S.J.S Fernandes v. V. Ranganayakulu Chetty

1. This is an application for review of the order passed by me in C. R. P. No. 85 of 1952, dated 23-1-1952.

2. The short facts are: The petitioner Sri S.J.S. Fernandez is a tenant and the respondent Sri V. Ranganayakulu Chetti is the landlord in regard to premises No. 3 Singanna Naicken Street, G. T. Madras. The landlord filed a petition for eviction of the petitioner on the ground of sub-letting. The Rent Controller found the allegation proved and ordered eviction. The Appellate Court upheld the order. There was a revision petition to the High Court and after hearing the learned advocate for the petitioner, I dismissed the revision petition on the foot that there were no grounds to interfere in revision. This review application has been filed on grounds which have been made to fall under Order 47, Rule 1, Civil P. C.

3. The short point for determination is whether this application for review lies.

4. The Madras Buildings (Lease and Rent Control) Act, 1949, and the rules framed thereunder contain no provision for review and in fact it contained no provision for a revision before that and this Court was holding that no revision lay on account of the fact that the District and Subordinate Judges were appointed under the Act as 'persona designata' and not as courts. It is enough to cite the two decisions, viz., -- 'Abdul Wahid Sahib v. Abdul Khader Sahib', 1947-1 MLJ 207 decided by Yahya Ali J. and similar decision by Mack J. in -- 'Rajam Aiyar v. Pavanammal', 62 MLW Journal p. 36. Yahya Ali J. held that from the language of Section 12 it seemed clear that the District and Subordinate Judges mentioned by the notification functioned as 'persona designata' and not as courts subordinate to the High Court and as such an application for transfer of an appeal before such authority would not be maintainable. -- 'H.A. Aziz v. Kilyoboy', 4 Rang 304 FB and -- 'Kiron Chandra v. Kalidas Chatterjee', AIR 1943 "Cal 247) were referred to with approval. Therefore when the defects of the Act came to be considered on a suggestion made by the High Court itself, this specific provision for revision was made. But as pointed out just now the Act contains no provision for review.

5. Inasmuch as the Act contains no explicit provision for review the petitioner has supported his claim to one with reference to (a) the inherent powers of court and (c) the Code of Civil Procedure.

6. So far as the invocation of the inherent powers of court is concerned, it has been held repeatedly and has now become well settled law that the power to review is not an inherent power of a judicial officer but such a right must be conferred by Statute. This is based upon the common sense principle that prima facie a party who has obtained a decision is entitled to keep it unassailed unless the Legislature has indicated the mode by which it can be set aside. A review is practically the hearing of an appeal by the same officer who decided the case. Therefore, the course of decisions in this country has been to the effect that a right to review is not an inherent power: see --'David Nadar v. Manicka Vachaka Desika Gnana Sambanda Pandara Sannathi', 33 Mad 65; --Lala Prayag Lal v. Jat Narayan Singh', 22 Cal 419; -- 'Baijnath Ram Goenka v. Nand Kumar Singh', 34 Cal 677 and -- 'Anantharaju Shetty v. Appu Hegade', 37 MLJ 162.

7. Therefore we have next to consider whether Order 47, Rule 1, Civil P. C. applies. It is now well settled once again, that it is only when the court, in this case the High Court, which is appealed to or wherein revision is applied for, is one of the ordinary courts of the country with regard to whose procedure, orders, and decrees, in this particular matter, the rules of the Code of Civil Procedure are applicable, then only it would attract Order 47, Rule 1, Civil P. C., because in such a case the ordinary incidents to litigation under the Civil P. C., viz., review would be found available to the party and even that, so long as it is not excluded by specific provisions to the contrary.

So we have got to see whether in the present proceedings where the High Court is reached that court is appealed to as one of the ordinary courts of the country with regard to whose procedure, orders and decrees the rules of the Civil Procedure Code are applicable. The Act itself does not contain any provision regarding the application of the Civil Procedure Code and in fact the provisions of the Act seem to be self-contained in regard to procedure and the Act has gone to the extent of providing for the bringing in of the legal representatives on record and costs, to mention two instances. If really the provisions of the Code of Civil Procedure are applicable 'mutatis mutandis' to the procedure under this Act, these provisions are wholly superfluous. On the other hand, they clearly indicate that the Code of Civil Procedure was not intended to be generally applicable to the proceedings under this Act.

8. This is the view which has been held in a series of decisions of this court. I have already mentioned the decision of Yahya Ali J. and it need not be repeated. In -- 'Devichand Moolchand v. Dhanraj Kantilal', 1948-1 MLJ 276, decided by a Bench of this court, it has been held that the provisions of the Code of Civil Procedure do not apply to the proceedings under Rent Control Act. The desirability of framing Rules making at least some of the important provisions of the Code applicable to the proceedings under the Madras Buildings (Lease and Rent Control) Act was pointed out. On account of the suggestion, when the Act came to be extensively amended rules have been framed for the bringing in of legal representatives on record. The above decision quoted the observations of Sir Frederick Gentle C. J. and Govindarajachari J. in -- 'Abdul Khadir Hadjiar v. A.K. Murthi', 1947-2 MLJ 482. The learned Chief Justice remarked:

"It is, in my view, to be regretted that the provisions of the Code have not been made applicable to proceedings under the Control Act."

Again,

"I have already expressed the view that in the absence of incorporation of the provisions, of the Code of Civil Procedure in the rules of procedure for the tribunals under the Control Act, there is no justification for the application of the principles of those provisions, otherwise it would mean applying those provisions when they are not made applicable."

Similarly the learned Chief Justice and Raghava Rao J. in C. M. P. No. 6144 of 1943 reported in the journal section of '62 MLW page 36' have pointed out that the appellate authority under the Madras Act 15 of 1946 has not got all the ordinary powers of the appellate court of the land.

9. In the face of these clear decisions holding that the provisions of the Code of Civil Procedure do not apply and if the Act itself is a self-contained one there is no point in contending that by reason of Section 141, Civil P. C. the provision for review is attracted. This point, was considered in -- 'Anantharaju Shetty v. Appu Hegade', 37 MLJ 162, referred to above and it was pointed out there that the section only empowers the Judge to regulate judicial trials by rules as to summoning of witnesses etc., which are to be found in the Code and not that the Code is to be applied in its entirety to such proceedings, including power of appeal and of review.

This contention however does not really arise in this case because Section 141, Civil P. C., is indicative of general enunciation of the principle by the Legislature that to all judicial proceedings the Code of Civil Procedure is applicable and I have pointed but how the Judicial Committee of the Privy Council has held that this arises only where the proceedings reach the court appealed to as one of the ordinary courts of the country with regard to whose procedure, orders and decrees the rules of the Code of Civil Procedure are applicable, and which is not the case in so far as this special enactment is concerned as was found to be the case with regard to the Madras Hindu Religious Endowments Act in -- 'Anantharaju Shetty v. Appu Hegade', 37 MLJ 162.

10. Therefore, this application for review does not lie and consequently it is dismissed and in the circumstances without costs.