G.S. Gupta Vs. Basheer Ahamed and ors. - Court Judgment

Excerpt:
- section 24: [anand byrareddy, j] application under section 24 for maintenance - marriage performed as per the provisions of the portuguese civil code application filed under section 24 of the hindu marriage act for maintenance by wife before the family court at belgaum objections by the petitioner/husband with regard to jurisdiction of the family court at belgaum to entertain the application - rejection of objections - challenge to question whether the portuguese family law or hindu law would be applicable to the parties and if the portuguese family law is applicable, which is the court having jurisdiction to decide the matter - held, there is no dispute that the parties were married according to the portuguese family law, that is applicable within the state of goa, and had set up.....order1. this review petition arises out of a judgment of this court dated 31-3-1977 in c. r. p. no. 1086/1974, allowing the petition of the landlord under s. 21(1)(h) of the karnataka house rent control act, 1961 in h. r. c. no. 544/1966 and thereby asking the petitioner-tenant to vacate the schedule premises.2. as evident, the petition for eviction was filed on the ground of reasonable and bona fide requirement of the premises by the landlord. it was contested on a variety of grounds and the learned munsif in the first instance allowed the petition. thereafter, the tenant came in appeal before the learned district judge. this too was dismissed a revision was filed before the high court which was c. r. p. no. 633/1970 and a learned judge of this court on 19-7-1971 confirmed the finding of.....

Judgment:
ORDER

1. This review petition arises out of a judgment of this Court dated 31-3-1977 in C. R. P. No. 1086/1974, allowing the petition of the landlord under S. 21(1)(h) of the Karnataka House Rent Control Act, 1961 in H. R. C. No. 544/1966 and thereby asking the petitioner-tenant to vacate the schedule premises.

2. As evident, the petition for eviction was filed on the ground of reasonable and bona fide requirement of the premises by the landlord. It was contested on a variety of grounds and the learned Munsif in the first instance allowed the petition. Thereafter, the tenant came in appeal before the learned District judge. This too was dismissed A revision was filed before the High Court which was C. R. P. No. 633/1970 and a learned Judge of this Court on 19-7-1971 confirmed the finding of the District Judge on the ground of bona fide and reasonable requirement of the premises by the landlord. Having confirmed that finding, however, the learned judge found that the landlord could evict the tenant only if the other condition regarding comparative hardship of his own as compared to the hardship to be incurred by the tenant was satisfied. According to the learned judge, the learned District judge did not adequately decide the plea referable to comparative hardship and therefore on that question alone the case was remanded to the District Judge for de novo hearing of the appeal on the question of comparative hardship. During the pendency of the revision in the high Court, one of the landlords, namely, Basheer Ahamed died and his legal representatives were brought on the record. After the remand, the learned District Judge however also decided the question regarding bona fide and reasonable requirement of the landlord and his finding was against the landlord. With that finding the petition was dismissed. Against that order of the learned District judge, C. R. P. No. 1086/ 1974 was filed by the landlord in this Court. While deciding C. R. P. No. 1086/ 1974 this Court considered that the learned District judge was not required to give a de novo finding on the question of bona fide and reasonable requirement of the landlord. According to the decision of the Court, any plea in respect of that question was either given up by the tenant or decided against him. Therefore, the principle of res judicata applied and the decision of the learned Judge was final between the landlord and the tenant Therefore, the plea as to the bona fide and reasonable requirement of the landlord could not be contravened on behalf of the tenant before the learned District Judge. Any finding contrary to that plea and in favour of the tenant could not be given and as such this Court set aside the finding of the learned District Judge. On the question of comparative hardship, this Court further decided in favour of the landlord and thereby allowing C. R. P. No. 1086/1974, the eviction petition was granted. The present review petition is directed against that order of this Court.

3. Sri Shekara Setty, the learned counsel for the petitioner, took assistance from a decision of this Court in K. Anantharam Setty v. T. Mariappa, (1966) 1 Mys LJ 649, where his Lordship held that the High Court is a Court of plenary jurisdiction and therefore it has always jurisdiction to prevent miscarriage of justice or to correct grave and palpable errors committed by it was held that the High Court can entertain a petition for review of an order passed in revision. The point canvassed in that case before the Court was that the judgment of the High Court was in a revision preferred under S. 50 of the Karnataka House Rent Control Act, 1961 and since no review is provided against the judgment in that Act, the petition for review was not maintainable. While answering that preliminary objection raised in that case, his Lordship referred to Arts. 226 and 227 of the Constitution and considered that the High Court is a Court of plenary jurisdiction and therefore was in a position always to prevent miscarriage of justice or to correct grave and palpable errors, committed by it. No one can quarrel with this proposition. The High Court may have power and jurisdiction to correct its own error and perhaps the plea may not be sustainable that a decision of the High Court in a revision under S. 50 of Karnataka House Rent Control Act, 1961 was not per se subject to review. But the question before the Court is, as to whether a miscarriage of justice had really resulted or any grave and palpable error was committed so that the principles of the review so well known under the C. P. Code, are to be harnessed for the purpose of granting relief to the petitioner. In my opinion, the principles set down in O. 47, R. 1, C. P. Code may be employed by way of analogy, and a case of review directly covered under that provision would nevertheless be considered a case of plenary jurisdiction for correction of grave and palpable error committed by the Court. With that point of view, one has to refer to the provisions contained in O. 47, R. 1 of the C. P. Code and the learned counsel for the respondents pointed out that in the present case, the petitioner neither discovered any new and important matter nor evidence which was not within the knowledge of either party nor some mistake or error apparent on the face of the record, nor any other sufficient reason, so that it could be held that there was a grave and apparent error in the judgment of the Court. Sri Sekhara Setty, the learned counsel on the other hand urged, that the contentions as to the mistake or error apparent on the face of the record, or as to the case having other sufficient reason for review are satisfied and therefore even under O. 47, R. 1 of the C. P. Code, a case of review is made out.

4. The argument of the learned counsel is that this Court did not permit the petitioner to raise the plea that due to death of Basheer Ahamed, the bona fide and reasonable requirement of the landlord was done away with and the legal representatives could not claim the benefit of that provision. In that connection, the learned counsel pointed out an application-dated 27-2-1971, which was filed in the court of the District judge. It is evident from the judgment delivered by the learned judge in C. R. P. No. 633/1970 that the additional plea taken up in the application dated 27-2-1971 was deemed given up as the pointed question of Basheer Ahamed having died and therefore the bona fide and reasonable requirement of the landlord died with him, was not pressed before the Court. The learned Judge who decided C. R. P. No. 663/ 1970 has specifically held that he had no hesitation in agreeing with the finding recorded by the learned District Judge that the requirement of the landlord was bona fide and reasonable. He further observed in that connection that he confirmed the finding of the District judge in regard to the bona fide and reasonable requirement of the landlord, but set aside his finding on the question of comparative hardship. On that pointed question the case was remanded. At another place in his judgment, the learned judge observed that it was not necessary to advert to all the pleas raised by the parties as the only ground that survived before him was of consideration of the plea covered by S. 21 (1) (h) of the Act. Therefore, the argument of the learned counsel that the plea as to proper termination of tenancy survived before the learned Judge in C. R. P. No. 633/1970 even after he made those observations, to my mind, does not hold good and cannot be sustained. Being governed by these observations of the learned Judge in C. R. P. No. 633/1970, this Court decided that the case in regard to bona fide and reasonable requirement of the landlord had become final. Sri Shekhara Setty, the learned Advocate for the petitioner, thereafter contended that the decision of the High Court being in his favour, the petitioner could not have further agitated against that decision. There is an apparent error in this argument. The finding on the question of bona fide and reasonable requirement of the landlord was definitely against the petitioner and the other finding on the question of comparative hardship was left open and the case was remanded. It could not therefore be stated that the petitioner was prevented from challenging that finding of the learned judge as he was at liberty to do so. Being governed with all these legal conceptions, and on an appreciation of the argument of the learned counsel for the respondent, this Court held, that the principles of res judicata crept in and the petitioners were debarred from re-agitating the plea as to reasonable and bona fide requirement of the landlord before the learned District Judge. As such any finding arrived at in the course of the judgment of the learned District Judge on that question, was likely to be set aside. Sri Shekara Setty was insistent in his argument that the said finding was incorrect, as the petitioner had taken that plea which was not considered by the Court. In other words, what the learned counsel argues is that the finding on the question of res judicata was incorrect and ought not to have been given by this Court. If the Court decides a legal question incorrectly, in my opinion, that cannot be a ground for review. It is for the higher Court to set right that finding.

5. The learned counsel for the petitioner then pointed out that certain subsequent events took place, namely, that some godowns fell vacant and perhaps the bona fide and reasonable requirement of the landlord could not be established. Again, that was a question of fact which was once decided by the Court, may be wrongly. Again, that would not be a point for review of the judgment. The learned counsel then advanced another argument, that there was an apparent mistake on the face of record, in as much as, application dated 27-2-1971 was there and still the Court observed that the plea was not pressed by the petitioner and that the Court did not consider the question that the cause of action died with Basheer Ahamed to get eviction on the plea of the bona fide and reasonable requirement of the deceased. As I have stated before, that question was directly covered under the plea relating to bona fide and reasonable requirement of the legal representatives. The learned judge in C. R P. No. 633/1970 was very much concerned with that plea and he decided it against the petitioner. Therefore, this Court came to the conclusion that the plea was not pressed before the learned Judge and if the same could be taken to be pressed, it was held against the petitioner. All that observation was made with reference to the plea of res judicata which was stated to have prevailed against the petitioner. Again, the question turns on this that the learned counsel for the petitioner challenged the decision of the Court and branded it as illegal, according to his estimate, and in my opinion that would not be a point for review of the judgment. It could not be said that there was any mistake or error apparent on the face of the record. In fact, the Court was aware of all these pleas and because the principle of res judicata applied, all such pleas were taken to be decided against the petitioner. Similar was the fate in respect of the other plea regarding proper termination of tenancy. The said plea was either given up or decided against the petitioner in C. R. P. 633/1970. That was again not a mistake or error apparent on the face of the record.

6. In this view of the matter, I do not think, that any case is made out to hold that a grave and palpable error was committed by the Court or that miscarriage of justice was the consequence. The plenary jurisdiction referred to by the learned judge in K. Anantharam Setty v. T. Mariappa, (1966-1 Mys LJ 649) (supra) need not be exercised. Similarly, a case for review under O. 47, R. 1, C. P. Code is also not made out. The petition is without any merit and the same is dismissed with costs.

7. Petition dismissed.