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Giraja Vs. Anantha Bhaktha - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtKerala High Court
Decided On
Case NumberCivil Revn. Petn. 653 of 1970
Judge
Reported inAIR1971Ker236
ActsCode of Civil Procedure (CPC) , 1908 - Sections 115; Kerala Buildings (Lease and Rent Control) Act, 1965 - Sections 3 and 23(1)
AppellantGiraja
RespondentAnantha Bhaktha
Appellant Advocate V.R. Venkitakrishnan, Adv.
Respondent Advocate T.S. Venkiteswara Iyer, Adv.
DispositionPetition dismissed
Cases ReferredLalitha R. Prabhu v. Krishna.
Excerpt:
.....115 of code of civil procedure, 1908 and sections 3 and 23 (1) of kerala buildings (lease and rent control) act, 1965 - maintainability of revision petition under challenge - whether rent control court has powers under section 23 to amend pleadings - section 23 invests powers of civil court on rent control court only to limited extent - held, rent control court does not have jurisdiction to allow amendment of rent control petition. (ii) revision - rent control court is not subordinate to high court - order passed by rent controller is not revisable by high court under section 115 - petition dismissed. - - this position is well covered by the full bench decision of this court in ouseph vareed v. clearly such jurisdiction can arise only if the case is one falling, within the..........the limit and the scope of the application of the provisions of the civil procedure code to proceedings under the act. therein we do not see any power conferred to allow amendment of pleadings. this view was taken by mathew, j., in lalitha r. prabhu v. krishna. 1967 ker lt 182. wherein the learned judge observed:-- 'the rent control court has no jurisdiction to allow an amendment of the rent control petition. section 23 invests the powers of a civil court on the rentcontrol court only to the limited extent as provided in that section and there is no power in that court to amend the pleadings. the non-inclusion of a ground which was not available to the landlord at the time when the petition was filed is not a defect in the proceedings.' section 23 (1) (3) is in respect of power to.....
Judgment:
ORDER

Sadasivan, J.

1. A question of jurisdiction is raised in this revision petition. Before the Rent Controller, Kasaragod, the landlord applied for eviction of the present revision petitioner from the building under Section 11 (2), (3), (4) etc. of the Kerala Buildings (Lease and Rent Con-tori) Act--Act 2 of 1965 (shortly stated the Act). The revision petitioner--tenant filed his counter to the petition for eviction questioning the right of the landlord to file the petition and also questioning the genuineness of the rent deed which forms the basis of the petition. After some time it struck the revision petitioner that due to over-sight certain points were left out in her counter and so R. I. A. 188/70 was filed by her under Section 151, Civil P. C. requesting the Court for leave to file an additional counter. The point sought to be put forward in the additional counter was that the property in question is a residential property and not a commercial site and therefore the bona fide need to convert it into a garage was unsustainable. The learned Controller dismissed the petition on the ground that he had no jurisdiction to allow an amended counter to be filed. According to the learned Controller. Section 23 of the Act which vests in the Rent Control Court the powers under the Code of Civil procedure would not bring within its ambit the power to amend the pleadings. The tenant has, therefore, come up in revision.

2. Objection is raised against the maintainability of this revision petition. Learned counsel for the respondent points out that a revision to this Court can lie under Section 115, Civil P. C., only if the Court from whose order the revision is filed, is a Court subordinate to this Court. The Rent Control Court is no Court subordinate to this Court. This position is well covered by the Full Bench decision of this Court in Ouseph Vareed V. Mary. 1968 Ker LT 583 = (AIR 1969 Ker 103 FB), wherein the learned Judges have held :--

'Although the person appointed to function as the Rent Control Court or as the appellate authority may be a Munsiff or a District Judge in the judicial service of the State, his appointment to such post under this Act is persona designate and he will be functioning only as such and not as a Court while exercisingjurisdiction as Rent Control Court or as an appellate authority under the Act.'

Other Indian High Courts have also taken the same view. A Full Bench of the East Punjab High Court, for instance, in Pitman's Shorthand Academy v. Lila Ram & Sons, AIR 1950 EP 181 (FB) observes:

'The Rent Controller and the appellate authority appointed under Punjab Urban Rent Restriction Act, 1947, do not constitute civil Courts subordinate to the appellate jurisdiction of the High Court, and therefore their orders are not subject to revision by the High Court.'

The Madras High Court in Chinniah Thevar v. Badsha. AIR 1948 Mad 439, following a series of decisions of the same Court observes :--

'A preliminary point arises as to whether this Court has jurisdiction to interfere in revision. Clearly such jurisdiction can arise only if the case is one falling, within the provisions of Section 115, Civil P. C. The question then is whether the Subordinate Judge of Tanjore acting as an 'appellate authority' under this Act is properly to be regarded as a Court subordinate to the High Court. Counsel for the petitioner has referred me to the following relevant authorities of this Court on this very interesting point: ILR 47 Mad 357 = (AIR 1924 Mad 442) (FB); ILR 47 Mad 369 = (AIR 1924 Mad 561) (FB); 44 Mad LJ I = (AIR 1923 Mad 192); ILR 50 Mad 121 = (AIR 1927 Mad 93) (FB); 1943-2 Mad LJ 615 = (AIR 1944 Mad 139) and 1947-1 Mad LJ 207 = (AIR 1947 Mad 400). In view of those authorities I find it impossible to regard the subordinate Judge of Tanjore in this matter as a Court subordinate to the High Court.'

A Full Bench of the Rangoon High Court in Mohideen v. Ram, (AIR 1926 Rang 33) (FB), has held by a majority that :--

'The Controller of Rents is not a Court nor a civil Court. The High Court is not a Court of appeal from him as a Court nor has appellate jurisdiction over him nor is he a Court subject to the appellate jurisdiction of the High Court within the meaning of Section 107 of the Government of India Act nor subordinate to the High Court within the meaning of Section 115 of the Civil P. C., so as to make his decisions subject to revision by the High Court.'

Mulla in his commentaries on Section 115. Civil P. C. would point out :--

'The High Court has no power of revision under this section unless the case is decided by a 'Court', and further, it has been decided by a Court 'subordinate' to the High Court. The word 'court' means a court of civil jurisdiction. Thus a Debt Settlement Board is not a civil Court nor a tribunal appointed under Displaced Persons (Debts Adjustment) Act.nor the authority constituted under Section 15 of the Payment of Wages Act, nor an arbitrator appointed under Section 19(2) of the Defence of India Act, 1939.....When a judicial officer is given the right to determine certain matters of a judicial or quasi-judicial nature unconnected with the ordinary jurisdiction which he exercises under the law, a question will arise whether he acts as a Court or as a persona designate. In the latter case no revision would lie to the High Court.' (vide Mulla's Code of Civil Procedure. 13th Edn. Vol. I. p. 500).

It is thus clear that an order passed by the Rent Controller is not revisable by the High Court under Section 115, Civil P. C.

3. Learned counsel for the petitioner argued basing on a Division Bench decision in Narayanan Nambiar v. Ambu Kunhi, 1964 Ker LT 591, that :--

'If an appeal lies against the adjudication directly to the High Court, or to another Court from the decision of which an appeal lies to the High Court, it has no power to exercise its revisional jurisdiction but where the decision itself is not appealable to the High Court directly or indirectly, exercise of the revisional jurisdiction by the High Court would not be deemed excluded.'

But the learned counsel would conveniently shelve the other question, viz., whether the Court from whose decision the revision is preferred is subordinate to the High Court. Since the Rent Control Court is not a court subordinate to the High Court, the above principle enunciated in 1964 Ker LT 591 cannot apply. Under Section 18 (1) (b) of the Act, appeals are provided to the appellate authority from the orders passed by the Rent Control Court. It might be said that procedural orders like allowing or rejecting adjournment applications, order refusing to commission for inspection and preparation of plan of particular premises of landlord in proceedings for eviction are not ordinarily appealable as has been held in Central Bank of India v. Gokal Chand, AIR 1967 SC 799; but as appeal can well be maintained to the appellate authority from an order like the present one refusing the prayer for amendment of the pleadings. Section 23 of the Act prescribes the limit and the scope of the application of the provisions of the Civil Procedure Code to proceedings under the Act. Therein we do not see any power conferred to allow amendment of pleadings. This view was taken by Mathew, J., in Lalitha R. Prabhu v. Krishna. 1967 Ker LT 182. Wherein the learned Judge observed:--

'The rent control Court has no jurisdiction to allow an amendment of the rent control petition. Section 23 invests the powers of a civil Court on the rentcontrol court only to the limited extent as provided in that section and there is no power in that Court to amend the pleadings. The non-inclusion of a ground which was not available to the landlord at the time when the petition was filed is not a defect in the proceedings.'

Section 23 (1) (3) is in respect of power to amend any defect or error in orders or proceedings. In the present case also an additional ground is sought to be put forward by means of a petition for amendment and that cannot be brought under 'defect or error' referred to in Clause (j). Thus, in any view, the petition is unsustainable and it is accordingly dismissed.


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