Punjab-Haryana High Court
Krishan Lal Bareja vs Mukesh Talwar on 15 September, 2010
Author: Alok Singh
Bench: Alok Singh
C.R. No. 193 of 2010(O&M) 1
IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
C.R. No. 193 of 2010(O&M)
Date of Decision: 15.09.2010
Krishan Lal Bareja
.... Petitioner
Versus
Mukesh Talwar
... Respondent
CORAM: HON'BLE MR. JUSTICE ALOK SINGH
Present : Mr. S.K.S. Bedi, Advocate
for the applicant
Mr. R.S. Malik, Advocate
for the petitioner
1. Whether Reporters of local papers may be allowed to see the judgment? Yes
2. To be referred to the Reporters or not? Yes
3. Whether the judgment should be reported in the Digest? Yes
ALOK SINGH, J.
1. Applicant (third party) is seeking review/recall of the order dated 13.1.2010 passed by Hon'ble S.D. Anand J., as the lordship then was, thereby dismissing the revision filed by the revisionist as withdrawn having observed:-
"In order to allay the apprehension in the mind of the learned counsel for the petitioner it is ordered that future rent shall be deposited into the Court and the petitioner shall be entitled to disbursement thereof only after obtaining a certification from a competent court about his entitled to draw it as legal representative of deceased Ram Dass."
2. The brief facts of the present case are that Krishan Lal C.R. No. 193 of 2010(O&M) 2 preferred an eviction petition under Section 13 of the Haryana Urban (Control of Rent and Eviction) Act for eviction of tenant-revisionist from the demised shop on the ground of arrears of rent. Before the Rent Controller an application was moved by the revisionist to direct the respondent-tenant to tender rent @ Rs. 890/- per month saying shop was taken on rent from Sh. Ram Dass father of revisionist in the year 1986 @ Rs. 425/- per month excluding house tax and electricity charges; it was agreed that respondent shall increase the rent @ 10% after every three years; in this way the present rent of the shop in dispute is Rs. 890/- per month; father of the revisionist had disowned Narain Dass from his property, hence, respondent be directed to tender rent in the Court. In reply to the application moved by the revisionist, tenant has asserted that in the rent deed dated 19.7.1986 provision was made that after the death of Ram Dass, original landlord, Narain Dass one of the son of Ram Dass would recover the rent; Narain Dass has been recovering the rent from the tenant after the death of Ram Dass; tenant has paid entire rent till 31.8.2009 to Sh. Narain Dass and has obtained receipt from Narain Dass. It is further asserted that revisionist Krishan Lal and other legal heirs of Ram Dass have been collecting rent of different properties.
3. Learned Rent Controller vide order dated 5.10.2009 assessed the rent at the rate of Rs. 600/- per month excluding house tax. However, it is observed by learned Rent Controller that in the present case petitioner has not pleaded for which period rent is due against the tenant. It is further observed by Rent Controller that tenant has stated that he had been paying rent to Narain Dass and C.R. No. 193 of 2010(O&M) 3 tenant has produced receipts issued by Narain Dass upto the period 31.8.2009. It is further observed that since, tenant has already paid the rent to Narain Dass, one of the LR of deceased Ram Dass, hence, respondent - tenant is not liable to tender the rent.
4. Feeling aggrieved from the order dated 5.10.2009, petition under Article 227 of the Constitution of India was filed before this Court by Krishan Lal eviction petitioner assailing the order dated 5.10.2009 which was registered as Civil Revision No. 193 of 2010.
5. When petition came for admission before this Court, learned counsel for the petitioner-revisionist requested the Court to dismiss the petition as withdrawn. Hon'ble S.D. Anand, J., as the lordship then was, while directing the petition to be dismissed as withdrawn has observed that allay the apprehension in mind of the learned counsel for the petitioner it is ordered that future rent shall be deposited into the Court and the petitioner shall be entitled to disbursement thereof only after obtaining a certification from the competent Court about his entitlement to draw it as legal representative of deceased Ram Dass.
6. I have heard learned counsel for the parties and perused the record.
7. Learned counsel for the applicant stated that at one hand petition was dismissed as withdrawn and at the other hand revision was vertually allowed by modifying the order of the Rent Controller to the extent that tenant shall deposit the rent into the Court and disbursement thereof would be after certification from the competent Court. Learned counsel for the applicant further stated that since observation was made in the order under review dated 13.1.2010 C.R. No. 193 of 2010(O&M) 4 without any notice to the tenant, hence, there was no occasion for the tenant to show to this Court that he had been paying rent to Narain Dass. He further stated that the movement it is proved on the record that tenant had been paying rent to the landlord, hence, there is no question of keeping the eviction petition on the ground of arrears of rent pending. He has further stated that in eviction petition on the plea of tenant Court would have decided as to whether revisionist-petitioner has locus to file eviction petition being landlord.
8. Learned counsel appearing for the original revisionist stated that in the eviction suit learned Rent Controller has wrongly observed that tenant need not to deposit any rent in the Court, hence, this Court was well within its jurisdiction while observing that tenant shall deposit rent in the Court which shall be disbursed only after certification from the competent Court. Mr. R.S. Malik, learned counsel for the revisionist further stated that review application on behalf of third party who was not a party either in the eviction petition or in the revision is not maintainable.
9. From the material available on record, it reveals that Rent Controller has specifically observed in the impugned order that petitioner/revisionist has not pleaded the period of arrears of rent and tenant has specifically pleaded that he has been paying rent to Narain Dass and has paid rent to Narain Dass till 31.8.2009 immediately before filing of the eviction petition. Learned Rent Controller further observed that in view of the payment already made to Narain Dass, one of the LR of original landlord Ram Dass there is no need for the tenant to tender rent in the Court. It is further revealed that this Court at one hand has dismissed the petition as C.R. No. 193 of 2010(O&M) 5 withdrawn on the very first day without notice to the other side and at the other hand has observed that tenant shall deposit the rent in the Court which shall be disbursed after the due certification from the competent Court about the entitlement of the petitioner. I find error apparent on the face of the record. If petition is dismissed as not pressed there was no occasion for this Court to upset the observation of the Rent Controller by directing to deposit the rent in the Court below subject to the certification of the competent Court.
10. Now question arises as to whether order under review can be recalled/reviewed by this Court even if this Court finds that application moved by Narain Dass seeking review is not competent. In the opinion of this Court, this Court is a court of record and this Court has inherent power to correct the record. If this Court finds that there is an apparent error on the face of the record or any illegal observation is made in the order under review, this Court has ample inherent suo moto power to correct the same.
11. This Court finds support from the judgment of Division Bench of Calcutta High Court in the matter of Satyanarayan Pandey versus State of West Bengal and others, reported in 2009(4) ICC 648 in paragraph Nos. 14 and 15 has held as under:-
"14. We shall first examine the question of maintainability of the instant review petition. While hearing the present petition, we are exercising jurisdiction vested in this Court under Article 226 of the Constitution of India. In the case of Shib Deo Singh & Anr Vs. State of Punjab & Ors. reported in AIR 1963 SC 1909, the jurisdiction of the Writ Court to review its own order was discussed and it was C.R. No. 193 of 2010(O&M) 6 held that such power was derived not form the Code of Civil Procedure directly but was in exercise of inherent power of the Writ Court. In this judgment of a Constitution Bench of the Supreme Court, it was held:-
"It is sufficient to say that there is nothing in Article 226 of the Constitution to preclude the High Court from exercising the power of review while inheres in every court of plenary jurisdiction to prevent miscarriage of justice or the correct grave and palpable errors committed by it."
15.A Division Bench of this Court also examined this question in a recent case, Maruti Real Estate Pvt. Ltd. v. Life Insurance Corporation of India reported in (2008) 1 CHN 442: [2008(4) ICC (Cal.) 413.
Considering different authorities on this subject, the Division Bench concluded that Section 114 or Order 47 Rule 1 of the Code does not in terms apply to any application for review in the writ jurisdiction. Thus, the Writ Court while exercising its jurisdiction for review of its own judgment is not strictly bound by the parameters laid down in the Code. The main object behind such exercise on the part of the Writ Court is to prevent miscarriage of justice."
12. Hon'ble Apex Court in the matter of M.M. Thomas versus State of Kerala and another, reported in (2000) 1 Supreme Court Cases 666, in paragraph No. 14 and 17 has 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 C.R. No. 193 of 2010(O&M) 7 of record envelops 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 correct it. The High Court's power in that regard is plenary. In Naresh Shridhar Mirajkar v. State of Maharashtra a nine-Judge Bench of this Court has recognized the aforesaid superior status of the High Court as a court of plenary jurisdiction being a court of record.
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 the plenary powers of the High Court would include the power of review relating to errors apparent on the face of the record."
13. In view of the above, I recall the order dated 13.1.2010 and direct that Civil Revision No. 193 of 2010 shall remain dismissed as withdrawn and observation made in order dated 13.1.2010 shall stand deleted.
(ALOK SINGH) 15.09.2010 JUDGE reena