Hari Shankar v. Rao Girdhari Lal Chowdhury

Hidayatullah, J. Kapnr, J. delivered a separate judgment.

HIDAYATULLAH, J.-The appellants (in this Hidayalu/lali J, appeal by special leave) are the sons of one Gauri Shankar, who owned a bungalow known as 5, Haily , Road, New Delhi. This bungalow was given to the respondent by Gauri Shankar on a monthly rent of Rs. 234-6-0, excluding taxes. The suit, out of which this appeal arises, was brought by the appel-lants against the respondent, Rao GirdP.ari Lal Chowdhury, for his eviction on the ground (among others) that he had sub-let a portion of the bungalow after the commencement of the Delhi and Ajmer Rent Control Act, 1952 (38 of 1952) to one, Dr.

Mohani Jain, without obtaining the consent in writing of the landlord, as required bys. 13(l)(b)(i) of the Act. The defence was that the original con-tract of tenancy was entered into sometime in 1940 and a term in the contra.ct gave the tenant a right to sub-let, It was alleged that a letter written by the tenant which embodied the terms of the tenancy was in the possession of the landlord and a demand was made for its production, The case of the tenant was that the sub-tenancy commenced in the year 1951, that is to say' before the passing or the Act of 1952, and the tenant was not required to obtain the written consent of the landlord to sub-let. Admittedly, in this case, no written consent was proved. We need not mention the other allega-tions and counter-allegations which are usual in proceedings between landlords and tenants, the most important or them being about the arrears of rent, which the tenant under permission of the Court ultimately deposited in Court.

1961 Tho issue on which the decisions below have Ho.ri Sleaniar differed was frnmed by tho ::-ub-Judge, First Class,

•• Delhi, in the following terms :

llao Gi,.Jluui Lal

Cltowdhur;· "Did the plaintiff consent to the sub-letting Hidayatul/ah J. of parts or tho demised premises by the de-fendant? If so, when and to what effect." The trial Judge found that there was no evi-dence that tho landlord was ever consnlt€d before I a portion uf the bungalow was sublet to Dr. MohAni Jain, and further that tho sub-ttna11cy was crl'ated after J unc 9, 1952, the dato on which the Act came into force. In reaching the latter conclusion, the trial Judge made a reference to a dispute between the tenant and Dr. Mohani Jain for fixation of standard rent before the Rent Control authorities. In those proceedings, Dr. Mohani Jain ha.d alll'ged that she was living as a sub-tonant from the end of 1951, but the tenant had denied this fact. The proceedings before the Rent Control authorities ended in a compromise, but the admission of the tenant was relied upon to support the conclusion that the sub-tenancy commenced after the Act. The trial Judge decreed the suit. The decision of the trial Judge was confirmed on appeal by tho Additional District Judge, Delhi. Though Dr. Mohani Jain gave oral ovidence in this case that her sub-tenancy commenced in December 1951, the Additional District Judge found categorically that the sub-tenancy commenced sometime after the coming into force of the Act. He held that even if Dr. Mohani Jain was living there even from before it was a guest and not as a sub-tenant. I ,_ Against the order of the Additional District Judge, a revision was filed under s. 35 ( 1) of the Act. That section reads as follows :

"The High Court may, at any time, call for the record of any C&Be under this Act for the purpose of satisfying itself that a decision

made therein is according to law e.nd may 1961 pass such order in relation thereto as it thinks Hari Shankar fit." v. Rao Girdhari Lal Acting in accordance with a decision of the Chowdhury Punjab High Court as to the ambit of this section, Hida,YatuJ/ah J. the learned single Judge, who heard the revision application, thought that it was competent for -him to reconsider the concurrent findings about the time when the sub-tenancy commenced. He held that Dr. ;\fohani Jain's statement showed that the _ sub-tenancy -commenced prior to the passing of the

Act, and that the landlord's consent in writing was not necessary. In reaching this conclusion, the learned Judge was of opinion that all the evidence was not considered by the two Courts below, and that he was entitled, in view of the interpretation placed upon the section above quoted, to go into the matter afrel'h, and decide the question of fact.

It may be pointed out that while the suit was pending before the Subordinate Judge, an applica-tion was made for the production of the letter re-ferred to in the written statement of the tenant, to which a passing reference has already been made.

A letter was produced, and it is Ex. D-1. That letter does not disclose all the terms of the tenancy and it would appear, therefore, that the terms of the origins.I tenancy have not been proved in this case, and there is no material on which it can be said either way as to whether a right to sublet was conferred upon the tenant. The defendant did not insist in the Court of first instance that there was yet another Jetter, and the argument to that effect in this Court cannot be entertained.

In reaching the conclusion that all the evi-dence pertinent to the issue was not considered, the learned Judge of the High Court stated that Ex.P-19, which was the petition filed by Dr. Mohani Jain under e. 8 of the Act to get the standard rent fixed was not taken into account by the Additional Dis-trict Judge. That petition contained an averment

938 SUPREME COURT REFOR'IS (lll62] SOPP. 1961 that her sub-tenancy commenced on December Hari Shanl.ar l, J951 with a. rent of Rs. 100/· per month, a.nd that

v. La' a cheque for Rs. 1,800/· as advance rent for 18 Rao G ifiiha1 i months was given by her in the name of tho

Chowdlr11.ry

daughter of the tenant, because the tenant repre-Hidayatullah J. sented that he had no aceo1mt in the bank and

therefore a. cheque should be given in the name of his daughter. This; the learned Judge felt, ade-quately supported the statement of Dr. Mohani Jain to the tiamo effect as a witness in this case. The learned Judge was in error in thinking that Ex. P-19 was not taken into account by the Addi-tional District Judge. The latter bad, in fact, con-sidered Ex. P-19, thii petition of Dr. Mobani Jain, before the Rent Control authorities. Ex. P-20, the reply of the tenant to that petition and Ji:x. P-21, tho petition of compromi.6e; but be cited Exe. P-20 and P-21 only. Thern is internal eTidenoo to show tba.t Ex. P-rn wa.s, in fact, considered, because after mentioning the two Exhibits, the learned Additional District Judge goes on to say as follows:

"The first of these is the written state-ment of the present appellant which be had filed in a case brought by Dr. Mohani Jain against him for the fixation of fair rent. There be had completely denied somewhere in the year 1953 that Dr. Mohani Jain waa his sub-tenant and could not sue for fixation of rent. Thia was enough to show that right up to the year 1953 the appellant himself did not regard Dr. Mohan~ Jain a.e a sub-tenant." ·.,.... This clearly shows that the le&rned Additional District Judge was weighing Ex. P-19 as against Ex. P20 and was aoting on Ex. P-20, which contain· ed a material admission by the tenant before the present dispute had begun. The lea.med single Judge was, therefore, in error in departing from a concur-rent finding of fact on a wrong supposition.

But the question that arises in this appeal is 1961 one deeper than a mere appraisal of the evidence.

It is whether the High Court in the exercise of its HtJTi B~ankar v. revisional power is entitled to re-assess the value Rao Girdhari Lal of the evidence and to substitute its own conclusions Oltowdhury of fact in place of those reached by the Court below. H idayatullah J. This question requires an examination of the powers of revision conferred on the High Court by s. 35 of the Act. That question is one of common occurrence in Acts dealing with some special kinds of rights and remedies to enforce them. Section 35 is undoub-tedly worded in general terms, but it does not create right to have the case reheard, as was sup-posed by the learned Judge. Section 35 follows s. 34, where a right of appeal is conferred; but the second sub-section of that section says that no second appeal shall lie.

The distinction between an appeal and a revision is a real one. A right of appeal carries with it a right of rehearing on law as well as fact, unless the statute conferring the right of appeal limits the rehearing ii:J. some way as, we find, has bet>n done is second appeals arising under the Code I

of Civil Procedure. The power to hear a revision is generally given to a superior Court so that it may satisfy itself that a particular case has been decided according to law. Under s. 115 of the Code of Civil Procedure. the High Court's power a_re limited to see whether in a case decided, there ·has been an assumption of jurisdiction where none existed, or a refusal of jurisdiction where it did, or there has been material irregularity or illegality in the exercise of that juriadiction. The right there is confined to jurisdiction and juri,sdiction alone. In other acts, the power is not so limited, and the High Court is enabled to call for the record of a case to satisfy itself that the decision therein is according to law and to pass such orders in relation to the case, as it thinks fit.

The phrase "according to law" refers to the decision a.11 a whole, and is. not to be equated to

940 SUPRfilIE COURT REPORTS .(1962] SUPP. 19Sl errors of law or of fact simpliciter. It refers to the Hari Shankar overall decision, which must be according to law

v. which it would not be, if there is a miscarriage of Ra11 Girrlhari Lal justice due to a mistake of law. The section is thus

Chowdhury _

framed to confer larger powers than 1he power to Hidaya!Ullah J. -correct error ofjurisdiction to which s.115 is limited.

But it must not be overlooked that the dection-in spite of its apparent width oflanguage where it con-fers a power on the High Court to pass such order as the High Court might think fit-is controlled by the opening words, where it says that the High Court may send for the record of the case to satisfy itself that the decision is "according to law". It stands to reason that if it was considered necessary that there should be a rehearing, a right of appeal would be a more appropriate· remedy,· but the Act says that I there is to be no further appeal.

The section we are dealing with, is almost the same as a. 25 of the Provincial Small Cause Courts Act. That section has been considered by the High Courts in numerous cases and diversi> interpreta-tions have been given. The powers that it is said to confer would make a broad spectrum commencing, at one end, with the view that only substantial errors of Jaw can be corrected under it, and ending, at the other with a power of interference a little better than what an appeal giTes. It is useless to discuss those cases in some of which the observations were . probably made under compulsion cif certain unusual · facts. It is sufficient to say that we consider that

the most accurate exposition of the meaning of such sections is that of Beaumont, C. J. (as he then was} in Bell & Co. Ltd. v. WamanHemraj('} where the learned Chief Justice, dealing with s. 25 of the i Provincial Small Cause Courts Act, observed:

"The object of s. 25 is to enable the High Court to see that there has been no miscarriage of justice, that the decision was given accord-ing to law. The section does not enumerate (1) (1938) 40 Bom. L. R. 125.

the cases in which the Court may interfne in 1961 revision, as does s.115 of the Code of Civil Hari Shankar Procedure, and I certainly do not propose to "· attnmpt an exhaustive definition of the circum-Rao (irdha·i Lal Chou:dhll•)' stancPs which may justify such interference ;

but instances readily occnr to the mind HidU;,yrJ/ut/ah .J. whi~h are cases in which the Court which made the ord1•r had no jurisdiction or in which the Court has based its decision on evidence which should not have been admitted, or cas<>s whPre the unsuccessful party has not been given a proper opportunity of bPing heard, or the burden of proof has bc<'n placed on the wrong shoulders. Wherever the court comes to the conclusion that the unsuccessful party has not had a proper trial according to law, then the Cnurt can interfere. But, in my opinion, the Court ought not to interfere merely because it thinks thrtt possibly the ,Judge who heard the case may have arrived at a conclusion which the High Court would not have arrived at.,, This observation has our full concurrence,

What the learned Chief Justice has said applies to s. 35 of the Act, with which we are concerned.

Judgt>d from this point of view, the learned single Juclge was not justified in interfering wit.h a plan finding of fact and more so, because he himself proceeded on a wrong assumption.

The appeal thus surceeds, and is allowed with costs. The order under appeal is set aside, and that of the Additional District Judge restored.

As regards eviction, the respondent has given an undertaking that he would vacate the house on or before April 25, 1962, and this has been accepted by the appellants.

KAPUR J.-I agree that the appeal should be KapurJ. allowed and that the High Court was in error in interfering with the findings of fact, but in my IHI opinion the power of reviaion nPder s. 35( I) of the Hati Shankar Delhi & Ajmer Rent Control Act is not so restricted

v. as was held hy Beaumont, C. J., in Bell & Co. Ltd. Rao GirdhMi Lal

Clwwdlw•:1 v. Wam11n Hemmi('), a C'\Se under s. 25 of tha Kapur J. Provincial Small Cause Courts Act. The section

provides that the order passed shoulrl be in accor-dance with Jaw and if it does not then the High Court can pass such order as it thinks fit. The langu-age used in s. 35(1) of the Act is almost identical with the words of the proviso to s. 75(1) of the Provincial Insolvency Act. The power under that proviso has heen thus commented upon by Mulla in his Law of Insolvency at page 787 of 2nd Edition:

"The power given to the High Court by this proviso is very wide. In the exercise of this power the High Court may set aside any order if it is not 'according to law'."

The power under the Insolvency Act has not, hy the Courts in India, been considered to be no restricted as the observations of Beaumont, C. J. in Rell & Co. Ltd. v. WamanHemraJ(') seem to suggest. in regard I to s. 25 of the Small Cause Courts Act. This power of interference by the High Court is not, in my opinion, restricted to proper trial according to law or error in regard to onus of proof or proper opportunity of being heard. It is very much wider than that. When, in the opinion of the High Court, the decision is erroneous on a question or Jaw whioh e.ffocts the merits of the ca..qe or decision is Tl'anifest-I ly unjust the High Court is entitled to interfere. The error ma.y not necessarily be as to the inter-pretation of a. provision of la.w, it may be in rnuard to evidence on the record. Thus when material evidence on the record is ignored or a finding is such tha.t on the evidence taken a.s a whole no tribunal could, a.s a matter of legitimate inference arrive a.t. rt is neither possible nor desira.ble to enumerate all (I) [1938) 4-0 llom. L. R. 125.

cases which would fall within the jurisdiction of 1961 the High Court under s. 35(1) of the Act but it is not to be narrowly interpreted nor to be so widely Hari Shanlcat v. interpreted as to convert the revision into an appeal Rao Girdhari Uil

facts. Chowdhury OD Appeal Kapur J, allow~.

SATISH CHURAN LAW 1961

!), Decemhtr

H.K.GANGULY

(B. P. SINHA, C.J., J. L. KAPUR, M. HIDAYATULLAH,

l J.C. SHAH and J. R. MuDHOT.KAR, JJ.)

Company Law-Winding uir-Examinntion ~f •x-Direc-tor-Applicatian of Liquidator accompanied by •igned •tate-ment-Ex parte ordtr-Modijication or vacating of-Right to insptct statement filed by Liquidator-Whether statement confidtn-tial-(Jompaniea Act, 1956 (1 of 1956), •· 477-0ompani"

(Oourt) Rules, 1959, "· 243, 244 and 249.

A company was ordered by the High Court of Calcutta to be wound up. The Official Liquidator submitted an appli-cation accompanied by a signed statement for an order that the appellant, an ex-director of the company, be examined concerning the affairs of the company under s. 4 77 Companies Act, 1956, and that he be ordered to produce certain records.

The application was granted ex-parte. The appellant applied for an order vacating or modifying of the order and for supply-ing copies of or facility for inspection of all documents including the signed statement of the Liquidator. The Company Judge rejected the application holding that the ex-parte order wa1 I final and he had no power to review it and that the appellant 11. was not entitled to a copy of or to in•pect the signed statement

of the liquidator. On appeal Court held that the application to modify or vacate the order was maintainable, but in the circumstances of the case the Court held that the order was "desirable and necessary" and that the appellant was not entitled to an inspection of the signed statement of the liquidator.

Held, that the ex-parte order was not final and it was open to the Company Judge to modify or vacate. it on the ground that it had been obtained without placing all the requisite materials before the court or by ·mis-statement of