Appeal No 64 of 1953
Appeal by special leave from the Judgment and Decree dated the 29th November 1951 of the Court of the Judicial Commissioner for Himachal Pradesh at Simla in Civil Revision No 52 of 1951
Gopal Singh for the appellants
section C Isaacs Amar Nath Chona with him for the respondents
January 19
The Judgment of the Court was delivered by DAS J
This is an appeal by special leave against the order made on the 20th November 1951 by the Judicial Commissioner of Himachal Pradesh in proceedings instituted by the respondents under articles 226 and 227 of the Constitution of India
There is no substantial dispute as to the facts leading up to the present appeal
The appellants 567 were tenants of a certain shop premises situate in Solan Bazar in the district of Mahasu in Himachal Pradesh
On the llth October 1947 they had executed a rent deed by which they agreed to pay an annual rent of Rs 175 payable as to Rs 50 on the last of Baisakh and as to the balance of Rs 125 in the month of October in default of which payment the respondents as landlords would be entitled to recover the whole of the said rent in one lump sum
The tenancy created by the rent deed was only for one year in the first instance but it provided that if the tenants desired to continue in occupation they must execute a further rent deed before the expiration of the said term
The appellants never executed any further rent deed but held over and continued in occupation of the demised premises
The appellants fell into arrears with the payments of rents due for the years 1948 and 1949 and the respondents made applications to the Rent Controller for eviction of the appellants under section 13 2 i of the East Punjab Urban Rent Restriction Act 1949 as extended to Himachal Pradesh
The appellants however paid up the arrears of rent into court and claimed the benefit of the proviso to section 13 2 i
The claim was allowed and the said applications were dismissed accordingly on the 18th December 1950
The appellants again fell into arrears with the pay ment of rent due for the year 1950
On the 26th December 1950 the respondents served on the appellants a notice c alling upon the latter to pay whole of the said rent forthwith but the appellants failed to do so
The respondents thereupon on the 2nd January 1951 filed an application under section 13 2 i for the eviction of the appellants on the ground of nonpayment of rent
Thereafter on the 10th January 1951 the appellants made an application to the Rent Controller for the fixation of a fair rent under section 4 of the said Act
On the 25th January 1951 the appellants filed their written statements in the proceedings under section 13 568 2 i admitting the nonpayment of rent and the receipt of the notice but pleaded i that the respondents  application was barred by reason of the rejection of the previous applications for eviction made by the respondents and ii that the present application could not be entertained in view of the pendency of their application for fixation of a fair rent under section 4 of the said Act
On the 20th February 1951 the Rent Controller framed the following issues 1 Whether the application in question was not entertainable in view of the judgment of the District Judge dated the 18th December 1950 Onus on defendants
2 If issue No I is not proved had the opposite party tenants not paid the rent and as such were they liable to be ejected Onus on plaintiffs
3 Have the opposite party already filed an application in the said court for the fixation of rent and are they therefore not liable for ejectment pending the decision on the application and what is its effect on the said application Onus on defendants
By his judgment dated the 29th May 1951 the Rent Controller held that as the previous applications related to non payment of rents for the years 1948 and 1949 the present application which was founded on non payment of rent for 1950 was not barred under section 14 of the said Act but although the fact of rent being in arrears was admitted the Rent Controller did not think fit to make an order directing the appellants to put the respondents in possession of the demised premises
The reasons given by him were as follows  Regarding the non payment of the rent when the plea of the tenant is only that he is waiting for the fixation of fair rent by the Rent Controller there is not enough ground for ejectment
A civil suit for the recovery of the rent would have been a more appropriate method of obtaining that rent
I therefore dismiss the suit  The parties should bear their own 569 The respondents preferred an appeal to the District Judge of Mahasu under section 15 of the said Act
The learned District Judge dismissed the appeal observing On behalf of the landlord it was urged that under section 13 2 of the Punjab Urban Rent Restriction Act as applied to Himachal Pradesh the Controller if it came to the finding that rent had not been paid had no option but to direct the tenant to put the landlord in possession
Undoubtedly that is the correct legal position but in the present case the non payment of rent was due to a misapprehension of the legal position created by the tenant filing an application for fixing fair rent
1 therefore think that this case can be distinguished and does not fall within section 13 2 Punjab Urban Rent Restriction Act
 The respondents moved the Judicial Commissioner Himachal Pradesh under articles 226 and 227 of the Constitution of India for setting aside the order of the District Judge
The learned Judicial Commissioner held that in view of the admitted failure to pay the rent as provided by the rent deed or at the first hearing of the court under the proviso to section 13 2 i the courts below had acted arbitrarily in refusing to make an order for ejectment against the tenants who had not done what was incumbent on them to do under the law and that such a situation called for inter ference by the court of the Judicial Commissioner in order to keep the subordinate courts within the bounds of their authority
He accordingly set aside the orders of the courts below and allowed the application for ejectment but gave the appelants three months  time for vacating the premises
The appellants have now come up before this court on appeal by special leave obtained from this court
Learned advocate appearing in support of this appeal urges that the learned Judicial Commissioner acted wholly without jurisdiction inasmuch as 1 the Rent Controller or the District Judge exercising powers 570 under the Act was not amenable to the jurisdiction of the High Court and therefore article 227 confers no power on the court of the Judicial Commissioner over the Rent Controller or the District Judge and 2 that article 227 read with article 241 confers no power of judicial superintendence on the court of the Judicial Commissioner
Re l
The court of the Judicial Commissioner of Himachal Pradesh exercises jurisdiction in relation to the whole of the territories of Himachal Pradesh
The Rent Controller and the District Judge exercising jurisdiction under the Act are certainly tribunals if not courts and they function within the territories of Himachal Pradesh
Therefore article 297 1 read with article 241 confers on the court of the Judicial Commissioner power of superintendence over such tribunals
The words  in relation to which  obviously qualify the word  territories  and not the words courts and tribunals
2The material part of article 227 substantially reproduces the provisions of section 107 of the Government of India Act 1915 except that the power of superintendence has been extended by the article also to tribunals
That the Rent Controller and the District Judge exercising jurisdiction under the Act are tribunals cannot and has not been controverted
The only question raised is as to the nature of the power of superintendence conferred by the article
Reference is made to clause 2 of the article in support of the contention that this article only confers on the High Court administrative superintendence over the subordinate courts and tribunals
We are unable to accept this contention because clause  2 is expressed to be without prejudice to thegenerality of the provisions in clause 1
Further the preponderance of judicial opinion in India was that section 107 which was similar in terms to section 15 of the High Courts Act 1861 gave a power of judicial superintendence to the High Court apart from and independently of the provisions of other laws conferring revisional jurisdiction on the High Court
In this connection it has to 571 be remembered that section 107 of the Government of India Act 1915 was reproduced in the Government of India Act 1935 as section 224
Section 224 of the 1935 Act however introduced sub section 2 which was new providing that nothing in the section should be construed as giving the High Court any jurisdiction toquestion any judgment of any inferior court which was not otherwise subject to appeal or revision
The idea presumably was to nullify the effect of the decisions of the different High Courts referred to above
Section 224 of the 1935 Act has been reproduced with certain modifications in article 227 of the Constitution
It is significant to note that sub section 2 to section 224 of the 1935 Act has been omitted from article 227
This significant omission has been regarded by all High Courts in India before whom this question has arisen As having restored to the High Court the power of judicial superintendence it had under section 15 of the High Courts Act 186 1 and section 107 of the Government of India Act 1915
See the cases referred to in Moti Lal vs The State through Shrimati Sagrawati1
Our attention has not been drawn to any case which has taken a different view and as at present advised we see no reason to take a different view
This power of superintendence conferred by article 227 is as pointed out by Harries C J in Dalmia Jain Airways Ltd vs Sukumar Mukherjee2 to be exercised most 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
As rightly pointed out by the Judicial Commissioner in the case before us the lower courts in refusing to make an order for ejectment acted arbitrarily
The lower courts realised the legal position but in effect declined to do what was by section 13 2 i incumbent on them to do and thereby refused to exercise jurisdiction vested in them by law
was therefore a case which called for an interference by the court of the Judicial Commissioner and it acted 1 ILR 1952 1 All
558 at p 567 2 AIR 1951 Cal
75 572 quite properly in doing so
In our opinion there is no ground on which in an appeal by special leave under article 136 we should interfere
The appeal therefore must stand dismissed with costs
Appeal dismissed


Summary:
The Court of the Judicial Commissioner of Himachal Pradesh exercises jurisdiction in relation to the whole of the territories of Himachal Pradesh
The Rent Controller and the District Judge exercising juris
diction under the East Punjab Rent Restriction Act1949 are certainly tribunals it not courts within the meaning of article 227 of the Constitution and they function within the territories of 566 Himachal Pradesh
Therefore article 2271 read with article 241 confers on the Court of the Judicial Commissioner power of superintendence over such tribunals
The words in relation to which in article 2271 qualify the word territories and not the words courts and tribunals
There is no force in the contention that cl
2 of article 227 only confers on the High Court administrative superintendence over the subordinate courts and tribunals because cl
2 of the article is expressed to be without prejudice to the generality of the provisions in cl
The power of superintendence conferred by article 227 should be exercised most 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
In view of the admitted failure by the tenants to pay the rent as provided by the rent deed or at the first hearing of the court under the proviso to section 1321 the lower courts had acted arbitrarily in refusing to make an order for ejectment against the tenants who had not done what was incumbent on them to do under the law and thereby refused to exercise jurisdiction vested in them by law and it was a case which called for interference by the Court of Judicial Commissioner and it acted quite properly in doing so
Moti Lal vs The State through Shrimati Sagrawati ILR 1952 1 All
558 at p 567 and Dalmia Jain Airways Ltd vs Sukumar Mukherjee AIR 1951 Cal
193 referred to