Kanchana Devi v. Sh. Arun Kumar

eviction petition was filed on the ground that the tenant had not paid rent with effect from 1.9.2000 and the premises were required bona fide for rebuilding, which could not be carried out without the same being vacated by the tenant. Learned Rent Controller allowed the petition preferred by the landlord and ordered the eviction of the tenant by holding the tenant in arrears of rent and also that the premises were bona fide required by the landlord for rebuilding which could not be carried out without vacating the same by the tenant. Tenant preferred an appeal before the Appellate Authority. The Appellate Authority dismissed the same on 31.5.2011. Thereafter, Civil Revision No. 128/2011 3 was filed before this Court. The Civil Revision was dismissed by this Court on 2.12.2011.

3. Mr. Rajnish Maniktala has vehemently argued that the landlord has failed to prove that the building was in a dilapidated condition. He then argued that the landlord was not in possession of sufficient for the purpose of rebuilding. He lastly contended that an amendment has been carried in the Himachal Pradesh Urban Rent Control Act, 1987 whereby after clause ‘c’ of sub-section 3 of section 14 the following provision has been added: “Provided that the tenant evicted under this clause shall have the right to re-entry on new terms of tenancy, on the basis of mutual agreement between the landlord and the tenant, to the premises in the rebuilt building equivalent in area to the original premises for which he was a tenant.”

4. Mr. Atul Jhingan has strenuously argued that this court has become functus officio after passing of the judgment. In other words, his submission is that the Court has no power to review the judgment dated

2.12.2011. He further argued that there is no error apparent on the face of the record and the review petition is liable to be dismissed.

5. I have heard the learned counsel for the parties and have perused the pleadings carefully. 4

6. Revision had been preferred by the tenant under sub-section (5) of section 24 of the Himachal Pradesh Urban Rent Control Act, 1987. There is no separate procedure contemplated in the Act or the Rules to be adopted by the High Court and this Court being a court of record; it has to decide the revision petition by following the Code of Civil Procedure.

7. Their Lordships of the Hon’ble Supreme Court in M.M. Thomas versus State of Kerala and another, (2000) 1 SCC 666 have held that as a court of record High Court is unquestionably superior court of plenary jurisdiction and is competent to determine scope of its jurisdiction and thus it has not only power but also duty to correct any error apparent on face of record. Their Lordships have further held that as a court of record power of review is inherent in the High Court. Their Lordships have held as under: “14. The High Court as a Court of Record, as envisaged in Article 215 of the Constitution, must have inherent powers to correct the records. A Court of Record envelopes all such powers whose acts and proceedings are to be enrolled in a perpetual, memorial and testimony. A Court of Record is undoubtedly a superior court which is itself competent to determine the scope of its jurisdiction. The High Court, as a Court of Record, has a duty to itself to keep all its records correctly and in accordance with law. Hence, if any apparent error is noticed by the High Court in respect of any orders passed by it the High Court has not only power, but a duty to 5 correct it. The High Court’s power in that regard is plenary. In Naresh Shridhar Mirajkar & Ors. v. State of Maharashtra & Anr, [1966] 3 SCR 744= AIR (1967) SC 1 a nine Judge Bench of this Court has recognised the aforesaid superior statue of the High Court as a court of plenary jurisdiction being a Court of Record.

15. In Halsbury’s Laws of England, 4th Edn. Vol.10, para 713 it is stated thus: "The chief distinctions between superior and inferior courts are found in connection with jurisdiction, Prima facie, no matter is deemed to be beyond the jurisdiction of a superior court unless it is expressly shown to be so, while nothing is within the jurisdiction of an inferior court unless it is expressly shown on the face of the proceedings that the particular matter is within the cognizance of the particular court. An objection to the jurisdiction of one of the superior courts of general jurisdiction must show what other court has jurisdiction, so as to make it clear that the exercise by the superior court of its general jurisdiction is unnecessary. The High Court, for example, is a court of universal jurisdiction and super-intendency in certain classes of actions, and cannot be deprived of its ascendency by showing that some other court could have entertained the particular action." (Though the above reference is to English Courts the principle would squarely apply to the superior courts in India also.)

16. Referring to the said passage and relying on the decision of this Court in Naresh Shridhar Mirajkar (supra) a two Judge Bench of this Court in MF. Elisabeth and Ors, v. Harwan Investment & Trading Pvt. Ltd., [1993] Supple. 2 SCC 433 = AIR (1993) SC 1014 has observed thus: The High Courts in India are superior courts of record. They have original and appellate jurisdiction. They have inherent and plenary powers. Unless expressly or impliedly barred, and subject to the appellate or discretionary jurisdiction of the Supreme Court, the High Courts have unlimited jurisdiction."

17. If such power of correcting its own record is denied to the High Court, when it notices the apparent errors its consequence is that the superior status of the High Court will dwindle down, Therefore, it is only proper to think that 6 the plenary powers of the High Court would include the power of review relating to errors apparent on the face of record.”

8. Learned Single Judge of Andhra Pradesh High Court in Naresh Thaper versus Narayana Rao Patalay (died) by L.Rs. and others, 2003 (2) R.C.R. (Rent) 681 after applying the ratio of M.M. Thomas case (supra) has held that the High Court has inherent power to review its order under the A.P. Buildings (Lease, Rent and Eviction) Control Act, 1960, being Court of record. Learned Single Judge has held as under: “7. In re maintainability of the review petition, it is no doubt true a Division Bench of this Court in Gantasala Eswar Rao case (supra) held that a petition seeking review of an order passed in a revision filed under the provisions of the Act is not maintainable, but since the Supreme Court in M.M. Thomas case (supra) in para 15 of its judgment, after referring to Halsbury's Laws of England, held that as superior Court, the High Court has inherent power to review its order, and since that decision is binding on me, I hold that the High Court exercising its power of revision under the provisions of the Act, would have the power to review its order. I hasten to add that this power of review is not available to the primary and appellate authority under the provisions of the Act since the Act did not confer such power on them. So, I hold that the review petition is maintainable.”

9. Learned Single Judge of Madras High Court in T.N. Krishnamoorthy versus M/s Jagat Textiles, Madurai Town, 1982 (1) R.C.J. 121 has held that the High Court is also competent to hear a review of its 7 order passed in a revision petition as the Code provides for such a review. Learned Single Judge has held as under: “27. But when a revision is to be filed under Section 25 of the Act, it is not to a notified ' person or officer or authority' who or which is to exercise the revision powder but, it is 'the High Court' which entertains the revision petitions. When the High Court has been conferred with powers to entertain the revision under section 25 of the Act, as held in Thirupathi Nagar v. Kandaswami Nadar, when a Court is invested with powers to adopt the procedure applicable to it, there is necessity for invoking the Code of Civil Procedure. No procedure having been contemplated in the Rules, to be adopted by the High Court and when the High Court is a Court of record the necessary implication is that the Court will have to decide the revision petition by following the Civil Procedure Code. In the decision, it has been hitherto held that the High Court is a persona designata' under the Act or that when the matter is further taken up to the highest Court of the land, it would function as a 'persona designata' under the Act. As for those decisions wherein it was held that section 115 of the Code of Civil Procedure cannot be invoked they are all cases which arose under 1949 Act, wherein a similar provision as a section 25 of the Act, had not been incorporated. No provision for a revision to High Court was provided for in that Act. When revisions were sought to be filed against orders passed by 'persona designata', they were rightly repelled.

28. Mr. Somayajulu has no doubt referred to section 18 of the Act, wherein it is stated that an order passed under section 25 executed by the Controller has to be treated as an order of a civil court, and for that purpose the Controller shall have all the powers of a civil court, and therefore it the power if exercised under Section 25 as that of a civil Court, there is no need to mention in section 18 that such an order is to be treated as an order of a civil Court. But for this solitary objection, he has no been able to point out any other section in the Act or any rule framed thereunder, wherein there is prohibition against the High 8 Court adopting the code of Civil Procedure while disposing of the revision petition under Section 25 of the Act. In section passed by 'persona designata' there was the need to state that while executing such orders, it has to be treated as if they are orders of a civil Court. Orders passed under Section 25 of the Act will have to be executed only by the Controller, who is a notified person, but who is to function with all the of a civil Court while executing orders. It is in this context, section 25 is clubbed with other sections which pertain to order passed by a hierarchy of forums, to construe all of them alike relating to powers to be exercised by him. Hence as contended be Mr. Somayajulu, section 18 of the Act, cannot be construed as to indicate that the order passed under Section 25 not an order of Court and is equatable to orders passed by Controllers and Appellate Authorities. Section 18 of the Act cannot therefore be taken as a basis for holding that in disposing of revision petitions, under section 25 of the Act, the High Court is not to adopt the Code of Civil Procedure. If the Act or Rules framed thereunder prescribes as procedure to be followed which is different from the procedure which is adopted by the Court, then this contention of Mr. Somayajalu, could have some force.

29. At this juncture, it will be relevant to note that under section 34 of the Act, Government by notification, can make rules, Section 34(2)(b) enables Rules to be made regarding 'the procedure to be followed by Controllers and Appellate Authorities in the performance of their functions'. Clauses 9c), (d) and (e) to said sub-section, deal with issue of notices, setting aside ex-parte orders; and bringing on record legal representatives in respect of proceedings taken under the Act; and clause (f) enables framing of Rules regarding procedure to be followed in taking possession of the building, and finally clause (g) prescribes the fee leviable of Applications and Appeals under the Act.

30. The Rules framed deal only regarding the procedure to be followed by the Controllers and Appellate Authorities, and on the other aspect covered by clauses (c) to (g) of section 34(2) of the Act. When the Legislature has enabled the Government to prescribe Rules only for Controllers and Appellate Authorities as to the procedure to 9 be followed by them, it is clear that regarding the procedure to be followed by the High Court while entertaining a revision under section 25 of the Act, it has to adopt the procedure which it follows in respect of proceedings instituted before it. Being fully aware of the applicability of the civil Procedure Code in the High Court, it has refrained from any other procedure being formulated for disposal of revisions by it. The intendment of the Legislature being quite clear, the provisions of the Code of Civil Procedure would be applicable.

31. Further it is indisputable that the High Court being a Court of Record, and in all its proceedings, it follows a prescribed procedure the necessary implication is that the provisions of the Code of Civil Procedure alone would apply. It is precisely in this view in Thirupathi Nadar v. Kandasami the passage in Telephone Company v. Postmaster-General, was relied upon which is to the effect: “Where by statute matters are referred to the determination of a Court of record with no further provision, the necessarily implication is, I thank that the Court will determine the matter as a Court. Its jurisdiction is enlarged but all the incidents of such jurisdiction including the right of appeal from its decisions remain the same.”

33. The power of revision conferred under section 25 of the Act is on “the High Court” and while entertaining the revision it exercises the power of a Court created under the Constitution. It is a 'persona designata'. When power is conferred on a Court, and no other special procedure is prescribed for disposal of matters under a particular statute as held in P.N. Thakershi v. Pradyu Mansinghji by such conferment of power, there is necessary implication that the Code of Civil Procedure would apply and in turn the power of review would be available to this Court.

34. Therefore the procedure to be followed in disposing of revision under section 25 of the Act, being governed by the provisions of the Code of Civil Procedure, the power of review having been conferred therein expressly this review petition is maintainable.” 10

10. Accordingly, in view of the ratio of judgments cited hereinabove, it is held that the High Court has jurisdiction to review its own judgments passed under sub-section (5) of section 24 of the Himachal Pradesh Urban Rent Control Act, 1987.

11. The judgment has been pronounced by this Court on 2.12.2011. The amendment has come into force thereafter. The amendment carried in the Act would not be applicable to the proceedings, which have attained finality. Amendment carried out, as noticed above, would not apply retrospectively.

12. Their Lordships of the Hon’ble Supreme Court in K. Kapen Chako versus The Provident Investment Company (P) Ltd. (1977) 1 SCC 593 have held that it is a well recognized rule that statute should be interpreted if possible so as to respect vested rights. Their Lordships have held as under: “37. A statute has to be looked into for the general scope and purview of the statute and at the remedy sought to be applied. In that connection the former state of the law is to be considered and also the legislative changes contemplated by the statute. Words not requiring retrospective operation so as to effect an existing statutory provision prejudicially ought not be so construed. It is a well recognised rule that statute should be interpreted if possible so as to respect vested rights. Where the effect would be to alter a transaction already entered into, where it would be to make that valid which was previously invalid, to make an instrument which 11 had no effect at all, and from which the party was at liberty to depart as long as he pleased, binding, the prima facie construction of the Act is that it is not to be retrospective. See Gardner v. Lucas.(1)

38. In Moon v. Durden(2) a question arose as to whether section 18 of the Gaming Act 1845 which came into effect in August 1845 was retrospective so as to defeat an action which had been commenced in June, 1845. The relevant section provided that no suit shall be brought or maintained for recovering any such sum of money alleged to have been won upon a wager. It was held that it was not retrospective. Parke B said: "It seems a strong thing to hold that the legislature could have meant that a party who under a contract made prior to the Act had as perfect a title to recover a sum of money as he had to any of his personal property, should be totally deprived of it without compensation".

13. Their Lordships of the Hon’ble Supreme Court in a recent judgment in N.K. Bajpai versus Union of India and another, (2012) 4 SCC 653 have held that rule of retrospective construction is not applicable merely because a part of the requisites for its action is drawn from a time antecedent to passing of the relevant law. Their Lordships have held as under: “64. Earlier, the nature of law, as substantive or procedural, was taken as one of the determinative factors for judging the retrospective operation of a statute. However, with the development of law, this distinction has become finer and of less significance. Justice G.P. Singh, in his Principles of Statutory Interpretation (12th Edition, 2010) has stated that the classification of a statute, as either a substantive or procedural law, does not necessarily determine whether it may have retrospective operation. For example, a statute of limitation is generally regarded as procedural, but its application to a past cause of action has the effect of reviving 12 or extinguishing a right to sue. Such an operation cannot be said to be procedural. It has also been noted that the rule of retrospective construction is not applicable merely because a part of the requisites for its action is drawn from a time antecedent to the -passing of the relevant law. For these reasons, the rule against retrospectivity has also been stated, in recent years, to avoid the classification of statutes into substantive and procedural and the usage of words like ‘existing’ or ‘vested’.

65. Referring to a judgment of the Australian High Court in the case of Maxwell v. Murphy [(1957) 96 CLR 261], it is recorded as follows : “One such formulation by Dixon C.J. is as follows : ‘The general rule of the common law is that a statute changing the law ought not, unless the intention appears with reasonable certainty, to be understood as applying to facts or events that have already occurred in such a way as to confer or impose or otherwise affect rights or liabilities which the law had defined by reference to the past events. But given rights and liabilities fixed by reference to the past facts, matters or events, the law appointing or regulating the manner in which they are to be enforced or their enjoyment is to be secured by judicial remedy is not within the application of such a presumption’.”

66. In such matters, in judiciously examining the question of retrospectivity or otherwise, the relevant considerations include the circumstances in which legislation was created and the test of fairness. The principles of statutory interpretation have expanded. With development of law, it is desirable that the Courts should - apply the latest tools of interpretation to arrive at a more meaningful and definite conclusion.”

14. Landlord has conclusively proved that the building was old and out lived its utility. It was not necessary for the landlord, as per the settled law, to prove that the building has become dilapidated. Landlord wanted to raise a modern building after 13 demolishing the old building. It has come in the evidence that building plan has already been approved and the landlord was in possession of sufficient funds as per statement of AW-3 Bhagwan Singh, Assistant Manager, State Bank of Patiala. According to him, landlord was having ` 3,70,000/- in his account. AW-5 Kuldeep Kumar, Assistant Post Master, Kangra has proved on record saving account of the landlord Ex.PW- 5/A. According to him, landlord was having ` 7.5 lakhs in his accounts.

14. Accordingly, in view of the observations and discussions made hereinabove, there is no error apparent on the face of the record and thus the review petition is dismissed. Pending application(s), if any, also stands disposed of. No costs. (Justice Rajiv Sharma), Judge

9.8. 2012. *awasthi*