Bharat Steel Tubes Ltd. vs Ram Piari Sethi
1988 Latest Caselaw 323 Del

JUDGMENT

P.K. Bahri, J.

(1) This review application has been moved against the judgment dated 1/6/1984, of M.L. Jain, J. (as His Lordship then was) by which he had dismissed the civil revision filed under Section 25-B(8) of the Delhi Rent Control Act (for short 'the Act') against the eviction order passed by the Additional Rent Controller, Shri Brajesh Kumar, on 13/10/1980, on the ground of bonafide requirement for residence covered by Clause (e) of Sub-section (1) of Section 14 of the Act.

(2) I have heard the arguments in detail in order to first decide whether the review petition should be admitted for hearing or not. M.L. Jain, J. had retired in July 1984 and this review petition was moved after His Lordship's retirement. Many grounds were mentioned in the review petition but at the stage of arguments Mr. Kapil Sibal, Senior Advocate, who appeared for the petitioner, confined his arguments only on one point i.e. that the court has committed an error apparent on the face of the record in not giving any categorical decision on the legal question arising in the case as to whether the respondent-landlady, who had only right to have the maintenance from the income of the house in question, could be deemed to be an owner contemplated in Clause (e) of Sub-section (1) of Section 14 of the Act. I may mention that a preliminary objection was raised on behalf of the respondent that the High Court had no power of review in respect of the orders made under Section 25-B(8) of the Act However, that preliminary objection was overruled by J.D. Jain, J. (as His Lordship then was) vide order dated 3/1/1986. It was held by His Lordship that it was established law that where ordinary courts are seized of a dispute in respect of 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 an express provision in the concerned Act conferring the power of review. It was further held that such a power will inhere in High Court when it is seized of a matter under a special enactment, it being a court of record and plenary jurisdiction, but such power ought to be exercised on the grounds analogous to the grounds mentioned in order XIVII Rule 1 of the Code of Civil Procedure. The short question which arises for decision is whether there has occurred any mistake or error apparent on the face of the record while passing the judgment dated June 1,1984.

(3) One of the pie-requisites for succeeding on the ground of bonafide requirement for residence as mentioned in Clause (e) is that the landlord seeking eviction on such a ground of bonafide requirement for residence must allege and prove that he or she is the owner of the demised premises. The facts of this case show that the respondent landlady had acquired this plot vide sale deed, a copy of which is Ex. AW/1 dated 14/5/1957 and had raised a construction over the said plot but later on some disputes allegedly arising between her and her sons, an arbitrator was appointed who gave the award, copy of which is EX. AE/I dated 25/5/1968, which was made a rule of the Court By virtue of this award the respondent-landlady was given the right to have possession of the property till her death and she was debarred from alienating the property in any manner to anyone. The award also provided that out of the rental income the respondent-landlady was to get Rs. 750.00 per mensem on account of her maintenance. Two Receivers were also named for the same in accordance with the terms of the award. During pendency of the eviction case, a declaratory decree was also obtained showing that the respondent is the co-owner of the property although it was also made clear in that declaratory decree that respondent-landlady had only a life interest in the property. The declaratory decree only tried to interpret the previous award. It is quite clear that unless and until it was to be held that the respondent-landlady is the owner of the property in question she could not succeed on the ground of bonafide requirement for residence. It is to be mentioned here that the existence of relationship of landlord tenant between respondent and the petitioner was not disputed in the pleadings. While dealing with this subject of ownership at page 11 of the judgment it was mentioned that the very first question that arises is whether Mrs. Sethi is the owner of the premises. The reference is made to certain judgments which define the word 'owner' as the person having absolute dominion over a thing. Then reference is made to three judgments reported as T.C. Rekhi v. Smt. Usha Gujral, , Inder Singh v. Dr. Nanak Chand, 1969 Rcr 79 and Kanwal Kishore Chopra v. O.P. Diwedi, 1977 (2) Rcj 320, which lay down the law that it is not necessary that the landlord should be an absolute owner in order to be covered by the word 'owner' appearing in Section 13(1)(e) of the Act. Those cases were of the landlords holding leasehold rights in the properties. Then reference is made to M.M. Quasim v. Manohar Lal, , and it was observed as follows : "THE landlord has only to show that he is one who has a right to exclude everyone holding a title lesser than his own."

Then, the judgment refers to the factum of the sale deed being in favor of the respondent and then the court mentioned about the petitioner being estopped from challenging the respondents title in the property and then the Court gave a finding that the award cannot be challenged except by taking resort to provisions of Sections 30, 32 & 33 of the Arbitration Act and at page 17, after noticing all these facts the judgment also then refers to another aspect of the case and takes into consideration the provisions of Section 14 of the Hindu Succession Act and a finding has been given that she had a preexisting right of maintenance in the estate in question and thus, she could be deemed to be full owner under Section 14(1) of the Hindu Succession Act. Reading the judgment as it is, it cannot be said that no finding has been given by the Court that whether the respondent holding life interest in the property in question is or in not the owner, rather the Court has kept in view the contents of the award while giving the finding that she is the co-owner of the property in question and is covered by the word 'owner' given in Section 14(1)(e) of the Act. This court is not to examine the judgment as an appellate court. Once, it is to be held that a finding has been given on the disputed question raised in the case, the question of review does not arise because there does not appear any apparent mistake or error on the face of record which requires to be remedied by resort to the power of review. It could be that if this Court was to examine the issues afresh, this Court may be persuaded to have a different view on the disputed question of law arising in this case but on that score this Court cannot exercise the power of review. In Aribam Tuleshwar Sharma v. Aribam Pishak Sharma & Others, , it has been categorically laid down by the highest Court that the power of review cannot be exercised on the ground that a decision was erroneous on merits because that would be the province of a Court of appeal.

(4) Counsel for the petitioner has vehemently argued that the learned Judge had not taken into consideration the full impact of the judgment of the Supreme Court in the case of M.M. Quasim (supra) and thus, the court apparently committed a mistake of law which requires to be remedied by exercising the power of review. He has drawn my attention to the following observations appearing in that judgment. "BY restricting the meaning of expression landlord for the purpose of Section 11(1)(c),the legislature manifested its intention namely the landlord alone can seek eviction on the ground of his personal requirement if he is one who has a right against the whole world to occupy the building himself and exclude any one holding a title lesser than his own. Such landlord who is an owner and who would have a right to occupy the building in his own right, can seek possession for his own use."

Counsel for the petitioner his argued that if above complete observations of the Supreme Court have been kept in view, the Court may not have come to the finding that the respondent could be deemed to be owner/co-owner of the premises in question. I am afraid that this is not the correct way to look at the things. The Judge had made reference to the said judgment and particularly to para 14 in which all these observations of the Supreme Court appeared and thereafter, had given a finding that the respondent can be treated as a co owner for purposes of Section 14(1)(e) of the Act. So, it cannot be said that there exists any apparent mistake or error committed by the Court in giving the said finding.

(5) Reference was made to The Nalagrah Dehati Co-operative Transport Society Limited v. Beli Ram etc., Air 1981 Himachal Pradesh ', which lays down that failure of the court to take into consideration an existing decision of the Supreme Court taking a different or contrary view on a point covered by its judgment would amount to a mistake or error apparent on the face of the record. There is no dispute about this proposition of law. However, in the present case, there is no judgment of the Supreme Court on this aspect of the case whether a landlord holding only a life interest in the property can or cannot be deemed to be owner for the purposes of Section 1 of the Act. Counsel for the petitioner also cited Y. Venkamachowdary v. The Special Deputy Co Hector, Land Acquisition (General) & Others, , in which it was laid down that if an important provision of law is not brought to the notice of the court during the hearing of a case by mistake of a counsel then it can be said that there had occurred an error apparent on the face of record which could be remedied by taking resort to the power of review. Such is not the case here. So this judgment is of no help to the petitioner in having the judgment in question reviewed by this Court. In Gujarat University etc v. Miss Sonal P. Shah & Others, , a Full Bench of that Court held that the powers of review ought to be exercised by the High Court to correct grave and palpable errors (the epithet "palpable" means that which can be felt by a simple couch of the order and not which could be dug out after a long drawn out process of argumentation and ratiocination).

(6) It is not necessary to refer to the other contentions raised on behalf of the learned counsel for the respondent in opposing the review petition because this review petition is liable to be dismissed in liming on the short ground that there appears to be no apparent mistake or error on the face of record on the point urged by the learned counsel for the petitioner in support of review petition. I dismiss the review petition in liming.