IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CIVIL REVISION APPLICATION No 619 of 1988 with CIVIL APPLICATION No 2575 of 2002 For Approval and Signature: HON'BLE MR.JUSTICE P.B.MAJMUDAR ============================================================ 1. Whether Reporters of Local Papers may be allowed : YES to see the judgements? 2. To be referred to the Reporter or not? : YES 3. Whether Their Lordships wish to see the fair copy : NO of the judgement? 4. Whether this case involves a substantial question : NO of law as to the interpretation of the Constitution of India, 1950 of any Order made thereunder? 5. Whether it is to be circulated to the concerned : NO Magistrate/Magistrates,Judge/Judges,Tribunal/Tribunals? -------------------------------------------------------------- KAPOOR DEVIERWALA HOTELS Versus SURAT TEXTILE MARKET CO-OP SHOPS & WAREHOUSING SOC, LTD -------------------------------------------------------------- Appearance: 1. Civil Revision Application No. 619 of 1988 MR DD VYAS with MR DHAVAL VYAS & MR DB JAGIRDAR for Petitioner No. 1 MR SM SHAH with MS KJ BRAHMBHATT for Respondent No. 1 NOTICE SERVED for Respondent No. 2 2. Civil Application No. 2575 of 2002 M/S.VYAS ASSOCIATES for Petitioner No. 1 MS KJ BRAHMBHATT for Respondent No. 1 -------------------------------------------------------------- CORAM : HON'BLE MR.JUSTICE P.B.MAJMUDAR Date of decision: 20/10/2004 ORAL JUDGEMENT The present Civil Revision Application is filed by the petitioner under Section 29 (2) of the Bombay Rent Act, challenging the order passed by the District Judge, Surat, on 9th March, 1988 in Revision Application No.3/1982, by which the learned District Judge has allowed the revision application filed by the present respondents and dismissed the Standard Rent Application No.1026 of 1976 filed by the present petitioner. 2) The petitioner herein moved an application under Section 11 of the Rent Act for fixation of standard rent of the suit premises. At that time, a stand was taken by the respondents herein before the trial Court that there is no relationship of landlord and tenant between the parties and therefore, the application for fixation of standard rent is not maintainable. 3) The trial Court has negatived the contention of the respondents and came to the conclusion that the Rent Act is applicable and there is a relationship of landlord and tenant between the parties. Subsequently, the trial Court has fixed standard rent of the suit premises at Rs.3518.86 ps. per month and for furniture and fixtures and other equipments at Rs.1759.20 ps. per month and in all standard rent is fixed at Rs.5278.06 ps., by the trial Court inclusive of taxes. 4) Against the aforesaid order of the trial Court, the respondents preferred a revision application under Section 29 (3) of the Bombay Rent Act before the District Court. As stated earlier, the District Court has allowed the said revision application by coming to the conclusion that since the relationship of tenant and landlord is not established between the parties, the Bombay Rent Act is not applicable and therefore, there was no question of fixation of standard rent by the trial Court. 5) The District Court, however, gave an alternative finding to the effect that in case the Rent Act is applicable, then the standard rent is fixed at Rs.1.25 ps. per sq.ft. 6) It is the aforesaid order of the District Judge which is challenged by the present petitioner-original applicant of standard rent application by way of present revision application. 7) This revision application is filed under Section 29 (2) of the Bombay Rent Act. At the time of hearing of this revision application, Mr.Vyas, learned advocate for the petitioner has fairly conceded that this revision application under Section 29 (2) of the Rent Act is not maintainable before this Court as the original proceedings arises out of fixation of standard rent and the suit is not for recovery of possession. Therefore, he submitted that this revision may be permitted to be converted into a revision under Section 115 of C.P.C. 8) Mr.Shah, learned Counsel appearing for the respondent submitted that this revision may not be permitted to be converted into a Civil Revision Application under Section 115 of C.P.C., especially when no such request was made by the petitioner for all these period, even though this revision is pending before this Court since 1988. Mr.Shah has submitted that even otherwise if this revision is permitted to be converted into a Civil Revision Application under Section 115 of C.P.C., such second revision would not be maintainable in view of the judgement of the learned Single Judge reported in 1996 (1) GLH 606. He, therefore, submitted that the request of the petitioner for permitting him to convert this revision application into a revision application under Section 115 of C.P.C., may not be granted. 9) So far as request regarding converting this revision to one under Section 115 of C.P.C., is concerned, in my view, the petitioner should be permitted to convert this Civil Revision Application into a Civil Revision Application under section 115 of C.P.C. As this revision is pending before this Court since long, it is not proper to ask the petitioner to file fresh Civil Revision Application under Section 115 of C.P.C., as labelling of the matter is not of much significance and this Court can exercise its powers under Section 115 of C.P.C., in order to find out whether the subordinate Court has committed any jurisdictional error while passing the impugned order. 10) Under these circumstances, this revision, even though it is branded as revision under Section 29 (2) of the Rent Act is treated as a revision under Section 115 of C.P.C. and therefore, the question which is required to be decided is whether the order passed by the District Court while deciding revision application can be revised by this Court in its limited jurisdiction under Section 115 of C.P.C. 11) Mr.Shah for the respondents took a preliminary objection to the effect that the second revision application from the revisional order of the District Court is not maintainable in view of the judgement of learned Single Judge of this Court rendered in the case of Parmar Bhimji Govind v. Heirs of Patel Velji Ramji, reported in 1996 (1) GLH 606. In the aforesaid case, the learned Single Judge of this Court has taken the view that when the District Court has exercised its power under Section 29 (3) of the Rent Act, revision under Section 29 (2) of the Rent Act is not maintainable, while deciding the said question it has been observed in paragraph 5 by this Court as under : "5. It may perhaps be urged that the present revision may be treated as one under Section 115 of CPC. Even this contention is not open to the petitioner in view of the decision of the Supreme Court in the case of Visheshkumar v. Shantiprasad (AIR 1980 SC 892). However, I do not propose to be hypertechnical and to reject the present revision merely on the ground of incompetency." 12) After examining the case on merits, the learned Single Judge came to the conclusion that on the basis of such evidence no exception can be found to the factual finding recorded by the District Court in the revision, that the original rent of the very same leased premises was Rs.4/- per month and therefore that is the standard rent of the premises. It has also been observed by the learned Single Judge in paragraph 8 of the judgement that the learned Counsel for the petitioner is unable to make out a case that this appreciation of evidence on the part of the District Court is such as would amount to perversity in law or represents a view which could not be taken by any other normal or prudent Court, after observing it, the learned Single Judge dismissed the revision application. 13) Mr.Shah after relying upon the said observation submitted that when this Court has taken the view that in view of the decision reported in AIR 1980 SC 892 second revision is not maintainable the present revision application is also required to be dismissed on the ground that the same is not maintainable. 14) Mr.Shah has further submitted that the judgement of the learned Single Judge reported 1996 (1) GLH 606 is followed in subsequent cases. Mr.Shah has also relied upon one such order passed by me wherein this Court has permitted the petitioner to convert the revision application filed under Section 115 of C.P.C., into a petition under Article 227 of the Constitution of India. 15) It is no doubt true that while deciding the case reported in 1996 (1) GLH 606 learned Single has made incidental observations that the second revision may not be maintainable, thereafter the Court has considered the matter on merits under Section 115 of C.P.C. 16) Mr.Vyas, learned advocate for the petitioner, however, submitted that so far as revision under Section 115 of C.P.C. is concerned, it is an independent proceeding. It is also submitted by him that while deciding aforesaid case, the learned Single Judge has made passing observations by relying upon the judgement reported in AIR 1980 SC 892. 17) Mr.Shah has also relied upon the judgement in the case of Heirs of Suryakant K.Shah v. Punjabhai Ranchhodbhai Patel reported in 1998 (2) GLH 453 , wherein this Court has taken the view that any order passed in the Execution proceedings under Section 47 of C.P.C., is not a decree and such order is not appealable before the District Court. In that case, in view of the amendment in Section 47 of C.P.C., the Court has found that the order in question is not appealable, as determination of any question cannot be said to be decree and therefore, appeal before the District Court was not competent and only revision under Section 115 was competent. The said observation is made by the Court in para 11 of the judgement. 18) It is not possible to appreciate as to for what purpose this judgement is cited by Mr.Shah. Firstly, we are not concerned with the order passed by the Executing Court under Section 47 of C.P.C. In the aforesaid case, order was passed by the Executing Court was challenged by way of appeal and on the said background, the Court has found that appeal was not competent as any order passed under Section 47 cannot be said to be decree and therefore, only the course open for the judgement debtor was to prefer revision against such order. Therefore, it is not necessary to examine aforesaid judgement in detail. 19) Mr.Shah, thereafter, has relied upon the judgement rendered in the case of Pranav Prabha Shivharlal & Anr. Vs. Dalichand Chhaganlal reported in 2001 (1) GLH 232 . In the said case, this Court has again reiterated the view that if the decision is rendered by the trial Court in exercise of jurisdiction under Section 29 (3) of the Act, a revision challenging the said decision under Section 29 (2) is not maintainable. 20) As stated above, it is required to be noted that the question, which is required to be decided here is different, as the question here is whether revision under Section 115 of C.P.C., is maintainable or not. 21) Even Mr.Vyas has frankly conceded that revision under Section 29 (2) is not maintainable and therefore, it is not necessary to discuss that judgement in detail, as the point involved here is absolutely different. 22) The learned Single Judge while deciding the case reported in 1996 (1) GLH 606, as referred to above, has made certain observations about the maintainability of the revision, after relying upon the decision reported in AIR 1980 SC page 892. So far as aforesaid case of Visheshkumar Vs. Shantaprasad, reported in AIR 1980 SC 892 is concerned, in that case powers under Section 115 of C.P.C., were delegated to the District Court. When the District Court decided revision under Section 115 of C.P.C., a further revision was preferred before the High Court. Considering the said background, in the aforesaid case, it is held that the second revision under Section 115 of C.P.C. before the High Court would not be maintainable. While deciding the said case, Supreme Court has held in paragraph 13 as under : "13. A mutually exclusive jurisdiction has been assigned to the High Court and the District Court within the terms of Section 115. To recognise a revisional power in the High Court over a revisional order passed by the District Judge would plainly defeat the object of the legislative scheme. The intent behind the bifurcation of jurisdiction - to reduce the number of revision petitions filed in the High Court - would be frustrated. The scheme would, in large measure, lose its meaning. If a revision petition is permitted to the High Court against the revisional order of the District Court arising out of a suit of a value less than Rs.20,000/- a fundamental contradiction would be allowed to invade and destroy the division of revisional power between the High Court and the District Court, for the High Court would then enjoy jurisdictional power in respect of an order arising out of a suit of a valuation below Rs.20,000/-. That was never intended at all. AIR 1979 All 218 (FB) approved. " 23) In view of above decision, Mr.D.D.Vyas has submitted that in the aforesaid case reported in AIR 1980 SC 892, the Supreme Court was concerned with mere revisional powers under Section 115 of C.P.C., which were exercised by the District Court and under such circumstances it is held that the second revision under Section 115 of C.P.C., would not be maintainable. 24) Mr.Vyas has submitted that in a revision application under Section 115 of C.P.C., this Court can certainly call for the record and proceedings of the subordinate Court in order to examine the legality and validity of the order passed by the subordinate Court and the District Court being a subordinate Court to this High Court, revision under Section 115 of C.P.C., is maintainable before this Court and the ratio laid down by the Supreme Court in AIR 1980 SC 892, is not applicable to the facts of the present case. 25) Mr.Vyas has submitted that the District Court in the present case has exercised powers under Section 29 (3) of the Rent Act and the District Court being a subordinate Court to this Court, this High Court is entitled to exercise its revisional jurisdiction. To substantiate his say, Mr.Vyas has also relied upon the decision of the Apex Court in the case of Chhagan Lal Vs. The Municipal Corporation, Indore, reported in AIR 1977 SC page 1555, wherein it has been held by the Supreme Court in para 8 that in a revision under Section 115 of C.P.C., the High Court has got powers to revise the order passed by the courts below. In this regard specific observation is made in paragraph 8 of the judgement, which reads as under : "8. The second contention is based on S.149 of the Madhya Pradesh Municipal Corporation Act, 1956. It provides that an appeal shall lie from the decision of the Municipal Commissioner to the District Court, when any dispute arises as to the liability of any land or building to assessment. Sub-section (1) of S.149 provides that the decision of the District Court shall be final. It was submitted that the decision of the District Court was therefore final and that the High Court was in error in entertaining a Revision Petition. This plea cannot be accepted for, under S.115 of the C.P.C. the High Court has got a power to revise the order passed by the Courts subordinate to it. It cannot be disputed that the District Court is a subordinate court and is liable to the revisional jurisdiction of the High Court. That leaves us with the last contention of the appellant that the High Court acted beyond its power as a court of revision. This point will have to be summarily dismissed as the question of want of jurisdiction of the High Court was not raised before the High Court and therefore cannot be allowed to be raised in this Court for the first time. The learned counsel for the appellant pleaded that the question involves total lack of powers of the High Court and this Court should hold that the order of the High Court is without jurisdiction. This Court has laid down the principles governing interference under S.115 of the C.P.C. in Baldevdas Shivlal v. Filmistan Distributors (India) (P) Ltd., (1970) a SCR 435 - (AIR 1970 SC 406), M/s. D.L.F. Housing and Construction Co. (P) Ltd. v. Sarup Singh, AIR 1971 SC 2324 and The Managing Director (MIG) Hindustan Aeronautics Ltd., Balanagar, Hyderabad v. Ajit Prasad Tarway, AIR 1973 SC 76. These cases have been referred to in the recent decisions of this Court in the Municipal Corporation of Delhi v. Suresh Chandra Jaipuria, AIR 1976 SC 2621 and the attention of the learned Judges of the High Court was drawn to the law declared by this Court. We consider it unnecessary to discuss the law on the subject over again as this appeal is liable to be dismissed on the ground that the point was not taken before the High Court and the discretion of this Court to interfere or not is beyond question." 26) It is argued by Mr.Vyas that this judgement was not brought to the notice of the learned Single Judge while deciding the case reported in 1996 (1) GLH 606 and, therefore, at that time passing observations have been made that second revision is not maintainable. He submitted that in view of this judgement of the Supreme Court, this revision is maintainable before this High Court as the District Court is subordinate to the High Court. 27) Mr.Vyas has also relied upon the decision of the Supreme Court in the case of Shyamraju Hegde Vs. Vnkatesha Bhat and Ors. reported in AIR 1987 SC, 2323. In the said judgement, the Supreme Court has decided the question whether revision under Section 115 lies to the High Court from a revisional order made by the District Court under the provisions of the Karnataka Rent Control Act, 1961. In paragraph 11 of the said judgement, the Supreme Court has observed as under : "11. On the analysis presented above, the two cases upon which the Full Bench has placed reliance are really not direct authorities on the point. We have already notice that in Krishnaji's case (ILR (1978) 2 Kant 1585) the earlier Full Bench had relied upon the decision of this Court in Chhagan Lal's case (AIR 1977 SC 1555). A three-Judge Bench in that case broadly dealt with a similar contention as arising here. At page 875 (of SCR) : (at page 1558 of AIR) of the Reports it is stated that : "The second contention is based on S.149, Madhya Pradesh Municipal Corporation Act, 1956. It provides that any appeal shall lie from the decision of the Municipal Commissioner to the District Court, when any dispute arises as to the liability of any land or building to assessment. Sub-section (1) of S.149 provides that the decision of the District Court shall be final. It was submitted that the decision of the District Court was therefore final and that the High Court was in error in entertaining a revision petition. This plea cannot be accepted for, under S.115, C.P.C., the High Court has got a power to revise the order passed by the courts subordinate to it. It cannot be disputed that the District Court is a subordinate court and is liable to the revisional jurisdiction of the High Court........" 28) Mr.Vyas has submitted that this judgement was also not brought to the notice of the learned Single Judge, otherwise, such incidental observations would not have been made. 29) Mr.Vyas Shah has also relied upon the decision of the Apex Court in the case of ITI Limited Vs. Simens Public Communication Networks Ltd., reported in (2002) 5 SCC 510. It has been observed as under in paragraphs 8 and 19 of the said judgement. "8. The question still remains as to whether when a second appeal is statutorily barred under the Act and when the Code is not specifically made applicable, can it be said that a right of revision before the High Court would still be available to an aggrieved party? As pointed out by Mr.Chidambaram, this Court in the case of Nirma Ltd. while dismissing an SLP by a reasoned judgement has held : "[I]n our opinion, an efficacious alternate remedy is available to the petitioner by way of filing a revision in the High Court under Section 115 of the Code of Civil Procedure. Merely because a second appeal against an appellate order is barred by the provisions of sub-section (3) of Section 37, the remedy of revision does not cease to be available to the petitioner, for the City Civil Court deciding an appeal under sub-section (2) of Section 37 remains a court subordinate to the High Court within the meaning of Section 115 CPC." "19. Revisional jurisdiction of a superior court cannot be taken as excluded simply because subordinate courts exercise a special jurisdiction under a Special Act, The reason is that when a special Act on matters governed by that Act confers a jurisdiction on an established court, as distinguished from a persona designata, without any words of limitation, then the ordinary incident of procedure of that court including right of appeal or revision against its decision is attracted. The right of second appeal to the High Court has been expressly taken away by sub-section (3) of Section 37 of the Act, but for that reason it cannot be held that the right of revision has also been taken away. See National Telephone Co. Ltd. V. Postmaster General and decision of the Privy Council in Adaikappa Chettiar v. Chandrasekhara Thevar which have been relied on by the Supreme Court in the case of National Sewing Thread Co.Ltd. v. James Chadwick and Bros. Ltd. In National Telephone Co.case Viscount Haldane, L.C. observed thus : "When a question is stated to be referred to an established court without more, it in my opinion, imports that the ordinary incidents of the procedure of that court are to attach, and also that any general right of appeal from its decision likewise attaches." 30) Considering the aforesaid judgement, it is clear that so far as judgement reported in AIR 1980 SC 892 is concerned, the same was in connection with different situation altogether where the revisional powers were delegated to the District Court and when such powers were exercised by the District Court, second revision application under Section 115 itself is not maintainable. In the present case, it is an admitted fact that the District Court was exercising powers under Section 29 (3) of the Rent Act and it is not even disputed by any one that District Court is subordinate to this High Court, therefore, the High Court is entitled to exercise its revisional jurisdiction under Section 115 of C.P.C., against the order passed by the District Court exercising revisional powers under a different statute. 31) When the learned Single Judge has made observations as indicated above at the time of deciding the case reported in 1996 (1) GLH 606, these judgements were not brought to the notice of the learned Judge. Even otherwise, it cannot be said that the Court has laid down specific law in this behalf at the time of deciding aforesaid matter. So far as subsequent judgements are concerned, it has merely followed the view of the learned Judge while deciding the case reported in 1996 (1) GLH 606 and, it cannot be said that any specific provision of law is laid down while deciding the subsequent cases. 32) Considering the aforesaid judgement of the Supreme Court reported in (2002) 5 SCC 510, it is clear that the revision application under Section 115 is maintainable against the decision of the District Court under Section 29 (3) of the Rent Act, as the District