Case: Satyanarayan Laxminarayan Hegde &amp; Others Vs. Millikarjun Bhavanappa Tirumale

9, the respondent made an application in the Revenue Court of the Mamlatdar of Sirsi, District Kanara, praying for delivery of possession of property which the appellant was on that date possessing as the tenant under him, on the basis of a "Mulegeni" deed executed by the respondentsin favour of the appellantsOne of the terms of the lease was that if rent for three consecutive years fell in arrears the Mulegeni right will be void and the lessee should hand over possession of the property to the lessor. In the application made in the Mamlatdars Court the respondent based his claim for possession on this express condition in the lease as also on an alleged termination by him of the tenancy. The Bombay Tenancy and Agricultural Lands Act, 1948 (Bombay Act No. LXVII of 1948) hereinafter referred to as the Bombay Tenancy Act, which it is not disputed applied to this tenancy contained provision for termination of tenancy in its S. 14.2. Theadmitted that rent for three successive years had not been paid but contended inter alia that the plaintiff was not entitled to an order for possession of the property as he had not "given notice that he was entitled to obtain possession of the same under the rent agreement and that he had terminated the tenancy." The Mamlatdar overruled this contention and made an order for possession in favour of thesubject to the condition that the tenancy of thewould not be distrubed.3. On appeal the Collector of Kanara held that the Mamlatdar who had made the order had no power under the Bombay Tenancy Act and so had no jurisdiction to make such an order. He also held that the plaintiff respondent was not entitled to an order for possession as the tenancy had not been terminated by due notice. Accordingly he allowed the appeal and set aside the order of the Mamlatdar.4. Against this order the landlordappealed to the Bombay Revenue Tribunal. Before that Tribunal the question of the Mamlatdars jurisdiction does not appear to have been raised. The Tribunal held that the Bombay Tenancy Act was applicable to lands held on Mulegeni tenure but the landlord must fail because he had failed to terminate the tenancy by notice before instituting the action for ejectment. Accordingly he rejected the application for possession.5. The landlordthen made an application to the High Court of Bombay and prayed that it may be pleased "to exercise its power of superintendence over the Bombay Revenue Tribunal under Art 227 of the Constitution of India, by calling for the record and proceedings in the case, and on perusal thereof set aside the order of the Tribunal and the Collector and restore the order of the Mamlatdar, by issuing the writ of certiorari or any other suitable writ." The High Court was of opinion that the Tribunal had committed an error which was apparent on the face of the record in holding that an order of possession could not be made unless a notice terminating the tenancy had been given before the institution of proceedings. In that view the Court issued a writ of certiorari, quashed the order of the Tribunal and restored the order of the Mamlatdar.

Reasoning: 10. It has to be noticed that this Section does not in express terms provide for the act of termination of tenancy to be effected by notice given by the landlord. S. 29,(2) which provides that no landlord shall obtain possession of any land or dwelling house held by a tenant except under an order of the Mamlatdar, also does not provide that any notice has to be given before an application for possession is to befind that with full knowledge of the use of the word "determines" in S. 111 of the Transfer of Property Act the Bombay Legislature instead of saying that the tenancy "determines" or "shall not terminate" said that the tenancy "shall not be terminated". It is suggested that this different language was used deliberately and not by accident. Again, in(2) of S. 14 when the question of termination of tenancy by efflux of time in certain cases is provided for, the legislature, it is pointed out, says that the tenancy shall terminate at the expiration of such period.Of course as the present case is one of failure by the tenant for three years to pay rent within the period specified in S. 14 the provision in the operative portion of S. 25 will not, it is conceded, apply to this case but the argument is that that circumstance is no reason why we should not consider the language in S. 25 to see whether the Legislatures intention was that the termination should take place prior to and independent of, filing of the proceedings. The use of the word "and" in "where any tenancy of any land held by any tenant is terminated forof rent and the landlord files any proceedings to eject the tenant...... ...... ...... ...... ......" is, it is said, a justification for the conclusion that the Legislature contemplated and intended that in all cases of termination onof rent the termination should take place first and after the termination was completed the landlord was at liberty to file proceedings to eject the tenant. If this contention be correct there would be no justification for thinking that the Legislatures intention was different in this matter where thewas for threethe above discussion of the rival contentions show the alleged error in the present case is far fromand if it can be established, it has to be established, by lengthy and complicated arguments. We do not think such an error can be cured by a writ of certiorari according to the rule governing the powers of the superior court to issue such a writ. In our opinion the High Court was wrong in thinking that the alleged error in the judgment of the Bombay Revenue Tribunal viz., that an order for possession should not be made unless a previous notice had been given was an error apparent on the face of the record so as to be capable of being corrected by a writ ofwide it may be than the provisions of S. 115 of the Code of Civil Procedure, it is well established that the High Court cannot in exercise of its power under that Section assume appellate powers to correct every mistake of law. Here there is no question of assumption of excessive jurisdiction or refusal to exercise jurisdiction or any irregularity or illegality in the procedure or any breach of any rule of natural justice. If anything it may merely be an erroneous decision which, the error not being apparent on the face of the record, cannot be corrected by the High Court in revision under S. 115 of the Code of Civil Procedure or under Art. 227.