1. The revision petitions are directed against the decision of the district judge of kozhikode passed in revision under s. 20 of the kerala buildings (lease and rent control) act (2 of 1965.)

m. K. Kumaran, Who is the common respondent in both the revision petitions, Filed separate petitions for evicting the revision petitioners under s. 11, Sub - sections (2) and (3) of the kerala buildings (lease and rent control) act, 1959. The proceedings were continued under the kerala buildings (lease and rent control) act, 1965 (2 of 1965) in view of s. 34 thereof. S. 11, Sub - sections (2) and (3) of act, 1959 correspond to s. 11, Sub - sections (2) and (3) of act 2 of 1965 and the provisions are identical. The arguments of the counsel were therefore based on the provisions of act 2 of 1965 hereinafter referred to as the act. ' '

2. The respondent is the owner of the building in t. S, No. 14 in ward no. 18 in calicut city. The revision petitioner in crp. 524 of 1968 is the tenant in occupation of the ground floor of the building while the revision petitioner in crp. 526 of 1968 is the tenant occupying the first floor of the building. The grounds on which the respondent sought to evict the revision petitioners are that they committed default in the payment of rent and that he 'bona fide' needs the building for his own occupation.

ex. A - 4 is the sketch produced by the respondent along with the petitions. Ex. A - 17 is the survey plan showing the lie of t. S. No. 14 and the adjacent survey numbers. Ex. C - 1 is the plan and ex. C - 2 is the report filed by the commissioner appointed in the proceedings. Common evidence was adduced in the petitions and they were disposed of by a common judgment.

3. The rent control court ordered eviction of the revision petitioners only on the ground that they have not paid the arrears of rent in respect of the building in pursuance to the demand made by the respondent though the rent control court found that the need mentioned by the respondent for eviction is bona fide it took the view that such a need is not a ground for eviction under s. 11 (3) of the act. The appellate authority who is the subordinate judge of kozhikode also held that the need stated by the respondent in the petitions is bona fide but differing from the rent control court took the view that the particular need is covered by s. 11 (3) of the act. The appellate authority remanded the petitions to the rent control court to decide whether the revision petitioners are entitled to the protection granted by the second proviso to s. 11 (3) of the act. The order of the appellate authority was confirmed in revision by the district judge of kozhikode under s. 20 of the act. The civil revision petitions have been preferred under s. 115, Cpc. Challenging the correctness of the decision of the district judge.

4. Before considering the grounds raised on behalf of the revision petitioners it is necessary to state the need mentioned by the respondent in the petitions for eviction. The respondent is conducting the komalavilas restaurant in this building in "t. S. No. 18. It is admitted that the respondent is not the owner of the said building but only a tenant in occupation. The case of the respondent is that he proposes to construct a lodging house in the property in t. S. Nos. 15 and 16 which lie to the north of t. S no. 18 and north - east of t. S. No. 14. The madras - calicut trunk road lies to the west of t. S. No. 14. Since there is no approach road to t. S. Nos. 15 and 16 from the madras calicut trunk road the respondent prays for the recovery of the building leased to the revision petitioners to provide a direct approach from the trunk road to t. S. Nos. 15 and 16 and to the backyard of the komalavilas restaurant for the convenience of the respondent and his customers. In ex. C2 the commissioner stated thus:

"the municipal lane t. S. No. 20 on the south of the premises marked in the plan (ex. Cl) which is leading to a private lane behind the komalavilas building is too narrow to admit of any passage even for a rickshaw. The width of it at the mouth is about 7 feet, But it is blocked by the municipal water tap marked in the plan also two drains one on either side of it further reduce its space. Further on from the mouth the lane has only a width of about 4 feet. Access by the land is impossible. Therefore the petitioner claims surrender of his building in t. S. No. 14 in which case he can demolish building no. 18/45 and make a passage through it to enter into his other premises, In t. S. 15 which is owned and used by him as a store room and also into t. S. 16 where he has planned to build a lodging house. There is a well in it and also a latrine intended for the use of the inmates."

there is therefore satisfactory evidence to prove the necessity for an approach road to t. S. Nos. 15, 16 and 18 and that it can be provided only through t. S. No. 14 where the building in the possession of the revision petitioners is situate.

5. Three grounds were raised by the learned counsel for the petitioners. (1) the need of the respondent found by the courts below is different from that pleaded by him in the petitions and the finding of the courts below is therefore vitiated. (2) the bona fide need of the respondent found is not a sufficient ground under s. 11 (3) of the act. (3) the petitions for eviction should have been dismissed as there is no termination of the tenancy under s. 106 of the transfer of property act.

6. Ground 1. It has been found by all the authorities under the rent control act that the need mentioned by the respondent is true and also bona fide. The submission of the learned counsel for the petitioners was that in the petitions for eviction the respondent stated that he is proposing to construct a lodging house on the backyard of the komalavilas restaurant in t. S. No. 18 and the approach road through t. S. No. 14 is intended as an access to that building but the courts below without entering any finding on the case pleaded have found on a case not in the pleadings but developed only in the course of the trial even without amending the petitions and the revision petitioners have been prejudiced thereby. In para. 8 of the petition the respondent stated that if the premises in the possession of the petitioners are made available he intends to demolish the structure which will give sufficient open space through which there will be access to the backyard of the komalavilas restaurant. The averment in para. 9 of the petition is that the respondent is planning to extend the business by making provisions for boarding and lodging for which purpose buildings are to be constructed in the backyard where there is sufficient space. In - x. A4 sketch filed by the respondent along with the petitions it is shown that t. S. No. 16 is the site for the lodging house. This shows that the reference in para. 8 and 9 of the petition to the backyard is not to the backyard of the komalavilas restaurant but to the property in t. S. No. 16.

counsel for the revision petitioners pointed out that the respondent acquired the rights over the grounds comprised in t. S. No. 15 and 16 only 4 months before the disposal of the petitions by the rent control court and therefore the respondent could not have pleaded his need about the construction of buildings in t. S. Nos. 15 and 16 in the petitions. This statement also is not correct. There are two buildings in t. S. Nos. 15 and 16 and the occupants thereof obtained the building sites alone on karaima rights. The properties in t. S. Nos. 15 and 16 were purchased by the respondent long prior to the filing of the petitions subject to the karaima right in favour of the occupants of the buildings. P. W. 1 who is the respondent has deposed that he purchased the properties comprised in t. S. Nos. 15 and 16 long before the filing of the petitions and that he purchased the karaima right in respect of the houses in t. S. Nos. 15 and 16 after the filing of the petitions. There is no counter evidence. The evidence of pw. I was accepted by all the courts. I do not therefore find any substance in the plea that the revision petitioners are prejudiced because of want of pleadings.

then it was submitted on behalf of the revision petitioners that the extent of t. S. No. 15 and 16 given by the respondent is wrong and the area is not sufficient for constructing a lodging house. The side measurements of both the survey numbers are given in ex. A 17, And it is seen that there is a mistake in the evidence of pw. 1 regarding the extent of the items. But that alone is not sufficient to discard the respondent's case. It is not possible to hold that a lodging house cannot be constructed in the area available in f. S. Nos. 15 and 16 as disclosed by ex. A 17. There was no attempt made by the revision petitioners before the rent control court to show that the construction of a lodging house in the site is impossible. All the three courts have found that the need mentioned by the respondent is true and bona

fide and for that purpose it is necessary for him to get back the building in t. S. No. 14. I do not find any ground under s. 115, Cpc. To hold that the said finding is vitiated. The first ground raised is therefore overruled.

7. Ground 2. The next ground is whether the need of the respondent found by the courts below will constitute sufficient ground under s. 11 (3) of the act for eviction. A decision on the point depends on the interpretation of s. 11, Sub - section (3) of the act. The said provision reads:

"a landlord may apply to the rent control court for an order directing the tenant to put the landlord in possession of the building if he bonafide needs the building for his own occupation or for the occupation by any member of his family dependent on him: provided that the rent control court shall not give any such direction if the landlord has another building of his own in his possession in the same city, Town or village except where the rent control court is satisfied that for special reasons, In any particular case it will be just and proper to do so:

provided further that the rent control court shall not give any direction to a tenant to put the landlord in possession, If such tenant is depending for his livelihood mainly on the income derived from any trade or business carried on in such building and there is no other suitable building available in the locality for such person to carry on such trade or business:

provided further that no landlord whose right to recover possession arises under an instrument of transfer inter vivos shall be entitled to apply to be put in possession until the expiry of one year from the date of the instrument:

provided further that if a landlord after obtaining an order to be out in possession transfers his rights in respect of the building to another person, The transferee shall not be entitled to be put in possession unless he proves that he bonafide needs the building for his own occupation or for the occupation by any member of his family dependent on him. "

according to the learned counsel for the revision petitioners the need of the respondent in this case is not a need for the building for his own occupation or or for the occupation by any member of his family depending upon him, But to provide a passage through t. S. No. 14 after demolishing the existing structure and in such a case the above provision is not satisfied. The decision of this case is therefore centered round the clause "if he bona fide needs the building for his own occupation" in s. 11 (3) of the act. The effect of accepting the plea of the learned counsel for the revision petitioners will be to hold that the need contemplated by s. 11 (3) of the act should be for the identical building recovered from the tenant. At one stage of the argument the learned counsel appearing for the revision petitioners advanced the extreme contention that if a landlord proposes to use the building in the possession of the tenant for his own occupation after making substantial alteration or after demolishing the existing building and reconstructing the same, Recovery under s. 11 (3) of the act is not possible. But that extreme contention was not persisted in at the final stage of the arguments. It has to be mentioned that it was not contended by the counsel for the petitioners that it is necessary for the landlord after eviction of a tenant under s. 11 (3) of the act to put the building to the same use as the tenant. The learned counsel for the petitioners relied on s. 11 (4) (iv) and 17 of the act to support their contention. In my view, S. 17 has no relevancy at all in construing s. 11 (3) of the act. S. 11 (4) (iv) deals only with recovery of a building by the landlord for reconstruction on the ground that the building is in such a condition that it needs reconstruction and in appropriate cases it is open to the authorities to give directions to put back the tenant in possession of the building after its reconstruction. The recovery in this case is not sought for by the landlord under s. 11 (4) (iv) of the act and therefore it cannot throw any light at all in the interpretation of s. 11 (3) of the act. The contention of the learned counsel for the petitioners on the basis of s. 11 (4) (iv) was that reconstruction of a building is possible only under s. 11 (4) (iv) and in no other cases. I cannot agree and i have no hesitation to overrule the same. In my view, It is necessary to take note of s. 11, Sub - section (17) of the act which reads thus:

"notwithstanding anything contained in this section a tenant who has been in continuous occupation of a building from 1st april 1940 as a tenant, Shall not be liable to be evicted for bonafide occupation of the landlord or of the occupation by any member of his family dependent on him, Provided that a landlord of a residential building shall be entitled to evict such a tenant of that building if the landlord has been living in a place outside the city, Town or village in which the building is situated for a period of not less than five years before he makes an application to the rent control court for being put in possession of the building and requires the building, Bona fide for his own permanent residence or for the permanent residence of any member of his family or the landlord is in dire need of a place for residence and has none of his own."

since the explanation to the above provision is not necessary it has not been reproduced. A comparison of s. 11 (3) and s. 11 (17) of the act will throw considerable light in interpreting the former provision. An order for eviction under s. 11 (17) against a tenant in occupation from the particular date mentioned therein is limited only where the landlord wants the use of the building for residential purposes. The limitations imposed by s. 11 (7) of the act are absent in s. 11 (3) thereof. It is not necessary to attract s. 11 (3) of the act that a building used by the tenant for residential purposes should after recovery under s. 11 (3) of the act be used by the landlord, Only for residential purposes and vice versa. In p. A. Mohammed kannu v. H. A. Asanar kunju (1965) 1 klr. 323 the question arose whether a bona fide need within the meaning of s. 11 (3) of the buildings (lease and rent control) act, 1959 will comprehend a case where the landlord wants to construct a lorry shed in the place of the building used by the tenant for his residence. Mathew, J., In holding that s. 11 (3) of the act will apply to such cases observed at page 325:

"if. The petitioner bona fide needed the building for his own occupation and the finding of the rent control court is that he so needed it, The petitioner was entitled to recover possession of the building notwithstanding the fact that he has to demolish the present building and reconstruct it for the purpose of such occupation. The fact that the building requires reconstruction for the purpose of occupation does not mean that the petitioner, Does not require it for his own occupation. In other words the purpose of the occupation may be such that building may have to be demolished and reconstructed; that does not mean that the landlord's claim is not under s: 11 (3)"

a similar view was taken by their lordships of the supreme court in r. P. Mehta v. /. A. Sheth, Air. 1964 sc. 1676, Interpreting s. 13 (1) (g) and s. 13 (1) (hh) of the bombay rents, Hotel and lodging house rates control act (57 of 1947). The said provisions are as follows:

"13 (1) notwithstanding anything contained in this act but subject to the provisions of s. 15, A landlord shall be entitled to recover possession of any premises if the court is satisfied

(g) that the premises are reasonably and bona fide required by the landlord for occupation by himself or by any person for whose benefit the premises are held or where the land lord is a trustee of a public charitable trust that the premises are required for occupation for the purpose of the trust;or

(hh) that the premises consist of not more than two floors and are reasonably and bonafide required by the landlord for the immediate purpose of demolishing them and such demolition is to be made for the purpose of erecting new building on the premises sought to be demolished. "

the ground mentioned by the landlord in the case which arose under the bombay act was that the landlord wanted to take up residence in the premises leased after demolishing the building and constructing a new one. The contention of the tenant was that in such a situation the case would only be covered by s. 13 (1) (hh) and s. 13 (1) (g) would not apply. In rejecting the tenant's plea their lordships observed:

"the mere fact that he (the landlord) intends to make alterations in the honse either on account of his sweet will or on account of absolute necessity in view of the condition of the house, Does not affect the question of his requiring the house bona fide and reasonably for his occupation, When he has proved his need for occupying the house. There is no such prohibition either in the language of cl. (g) or in any other provision of the act to the effect that the landlord must occupy the house for residence without making any alterations in it. There could not be any logical reason for such a prohibition. Under ordinary law, The landlord is entitled to eject his tenant whenever he likes, After following certain procedure except in cases where he has contracted not to eject him before the happening of a certain event. The act restricts that general right of the landlord in the special circumstances prevailing in regard to the availability of accommodation and the incidental abuse of those circumstances by landlords in demanding unjustifiably high rent s. 13 provides exceptional cases in which the landlord can eject the tenant even though he had been paying rent regularly or be ready and willing to pay rent. The provisions of s. 13 are for the advantage of the landlord and the various grounds for ejectment mentioned in that section are such which reasonably justify the ejectment of the tenant in the exercise of the landlord's general right to eject his tenant. There is therefore no reason why restrictions not mentioned in the grounds be read into them. We do not therefore agree with the contention that cl. (g) will apply only when the landlord bona fide needs to occupy the premises without:making any alteration in them i. E., To occupy the identical building which the tenant occupies. There is no justification to give such a narrow construction either to the word 'premises' or to the word 'occupies' which have been construed by this court in krishnal ishwarlal desai v. Baii vijkor, Civil appeal no. 804 of 1962 d/ - 1811963 referred to later."

a similar interpretation has to be given to s. 11 (3) of the act and it will follow that the bona fide need of the landlord need not be of the identical building as the purpose of the occupation is immaterial. If occupation by a landlord in the reconstructed building after demolishing the existing building is sufficient ground within the meaning of s. 11 (3) of the act the question would arise whether the need to provide a passage through the site on which the original structure stood after its demolition will attract s. 11 (3) of the act. According to the learned counsel for the revision petitioners, S. 11 (3) will not come to the rescue of the landlord in such cases because providing a passage through the site of the structure in the occupation of the tenants even though for the need of the landlord will not be a need for the building for his own occupation within the meaning of s. 11 (3) of the act.

the words 'occupation' and 'building' in s. 11 (3) of the act were stressed before me in support of the revision petitioners.

'occupation' does not necessarily refer to residence. An owner can occupy a place by making use of it in any manner. The fact that the pathway is intended for the customers of the respondent to go to the lodging house and the komalavilas restaurant does not mean that the respondent will not be in occupation of the same. The first proviso to s. 11 (- 3) of the act was relied on to show that the expression 'occupation' has to be given only a restricted meaning. I do not agree. The said proviso only says that if the need of the landlord can be satisfied with any other building in his possession in the same city, Town or village the rent control court shall not give any direction for eviction except where the rent control court is satisfied that for special reasons in any particular case it will be just and proper to do so. There is no inconsistency between the proviso and the main provision. As was pointed out in s. B. K. Oil mills v. Subhash chandra, Air. 1961 sc. 1596 at 1600:

"as a general rule, A proviso is added to an enactment to qualify or create an exception to what is in the enactment, And ordinarily, A proviso is not interpreted as stating a general rule."

it therefore does not help the revision petitioners.

i shall now consider the meaning of the term 'building' in s. 11 (3) of the act. S. 2 (1) of the act defines 'building' thus:

'"building' means any building or but or part of a building or hut, Let or to be let separately for residential or non - residential purposes and includes

(a) the garden, Grounds, Wells, Tanks and structures, If any, Appurtenant to such building, Hut, Or part of such building or hut, And let or to be let along with such building or hut;

(b) any furniture supplied or any fittings affixed by the landlord for use in such building or but or part of a building or hut, But does not include a room in a hotel or boarding house;"

according to black's law dictionary, The term 'building'

"generally though not always, Implies the idea of a habitation for the permanent use of man, Or an erection connected with his permanent use. Rouse v. Catskil & n. Y steamboat co., 13 n. Y. S. 126, 127, 35 n. Y st. Rep. 491; it imports tangibility, Wells fargo & co v. Jersey city, D. C. N. J., 207 f. 871, 876, And may include the land on which it stands, As well as adjacent lard"

.

the definition of the term building under the act is not precise and an exhaustive definition of the term is also not possible. Lord esher said in moir v. Williams (1892) 1 q. B. 264, "an ordinary building is an in closure of brick or stonework covered in by a roof". Their lordships of the judicial committee pointed out in corporation of the city of victoria v. Bishop of vancouver island, (1921) 2 a. C. 384 at 390 that the meaning of the word 'building' "in ordinary language, Comprises not only the fabric of the building, But the land upon which it stands. "

the respondent for the purpose of the pathway is only going to demolish the superstructure or the edifice enclosing the space. The pathway will be enclosed on the sides by the walls and the pathway which was part of the original building will become part of the lodging houses to be constructed by the respondent. Thus it will be a building itself as defined by s. 2 (1) of the act. The conversion of the existing building into a pathway for the use of the respondent is a need covered by s. 11 (3) of the act and the plea of the revision petitioners is therefore without any substance.

8. The next submission of the learned counsel for the petitioners was that the act being one for the benefit of the tenants the interpretation of s. 11 (3) of the act in case of doubt should be in favour of the tenant. As was pointed out in r. P. Mehta v. I. A. Sheth, Air 1964 sc. 1676, The act imposes a restriction on the general fight of the landlord to evict the tenant. When s. 11 (3) allows a landlord to recover the building from the tenant for his bonafide need and when there is nothing in the said provision to restrict the use to which the landlord can put the building after recovery i do not find any principle of law under which a liberal interpretation in favour of the tenant is possible. The decision in attar singh v. Inder kumar, Air. 1967 s. C. 773, Relied on by the revision petitioners to support their contention is regard to the interpretation of s. 11 (3) of the rent control act has no bearing to the facts of this case. It turned on an interpretation of the particular provisions of the bombay act referred to therein. I therefore overrule the second ground.

9. Ground 3. The third ground argued on behalf of the revision petitioners was that there was no valid determination of the lease under s. 105 of the transfer of property act and therefore the petitions are not maintainable. The revision petitioners did not raise the contention based on s. 106 of the transfer of property act either in their objections or before the rent control court or the appellate authority. The revisional authority before whom it was raised overruled the same thus:

"the question as to whether the tenancy was terminated by the issue of such a notice and if such a notice was issued whether it was a proper one are mixed questions of fact and law. This ground had not been taken by the revision petitioners at any previous stage. It has not even been taken in the revision petitions. Hence it is not right to allow the revision petitioners at this stage to contend that the petitions for eviction are incompetent on the ground of want of notice to quit under s. 106 of the transferor property act."

in view of the decisions of their lordship of the supreme court in abbasbhai v. Gulamnabi (air. 1964 s. C. 1341), Mangilal v. Sugan chand (air. 1965 s. C. 101) and manujendra v. Purnedu (air 1967 s. C. 1419) a termination of the lease is necessary before the filing of a petition for eviction. The respondent produced along with the petitions the copies of the notices dated 5101959 issued by his counsel to the revision petitioners for surrender of the building along with acknowledgment receipts of the revision petitioners. P. W. I also swears to the issue of notices demanding surrender of the building to the revision petitioners. There is no denial of the receipt of the notices by the revision petitioners. Exs. A2 and a3 are the copies of the notices issued to the revision petitioners. Their counsel contend that the notices do not satisfy the requirements of s. 106 of the transfer of property act. The revision petitioner never contested the "adequacy of the notices issued. The district judge is therefore right in refusing to entertain the plea raised before him for the first time, I therefore overrule the third ground also.

10. It was argued for the respondent that even if the view taken by the district judge on the interpretation of s. 11 (3) of the act and on the plea based on s. 106 of the transfer of property act is erroneous that will not afford sufficient ground for interference in revision under s. 115 of the civil procedure code. It is unnecessary to discuss all the decisions placed before me in regard to the scope and ambit of interference by this court under the said provision as the question is concluded by the decisions of the supreme court. In m. L. & b. Corporation v. Bhutnath (air. 1964 sc. 1336) it was held:

"it is not open to the high court to question the findings of fact recorded by a subordinate court in the exercise of its revisional jurisdiction under s. 115 of the code which, It is well - settled, Applies to cases involving questions of jurisdiction, I. E., Questions regarding the irregular exercise or non - exercise of jurisdiction or the illegal assumption of jurisdiction by a court and is not directed against conclusion of law or fact in which questions of jurisdiction are not involved:"

in abbasbhai v. Gulamnabi (air. 1964 sc. 1341), The district judge refused the prayer of the landlord for eviction on the ground that the tenant has complied with the provisions of s. 12 (3) (b) of the bombay rents, Hotel, And lodging house rates control act (57 of 1947) and that he had otherwise proved his readiness and willingness to pay the amount of standard rent and permitted increases. The high court of gujarat under s. 115 c. P. C. Reversed the decision of the district judge holding that the finding of the district judge was the result of an erroneous interpretation of s. 12 (3) (b) of the act. In setting aside the decision of the high court on the ground that the interference was not justified by s. 115c. P. C., Their lordships of the supreme court observed:

"the high court may exercise its powers in revision only if it appears that in a case decided by a subordinate court in which no appeal lies thereto the subordinate court has exercised a jurisdiction not vested in it by law or has failed to exercise a jurisdiction so vested or has acted in the exercise of its jurisdiction illegally or with material irregularity. X x x

s. 12 (1) does not affect the jurisdiction of the court to entertain and decide a suit in ejectment against a tenant. It merely confers a protection upon a tenant if certain conditions are fulfilled, And cls, (2), (3) (a), (3) (b) and the explanation deal with certain specific cases in which readiness and willingness to pay standard rent, May either be presumed or regarded as proved. The decision of the district court that the tenant established or failed to establish his readiness and willingness to pay the standard rent does not affect the jurisdiction of the court conferred by law upon it, And by wrongly deciding that a tenant is or is not entitled to protection, The court does not assume to itself jurisdiction which is not vested in it by law or refuses to exercise a jurisdiction which is vested in it by law. Nor does the court by arriving at an erroneous conclusion on the plea of the tenant as to his readiness and willingness act illegally or with material irregularity in the exercise of its jurisdiction. "

the decision in ratilal v. Ranchhodhbai (air. 1966 sc. 439) also arose out of a suit instituted by the landlord against the tenant for recovery of the premises under the bombay rents, Hotel and lodging house rates control act, 1947, On the ground that the tenant did not pay the arrears of rent or vacate the premises. Though the trial court refused a decree for recovery of possession, The appellate judge on a construction of s. 12 of the act held that the case fell within s. 12 (1) of the act read with the explanation thereto and not under either clause (a) or clause (b) of sub - section (3) of s. 12 and decreed the claim of the landlord for recovery of possession. The revision petition filed under s. 115 cpc., Was summarily rejected by the high court of gujarat. The complaint before the supreme court was that the view taken by the appellate judge was opposed to the decision of the supreme court. Though their lordships upheld this contention, It was held that the decision of the high court was correct as no grounds were made out for interference under s. 115 cpc. Their lordships observed:

"mr. Peerzada, Who appears for the appellant, Relying upon the decision of this court in jashwantrai malukckand v. Anandilal bapalal c. A. No. 539 of 1963. D/ 7121964: (air. 1965 sc. 1419), Contended that the view taken by the principal judge is not in accord with what this court has taken in the aforesaid case. Prima facie the decision of this court supports the contention of the appellant; but even so, We are constrained to hold that the high court was not, In the exercise of its jurisdiction under s. 115, Code of civil procedure which was invoked by the appellant, Competent to interfere and that the limitations placed upon the powers of the high court under that section would also circumscribe the power of this court to interfere under art. 136 of the constitution. No doubt, By an erroneous construction of the relevant provisions the principal judge of the city civil court granted relief of possession to the respondent to which he would not have been entiled had the provision been rightly construed. Even so, As observed by this court in abbasbhai v. Gulamnabi, Air. 1964 sc. 1341 at p. 1346. An erroneous construction placed upon the relevant provision would not furnish, A ground for interference under s. 115 of the code"

. The learned counsel for the revision petitioners relied on the decision of the constitution bench of the supreme court in pandurang v. Maruti (air.

1966 sc. 153). Gajendragadkar, C. J., Speaking for the court observed thus:

"the provisions of s. 115 of the code have been examined by judicial decisions on several occasions. While exercising its jurisdiction under s. 115, It is not competent to the high court to correct errors of fact, However, Gross they may be, Or even errors of law, Unless the said errors have relation to the jurisdiction of the court to try the dispute itself as cls. (a), (b) and (c) of s. 115 indicate, It is only in cases where the subordinate court has exercised a jurisdiction not vested in it by law, Or has failed to exercise a jurisdiction so vested, Or has acted in the exercise of its jurisdiction illegally or with material irregularity that the revisional jurisdiction of the high court can be properly invoked. It is conceivable that points of law may arise in proceedings instituted before subordinate courts which are related to questions of jurisdiction. It is well settled that a - plea of limitation or a plea of resjudicata is a plea of law which concerns the jurisdiction of the court which tries the proceedings. A finding on these pleas in favour of the party raising them would oust the jurisdiction of the court, And so, An erroneous decision on these pleas can be said to be concerned with questions of jurisdiction which fall within the purview of s. 115 of the code. But an erroneous decision on a question of law reached by the subordinate court which has no relation to questions of jurisdiction of that court, Cannot be corrected by the high court under s. 115."

in my view the above observations do not in any way assist the revision petitioners. It may be that by an erroneous decision on a question of limitation or res judicata, A court exercises or refuses to exercise a jurisdiction vested in it by law. This is because of s. 3 of the limitation act or s. 11 of the civil procedure code. As was pointed out in balakrishna v. Vasudeva ayyar (air. 1917 pc. 71) :

". The section (s. 115 cpc.) applies to jurisdiction alone, The irregular exercise, Or non - exercise of it, Or the illegal assumption of it. The section is not directed against conclusions of law or fact in which the question of jurisdiction is not involved."

sir john beaumont, In dealing with the scope of interference under s. 115 cpc. Observed in joy chand v. Kamalaksha (air. 1949 pc. 239) :

"there have been a very large number of decisions of indian high courts on s. 115, To many of which their lordships have referred. Some of such decisions prompt the observation that high courts have not always appreciated that although error in a decision of a subordinate court does not by itself involve that the subordinate court has acted illegally or with material irregularity so as to justify interference in revision under sub - s. (c), Nevertheless, If the erroneous decision results in the subordinate court exercising a jurisdiction not vested in it by law, Or failing to exercise a jurisdiction so vested, Case for revision arises under sub - s. (a) or sub - s. (b), And sub - s. (c) can be ignored."

a distinction was therefore drawn between cases where by a wrong decision a court assumes jurisdiction not vested or refuses to exercise jurisdiction vested in it and cases where in exercise of the jurisdiction vested the court arrives at wrong conclusions of law or fact. In dealing with the above remarks of the privy council their lordships of the supreme court observed in t. M. L. & b. Corporation v. Bhutnath: (air. 1964 sc. 1336) :

"these remarks are not applicable to the facts of the present case. They apply to cases in which the law definitely ousts the jurisdiction of the court to try a certain dispute between the parties and not to cases in which there is no such ouster of jurisdiction under the provisions of any law, But where it is left to the court itself to determine certain matters as a result of which determination the court has to pass a certain order and may, If necessary proceed to decide the dispute between the parties. The distinction between the two classes of cases is this. In one, The court decides a question of law pertaining to jurisdiction. By a wrong decision it clutches at jurisdiction or refuses to exercise jurisdiction. In the other, It decides a question within its jurisdiction. In the present case, The question whether there was a sufficient cause was exclusively within the jurisdiction of the court and the court could decide it rightly or wrongly."

the decision of the district judge about the applicability of s. 11 (3) of the act is a decision on a question within its jurisdiction and not on a question pertaining to the exercise of jurisdiction to try a petition for eviction. A decision on the applicability of s. 11 (3) has therefore no relation to the question of jurisdiction contemplated by s. 115 of the cpc.

in my view the decision ratilal v. Ranchhodbhai (air. 1966 sc. 439) governs the case and no ground is made out for the exercise of jurisdiction under s. 115 cpc.

in the result the revision petitions are devoid of merit and they are dismissed with costs.