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PETITIONER: HARI SHANKAR

       Vs.

RESPONDENT: RAO GIRDHARI LAL CHOWDHURY

DATE OF JUDGMENT: 05/12/1961

BENCH: HIDAYATULLAH, M. BENCH: HIDAYATULLAH, M. SINHA, BHUVNESHWAR P.(CJ) KAPUR, J.L. SHAH, J.C.

CITATION:  1963 AIR  698            1962 SCR  Supl. (1) 933  CITATOR INFO :  RF         1964 SC 461  (4)  R          1964 SC1305  (20)  R          1964 SC1317  (15,16)  R          1965 SC 553  (2)  R          1969 SC1344  (8,9)  R          1974 SC1059  (6)  RF         1987 SC1782  (14,15)  R          1988 SC1422  (7)

ACT:      Revision Application-Concurrent  findings  of the  courts  below-No  provision  in  statute  for second appeal-High  court, if  dould re-assess the value of  evidence-Distinction between  appeal and revision-Delhi & Ajmer Reni Contgrol Act, 1952-(38 of 1952), ss. 34, 35 (1).

HEADNOTE:      In an  ejectment suit under the Delhi & Ajmer Rent Control  Act, 1952,  the trial  Judge decreed the suit  and on  appeal under s.34 of the Act the Additional District Judge confirmed 934 the decision. The Act did not provide for a second appeal, and  under s.  35 (1) a revision was filed against the Order of the Additional District Judge The  single   Judge  of   the  Punjab  High  Court following a  previous decision  of the  same  High Court, was  of opinion  that in  assessment as all the evidence  was not  considered it was competent for him  to reconsider  the concurrent findings of the courts below.      The question  is whether  the High  Court  in exercise of  its revisional  powers is entitled to re-assess  the   value  of  the  evidence  and  to substitute its  own conclusions  of facts in place of those reached by the courts below. ^      Held, (per  Sinha, C.  J.,  Hidayatullah  and shah, JJ, that though s. 35 of the Delhi and Ajmer

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Rent Control  Act is  worded in general terms, but it does  not create  a right  to have the case re- heard.      The  distinction   between  an   appeal   and revision is  a real one. A right to appeal carries with it  right of  re-hearing on  law as  well  as fact, unless  the statute  conferring the right to appeal limits  the re-hearing  in  some  way.  The power to  hear a  revision is generally given to a superior court so that it may satisfy, itself that a particular  case decided  according to  law. The phrase "according  to law"  in s.  35 of  the  Act refers to  the decision  as a whole, and is not to be  equated   to  errors   of  law   or  of   fact simplicitor. All  that the  High Court  can see is that these  has been no miscarriage of justice and that the decision is according to law in the sense mentioned.      per Kapur,  J.-The power  under s.  35 (1) of the Act  of interference by the High Court, is not restricted to  a proper  trial according to law or error  in  regard  to  onus  of  proof  or  proper opportunity of  being heard. It is very much wider than that  when in  the question of the High Court the decision  is erroneous  on a  question of  law which affects  the merits  of the case or decision is manifestly unjust the High Court is entitled to interfere.      Bell and  Co. Ltd.  v. Waman Hemraj (1938) 40 Bom. LR. 125 approved.

JUDGMENT:      CIVIL APPELLATE  JURISDICTION:  Civil  Appeal No. 94 of 1959.      Appeal by special leave from the judgment and decree dated May 7, 1957, of the Punjab High Court (Circuit  Bench)   at  Delhi   in  Civil  Revision Application No. 144-D of 1957.      Bishan Narain  R. Mahalingier and B. C. Misra for the appellants. 935      Gurbachan Singh  and Harbans  Singh, for  the respondent.      1961. December  5.  The  Judgment  of  Sinha, C.J., Hidayatullah and Shah, JJ., was delivered by Hidayatullah, J.  Kapur, J.  delivered a  separate judgment.      HIDAYATULLAH,  J.-The   appellants  (in  this appeal by special leave) are the sons of one Gauri Shankar, who  owned a  bungalow known  as 5, Haily Road, New  Delhi. This  bungalow was  given to the respondent by  Gauri Shankar  on a monthly rent of Rs. 234-6-0,  excluding taxes.  The suit,  out  of which this  appeal  arises,  was  brought  by  the appellants against  the respondent,  Rao  Girdhari Lal Chowdhury,  for his  eviction  on  the  ground (among others)  that he  had sub-let  a portion of the bungalow  after the  commencement of the Delhi and Ajmer  Rent Control  Act, 1952 (38 of 1952) to one,  Dr.   Mohani  Jain,  without  obtaining  the consent in writing of the landlord, as required by s. 13(1)(b)(i)  of the  Act. The  defence was that the original  contract of tenancy was entered into

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sometime in  1940 and  a term in the contract gave the tenant right to sub-let. It was alleged that a letter written  by the  tenant which  embodied the terms of  the tenancy was in the possession of the landlord and a demand was made for its production. The case  of the  tenant was  that the sub-tenancy commenced in the year 1951, that is to say, before the passing of the Act of 1952, and the tenant was not required  to obtain the written consent of the landlord to  sublet Admittedly,  in this  case, no written consent  was proved.  We need  not mention the  other   allegations  and  counter-allegations which are  usual in  proceedings between landlords and tenants,  the most  important  of  them  being about the  arrears of rent, which the tenant under permission of  the Court  ultimately deposited  in Court. 936      The issue  on which  the decisions below have differed was framed by the Sub-Judge, First Class, Delhi, in the following terms:           "Did the  plaintiff consent  to the sub-      letting of  parts of  the demised premises by      the defendant  ? If  so,  when  and  to  what      effect."      The trial  Judge  found  that  there  was  no evidence that  the  landlord  was  ever  consulted before a portion of the bungalow was sublet to Dr. Mohani Jain,  and further that the sub-tenancy was created after  June 9, 1952, the date on which the Act  came  into  force.  In  reaching  the  latter conclusion, the  trial Judge made a reference to a dispute between the tenant and Dr. Mohani Jain for fixation of  standard rent before the Rent Control authorities. In those proceedings, Dr. Mohani Jain had alleged  that she  was living  as a sub-tenant from the  end of  1951, but  the tenant had denied this fact. The proceedings before the Rent Control authorities  ended   in  a   compromise,  but  the admission of the tenant was relied upon to support the  conclusion  that  the  sub-tenancy  commenced after the  Act. The  trial Judge decreed the suit. The decision  of the  trial Judge was confirmed on appeal by  the Additional  District Judge,  Delhi. Though Dr.  Mohani Jain gave oral evidence in this case that  her sub-tenancy  commenced in  December 1951,  the   Additional   District   Judge   found categorically  that   the  sub-tenancy   commenced sometime after  the coming  into force of the Act. He held  that even  if Dr.  Mohani Jain was living there even from before it was a guest and not as a sub-tenant.      Against the  order of the Additional District Judge, a revision was filed under s. 35 (1) of the Act. That section reads as follows:           "The High  Court may,  at any time, call      for the record of any case under this Act for      the  purpose  of  satisfying  itself  that  a      decision 937      made therein is according to law and may pass      such order  in relation  thereto as it thinks      fit." Acting in accordance with a decision of the Punjab High Court  as to  the ambit  of this section, the

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learned  single  Judge,  who  heard  the  revision application, thought that it was competent for him to reconsider  the concurrent  findings about  the time when  the sub-tenancy commenced. He held that Dr. Mohani  Jain’s statement  showed that the sub- tenancy commenced prior to the passing of the Act, and that the landlord’s consent in writing was not necessary.  In   reaching  this   conclusion,  the learned Judge was of opinion that all the evidence was not  considered by  the two  Courts below, and that   he   was   entitled,   in   view   of   the interpretation  placed   upon  the  section  above quoted, to  go into  the matter afresh, and decide the question of fact.      It may be pointed out that while the suit was pending   before   the   Subordinate   Judge,   an application was  made for  the production  of  the letter referred to in the written statement of the tenant, to  which a  passing reference has already been made. A letter was produced, and it is Ex. D- 1. That  letter does not disclose all the terms of the tenancy  and it  would appear, therefore, that the terms  of the  original tenancy  have not been proved in  this case,  and there is no material on which it  can be  said either  way as to whether a right to sublet was conferred upon the tenant. The defendant did  not insist  in the  Court of  first instance that  there was  yet another  letter, and the argument  to that  effect in this Court cannot be entertained.      In  reaching  the  conclusion  that  all  the evidence  pertinent   to   the   issue   was   not considered, the  learned Judge  of the  High Court stated that  Ex.P-19, which was the petition filed by Dr.  Mohani Jain  under s.  8 of the Act to get the standard rent fixed was not taken into account by the  Additional District  Judge. That  petition contained an averment 938 that her sub-tenancy commenced on December 1, 1951 with a  rent of  Rs. 100/-per  month, and  that  a cheque for  Rs. 1,800/-  as advance  rent  for  18 months was  given  by  her  in  the  name  of  the daughter  of   the  tenant,   because  the  tenant represented that he had no account in the bank and therefore a  cheque should be given in the name of his  daughter.   This,  the  learned  Judge  felt, adequately supported  the statement  of Dr. Mohani Jain to the same effect as a witness in this case. The learned  Judge was  in error  in thinking that Ex.  P-19  was  not  taken  into  account  by  the Additional District  Judge.  The  latter  had,  in fact, considered  Ex. P-19,  the petition  of  Dr. Mohani Jain,  before the Rent Control authorities. Ex. P-20, the reply of the tenant to that petition and Ex.P-21,  the petition  of compromise;  but he cited Exs.  P-20 and  P-21 only. There is internal evidence to  show that  Ex.  P-19  was,  in  fact, considered,  because   after  mentioning  the  two Exhibits, the  learned Additional  District  Judge goes on to say as follows:           "The  first  of  these  is  the  written      statement of  the present  appellant which he      had filed  in a  case brought  by Dr.  Mohani      Jain against  him for  the fixation  of  fair

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    rent.  There   he   had   completely   denied      somewhere in  the year  1953 that  Dr. Mohani      Jain was  his subtenant and could not sue for      fixation of  rent. This  was enough  to  show      that right  up to the year 1953 the appellant      himself did  not regard  Dr. Mohani Jain as a      sub-tenant." This clearly  shows that  the  learned  Additional District Judge  was weighing  Ex. P-19  as against Ex.  P20   and  was  acting  on  Ex.  P-20,  which contained  a  material  admission  by  the  tenant before the  present dispute had begun. The learned single Judge was, therefore, in error in departing from a  concurrent finding  of  fact  on  a  wrong supposition. 939      But the  question that  arises in this appeal is  one  deeper  than  a  mere  appraisal  of  the evidence. It  is whether  the High  Court  in  the exercise of  its revisional  power is  entitled to re-assess  the   value  of  the  evidence  and  to substitute its own conclusions of fact in place of those reached  by the  Court below.  This question requires an  examination of the powers of revision conferred on  the High  Court by s. 35 of the Act. That question  is one of common occurrence in Acts dealing with  some special  kinds  of  rights  and remedies  to   enforce   them.   Section   35   is undoubtedly worded  in general  terms, but it does not create  right to have the case reheard, as was supposed by  the learned Judge. Section 35 follows s. 34,  where a  right of appeal is conferred; but the second  sub-section of  that section says that no second appeal shall lie.      The  distinction  between  an  appeal  and  a revision is  a real one. A right of appeal carries with it  a right  of rehearing  on law  as well as fact, unless  the statute  conferring the right of appeal limits  the rehearing  in some  way as,  we find, has  been done  is  second  appeals  arising under the  Code of  Civil Procedure.  The power to hear a  revision is  generally given to a superior Court  so  that  it  may  satisfy  itself  that  a particular case has been decided according to law. Under s.  115 of  the Code of Civil Procedure. the High Court’s power are limited to see whether in a case decided,  there has  been  an  assumption  of jurisdiction where  none existed,  or a refusal of jurisdiction where  it  did,  or  there  has  been material  irregularity   or  illegality   in   the exercise of  that jurisdiction. The right there is confined to  jurisdiction and  jurisdiction alone. In other  acts, the  power is  not so limited, and the High  Court is  enabled to call for the record of a  case to  satisfy itself  that  the  decision therein is  according to  law  and  to  pass  such orders in relation to the case, as it thinks fit.      The phrase  "according to  law" refers to the decision as a whole, and is not to be equated to 940 errors of law or of fact simpliciter. It refers to the overall  decision, which  must be according to law  which   it  would  not  be,  if  there  is  a miscarriage of  justice due  to a  mistake of law. The section is thus framed to confer larger powers

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than the power to correct error of jurisdiction to which s.  115 is  limited.  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 to pass such order as 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.      The section  we are  dealing with,  is almost the same  as s.  25 of  the Provincial Small Cause Courts Act.  That section  has been  considered by the High  Courts in  numerous  cases  and  diverse interpretations have  been given.  The powers that it is  said to  confer would make a broad spectrum commencing, at  one end,  with the  view that only substantial errors  of law  can be corrected under it, and  ending, at  the other  with  a  power  of interference a  little better  than what an appeal gives. It  is useless  to discuss  those cases  in some of  which the observations were probably made under compulsion  of certain  unusual facts. It is sufficient to  say that  we consider that the most accurate  exposition   of  the   meaning  of  such sections is  that of  Beaumont, C.J.  (as he  then was) in  Bell & Co. Ltd. v. Waman Hemraj (1) where the learned  Chief Justice,  dealing with s. 25 of the Provincial Small Cause Courts Act, observed:           "The object  of s.  25 is  to enable the      High Court  to see  that there  has  been  no      miscarriage of justice, that the decision was      given according  to law. The section does not      enumerate 941      the cases in which the Court may interfere in      revision, as  does s.115 of the Code of Civil      Procedure, and  I certainly do not propose to      attempt  an   exhaustive  definition  of  the      circumstances   which    may   justify   such      interference;  but  instances  which  readily      occur to  the mind  are cases  in  which  the      Court   which   made   the   order   had   no      jurisdiction or  in which the Court has based      its decision  on evidence  which  should  not      have  been   admitted,  or  cases  where  the      unsuccessful  party  has  not  been  given  a      proper opportunity  of being  heard,  or  the      burden of  proof has been placed on the wrong      shoulders. Wherever  the court  comes to  the      conclusion that  the unsuccessful  party  has      not had a proper trial according to law, then      the Court  can interfere. But, in my opinion,      the  Court  ought  not  to  interfere  merely      because it thinks that possibly the Judge who      heard  the   case  may   have  arrived  at  a      conclusion which  the High  Court  would  not      have arrived at." This observation has our full concurrence.      What  the  learned  Chief  Justice  has  said applies to  s. 35  of the  Act, with  which we are

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concerned. Judged  from this  point of  view,  the learned  single   Judge  was   not  justified   in interfering with  a plan  finding of fact and more so,  because  he  himself  proceeded  on  a  wrong assumption.      The appeal thus succeeds, and is allowed with costs. The  order under  appeal is  set aside, and that of the Additional District Judge restored. As regards eviction,  the  respondent  has  given  an undertaking that  he would  vacate the house on or before April  25, 1962, and this has been accepted by the appellants.      KAPUR J.-I  agree that  the appeal  should be allowed and  that the  High Court  was in error in interfering with the finding of fact, but in my 942 opinion the  power of  revision under  s. 35(1) of the Delhi  & Ajmer  Rent Control  Act  is  not  so restricted as was held by Beaumont, C. J., in Bell & Co.  Ltd. v. Waman Hemraj(1), a case under s. 25 of the  Provincial Small  Cause  Courts  Act.  The section provides  that the  order passed should be in accordance with law and if it does not then the High Court  can pass  such order as it thinks fit. The language used in s. 35(1) of the Act is almost identical with the words of the proviso to s.75(1) of the  Provincial Insolvency Act. The power under that proviso has been thus commented upon by Mulla in his  Law of  Insolvency  at  page  787  of  2nd Edition:           "The power  given to  the High  Court by      this proviso is very wide. In the exercise of      this power  the High  Court may set aside any      order if it is not ‘according to law’." The power under the Insolvency Act has not, by the Courts  in   India,  been   considered  to  be  do restricted as  the observations of Beaumont, C. J. in Bell  & Co.  Ltd. v.  Waman Hemraj(1)  seem  to suggest in  regard to  s. 25  of the  Small  Cause Courts Act. This power of interference by the High Court is  not, in my opinion, restricted to proper trial according  to law or error in regard to onus of proof  or proper opportunity of being heard. It is very much wider than that. When, in the opinion of the  High Court, the decision is erroneous on a question of  law which  affects the  merits of the case or  decision is  manifestly unjust  the  High Court is  entitled to interfere. The error may not necessarily be  as  to  the  interpretation  of  a provision of  law, it may be in regard to evidence on the  record. Thus when material evidence on the record is ignored or a finding is such that on the evidence taken  as a whole no tribunal could, as a matter of  legitimate inference  arrive at.  It is neither possible nor desirable to enumerate all 943 cases which  would fall within the jurisdiction of the High Court under s. 35(1) of the Act but it is not to be narrowly interpreted nor to be so widely interpreted as  to convert  the revision  into  an appeal on facts.                                    Appeal allowed.