19 January 1954
Supreme Court
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WARYAM SINGH AND ANOTHER Vs AMARNATH AND ANOTHER.

Bench: MAHAJAN, MEHAR CHAND (CJ),MUKHERJEA, B.K.,DAS, SUDHI RANJAN,BOSE, VIVIAN,HASAN, GHULAM
Case number: Appeal (civil) 64 of 1953


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PETITIONER: WARYAM SINGH AND ANOTHER

       Vs.

RESPONDENT: AMARNATH AND ANOTHER.

DATE OF JUDGMENT: 19/01/1954

BENCH: DAS, SUDHI RANJAN BENCH: DAS, SUDHI RANJAN MAHAJAN, MEHAR CHAND (CJ) MUKHERJEA, B.K. BOSE, VIVIAN HASAN, GHULAM

CITATION:  1954 AIR  215            1954 SCR  565  CITATOR INFO :  R          1955 SC 233  (20)  R          1958 SC 321  (6)  R          1958 SC 398  (30)  F          1965 SC1994  (18)  F          1972 SC1598  (12)  R          1975 SC1297  (7)  R          1978 SC  45  (5)  RF         1979 SC   1  (11)  RF         1986 SC1272  (102)  F          1987 SC 117  (17)

ACT:  Constitution of India, arts. 227 and 241-High  Court-Whether  conferred    power    of    judicial    superintendence-Rent  Controllerand  District Judge-Whether Tribunals  within  the  meaning  of art. 227-East Punjab Urban Rent Restriction  Act  (III  of 1949 as extended to Himachal Pradesh, s.  13(2)(i),  Proviso  Non-payment of arrears of rent on first hearing  of  application for ejectment-Legal effect thereof.

HEADNOTE: The  Court of the Judicial Commissioner of Himachal  Pradesh exercises  jurisdiction  in  relation to the  whole  of  the territories of Himachal Pradesh. The Rent Controller and the District Judge exercising juris. diction  under the East Punjab Rent  Restriction  Act,,1949, are certainly tribunals it not courts within the meaning  of art.  227 of the Constitution and they function  within  the territories of 566 Himachal Pradesh.  Therefore art. 227(1) read with art.  241 confers  on the Court of the Judicial Commissioner power  of superintendence over such tribunals. The words "in relation to which" in art. 227(1) qualify  the word "territories" and not the words "courts and tribunals".    There is no force in the contention that cl. (2) of art. 227   only   confers  on  the  High   Court   administrative superintendence  over the subordinate courts  and  tribunals because  cl. (2) of the article is expressed to  be  without

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prejudice to the generality of the provisions in cl. (1).    The  power  of  superintendence conferred  by  art.  227 should  be exercised most sparingly and only in  appropriate cases  in  order to keep the subordinate courts  within  the bounds  of  their  authority and  not  for  correcting  mere errors.   In view of the admitted failure by the tenants to pay the rent as provided by the rent deed or at the first hearing of the court under the proviso to s. 13(2)(1) the lower  courts had  acted  arbitrarily  in refusing to make  an  order  for ejectment  against  the tenants who had not  done  what  was incumbent on them to do under the law and thereby refused to exercise  jurisdiction  vested in them by law and it  was  a case which called for interference by the Court of  Judicial Commissioner and it acted quite properly in doing so. Moti  Lal  v. The State through Shrimati  Sagrawati  (I.L.R. [1952] 1 All. 558 at p. 567) and Dalmia Jain Airways Ltd. v. Sukumar Mukherjee (A.I.R. 1951 Cal. 193) referred to.

JUDGMENT: CiviL APPELLATE JURISDICTION: Civil Appeal No. 64 of 1953.         Appeal  by  special  leave  from  the  Judgment  and Decree,  dated the 29th November, 1951, of the Court of  the Judicial Commissioner for Himachal Pradesh at Simla in Civil Revision No. 52 of 1951. Gopal Singh for the appellants. S.   C.   Isaacs  (Amar  Nath  Chona,  with  him)  for   the respondents. 1954.  January 19.  The Judgment of the Court was  delivered by DAS J.-This is an appeal by special leave against the  order made   on   the  20th  November,  1951,  by   the   Judicial Commissioner  of Himachal Pradesh in proceedings  instituted by  the  respondents  under  articles 226  and  227  of  the Constitution of India.      There is no substantial dispute as to the facts leading up to the present appeal.  The ’appellants 567 were  tenants  of a certain shop premises situate  in  Solan Bazar in the district of Mahasu in Himachal Pradesh.  On the llth  October, 1947, they had executed a rent deed by  which they  agreed to pay an annual rent of Rs. 175 payable as  to Rs.  50 on the last of Baisakh and as to the balance of  Rs. 125  in the month of October, in default of which  payment,% the respondents, as landlords, would be entitled to  recover the  whole  of the said rent in one lump sum.   The  tenancy created by the rent deed was only for one year in the  first instance  but  it provided that if the  tenants  desired  to continue in occupation they must execute a further rent deed before  the  expiration of the said  term.   The  appellants never  executed  any  further rent deed but  held  over  and continued in occupation of the demised premises.     The  appellants fell into arrears with the  payments  of rents  due for the years 1948 and 1949 and  the  respondents made applications to the Rent Controller for eviction of the appellants under section 13 (2) (i) of the East Punjab Urban Rent Restriction Act, 1949, as extended to Himachal Pradesh. The  appellants, however, paid up the arrears of  rent  into court  and claimed the benefit of the proviso to section  13 (2)  (i).  The claim was allowed and the  said  applications were dismissed accordingly on the 18th December, 1950.       The  appellants again fell into arrears with the  pay- ment  of rent due for the year 1950.  On the 26th  December,

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1950,  the respondents served on the appellants a  notice  c alling  upon  the  latter  to pay whole  of  the  said  rent forthwith   but  the  appellants  failed  to  do   so.   The respondents  thereupon, on the 2nd January, 1951,  filed  an application under section 13 (2) (i) for the eviction of the appellants on the ground of nonpayment of rent.     Thereafter,  on the 10th January, 1951,  the  appellants made an application to the Rent Controller for the  fixation of a fair rent under section 4 of the said Act.     On  the 25th January, 1951, the appellants  filed  their written statements in the proceedings under section 13 568 (2)  (i) admitting the nonpayment of rent and the receipt of the notice but pleaded (i) that the respondents’ application was  barred  by  reason of the  rejection  of  the  previous applications  for eviction made by the respondents and  (ii) that  the  present application could not be  entertained  in view of the pendency of their application for fixation of  a fair rent under section 4 of the said Act. On  the 20th February, 1951, the Rent Controller framed  the following issues:- (1)  Whether   the   application   in   question   was   not entertainable in view of the judgment of the District Judge, dated the 18th December, 1950 Onus on defendants. (2)  If  issue No. I is not proved, had the  opposite  party (tenants) not paid the rent and as such were they liable  to be ejected?  Onus on plaintiffs. (3)  Have the opposite party already filed an application in the  said  court  for the fixation of  rent  and  are  they, therefore, not liable for ejectment pending the decision  on the  application  and  what  is  its  effect  on  the   said application?  Onus on defendants.          By his judgment, dated the 29th May, 1951, the Rent Controller held that as the previous applications related to non-payment of rents for the years 1948 and 1949 the present application  which  was founded on non-payment of  rent  for 1950  was not barred under section 14 of the said  Act  but, although the fact of rent being in arrears was admitted, the Rent Controller did not think fit to make an order directing the  appellants to put the respondents in possession of  the demised  premises.   The  reasons  given  by  him  were   as follows:- " Regarding the non-payment of the rent when the plea of the tenant  is only that he is waiting for the fixation of  fair rent  by the Rent Controller there is not enough ground  for ejectment.  A civil suit for the recovery of the rent  would have been a more appropriate method of obtaining that  rent. I therefore dismiss the suit.’ The parties should bear their own 569 The respondents preferred an appeal to the District Judge of Mahasu  under  section  15 of the  said  Act.   The  learned District Judge dismissed the appeal observing-  "On behalf of the landlord it was urged that under  section 13 (2) of the Punjab Urban Rent Restriction Act, as  applied to  Himachal  Pradesh,  the Controller, if it  came  to  the finding  that rent had not been paid, had no option  but  to direct  the  tenant  to  put  the  landlord  in  possession. Undoubtedly, that is the correct legal position, but in  the present   case  the  non-payment  of  rent  was  due  to   a misapprehension of the legal position created by the  tenant filing  an application for fixing fair rent.  1,  therefore, think that this case can be distinguished and does not  fall within section 13 (2), Punjab Urban Rent Restriction Act."  The  respondents moved the Judicial Commissioner,  Himachal

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Pradesh,  under articles 226 and 227 of the Constitution  of India  for  setting aside the order of the  District  Judge. The  learned Judicial Commissioner held that in view of  the admitted  failure  to pay the rent as provided by  the  rent deed or at the first hearing of the court under the  proviso to section 13 (2) (i) the courts below had acted arbitrarily in  refusing  to  make an order for  ejectment  against  the tenants  who had not done what was incumbent on them  to  do under  the law and that such a situation called  for  inter- ference  by the court of the Judicial Commissioner in  order to  keep the subordinate courts within the bounds  of  their authority.   He  accordingly  set aside the  orders  of  the courts  below and allowed the application for ejectment  but gave  the  appelants  three months’ time  for  vacating  the premises.  The appellants have now come up before this court on appeal by special leave obtained from this court. Learned  advocate appearing in support of this appeal  urges that the learned Judicial Commissioner acted wholly  without jurisdiction  inasmuch  as (1) the Rent  Controller  or  the District Judge exercising powers 570 under  the Act was not amenable to the jurisdiction  of  the High  Court and, therefore, article 227 confers no power  on the  court  of  the  Judicial  Commissioner  over  the  Rent Controller  or the District Judge, and (2) that article  227 read   with  article  241  confers  no  power  of   judicial superintendence on the court of the Judicial Commissioner. Re.  l.-The court of the Judicial Commissioner  of  Himachal Pradesh  exercises jurisdiction in relation to the whole  of the  territories of Himachal Pradesh.  The  Rent  Controller and the District Judge exercising jurisdiction under the Act are  certainly tribunals, if not courts, and  they  function within  the  territories of  Himachal  Pradesh.   Therefore, article  297 (1) read with article 241 confers on the  court of  the Judicial Commissioner power of superintendence  over such  tribunals.   The  words  "  in  relation  to  which  " obviously qualify the word " territories " and not the words "courts and tribunals". Re.  2.The  material  part  of  article  227   substantially reproduces  the provisions of section 107 of the  Government of India Act, 1915, except that the power of superintendence has  been extended by the article also to  tribunals.   That the  Rent  Controller  and  the  District  Judge  exercising jurisdiction under the Act are tribunals cannot and has  not been  controverted.  The only question raised is as  to  the nature  of  the power of superintendence  conferred  by  the article.  Reference is made to clause (2) of the article  in support of the contention that this article only confers  on the  High  Court  administrative  superintendence  over  the subordinate  courts and tribunals.  We are unable to  accept this  contention  because clause ( 2) is,  expressed  to  be without  prejudice  to the.generality of the  provisions  in clause (1).  Further, the preponderance of judicial  opinion in India was that section 107 which was similar in terms  to section  15  of the High Courts Act, 1861, gave a  power  of judicial  superintendence to the High Court apart  from  and independently  of  the provisions of other  laws  conferring revisional   jurisdiction  on  the  High  Court.   In   this connection it has to 571 be  remembered that section 107 of the Government  of  India Act,  1915, was reproduced in the Government of  India  Act, 1935, as section 224.  Section 224 of the 1935 Act, however, introduced  sub-section (2), which was new,  providing  that nothing  in  the section should be construed as  giving  the

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High Court any jurisdiction to,question any judgment of  any inferior court which was not otherwise subject to appeal  or revision.  The idea presumably was to nullify the effect  of the  decisions  of  the different High  Courts  referred  to above.  Section 224 of the 1935 Act has been reproduced with certain  modifications in article 227 of  the  Constitution. It  is significant to note that sub-section (2)  to  section 224,  of  the 1935 Act has been omitted  from  article  227. This  significant  omission has been regarded  by  all  High Courts  in  India before whom this question  has  arisen  As having  restored  to the High Court the  power  of  judicial superintendence  it had under section 15 of the High  Courts Act, 186 1, and section 107 of the Government of India  Act, 1915.   See the cases referred to in -Moti Lal v. The  State through  Shrimati Sagrawati(1).  Our attention has not  been drawn  to any case which has taken a different view and,  as at  present  advised, we see no reason to take  a  different view. This  power of superintendence conferred by article 227  is, as pointed out by Harries C. J., in Dalmia Jain Airways Ltd. v. Sukumar Mukherjee(2), to be exercised most sparingly  and only  in appropriate cases in order to keep the  Subordinate Courts  within  the bounds of their authority  and  not  for correcting  mere  errors.   As rightly pointed  out  by  the Judicial Commissioner in the case before us the lower courts in   refusing   to  make  an  order  for   ejectment   acted arbitrarily.   The lower courts realised the legal  position but in effect declined to do what was by section 13 (2)  (i) incumbent  on  them to do and thereby  refused  to  exercise jurisdiction  vested in them by law.  It. was, therefore,  a case  which called for an interference by the court  of  the Judicial Commissioner and it acted (1)  I.L.R. [1952] 1 All. 558 at p. 567, (2)  A.I.R. 1951 Cal. 193. 75 572 quite  properly  in doing so.  In our opinion  there  is  no ground on which in an appeal by special leave under  article 136 we should interfere.  The appeal, therefore, must  stand dismissed with costs.                      Appeal dismissed. Agent  for  the  appellants: M. M.  Sinha.   Agent  for  the respondent: K. L. Mehta.