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Amratlal Muljibhai Thakkar and anr. Vs. Amabalal Ranchhodbhai Thakkar - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtGujarat High Court
Decided On
Case NumberSpecial Civil Appln. No. 1138 of 1969
Judge
Reported inAIR1972Guj240; (1972)GLR756
ActsBombay Tenancy and Agricultural Lands Act, 1948 - Sections 76; Constitution of India - Article 227
AppellantAmratlal Muljibhai Thakkar and anr.
RespondentAmabalal Ranchhodbhai Thakkar
Appellant Advocate S.B. Majmundar, Adv.
Respondent Advocate J.J. Shah, Adv.
Cases ReferredV. V. Kulkarni v. M. R. Nagane
Excerpt:
.....of respondent - revenue tribunal dismissed revision application filed by respondent - special civil application filed before division bench of high court which sent back matter to x (judge) - x dismissed special civil application - revenue tribunal took up matter in suo motu review and set aside earlier order - petitioner challenged order granting suo motu review - doctrine of merger attracted - order of subordinate court merged in order of superior court - special civil application dismissed by x and order of revenue tribunal no longer in existence - held, decision of revenue tribunal set aside. - - , the order of the revenue tribunal became merged in the order of the high court and, therefore, there was no order of the tribunal which could be reviewed by the revenue tribunal..........revision application was also dismissed by the revenue tribunal and against that decision special civil application no. 643 of 1968 was filed by the respondent. this special civil application came up for admission before sarela, j. that application was withdraw on july 8, 1968. thereafter the respondent filed against the same order of the revenue tribunal another special civil application no. 1014 of 1968 before a division bench of the high court. the division bench sent back the matter to sarela, j, and that special civil application no. 1014 of 1968 was ultimately summarily dismissed by sarela j.. on august 13, 1968. thereafter, the revenue tribunal took up the matter in suo motu review and issued notices to the parties. the tribunal reviewed its own earlier decision and the revenue.....
Judgment:
ORDER

1. The petitioner herein are the owners of S. No. 756, admeasuring 6 acres, situated at Kotambi village of Waghodia Taluka of Baroda District. The two petitioners are related in the sense that the second petitioner is the widow of the deceased cousin of the first petitioner and the S. No.. stands jointly in the name of the two petitioners. The second petitioner was widow on April 1, 1957. The second petitioner obtained an exemption certificate under S. 88-C of the Bombay Tenancy and Agricultural Lands Act (hereinafter referred to as the Act.) the respondent herein was an ordinary tenant of the petitioners in respect of this land. The respondent did not pay rent regularly and used to commit defaults in payment of rent. For the years 196-61, 1961-62 and 1962-63, the respondent committed three defaults in payment of rent. After serving the respondent with due notice for each default a final notice terminating the tenancy was given on July 6, 1963. Thereafter the petitioners filed a suit under Section 29 read with Section 25(2) of the Act praying for possession of the land on the ground of three defaults. This suit or application for possession was heard by the Mamlatdar, Waghodia Taluka, who by his order allowed the said application of the petitioners and directed that the respondent be evicted from the suit lad. Against the decision of the Mamlatdar, there was an appeal, which was heard by the Assistant Collector, Baroda. The appeal was dismissed by that officer and thereafter there was a Revision application to the Gujarat Revenue Tribunal. The Revision Application was also dismissed by the Revenue Tribunal and against that decision Special Civil Application No. 643 of 1968 was filed by the respondent. This Special Civil Application came up for admission before Sarela, J. That application was withdraw on July 8, 1968. Thereafter the respondent filed against the same order of the Revenue Tribunal another Special Civil Application No. 1014 of 1968 before a Division Bench of the High Court. The Division Bench sent back the matter to Sarela, J, and that Special Civil Application No. 1014 of 1968 was ultimately summarily dismissed by Sarela J.. on August 13, 1968. Thereafter, the Revenue Tribunal took up the matter in suo motu review and issued notices to the parties. The Tribunal reviewed its own earlier decision and the Revenue Tribunal allowed the Review and set aside its earlier order. Consequently at the time of the review, the Revenue Tribunal set aside the orders of the Mamlatdar and the Assistant Collector and thus the entire application filed by the landlords for possession came to be dismissed. It is against this order granting so motu review that the present Special Civil Application has been filed.

2. Two main contentions have been urged before me at the hearing of this Special Civil Application and in the view that I take on the first one of these contentions, it is not necessary for me to refer to the other contentions which were urged by the rival parties and on which it is not necessary for me to express any opinion. The two main contentions urged on behalf of the petitioners are that because the Tribunal's earlier order rejecting the Revision Application filed by the tenant was brought before the High Court by filling a petition under Art. 227 of the Constitution and that petitioner was summarily rejected by Sarela J., the order of the Revenue Tribunal became merged in the order of the High Court and, therefore, there was no order of the Tribunal which could be reviewed by the Revenue Tribunal and since there was no order to be reviewed, the decision given by the Revenue Tribunal was bad in law and must be quashed and set aside. On behalf of the tenant, the respondent herein, Mr. Shah contended that even if the Revenue Tribunal's order became merged in the decision of the High Court by reason of the summary dismissal of the Special Civil application by Sarela J., in view of the special circumstances of this case, the High Court should not exercise its discretionary jurisdiction under Art. 227 in favour of the petitioners, who are landlords. Besides the point of merger, Mr. Majmudar, for the petitioners, also contended that there was no power of suo motu or any other review with the Tribunal. Secondly, that the power of review could not be exercised in order to enable the Tribunal to take into consideration events subsequent to the earlier decision and he also wanted to urge that on merits one of the co-owners being a widow mere cancellation of the certificate under Section 88-C granted in favour of the first petitioner would not justify the passing of an order for review. Similarly, Mr. Shah, on behalf of the respondent, wanted to contend that the original suit filed by the present petitioners for possession was bad inasmuch as the landlords had accepted the rent in full before they filed the suit for evicting the respondent. Again opinion about the rival contentions of the parties because in my opinion, the matter can be disposed of only on the ground of doctrine of merger.

3. In Ratilal Nazir's case, Civil Appeal No. 986 of 1967, decided by the Supreme Court on 17.10.1969 (SC), the Supreme Court considered the effect of the doctrine of merger. In that case the landlord had filed a suit against his tenant in respect of certain premises governed by the Bombay Rents. Hotel and Lodging House Rates Control Act. The suit was for a decree in ejectment on the ground that the tenant was in arrears for more than six months before the date of the notice under Section 12 of the Rent Act and was on that account liable to be evicted. The tenant denied that he was in arrears. The trial Court dismissed the suit. In appeal, the City Court set aside the order of the trial Court and passed a decree in ejectment. Against this order, a Revision Application was filed in the High Court of Gujarat and that Revision Application was summarily rejected by the High Court. An appeal against the decision of the High Court summarily rejecting the Civil Revision Application was filed after obtaining special leave of the Supreme Court ad that appeal was also dismissed. Thereafter the tenant started proceedings under Article 227 of the Constitution in the High Court challenging the order of the City Civil Court. That Special Civil Application was rejected by the High Court and against that order the tenant appealed with special leave obtained from the Supreme Court Dealing with these facts, Shah J.. delivering the judgment of the Supreme Court observed that once the order of the City Civil Court was challenged in a Civil Revision Application before the High Court and the High Court dismissed the application, the order of the City Civil Court got merged into the order of the High Court and when an appeal was filed under an order of the High Court to the Supreme Court, the order of the High Court merged into the judgment of the Supreme Court. The High Court thereafter could not be moved by a petition under Art. 227 of the Constitution challenging the order of the City Civil Court. It is clear that the appellant by his petition sought to ignore the orders passed by the High Court and the orders of the Supreme Court and claimed relief on the footing that the order of the City Civil Court was erroneous. According to the Supreme Court such a petition was plainly incompetent.

4. It is clear in view of this decision of the Supreme Court that summary rejection stands on the same footing as a hearing on merits so far as the doctrine of merger is concerned and, according to the Supreme Court, for the purposes of the doctrine of merger there was no difference between an order passed in revision and an order passed in appeal.

5. The question now arises as to whether the jurisdiction exercised by the High Court under Art. 227 stands on the same footing as appellate or revisional jurisdiction so far as the doctrine of merger in concerned. The historical background of Art. 227 has been set out by the Supreme Court in Waryam Singh v. Amarnath : [1954]1SCR565 , there it was pointed out that the power which the High Court exercises under Art. 227 of the Constitution is a power of judicial superintendence over the Subordinate Courts and Tribunals situated within the State. Such a power of judicial superintendence was for the first time conferred upon the High Court by the High Courts Act. 1861. Subsequently the power was conferred by Section 107 of the Government of India Act, 1915 and by Section 224 of the Government of India Act, 1935. The Supreme Court in Waryam's case (supra) held that the power under Art. 227 was a power of judicial superintendence available not only against the decisions of Subordinate Courts but also against decisions of all Tribunals functioning within the State over which the High Court exercised jurisdiction. I am not concerned in the present case as to when or under what circumstances the power conferred upon the High Court under Art. 227 will be exercised.

6. In my opinion, the correct description of the functions of the High Court under Article 227 is to be found in the judgment of Bhagwati, J., (as he then was) in Gopichand v. Western Railway : AIR1967Guj27 . In para 3 of the judgment at page 295 of the report it was pointed out :-

'By entertaining a petition under Article 227 of the Constitution the High Court does not seek to exercise jurisdiction to issue any high prerogative writ; the jurisdiction which the High Court exercises under Article 227 is of superintendence, a jurisdiction somewhat analogous to the revisional jurisdiction which the High Courts have under diverse statutes and just as in an application for revision it is not necessary to make the Court whose order is sought to be revised a party to the application, so also in a petition invoking the jurisdiction of the High Court under Article 227 the Tribunal whose order is sought to be challenged is not a necessary party.'

Thus, though according to the Supreme Court, the jurisdiction which the High Court exercise under Article 227 is neither appellate nor revisional, it is somewhat analogous to the revisional jurisdiction which the High Court generally exercises under different statutes, say for example under Section 115, Civil Procedure Code or under section 29 of the Bombay Rent Control Act or under Section 25 of the Provincial Small Causes Courts Act.

7. In Shandar Ramchandra v. Krishnaji Dattatraya, AIR 1970 SC 1, the Supreme Court held that the revisional jurisdiction is part of the appellate jurisdiction of the High Court and the doctrine of merger applies to orders passed in revision just as it applies to orders passed by the High Court in appeal. At page 4 of the report, Grover, j., delivering the judgment of the Supreme Court pointed out:--

'That the true nature of the right of appeal is a right of entering a Superior Court and invoking its aid and interposition to redress the error of the Court being. Two things which were required to constitute appellate jurisdiction were the existence of the relation of Superior and Inferior Court and the power on the part of the former to review decisions of the latter.'

It is the existence of this power which is material, not the extent or the scope of the power ; nor the restrictions which may be self-imposed as a result of series of judicial decisions that counts. What counts, is the existence of the powers to review the decisions of the subordinate Courts or the Tribunal. It is clear that when the High Court exercises power under Article 227, it does so as a superior Court and as a superior Court it takes into review the decision of either subordinate Courts or Tribunals functioning within the territory of the State and, to my mind, the power of judicial superintendence under Art. 227 stands on a footing not in any way different from that the appellate power or power in revision.

8. It is a matter of judicial discipline that the doctrine of merger is recognised viz., that when a superior Court has passed any order, the order of the inferior Court or the subordinate Court gets merged in the order of the Superior Court and the order of the inferior Court thereafter no longer exists.

9. The scope of the doctrine of merger was pointed out by Gajendragadkar, J., (as he then was) while delivering the judgment of the Supreme Court in Income tax Commr, v. M/s. Amritlal Bhogilal & Co. : [1958]34ITR130(SC) of the report, he pointed out :-

'There can be no doubt that, if any appeal is provided against an order passed by a tribunal, the decision of the appellate authority is the operative decision in law. If the appellate authority modifies or reverses the decision of the tribunal it is obvious that it is the appellate decision that is effective and can be enforced. In law the position would be just the same even if the appellate decision merely confirms the decision of the tribunal merely confirms the decision of the tribunal. As a result of the confirmation or affirmance of the decision of the tribunal by the appellate authority the original decision merges in the appellate decision and it is the appellate decision alone which subsists and is operative and capable of enforcement.'

10. In the instant case, after the Special Civil Application No. 1014 1968 was summarily dismissed by Sarela, J., on August 13, 1968, it was that order of Sarela, J., which subsisted and the order of the Revenue Tribunal was no longer in existence. As the Supreme Court has pointed out in Ratilal Nazir's case, C.A. No. 986 of 1967, D/- 17.10.1969 (SC), (supra), it does not matter whether the order of the superior Court is passed summarily or after hearing both the parties. What counts is the fact that the superior Court has applied its mind and passed an order in the matter. After that order is passed, whether the order by of affirmance or of reversion, it is the order or the superior Court which subsists. In the instant case, after the decision of Sarela, J., summarily rejecting Special Civil Application No. 1014 of 1968, the order of the Revenue Tribunal no longer existed and that being so, the suo motu review was clearly incompetent.

11. Mr. Shah, for the respondent, urged before me that though in law the order of the Revenue Tribunal may be found to be erroneous and without jurisdiction and passed in a matter, which it was not competent to entertain, on the merits of this case, the High Court should not exercise its power under Article 227 of the Constitution to strike down the order passed by the Revenue Tribunal after review. He contended that the Tenancy Act is specially enacted for the protection of the tenants and that the tenant had paid up all arrears before the application for possession under Sections 29, 14 and 25(3) of the Act was filed by the lad.. he contended that in V. V. Kulkarni v. M. R. Nagane, AIR 1968 SC 461, the Supreme Court had interpreted Section 25(2) and held that the payment by the tenant and acceptance by the landlord of arrears of rent before the institution of an application for eviction, results in waiver by the landlord of the termination of tenancy by him; and, therefore, in such circumstances, the order for possession could not be passed by the Mamlatkar in favour of the landlord. In the instant case, I am not concerned with the merits, nor is it necessary for me to decide whether the order for possession which was finally passed was good or bad. Though the effect of my allowing this Special Civil Application and striking down the order of Revenue Tribunal would be that the tenant would be bound to hand over possession to the landlords, if I allow this order to remain, it would mean that judicial discipline, which is required to be maintained would be broken and it is not permissible, in my opinion, to allow such a breach of judicial discipline. I am not examining the merits of the case at all in the instant case. But for the fact that the matter was taken up in suo motu review by the Revenue Tribunal , the tenant was bound to hand over possession to the landlords because that was the decision of Sarela, J., when he summarily rejected Special Civil Application No. 1014 of 1968. If I were to accept the arguments of Mr. Shah, on behalf of the respondent, it would amount to my sitting in appeal over the order of Sarekla, J., which it is not permissible for me to do. Under these circumstances, I have rejected this particular line of arguments of Mr. Shah.

12. I, therefore, allow this Special Civil Application and set aside the decision of the Revenue Tribunal arrived at in suo motu review. The decision of Sarela, J., summarily dismissing Special Civil Application No. 1014 of 1965 and thus confirming the decision of the Revenue Tribunal dated August 18, 1967, is the final decision. Rule is made absolute. There will be no order as to costs.

13. Petition allowed.


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