Skip to content


Nathulal Vs. Collector, Sawai, Jaipur - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtRajasthan High Court
Decided On
Case NumberMisc. Appln. No. 6 of 1950
Judge
Reported inAIR1952Raj36
ActsJaipur Rent Control Order, 1947; Code of Civil Procedure (CPC) , 1908 - Sections 12, 114 and 141 - Order 47, Rule 1
AppellantNathulal
RespondentCollector, Sawai, Jaipur
Appellant Advocate H.P. Gupta, Adv.
Respondent Advocate D.M. Bhandari, Adv.
DispositionApplication allowed
Cases ReferredM. J. Kutinha v. Mrs. Nathal Pinto
Excerpt:
- - on the mistake being subsequently brought to its notice, the first court had set aside its order, but the appellate court bad reversed it on the ground that it had no such authority. ib is a well-settled principle of law that when a matter is finally disposed of by a judicial or quasi-judicial authority, that authority in the absence of any statutory provision becomes functus officio and is left with no authority to rehear and give a fresh decision unless such authority is given to it by law. there is at least as good reason for saying that another tribunal should not hear an appeal from the trial court unless such a power is given to it by statute'.this view was baaed on several english and indian oases referred to in the judgment......rent for the said premises on the ground that the contractual rent was very excessive. the rent controller thereupon fixed rs. 100 as the standard rent. the applicant, landlord, preferred an appeal against that order to the then deputy commissioner of jaipur, shri bam kanwar sharma, who was the appellate authority under the rent control order. he reversed the decision of the rent controller on 16-7-1949 on the ground that the tenant waa running a hotel in the said building and that the jaipur rent control order of 1947 did not apply in the case of a hotel. against this decision, the tenant filed an application for review before the same officer, shri bam kanwar sharma, bat he was transferred to an other place before he could decide it. the matter, therefore came before the.....
Judgment:

Dave, J.

1. This is a miscellaneous application filed by one Nathulal against an order of the Collector, Sawai Jaipur, Shri Sanwaldan Ujjwal, dated 37-2-1950. It was presented under Section 45, Specific Relief Act, and Section 28, Rajasthan High Court Ordinance of 1949, but what the petitioner really seeka is a writ of prohibition against the said Collector.

2. The facts giving rise to this petition are that the applicant leased out his building situated outside Sanganer Gate in the city of Jaipur to one Gurudutt Singh partly in 1947 and partly in 1948 on a total rent of Rs. 250 per month. On 19-5-1948 the tenant Gurudutt Ringh filed a petition before the Kent Controller, Jaipur, fordetermining a standard rent for the said premises on the ground that the contractual rent was very excessive. The Rent Controller thereupon fixed Rs. 100 as the standard rent. The applicant, landlord, preferred an appeal against that order to the then Deputy Commissioner of Jaipur, Shri Bam Kanwar Sharma, who was the appellate authority under the Rent Control Order. He reversed the decision of the Rent Controller on 16-7-1949 on the ground that the tenant waa running a Hotel in the said building and that the Jaipur Rent Control Order of 1947 did not apply in the case of a hotel. Against this decision, the tenant filed an application for review before the same Officer, Shri Bam Kanwar Sharma, bat he was transferred to an other place before he could decide it. The matter, therefore came before the present Collector, Shri Sanwal Dan Ujjwal. An objection was raised before him by the landlord to the effect that the decision of his predecessor was final and there being no provision for review in the Jaipur Kent Control Order, the application waa not maintainable. This application having been dismissed by the Collector, the petitioner has come to this Court praying for a writ that the said authority be prohibited from exercising a jurisdiction not vested in it by law.

3. It is not disputed by any of the parties before us that the Rent Controller and the Collector appointed to hear appeals against the decisions of the Rent Controller under the Jaipur Rent Control Order 1947, are quasi-judicial authorities amenable to a writ of this Court and, therefore, the only point which calls forth for our determination is whether the Collector is exceeding his jurisdiction in proceeding to make a review of the final decision of his predecessor.

4. The provisions of the Jaipur Rent Control Order 1947, which are relevant for our purpose, are as follows:

'2(a) 'Controller' means the person appointed by the Government from time to time to be the Controller for the purposes of this Order.'

'6 (1) If any dispute arises regarding the standard rent payable in respect of any premises, it shall be determined by the Controller.'

'12(1) Any person aggrieved by an order of the Controller may within fifteen days from the date of such order, appeal therefrom to such authority as the Government may from time to time appoint in this behalf,

(2) The appellate authority shall then send for the record of the case from the Controller, and after perusing such record and making such further enquiry as it thinks fit either itself or through the Controller, shall decide the appeal,

(3) The decision of the appellate authority and subject only to such decision, an order of the Controller shall be final.'

It is clear from the language of Section 12(3) that the decision of the appellate authority and subject to his decision an order of the Controller is final according to law. The only statutory right given to a party aggrieved by the order of the Rent Controller is that of appeal. The order of theappellate authority, whatever it may be, is final and there is no provision laid down for presenting a review application.

5. It is contended by Mr. Bhandari advocate for the opposite party that although the Jaipur Rent Control Order makes no provision for review applications, the Rent Controller and the appellate authority can exercise the powers under Section 114 and Order 47 Rule l, Civil P. C., by virtue of Section 141, thereof. Section 141, C. P. C runs as follows:

'The procedure provided in this Code in regard to suits shall be followed, as far as it can be made applicable, in all proceedings in any Court of civil jurisdiction.'

The Civil Procedure Code was enacted to consolidate and amend the laws relating to the procedure of the Courts of civil judicature and the wordings of the above section also make it clear that the procedure provided in this Code in regard to suits is applicable to proceedings in a Court of civil jurisdiction. It is urged by the learned advocate for the opposite party that the Collector as an appellate authority under the Rent Control Order is a Court of civil jurisdiction. In his order, which is the subject of discussion in this application, the Collector has also remarked that there being no provision for review in the Rent Control Order, the provisions of the basic law i.e., Civil Procedure Code may be applied in such cases, as also expressed by the Law Secretary on a reference by this office. The learned advocate for the opposite party has not produced in this Court the letter of the Law Secretary referred to in the above order. This Court is, therefore, not aware as to what was the basis on which such an opinion was expressed by that Officer. This argument, however, does not seem to be tenable.

6. It was observed by their Lordships in Shell Co. of Australia v. Federal Commissioner of Taxation 1931 A. C. 216 that

'the authorities are clear to show that there are tribunals with many of the trappings of a Court which, never the less are not Courts in the strict sense of exercising judicial power.'

The Rent Controller and the appellate authority under the Jaipur Rent Control Order are certainly quasi-judicial authorities with 'some trappings of a Court' but they are certainly not Courts of civil jurisdiction in the strict sense of the term, This is apparent from the scheme of this very order. Section 11 of this Order lays down that:

'SO long as this Order is in force, no Court shall have jurisdiction to entertain, try and decide any suit for ejectment or possession arising oat of an agreement of existing or intended tenancy, unless the plaintiff produces a valid certificate under clause 8 from the Controller in that behalf.'

This leaves no doubt that a clear distinction in this law was made between a Rent Controller and the appellate authority on the one hand and a Court on the other, and to say therefore that the appellate authority under the said order was a Court of civil jurisdiction, is not correct.

7. It is further contended by the advocate for the opposite party that there being an apparent error on the face of the record in the order passed by Shri Bam Kanwar Sharma, the Collector had an inherent jurisdiction to correct it for the ends of justice and to prevent the abuse of the process. In support of his argument he has referred to Narsinuh Das v. Mangal Dubey, 5 ALL. 163, Debi Bakhsh v. Habibshah, 35 ALL. 331, Parma v. Nek Ram, A. I. R. (2) 1915 ALL. 172(2), Lachhman Bai v. Jang Bahadur Rai, A. I. R. (21) 1984 ALL. 287, Manilal v. Durga Prasad, A I. R. (11) 1924 Pat. 673, Yusuf I. A Lalji v. Abdullabhoy Lalji (No. 1) , A I. R. (17) 1930 Bom. 294. We have examined these rulings and we think that they do not help him.

8. In the first case viz., 5 ALL. 163 it was observed by Mahmood J. p. 172 that:

'the Courts are not to act upon the principle that every procedure is to be taken as prohibited unless it is expressly provided for by the Code, bus on the converse principle that every procedure is to be understood as permissible till it is shown to be prohibited by the law.'

In the first place this observation appears in a dissenting judgment of only one of the Judges of a Full Bench in which three other learned Judges had taken a contrary view on the main question involved in that case. It was a second appeal from a decree of a District Judge of Benares affirming a decree of the Munsif of Benares; who had rejected the plaint on the ground of multifariousness. It was held that the Munsif had rightly rejected the plaint. It would thus appear that even the said remarks of Justice Mahmood were made in connection with the procedural matters in a Court and not regarding a substantive right of the party to present an appeal or an application for review. It has, therefore, no bearing on the present case. In the second case 35 ALL. 331 it was held bytheir Lordships of the Privy Council that

'apart from Section 151, Civil P. C. any Court might rightly have considered itself to possess inherent power to rectify the mistake inadvertently made.'

But these observations were made in a case where the plaintiff's suit was dismissed for default at a time when the plaintiff was in fact dead on the date of the order. On the mistake being subsequently brought to its notice, the first Court had set aside its order, but the appellate Court bad reversed it on the ground that it had no such authority. This appellate order was reversed by their Lordships and that of the first Court was maintained. It is clear that the first Court had in this case not given, any decision on the merits and a mere question of procedure was involved.

9. In the third case, A.I.R. (2) 1915 ALL. 172(2), the District Judge of Agra had granted Letters of administration on the mere request of an applicant named Parma. When another person Nekram appeared in the Court the same day and put forward his claim, the first ex parte order was cancelled by him. On an appeal by Parma, it was held by their Lordships that Parma having obtained an order granting Letters of Administration that order ought not to have been cancelled without giving him notice. That order was set aside and the case was remanded for trial according to law. It was observed by one of the learned Judges that it would be open to the District Judge when the matter goes back to him to consider whether under the provisions of Section 114 or 161, Civil P. C., he could or ought to reconsider his ex parte order in favour of Parma apart altogether from the provisions of Section 50, Probate and Administration Act itself. It is clear that the learned Judges had only left the matter to be reconsidered by the District Judge and, therefore, it does not give a clear pronouncement of law. In the fourth case, A. I. R. (21) 1934 ALL. 287 it was held that

'where a Court passes an order under a misapprehension of facts, it in open to it under its inherent power to set aside such order whoa true facts are brought to light.'

In that case, the Munsif had first referred the matter to arbitration but since the award was not filed on the date fixed and nobody appeared in the Court an order was passed superseding the arbitration and another date was fixed for the trial of the suit. When it was brought to the notice of that Court that the arbitrators had already given their award, the previous order superseding the arbitration was set aside and a decree was ordered to be framed in the terms of the award. It was on an objection being raised by the opposite party that the above observation was made by the learned Judges. Thus it was again a question of procedure involved in this case.

10. In the fifth case, A. I. R. (11) 1924 Pat. 673 it was observed that apart from Order 47, Rule 1, the Court has inherent power under the new Section 151, Civil P. C. of 1908 to make such orders as may be necessary for the ends of justice and thus to review its wrong orders or decisions passed previously. This observation was also made in connection with an interlocutory order of the trial Court about the payment of court-fees and it has no application to the present case. In the last case A. I. R. (17) 1930 Bom. 294 it was held by a Single Judge of that Court that an interlocutory order made in Chambers can be reviewed by the Court under Section 151, and ought to be reviewed if the ends of justice require it; even though the application for such purpose does not expressly fall within the language of Order 47. This observation was made in connection with a particular procedure of that Court and it again does not help the opposite party.

11. In the matter before us, there was not a mere procedural question before the Collector. His predecessor had given his decision afterhearing both the parties and according to Section 12, Jaipur Rent Control Order, it was final. The present appellate authority thinks that an interpretation of law made by his predecessor was not correct and that he had also committed a mistake in holding that the building was used as a hotel, whereas it was used as a restaurant. It is not within the scope of the present application for us to decide whether the finding of the previous appellate authority on law and facts was correct or not. We have only to see whether the present appellate authority has jurisdiction to reverse that order even if it is found to be incorrect. It is not denied that the previous authority had the jurisdiction to decide the matter and whether its decision was right or wrong it was final so far as the Jaipur Sent Control Order was concerned. Ib is a well-settled principle of law that when a matter is finally disposed of by a judicial or quasi-judicial authority, that authority in the absence of any statutory provision becomes functus officio and is left with no authority to rehear and give a fresh decision unless such authority is given to it by law.

12. The jurisdiction to reconsider the decision continues only so long as the deaision is not perfected, but once it is signed and pronounced there is no power left in that authority to make any material additions or alterations to it. The right of presenting an application for a review envisaged by Section 114 and Order 47, Rule 1, Civil P. C. is a substantive right given to a party by Statute and it is only within the limits prescribed by these provisions that a Court can exercise its jurisdiction and alter its order, if necessary. A review, as defined in the Law Lexicon compiled by Ramanatha Iyer.

'is a proceeding which exists by virtue of statute. It is in its nature a new trial of the issue previously tried between the parties, the cause of action being brought into Court again for trial by a new petition. The proceeding in some respects resembles a writ of error, and also a new trial.'

13. In the case of Baijnath Earn v. Nandkumar, 18 I.C. 958 (P. C.) certain plots of land were sold by auction for arrears of revenue. The Commissioner on appeal set aside the sale but on review he annulled his order and upheld the sale. The Subordinate Judge's Court and the High Court both held that the Commissioner, having once passed an order which was final, had no power to review it. On an appeal to the Privy Council also it was held by their Lordships that there was no inherent power to review. On a similar question being raised in a case under Religious Endowments Act before a Division Bench of the Madras High Court, it was observed by the learned Judge Seshagiri Aiyar in Anantha Raju v. Appu Hegade, A.I.R. (6) 1919 Mad. 244 that

'it was next argued that Section 141, Civil P. C. is Indicative of a general enunciation of principle by thelegislature that to all the judicial proceedings, the Civil Procedure Code is applicable. The Section only empowers the Judge to regulate judicial trials by rules as to summoning of witnesses, etc., which are found in the Code, and not that the Code is to be applied in its entirety to such proceedings including power of appeal and of review. The last argument related to the inherent power of a judicial officer to review his own judgment. It is settled law that a case is not open to appeal unless the statute gives such a right. The power to review must also be given by the statute. Prima facie a party who has obtained a decision is entitled to keep it unassailed, unless the legislature has indicated the mode by which it can be get aside. A review is practically the hearing of an appeal by the same officer who decided the case. There is at least as good reason for saying that another tribunal should not hear an appeal from the trial Court unless such a power is given to it by statute'.

This view was baaed on several English and Indian oases referred to in the judgment. A similar view was expressed in a Full Bench case of that Court reported in Ramachandra v. Beero Pollai, A.I.R. (23) 1936 Mad. 831 and also in a later case reported in M. J. Kutinha v. Mrs. Nathal Pinto, A.I.R. (28) 1941 Mad. 272.

14. Thus, it is clear that apart from correcting clerical mistakes or errors arising from an accidental slip or omission, there is no inherent power to review a final decision given on merits inter partea. By his order dated 27-2-1950 the Collector does not mean to correct merely a clerical mistake or slip, but he thinks that he has a jurisdiction to reverse the finding of his predecessor after hearing the parties. In holding this view of law, he is mistaken and since he wants to exercise a jurisdiction, which is not vested in him by law, this application must be allowed. Let a writ of prohibition, therefore, issue against the Collector, Jaipur District, prohibiting him from proceeding to review the decision of his predecessor. The applicant will receive his costs from the opposite party.

15. Wanchoo C. J.--I agree and have nothing to add.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //