RUKMINI AMMA SARADAMMA A v.

KALL YANI SULOCHANA AND ORS.

DECEMBER 16, 1992

[M.N. VENKATACHALIAH, S. MOHAN AND DR. AS. ANAND, JJ.] B

Kera/a Buildings (Lease and Rent Control) Act, 1965: Section 2o-Revisional Jurisdiction-Scope of-Wliether revisional court has jurisdiction to reappreciate evidence-Second revision to the High Court under Section 115 of the Civil Procedure Code, 1908--Permissibility of.

Civil Procedure Code, 1908: Section 115-'-Revisionallurisdiction-Exercise of-Whether High Court could reappreciate evidence.

The appellant-landlady filed a petition for eviction of the first respondent-tenant froin the schedule premises, on the ground that the D first respondent had committed default of rent and that she was entitled to recover possession of the shed for demolition. The Rent Controller directed eviction on the ground . of arrears of rent, but disallowed the claim for recovery of building for demolition. .

On appeal by the landlady, the Appellate Court reversed the finding E regarding bona fide need anci confirmed the eviction order on this ground also. Thereupon, the first respondent filed a revision under.Section 20 of the Kerala Buildings (Lease and Rent Control) Act, 1965 before the District Court, who dismissed the same. The first respondent preferred a further revision under Section 115 of the Civil Procedure Code before the F High Court, which set aside the finding of the Appellate Court and the Revisional Court and remitted the matter to the trial court.

Thereafter, the Rent Controller dismiss~ the petition filed by the appellant. Hence, the appellant filed an appeal to the District Court, which directed eviction of the firiit respondent on the ground of bona fide G need under Section 11(3) of the Act. Aggrieved, the first respondent preferred a revision. The Division Bench of the High Court set aside the order of eviction, holding that the landlady was not snttessful in proving her case of bone filll need. Hence the appeal, by special leave, by the landlady.

H 579

A On behalf of the appellant it was contended that the High Court had misconceived the scope of revisional jurisdiction, and that notwithstanding the fact that Section 20 of the Act conferring revisional jurisdiction of the High Court was widely worded, such a jurisdiction cannot be converted into an appellate jurisdiction.

B On behalf of the first respondent it was urged that the revisional jurisdiction conferred tinder Section 20 of the Act was wide in scope in comparison to Section 115 of the Civil Procedure Code and the revisional court could consider the propriety of the order under revision.

C Allowing the appeal, this Court

HELD : 1. Unlike the jurisdiction under Section 115 of the Civil Procedure Code, 1908, in Section 20 of the Kerala Buildings (Lease and Rent Control) Act, 1965, power is given to the revisional authority to call for and examine the records relating to any order for the purposes D of satisfying itself as to the legality, regularity or propriety of such order.

Even the wider language of Section 20 of the Act cannot enable the High Court to act as a first or a second court of appeal. Otherwise, the distinction between appellate and revisional jurisdiction will get obliterated. Hence, the High Court was not right in re-appreciating th~ entire evidence both oral or documentary in the light of the Commissioner's report. The High Court had travelled far beyond the revisional jurisdiction. Even by the presence of the word 'propriety' it cannot mean that there could be re-appreciation of evidence. Of course, the revisional court can come to a different conclusion but not on a re-appreciation of evidence; o~ the contrary, by confining itself to p legality, regularity and propriety of the order challenged before it. The High Court was not right in its view that under Section 20 of the Act though re-appreciation of the evidence as such was not callfd for, the pleadings and evidence have to be examined to satisfy the legality, regularity .of the order of the lower authorities. [584-G, H; 587-A-OJ -a Aundal Ammal v. Sadasivan Pillai, A.l.R. 1987 S.C. 203, inapplicable.

H. V. Mathai v. The Subordinate Judge, Kottayam and Ors., [1969] 2 S.C.C. 194; Rai Chand Jain v. Miss Chandra Kanta Khosla, (1991] 1 H S.C.C. 422 and Raman and Raman LU!. v. The State of Madras and Anr.,

,- .

RUKMINI AMMA v. KALL YANI SULOCHANA {MOHAN, J.] 581

(1956) S.C.R. 256, referred to.

2. It is too late in the day to say that the earlier exercise of f'l.!visional jurisdiction by the High Court was wrong. The appellant ought to have raised it then and there. Having taken a chance after remit and pursued the eviction petition, merely because the order of the High Court went adverse to the appellant, it cannot be said that the order of remit in B exercise of second revisional jurisdiction is wrong. Even otherwise, under Section 115 of the Civil Procedure Code, 1908 the revisional powers could be exercised. [583-F, G]

3. In the circumstances the matter is_ remitted to the High Court for re-consideration, confining itself to the revisional jurisdiction.

[587-F]

CIVIL APPELLATE JURISDICTION : Civil Appeal No. 5403 of 1992.

From the Judgment and Order dated 28.5.91 of the Kerala High Court in C.R.P. No. 1752-of 1990-D.

G.Prakash for the Appellant:

G.Viswanatha Iyer and T.G.N. Nair for the Respondents.

The Judgment of the Court was deiivered by

MOHAN, J. Leave granted.

This appeal by special leave is directed against the judgment dated F 28.5.91 of the High Court of Kerala in C.R.P. No. 1752 of 1990-D.

The short facts leading to this appeal are as under:

 The petition schedule shed and the premises were obtained by the appellant and the second respondent under a partition of the year 1959. G The second respondent is the mother of the appellant. In 1969, the premises was let out to the first respondent by the husband of the second respondent on a monthly rent of Rs. 15. On 24.1.1969 a rent deed was executed (Ex. Al). After the death of the husband of the second respondent the first respondent paid rent upto September 1976. Thereafter she H

A committed default in payment of rent. A notice was issued by the second respondent terminating the tenancy with effect from 'lf.J.4.77 and demanded vacant possession with arrears of rent.

On 14.2.78, the second respondent relinquished her entire right in favour of the appellant. Thereupon, the appellant obtained absolute right B over the property. She filed a petition for eviction on two grounds: (i) the first respondent committed default in payment of rent and (ii) she will be entitled to recover possession of the petition schedule shed for demolition.

By an order dated 28.6.82 the Rent Controller directed eviction on the ground of arrears of rent. However, the claim for recovery of building for C demolition was disallowed.

Aggrieved by the order of the Rent Controller, the appellant preferred an appeal before the Appellate Court. By its order dated 14.12.83 the .findiiig of the trial court was reversed in so far as the bona D fide need was concerned and the order of eviction was confirmed on this ground as well. Thereupo~, the first respondent filed a revision under Section 20 of the Kerala Buildings (Lease and Rent Control) Act, 1965 (hereinafter referred to as the Act) before the District Court, Kollam. That was dismissed on 24.6.85. The first respondent preferred a further revision before the High Court under Section 115 of the Civil Procedure Code E (hereinafter referred to as the Code). The High Court by its judgment dated 21.8.86 set aside the finding of the Appellate Court and the Revisional Court and the matter was remitted to the trial court.

On remit, the Rent Controller dismissed the petition filed by the F appellant. Hence, the appellant filed an appeal to the District Court. By its order dated 30th of June, 1990 it directed eviction of the first respondent on the ground of bona fide need under Section 11(3) of the Act. The first respondent aggrieved by the order of eviction preferred a revision. The Division Bench of the High Court set aside the order ef eviction holding that the landlady was not successful in proving her case of bona fide need.

G It is under these circumstances, this appeal by special leave has come to be preferred.

Learned counsel for the appellant would urge that the High Court had misconceived the scope of revisional jurisdiction. Having held that H under Section 20 of the Act, a re-appreciation of t.he evidence as such was

RU.KMINI AMMAv. KALLYANI SULOCHANA [MOHAN, J.] 583

not called for, yet the High Court went into the factual details and re-ap- A preciated the entire evidence as though it was an Appellat.: Court.

Notwithstanding the fact that Section 20 of the Act conferring revisional jurisdiction of the Hi~ Court is widely worded, such a jurisdiction cannot be converted into an. appellate jurisdiction. This Court in Rai Chand Jain v. Chandra Kanta Khosla, (1991] 1SCC423, has clearly pointed B out the scope of such revisional jurisdiction and has held that it cannot act as a second court of appeal. Therefore, the impugned order is liable to be set aside. Without prejudice to the above, it is submitted that this Court in Aundal Ammal v. Sadasivan Pillai, AIR 1987 SC 203, has held that no second revision is permissible to the High Court either under Section 115 C of the Code or under Section 20 of the Act. The District Court has exercised the revisional jurisdiction. Hence, the remit order in CRP No. 1719 of 1985 is void and is illegal. If that remit order goes, what remains is only the revisional order of the District Court, Kollam, confirming the appellate order directing revision on the ground of bona fide need. Hence, the impguned order Calls for interference.

In opposition to this, it is urged on behalf of the respondent that the revisional jurisdiction conferred under Section 20 of the Act is wider in scope in . comparison to Section 115 of the Code. Therefore, there is no need to confine oneself to illegality alone. Further, the revisional court E could consider the propriety of the order under revision. It is on this score the High Court chose to interfere with the finding of the appellate authority. In exercise of this jurisdiction it has correctly appreciated the evidence and come to the right conclusion.

It is too late in the day to urge on behalf of the appellant that the F earlier exercise of second revisional jurisdiction by the High Court was wrong. She ought to have raised it then and there. Having taken a chance after remit and pursued the eviction petition, merely because the order of the High Court went adverse to the appellant, it cannot be contended that the order of remit in exercise , of second revisional jurisdiction is wrong.

Even otherwise, under Section 115 of the Code the revisional powers could G be exercised. Aundal Ammal's case (supra) has no application to this case having regard to the peculiar circtlmstances.

We shall now proceed to consider the correctness of these submis- H sions.

Firstly, as to the scope of revisional jurisdiction under Section 20 of. the Act. Section 20 reads as under:

"20. Revision:- (1) In cases where the appellate authority empowered under Section 18 is a Subordinate Judge, the District Court, and in other cases the High Court may, at ' any time, on the application of any aggrieved party, call for and examine the records relating to any order passed or proceedings taken under this Act by such authority for the purpose of satisfying itself as to the legality, regularity or propriety of such order or proceedings and may pass such order in reference thereto as it thinks fit.

{2) The costs of and incident to all proceedings before the High Court of District Court under sub-section (1) shall be in its discretion."

D Revision as seen from Black's Law Dictionary (Fifth Edition) at page 1187 denotes:

"A re-examination or careful reading over for correction or improvement."

E Under Section 115 of the Code the revisional jurisdiction is exercisable by the High Court in the following three cases:

(I) When the Subordinate Court appears to have exercised a jurisdiction not vested iii it by law, or

(2) to have failed to exercise a jurisdiction vested in it by law, or

(3) to have acted in exercise of its jurisdiction illegally or with material irregularity.

Unlike this jurisdiction, in Section 20 , power .is given to the revisional authority to call for and examine the records relating to any order for the purposes oLsatisfying itself as to the legality regularity or propriety of such order. As to the distinction between these two jurisdictions this Court had occasion to consider in H. V. Mathai v. 1Jie Subordinate Judge, Kottayam H and others, [1969] 2 sec 194 at 198, and held thus: '

"The words of Section 20 however are much wider than those in Section 115 of the Code of Civil Procedure. Under Section 20(1) the District Court is empowered to call for an examine the records relating to any order passed or proceedings taken under the Act for the purpose of satisfying itself as to the legality, regularity or propriety of such order or proceedings, and pass such order in reference thereto as it thinks fit. On the words of this section we cannot hold that a revision is limited to a mere question of jurisdiction".

In Rai Chand Jain v. Miss Chandra Kanta Khosla, (1991] 1 SCC 422, . C arising under E.P. Urban Rent Restriction Act, 1949 (3 of 1949), whereunder the revisional jurisdiction was conferred under Section 15(5) of the said Act. At page 430 this Court held:

"It is appropriate to note in this connection the relevant provision of Section 15(5) of the Act which specifically D conferred jurisdiction on the High Court in an application for revision against the order of the appellate authority to satisfy itself as to the legality or propriety of the order made by the appellate authority. On a plain reading of this provision it is clear and transparent that the revisional E jurisdiction conferred on the High Court is much wider than the jurisdiction provided under Section 115 of the Code of Civil Procedure. The High Court while exercising this jurisdiction is competent not only to see the irregular or illegal exercise of jurisdiction but also to see to the legality or propriety of the order in question." F

Again at page 431 it was observed:

"The High Court in exercising its power under Section 15(5) of the said Act is within its jurisdiction to reverse the findings of fact as the same were improper and also illegal.

It is appropriate to ref er in this connection to the decision in the case of Ram Dass v. Ishwar Chander, (1988] 3 SCC 131 where it has been held that Section 15(5) of the Act enables the High Court to satisfy itself as to the "legality or propriety" of the order under revision, which is, quite

obviously; a much . wider jurisdiction. That jurisdiction enables the Court. of revision, in appropriate cases, to examine the correctness of the fmclir:gs of facts also, though the revisional court is not 'a second court of first appeal' (see Dattonpant Gopalvarao Devakate v. V.tha/rao Marutirao Janagava~ (1975) 2 SCC 246.'

In an earlier ruling, the scope of revisional jurisdiction of the same section i.e. section 15(5) of the said Act came up for consideration. In Smt.

Rajbir Kaur and Another v. Mis S. Chokesiri and Co., (1989] 1 SCC 19, the Division Bench to which one of us {Venkatachaliah, J.) was a party held in C paragraph 42 at page 37:

"The.. scope of the revisional jurisdiction depends on tbe langUage of the ; tatute conferring the revisional jurisdic-· tion. Revisional jurisdiction is only a part of the appellate jurisdiction and cannot be equated with that of a fullfledged appeal Though the revisional power - depending upon the language of the provision - might be wider than . revisional power under Section 115 of the Code of Civil . Procedure, yet, a revisional court is not a second or first . appeal' •

As far as the present Act is concerned Section 20 contains the word 'propriety' also. As to the meaning of the word "propriety' in Raman and . Raman Ltd. v. The State of Madras and Another, (1956) SCR 256, at page

 264 it was held thus:

"The word 'propriety' has nowhere been defined in the Act. and is capable of a. variety of meanings. In the Oxford • English Dictionary {Vol VIII), it has been stated to mean "fitness; appropriateness; aptitilde suitability; appropriateness to the circumstances or conditions; conformity with requirements, rule or principles; . rightness, correctness, justness, accura.cy"."

Therefore, the question would be whether in the context of this provision the High Court was right in re-appreciating the evidence and coming to a different conclusion? In the impugned judgment in paragraph H .1 the High Court observed:

..... ·

 "Under Section 20 of the Act though re-appreciation of the evidence as. such is not called for, the pleadings and evidence have to be examined to satisfy the legality, regularity of the order of the lower authorities."

We are afraid this approach of the High Court is wrong. Even the B wider language of Section 20 of the Act cannot enable the High Court to act as a first or a second court of appeal. Otherwise the distinction between appellate and revisional jurisdiction will get obliterated. Hence, the High Court was not right in re-appreciating the entire evidence both oral or documentary in the light of the Commissioner's report (Ext. Cl and C2 mabazar}. In our considered view, the High Court bad travelled far beyond C the revisional jurisdiction. Even by the _presence of the word "propriety" it cannot mean that there could be a re-appreciation of evidence. Of course, the revisional court can come to a different conclusion but not on a re-appreciation of evidence; on the contrary, by confining itself to legality, regularity and propriety of the order impugned before it. Therefore, we are D unable to agree with the reasoning of the High Court with reference to the exercise of revisional jurisdiction.

As to whether a second revision lay to the High Court this Court by the judgment in Aundal Ammal's case (supra) held that no such revision lay. On this point the High Court referring to this very judgment held that E the jurisdiction under Article 227 of the Constitution is not taken away.

Therefore, the earlier order dated 21.8.86 passed in exercise of revisional jurisdiction under Section 115 of the Act is not void. We need to pause to consider this because this point ought to have been urged by the appellant immediately after the order of remit was made. Pursuant to the order of F remit the appellant took a chance by participation in the proceedings before the Rent Controller, taking up the matter in appeal. Thus, having acquiesced in these proceedings she cannot question the first remit order.

For the foregoing reasons, we set aside the judgment of the High Court and remit the matter to the High Court for re-consideration, confin- G ing itself to the revisional jurisdiction as pointed out above. Accordingly, the civil appeal will stand allowed. However, there shall be no order as to costs.

N.P.V.

Appeal allowed.