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V.R. Rajagopilaiah Setty Vs. N. Radhakrishna - Court Judgment

LegalCrystal Citation
SubjectTenancy;Civil
CourtKarnataka High Court
Decided On
Case NumberCivil Revn. Petn. No. 2297 of 1978
Judge
Reported inAIR1984Kant128
ActsCode of Civil Procedure (CPC), 1908 - Sections 115
AppellantV.R. Rajagopilaiah Setty
RespondentN. Radhakrishna
Appellant AdvocateS. Gopal, Adv.
Respondent AdvocateH. Venkitaramaiah, Adv.
Excerpt:
.....has not been properly explained. writ petition dismissed on grounds of delay and laches. - the district judge in the revision before him set aside the conclusion arrived at by the, munisiff and concluded that the petitioner has failed to prove that it was the opponent-tenan' that had put up the permanent structure. ' thus the said decision in keshardeo chamria's case, clearly goes to show that however grossly wrong the conclusion on findings of facts or law, the high court cannot invoke the power under section 115 c. the decision of the district court that the tenant established or failed to establish his readiness and willingness to pay the standard rent does not affect the jurisdiction of the court conferred by law upon it, and by wrongly deciding that a tenant is or is not..........the consent and knowledge of the landlord and therefore the opponent was liable to be evicted. the district judge in the revision before him set aside the conclusion arrived at by the, munisiff and concluded that the petitioner has failed to prove that it was the opponent-tenan' that had put up the permanent structure. taking this view, the learned district judge set aside the order of eviction passed by the munsiff and in the result dismissed the revision petition. therefore the revision petition by the landlord.6. the learned district judge has rightly come to he conclusion that demolishing of an existing wall of putting up a fresh wall would amount to material alteration and putting up a permanent construction. he has taken into consideration the plan exhibit p1 according to which the.....
Judgment:
ORDER

1. The revision petition by the landlord is directed against the order dated 22-4-1978 passed by, the District Judge, Kolar, in H. R. C. R. P. No.70 of 1976 setting aside the order of eviction passed by the Munsiff, K. G. F. in H.R.C. No.17 of 1973.

2. The parties have been referred to in -the course of this order with reference to their position In the trial Court.

3. The petitioner-landlord filed the petition under Section 21(a)(b) and (4) of the Karnataka Rent Control Act, 1961, alleging that the Schedule premises had been leaked out to the opponent-tenant on a monthly rent of Rs. 50/- and that he had -executed rent note dated 1-7-1960 and that he had fallen in arrears to the. tune of As. 350/- According to him the opponent-tenant demolished the wall existing in the schedule premises of the eastern side between verandah (passage) and the room and he has constructed it new wall in the room portion. This is in violation of clause (o) of Section 108 of the T. P. Act He has unlawfully erected a permanent structure without the consent of the landlord. Hence under the said circumstances, he filed the petition for eviction.

4. The opponent-tenant by his objections denied all the petition allegations.

5. The Munsiff Court, on a scrutiny of the evidence, found that the opponent had put up a permanent construction i.e., the wall, without the consent and knowledge of the landlord and therefore the opponent was liable to be evicted. The District Judge in the revision before him set aside the conclusion arrived at by the, Munisiff and concluded that the petitioner has failed to prove that it was the opponent-tenan' that had put up the permanent structure. Taking this view, the learned District Judge set aside the order of eviction passed by the Munsiff and in the result dismissed the revision petition. Therefore the revision petition by the landlord.

6. The learned District Judge has rightly come to he conclusion that demolishing of an existing wall of putting up a fresh wall would amount to material alteration and putting up a permanent construction. He has taken into consideration the plan Exhibit P1 according to which the present construction was put up. He has also taken into consideration the legal notice Exhibit D-1 and the reply Exhibit-P3. Even in the legal notice Exhibit D1, it is not mentioned as to in what year, what date or what month the wall was demolished or a new wall was put up. Even in the petition this has been kept rather too vague. Even the lease deed Exhibit P5 dated 1-7-1969 under which the opponent tool the lease does not specifically mention about the existence of the wall between the passage and the room and the putting up of a new construction or anything of the sort. The evidence of the petitioner P.W. 1 and his witness P.W. 2 has been rightly disbelieved by the Court. Therefore, under these circumstances, it is rather hard to say that the District Judge has gone at a tangent o has taken into consideration some matters which were not on the record. Even it cannot be said that he has misinterpreted the facts that were available on the record. Therefore the argument of the learned counsel Shri Gopal for the landlord hat the learned Judge has taken into consideration some facts which were not borne out the record and that he has relied upon some thing which was not borne out the record, does not appeal to me in the least. Thus the District Judge was Justified in coming to the conclusion that the present opponent who had come into possession of the petition property as per the lease deed Exhibit P5 dated 1-7-1969 was not proved to have demolished the previous existing wall or put up a new one in another place. Therefore on facts also, the present revision petition fails.

7. The learned counsel Shri Gopal in support of his contention referred me to the commentary on page 691 of Mulla on C. P. C. Ist Vol. 14th Edn. Mulla has referred to Printers (Mysore) Private Ltd. V.P. Joseph : [1960]3SCR713 . It is said in the case thus (Para 9) :-

'As is often said, it is ordinarily not open to the appellate Court to substitute its own exercise o discretion or that of the trial Judge.

But if it appears to the appellate Court that in exercising its discretion the trial Court has acted unreasonably or capriciously or has ignored relevant fats and has adopted an unjudicial approach then it would certainly be open to the appellate Court - and in many cases it may be its duty - to interfere with the trial Court's exercise of discretion. In cases falling under this class the exercise of discretion by the trial Court is in law wrongful and improper and that would certainly justify and call for interference from the appellate Court'. Mulla has also said thus : -

'These observations were made with reference to the powers of Court hearing an appeal against an order under Section 34 of the Arbitration Act. The same principles apply when the High Court acts under its revisional jurisdiction.'

The word unjudicial approach mentioned in the said Printers (Mysore) Private Ltd's case, means that the Judge concerned had ignored the judicial principles relating to the jurisdiction of the Court and thus the power of the rivisional Court to correct the findings resulting from the unjudicial approach was upheld. Therefore, the said commentary of the learned author Mulla will not come to the rescue of Shri Gopal. In my opinion, it does not resolve the difficulty on hand.

8. Shri. Gopal referred to the decision in Keshardeo Chamria v. Radha Kissen Chamria : [1953]4SCR136 the Supreme Court held thus : -

'A large number of cases have been collected in Edn. 4 of Chitaley and Rao's Code of Civil Procedure Vol. I Which only serve to show that the High Courts have not always appreciated the limits of the jurisdiction conferred by this Section. In Mohunt Bhagwan Ramanuj Das v. Khetter Moni Dassi (1897) I Cal WN 617, the High Court of Calcutta expressed the opinion that Sub-clause (c) of S. 115, Civil P.C., was intended to authorize the High Courts o interfere and correct gross and palpable errors of subordinate Courts, so as to prevent grave injustice in non-appealable cases. This decision was, however, dissented from by the same High court in Enat Mondul v. Baloram Dey, (1899) 3 Cal WN 581 but was cited with approval by Lort-Williams J., in Gulabehand Bangur v. Kabiruddin Ahmed, : AIR1931Cal27 '.

Their Lordships ultimately on scanning the various cases of the various High Courts and taking into consideration the cased decided by the Privy council ultimately laid down in para 20 thus : -

'Reference may also be made to the observations of Bose J., in his order of reference in Narayan Sonaji v. Sheshrao, Vithoba AIR 1948 Nag 258 (FB) wherein it was said that the words illegally, and material irregularity, do not cover either errors of fact or law. They do not refer to the decision arrived at but to the manner in which it is reached. The errors contemplated relate to material defects of procedure and not to errors of either law or fact after the formalities which the law prescribes have been complied with.'

Thus the said decision in Keshardeo Chamria's case, clearly goes to show that however grossly wrong the conclusion on findings of facts or law, the High Court cannot invoke the power under Section 115 C. P. C. to correct them.

9. In Vora Abbasbhat Alimahomed v. Haji Gulamnabi Haji Safibhai (AIR 19 SC 1341), the Supreme Court said thus:

'the section (Section 115 of the Civil Procedure Code) applies to jurisdiction alone, the irregular exercise or non-exercise of it or the illegal assumption of it. The section is not directed against conclusion of law or fact in which the question of jurisdiction is not involved.

'Therefore, if the trial court had jurisdiction to decide a question before it and did decide it, whether it decided it rightly or wrongly, the Court had jurisdiction to decide the case, and even if it decided the question wrongly, it did not exercise its jurisdiction illegally o with material irregularity.'

It further held at page 1348 thus : -

'Section 12(1) does not affect the jurisdiction of the Court to entertain and decide a suit in ejectment against a tenant. It merely confers a protection upon a tenant if certain conditions are fulfilled, and clauses (2), 3 (a), 3 (b) and the Explanation deal with certain specific cases in which readiness and willingness to pay standard rent, may either be presumed or regarded as proved. The decision of the District Court that the tenant established or failed to establish his readiness and willingness to pay the standard rent does not affect the jurisdiction of the court conferred by law upon it, and by wrongly deciding that a tenant is or is not entitled to protection, the court does not assume to itself jurisdiction which is not vested in it by law or refuses to exercise a jurisdiction which is vested in it by law. Nor does the Court by arriving at an erroneous conclusion on the plea of the tenant as to his readiness and willingness act illegally or with material irregularity in the exercise of its jurisdiction.'

10. In Pandurang Dhondi Chougule v. Maruti Hari Jadhav : [1966]1SCR102 , the supreme court held thus :-

'The High Court cannot while exercising its jurisdiction under Section 115, correct errors of fact, however gross they may be, or even errors of law. It can only do so when the said errors have relation to the jurisdiction of the Court to try the dispute Itself. It is only in cases where the subordinate Court has exercised a jurisdiction not vested in it by law, or has failed to exercise a jurisdiction so vested, or has acted in the exercise of its jurisdiction illegally or with material irregularity that the revisional jurisdiction of the High Court can be properly invoked.'

The High Court can invoke its jurisdiction under Section 115 of the Civil P. C. only when a plea of limitation or a plea of res judicata or a plea barring the jurisdiction of a Court which concerns the jurisdiction of a Court is raised and wrongly decided by the Court. Otherwise no other question of fact or law can be gone into by 4he 'High Court, in a revision filed under Section 115 C.P.C.

11. In Managing Director (MIG) Hindustan Aeronautics Ltd., Balanagar, Hyderabad v, Ajit Prasad Tarway, (AIR 197:- SC 76), the Supreme Court held thus:-

'5. In our opinion the High Court had no jurisdiction to interfere with the order of the first appellate Court. It is not the conclusion of the High Court that the first appellate Court had no jurisdiction to make the order that it made. The order of the first appellate Court may be right or wrong; may be in accordance with law or may not be in accordance with low: but one thing is clear that it had jurisdiction to make that order. It is not the case that the first appellate Court exercised its jurisdiction either illegally or with material irregularity. That being so, the High Court could not have invoked its jurisdiction under Section 115 of the Civil P. C.'

12. Thus, it follows that however profoundly gross the conclusions of the District Judge either on question (if fact or law might be, the High Court cannot assume jurisdiction under Section 11F, of the Civil P. C. in order to correct the gross misinterpretation of fact or law. It is only the misinterpretation of the law relating to some laws like limitation, res judicata or provisions creating the bar of jurisdiction that would seriously affect the jurisdiction of a Court, that can be corrected b : y the High Court under Section 115 of the Civil P. C. So long as there is no error of jurisdiction and so long as there is no material irregularity or illegality in the exercise of jurisdiction this Court cannot invoke power under Section 115 C. P. C. in order to correct even wrong appreciation of evidence or wrong interpretation of law or wrong approach made by the Court below in the appreciation of the evidence.

13. The District Judge in this case admittedly had got jurisdiction to decide the case. No material irregularity or illegality in the exercise of jurisdiction of the District Judge has been pointed out to me. It is not pointed out that he has exercised jurisdiction which is not vested in him. It is not shown to me that he has refused to exercise the jurisdiction which was vested in him. Therefore, even viewed from this angle, the revision petition fails and it is accordingly dismissed.

14. All the parties are ordered to bear their own costs throughout.

15. Revision dismissed


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