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Nathu Khan and ors. Vs. Mohd. Ismail - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtDelhi High Court
Decided On
Case NumberReview Application No. 15 of 1973
Judge
Reported inILR1973Delhi667
ActsCode of Civil Procedure (CPC), 1908 - Sections 151 - Order 47, Rule 1
AppellantNathu Khan and ors.
RespondentMohd. Ismail
Advocates: L.D. Adlakha and; S.S. Chadha, Advs
Cases ReferredNathu Khan v. Mohd. Ismail
Excerpt:
the case focused on the scope of the expression 'error apparent on the face of record' under order 47 rule 1 of the civil procedure code, 1908 - it was ruled that to determine as to what is an error apparent on the face of record, the supreme court had stated in various cases that no error could be said to be apparent on the face of record if it was not self evident and if it required an examination or argument to establish it - - (9) the law is well established as to what is meant by an 'error apparent on the face of the record'.the test applicable to the majority of the cases was laid down by the supreme court in hari vishnu kamath v......of andhra pradesh, : [1964]5scr174 . it is not possible, thereforee, to argue back from the full bench decision of 5th april 1973 that the law declared therein was clear on 1st september 1972. an additional reason why the full bench decision of the 5th april 1973 cannot be used for this purpose is that even after the said full bench decision, the same full bench which decided it has referred the said decision for re-consideration to a larger bench presumably of five judges. this is mentioned only to show that the question is still being considered and is not regarded as finally settled. (6) the question which was agitated in nathu khan v. mohd. ismail 1973 rcr 63, and which is still regarded as worthy of further consideration inspire of the full bench decision in k. g. malhotra v......
Judgment:

V.S. Deshpande, J.

(1) This review application which purports to be made under section 114 read with section 151 Civil Procedure Code has really to be treated as one made under Order Xlvii rule I Civil Procedure Code. For, section 151 has no application to this case. A review under section 151 is made to avoid the abuse of the process of the court and to correct some palpable error which the court committed by mistake. (Shivdeo Singh v. State of Punjab Air 1963 Sc 1909),

(2) The only ground on which the application could be considered under Order Xlvii rule 1 Civil Procedure Code is whether the order dated 1st September 1972 which is sought to be reviewed disclosed 'error apparent on the face of the record' on 1st September 1972 when it was passed.

(3) The present petitioners had contended before me in S.A.O. 178 of 1972 (Nathu Khan and others v. Mohd lsmail) that the order of eviction passed by the Controller under section 14 of the Delhi Rent Control Act, 1958 against the legal representatives of a deceased statutory tenant was without jurisdiction and. thereforee, the executing court could ignore the same and refuse to execute the said order. This contention was fully argued and replied from the opposite side and after full consideration it was decided in the decision of which a review is sought, namely, Nathu Khan v. Mohd. Ismail, 1973 Rcr 53, that though the order of the Controller evicting the legal representatives of the deceased statutory tenant was without jurisdiction, the law to this effect was not so clear as to enable the executing court to refuse to execute the order on the ground that it was without jurisdiction. The petitioners have not tried to secure special leave of the Supreme Court for an appeal against that decision under Article 136 of the Constitution. Subsequently on the 5th of April 1973 a Full Bench of this Court in K. G. Malhotra v. Vijay Kumar (E.S.A. 2 of 1971) held that the eviction of a legal representative of a deceased statutory tenant by the Controller under section 14 of the Delhi Rent Control Act, 1958 would be without jurisdiction and an executing court would be entitled to refuse to execute such an order. The present review application was made mainly on the ground that in the light of the decision of the Full Bench dated 5th April 1973, the decision of the Single Bench dated 1st September 1972 disclosed an error of law apparent on the face of the record and on that account it was liable to be reviewed.

(4) The only question for decision, thereforee, is whether on the 1st of September 1972 the decision in Nathu Khan v. Mohd. Ismail, 1973 Rcr 63, disclosed an 'error apparent on the face of the record' within the meaning of Order Xlvii rule I Civil Procedure Code.

(5) The first proposition to remember in this connection is that the question whether the decision disclosed an error apparent on the face of the record or not is to be decided in the .light of the law as it was on the 1st of September 1972. A subsequent clarification of the law cannot be taken into account. This has been so observed by the Supreme Court in M/s. A. C. Estates v. M/s. Serajuddin and Co., : [1966]1SCR235 and in M/s. Thungabhadra Industries Ltd. v. The Government of Andhra Pradesh, : [1964]5SCR174 . It is not possible, thereforee, to argue back from the Full Bench decision of 5th April 1973 that the law declared therein was clear on 1st September 1972. An additional reason why the Full Bench decision of the 5th April 1973 cannot be used for this purpose is that even after the said Full Bench decision, the same Full Bench which decided it has referred the said decision for re-consideration to a larger Bench presumably of five Judges. This is mentioned only to show that the question is still being considered and is not regarded as finally settled.

(6) The question which was agitated in Nathu Khan v. Mohd. Ismail 1973 Rcr 63, and which is still regarded as worthy of further consideration inspire of the Full Bench decision in K. G. Malhotra v. Vijay Kumar is this : On the one hand Order XXII. rule 4 Civil Procedure Code has been applied to the rent control proceedings by section 37(2) of the Delhi Rent Control Act, 1958. Accordingly, on the death of the statutory tenant his legal representatives have to be brought on record even though they do not inherit either the tenancy or the statutory protection of the deceased tenant. For, a legal representative under section 2(11) of the Civil Procedure Code has only to represent the estate of the deceased. He need not actually inherit any estate of the deceased. If the legal representatives have to be brought on record and the eviction proceeding has to proceed against them, then it may be argued that the Controller should also pass an order turn eviction against the legal representatives. On the other hand, the difficulty in the way of the Controller in evicting the legal representatives is this: By the prohibition contained in section 14(1) of the Delhi Rent Control Act, 1958 even the tenant cannot be evicted by the Controller except on one of the grounds mentioned in the proviso to section 14(1). Further, the jurisdiction of the Controller is confined to the eviction of a tenant under the Rent Act. If a person is not a tenant, then a petition for eviction cannot be filed against him.

(7) The question, however, still remains for consideration whether a petition which is originally filed with jurisdiction against the tenant becomes one without jurisdiction after the death of the tenant and whether the Controller cannot pass an order against the legal representatives of a tenant inasmuch as such an order cannot be passed on any of the grounds mentioned in the proviso to section 14(1).

(8) Firstly, it is not possible to decide this question on the wording of any statute. Secondly, there is no decision of the Supreme Court deciding this precise question under the Delhi Rent Control Act, 1958. The decision of the Supreme Court in J. C. Chatterjee v. Sri Kishan Tandon 1972 Sc 2526, holds that a legal representative can be brought on record and an order for eviction can be passed against him. The Full Bench in K. G. Malhotra's case, however, distinguished the Supreme Court decision as being applicable when a suit for eviction is filed in a civil court of general jurisdiction only but not when a petition for eviction is filed before the Controller under the Delhi Rent (control Act, 1958 when the jurisdiction of the Controller is limited to a proceeding between a landlord and a tenant and because a petition based on title cannot be filed against a non-tenant under the Act of 1958. Thirdly, so much can be said on both sides on this question. It could not, thereforee, be said on the 1st September 1972 that the answer to this question was so clear that the executing court could have ignored the decision of the Controller evicting the legal representatives of the tenant on the ground that the order of the Controller was without jurisdiction.

(9) The law is well established as to what is meant by an 'error apparent on the face of the record'. The test applicable to the majority of the cases was laid down by the Supreme Court in Hari Vishnu Kamath v. Ahmad Ishaque, : [1955]1SCR1104 , paragraph 23, in the following words :-

'NOerror could be said to be apparent on the face of the record if it was not self-evident and if it required an examination or argument to establish it'.

(10) This test was further followed by the Supreme Court in Satyanarayan Laxminarayan Hegde v. Mallikarjun Bhavanappa Tirumale, : [1960]1SCR890 , and in Ujjam Bai v. State of Uttar Pradesh Air 1962 Sc 1621 per Subba Rao, J. Can it be said that on the 1st of September 1972 the answer to this question was self-evident and did not need any argument? Had that been so, the learned counsel who appeared for the petitioners would have taken the plea of the lack of the jurisdiction of the Controller in the very proceeding in which the Controller passed the order for eviction against the legal representatives. But such a plea was not taken right till the second appeal was decided by the High Court. Even when the plea was taken in Nathu Khan v. Mohd. Ismail 1973 Rcr 63, it required a lot of argument and consideration to be decided. The mere fact that two opinions may be possible on a question or that the decision may be opposed to another decision of a larger Bench etc. does not make a decision had as containing an error apparent on the face of the record. (Chhajju Ram v. Neki and others Air 1922 P.C. 112), There is a clear distinction between an error apparent on the face of the record and an error which cannot be said to be apparent on the face of the record. (Thungabhadra Industries Ltd. v. Government of Andhra Pradesh, referred to above, paragraphs 11 and 12). Had the present petition been an appeal, then one could have considered whether the decision in Nathu Khan v. Mohd. Ismail 1973 Rcr 63, was right or wrong. But this is a review petition which has to be considered under Order Xlvii rule 1 Civil Procedure Code For the reasons given above, I am unable to hold that on the 1st of September, 1972 the law on this question was so clear that even an executing court could have ignored the decision of the Controller and could have refused to execute. The review petition is, thereforee, dismissed without any order as to costs.


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