Shaik Jaffar Shaik Mahmood & Ors Vs.
Mohd. Pasha Hakkani Sahab & Ors  INSC 258 (3 December 1974)
CITATION: 1975 AIR 794 1975 SCR (2) 890 1975
SCC (1) 25
Nature of revisional power-Narrower than
appellate power- Whether evidence can be re-appreciated-section 115 of Civil
Procedure Code-Section 26(c) of Hyderabad Houses (Rent Eviction and Lease)
Control Act. 1954.
The respondent Landlords made an application
to the Rent Controller for eviction of the appellant-tenants on the ground of
non-payment of rent and personal requirement under Hyderabad Houses (Rent.
Eviction and Lease) Control Act, 1954. The Rent Controller negatived the
landlords' contention and dismissed the eviction application. An appeal filed
by the landlords before the Assistant Judge was also dismissed. In a Revision
Petition filed by the land- lords before the High Court under section 26 of the
Act the High Court examined the reasons given by the Rent Controller and the
Assistant Judge and held that there was no cogent reason to reject the
testimony of the first petitioner on the question of bona fide requirement.--
On appeal to this Court by Special Leave it was contended on behalf of the
appellant-tenants that the High Court was wrong in re-appreciating the evidence
to come to a contrary conclusion to the one arrived at by both the courts below
in Revision under section 26 of the Act. The scope of the section 26 of the Act
is narrower than section 115 of the Civil Procedure Code.
Allowing the appeal,
HELD : There is a 3 tier machinery provided
in the Act. The first court is that of Rent Controller which is to make a summa
ry enquiry. The second stage is of an appeal before the District Judge which is
a complete re-hearing with additional power to make further enquiry if
necessary. The third stage is the revision to the High Court. It is well known
that the appellate power is different from revisional power. Usually in the
absence of any clear provision in the law power of revision is narrower than
that of appeal.
There is no substantial difference between
the powers conferred by section 26 of the Act and section 115 of the Civil
Procedure Code. In a series of decision-, starting from Privy Council days it
is firmly well established that section 115 of the Civil Procedure Code applies
to jurisdiction alone, the irregular exercise or the non- exercise of it or the
illegal assumption of it. The section is not directed against conclusions of
law or fact in which the question of jurisdiction is not involved. [892E-893C]
Rajah Amir Hassen Khan v. Sheo Baksh Singh, 11 Indian.
Appeals 237, Balakrishna Udayar v. Vasudeva
Aiyar " 44 Indian Appeals 261, Keshardeo Chamria v. Radha Kissen Chamriya
and Others,  S.C.R. 136 and D.L.F. Housing & Construction Company
Private Ltd., New Delhi v. Sarup Singh and Others,  2 S.C.R. 368.
Under section 26, the High Court has to see
whether there is any error of jurisdiction or whether there is any such
manifest error of procedure committed by the courts as may affect the ultimate
decision resulting in gross injustice.
The High Court in reappreciating the evidence
in order to differ from the conclusions of the two authorities below has
clearly made an error of jurisdiction and acted in excess of the power
conferred on it under section 26 of the Act. The High Court cannot sit in
appeal over the orders of the original and the appellate authority. [893C-E]
CIVIL APPELLATE JURISDICTION: Civil Appeal
No. 1586 of 1974.
Appeal by Special Leave from the Judgment
& Order dated the 12th February, 1974 of the Bombay High Court in Revision
Application No. 136 of 1968.
891 M. N. Phadke and A. G. Ratnaparkhi for
S. Balakrishnan and N. M. Ghatate for the
The Judgment of the Court was delivered by
GOSWAMI, J. The short question that arises for consideration in this appeal is
as to the, scope of section 26(c) of the Hyderabad Houses (Rent, Eviction and
Lease) Control Act, 1954 (No. XX of 1954) (briefly the Act). The facts may
briefly be stated :
The landlords (respondents herein) made an
application to the Rent Controller for an order of eviction of the tenants
(appellants herein) on two grounds, namely, default in payment of rent and
secondly requirement of the premises for their personal occupation to open a
hardware shop at Latur where the premises are situated. It is admitted that the
landlords have a hardware shop at Udgir where they have their own residence as
well. The Rent Controller as well as the Assistant Judge, who heard the appeal,
found that the tenants were not in default in payment of rent. Both the courts
also concurrently held that the landlords failed to establish the bona fide
requirement for their own use and occupation. Being aggrieved by the decision
of the courts below, the landlords preferred a Revision Application under
section 26 of the Act to the High Court of Bombay. The High Court examined the
reasons given by the Rent Controller as well those of the Assistant Judge and
came to the conclusion that both the courts below have acted illegally inasmuch
as "there was no cogent reason to reject the testimony of the 1st
petitioner in this respect". In its view, "therefore, it has been
sufficiently proved by the landlord that they really want to start hardware
business at Latur as well".
The High Court, therefore, ordered the
appellants to deliver possession of the suit premises to the respondents. Hence
this appeal by special leave.
Section 25 provides for filing of appeals and
runs as follows "25. Appeal-(1) Notwithstanding anything contained in any
law for the time being in force, an appeal from an order made by the Controller
shall lie within 30 days from the date of such order to the District Judge ....
(2) x x x x (3) The appellate authority shall
send for the records of the case from the Controller and after giving the
parties an opportunity of being heard, and if necessary after making such
further inquiry as it thinks fit either personally or through the Controller,
shall decide the appeal.
(4) Save as provided in section 26 the
decision of the appellate authority and subject to only such decision, an order
of the Controller shall be final and shall not be liable to be called in
question in any Court of Law whether in a suit or other proceedings or by way
892 Section 26 which provides for revision
reads as under "26. Notwithstanding anything contained in this Act or any
other law for the time being in force, an application for revision shall lie to
the High Court from any final order passed on appeal by an appellate authority
on the following grounds :- (a) that the original or appellate authority
exercised a jurisdiction not vested in it by law, or (b) that the original or
appellate authority failed to exercise a jurisdiction so vested, or (c) in
following the procedure or passing the order, the original or appellate
authority acted illegally or with material irregularity".
Mr. Phadke, learned counsel for the
appellants, made only one submission before us. He submitted that the High
Court was clearly wrong in re-appreciating the evidence to come to a contrary
conclusion by interfering in revision under section 26(c) of the Act with the
concurrent findings of fact with regard to bona fide requirement of the
He further submitted that the scope of
section 26(c) of the Act is necessarily narrower than that of an appeal and is
similar to section 115 of the Civil Procedure Code. The High Court, therefore,
erred in jurisdiction in interfering with the concurrent findings of fact of
the courts below and in passing the decree for eviction.
There is a three tier machinery provided in
the Act for dealing with a landlord's application for eviction. The first Court
is that of the Rent Controller which is to make a summary inquiry in the manner
usually done by a Magistrate exercising summary powers in trying a criminal
case. The Controller is not required to record evidence exhaustively and has
only to record brief reasons for his finding (section 24). The second stage is
of an appeal before the District Judge. The District Judge in deciding the
appeal has power even to make further inquiry if he thinks necessary [section
25(3)]. This being the first appeal before him it is a complete rehearing with
additional power to make further inquiry if necessary. The order which he
ultimately, passes is final and there is no further second appeal against his
order. In the third place, section 26 provides for an application for rev;-;on
against the final appellate order of the District Judge to the High Court on the
grounds which we have already set out. The High Court can examine under section
26- (a) whether the original or appellate authority exercised jurisdiction not
vested in it by law, or (b) whether the original or appellate authority failed
to exercise a jurisdiction so vested, or (c) whether in following the procedure
or passing the order, the original or appellate authority acted illegally or
with material irregularity.
It is well-known that appellate power is
different from revisional power usually, in the absence of any clear provision
in the law, 893 power of revision is narrower than that of appeal. Having
compared section 26 with section 115 of the Code of Civil Procedure, it is
difficult to hold that there is any substantial difference in the contents of
the two provisions. If there is some verbal difference between the above two
sections, it is without any distinction. In a series of decisions from the
Privy Council days starting from year 1894, Rajah Amir Hassan Khan's case(1),
1917, Balakrishna Udayar's case(2) till recent times, as for example, in
Keshardeo Chamria's case(3) and D.L.F. Housing & Construction Company's
case, (4 ) it is firmly well-estab- lished that section 115, Civil Procedure
Code, "applies to jurisdiction alone, the irregular exercise., or the non-
exercise of it, or the illegal assumption of it". The section is not
directed against conclusions of law or fact in which the question of
jurisdiction is not involved".
The High Court under section 26(c) has to see
whether there is any error of jurisdication committed by the Controller or by
the appellate authority in passing the order or whether there is any such
manifest error of procedure committed by the courts as may effect the ultimate
decision resulting in gross injustice. It is only in that context that under
section 26(c) the words "acted illegally" or "with material
irregularity" have been used. In view of the scheme of the Act that the
inquiry contemplated before the original authority is of a summary nature
(section 24), to be disposed of in an expeditious manner section 21) and the
order of the appellate authority, which is vested with the power to make
further inquiry, is made final subject to revision (section 25), it cannot be
the intention of the legislature in making the power of revision under section
26 wider than it is under section 115 of the Civil Procedure Code. The
revisional power under section 26 is limited in terms of the section itself and
is necessarily narrow. The High Court is, therefore, not correct in its view
that the power of revision under section 26 is of wider amplitude.
Inasmuch as the High Court sought to
reappreciate the evidence in order to differ from the conclusions of the two
authorities, it has clearly made an error of jurisdiction and acted in excess
of the power conferred on it under section 26(c) of the Act. We are, therefore,
clearly of opinion that the High Court cannot sit in appeal, as it has done in
this case, over the orders of the original and the appellate authority in order
to reappreciate the evidence in exercising its power of revision tinder section
26 of the Act. We, therefore, accept the, sumbission of Mr. Phadke.
We may observe that although the appeal lies
to the District Judge under section 25 of the Act, it appears that the Assistant
Judge heard the appeal. Since this point was not canvassed at the Bar, we
express no opinion on this aspect.
I In the result the appeal is allowed and the
judgment of the High Court is set aside. The parties will bear their own costs.
P.H.P. Appeal allowed.
(1) 11 I.A.237. (2) 44 I.A. 261.
(3)  S.C.R. 136. (4)  2 S.C.R.