IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 19.08.2009 CORAM THE HONOURABLE MR.JUSTICE S. PALANIVELU Review Application No.62 of 2009 in C.R.P.(NPD) No.1932 of 2008 M/s. Surana & Surana Rep. by Mr. Vinod Surana Chennai 600001 ... Applicant vs. 1. LIC of India Southern Zonal Office LIC Buildings Chennai 600002. 2. The Estate Officer Southern Zonal Office LIC Buildings Chennai 600002. ... Respondents Review Application is filed under Section 114 of C.P.C. read with Order XLVII R.1 and 2 of C.P.C. to review the final judgment dated 09.04.2009 in C.R.P.(NPD) No.1932 of 2008. For Applicant : M/s. M.L. Joseph For Respondents : Mr. M.B. Gopalan [for R-1] O R D E R 1. The property in door No.224, N.S.C. Bose Road, Channai-1, is the first floor sprawling to an extent of 2757 Sq.ft., which belongs to the first respondent. With regard to tenancy transaction between the petitioner and the first respondent, disputes arose between them and hence the first respondent filed eviction petition in Petition No.7 of 2006 before the second respondent. After certain proceedings, the second respondent passed the impugned order of eviction on 30.4.2007, directing this petitioner to vacate the premises within 15 days. Aggrieved against the order, the petitioner carried the matter in C.M.A.No.70 of 2007 on the file of the Principal Judge, City Civil Court, Chennai. After hearing both sides, the learned Principal Judge, allowed the appeal remanding the matter back to the second respondent directing him to decide the preliminary issue raised by the appellant/applicant herein and pass order on merits within a period of one month from the date of receipt of order. The appellant took the matter in revision before this Court in C.R.P.(NPD) No.1932 of 2008 and after hearing both sides this court revised the remand order passed by the appellate Authority to the effect that the purpose of remand is not only to decide the preliminary objections or issue raised in the I.As filed by the petitioner, but also on the consideration of entire merits of the matter in the main petition comprehensively for a just decision at the end of the second respondent on 9.4.2009. 2. Feeling aggrieved at the observations of this Court, in the Order above stated, the petitioner has come forward with this review application to review the order of this Court by stating mainly that this Court has not recorded any finding as to why the appellate Court did not consider the preliminary issue itself and whether the remand was necessary in the circumstances and that the said issue remains unanswered. It is further contention of the petitioner in the affidavit appended to the review application that the preliminary objection raised by this petitioner is only based on case laws and not depending upon any facts. In the affidavit it is the definite stand taken by the petitioner that absence of finding of this Court justifying the remand by the appellate Court and the circumstance that the dispute to be decided in the preliminary issue is based only on law and under these categorical circumstances, the Judgment of this court suffers from error apparent on the face of record and hence this Court may exercise its review jurisdiction. 3. Learned counsel for the applicant would contend that when the appellate authority has not followed the principles regarding the remand of a case to the forum below, this Court need not have justified it and that necessary findings are absent in the orders of both the Courts. He further says that the decision with regard to the preliminary issue does not involve any recording of evidence i.e., there is no factual aspects to be considered. 4. Conversely, learned counsel for the first respondent would submit that after due consideration of the facts and circumstances of the case, this Court has concluded that a comprehensive hearing of I.As and main matter is essential and no valid ground is made out to review the order passed by this Court. 5. The operative portion of the order passed by this Court is as follows: "23. The Appellate Authority has also observed that the petitioner was under the impression that the arguments of both parties were heard in both I.As and the orders were reserved for those applications and at no point of time the attention of the appellant was drawn to the main petition and that no evidence was let in from both parties regarding the main petition and that since the petitioner had pleaded before the Estate Officer that he is not 'unauthorised occupant' by filing I.As, the second respondent ought to have decided the issue whether the appellant is an unauthorised occupant or not, or the parties ought to have been informed that the same will be decided along with the main petition, but the same has not been done in this case. If it is so, the original authority has to record relevant evidence, if necessary and to hear both the parties in full with regard to main petition and I.As in a comprehensive manner and then come out with a definite finding. In the considered opinion of this Court, mere hearing of the I.As alone will not serve any purpose and when those applications are heard by the authority, incidentally it has to touch the merits of the matters covered by the main petition and the I.As could not be heard independent of the main petition since they are closely inter-related. " 6. The learned counsel for the applicant placed reliance upon decisions of various High Courts, highlighting the principles which have been laid down therein in the matter of review of an order of the Court. It is his bottomline contention that when a Court omits to follow decision of the Supreme Court and proceeds to pass order on its own premise, as per settled position, it is the error apparent on the face of record and hence it could very well be reviewed by the same Court. In support of his contention he garnered support from a Full Bench decision of the Himachal Pradesh High Court reported in AIR 1981 HP1 [The Nalagarh Dehati Co-operative Transport Soceity Ltd., Nalagarh v. Beli Ram etc.,] {MANU/HP /0001/1981} wherein the Court after referring to various decisions of the Privy Council and other High Courts held that failure to notice an existing decision of the Supreme Court on a question of law results in not applying the law which should have been applied, therefore, a contrary decision given on such a question would amount to a mistake or error apparent on the face of the record, the error would be obvious and no elaborate reasoning would be necessary to find it. 7. In another decision cited by him reported in AIR 1972 Kant 44 [The selection Committee for Admission to the Medical and Dental College, Bangalore v. M.P.Nagaraj] {MANU/KA/ 0043/1972} it is held that where there is a decision of Supreme Court appearing on a point and where a court takes a view on the point which is not consistent with the law laid down by the Supreme Court which means no elaborate argument to point to the error and there could reasonably be no two opinions entertained about such error. 8. He also cited a decision of Calcutta High Court in AIR 1967 Cal 518 [Tinkari Sen and Ors. v. Dulal Chandra Das and Ors] {MANU/WB/0122/1967} in which review application was allowed under observation that the judge who has passed order, any error committed by the judge by oversight itself could be a ground for reviewing the order passed by him and it would be a mistake apparent on the face of record. 9. In a decision of Kerala High Court in 2006 (4) KLT 730 [E.S.I. Corporation v. Rajagopal Textile Mills (P) Ltd.,] {MANU/KE/0453/2006} it is observed that non-consideration of an existing decision to the contrary, rendered by a superior Court, is a ground for review of judgment. Identical propositions have been laid down in the following decisions: i) ILR 2007 KAR 3216 = 2008 (1) KarLJ 482 [Mrs. Mallika and Ors. v. Mr. Chandrappa and Ors.] ii) 2006 (1) CHN 130 [Union of India (UOI) and Ors. v. Lachman Singh and Ors.] iii) 2002 (6) ALD91 =2003 (4) ALT 2 [Sri Krishna Salt Works v. State of A.P.] 10. Learned counsel for the first respondent placed much reliance upon a decision of the Supreme Court in 2006 (5) SCC 501 [Jain Studios Ltd., v. Shin Satelite Public Co. Ltd.,] wherein it is held as follows: "11. So far as the grievance of the applicant on merits is concerned, the learned counsel for the opponent is right in submitting that virtually the applicant seeks the same relief which had been sought at the time of arguing the main matter and had been negatived. Once such a prayer had been refused, no review petition would lie which would convert rehearing of the original matter. It is settled law that the power of review cannot be confused with appellate power which enables a superior court to correct all errors committed by a subordinate court. It is not rehearing of an original matter. A repetition of old and overruled argument is not enough to reopen concluded adjudications. The power of review can be exercised with extreme care, caution and circumspection and only in exceptional cases." 11. Drawing support from the above said decision learned counsel would argue that having invited the Court to pass an Order, subsequently the petitioner cannot turn round and pray for review of the Order and sicne his request was already negatived by this Court, coming with identical pleas, he could not pray for review which is virtually to rehear the matter. 12.(a) The first ground on which the review application is filed is that this Court is that this Court has not observed as to why the appellate Court did not consider the preliminary issue itself and as to why the remand was necessary in this circumstance? It is in the opinion of the appellate authority that the procedure followed by the second respondent does not inspire any confidence as he had not given real and effective opportunity to deal with the case put forth by the appellant but pronounced the impugned Order in a doubtful manner, giving rise to so many speculations, further, the findings given by the second respondent regarding the preliminary objection raised by the appellant that if such course as sought for in the I.A. by the respondent is to be adopted, every petition has to be dismissed on the basis of the two judgments cited is not proper and the same is against law and that this Court (Appellate Authority) hopes that the principle of audi alteram partem and in turn the larger principle of natural justice would stand vindicated and strengthened. 12.(b) Further the appellate authority in para 20 of its Judgement has observed that it is clear that the appellant was made to understand that the Orders were reserved only on the interim applications and at no point of time the attention of the appellant was drawn to the main petition, or directed to him to argue the main petition and that there is no dispute that no evidence was let in by both sides regarding the main petition and that to proceed with the eviction proceedings the Estate Officer must first come to the conclusion that the person concerned is an unauthorised occupant. This Court in its Order in paras 9 and 23 after extracting both the above said portions of the impugned order and finally concluded as under: "If it is so, the original authority has to record relevant evidence, if necessary and to hear both the parties in full with regard to main petition and I.As in a comprehensive manner and then come out with a definite finding. In the considered opinion of this Court, mere hearing of the I.As alone will not serve any purpose and when those applications are heard by the authority, incidentally it has to touch the merits of the matters covered by the main petition and the I.As could not be heard independent of the main petition since they are closely inter-related. " 12.(c) In view of the above, it is manifest that the appellate authority has rendered its observation as to the purpose for which the remand was necessary. In turn, this Court is also categorically found as above, that for what reason both the I.As and main petition have to be heard in a comprehensive manner. There could be no doubt in the minds of anybody else much less the petitioner that the order of the appellate Court and this Court are bereft of the findings as expected by law. It is reiterated that the appellate Court could not decide the issue by itself since it felt that no sufficient opportunities were accorded to appellant, the petitioner herein. 13.(a) As far as the second ground for review adduced in the affidavit annexed to the review petition is concerned, it is with regard to the contention that the order of remand was challenged before this Court, that the issue to be decided is only based on law and that the appellate court itself could have decided it independent of any factual features. For this query, the response is very much available in the order of this Court itself dated 09.04.2009. This Court after a conspectus of the circumstances reached a decision, accepting the conclusion of the appellate authority in para 20 of its order that when the appellant has submitted before the Estate Officer that he is not an 'unauthorised occupant' by filing I.As, the second respondent ought to have decided the issue whether the appellant is an unauthorised occupant or not or the parties ought to have been informed that the same will be decided along with main petition, but the same has not been done in this case. 13.(b) Indicating the above said portion, this Court in para 23 of its order has observed that, "If it is so, the original authority has to record relevant evidence, if necessary and to hear both the parties in full with regard to main petition and I.As in a comprehensive manner and then come out with a definite finding." In the considered view of this Court, this Court thought fit that there shall be hearing of both the I.As and the main matter simultaneously. 13.(c) The pleadings of the parties in this respect are highlighted herein. In the eviction petition, the first respondent has categorically mentioned that subsequent to the termination of termination of tenancy, the authority of the respondents to occupy the premises has been determined on the expiry of 15 days from the date of receipt of notice and hence the respondent is an 'unauthorised occupant' of the premises after the expiry of the notice period as defined in Section 2(g)of the Public Premises (Eviction of Unauthorised Occupants) Act 1971. Even though this petitioner has not filed any counter to the main petition. In the affidavit in I.A.No.1 of 2006 filing under the Act, it has been mentioned that the applicant/tenant herein became a genuine and lawful tenant under the respondent LIC in the month of May, 2004 and that at least he was a genuine lawful monthly tenant. Hence, the dispute between the parties is manifest viz., whether the petitioner is a lawful tenant or unauthorised occupant in the premises. It is purely a question of fact. This dispute could be resolved only by due enquiry after hearing both the parties, if circumstances warrant, by recording oral evidence. Only if this dispute is adjudicated, then the authority could proceed further to the next stage. 13.(d) In this context, it is advantageous to refer herein the extraction of the relevant portions of the guidelines of the Government of India in the matter of eviction of tenants in Public Premises as mentioned in para 6 of I.A.No.1 of 2006 filed by this petitioner before the second respondent which reads thus: 6. I further submit that as directed by the Supreme Court of India in Ashoka Marketing Ltd. v. Punjab National Bank AIR 1991 SC 855 the Government of India on 30.5.2002 issued certain guidelines to prevent arbitrary use of powers to evict genuine tenants from public premises under the control of the Public Sector Undertakings/Financial Institutions. The same has been duly gazetted on 8.6.2002. The relevant portion of the guidelines for the purpose of this case are stated hereunder: I. The provisions of the Public Premises Act should be used to evict totally unauthorised occupants of the premises of public authorities. II. The provisions of the Public Premises Act should not be used where the premises were in occupation of the original tenants to whom the premises were let by the public authorities. III. Contractual agreement shall not be wound up by taking advantage of the provisions of the Public Premises Act. IV. The public authorities would have rights similar to private landlords under the Rent Control Act in dealing with genuine legal tenants. V. It is necessary to give no room for allegation that evictions were selectively resorted to for the purpose of securing an unwarranted increase in rent. VI. Public Sector Undertakings should immediately review even the pending cases before the Estate Officer or Courts with reference to this guidelines and withdraw eviction proceedings against genuine tenants on the ground otherwise than as provided under these guidelines." 13.(e) Taking advantage of the issuance of the above said guidelines, the petitioner contends that the jurisdiction of second respondent is excluded and that civil Court alone has got jurisdiction for eviction. This Court does not enter into the discussion as to the applicability of the above said guidelines since it is the job of the second respondent. Suffice it to indicate that guideline No.1 enables the landlord to invoke provisions of Public Premises Act to evict the unauthorised occupants. In order to decide whether this petitioner is an 'unauthorised occupant', necessary enquiry has to be held by the second respondent and there is nothing wrong on the part of this Court to direct the second respondent to hear the I.As and main matter simultaneously since it involves mixed questions of fact and law. 14. There is no deviation by this Court from the settled proposition of law and no oversight could be discerned on the scrutiny of the order passed by this Court and there is nothing to show that there is an error apparent on the face of record. In view of this Court, the review application is misconceived which does not contain any merits and the same suffers dismissal. 15. In fine, the review application is dismissed. No costs. ggs To 1. The Principal Judge, City Civil Court, Chennai 104. 2. The Estate Officer Southern Zonal Office LIC Buildings Chennai 600 002