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Chandrika Amma Vs. Mohammed - Court Judgment

LegalCrystal Citation
SubjectTenancy;Civil
CourtKerala High Court
Decided On
Case NumberC.R.P. No. 2856 of 1979-E
Judge
Reported inAIR1984Ker198
ActsKerala Buildings (Lease and Rent Control) Act, 1965 - Sections 11(2); Code of Civil Procedure (CPC) , 1908 - Sections 115 - Order 40, Rule 11
AppellantChandrika Amma
RespondentMohammed
Appellant Advocate N. Haridas, Adv.
Respondent Advocate P.N.K. Achen and; K. Vijayan, Advs.
DispositionPetition dismissed
Cases ReferredState of Madras v. Madurai Mills
Excerpt:
.....distinction between order of dismissal of appeal under rule 11 order 40 and order of dismissal of civil revision - order of subordinate courts having merged in order of dismissal of civil revision petition in limine tenant entitled to benefit under 11(2) (c). - - krishnaji, [1970]1scr322 ,arose under the bombay rents, hotel and lodging house rates control act of 1947. in that case, after the order of dismissal of a revision petition passed by the high court, the defeated party moved the high court under articles 226 and 227 of the constitution for vacating the order. now as is well known section 115, civil p. it can interfere if the subordinate court appears to have exercised the jurisdiction not vested in it by law or to have failed to exercise the jurisdiction so vested or to..........of rent was deposited before the rent control court within a month after the dismissal of the civil revision petition.3. subsequently the tenant-respondent filed i. a. no. 1533 of 1978 before the rent control court under section 11 (2) (c) of the act for vacating the eviction order. the rent control court held that the deposit was not made in time and dismissed the i. a. however, the appellate authority reversed that decision and that decision was confirmed by the district court in revision under section 20 of the act. the present revision is filed under section 115, c. p. c. against the said order of the district court.4. section 11 (2) (c) of the act reads as follows:'the order of the rent control court directing the tenant to put the landlord in possession of the building shall.....
Judgment:

John Mathew, J.

1. The question that is referred for decision by a DivisionBench is whether on the mere filing of a revision petition before this Court under Section 115, Civil P. C., and its dismissal at the admission stage the tenant could still bargain for another one month provided under Section 11 (2) (c), Kerala Buildings (Lease and Rent Control) Act, 1965, hereinafter referred to as the Act.

2. The landlord, the revision petitioner, filed a petition for eviction under Section 11 (2) (b) of the Act on the ground that rent is in arrears, which was allowed by the Rent Control Court. However, three months' time to pay the arrears was granted by the order of Rent Control Court under Section 11 (2) (c) of the Act. The tenant did not pay the arrears, but filed an appeal. The appeal was dismissed. But the appellate authority granted another two months' time for depositing the arrears. The respondent did not deposit the arrears, but filed a revision petition under Section 20 of the Act, before the District Court. The District Court dismissed the revision petition, but granted another two months' time from 23-1-1978, i. e. the date of dismissal of the revision petition. Without paying the arrears, the tenant filed a revision petition under Section 115, C. P. C., before this Court as C. R. P. No. 1584 of 1978 and that was dismissed at the admission stage, by order dated 14-6-1978. There is no dispute that the arrears of rent was deposited before the Rent Control Court within a month after the dismissal of the Civil Revision Petition.

3. Subsequently the tenant-respondent filed I. A. No. 1533 of 1978 before the Rent Control Court under Section 11 (2) (c) of the Act for vacating the eviction order. The Rent Control Court held that the deposit was not made in time and dismissed the I. A. However, the Appellate Authority reversed that decision and that decision was confirmed by the District Court in revision under Section 20 of the Act. The present revision is filed under Section 115, C. P. C. against the said order of the District Court.

4. Section 11 (2) (c) of the Act reads as follows:

'The order of the Rent Control Court directing the tenant to put the landlord in possession of the building shall not be executed before the expiry of one month from the date of such order or such further period as the Rent Control Court may in its discretion allow; and if thetenant deposits the arrears of rent with Interest and cost of proceedings within the said period of one month or such further period, as the case may be, it shall vacate that order.'

5. In the ruling reported in Kana-kamma v. Sivasankaran Nair, 1976 Kef LT 911 this Court has held that the period of one month would be available from the date of disposal of a revision filed before the High Court under Section 115, C. P. C. In the said decision Janaki Amma, J. considered a prior decision of this Court reported in Pallari Chandu v. Abdul Kadar Badsha, ILR (1960) Ker 1110. There this Court had held that the exercise of the revisional jurisdiction of the High Court under Section 115, C. P. C. is not the same or similar to the exercise of the appellate jurisdiction. However, in view of the decision of the Supreme Court reported in Shankar v. Krishnaji, : [1970]1SCR322 , the latter decision held that the reasoning of the former decision has no force.

6. The case in Sankar v. Krishnaji, : [1970]1SCR322 , arose under the Bombay Rents, Hotel and Lodging House Rates Control Act of 1947. In that case, after the order of dismissal of a revision petition passed by the High Court, the defeated party moved the High Court under Articles 226 and 227 of the Constitution for vacating the order. The Bench which heard the writ petition held that in spite of the dismissal of the petition under Section 115, C. P. C., there could be interference under Articles 226 and 227 of the Constitution on a proper case being made out. After going into the merits of the case it was held that the orders of the courts below were liable to be set aside. In an appeal against this order the Supreme Court considered the scope of Section 115, C. P. C. and observed in para 3, as follows:

'Now as is well known Section 115, Civil p. C., empowers the High Court to call for the record of any case which has been decided by any Court subordinate to it and in which no appeal lies to it. It can interfere if the subordinate Court appears to have exercised the jurisdiction not vested in it by law or to have failed to exercise the jurisdiction so vested or to have acted in the exercise of its jurisdiction illegally or with material irregularity. The limits of the jurisdiction of the High Court under this section are welldefined by a long course of judicial decisions. If the revisional jurisdiction is invoked and both parties are heard and an order is made the question is whether the order of the subordinate Court has become merged in the order of the High Court, If it has got merged and the order is only of the High Court, the order of the subordinate Court cannot be challenged or attacked by another set of proceedings in the High Court, namely, by means of a petition under Article 226 or 227 of the Constitution. It is only if by dismissal of the revision petition the order of the subordinate Court has not become merged in that of the High Court that it may be open to a party to invoke the extraordinary writ jurisdiction of that Court.......'Later on the Supreme Court observed as follows in paragraph 5:

'It would appear that their Lordships of the Privy Council regarded the revisional jurisdiction to be a part and parcel of the appellate jurisdiction of the High Court. This is what was said in Nagendra Nath Dev v. Suresh Chandra Dcy, :

'There is no definition of appeal in the Code of Civil Procedure, but their Lordships have no doubt that any application by a party to an Appellate Court, asking it to set aside or revise a decision of a Subordinate Court, is an appeal within the ordinary acceptation of the term......' Similarly in Raja of Ramnand v. Kamid Rowthen, 53 Ind App 74 : AIR 1926 PC 22, a civil revision petition was considered to be an appropriate form of appeal from the judgment in a suit of small cause nature. A Full Bench of the Madras High Court in P. P. P. Chidambara Nadar v. C. P. A. Rama Nadar, AIR 1937 Mad 385 had to decide whether with reference to Article 182(2), Limitation Act, 1908, the term appeal was used in a restrictive sense so as to exclude revision petitions and the expression 'appellate court' was to be confined to a Court exercising appellate, as opposed to, revisional powers. After an exhaustive examination of the case law including the decisions of the Privy Council mentioned above the Full Bench expressed the view that Article 182(2) applied to civil revisions as well and not only to appeals in the narrow sense ofthat term as used in the Civil Procedure Code.........'

Now when the aid of the High Court is invoked on the revisional side it is done because it is a superior Court and it can interfere for the purpose of rectifying the error of the Court below. Section 115, C. P. C. circumscribes the limits of that jurisdiction but the jurisdiction which is being exercised is a part of the general appellate jurisdiction of the High Court as a superior Court. It is only one of the modes of exercising power conferred by the statute, basically and fundamentally it is the appellate jurisdiction of the High Court which is being invoked and exercised in a wider and larger sense. We do not therefore consider that the principle of merger of orders of inferior courts in those of superior Courts would be affected or would become inapplicable by making a distinction between a petition for revision and appeal.'

7. As a general rule, the appellate judgment stands in the place of the original judgment for all legal purposes. In other words, the decree of the lower court merges in the decree of the superior court. However the Supreme Court has thus cautioned in State of. Madras v. Madurai Mills : [1967]1SCR732 .

'In our opinion, the application of the doctrine depends on the nature of the appellate or revisional order in each case and the scope of the statutory provisions conferring the appellate or revisional jurisdiction. For example in Amritlal Bhogilal & Co.'s case, : [1958]34ITR130(SC) it was observed by this Court that the order of registration made by the Income-tax Officer did not merge in the appellate order of the Appellate Commissioner, because the order of registration was not the subject-matter of appeal before the appellate authority.'

8. In Kanakamma's Case 1976 Ker LT 911 it is not clear whether the Civil Revision Petition under Section 115, C. P. C., was dismissed in limine or dismissed after hearing the opposite party also. The report does not contain the name of the counsel for the respondent. In Shanker's case, : [1970]1SCR322 both parties were heard before the Civil Revision Petition was disposed of. The only case that was cited before us where a decision on the point whether there will be a merger ina case where the revision petition is dismissed in limine is the decision reported in Rukkiya's case 1984 Ker LT 364. In that case, Paripoornan, J. relying on the decision reported in Pallari Chandu's case, ILR (1960) Ker 1110 held that the dismissal of a proceeding at the stage of admission does not have the effect of merger of the decision of the subordinate forum with that of the higher forum. The learned Judge distinguished the rulings reported in , on the ground that in those cases the civil revision petitions were disposed of after hearing the opposite parties. Incidentally it may be observed that the decision reported in Rukkiya's case 1984 Ker LT 364 itself is a case of dismissal of a civil revision petition in limine.

9. We are unable to agree with this decision. Rule 11 of Order XLI, C. P. C., provides for dismissal of appeal without sending notice to the lower Court and the respondent, if the appellate Court thinks fit so to do. Whether the judgment of the trial Court merges with such an order of dismissal under Rule 11, has come up for consideration before different High Courts. The High Courts of Andhra Pradesh, Punjab and Haryana, Madras, Calcutta and Allahabad have held that the order of the lower Court merges with such an order of dismissal under Rule 11. (vide Annopu Ramanna v. Sreeramulu; AIR 3958 AP 768; Hakam Singh v. Jaswant Singh; ; Subbamma v. Madhavarao, AIR 1946 Mad 492; Altap Ali v. Jamsur Ali, AIR 1926 Cal 638 and Durga Singh v. Wahid Raza, : AIR1965All226 . Out of these, the Allahabad High Court was dealing with a case of dismissal of a second appeal by the High Court under Order XLI, Rule 11. There also it was held that there is no difference in essence between a judgment dismissing an appeal under Order XLI, Rule 11, C. P. C., and that made under Order XLI, Rule 37. We may also extract a passage from the judgment of Subba Rao C. J. (as he then was) in Annopu Ramanna v. Sreeramulu, AIR 1958 AP 768:

'(18) If the argument of the learned counsel for the respondents be accepted, it would lead to an anomaly which should be avoided unless express provisions of the Civil Procedure Code sustain it. The dismissal of an appeal in limine is certainly the formal expression of an adjudication conclusively determining the rights of the parties with regard to all or any of the matters in controversy in the appeal. It is therefore a decree as defined under Section 2(2), C. P. C. It is common place that the decree of the trial Court merges with that of the appellate Court, But if the respondents' contention is accepted, there will be two decrees, one that of the appellate Court and the other that of the trial Court. Each by force of law can be executed. There is no acceptable reason or principle why the legislature intended to have this consequence. The only reason that can be suggested is that the respondent may have had no notice of the appeal and, therefore, the appellate decree may be ignored.

The non-issue of notice to the respondent may be a ground for holding that any decree made against him is not binding on him but it cannot efface the legal effect of a valid decree made by the appellate Court'.

10. Under Section 22 Kerala Small Cause Courts Act, 1957, a revision of decree and orders of small cause Courts before the High Court 15 provided. A dismissal of such a revision in limine, according to the reasoning stated above, will amount to a decree. If the view that the decree of the lower Court will not merge in the order of the High Court that is likely to create an anomalous situation as noticed in the Andhra Pradesh decision cited above. For all purposes by such a revision the aggrieved party is asking the superior Court to set aside or revise a decision of a subordinate Court and it has to be taken that the decree of the lower Court merges in the decree of the superior Court.

11. As held in the ruling reported in Sankar's case, : [1970]1SCR322 , revisional jurisdiction is part and parcel of the appellate jurisdiction of the High Court. Therefore, there cannot be any distinction between an order of dismissal of an appeal under RULE 11, Order XL, C. P. C., and an order of dismissal in limine of a civil revision petition under Section 115, C. P. C. Therefore, we hold that in this case the orders of the subordinate Courts have merged in the order of dismissal of the Civil Revision Petition in limine and accordingly, the tenant is entitled to the benefit under Section 11 (2) (c) of theAct, Different aspects may have to be examined if the revision is filed under other statutes like the case which was being considered by the Supreme Court in State of Madras v. Madurai Mills, : [1967]1SCR732 . In this judgment we express no opinion about such cases.

In the result, this civil revision petition is dismissed. There will be no order as to costs.


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