1. This is a petition for review of the Order of this Court dated 4-8-1976 in C.R.P. No. 2611 of 1973 where by H.R.C. No. 45 of 1970 is allowed and the petitioner tenant is directed to vacates the premises.
2. It was the case of the landlords respondents before the learned Munsiff that they required the premises for their bona fide and reasonable occupation and as such, under S. 21(1) proviso (h) of the Karnataka Rent Control Act, 1961, the tenant was to be asked to deliver possession of the schedule premises. On that plea essentially, the case of eviction was contested before the learned Munsiff. His finding was that the reasonable and bona fide requirement of the landlords was fulfilled. As such, he ordered for eviction of the tenant.
3. Being dissatisfied with the decision of the learned Munsiff, the tenant came in appeal before the learned District Judge, and as evident from the appellate order, a specific plea was raised at that stage, that the question of comparative hardship referred to in sub-s. (4) of S.21 was left undecided, as the land lords being new to their business, if at all would need a part of the premises. Therefore the question of partial eviction was specifically raised and that question directly affected the main contention as to comparative hardship of the tenant, if he is asked to vacate the entire premises. The learned District Judge, however, considered that the plea of partial eviction was not taken in the objection filed to the H. R. C. petition and, therefore, the tenant was precluded from taking that plea. Saying so, the learned District judge held that the reasonable and bona fide requirement of the landlords for the entire premises was satisfied. The eviction petition was accordingly granted. Thereafter, the tenant filed a revision in C. R. P. No. 2611 of 1973 in this Court. The finding of the learned District Judge was confirmed and against the judgment of this Court, the present review petition is directed.
4. The learned counsel for the respondents contended at the outset, that a review from a decision by the High Court in revision under S. 50 of the Karnataka Rent Control Act, 1961, was not maintainable. According to the learned counsel, the provision for review is not provided for in that act and that alone should be a ground for rejection of the review application. There is a decision of this Court contrary to this contention in K. Anantharam Setty v. T. Mariappa (1966) 1 Mys LJ 649, it was held that an order dismissing the revision under S. 50 of the Karnataka Control Act, 1961, by the High Court can be reviewed under its plenary jurisdiction in order to prevent miscarriage of justice or to correct grave and palpable errors committed by it. The learned Judge referred to the plenary jurisdiction described in Arts. 226 and 227 of the Constitution. Therefore following the ratio of that decision, in my opinion the plenary jurisdiction of the High Court to correct its own errors in order to prevent miscarriage of justice, is to be exercised even by way of review of its own judgment given under S. 50 of the Karnataka Rent Control Act 1961. The question thereafter arose regarding the extent up to which the power to review could be exercised. As evident, Order XLVII, Rule 1 of the C. P. Code contains the power of review and that power is to be exercised with certain limitations. In my opinion, the power of review to be exercised from a decision under the Karnataka Rent Control Act, 1961 could in no case be considered to be more extensive than the power of review conferred under O. XLVII, R. 1 of the C. P. Code. Therefore, even if O. XLVII, R. 1, C. P. Code may not apply in its terms, the power of review can be exercised from a decision under the Karnataka Rent control Act, 1961 only within those limited conditions. It is, therefore, manifest, this Court can review its judgment only, if a new and important matter or evidence was discovered which after the exercise of due diligence, was not within the knowledge of either party, or if some mistake or error apparent on the face of the record was committed or if any other sufficient reason was made out calling for the review of the judgment. It is then to be considered as to whether any of these conditions are satisfied, so that interference by way of review can be made.
5. Sri R. U. Goulay, the learned counsel for the petitioner, took me through the judgment of the learned District Judge. In paragraph 13 of his judgment, the plea of comparative hardship with reference to partial eviction from the premises, was considered. The learned District judge held that the tenant was precluded from raising the plea of partial eviction on the ground that the said plea was not taken in his objection before the learned Munsiff. It was, therefore, incorrect that the learned District judge, upon evidence on merit, decided that the entire premises were bona fide or reasonably required for occupation by the landlords. This Court while considering that question, committed the apparent error, by saying that the learned District Judge considered that part of the plea on merit and held upon evidence that the landlords required the entire premises. In fact, that was not done by the learned District Judge. The plea was held to be precluded and on that basis alone it was inferred that the entire premises were required by the landlords. Thus, neither there was any plea nor any evidence, to hold that the entire premises were required by the landlords or that the landlords could satisfy their need only by occupying a part of the premises. This mistake apparent on the face of the record of the judgment of this Court, naturally led to the miscarriage of justice, and the plea, which could have been permitted being legal, at any stage, was not permitted to be raised, nor was it decided in the manner it could have been decided. It is manifest, under S. 21 (4) of the Karnataka Rent Control Act, 1961, it was the duty of the Court to have considered the question of comparative hardship. If the plea of partial eviction was not taken on behalf of the tenant, nonetheless the question of comparative hardship being very much involved with the question of bona fide and reasonable requirement of the landlords, should have been considered by the Court. This principle hag been upheld both by the learned District Judge as well as by this Court in the very same judgment. The mistake committed was that this Court held that the learned District Judge had decided on merits that the landlords required the entire premises but in fact he had not done so. Rather, the plea was precluded and no opportunity was given to adduce evidence on the question of comparative hardship.
6. While considering the power of review, their Lordships of the Supreme Court observed in Thungabhadra Industries Ltd. v. The Government of Andhra Pradesh : 5SCR174 that although a review is by no means an appeal in disguise, whereby an erroneous decision is reheard and corrected, but it does lie to rectify the patent error. Where without any elaborate argument one could point to the error and say here is a substantial point of law which stares one in the face, and there could reasonably be no two opinions entertained about it, a clear case of error apparent on the face of the record would be made out. In the instant case, it stares one in the face that an incorrect statement on a point of fact was made and entertained to defeat the claim of the tenant to raise the plea on the basis of comparative hardship inasmuch as it was yet to be decided if the landlords could meet heir requirement by partial eviction of the tenant from the premises. Thus, my opinion, a case for review even on the basis of the ratio of that decision by the Supreme Court is maintainable.
7. Sri C. S. Kothavale, the learned counsel for the respondents, was rather strenuous in contending that if at all, the Court committed a legal error and the review was not the remedy to correct that error. As to this proposition of law, there could be no dispute. But as I have stated before, a mistake or error apparent on the face of the record was committed by this Court and a wrong view was taken that the learned District judge had decided the plea even on merit, upon evidence adduced. In fact, that was not done and as evident, the learned District Judge precluded the tenant from raising that plea and on that basis merely he decided that the ground of reasonable and bona fide requirement was made out. The entire mistake in the order was due to that wrong assumption made by this Court in its order. Therefore, it is not a case of a wrong decision on a question of law, but it is a case where a mistake of statement of fact was made and, therefore, a wrong decision was arrived at. I think, considering the plenary jurisdiction as held by the learned Judge in X. Anantharam Setty v. T. Mariappa. (supra), the mistake can be corrected by way of review.
8. The petition is, therefore, allowed and the order dated 4-8-1976 passed in C. R. P. No. 2611 of 1973 on the file of this Court, is set aside. C. R. P. No. 2611 of 1973 shall again be set down for hearing.
9. Petition allowed.