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2000 DIGILAW 551 (KER)

Abdul Khadir v. Ouseph Mathai

2000-10-23

A.LEKSHMIKUTTY, S.SANKARASUBBAN

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Judgment :- S. Sankarasubban, J. All these Civil Revision Petitions are filed against the judgment of the Appellate Authority, which confirmed the order passed by the Rent Control Court dismissing the petitioners' applications under S.11(2)(c) of the Kerala Buildings (Lease and Rent Control) Act (hereinafter referred to as 'the Act'). The petitioners are the tenants. The landlord in these cases applied for eviction on the basis of arrears of rent and reconstruction. Eviction was ordered on both these grounds. 2. The tenants challenged the order of eviction before" the Revisional Authority under S.20 of the Act. At that time, revision lay before the District Court. Against the order of the District Court, revisions were filed before the High Court under S.115 of the Code of Civil Procedure. When the matter was pending before the High Court, the Supreme Court held in Aundal Ammal 's Case (1987(1) KLT 53) that a second revision will not lie before the High Court under S.115 of the Code of Civil Procedure. But the Supreme Court held that a petition under Art.227 of the Constitution of India will lie to the High Court challenging the order of the Revisional Authorities under S.20 of the Act. 3. Thereafter, the petitioners moved the High Court under Art.227 of the Constitution of India. The petition under Art.227 of the Constitution of India was heard on merits and it was dismissed. _thus, the eviction order was confirmed for' reconstruction and for arrears of rent. After the High Court pronounced the order under Art.227 of the Constitution of India, the tenants deposited the entire arrears of rent within 30 days and filed petition under S.11(2) of the Act before the Rent Control Court to vacate the order of eviction under S.11(2)(c) of the Act. That application was dismissed by the Rent Control Court as well as by the Appellate Court. Both the courts primarily relied upon a decision of this Court in Krishna v. District Judge -1991 (2) KLT 316. In the above decision, Padmanabhan, J. held that the revisional jurisdiction is fundamentally appellate jurisdiction of a higher court with certain restrictions. A proceeding under Art.227 could be considered as a civil proceeding if the original proceeding on which it is based; is civil. It may be akin to S.115 of the Code of Civil Procedure. In the above decision, Padmanabhan, J. held that the revisional jurisdiction is fundamentally appellate jurisdiction of a higher court with certain restrictions. A proceeding under Art.227 could be considered as a civil proceeding if the original proceeding on which it is based; is civil. It may be akin to S.115 of the Code of Civil Procedure. But the remedy is not statutory, but only constitutional in exercise of the right of the general power of superintendence. On that basis, the High Court held that the power under S.115 of the Code of Civil Procedure and Art.227 of the Constitution of India is different and so as a matter of right, the petitioners are not entitled to be given the right to exercise option under S.11(2)(c) of the Act. It is challenging the above orders that these revisions are filed. 4. In this context it is pertinent to note that the buildings have been vacated because the eviction order is also under S.11(4) (iv) of the Act. If the tenants are given the benefit of S.11(2) (c) of me Act, the) will be entitled to the exercise of the benefit of option under the proviso to S.11(4)(iv) of the Act. 5. We heard Shri. P.B. Krishnan, learned counsel for the petitioners and Shri. Siby Mathew learned counsel for the contesting respondents. 6. Shri. P.B. Krishnan submitted that the decision reported in Krishna v. District Judge, 1991 (2) KLT 316, requires reconsideration. According to him, it goes against the decision of Janaki Amma, J. in Kanakamma v. Sivasankaran Nair, 1976 KLT 911, wherein for the first time, it was held by this Court that the tenant will be entitled to exercise option under S.11(2)(c) of the Act even after the dismissal of the revision under S.115 of the Code of Civil Procedure. Shri. Krishnan also submitted that the power under Art.227 of the Constitution of India is only a power of superintendence. It is not original proceedings and further, the court has got power under Art.227 of the Constitution to interfere with the order passed by the Tribunal or by the Appellate Authority. It was further argued that ultimately, the decision in Kanakamma v. Sivasankaran Nair, 1976 KLT 911 rests upon the fact that when a superior court is approached, then court can exercise its power to do justice between the parties. 7. It was further argued that ultimately, the decision in Kanakamma v. Sivasankaran Nair, 1976 KLT 911 rests upon the fact that when a superior court is approached, then court can exercise its power to do justice between the parties. 7. Shri. Siby Mathew, learned counsel for the respondents submitted that the power given under S.11(2)(c) of the Act is only available to the Authorities constituted under the Rent Control Act. No doubt, in Kanakamma v. Sivasankaran Nair, 1976 KLT 911, the above power was extended to the High Court, because it was of the view that the revisional power exercised by the High Court was a general appellate power and hence, the benefit under S.11(2)(c) of the Act can be exercised after the order of this court also. He further contended that the limit of interference under Art.227 of the Constitution is a very narrow and the power exercised is neither revisional nor appellate. 8. In Kurian v. Saramma Chacko, 1964 KLT 1, a Full Bench of this court held that the Rent Control Court includes both the appellate and revisional courts. There, the question that was argued was that the power under S.11(2)(c) of the Act is not available when the matter is finally disposed of by the Appellate Court or the Revisional Court. Repelling the above contention, the Full Bench held thus: "Moreover, in a case where courts are dealing with a beneficial legislation intended for the protection of tenants, if there is any doubt about the meaning of a provision, it should be resolved in favour of the tenants". The Full Bench relied on a decision of the Supreme Court in Jivabhai Purshottam v. Chhagan Karson, AIR 1961 Supreme Court 1491. In Arumugham Chettiar v. Joseph, 1961 KLT 823, this court held that the jurisdiction under Art.227 of the Constitution is not original, but revisional and it is akin to S.115 of the Code of Civil Procedure. In Waryam Singh and Anr. v. Amarnath and Ann, AIR 1954 SC 215, the Supreme Court held that the power of superintendence conferred by Art.227 is to be exercised most sparingly and only in appropriate cases in order to keep the subordinate courts within the bounds of their authority. Further, the Supreme Court has held as follows: "The material part of Art.227 substantially produces the provisions of S.107 of the<<. Further, the Supreme Court has held as follows: "The material part of Art.227 substantially produces the provisions of S.107 of the<<. Government of India Act, 1915 except that the power of superintendence has been extended by the Article also to Tribunals. That the Rent Controller and the District Judge exercising jurisdiction under the Act are Tribunals cannot and has not been controverted. The only question raised is as to the nature of the power of superintendence conferred by the Article. Reference is made to clause (2) of the Article in support of the contention that this Article only confers on the High Court administrative superintendence over the Subordinate Courts and Tribunals. We are unable to accept this contention because Cl. (2) is expressed to be without prejudice to the generality of the provisions in Cl.(1). Further, the preponderance of judicial opinion in India was that S.107 which was similar in terms to S.15 of the High Courts Act, 1861, gave a power of judicial superintendence to the High Court apart from and independently of the provisions of other laws conferring revisional jurisdiction on the High Court." 9. In Umaji Keshao Meshram and Ors. v. Smt. Radhikabai andAnr., AIR 1986 SC 1272, the question raised was whether an appeal will lie to the Division Bench from an order on a petition under Art.227 of the Constitution under C1.15 of Letters Patent. The powers under Arts.226 and 227 of the Constitution were discussed in that case. At page 1318 in paragraph 102, it was observed thus: "It is equally well-settled in law that a proceeding under Art.227 is not an original proceeding. The decision in Ahmedabad Mfg. & Calico Ptg. Co. Ltd. v. Ramtahel Ramnad, AIR 1972 SC 1598 was referred to in the above case, wherein it was held that Art.227 of the Constitution no doubt does not confer on the High Court power similar to that of an ordinary court of appeal the power under Art.227 of the Constitution is intended to be used sparingly and only in appropriate cases, for the purpose of keeping the subordinate courts and Tribunals within the bounds of their authority. The origin and nature of the power of superintendence conferred upon the High Courts by Art.227 were then referred to. It was then held that the proceeding under Art.227 is not original proceeding. 10. The origin and nature of the power of superintendence conferred upon the High Courts by Art.227 were then referred to. It was then held that the proceeding under Art.227 is not original proceeding. 10. We don't agree with Padmanabhan, J. when his Lordship stated in Krishna v. District Judge 1991 (2) KLT 316 that since the right under Art.227 of the Constitution is not a statutory right and not a remedy provided under the Act, the petitioners are not entitled to the benefit of S.11(2)(c) of the Act. His Lordship also was of the view that the decision in Arumugham Chettiar v. Joseph, 1961 KLT 823 cannot be accepted. It can be seen that the judgment in 1961 KLT 823 was delivered by a Division Bench of this Court. The Division Bench has clearly stated that the proceeding under Art.227 of the Constitution is not original proceeding. It is further stated that the proceedings can be compared to the revisional power conferred by S.115 of the Code of Civil Procedure. The above decision of the Division Bench is not at variance with the Supreme Court judgment referred to above. Learned Judge in Krishna v. District Judge, 1991 (2) KLT 316 was not therefore correct in taking a different view. Further, a perusal of the decision, 1991 (2) KLT 316 shows that the decision of Janaki Amma, J. In Kanakamma v. Sivasankaran Nair, 1976 KLT 911, has not been referred to. We are of the view that the decision of Janaki Amma, J. in 1976 KLT 911 proceeds on the assumption that when a person seeks aid of the High Court on revisional side, it is done because it is a superior court and it can interfere for the purpose of rectifying the error of the court below. It was further stated that it is only one of the modes of exercising power conferred by the Statute; basically and fundamentally it is the appellate jurisdiction of the High Court which is being invoked and exercised in a wider and larger sense. There is also no distinction between cases where the appellate authority or the revisional authority interferes with the decision of the subordinate authority and cases where such appellate or revisional authority confirms the decision of the subordinate authority. 11. According to us, the principles laid down by Janaki Amma, J. in the above decision applies to this case also. There is also no distinction between cases where the appellate authority or the revisional authority interferes with the decision of the subordinate authority and cases where such appellate or revisional authority confirms the decision of the subordinate authority. 11. According to us, the principles laid down by Janaki Amma, J. in the above decision applies to this case also. No doubt, the power exercised under S.115 of the Code of Civil Procedure is different from the power exercised under Art.227 of the Constitution of India. 12. The Supreme Court, in Nataraja Chettiar v. Sulekha Amma,1987 (1) KLT 829, held thus: "Before parting with this case we think it necessary to observe that while a revision petition under S.115 CPC may not lie to the High Court against the revisional order passed by the District Judge in view of the decision in Aundal Ammal v. Sadasivan Pillai (1987 (1) KLT 53) aforesaid it will be perfectly open to the party aggrieved by the decision of the District Judge to invoke the jurisdiction of the High Court under Art.227 of the Constitution." Thus, the remedy given is under Art.227 of the Constitution and not under S.115 of the Code of Civil Procedure. But we are of the view that the power of superintendence exercised under S.227 of the Constitution of India is not original proceeding, but proceeding akin to revisional jurisdiction and hence, the benefit in Kanakamma v. Sivasankaran Nair, 1976 KLT 911 can be extended to in a case where proceedings are disposed of under Art.227 of the Constitution of India. 13. In this case, there is no doubt that the entire arrears of rent have been deposited within the period prescribed. Hence, we set aside the orders of the courts below and allow the application. We make it clear that the petitioners will be entitled to exercise option to reconstruction of the building under the Proviso to S.11(4) (iv) of the Act. Civil Revision Petitions are disposed of as above.