taken by the High Court in regard to the position of the revisional court as civil court but on the provision in Section 18 of the Act that the decision of the appellate authority is final. Therefore, the observations of the Full Bench quoted above must be treated as surviving with full vigour and not displaced by the Supreme Court. 5. We notice that Justice Chandrasekhara Menon observed in Hancefa v. Subhalakshmi Ammal ( 1980 KLT 627 ) that Section 23 deals only with powers of the specified authorities namely, Accommodation Controller, Rent Control Court and the appellate authority, that the powers of the revisional court u/s 20 are not enunciated in the Act and they have get the necessary powers being established courts under the Code of Civil Procedure. 6. We will now advert to two decisions of this court which considered the powers of the revisional court. In T.T. Narayanan v. Kuttikrishnan ( 1973 KLT 182 ) Bhaskaran J. (as he then was) had to consider the question whether the District Court as revisional court could receive additional evidence. The learned judge held that the District Court has jurisdiction and power to receive additional evidence if considered necessary for a proper scrutiny and to ascertain whether the impugned order is vitiated by illegality, irregularity or impropriety. In C.R.P. No 1211 of 1979 (short-noted in 1979 KLT 59) M.P. Menon, J. held that District Court as revisional court has power to receive oral evidence in appropriate circumstances on the ground that the District Court continues to be a "court" with all the powers of a court under the Code of Civil Procedure. 7. We may in this connection refer to two decisions of the Supreme Court. In State of Kerala Vs. 7. We may in this connection refer to two decisions of the Supreme Court. In State of Kerala Vs. K.M. Charia Abdullah and Co., AIR 1965 SC 1585 the Supreme Court had occasion to consider powers of a revisional authority under the Madras General Sales tax Act. Section 12 of the Act empowers-the revisional authority to call for the records of the order or proceeding to satisfy himself about the legality or propriety of an order or regularity of the proceeding of the subordinate officer so as to enable the authority to pass such orders with respect thereto as he thinks fit. Analysing Section 12 the Supreme Court observed: But there is nothing in the Act that for passing an order in exercise of his revisional jurisdiction, if the revising authority is satisfied that the subordinate officer has committed an illegality or impropriety in the order or irregularity in the proceeding, he cannot make or direct any further enquiry. The words of sub-section (2) of Section 12 that Dy-Commissioner "may pass such order with respect ' thereto as he thinks fit" mean such order as may in the circumstances of the case for rectifying the defect be regarded by him as just. Power to pass such order as the revising authority thinks fit may in some cases include power to make or direct such further enquiry as the Deputy Commissioner may find necessary for rectifying the illegality or impropriety of the order or irregularity in the proceeding. It is, therefore, not right baldly to propound that in passing an order in the exercise of his revisional jurisdiction, the Deputy Commissioner must in all cases be restricted to the record maintained by the Officer subordinate to him, and can never make enquiry outside that record. This decision was followed by the Supreme Court in Swastik Oil Mills Ltd. Vs. H.B. Munshi, Deputy Commissioner of Sales Tax, Bombay, AIR 1968 SC 843 . In this case the Supreme Court was considering Section 57 and other provisions of the Bombay Sales tax Act 1959 dealing with powers of revisional authority. This decision was followed by the Supreme Court in Swastik Oil Mills Ltd. Vs. H.B. Munshi, Deputy Commissioner of Sales Tax, Bombay, AIR 1968 SC 843 . In this case the Supreme Court was considering Section 57 and other provisions of the Bombay Sales tax Act 1959 dealing with powers of revisional authority. One of the parties relied on the decision of the High Court of Andhra Pradesh in State of Andhra Pradesh v. T.C. Lakshmaiah Setty (1961-12 S.T.C. 663) to the effect that revisional authority under the corresponding statute had no jurisdiction to travel beyond the record that was available to the assessing authority and the basis should be found on the record already in existence The Supreme Court expressed its inability to accept the principle laid down by the High Court and observed: Whenever a power is conferred on an authority to revise an order the authority is entitled to examine the correctness, legality and propriety of the order and to pass such suitable orders as the authority may think fit in the circumstances of the particular case before it. When exercising such powers, there is no reason why the authority should not be entitled to hold an enquiry or direct an enquiry to be held and, for that purpose, admit additional material... If it is considered necessary that some additional enquiry should be made to arrive at a proper and just decision, there can be no bar to the revising authority holding a further enquiry or directing such an enquiry to be held by some other appropriate authority. We are of opinion that the above observations of the Supreme Court quoted above apply squarely to the revisional authority exercising jurisdiction u/s 20 of the Act. 8. Learned single Judge in the order of reference referred to two decisions which dealt with the question whether the Rent Control court has jurisdiction to allow amendment of the pleadings in the rent control petition In Lalitha R. Prabhu v. Krishna Alias Lakshmi Bai ( 1967 KLT 182 ) the learned judge took the view that Section 23 invests with Rent Control court powers of the civil court only to a limited extent as provided therein and there is no power in that court to amend the pleadings. There are a large number of other decisions of this court which had occasion to deal with the scope and powers of the Rent Control court. We find that all these decisions have been adverted to by one of us (Bhat, J.) in Abdulla v. Rent Controller ( 1984 KLT 865 ). Amendment proposed in Lalitha R. Prabhu's case ( 1967 KLT 182 ) arose on a subsequent event and the learned judge took the view that by reason of the subsequent event it could not be said that there has been defect in the proceeding and therefore Rent Controller could not permit amendment. It was not argued before the learned judge that besides Section 23 of Act, Rent controller has inherent power to allow amendment in appropriate cases. In Abdulla's case ( 1984 KLT 865 ) reference has been made to decisions dealing with the power of Land Tribunal under the provisions of the Kerala Land Reforms Act, 1963 and decisions dealing with power of the Rent Control court as well as the decision of the Supreme Court in Dhani Devi Vs. Sant Bihari and Others, AIR 1970 SC 759 which adopted a more liberal approach. The decision concluded the discussion by holding that while it is true that courts have always taken the view that statutory tribunals which are creatures of statutes have only those powers conferred on them by statutes, there is increasing acceptability of the proposition that tribunals which are playing a more and more important role in the field of administration of justice are exercising judicial or quasi judicial functions inherent in the State and therefore tribunals must be regarded as possessing inherent power in the performance of their duties and for the purpose of doing justice between the parties. While we agree with the proposition enunciated in Abdulla's case ( 1984 KLT 865 ), we notice that it has no direct, relevance to the question of amplitude of the power of revisional court. With great respect, we hold that Lalitha R. Prabhu's case ( 1967 KLT 182 ) has not laid down the law correctly if it is understood as holding that Rent Controller has no powers outside Sec. 23 of the Act. 9. Learned counsel for the respondents invites our attention to the decision of K.T. Thomas, J. in Karthiayani v. Venkitachala Iyer ( 1986 KLT 81 ). 9. Learned counsel for the respondents invites our attention to the decision of K.T. Thomas, J. in Karthiayani v. Venkitachala Iyer ( 1986 KLT 81 ). The question which arose for Consideration in that case was whether revisional court u/s 20 has jurisdiction to receive additional evidence. The learned judge expressed the view that. revisional power alone can be exercised by the District Court and that function is to be confined to examination of the records as to the legality, regularity or propriety of the order of the proceedings relating to such record of evidence, and records refer to records sent up by the two statutory authorities and revisional authority cannot create further records of evidence. Referring to the decision of Bhaskaran, J. in Narayanan's case ( 1973 KLT 182 ; the learned judge observed; There may be such instances when the revisional court may have to receive further materials for the purpose of equipping itself to effectively discharge its revisional functions. A typical instance is the one involved in the said decision Narayanan v. Kuttikrishnan. With great respect, we find it difficult to reconcile the two observations we have quoted. If scrutiny by the revisional court is confined only to the records in the case sent up to that court by the two statutory authorities the question of revisional court taking additional evidence may not arise. Either the revisional court has power to receive additional evidence or permit such evidence to be adduced or it has no such power. If it has no power it cannot be said that additional evidence can be received even for the purpose of scrutiny to enable discharge of the revisional function. We find that the learned judge in a latter case in Abdul Khader v. Abdulrahiman Master ( 1987 (2) KLT 945 ) after referring to the decision of Chandrasekhara Menon, J. in Haneefa's case ( 1980 KLT 627 ) and the decision of the Full Bench ( 1968 KLT 583 ) held that. We find that the learned judge in a latter case in Abdul Khader v. Abdulrahiman Master ( 1987 (2) KLT 945 ) after referring to the decision of Chandrasekhara Menon, J. in Haneefa's case ( 1980 KLT 627 ) and the decision of the Full Bench ( 1968 KLT 583 ) held that. All the powers of the civil court under the Code could he exercised by the District Court while hearing revision petitions, The view taken in Karthiayani's case ( 1986 KLT 81 ) that in passing an order on a revision petition revisional authority can scrutinise only the records available with the two statutory authorities and cannot look into new evidence cannot stand in view of the two decisions referred to earlier where the Supreme Court categorically held, interpreting more or less similar provisions in other statutes, that revisional authority in passing the order is not confined to material already on record and there is no bar for the revisional authority to receive additional evidence or conduct further enquiry or direct a further enquiry to be conducted. 10. We hold that Section 23 of the Act does not deal with the powers and jurisdiction of the District Court exercising revisional power u/s 20 of the Act; in hearing and disposing of revision petitions, District Court has all the powers of a civil court under the CPC and this naturally will include power to allow amendment of pleadings, to receive additional evidence and to order remand in appropriate cases to advance the cause of justice. We must however sound a note of caution by stressing that District Court is only a revisional court and should not indiscriminately allow applications for amendments which may prejudice the opposite party and will not advance the cause of justice. 11. The question before us is about the power of the revisional court. We have no doubt that the District Court as revisional court has the power and jurisdiction to permit amendment of pleadings. Whether in this case amendment should be allowed or not has to be decided by the District Court. We direct the District Court to decide the matter. In the result, we set aside the impugned order and remand the proceeding to the District Court which will pass fresh orders or the I.A. on merits. Revision petition is thus allowed but in the circumstances without costs. We direct the District Court to decide the matter. In the result, we set aside the impugned order and remand the proceeding to the District Court which will pass fresh orders or the I.A. on merits. Revision petition is thus allowed but in the circumstances without costs. The case will be called in the District Court on 9.11.1990.