Suresh V. Talaraja Vs. Gopal Pundalik Koparge - Court Judgment

Excerpt:
karnataka rent control act, 1961 (karnataka act no. 22 of 1961) & karnataka rent control rules, 1961 - rule 35 - rule provides applicability of c.p.c. only as to procedure ; appeal, revision and review not matters of procedure -- no power of review conferred on district judge specifically or by necessary implication or by inference.;question arising for consideration as to: whether the district judge, a revisional authority under section 50 of the rent control act, can review his order?;there is no specific power of review under the karnataka rent control act....the district judge functioning as a revisional court is a 'court' subordinate to high court but that by itself is not sufficient to infer power of review....rule 35 of the karnataka rent control rules provides that questions.....ordermurlidher rao, j.1. at the outset mr. w.k. joshi, counsel for the petitioners prayed for conversion of this petition as crp. petitioner has filed a crp which was withdrawn in view of the full bench decision of this court in m.m. yaragatti v. vasanth, : air1987kant186 . the said decision was overruled by the supreme court in shyamaraju v. u.v. bhat, ilr 1987 kar 3244: air 1987 karnataka 2323; the supreme court further approved the earlier full bench decision in krishnaji venkatesh shirodkar v. gurupad shivaram kavlekar, ilr (karnataka) 1978(2) 1985; the resultant position is that a revision under section 115 cpc is maintainable against a revisional order of the district judge under section 50 of the karnataka rent control act. in this case, the order challenged is an order of allowing.....

Judgment:
ORDER

Murlidher Rao, J.

1. At the outset Mr. W.K. Joshi, Counsel for the petitioners prayed for conversion of this petition as CRP. Petitioner has filed a CRP which was withdrawn in view of the Full Bench decision of this Court in M.M. YARAGATTI v. VASANTH, : AIR1987Kant186 . The said decision was overruled by the Supreme Court in SHYAMARAJU v. U.V. BHAT, ILR 1987 KAR 3244: AIR 1987 Karnataka 2323; the Supreme Court further approved the earlier Full Bench decision in KRISHNAJI VENKATESH SHIRODKAR v. GURUPAD SHIVARAM KAVLEKAR, ILR (Karnataka) 1978(2) 1985; the resultant position is that a revision under Section 115 CPC is maintainable against a revisional order of the District Judge under Section 50 of the Karnataka Rent Control Act. In this case, the order challenged is an order of allowing review petition by the District Judge.

2. An order granting review application under Rule 4 of Order 47 would be appealable to the Court to which an appeal would He from the decree in the suit as provided in Section 106 CPC. The impugned order is not passed in exercise of appellate jurisdiction. The order of District Judge under Section 50 of the Rent Control Act, is not appealable. It is a revisable order under Section 115 as held by Full Bench in Venkatesh Shirodkar's case, ILR (Karnataka) 1978(2) 1985 referred to above. Therefore the impugned order is only revisable; hence petitioner's request to convert this W.P. as CRP is allowed. Office is directed to register it as CRP and refund the excess Court fee.

The question that needs consideration is whether the District Judge, a revisional authority under Section 50 of the Rent Control Act, can review his order

3. There is no specific power of review under the Karnataka Rent Control Act; but in J. NANDANLAL v. NARAYANSWAMY, : AIR1975Kant237 , Mr. DMC.J. (as he then was) has held that the High Court and District Judge under Section 50 of the Act being a 'Court' have the power of review. The learned Judge considered the power of review as a matter of 'practice and procedure'. The learned Judge while reviewing his own order, relied upon the observation of the Supreme Court in : [1953]4SCR1028 , National Sewing Thread Co. Ltd. Chidambaram v. James Chadwick & Bros. Ltd. wherein the Court was considering the power of High Court to entertain a letters patent appeal in a case decided in appeal by the High Court, under the Trade Marks Act, which did not provide for further appeal. Letters patent appeal, under Letters Patent Act, cannot be equated to a power of review and the sustenance drawn from that Judgment is not apt to hold that District Judge can review his order. Further, the District Judge cannot be equated to High Court. High Court is a Court of plenary jurisdiction, which was always the jurisdiction to prevent miscarriage of justice. In ANANTRAMASETTY v. T. MARIAPPA, 1966(1) Mys.L.J. 649 Govinda Bhat, J, (as he then was) held thus:

'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. Hence it can entertain a petition for review of an order passed in revision.'

The word 'Court' as defined in Section 3(d) does not include the District Judge and the High Court. These authorities wherever necessary are referred to with reference to their respective nomenclature wherever power is conferred on them.

There is no doubt that the District Judge functioning as a Revisional Court is a 'Court' subordinate to High Court but that by itself is not sufficient to infer power of review. In Nandanlal v. Narayanswamy, : AIR1975Kant237 the learned Judge was called upon to review his own order passed in revision in CRP 1423/1973, the observation in the last paragraph that the District Judge being a Court as defined in Section 3(d) has power of review is an obiter dicta as that question did not directly fall for consideration.

4. In SAMPU GOWDA v. STATE OF MYSORE, AIR l953 Mysore 156 a Full Bench of the former High Court of Mysore held that 'power of review cannot be assumed or imported in the absence of any specific provision therefor or even indication of the conditions for the exercise of it.' This ruling, though not binding, has a persuasive value.

5.In V. SINGRACHARI AND ANR. v. M.S. GURUMURTHACHARI, 1960 Mys.L.J. 195 Mr. K.S. Hegde, J., (as he then was) had to directly consider the power of review under the provisions of Mysore House Rent and Accommodation Control Act, 1951 (Act 30 of 1951). The learned Judge held that the Court under the said Act has no power of review. It was held that 'review petition is an independent proceeding'. Section 26, in the then existing statute, which is not found in the present Act, made applicable the provisions of C.P.C. as far as possible. Rule 35 of the Karnataka Rent Control Rules provides that questions relating to procedure, not specifically provided for, shall as far as possible be guided by the provisions contained in C.P.C. Appeal, revision and review are not matters of procedure. The Rent Control Act and Rules have made special provision for procedural matters. If that was not so there was no need to separately provide for appeals (Section 41), pronouncement of orders in open Court (Section 46 which is equivalent to Order XX Rule 1 C.P.C.) ; awarding of costs (Section 49 which is equivalent to Section 35 CPC) ; procedure for setting aside exparte decree (Rule 29, equivalent to Order 9 Rule 13 of C.P.C.), application to implead legal representatives (Section 51 read with Rule 30 of Rent Control Rules); award of costs by High Court and District Judge [Sub-section (3) of Section 50 equivalent to Order 41 Rule 35(3) C.P.C.]. It is precisely for these reasons KSH.J observed that :

'....If by virtue of Section 26 of the Act all the provisions of the Civil Procedure Code are automatically applicable to proceedings under the Act then there was no need to separately provide for appeals, revisions and setting aside ex parte orders. It is not proper to assume that these are legislative superfluities. An examination of the provisions of 'the Act' shows that it is a self-contained Act. Section 26 is put in as a measure of abundant caution. Hence it has to be construed strictly. It applies only to proceedings under the Act. In other words in order to attract the provisions of the Civil Procedure Code, the proceedings in question must be one under the Code and the particular matter should not have been provided for either by the Act or by the rules framed thereunder.....'

In addition to the above, the learned Judge considered the effect of Section 15(4) in that Act and observed thus ;

'The orders passed by the authorities named are made final subject to the decisions in appeal under Section 15 or in revision under Section 17. Hence there is no question of any review. The applicability of the provisions of the Code will only come up for consideration if there are no specific provisions in the Act. Section 15(4) specifically excludes the power of review. The finality contemplated in that section will become meaningless if the order in question can be reviewed.'

6. Though the above ruling is rendered under the provisions of the old Act, the principles enunciated therein are of general application and are binding. Sub-section (2) of Section 50 of the present Act makes the order of District Judge final.

7. In THIMMARAYAPPA v. COMMISSIONER CORPORATION OF BANGALORE AND ORS., 1979(1) KLJ 81 a Division Bench of this Court held that power of review must be specifically conferred or by necessary implication. At para 13 the Court held thus :

'It need hardly to be stated that the power to review is not an inherent power which the Commissioner could conveniently invoke as he pleases. Such power must be conferred by law either specifically or by necessary implication. We do not find from the Act any such review power conferred on the Commissioner.....'

8. Justice Jeevanreddy of Andhra Pradesh High Court had to consider power of review under the A.P. Buildings (Lease, Rent and Eviction) Control Act (XV of 1960). The learned Judge observed thus: in D. ANTHONY v. M. RAJYALAKSHMI., 1982(1) A.W.R. (Journal) 412

'It is well settled that the right of review is a substantive right and not a mere procedural right. Unless conferred by a statute, there is no such inherent power. It must be noticed that the Andhra Pradesh Buildings (Lease Rent and Eviction) Control Act, 1960 confers only one right of revision to this Court. The Court cannot, by a process of interpretation, add another right of review to it.....'

I respectfully agree with this view. It is in consonance with the view expressed by KSH.J, 1960 Mys.L.J. 195 and the Division Bench in Thimmarayappa's case, 1979(1) KLJ 81.

9. The further consequence of holding that there is a power of review, by implication, would mean that the Munsiff in the area concerned and Small Causes Court Judge in Bangalore can also exercise such power. The provisions of Rent Control Act and the Small Causes Court Act do not lend any support for such an inference. It would be illogical to say that only the District Judge, who exercises revisional jurisdiction under Sub-section (2) of Section 50 can exercise the power of review. Such conclusion would be fallacious as the word 'Court' means the Court of Small Causes in City of Bangalore, Civil Judge if specified by notification and Munsiff in other areas.

10. For the foregoing reasons I hold that the District Judge has no power of review; the observation of this Court in Nandanlal v. Narayanswamy, : AIR1975Kant237 is obiter dicta, as the issue did not directly arise for consideration. This conclusion is sufficient to set aside the impugned order.

11. In addition, the Court below has misapplied the ratio of the decision in UTTAM VERANAKAR v. SHATTU LAXMAN DONKARI, : ILR1986KAR1162 . By Karnataka Ordinance No. 4 of 1983, Rent Control Act was amended, it was published in Gazette (Extraordinary) on 8th February 1983. Subsection (2) of Section 1 of the Ordinance reads 'it shall be deemed to have come into force on 31st December 1982.' Section 4 substituted the old Schedules I, II and III. Thereafter Act 17 of 1983 was enacted and by Section 5, the above Ordinance was repealed, providing a saving clause. Karnataka Act 17 of 1983 which received the assent of the President on 15-7-1983, was Gazetted on 18-7-1983. Sub-section (2) of Section 1 reads thus:

'It shall come into force on 31-12-1982'. Section 4 of the Amending Act 'substituted' Schedules I, II and III.

In the absence of the words 'shall be deemed to have always been substituted' substitution takes effect only from 31-12-1982. Indeed in DODDANAVAR BROS. v. MALATHIBAI, : ILR1985KAR3025 the learned Judge has held that the Amendment Act 1983 shall be deemed to have come into force on 31-12-1982' (See para 4) In SADIQSAB v. AKHILANDAMMA, : ILR1985KAR1737 it was held that the Court has no jurisdiction to pass a decree for possession upon the extension of Chapters IV and V of the Karnataka Rent Control Act. During the pendency of the appeal proceedings, the provisions of the Act was extended to Hospet. The decree was passed on 1-10-1983, by the Trial Court. The learned Judge held that the Amending Act having come into force on 31 -12-1982, the Court lost jurisdiction to try the suit. Since the trial Courts decree was confirmed in appeal, this Court allowed the C.R.P. and set aside both the orders. There is nothing in this Judgment to hold that the substitution by the Amending Act dates back prior to 31-12-1982. To the same effect is the law laid down in Uttam Veranakar v. Shattu Laxman Donkari, : ILR1986KAR1162 . In that case suit for ejectment was filed before the Civil Judge at Belgaum. It was decreed on 18-6-1982. Revision was filed on 23-9-1982. On the date the revision petition came up for disposal. Act 17 of 1983 had been brought into force on 31 -12-1982, extending the Rent Control Act to Angol in Belgaum District. Therefore Court held that the Amending Act having come into force during the pendency of revision, the decree could not be sustained. Careful scrutiny of these decisions makes it manifest that the Amending Act 17 of 1983 came into force on 31 -12-1982 as specifically provided in Sub-section (2) of Section 1 of that Act.

12. In the instant case the construction of room was completed in July 1982 i.e., before the coming into force of the Act 17 of 1983. Landlord filed O.S.415 of 1982 for possession and mandatory injunction; the said suit was dismissed on 3-9-1984. Thereafter the present proceedings in HRC 306 of 1984 was instituted on 11-9-1984 under Section 21(1)(c). The trial Court rejected the petition. The District Judge recorded a finding that the structure was put up before the Rent Control Act was made applicable and dismissed the revision petition. By the impugned order the said order is reviewed, on the ground that the Amendment Act No. 17 of 1983 providing a substitution of the Schedule is retrospective and would be in force from inception. This is clearly erroneous; as Subsection (2) of Section 1 of Act 17 of 1983 makes the amendment applicable only from 31-12-1982. The learned District Judge has failed to notice that structure had been completed in July 1982 i.e. five months before the Amendment Act was brought into force. On the day the Amendment Act came into force, O.S.415 of 1982 which rightly ended in dismissal on 3-9-1984, was pending. Therefore the present proceedings could not have been instituted on 11-9-1984, in respect of structure or construction which had been completed long before the Rent Control Act was applicable. The Court below has erred in appreciating the ratio of the decisions in Doddanavar Bros v. Malathibai, : ILR1985KAR3025 , AIR 1987 Karnataka 2323; Sadiqsab v. Akhilandamma, : AIR1987Kant186 , ILR (Karnataka) 1978(2) 1985 and Uttam Veranakar v. Shattu Laxman Donkari, : AIR1987Kant186 .

13. For the aforesaid reasons, this petition is entitled to succeed; the order on review passed by the District Judge, Belgaum, dated 5th January 1987, is set aside. No costs.