Shaik Jaffar Shaik Mahmood & Ors. v. Mohd. Pasha Hakkani Sahab & Ors.

890 SHAIK JAFFAR SHAIK MAHMOOD & ORS. A _v._ -MOHD. PASHA HAKKANI SAHAB & ORS. _December_ 3, 1974 [V. R. KRISHNA !YER, P. K. GOSWAMI AND A. C. GUPTA, JJ.] _Nature_ _of_ _re1•isio11al_ _power-Narrower_ _than_ _appellate_ _power-Whether_ _evi-_ B _dence_ _can_ _be_ re-app1eciated~~ection 1t5 _of_ _Civil_ _Procedure_ Code-~ection 26( c) _of_ _Hyderabad_ _Houses_ _(Rent_ _El'ic1io11_ _and_ _Lease)_ _Control_ _Act,_ 1954. The wpondent Landlords made an application to the Rent Con!ro hr for eviction of the appellant-tenants on the ground of non-payment of rent and personal requirer.oent under Hyderabad Houses (Rent. Eviction and Lelj'le 1 Co1J! ·o) Ac!, 1954. The Rent Controller negatived the landlords' contention and dismissed the eviction appli;ation. An appeal filed by the landlords before the Assistant Judi:e was a'so dismissed. In a Revision Petition filed by the 1:.nd- C lords l>~fore the High Court under section 26 of the Act the High Court examined the re.asons given by the Rent Controller and the Assistant Judge and held that there was no cogent reason to reject the testimony of the fi•st p.:titioner on the question of _bona_ _fide_ requirement. ·On appeal to this Court by Special Leave it was contended on behalf of the appellant-tenants that the High Court was wrong in reappreciating the evid1moe to come to a contrary conclusion to the one a•rived at by both the courts bc:low in Revision u.nder sedion 26 of the Act. The scope of the section 26 of the D Act is narrower than section _115_ of the Civil Procedure Code. Allowing the appeal, HELD : 'there is a 3 tier machinery provided in the Act. The first court is that of Rell! Contro'lcr which is to make a summary enquiry. Tue sec.ond stage is of an appeal before the District Judge which is a comr,lete re-hea ing with additional power to make further enquiry if necessary. Tue third stage is the revision to the High Court. It is well known that the appellate powi'r is E different. f ·om revisional power. Usually in the ab'ence of any clear provision in the law power of revision is narrower than that of appeal. There is no substantial dilferen:e between the powers conforred by section 26 of the Act and section 115 of the Civil Procedure Code. In a series of decisions s•a·ting from Privy Council days it is firmly well established that section • 115 of the Civil Procedu:e Code applies to jurisdiction alone, the irregular exercise or the non-exercise of it or the illegal assumption of it. The section is not directed against conclusions of law or fact in which the question of jurisdi:tion is -not involved. [89'2E-893C] F _Rajah_ _Amir_ _Hasseq_ _Khan_ v. _Sheo_ _Baksh_ _Sin11h,_ 11 Indian. Appeals 237, _Balak•ishna_ _Udayar_ v. _Vasudeva_ _Aiyar,_ 44 Indian Appeals 261, _Keshardeo_ r _Chamria_ v. _Radha_ _Kissen_ _Chamriya_ _and_ _Others,_ [1953] S.C.R. 136 and _D.L.F._ _Housing_ & _Construction_ _Company_ _Private_ _Ltd.,_ _New_ _Def/ii_ v. _Sarup_ _Singh_ _and_ _Others,_ (1970] 2 S.C.R. 368. Under seclion 26, the High Court has to see whether there is any error of jurisdiction or whether there is any such manifest error of procedure commi'tted G by th-o courts as may affect the ultimate decision resulting in gross injustice. The High Ccurt in reappreciating the evidence in o•der to differ from the,;onclusions of the two authorities below has clearly made an error of jur;sdiction and acted in excess of the .power conferred on it under section 26 of the Act. The High Court ca·nnot sit in appeal over the order> of the original and the ~ppellate authority. [893C-EJ CIVIL APPELLATE JURISDICTION : Civil Appeal No. 1586 of 1974. Appeal by Speciai Leave from the Judgment & Order dated the H 12th February, 1974 of the Bombay High Court in Revision Application No. 136 of 1968. SHAIK JAFFAR i'. MOHD. PASHA _(Goswami,_ J.) 891 A _M._ _N._ _Phadke_ _and_ _A._ G. _Ratnaparkhi_ for the Appellants. _S._ _Balakrishnan and_ _N._ _M._ _Ghatate_ for the Respondents. The Judgment of the Court was delivered by B # c D E F G H Gosw AMI, J. The short question that arises for consideration in this appeal is as to the scope of section 26 ( c) of the Hyderabad Houses (Rent, Eviction and Lease) Control Act, 1954 (No. XX of 1954) (briefly the Act). The facts may briefly be stated: The lai;idlords (respondents herein) made an. application to the Rent Controller for an order of eviction of the tenants (appellants herein) on. two grounds, namely, default in payment of rent and secondly requirement of the premises for their personal occupation to open a hardware shop at Latur where the premises are· situated. It is admitted that the landlords have a hardware shop at Udgir where they have their own. residence as well. The Rent Controller as well as the Assistant Judge, who· heard the appeal, found that the tenants were not in default in payment of rent. Both the courts also concurrently held that the landlords failed to establish the bona fide requirement for their own use and occupation. . Being aggrieved by the decision of the courts below, the landlords preferred a Revision Appli cation undefsection 26 of the Act to the High Court of Bombay, The High Court examined the reasons given by the Rent Controller as well those of the Assistant Judge and came to the conclusion that both the courts below have acted illegally inasmuch as "there was no cogent reason to reject the testimony of the 1st petitioner in this respect". In its view, "therefore, it has been sufficiently proved by the landlord that they really want to start hardware business at Latur as well". The High Court, therefore, ordered the appellants to deliver possession of. the suit premises to the respondents. Hence this appeal by special' leave. . ## Section 25 provides for filing of appeals and runs as follows : "25. Appeal-(1) Notwithstanding anything contained in any law for the time being in force, an appeal from an order made by tlie Controller shall lie within 30 days from the date of such order to the District - Judge .... ### x x x x (2) (3) (4) The appellate authority shall send for the records of the case from the Controller and after giving the parties an opportunity of being heard, and if neces sary after making such further inquiry as it thinks fit either personally or through the Controller, shall decide the appeal. Save as provided in section 26 the decision of the appellate authority and subject to only such decision; an order of the Controller shall be final and shall not be liable to be called in question in any Court of Law whether iii a suit or other proceedings or bv way of appeal. 892 SUPREME COURT REPORTS [1975) 2 s.c.i. Section 26 which provides for revision reads as under :- A "26. Notwithstanding anything contained in this Act or .. any othe!' law for the time being in force, an application for revision shall lie t:o the High Court from any final order passed on appeal by an appellate authority on the following grounds :,(a) that the or!ginal or appellate authority exer-. B cised a jurisdiction not vested in it by law, or (b) that the original or appellate authority failed to exercise a jw:isdiction so vested, or (c) in followi,ng the procedure or passing the orui::r, the original or appellate authority acted illegally or with material irregularity". C Mr. .Phadke, learned counsel for the appellants, made only one submission before us. He submitted that the High Court was clearly wrong in re-appreciating the evidence· to come to a contrary conclu!iion by. interfering in revision under section 26(c) of the Act with the conc11rrent findings of fact with regard to bona fide requiremeµt of the landlords. He further submitted that the scope of section 26 ( c) of D the Act is necessarily narrower than that of an appeal and is similar to section 115 of the Civil Procedure Code. The High Court, therefore, erred in jurisdiction in interfering with the. concurrent findings of fact of the courts below and in passing the .decree for eviction. There is a three tiet machinery provided in the Act for dealing with a. landlord's application for eviction. The first Coun is that of E the Rent Controller which is to make a summary inquiry in the manner usually done by a Magistrate exercising summary powers in trying a criminal cane. The Controller is not required to record evidence exhaustively and has only to record brief reasons for his findiM ( sec:tion 24). The scicond stage is of an appeal before the District Judge. The District Judge in deciding the appeal has power even to make further inquiry if he thinks necessary [section 25 (3) ]. This being the first F appeal before him it is a complete rehearing with additional powc:r to make funher inquiry if necessary. The order which he ultimately passes is final and there is no further second appeal against his o:rder. In the third place, section 26 provides for an aoplication for revi•inn against the final appellate order of the District Judge to the High Court on the grounds which we have: already set out. The High Court ### can examine ilnOer section 26 G (a) whether the original or appellate authority exercised jurisdiction not vested in it by law, or (b) whether the original or appellate authority failt:d to exercise a jurisdiction so vested, or (c) whether in following the procedure or passing the order, the original or appe!late authority acted ille E F G gally or with material irregularity. It _is_ well-known that appellate power is different from revis:ional power. U:;ually, in the absence of any clear provision in the !Aw, H A B # c D E F H SllAIIC JAPPAR _v._ MOHD. PASHA _(Goswami,_ _1.)_ 1193 power of revision is narrower than that of appeal. Having compared section 26 with section 115 of the Code of Ci.vi! Procedure, it is diffi· cult to hold that there is any substantial difference in the contents of the two provisions. . If there is some verbal difference between the - above two sections, it is without any distinction. In a series of decisions from the Privy Council days starting from year 1894, _Raiah_ _Amir_ _Hassan_ _Khan's_ case( [1] ), 1917, _Balakrishna_ _Udayar's_ case( [2] ) till recent times, as for example, in _Keshardeo_ _Chamritis_ case( [8] ) and _D.L.F._ _Housing_ & _Construction_ _Company's_ case,(') it is firmly well-estab lished that section 115, Civil Procedure Code, "applies to jurisdiction alone, the irregular exercise., or the non-exercise of _it,_ or the illegal assumption of it". The section is not directed against conclusions of law or fact in which the question of jurisdiction is not involved". The High Court under section 26(c) h•as to see whether there is any error of jurisdication committed by the Controller or by the appellate authority in passing the order or whether there is any such manifest error of procedure committed by the courts as may effect the ul -imate decision resulting in gross injustice. It is only in that con•ext that under section 26'(c) the words "acted illegally" or "with mater:ru irregularity" have been used~ In view of the scheme of the Act that the inquiry contemplated before the original· authority is of a summary nature (section 24), to be disposed of in an expeditious manner sec tion 21) and the order of the appel~ate authority, which is vested with th.;i power to make further inquiry, is made final subject to revision. (section 25), it cannot be the intention of the legislature in making the power of revision under section 26 wider than it is under section 115 of the Civil Procedure rode. The revisional power under section 26 is limited in terms of. the section itself and is necessarily narrow. The High Court is, therefore, not correct in its view tlrat the power of · revi&ion under sectjon 26 is of wider amplitude. Jna5much as the High Court sought to reappreciate the evidence in order to dilier from the conclusions of the two authorities, it has clearly made an error of jurisdiction and acted in excess of the power conferred on it under section 26 ( c) of the Act. We are, therefore, clearly of opinion that the High Court cannot sit in appeal, as it h•as done in this case, over the orders of the original and the appellate authority in order to reappreciate the evidence in exercising its power 'of revision under section 26 of the Act. We, therefore, accept the sumbission of Mr. Phadke. We may observe that although the appe•al lies to the District Jtidge under secrion 25 of the Act, it appears that the Assistant Judge heard the appeal. Since this point was not canvassed at the Bar, we express no opinion on this aspect. In the result the appeal is 'allowed and the judgment of the High Court is set aside. The parties will bear their own costs. P.H.P. _Appeal_ _allowed._ (1) 11 I.A.237. (2) 44 I.A. 261, (3) l\953] S.C.R. 136. (4) (19701 2 S.C.R. 368.