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Tukaram Nathuji Sonkusare Vs. Dayalnath Dudhanath Mishra - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtMumbai High Court
Decided On
Case NumberSpl. Civil Appln. No. 196 of 1978
Judge
Reported inAIR1986Bom109; 1985MhLJ38
ActsCentral Provinces and Berar Letting of Houses and Rent Control Order, 1949; Code of Civil Procedure (CPC), 1908 - Sections 114
AppellantTukaram Nathuji Sonkusare
RespondentDayalnath Dudhanath Mishra
Appellant AdvocateS.K. Sanyal, Adv.
Respondent AdvocateR.G. Deshpande, Adv.
Excerpt:
.....should be apparent on the face of the record - - after appreciating documentary as well as oral evidence it was further held that the rent was not rs. it was held that advantage of illiteracy and poor condition of the petitioner was taken by taking his signature on the copy of receipt showing rs. the petitioner clearly falls within the definition of 'tenant'.moreover, there is a long delay and it looks clear that petitioner has chosen to challenge the appellate order only because unfortunately for him the review was allowed. 5. keeping these salient features in mind it seems to me that the reviewing authority in this case has clearly exceeded his jurisdiction and has displaced of the review as if he was sitting in appeal over the decision of his predecessor. the appellate order is..........of the file. he disagreed with the appreciation of evidence of his predecessor and allowed the review application holding that rs. 21/- was the agreed rent.3. the petitioner has challenged in this petition not only the order passed in review dt. 29th oct. 1977 but also the appellate order passed dt. 12th july 1976 holding that relationship of landlord and tenant was established. i do not see any merit whatsoever in this challenge to the appellate order. the petitioner clearly falls within the definition of 'tenant'. moreover, there is a long delay and it looks clear that petitioner has chosen to challenge the appellate order only because unfortunately for him the review was allowed.4. this takes me to the real point involved in this matter. it is true that cl. 21 (2) (a) does not.....
Judgment:
ORDER

1. What principally falls for determination in this writ petition is the width of power of 'review' under Cl. 21(2)(a) of the C.P. & Berar Letting of Houses and Rent Control Order. 10949 ('The HRC' Order for short).

2. This is how the point arises. The respondent, Dayalnath Mishra, the original landlord filed an application under Cl. 13(3)(i) and (ii) of the HRC Order against the petitioner Tukkaram Sonkusare, original tenant, a rickshaw puller. The landlord claimed the arrears of rent at Rs. 21/- per month for the period Sept. 1973 to Jan. 1974. The tenant contested the application contending inter alia that not he but his elder brother Pandurang a Karta of the family is the tenant, the premises were taken on rent since 1968 and there rent last paid was at the rate of Rs. 11/- per month and not Rs. 21/- as alleged. Both parties entered into witness box. Documentary evidence such as copy of one receipt, notice given by the landlord, copy of assessment register etc. was also filed. rent Controller rejected the application mainly on the ground that relationship of a landlord and tenant between the parties is not proved . Dissatisfied with this Order, the landlord filled an appeal. In view of the admission that the petitioner was jointly living with his elder brother and was himself paying there rent sometimes, it was held that considering the definition of the term 'tenant' in the HRC Order the relationship was established and, therefore, application against the petitioner was maintainable. After appreciating documentary as well as oral evidence it was further held that the rent was not Rs. 21/- as alleged by the landlord but was Rs. 11/- as contended by the tenant. What weighed with the appellate authority was the illiteracy of the petitioner, issuance of only one receipt dt. 4th Oct 1973 even though tenancy was from 1968, entries in the assessment list showing rent at Rs. 7.25 per month. It was held that advantage of illiteracy and poor condition of the petitioner was taken by taking his signature on the copy of receipt showing Rs. 21/- as rent only to crate evidence sometime before filing of the application. Evidence of landlord was not under the circumstances, preferred to evidence of the tenant and direction to make payment of arrears at the rate of Rs. 11 /- was made under Cl 13(3)(I). Application under Cl. 13 (3) (ii) was rejected holding that the petitioner was not a habitual defaulter. Being aggrieved by this appellate Order, the landlord filed a review petition. By that time, a new incumbent took charge of the file. He disagreed with the appreciation of evidence of his predecessor and allowed the review application holding that Rs. 21/- was the agreed rent.

3. The petitioner has challenged in this petition not only the Order passed in review dt. 29th Oct. 1977 but also the appellate Order passed dt. 12th July 1976 holding that relationship of landlord and tenant was established. I do not see any merit whatsoever in this challenge to the appellate Order. The petitioner clearly falls within the definition of 'tenant'. Moreover, there is a long delay and it looks clear that petitioner has chosen to challenge the appellate Order only because unfortunately for him the review was allowed.

4. This takes me to the real point involved in this matter. It is true that Cl. 21 (2) (a) does not prescribe any statutory limitations on the power of review unlike, say for example O, 47, R.1 C.P.C . where grounds for review are enumerated. Absence of restrictive language in the statute does make the scope of review wider. Review is not restricted to points of law only and in a given case may embrace even points of fact. Order under review may contain a manifest error of fact which has resulted into injustice. In such a case review may be entertained but this does not mean that evidence can be re appreciated and a different conclusion arrived at only because other view of totality of evidence is possible. In other words, Court cannot under cover of review abrogate to itself the power to decide the case over again because it now feels that the assessment of the evidence etc. done formerly was faulty or even incorrect. Two views of evidence in a given case may be possible but that does not make it a fit case for view. To hold otherwise would amount to equate the review with appeal. The error of fact for being a valid ground for view must be so manifest and apparent on the face of the record that no reasonable Court would permit such an error. If the said error requires for its detection process of examination the whole material afresh and detailed reasoning, it cannot be called manifest. Moreover, it must also be seen whether the said error has resulted into injustice and does not involve mere academic interest. Not mentioning of a circumstance here and a circumstance there by the lower Court or tribunal is no ground to interference with the end result even at appellate stage. By the very nature of review-power it can neither be wider or even equal to appellate power. Certainty and finality to a decision is a vital feature of rule of law. If review is permitted on such grounds it would introduced an element of disconcerting unpredictability - usually associated with gambling - and this is a reproach which any judicial process must carefully and scrupulously avoid.

5. Keeping these salient features in mind it seems to me that the reviewing authority in this case has clearly exceeded his jurisdiction and has displaced of the review as if he was sitting in appeal over the decision of his predecessor. The petitioner and / or his brother are tenants since 1969. No rent receipts were given since beginning. Assessment list from the year 1971 shows monthly rent or Rs. 7.50. The petitioner is an illiterate rickshaw puller who known only putting his signature. Sometime before initiation of the proceedings in 1974, receipt dt. 4th Oct. 1973 purported to be for Aug. 1973 showing the rent of Rs. 21/- is prepared and the signature of the petitioner is taken on its copy. Notice of demand dt. 27th Dec. 1973 is given and proceedings filed almost immediately thereafter alleging agreement of rent at the rate of Rs. 21/- per month. Tenant had entered into witness-box and given his version about the signing of the rent receipt. Landlord also has been examined. Appellate authority in the whole background preferred the evidence of the tenant as against the evidence of the landlord, accepted his version about the circumstances in which his signature on the receipt was obtained and recorded the relevant finding. The reviewing authority on reappreciating whole evidence did not agree with this appreciation of evidence by his predecessor and chose to prefer the version of the landlord inter alia on the ground that the fact to having not replied to the notice was not considered. True it is that the appellate order does not specifically refer to this circumstance but from that an inference cannot be drawn that he was oblivious to the material on the record and that it was a case of non-application of mind. The appellate Order is well considered. Style of writing the order varies from individual to individual and it is not always that all circumstance which have influenced the decision are reflected in the Order. In this case, this error if any had not resulted in any injustice.

6. My attention was invited to some of the decisions dealing with Cl. 21 (2) (a). In Arjundas v. Sunderlal (M.P. No. 259 of 53, dt 18-8-1954: 1954 NagLJ 232, Nagpur High Court has held that the power though unlimited cannot be exercised lightly ignoring the basic features of review power. In Vyankatesh Narayan v. Narhar Balkrishna, 1957 NagLJ 136 Full Bench of Nagpur High Court has observed:-

'the reviewing authorities would do well to be slow to interfere with an order unless the error is patent on record and has occasioned manifest injustice.'

Relying on certain observations mad in these cases, it is contended that it is for the Rent Control Authorities to entertain review or not and once the discretion is exercised in a particular manner,, the High Court should not interfere with a discretion in writ jurisdiction. This submission bears the observation out of context. It cannot be that writ Court would just ignore an order passed in exercises of jurisdiction on the sole ground that it is discretionary. In any judicial process. there is nothing like absolute discretion. I, therefore, find difficult to accept this submission. Division Bench of this Court in the case of Anant Nailkant Joshi v. Shankar Laxman Pande (Special Civil Application No. 6/1962, decided on 7th Nov. 1962: 1963 MahLJ 35 quashed the order passed in review as it disturbed a finding based on evidence.

7. In the result, the petition is allowed, the impugned order passed in review is quashed and set aside and the impugned order passed in appeal is maintained. Rule accordingly, No order as to costs. Petition allowed.


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