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Pandurang S/O Vasudeo Govardhan Vs. Kadappa S/O Sadashivrao Sherkhane - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtMumbai High Court
Decided On
Case NumberWrit Petition No. 3377 of 1981
Judge
Reported in1985(1)BomCR52
ActsHyderabad Houses (Rent, Eviction and Lease) Control Act, 1954 - Sections 15(2), 25 and 26; Constitution of India - Article 227; Code of Civil Procedure (CPC) , 1908 - Sections 115 - Order 41, Rule 22
AppellantPandurang S/O Vasudeo Govardhan
RespondentKadappa S/O Sadashivrao Sherkhane
Appellant AdvocateS.C. Bora, Adv.
Respondent AdvocateN.P. Chapalgaonkar, Adv.
DispositionPetition dismissed
Excerpt:
- - 5. the ruling of the supreme court in the case cited above clearly supports the objection taken by mr. 12. the result, therefore, is that the revision petitioner has failed on all counts and hence the revision stands dismissed with costs......the petitioner to vacate the tenement, and confirmed by the district judge, osmanabad, in rent appeal no. 1 of 1981 on 27-8-1981.2. the facts relevant to the writ petition stated briefly are as follows. the respondent purchased the premises from one mohamad bashir under a registered sale-deed dated 27-6-1974. the petitioner was already occupying these premises as a tenant which were let out to him for the purpose of running a shop. along with the ownership of the premises, the respondent also acquired the right to recover arrears of rent from the petitioner. by his notice dated 6-12-1974 the respondent terminated the tenancy of the petitioner on the ground that he had committed wilful default by not paying the rent for the past three years. the respondent also filed a civil suit.....
Judgment:

A.A. Ginwala, J.

1. This writ petition under Article 227 of the Constitution of India has been preferred against the order passed by the Rent Controller, Osmanabad on 16-12-1980 under the provisions of the Hyderabad Houses (Rent, Eviction and Lease) Control Act, 1954 (hereinafter referred to as 'the Act') directing the petitioner to vacate the tenement, and confirmed by the District Judge, Osmanabad, in Rent Appeal No. 1 of 1981 on 27-8-1981.

2. The facts relevant to the writ petition stated briefly are as follows. The respondent purchased the premises from one Mohamad Bashir under a registered sale-deed dated 27-6-1974. The petitioner was already occupying these premises as a tenant which were let out to him for the purpose of running a shop. Along with the ownership of the premises, the respondent also acquired the right to recover arrears of rent from the petitioner. By his notice dated 6-12-1974 the respondent terminated the tenancy of the petitioner on the ground that he had committed wilful default by not paying the rent for the past three years. The respondent also filed a civil suit being Civil Suit No. 39 of 1975 against the petitioner for recovering an amount of Rs. 1080/- as arrears of rent. A decree for Rs. 541.66 was passed in that suit for arrears of rent on 24-12-1976. In appeal the decree was confirmed. The respondent thereafter served another notice on the petitioner on 31-8-1976, terminating his tenancy on two grounds, namely, that the petitioner had not paid rent due by him as provided in Clause (i) of sub-section (2) of section 15 of the Act and that he had been using the premises for the purpose other than the one for which it was let out. The respondent moved the Rent Controller for eviction of the petitioner on these two grounds. The Rent Controller held that the petitioner was not a wilful defaulter within the meaning of section 15(2)(i) of the Act. However, he held that the petitioner had used the premises for the purpose other than that for which it was let out, viz. for running a shop. The Rent Controller, therefore, passed an order directing the petitioner to vacate the premises and hand over possession to the respondent within one month from the date of order.

3. Being aggrieved by this order the petitioner preferred an appeal before the District Judge as provided under section 25 of the Act. The respondent preferred cross-objection against the finding of the Rent Controller that the petitioner was not a wilful defaulter. At the hearing of the appeal a preliminary objection was taken on behalf of the petitioner with regard to the maintainability of the cross objection. It was urged that the provisions of the Code of Civil Procedure and particularly the provisions contained in Order 41 of the Code were not applicable to the appeals provided under section 25 of the Act and hence it was not permissible for the respondent to prefer cross-objection against the finding which went against him. This preliminary objection was rejected by the learned District Judge and he held that the respondent was entitled to contest the finding recorded by the Rent Controller against him on the question of the petitioner being a wilful defaulter and to support the ultimate order passed by the Rent Controller on that ground. The learned District Judge reversed the finding of the Rent Controller to the effect that the petitioner was not a defaulter and held that he was a defaulter and the respondent was entitled to possession on this ground also. The learned District Judge upheld the finding of the Rent Controller with regard to the change of user of the premises by the petitioner. In the view which he took, the learned District Judge confirmed the order passed by the Rent Controller and dismissed the appeal. It is against this order as said above that the present writ petition has been filed.

4. Mr. Chapalgaonkar, the learned Counsel for the respondent, raised a preliminary objection with regard to the maintainability of the writ petition. He submitted that as under section 26 of the Act an application for revision lies to this Court from any final order passed in appeal by the Appellate Authority, a person aggrieved by such an order cannot invoke the extraordinary jurisdiction of this Court under Articles 226 and 227 of the Constitution, without resorting to the remedy of filing an application for revision, as in the present case. In support of this contention he relied on the decision of the Supreme Court in Mohammed Yunus v. Mohammed Mustaqim. : [1984]1SCR211 . On the other hand Mr. Bora, the learned Counsel for the petitioner, submitted that the practice is that the appellate orders passed under section 25 of the Act are challenged by way of writ petition and not by invoking the revisional jurisdiction of this Court under section 26 thereof. He said that such writ petitions had been entertained by this Court without any objection. In the alternative he submitted that if the present writ petition is found to be untenable, it should be tried as revision and disposed of as such.

5. The ruling of the Supreme Court in the case cited above clearly supports the objection taken by Mr. Chapalgaonkar. That Court has held that the High Court has no jurisdiction to interfere with an order, under Article 227 of the Constitution, if the remedy of filing a revision application to the High Court under section 115 of the Code is available. What has been said by the Supreme Court with reference to section 115 of the Code is applicable with equal force in the context of section 26 of the Act since the latter is pari materia with the former. Hence I find that the writ petition is not tenable. The mere fact that a practice has grown under which the appellate orders were permitted to be challenged in writ jurisdiction cannot be a reply to the law laid down by the Supreme Court in clear terms. However, since the writ petition has been admittedly filed within the period of limitation provided for filing an application for revision to this Court, I am inclined to treat this writ petition as a revision application under section 26 of the Act and dispose it of as such since I have heard both the Counsel on merits also.

6. Contesting the view taken by the Appellate Authority that the cross-objections filed by the respondent was tenable, Mr. Bora submitted that though under section 24 of the Act the provisions of the Code had been made applicable for a limited purpose to inquiries before the Rent Controller, section 25 makes no reference to the Code and hence the inference would be that the legislature did not intend to apply provisions of the Code to appeals under that section. He submitted that in the absence of any provisions in the Act entitling a party to file cross-objection in respect of a finding recorded against him, it would not be permissible for the Appellate Authority to entertain such cross-objection much less under Order 41, Rule 22 of the Code. As against this, Mr. Chapalgaonkar submitted that as a matter of fact it was not necessary for the respondent to challenge the finding of the Rent Controller which went against him by filing an appeal or cross-objection, as he could otherwise also challenge this finding in appeal filed by the petitioner. He contended that since the final order of the Rent Controller was in favour of the respondent, he could not have filed appeal or cross-objection against mere finding recorded against him. In the alternative he submitted that in any case though the provisions of the Code are not made specifically applicable to appeals under section 25, the principles underlying these provisions would apply and hence also the respondent would be entitled to contest in such finding in appeal filed by the petitioner.

7. In my view it is not necessary in this case to record a finding on the question whether the provisions of the Code apply to appeals under section 25 of the Act, since the controversy before me can be resolved on the assumption that they do not apply. I would, therefore, assume that such appeals are not governed by Order 41 of the Code.

8. It is an accepted principle that an appeal is nothing but continuation of the proceedings before the original Court or authority and that the whole case lies open for the Appellate Authority to consider under its power is restricted by the law such as in second appeal. The power of the Appellate Authority to deal with the matter is co-extensive with the power of the original authority. The Appellate Authority, subject to limitations provided by law, can do what the original authority is empowered to do. Now if a party seeks a particular relief before the original authority on several counts, and the latter grants it on some of them rejecting the other, the Appellate Authority in appeal filed by the party against whom that relief is granted can seek the same relief also on the counts which have been rejected by the original authority, as before the Appellate Authority the whole case in relation to that relief would be open. Taking a different view would result in manifest injustice. The party who is granted the relief will not be in a position to prefer an appeal merely against the count which has been held against him by the original authority since appeal is provided against the final order granting the relief and not against the finding on which it is granted though the appellant has to challenge those findings in order to show that the relief could not have been granted. If the Appellate Court reverses the finding on which the relief is granted, such party would suffer a great loss because he would be prevented from filing appeal against the finding recorded against him though he could have succeeded on that count if appeal had been permitted. It is because of this that Order 41, Rule 22 provides that a respondent may in support of the decree also state that the finding against him in the Court below in respect of any issue ought to have been in his favour. I may state here that cross-objection stands on a different footing. Cross-objections filed against that part of the decree which has gone against the respondent. Cross-objection against a finding is not contemplated. There is no reason why in the absence of any specific procedure provided for appeal, the principles underlying order 41, Rule 22 should not be adopted. After all the provisions contained in the Code are based on principles of natural justice and fair play and are meant to do justice between the parties. At any rate as has been said, procedure is not the mistress but hand-maid of justice. For these reasons I find that the respondent could have challenged the finding recorded by the Rent Controller on the question of default in the appeal filed by the petitioner.

9. It was then contended by Mr. Bora that though the Rent Controller had recorded a finding that the petitioner had not committed willful default, while reversing this finding the Appellate Authority had merely stated that the petitioner had committed default in payment of rent. Mr. Bora submitted that in the absence of clear finding on the part of the Appellate Court that the petitioner had committed the alleged default wilfully, the proviso to sub-section (2) of section 15 of the Act would operate and in that case it was incumbent for the Appellate Authority to give a reasonable time to the petitioner to pay or tender the rent to the respondent. Mr. Bora, therefore, submitted that the Appellate Authority had ignored this proviso and had erred in confirming the order of the Rent Controller without giving opportunity to the petitioner to pay the rent up-to-date.

10. It is true that the Appellate Authority has not used the word 'wilful' while discussing this aspect of the case. However, if one goes through the relevant portion of the judgement it would be abundantly clear that the Appellate Authority was of the view that the petitioner had committed defaults wilfully. In this connection it may be noted that the Appellate Authority has taken into considerations, the way the petitioner has been paying the rent. This has been done to find out whether the petitioner had deliberately omitted to pay the rent. It is not, therefore, possible to come to the conclusion, merely because the Appellate Authority has not used the word 'wilful', that the authority was of the view that default has not been wilfully committed. One has to see the tenor of the judgement and mere omission of a word here or there cannot turn the scales. I, therefore, do not find any substance in this contention.

11. In so far as the change of user is concerned Mr. Bora submitted that the finding by both the authorities below against the petitioner had been recorded on insufficient and inadequate material on record. He submitted that the respondent had not adduced evidence to show positively that the petitioner had abandoned the use of the premises as a shop and had started using it for other purpose, namely residential. According to Mr. Bora, if the premises were used for an election campaign, it was only an additional user, but not change of user, since the petitioner continued his business of fair price shop in the premises. Here again both the authorities below have recorded a concurrent finding on the question of fact. This is not a case where it could be said that the finding has been recorded without any material whatsoever on record or that extraneous material was taken into consideration or that the finding is perverse. Obviously there is some material on record in this behalf. If the authorities below have drawn a particular conclusion from that material, it would not be permissible for the revisional Court to substitute its own finding for the finding of the authorities. Power of the revisional Court is restricted to correct jurisdictional error and not errors of fact or law. I am, therefore, unable to uphold the contention of Mr. Bora in this regard.

12. The result, therefore, is that the revision petitioner has failed on all counts and hence the revision stands dismissed with costs.


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