Bharat Steel Tubes Limited vs Ram Piari Setm
1986 Latest Caselaw 5 Del

JUDGMENT

J.D. Jain, J.

(1) This order of mine disposes of an objection of preliminary nature raised by counsel for the respondent to the A maintainability of this review petition under Order XIvii Rule 1 etc. of the Code of Civil Procedure (hereinafter referred to as 'the Code').

(2) The facts germane to the decision of the question raised by the learned counsel for the respondent in brief are that . B eviction of the petitioner-tenant from the demised premises viz. the first floor of property No. 16, Friends Colony. New Delhi, by the respondent-landlady on the ground of bonafide requirement for herself and members of her family falling under clause (e) of the proviso to Section 14(1) of the Delhi Rent Control Act (for short 'the Act') read with Section 25B thereof. The eviction petition was contested by the petitioner but eventually an order of eviction was made by an Additional Rent Controller on 13th October 1980 and the petitioner was directed to surrender vacant possession of .the premises in question within six months thereof. Feeling aggrieved, the petitioner invoked revisional jurisdiction of this Court as enshrined in Section 25B(8) of the Act for setting aside the order of eviction, It was heard and dismissed by M. L. Jam, J. vide order dated 1st June 1984. This review petition has been made by the petitioner against the said order on the ground that it suffers from errors of law and fact apparent on the face of the record.

(3) The submission made by Mr. Madan Bhatia, the learned counsel for the respondent, at the outset is that this Court has no power to review its own order passed in exercise of revisional jurisdiction which is a special jurisdiction conferred by the Act itself) in the absence of any statutory power to that effect. He has canvassed with considerable fervour that power to review is not an inherent power and it must be conferred by law either specifically or by necessary implication. In other words, there is no inherent power of review in any authority whether acting judicially or quasi-judicially and that power is required to be conferred specifically under the statute. Hence the Court cannot review its judgment unless the statute provides' a remedy by way of review except in very special circumstances, e.g. where it passed an order inadvertently or where the order suffered from any clerical error or accidental commission.

(4) Reliance is placed by the learned counsel the respondent on para 556 of Halsbury's Laws of England, 4th Edition, Volume 26, which bears the caption "Amendment after entry of judgment or order". Deep Chand & another v. Additional Director, Consolidation of holdings, Punjab. Jullundur & another, 1964 Plr 318(FB)(1), Patel Narshi Thakreshi & others v. Pradhumansinghji Arjunsinghji, , P. L. Morada, Major (Retired), v. S. D. Bakshi, 1973 Rent Control Journal 692(3), D. N. Roy & S. K. Banerje & others v. State of Bihar & Orissa, and State, of Assam & another v. J..N. Roy Biswas, and Ram Kumar v. Harish Kumar, 1968 Dlt 74(6). The contention raised concisely and precisely is that the High Court derives its power of revision by virtue of Section 25B(8) of the Act which is a self-contained enactment and as such it would not be permissible to enlarge the scope and ambit of the powers of the High Court on general principles of law when it is specifically circumscribed by the statute itself. In other word's. the legislature would have conferred the power of review also, had it so wanted and omission thereof in the Act is deliberate and significant. Section 25B(8) reads asunder : "No appeal or second appeal shall lie against an order for the recovery of possession of any premises made by the Controller in accordance with the procedure specified in this section : Provided that the High Court may, for the purpose of satisfying itself that an order made by the Controller under this section is according to law, call for the records of the case anil pass such order in respect thereto as it thinks fit."

(5) Undoubtedly the right of revision has been conferred on the High Court by the aforesaid provision. It may be pertinent to notice here that by virtue of Section 38 of the Act an appeal lies from every order of the Controller made under A the Act, to the Rent Control Tribunal. Further, under subsection (3) thereof the Tribunal has all the powers vested in a Court under the Code of Civil Procedure, 1908, when hearing an appeal. However, there is no such-specific provision corresponding to sub-section (3) as regards the revisional power of the High Court under Section 25B(8). In other words, the Act does not in itself lay down or prescribe any procedure for hearing of revision petitions under sub-section (8) of Section 25-B. The reason for this omission seems to be quite apparent, namely., that the power under sub-section (8) may be exercised by the High Court even suo motu in order to satisfy itself that the order made by the Controller under Section 25-B is according to law. The ambit of the revisional power is obviously wider than that under Section 115 of the Code because it is not restricted to jurisdictional efforts alone. The phrase "according to law" in this connection has been construed as meaning that the High Court has power to interfere if the order of the Controller is without jurisdiction, contrary to law or the express provisions of the Act or where he has arrived at findings which are wholly perverse or contrary to evidence or based on no evidence or where some procedural irregularity has been committed resulting in miscarriage of justice. (See V. L. Kashyap v. R. P. Puri, 2nd (1977) 1 Delhi 22(7), S. Narain Singh &Another v. Janardan Yashwant Mavlankar, 1983(1) Rcj (SN) 326(8) and Hari Shankar & others v. Rao Girdhari .Lal Chowdhury, Air 1963 Sc 698(9). In the last mentioned case the Supreme Court while construing the ambit and scope of Section 35 of the Delhi and Ajmer Rent Control Act cautioned that : ; "But it must not be overlooked that the section-in spite of its apparent width of language where it confers a power on 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 there is to be no further appeal."

(6) Notwithstanding the legal position that the scope and ambit of hearing in revision under sub-section (8) of Section 25B is not so wide and comprehensive as to amount to a re-hearing of the case as in an appeal and the fact that no procedure has been prescribed by the Act with regard to exercise of its revisional power by the High Court, the question would still remain whether the High Court being a Court of record and for that matter of plenary jurisdiction will have power of review or not. The answer to this question in my view may be found in Shivdeo Singh & others v. State of Punjab & others, Air 1963 Sc 1909(10), in which it was observed by their Lordships of the Supreme Court that : "It is sufficient to say that there is nothing in Article 226 of the Constitution to preclude a High Court from exercising the power of plenary which inheres in every court of plenary jurisdiction to prevent miscarriage of justice or to correct grave " .... and palpable errors committed. by it."

(7) That was a case of writ petition under Article 226 of the Constitution of India and one of the contentions raised, was that Article 226 of the Constitution did not confer any power on the High Court to review its own order and, therefore, the order made by the High Court on review was without jurisdiction. Obviously the said contention did not find favor with their Lordships. It may be noticed that Section 141 of the Code of Civil Procedure, as it then stood, simply stated that the procedure provided in the Code in regard to suits shall be followed as far as it can be made applicable, in all proceedings in any Court of civil jurisdiction. It was only subsequently that the present explanation which states that the expression "proceedings does not include any proceeding under Article 226 of the Constitution was inserted by Section 47 of the Amendment Act of 1976.' So, the question arose whether the expression "proceedings" included writ petitions etc. or not. Judicial A opinion on the point was divided but I need not advert to the same because all that is relevant for the purposes of the case on hand is the ratio of the judgment in Shivdeo Singh & others (supra), namely, that a High Court being a Court of record and a Court of plenary jurisdiction has inherent power B to review its own order to prevent miscarriage of justice or to correct grave and palpable errors committed by it. It may be pertinent to notice that despite the clarification made in the explanation to Section 141 that the expression "proceedings" does not include any proceeding under Article 226 of the Constitution, the Bombay and Gujarat High Courts have, following the Supreme Court authority in Shivdeo Singh & others (supra) and Aribain Tuleshwar Sharma v. Aribarn Pishak Sharma & others, , reiterated the existence of inherent powers, of the High Court to review its earlier D decision in a writ petition under Article 226 of the Constitution [See J. G. Sinkar & others v. State of Maharashtra & others, , State of Gujarat v. Consumer Education; Research Centre & others, and Gujarat University, Ahmedabad etc. v.E Miss Sonal P. Shah & others, Significantly in none of the cases adverted to by the learned counsel for the respondent the High Court or any other Court of ordinary civil jurisdiction was called upon to review its decision and the decisions sought to be reviewed were of the State Government or other administrative quasi-judicial tribunals.

(8) The narrow question which then falls for determination is whether the power to review in the instant case will not inhere in the High Court merely because the order in question has been made in exercise oi its revisional power under sub-section (3) of Section 25B. The submission of Mr. L. R. Gupta, the learned counsel for the petitioner is that the rule is well settled that when a statute directs that an appeal shall lie to a Court already established, then that appeal must be regulated by the practice and procedure of that Court. Reliance in this context 1-1 has been placed by him on various reported decisions of the Privy Council and the Supreme Court, viz. R. M. A. R. A. Adaikappa Chettiar & another v. R. Chandrasekhara Thevar , National Sewing Thread Co. Ltd. v. James Chadwick and Bros. Ltd., , Collector, Varanasi v. Gauri Shanker Misra & others, and J. Nandanlal Javantaraj v. V. Narayanaswamy, .

(9) In National Sewing Thread Co. Ltd. (supra), the question arose whether a Letters Patent Appeal would lie to the Division Bench of Bombay High Court against the decision given by a Single Judge of the said High Court in an appeal preferred under Section 76, Trade Marks Act, 1940. The Supreme Court held that : "Ordinarily after an appeal reaches the High Court, it has to be determind according to the rules of practice and procedure of that Court and in accordance with the provisions of the Charter under which that Court is constituted and which confers on it power in respect to the method and manner of exercising that jurisdiction. Thus, Section 76, Trade Marks Act, confers a right of appeal to the High Court and says nothing more about it. That being so, the High Court being seized as such of the appellate jurisdiction conferred by Section 76 it has to exercise that jurisdiction in the same manner as it exercises its other appellate jurisdiction and when such jurisdiction is exercised by a single Judge, his judgment becomes subject to appeal under Clause 15 of the Letters Patent, there being nothing to the contrary in the Trade Marks Act." In the course of the judgment, their Lordships observed : "The rights created by the Trade Marks Act are civil rights for the protection of persons carrying on trade under marks which have acquired reputation. The statute creates the Registrar a tribunal for safeguarding these rights and for giving effect to the rights created by the Act, and the High Court as such without more has been given appellate jurisdiction over the decisions of this tribunal. The High Court while exercising this appellate jurisdiction has not to exercise it in a manner different from its other appellate jurisdiction. It is merely an addition of a new subject-matter of appeal to the appellate jurisdiction already exercised by the High Court." Reference in this context was made by their Lordships to the following observations of the Judicial Committee in R.M.A.R.A. Adaikappa Chettiar & another (supra) : 'The true rule is that where a legal right is in dispute and the ordinary Courts of the country are seized of such dispute the Courts are governed by the. ordinary rules of procedure applicable thereto and an appeal lies, if authorised by such rules, notwithstanding that the legal right claimed arises under a special statute which does not in terms confer a right of appeal."

(10) In Collector Varanasi (supra) the question arose whether it was within the competence of the Supreme Court to grant special leave under Article 136 of the Constitution of India against the decision of the High Court in appeal under Section 19(l)(f) of the defense of India Act which provided for an appeal to the High Court against the award of the arbitrator. Neither the defense of India Act nor the Rules framed there under prescribed any special procedure for the disposal of appeals under Section 19(l)(t). The Supreme Court held that obviously after the appeal had reached the High Court it had to be determined according to the rules of practice and procedure of that Court. Their Lordships quoted with approval the following statement of law by Viscount Haldane, L. C. in National Telephone Company Limited (in Liquidation) & Another v. His Majesty's Postmaster-General, (1913) Ac 546(19) : "When a question is stated to be referred to an established Court without more, it, in my opinion, imports that the ordinary incidents of the procedure of that Court are to attach, and also that any general right of appeal from its decisions like wise attaches."

The Supreme Court pointed out in this context that the appeal provided in Section 19(1)(f)of the said Act was an appeal to the High Court and not to any Judge of the High Court.

(11) Lastly, J. Nandanial Javantaraj (supra) was a case under Kamataka Rent Control Act and the question was whether the High Court had power of review in respect of an order made by it in a revision petition under Section 50 of the Kamataka Rent Control Act. Adverting to the cases of National Sewing Thread Co. Ltd. and R.M.A.R.A. Adaikappa Chettiar ft another (supra), a learned Single Judge of Karnataka High Court over-ruled the objection. Hunce, it would appear to be well established law that where ordinary courts are .seized of a dispute in respect of a legal right or liability under a special enactment they must be regarded as having power to adjudicate such disputes according to the ordinary rules of practice and procedure which would include the power to review their judgment and orders, even in the absence of a express provision in the concerned Act conferring the power of review. A fortiori such a power will inhere in the High Court when it is seized of a matter under a special enactment, it being a court of record and plenary jurisdiction. However, the inherent powers, though ex facie plenary, are not to be treated as unlimited or unabridged but they are to be invoked on the grounds analogous to the grounds mentioned in Order XIvii Rule 1 of the Code.

(12) The upshot of the whole discussions, therefore, 's that I do not and any merit in the preliminary objection raised by the learned counsel for the respondent to the maintainability of this application for review. It is accordingly overruled. The review application be now set for further preliminary hearing on 7-2-86.