Hari Shankar Vs. Rao Girdhari Lal
Chowdhury [1961] INSC 342 (5 December 1961)
HIDAYATULLAH, M.
SINHA, BHUVNESHWAR P.(CJ) KAPUR, J.L.
SHAH, J.C.
CITATION: 1963 AIR 698 1962 SCR Supl. (1) 933
CITATOR INFO :
RF 1964 SC 461 (4) R 1964 SC1305 (20) R 1964
SC1317 (15,16) R 1965 SC 553 (2) R 1969 SC1344 (8,9) R 1974 SC1059 (6) RF 1987
SC1782 (14,15) R 1988 SC1422 (7)
ACT:
Revision Application-Concurrent findings of
the courts below-No provision in statute for second appeal-High court, if should
re-assess the value of evidence-Distinction between appeal and revision-Delhi
& Ajmer Reni Contgrol Act, 1952-(38 of 1952), ss. 34, 35 (1).
HEADNOTE:
In an ejectment suit under the Delhi &
Ajmer Rent Control Act, 1952, the trial Judge decreed the suit and on appeal
under s.34 of the Act the Additional District Judge confirmed 934 the decision.
The Act did not provide for a second appeal, and under s. 35 (1) a revision was
filed against the Order of the Additional District Judge The single Judge of
the Punjab High Court following a previous decision of the same High Court, was
of opinion that in assessment as all the evidence was not considered it was
competent for him to reconsider the concurrent findings of the courts below.
The question is whether the High Court in
exercise of its revisional powers is entitled to re-assess the value of the
evidence and to substitute its own conclusions of facts in place of those
reached by the courts below.
^ Held, (per Sinha, C. J., Hidayatullah and
shah, JJ, that though s. 35 of the Delhi and Ajmer Rent Control Act is worded
in general terms, but it does not create a right to have the case re- heard.
The distinction between an appeal and
revision is a real one. A right to appeal carries with it right of re-hearing
on law as well as fact, unless the statute conferring the right to appeal
limits the re-hearing in some way. The power to hear a revision is generally
given to a superior court so that it may satisfy, itself that a particular case
decided according to law. The phrase "according to law" in s. 35 of
the Act refers to the decision as a whole, and is not to be equated to errors
of law or of fact simplicitor. All that the High Court can see is that these
has been no miscarriage of justice and that the decision is according to law in
the sense mentioned.
per Kapur, J.-The power under s. 35 (1) of
the Act of interference by the High Court, is not restricted to a proper trial
according to law or error in regard to onus of proof or proper opportunity of being
heard. It is very much wider than that when in the question of the High Court
the decision is erroneous on a question of law which affects the merits of the
case or decision is manifestly unjust the High Court is entitled to interfere.
Bell and Co. Ltd. v. Waman Hemraj (1938) 40
Bom. LR. 125 approved.
CIVIL APPELLATE JURISDICTION: Civil Appeal
No. 94 of 1959.
Appeal by special leave from the judgment and
decree dated May 7, 1957, of the Punjab High Court (Circuit Bench) at Delhi in
Civil Revision Application No. 144-D of 1957.
Bishan Narain R. Mahalingier and B. C. Misra
for the appellants.
935 Gurbachan Singh and Harbans Singh, for
the respondent.
1961. December 5. The Judgment of Sinha,
C.J., Hidayatullah and Shah, JJ., was delivered by Hidayatullah, J. Kapur, J.
delivered a separate judgment.
HIDAYATULLAH, J.-The appellants (in this
appeal by special leave) are the sons of one Gauri Shankar, who owned a
bungalow known as 5, Haily Road, New Delhi. This bungalow was given to the
respondent by Gauri Shankar on a monthly rent of Rs. 234-6-0, excluding taxes.
The suit, out of which this appeal arises, was brought by the appellants
against the respondent, Rao Girdhari Lal Chowdhury, for his eviction on the
ground (among others) that he had sub-let a portion of the bungalow after the
commencement of the Delhi and Ajmer Rent Control Act, 1952 (38 of 1952) to one,
Dr. Mohani Jain, without obtaining the consent in writing of the landlord, as
required by s. 13(1)(b)(i) of the Act. The defence was that the original
contract of tenancy was entered into sometime in 1940 and a term in the
contract gave the tenant right to sub-let. It was alleged that a letter written
by the tenant which embodied the terms of the tenancy was in the possession of
the landlord and a demand was made for its production.
The case of the tenant was that the
sub-tenancy commenced in the year 1951, that is to say, before the passing of
the Act of 1952, and the tenant was not required to obtain the written consent
of the landlord to sublet Admittedly, in this case, no written consent was
proved. We need not mention the other allegations and counter-allegations which
are usual in proceedings between landlords and tenants, the most important of
them being about the arrears of rent, which the tenant under permission of the
Court ultimately deposited in Court.
936 The issue on which the decisions below
have differed was framed by the Sub-Judge, First Class, Delhi, in the following
terms:
"Did the plaintiff consent to the sub-
letting of parts of the demised premises by the defendant ? If so, when and to
what effect." The trial Judge found that there was no evidence that the
landlord was ever consulted before a portion of the bungalow was sublet to Dr. Mohani
Jain, and further that the sub-tenancy was created after June 9, 1952, the date
on which the Act came into force. In reaching the latter conclusion, the trial
Judge made a reference to a dispute between the tenant and Dr. Mohani Jain for
fixation of standard rent before the Rent Control authorities. In those
proceedings, Dr. Mohani Jain had alleged that she was living as a sub-tenant
from the end of 1951, but the tenant had denied this fact. The proceedings
before the Rent Control authorities ended in a compromise, but the admission of
the tenant was relied upon to support the conclusion that the sub-tenancy
commenced after the Act. The trial Judge decreed the suit.
The decision of the trial Judge was confirmed
on appeal by the Additional District Judge, Delhi.
Though Dr. Mohani Jain gave oral evidence in
this case that her sub-tenancy commenced in December 1951, the Additional
District Judge found categorically that the sub-tenancy commenced sometime
after the coming into force of the Act.
He held that even if Dr. Mohani Jain was
living there even from before it was a guest and not as a sub-tenant.
Against the order of the Additional District
Judge, a revision was filed under s. 35 (1) of the Act. That section reads as
follows:
"The High Court may, at any time, call
for the record of any case under this Act for the purpose of satisfying itself
that a decision 937 made therein is according to law and may pass such order in
relation thereto as it thinks fit." Acting in accordance with a decision
of the Punjab High Court as to the ambit of this section, the learned single
Judge, who heard the revision application, thought that it was competent for
him to reconsider the concurrent findings about the time when the sub-tenancy
commenced. He held that Dr. Mohani Jain's statement showed that the sub-
tenancy commenced prior to the passing of the Act, and that the landlord's
consent in writing was not necessary. In reaching this conclusion, the learned
Judge was of opinion that all the evidence was not considered by the two Courts
below, and that he was entitled, in view of the interpretation placed upon the
section above quoted, to go into the matter afresh, and decide the question of
fact.
It may be pointed out that while the suit was
pending before the Subordinate Judge, an application was made for the
production of the letter referred to in the written statement of the tenant, to
which a passing reference has already been made. A letter was produced, and it
is Ex. D-1. That letter does not disclose all the terms of the tenancy and it
would appear, therefore, that the terms of the original tenancy have not been
proved in this case, and there is no material on which it can be said either
way as to whether a right to sublet was conferred upon the tenant. The
defendant did not insist in the Court of first instance that there was yet
another letter, and the argument to that effect in this Court cannot be
entertained.
In reaching the conclusion that all the
evidence pertinent to the issue was not considered, the learned Judge of the
High Court stated that Ex.P-19, which was the petition filed by Dr. Mohani Jain
under s. 8 of the Act to get the standard rent fixed was not taken into account
by the Additional District Judge. That petition contained an averment 938 that
her sub-tenancy commenced on December 1, 1951 with a rent of Rs. 100/-per
month, and that a cheque for Rs. 1,800/- as advance rent for 18 months was
given by her in the name of the daughter of the tenant, because the tenant
represented that he had no account in the bank and therefore a cheque should be
given in the name of his daughter. This, the learned Judge felt, adequately
supported the statement of Dr. Mohani Jain to the same effect as a witness in
this case.
The learned Judge was in error in thinking
that Ex. P-19 was not taken into account by the Additional District Judge. The
latter had, in fact, considered Ex. P-19, the petition of Dr. Mohani Jain,
before the Rent Control authorities.
Ex. P-20, the reply of the tenant to that
petition and Ex.P-21, the petition of compromise; but he cited Exs. P-20 and
P-21 only. There is internal evidence to show that Ex. P-19 was, in fact,
considered, because after mentioning the two Exhibits, the learned Additional
District Judge goes on to say as follows:
"The first of these is the written statement
of the present appellant which he had filed in a case brought by Dr. Mohani
Jain against him for the fixation of fair rent. There he had completely denied
somewhere in the year 1953 that Dr. Mohani Jain was his subtenant and could not
sue for fixation of rent. This was enough to show that right up to the year
1953 the appellant himself did not regard Dr. Mohani Jain as a
sub-tenant." This clearly shows that the learned Additional District Judge
was weighing Ex. P-19 as against Ex. P20 and was acting on Ex. P-20, which
contained a material admission by the tenant before the present dispute had
begun. The learned single Judge was, therefore, in error in departing from a
concurrent finding of fact on a wrong supposition.
939 But the question that arises in this
appeal is one deeper than a mere appraisal of the evidence. It is whether the
High Court in the exercise of its revisional power is entitled to re-assess the
value of the evidence and to substitute its own conclusions of fact in place of
those reached by the Court below. This question requires an examination of the
powers of revision conferred on the High Court by s. 35 of the Act.
That question is one of common occurrence in
Acts dealing with some special kinds of rights and remedies to enforce them.
Section 35 is undoubtedly worded in general terms, but it does not create right
to have the case reheard, as was supposed by the learned Judge. Section 35
follows s. 34, where a right of appeal is conferred; but the second sub-section
of that section says that no second appeal shall lie.
The distinction between an appeal and a
revision is a real one. A right of appeal carries with it a right of rehearing
on law as well as fact, unless the statute conferring the right of appeal
limits the rehearing in some way as, we find, has been done is second appeals
arising under the Code of Civil Procedure. The power to hear a revision is
generally given to a superior Court so that it may satisfy itself that a
particular case has been decided according to law.
Under s. 115 of the Code of Civil Procedure.
the High Court's power are limited to see whether in a case decided, there has
been an assumption of jurisdiction where none existed, or a refusal of
jurisdiction where it did, or there has been material irregularity or
illegality in the exercise of that jurisdiction. The right there is confined to
jurisdiction and jurisdiction alone.
In other acts, the power is not so limited,
and the High Court is enabled to call for the record of a case to satisfy
itself that the decision therein is according to law and to pass such orders in
relation to the case, as it thinks fit.
The phrase "according to law"
refers to the decision as a whole, and is not to be equated to 940 errors of
law or of fact simpliciter. It refers to the overall decision, which must be
according to law which it would not be, if there is a miscarriage of justice
due to a mistake of law.
The section is thus framed to confer larger
powers than the power to correct error of jurisdiction to which s. 115 is
limited. But it must not be overlooked that the section in spite of its
apparent width of language where it confers a power on the High Court to pass
such order as the High Court might think fit-is controlled by the opening
words, where it says that the High Court may send for the record of the case to
satisfy itself that the decision is "according to law". It stands to
reason that if it was considered necessary that there should be a rehearing, a
right of appeal would be a more appropriate remedy, but the Act says that there
is to be no further appeal.
The section we are dealing with, is almost
the same as s. 25 of the Provincial Small Cause Courts Act. That section has
been considered by the High Courts in numerous cases and diverse
interpretations have been given. The powers that it is said to confer would
make a broad spectrum commencing, at one end, with the view that only
substantial errors of law can be corrected under it, and ending, at the other
with a power of interference a little better than what an appeal gives. It is
useless to discuss those cases in some of which the observations were probably
made under compulsion of certain unusual facts. It is sufficient to say that we
consider that the most accurate exposition of the meaning of such sections is
that of Beaumont, C.J. (as he then was) in Bell & Co. Ltd. v. Waman Hemraj
(1) where the learned Chief Justice, dealing with s. 25 of the Provincial Small
Cause Courts Act, observed:
"The object of s. 25 is to enable the
High Court to see that there has been no miscarriage of justice, that the
decision was given according to law. The section does not enumerate 941 the
cases in which the Court may interfere in revision, as does s.115 of the Code
of Civil Procedure, and I certainly do not propose to attempt an exhaustive
definition of the circumstances which may justify such interference; but
instances which readily occur to the mind are cases in which the Court which
made the order had no jurisdiction or in which the Court has based its decision
on evidence which should not have been admitted, or cases where the
unsuccessful party has not been given a proper opportunity of being heard, or
the burden of proof has been placed on the wrong shoulders. Wherever the court
comes to the conclusion that the unsuccessful party has not had a proper trial
according to law, then the Court can interfere. But, in my opinion, the Court
ought not to interfere merely because it thinks that possibly the Judge who
heard the case may have arrived at a conclusion which the High Court would not
have arrived at." This observation has our full concurrence.
What the learned Chief Justice has said
applies to s. 35 of the Act, with which we are concerned. Judged from this
point of view, the learned single Judge was not justified in interfering with a
plan finding of fact and more so, because he himself proceeded on a wrong
assumption.
The appeal thus succeeds, and is allowed with
costs. The order under appeal is set aside, and that of the Additional District
Judge restored. As regards eviction, the respondent has given an undertaking
that he would vacate the house on or before April 25, 1962, and this has been
accepted by the appellants.
KAPUR J.-I agree that the appeal should be
allowed and that the High Court was in error in interfering with the finding of
fact, but in my 942 opinion the power of revision under s. 35(1) of the Delhi
& Ajmer Rent Control Act is not so restricted as was held by Beaumont, C.
J., in Bell & Co. Ltd. v. Waman Hemraj(1), a case under s. 25 of the
Provincial Small Cause Courts Act. The section provides that the order passed
should be in accordance with law and if it does not then the High Court can
pass such order as it thinks fit.
The language used in s. 35(1) of the Act is
almost identical with the words of the proviso to s.75(1) of the Provincial
Insolvency Act. The power under that proviso has been thus commented upon by
Mulla in his Law of Insolvency at page 787 of 2nd Edition:
"The power given to the High Court by
this proviso is very wide. In the exercise of this power the High Court may set
aside any order if it is not `according to law'." The power under the
Insolvency Act has not, by the Courts in India, been considered to be do
restricted as the observations of Beaumont, C. J.
in Bell & Co. Ltd. v. Waman Hemraj(1)
seem to suggest in regard to s. 25 of the Small Cause Courts Act. This power of
interference by the High Court is not, in my opinion, restricted to proper
trial according to law or error in regard to onus of proof or proper opportunity
of being heard. It is very much wider than that. When, in the opinion of the
High Court, the decision is erroneous on a question of law which affects the
merits of the case or decision is manifestly unjust the High Court is entitled
to interfere. The error may not necessarily be as to the interpretation of a
provision of law, it may be in regard to evidence on the record. Thus when
material evidence on the record is ignored or a finding is such that on the
evidence taken as a whole no tribunal could, as a matter of legitimate
inference arrive at. It is neither possible nor desirable to enumerate all 943
cases which would fall within the jurisdiction of the High Court under s. 35(1)
of the Act but it is not to be narrowly interpreted nor to be so widely interpreted
as to convert the revision into an appeal on facts.
Appeal allowed.
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