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1994 DIGILAW 368 (KER)

Louis Pachan v. V Janaki Amma

1994-10-04

DATLA JOGI JAGANNADHA RAJU

body1994
JUDGMENT D.J. Jagannadha Raju, J. 1. This is an original petition filed under Art.227 of the Constitution of India by an unsuccessful tenant for a writ of certiorari to quash Exts. P3, P4 and P6. Petitioner is the tenant of two rooms Nos. 13 and 14 in building Nos. 241 and 242 in Ward No. 1 covered by Sy. No. 142/1 of Guruvayur Township. He took one room on rent in the year 1954 and another room in 1959. Originally Madhavi Amma was the landlady and after her death, her daughter became the lessor. R.C.O.P. No. 47/79 was filed for eviction of the petitioner, that is a litigation which continued till the filing of the present original petition. Eviction petition was filed on the ground that the landlady requires these two rooms for installation of the generator for running the Cinema Hall 'Sreekrishna Theatre'. As the landlady could not obtain possession of the tenanted premises, she had to install the generator in a temporary shed and that entailed a series of litigations with the township authorities, etc. Ultimately eviction orders have been obtained by the landlady/lessor and they are confirmed. 2. In this petition, the learned counsel for the petitioner/tenant contends that by virtue of subsequent events and the landlady obtaining Ext. P7 order from the Guruvayur Township Committee the reason for the eviction petition vanishes and hence Exts. P3, P4 and P6 are liable to be quashed and the tenant is entitled to continue in occupation in the tenanted premises. Ext P7 was issued in 1990. 3. On behalf of the respondents Shri. Ananthakrishna Iyer contends that the commissioner who visited the premises has filed a detailed report with a sketch. This clearly shows that by installing the generator in a temporary shed which is behind the auditorium, the landlady faced several difficulties and that the present petitioner has his own accommodation very near to the tenanted premises and hence the eviction orders which have been confirmed should not be interfered with. Shri. Iyer also contends that in proceedings under Art.227 of the Constitution and Art.226 of the Constitution, the court is exercising only judicial review and it cannot go into the questions of fact. 4. Shri. Iyer also contends that in proceedings under Art.227 of the Constitution and Art.226 of the Constitution, the court is exercising only judicial review and it cannot go into the questions of fact. 4. On behalf of the petitioner, Shri. Krishnankutty Achan contends that even in cases of petition under Art.227 of the Constitution, subsequent events can be taken into account and the courts have always moulded the reliefs taking into consideration the subsequent events. In this case as the reason for the eviction petition has subsequently disappeared, the orders of eviction should not be confirmed. 5. Art.227 of the Constitution is substituted as follows: Power of superintendence over all courts by the High Court. A reading of the Article clearly indicates that the powers of the High Court under Art.227 are of a very limited amplitude. Judicial decisions have postulated several principles regarding the scope of the power of the High Court under Art.227 of the Constitution. The learned author V.N. Shukla in his book 'Constitution of India' at page 592 lays down the principles governing exercise of jurisdiction under Art.227 of the Constitution. Under clause (b) the author points out that the power should not ordinarily be exercised if any other remedy is available to the aggrieved party, even though the pursuing of that remedy may involve some inconvenience or delay. Under clause (c) he mentions that the power of interference under Art.227 is limited to seeing that the tribunal functions within the limits of its authority. The principal grounds for interference, therefore, would be - (i) want or excess of jurisdiction; (ii) failure to exercise jurisdiction, and (iii) violation of procedure or disregard of principles of natural justice. Then the author points out that for an error of law apparent on the face of the record or a plain error of law the High court would not interfere under Art.227 of the Constitution. Under clause (d), the author points out that in exercising the supervisory power the High Court does not act as an appellate tribunal. It will not review or re-weigh the evidence upon which the determination of the inferior tribunal purports to be based or to correct errors of law in the decision. Under clause (d), the author points out that in exercising the supervisory power the High Court does not act as an appellate tribunal. It will not review or re-weigh the evidence upon which the determination of the inferior tribunal purports to be based or to correct errors of law in the decision. Under clause (e), the learned author points out that Art.227 does not invest the High Court with an unlimited prerogative to interfere in cases where wrong decisions have been arrived at by judicial or quasi judicial tribunals on a question of fact or law. It is thus clear that the scope of jurisdiction for interference under Art.227 of the Constitution is of a very limited amplitude. 6. The learned Counsel Shri. Krishnankutty Achan brought to my notice AIR 1992 SC 700 (Ramesh Kumar v. Kesho Ram) and relies upon the remarks made in Para.4 in support of his argument that it is open to the court to take into consideration the subsequent events and mould the relief. The Supreme Court while dealing with a case under O.41 R.23 of the Code of Civil Procedure observed as follows: "The normal rule is that in any litigation the rights and obligations of the parties are adjudicated upon as they obtain at the commencement of the lis. But this is subject to an exception. Wherever subsequent events of fact or law which have a material bearing on the entitlement of the parties to relief or on aspects which bear on the moulding of the relief occur, the court is not precluded from taking a cautious cognizance of the subsequent changes of fact and law to mould the relief'. It should be remembered that the above decision relates to the powers of an appellate court and it does not mutatis mutandis apply to a revisional court, much more so to the court exercising revisional jurisdiction under Art.227 of the Constitution. The learned counsel also brought to my notice two decisions of this court wherein exercising jurisdiction under Art.227 of the Constitution, Judges have relied upon the above passage in AIR 1992 SC 700 (Ramesh Kumar v. Kesho Ram) and interfered with the orders of the lower tribunals. The first decision is 1991 (2) KLJ 444 (Varghese Ittoop v. M. Ibrahim and others). The first decision is 1991 (2) KLJ 444 (Varghese Ittoop v. M. Ibrahim and others). Though his Lordship dealt with the petition under Art.227 of the Constitution in the body of the judgment the learned Judge referred to the decision reported in AIR 1992 SC 700 (Ramesh Kumar v. Kesho Ram) and the various other decisions referred to in that decision. A reading of the full judgment indicates that the learned Judge was not conscious or aware of the fact that the decision of the Supreme Court dealt with a case of the appellate authority and that it did not deal with a case considered by a revisional authority. In my humble opinion it looks as if his Lordship was under the impression that what was observed by the Supreme Court relating to O.41 R.23 of the Code of Civil Procedure would mutatis mutandis apply to a situation where the High Court jurisdiction is invoked under Art.226 or 227 of the Constitution. In another decision reported in 1991 (2) KLT 316 (Krishna v. District Judge) the learned Judge made a. passing reference to S.11(2)(e) of the Buildings (Lease and Rent Control) Act and Art.227 of the Constitution of India and observed as follows: "Such a course may be open only in cases where a decree or order of a subordinate court or tribunal merges in or is superceded by an appellate or revisional judgment or order. Interference or non interference in an original proceeding under Art.227 cannot have such an effect, because consideration is under a different right". In the 10th paragraph of the judgment, the learned Judge refused to grant relief on the ground that the remedy under Art.227 of the Constitution is discretionary and a litigant, who approached the Court without bona fides, in such a situation is not entitled to any discretionary relief. 7. It can safely be said that while exercising jurisdiction under Art 227 of the Constitution, the court will not interfere with the concurrent findings of fact nor will it take into consideration the subsequent events because in the very nature of it this Court will not go into the questions of fact. It is mostly concerned with the excess of jurisdiction or want of jurisdiction in the tribunal and violation of procedure or disregard of principles of natural justice. 8. It is mostly concerned with the excess of jurisdiction or want of jurisdiction in the tribunal and violation of procedure or disregard of principles of natural justice. 8. If we examine the facts involved in the case, we find that there is a case where the tenant has enjoyed the premises from 1954 and 1959 for 25 years or 20 years prior to the start of litigation in 1979 and subsequently he has been enjoying the property by dragging litigation for another 16 years. It should be just, proper and most equitable for the tenant/petitioner to give a quietus for this long drawn contumacious litigation. 9. Exercising my jurisdiction under Art.227 of the Constitution, I am not inclined to invoke my discretionary powers in this particular O.P. Accordingly O.P. is dismissed as devoid of merits.