Full Judgment Text
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CASE NO.:
Appeal (civil) 7519 of 2001
Appeal (civil) 7522 of 2001
Appeal (civil) 7524 of 2001
PETITIONER:
OUSEPH MATHAI & ORS.
Vs.
RESPONDENT:
M. ABDUL KHADIR
DATE OF JUDGMENT: 05/11/2001
BENCH:
M.B. Shah & R.P. Sethi
JUDGMENT:
SETHI,J.
Leave granted.
Assuming jurisdiction and exercising powers under Article 227 of
the Constitution of India, the High Court of Kerala, vide the order
impugned in these appeals set aside the judgment of the Appellate
Authority by which the order passed by the Rent Control court
dismissing the respondents-tenants application under Section 11(2)(c)
of the Kerala Building (Lease & Rent Control) Act, 1965 (hereinafter
referred to as "the Act") had been confirmed. After holding that the
deposit of the arrears of rent was in terms of Section 11(2)(c) of the
Act, the High Court gave the respondents-tenants a right to exercise
option under the proviso to Section 11(4) of the Act. The court held
that the power to superintendence conferred upon the High Court under
Article 227 of the Constitution of India was not an original proceeding
but revisional jurisdiction akin to Section 115 of the Code of Civil
Procedure. The High Court, therefore, impliedly held that exercise of
powers under Article 227 was the extension of the statutory powers
conferred upon the appellate or revisional authority under a particular
statute.
Assailing the impugned judgment it has been argued on behalf of
the appellants-landlords that even though the High Court had the power
of superintendence under Article 227 of the Constitution of India, yet
the same was required to be exercised sparingly and only in cases where
the subordinate courts and tribunals are shown to have erroneously
assumed jurisdiction or failed to exercise the jurisdiction vested in
them and the order impugned showed some error of law apparent on the
face of the record. Arriving at a finding which is alleged to be
perverse or based on no material could not be a ground to exercise the
power under the aforesaid Article.
It is not denied that the powers conferred upon the High Court
under Articles 226 and 227 of the Constitution are extraordinary and
discretionary powers as distinguished from ordinary statutory powers.
No doubt Article 227 confers a right of superintendence over all courts
and tribunals throughout the territories in relation to which it
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exercises the jurisdiction but no corresponding right is conferred upon
a litigant to invoke the jurisdiction under the said Article as a
matter of right. In fact power under this Article cast a duty upon the
High Court to keep the inferior courts and tribunals within the limits
of their authority and that they do not cross the limits, ensuring the
performance of duties by such courts and tribunals in accordance with
law conferring powers within the ambit of the enactments creating such
courts and tribunals. Only wrong decisions may not be a ground for the
exercise of jurisdiction under this Article unless the wrong is
referable to grave dereliction of duty and flagrant abuse of power by
the subordinate courts and tribunals resulting in grave injustice to
any party.
In Waryam Singh vs. Amarnath [1954 SCR 565] this Court held that
power of superintendence conferred by Article 227 is to be exercised
more sparingly and only in appropriate cases in order to keep the
subordinate courts within the bounds of their authority and not for
correcting mere errors. This position of law was reiterated in
Nagendra Nath Bose v. Commr. of Hills Division [1958 SCR 1240]. In
Bhahutmal Raichand Oswal v. Laxmibai R. Tarta [AIR 1975 SC 1297] this
Court held that the High Court could not, in the guise of exercising
its jurisdiction under Article 227 convert itself into a court of
appeal when the Legislature has not conferred a right of appeal. After
referring to the judgment of Lord Denning in R v. Northumberland
Compensation Appeal Tribunal, Exparte Shaw [1952 (1) All ER 122, 128]
this Court in Chandavarkar Sita Ratna Rao v. Ashalata S. Gurnam [1986
(4) SCC 447] held:
"It is true that in exercise of jurisdiction under Article
227 of the Constitution the High Court could go into the
question of facts or look into the evidence if justice so
requires it, if there is any misdirection in law or a view
of fact taken in the teeth of preponderance of evidence.
But the High Court should decline to exercise its
jurisdiction under Articles 226 and 227 of the Constitution
to look into the fact in the absence of clear and cut down
reasons where the question depends upon the appreciation of
evidence. The High Court also should not interfere with a
finding within the jurisdiction of the inferior tribunal
except where the findings are perverse and not based on any
material evidence or it resulted in manifest injustice (see
Trimbak Gangadhar Teland 1977 (2) SCC 437). Except to the
limited extent indicated above, the High Court has no
jurisdiction. In our opinion therefore, in the facts and
circumstances of this case on the question that the High
Court has sought to interfere, it is manifest that the High
Court has gone into questions which depended upon
appreciation of evidence and indeed the very fact that the
learned trial Judge came to one conclusion and the
Appellate Bench came to another conclusion is indication of
the position that two views were possible in this case. In
preferring one view to another of factual appreciation of
evidence, the High Court transgressed its limits of
jurisdiction under Article 227 of the Constitution. On the
first point, therefore, the High Court was in error."
In Laxmikant Revchand Bhojwani & Anr. v. Pratapsing Mohansingh
Pardeshi [1995 (6) SCC 576] this Court held that High Court was not
justified in extending its jurisdiction under Article 227 of the
Constitution of India in a dispute regarding eviction of tenant under
the Rent Control Act, a special legislation governing landlord-tenant
relationship. To the same effect is the judgment in Koyilerian Janaki
& Ors. v. Rent Controller (Munsiff) Cannanore & Ors. [2000 (9) SCC
406].
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In the present appeals, the High Court appears to have assumed
the jurisdiction under Article 227 of the Constitution without
referring to the facts of the case warranting the exercise of such a
jurisdiction. Extraordinary powers appear to have been exercised in a
routine manner as if the power under Article 227 of the Constitution
was the extension of powers conferred upon a litigant under a specified
statute. Such an approach and interpretation is unwarranted. By
adopting such an approach some High Courts have assumed jurisdiction
even in matters to which the legislature had assigned finality under
the specified statutes. Liberal assumption of powers without reference
to the facts of the case and the corresponding hardship to be suffered
by a litigant has unnecessarily burdened the courts resulting in
accumulation of arrears adversely affecting the attention of the court
to the deserving cases pending before it.
Had the High Court noticed the facts of the present case, there
was no necessity of assuming the jurisdiction under Article 227 of the
Constitution and passing the impugned order. It is not disputed before
us that the appellants filed an eviction petition against the
respondents on the grounds specified under Section 11(2)(b) and Section
11(4)(iv) of the Act. The Rent Control court held that the landlord
had failed to prove the defaults in the payment of rent within the
meaning of Section 11(2)(b) of the Act but passed an order for eviction
on the ground of bonafide need for reconstruction within the meaning of
Section 11(4)(iv) of the Act vide its orders dated 30th September, 1984.
Both the landlords and the tenants preferred appeals against the order
of the Rent Control court before the Appellate Authority. Whereas the
appeals filed by the tenant was dismissed, the appeal preferred by the
landlords for eviction, also on the ground of arrears of rent, was
allowed. The respondents-tenants filed a revision petition which was
dismissed on 3rd December, 1984 by the District Court, Kottayam (the
revisional authority). However, a period of two months was fixed by
the court for vacating the order of eviction if the tenants deposited
the arrears of rent in terms of Section 11(2)(c) of the Act. The
tenants did not avail the opportunity granted to them for deposit of
the arrears of rent and instead preferred a second revision petition
being CRP No.3210 of 1984 in the High Court of Kerala which was
dismissed on 4.2.1987 holding that after the dismissal of the first
revision petition the second revision in the High Court was not
maintainable. Thereafter the respondents-tenants filed a petition
under Article 227 of the Constitution which was registered as O.P.
No.5970 of 1987. They also moved IA No.756 of 1987 before the District
Court, Kottayam, the revisional authority for extension of time for the
deposit of the rent. The said application was dismissed on 7.7.1987.
Despite dismissal of the application for extension of time for deposit
of arrears of rent, neither the arrears were paid nor the said order
was challenged in any appropriate proceedings. When O.P. No.5970 of
1987 filed by the respondents-tenants was dismissed on 27th September,
1991, they deposited the arrears of rent on 24th October, 1991 to claim
benefit of Section 11(2)(c) of the Act.
Not being satisfied with the deposit in terms of Section 11(2)(c)
of the Act they themselves moved an application in the Rent Control
Court with a prayer for vacating the order of eviction on deposit of
arrears of rent made by them on 24th October, 1991. The application was
dismissed on 29.9.1992 holding that the rent had not been deposited in
time and that the application filed by the tenants was barred by res-
judicata. The appeal preferred against the order of the Rent Control
Court was dismissed by the Appellate Authority on 30th March, 1995. The
respondents thereafter filed the application under Article 227 of the
Constitution which was disposed of by the order impugned in these
appeals.
To determine the controversy reference may be made to some of the
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provisions of the Act. Section 2(5) of the Act defines "Rent Control
Court" to mean court constituted under Section 3 of the Act which,
inter alia, provides:
"3. Constitution of rent control courts and appointment
of Accommodation Controllers - (1) The Government may, by
notification in the Gazette, appoint a person who is or is
qualified to be appointed, a Munsiff to be the Rent Control
Court for local areas as may be specified therein.
(2) The Government may, by notification in the Gazette,
appoint any officer not below the rank of a Tahsildar to be
the Accommodation Controller for any area to which this Act
applies.
(3) The Accommodation Controller shall exercise his
powers and perform his functions subject to such general
directions as the Government may issue."
Section 11 deals with the grounds upon the proof of which a tenant can
be evicted from the leased premises. Section 11(2) provides:
"11(2)(a) A landlord who seeks to evict his tenant shall
apply to the Rent Control Court for a direction in that
behalf.
(b) If the Rent Control, after giving the tenant a
reasonable opportunity of showing cause against the
application, is satisfied that the tenant ahs not paid or
tendered the rent due by him in respect of the building
within fifteen days after the expiry of the time fixed in
the agreement of tenancy with his landlord or in the
absence of any such agreement by the last day of the month
next following that for which the rent is payable, it shall
make an order directing the tenant to put the landlord in
possession of the building, and if it is not satisfied it
shall make an order rejecting the application thereof by
him:
Provided that an application under this sub-section shall
be made only if the landlord has sent a registered notice
to the tenant intimating the default and the tenant has
failed to pay or tender the rent together with interest at
six per cent per annum and postal charges incurred in
sending the notice within fifteen days of the receipt of
the notice or of the refusal thereof.
(c) The order of the Rent Control Court directing the
tenant to put the landlord in possession of the building
shall not be executed before the expiry of one month from
the date of such order or such further period as the Rent
Control Act may in its discretion allow; and if the tenant
deposits the arrears of rent with interest and cost of
proceedings within the said period of one month or such
further period, as the case may be, it shall vacated that
order."
Section 12 of the Act provides that no tenant against whom an
application for eviction has been made by a landlord under Section 11
shall be entitled to contest the application before the Rent Control
Act under that Section or to prefer an appeal under Section 18 against
any order made by the Rent Control Court on the application unless he
has paid or pays to the landlord or deposits with the Rent Control
Court or the Appellate Authority, as the case may be, all arrears of
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rent, admitted by the tenants, to be due in respect of the building
upto the date of payment or deposit and continues to pay or to deposit
any rent which may subsequently become due in respect of the building,
until the termination of the proceedings before the Rent Control Court
or the appellate authority, as the case may be. Section 18 makes the
provision for filing of appeals. Sub-section (4) of Section 18
provides that the Appellate Authority shall have all the powers of Rent
Control Court including the fixing of a rent. Sub-section (5) of
Section 18 provides:
"18(5) The decision of the appellate authority, and
subject to such decision, an order of the Rent Control
Court shall be final and shall not be liable to be called
in question in any court of law, except as provided in
section 20."
Section 20 deals with the filing of revisions under the Act and
provides:
"20. Revision-(1) In cases where the appellate authority
empowered under section 18 is a Subordinate Judge,. the
District Court, and in other case the High Court, at any
time, on the application of any aggrieved party, call for
and examine the records relating to any order passed or
proceedings taken under this Act by such authority for the
purpose of satisfying itself as to the legality, regularity
or propriety of such order or proceedings, and may pass
such order in reference thereof as it thinks fit.
(2) The costs of and incident to all proceedings before
the High Court or District Court under sub-section (1)
shall be in its discretion."
Sub-section (5) of Section 18 unambiguously provides that the
decision of the Appellate Authority and subject to such decision, an
order of the Rent Control Court shall be final and shall not be libale
to be called in question in any court of law except as provided in
Section 20 of the Act. It follows, therefore, that the order of
eviction, if passed against a tenant shall attain finality after the
decision of the appellate authority or at the most after the decision
of the revisional authority as contemplated under Section 20 of the
Act. If an order of eviction has been passed under Section 11(2) of
the Act, the said order and direction shall become executable after the
expiry of one month from the date of the final order passed by the Rent
Control Court, the Appellate Court or the Revisional Court, as the case
may be, subject, however, to the extension of time granted by of the
aforesaid courts and authorities in terms of clause (c) of sub-section
(2) of Section 11. Proceedings under Article 227, not being the
extension of the proceedings under the Act would not automatically
authorise the court to extend the time under the aforesaid proviso.
However, it does not mean that in no case the High Court can extend the
time. Exercise of such a power may be necessary if it is shown that
grave injustice has been done to a party and the case was a fit case
where the High Court should have exercised the extraordinary
discretionary power in favour of the defaulting party.
In this case the court appears to have condoned the delay in
depositing the arrears of rent on the assumption that the petition
under Article 227 of the Constitution was extension of appeal or
revisional powers under the Act. The court impliedly held that as the
OP No.5970 of 1987 filed by the tenants was dismissed on 27th Septemebr,
1991, they had a statutory right to deposit the arrears of rent within
the meaning of Section 11(2)(c) within a period of one month therefrom.
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Such is not the correct position of law.
Learned counsel appearing for the respondents-tenants submitted
that as there was a stay regarding dispossession of the tenants, the
tenants were justified in depositing the rent within one month after
the dismissal of their petition under Article 227 of the Constitution
of India. It is settled position of law that stay granted by the court
does not confer a right upon a party and it is granted always subject
to the final result of the matter in the court and at the risks and
costs of the party obtaining the stay. After the dismissal, of the
lis, the party concerned is relegated to the position which existed
prior to the filing of the petition in the court which had granted the
stay. Grant of stay does not automatically amount to extension of a
statutory protection.
In the instant case the revision petition filed by the
respondents-tenants under Section 20 of the Act was dismissed on 3rd
December, 1984 giving them two months’ time to deposit the rent under
Section 11(2)(c) of the Act which they admittedly did not deposit till
24th October, 1991. Nothing has been placed on record to show that even
in the petition filed under Article 227 of the Constitution, the court
had stayed the direction for deposit of rent within the extended
statutory period. Even while dismissing the petition O.P.No.5970 of
1987, the court did not extend time for the deposit of arrears of rent.
It is pertinent to note that the application of the respondents-tenants
for extension of time for deposit of rent filed in the revisional court
was dismissed on 7.7.1987 against which no action was taken.
Looking from any angle it is apparent that the order of eviction
passed against the respondents-tenants had become executable on 3rd
February, 1985 and in no case beyond 7.7.1987. There is no dispute
that Rent Control Act is a social welfare legislation meant to protect
and safeguard the interests of the tenants but it does not confer
unfettered powers on the tenants to remain in possession of the leased
premises notwithstanding the compliance of directions of the court or
the provisions of the statute. The Act is intended to protect the
interests of bonafide tenants in possession. The Act has put
restrictions on the right of the landlord to seek eviction of the
tenant on the ground of defaults in the payment of rent which are
regulated by Sub-section (2) of Section 11 of the Act. A tenant is
under an obligation to pay or tender the rent in respect of the
building under his occupation within 15 days after the expiry of time
fixed in the agreement of tenancy or in the absence of such agreement
by the last day of month next falling for which the rent is payable.
Non payment of rent, as per contract and statutory provisions, entitles
the landlord to seek possession only after compliance of sending a
registered notice to the tenants intimating the default. If after the
receipt of such a notice a genuine tenant pays or tenders the rent
together with interest at 6% per annum and postal charges, the right
accrued to the landlord to get possession on this ground is defeated.
Even after passing of the eviction order a further right is conferred
upon tenant in terms of clause (c) of sub-section (2) of Section 11.
It is only such tenant who defaults to pay the rent at all the three
relevant times that the law requires him to be dispossessed. In the
instant case the respondents-tenants are proved to have failed to pay
the arrears of rent at all the three relevant times. Under the facts
and circumstances of the case, the tenants were not entitled to any
discretionary relief under Article 227 of the Constitution of India.
Without referring to the facts of the case the High Court has passed
the impugned order which is not sustainable.
In view of what has been stated hereinabove, the appeals are
allowed by setting aside the order impugned and upholding the order
passed by the appellate and revisional authority against the
respondents-tenants. No costs.
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.......................J.
(M.B. Shah)
......................J.
(R.P. Sethi)
November 5, 2001