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
December 5
The Judgment of Sinha CJ 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 section 131bi 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 section 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 exhibit 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 section 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 1800 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 exhibit P 19 was not taken into account by the Additional District Judge
The latter had in fact considered exhibit P 19 the petition of Dr Mohani Jain before the Rent Control authorities
exhibit 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 exhibit 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 exhibit P 19 as against exhibit P20 and was acting on exhibit 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 section 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 section 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 section 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 section 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 section 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 CJ as he then was in Bell  Co Ltd vs Waman Hemraj 1 where the learned Chief Justice dealing with section 25 of the Provincial Small Cause Courts Act observed The object of section 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 s115 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 section 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 section 351 of the Delhi  Ajmer Rent Control Act is not so restricted as was held by Beaumont C J in Bell  Co Ltd vs Waman Hemraj1 a case under section 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 section 351 of the Act is almost identical with the words of the proviso to s751 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 vs Waman Hemraj1 seem to suggest in regard to section 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 section 351 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


Summary:
In an ejectment suit under the Delhi  Ajmer Rent Control Act 1952 the trial Judge decreed the suit and on appeal under s34 of the Act the Additional District Judge confirmed 934 the decision
The Act did not provide for a second appeal and under section 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 section 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 section 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 section 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 vs Waman Hemraj approved