Madhya Pradesh High Court
Smt. Bimla Bai vs Baijnath Singh Chandel on 14 March, 2000
Equivalent citations: 2001(1)MPHT425
ORDER S.C. Pandey, J.
1. This revision under Section 23-E of the M.P. Accommodation Control Act, 1961 (henceforth 'the Act') is directed against the order dated 31-12-1997 passed by the Rent Controlling Authority in Eviction Case No. 8-A/90 (7)196-97. The disposal of this revision shall govern the disposal of Civil Revision No. 1434/99, Civil Revision No. 1802/99 and Civil Revision No.1804/99, as similar questions of facts and law are involved in each of these revisions.
2. The applicant filed Eviction Case No. 8-A/90 (7)/96-97 against the non-applicant on the ground that the suit house was required by her for her sons Manoj Kumar Jain, Padam Kumar Jain, daughters Kumari Rashmi, Manisha and Smt. Manju and her husband. In the application, the applicant had stated that she had purchased the suit house by a registered sale-deed dated 14-6-1985 along with her late husband from late Hazi Gulam Ahmad. The non-applicant in the present revision and the non-applicant in the connected revisions were the tenants of the previous owner. Accordingly, they became the tenants of the applicant.
3. The two non-applicant admitted the relationship of landlord and tenant and contested the case on merits but the other two i.e., Sheikh Idu and Khudabux, denied the relationship of landlord and tenant, besides contesting the case on merits.
4. The Rent Controlling Authority dismissed all the cases filed by the applicant against all the tenants, by order dated 31-12-97. It held that since the applicant did not produce the registered sale-deed dated 14-6-85, she could not claim to be the landlady of the non-applicants.
5. The order dated 31-12-97 was subsequently reviewed by the Rent Controlling Authority by order dated 30-3-98 and it was set aside. The applicant was given an opportunity to lead further evidence.
6. The tenants in each case filed civil revisions against the order of review dated 30-3-98. This Court held that the Rent Controlling Authority was not authorised to review its own order in absence of any specific power of review conferred by the Act and allowed all the revisions of the tenants setting aside the order of review dated 30-3-98.
7. Thereafter the applicant has approached this Court challenging the order dated 31-12-97.
8. It is true that in all these revisions, there is considerable delay but the applicant is entitled to condonation of delay on the analogy of Section 14 of the Limitation Act. She had successfully got the order of the Rent Controlling Authority reviewed by itself and, therefore, there was no occasion to file a revision against the order dated31-12-97.Theaforesaid order dated31-12-97 was set aside on 24-3-99. The revisions have been filed in the month of July, 99. Looking to the facts and circumstances of each revision, this Court is of the view that the delay should be condoned in each case. It is obvious that the applicant must have required some time in obtaining the necessary certified copies and must have spent time in obtaining legal advice. Looking to the overall circumstances, it is found that the applicant has proved that there was sufficient cause in each case for the delay in filing the revision. The delay is accordingly condoned.
9. A preliminary objection was raised by the non- applicants to the effect that since this Court in each revision had set aside the order of review, the applicant cannot file revision against the order on merits finally dismissing the application for eviction. It is urged on behalf of the non- applicants that the order in Civil Revision No. 1109/98 became final so far as this Court is concerned. It cannot be set aside by this Court in this revision. The decision rendered by this Court in M.P. Bhaya Vs. Ramprakash Sharma [1997 (1) JLJ 128], which in turn relied upon Shyamacharan Raghubar Prasad Vs. Sheojee Bhai Jairam Chhatri, was referred to during the course of arguments.
10. The counsel for the applicant, however, argued that the order setting aside the order of review, passed by the Rent Controlling Authority, is not conclusive of any matter except that the Rent Controlling Authority could not review its own order in absence of a specific power of review conferred upon it by the statute. No other question was decided and therefore, this Court can consider the legality of the original order of the Rent Controlling Authority.
11. The real question that is to be asked in this case is if the order passed by this Court in Civil Revision No. 1109 of 1998, decided on 24-3-99, was in any way concerned with the merits of the order impugned herein. The answer is clearly, no. The operative portion of the order reads as follows :--
"The impugned order passed by the Rent Controlling Authority, Katni reviewing its earlier order dated 31-12-1997 is jurisdictional error. Therefore, the same cannot be sustained. Accordingly it is set aside and in the result, the revision succeeds and is allowed."
The Court was concerned only if there was power of review with the Rent Controlling Authority. It came to the conclusion that there was no power to review. The Court was careful in not travelling beyond the scope and, therefore, passed an order only setting aside the order of review. In this view of the matter, it can be said without any fear of contradiction that there is nothing in the order which expressly bars the applicant from raising the validity of the original order dated 31-12-97. The applicant, having got the order dated 31-12-97, set aside, could not have filed any revision against it unless it was restored. Since the merits of the question were not involved in the revision, as they were neither directly and substantially in issue, nor collaterally or incidentally in issue in Civil Revision No. 1109/98, there is no question of res judicata. The merits of the case have not been touched in that revision and no adverse finding was operative to attract the principle of res judicata.
12. However, the preliminary objection was not that the order in the aforesaid revision was res judicata but on the ground that this Court could not sit in judgment over the decision of a learned Single Judge of this Court in this revision. It has been argued that the consequence of order in Civil Revision No. 1109/98 was that the original orders of the Rent Controlling Authority stood restored and the Court cannot interfere with this consequence as it would amount to sitting over the judgment of a coordinate Bench.
13. In the opinion of this Court, this argument is not valid. The applicant is not raising the same question that was raised in Civil Revision No. 1109/98. There is nothing in the order dated 24-3-99 which needs to be examined by this Court. For this reason, the case reported in 1997 (1) JLJ 128 is not attracted. In that case, the District Judge, Bhopal had upheld that order of the Trial Court in a civil revision whereby the defence of the tenant was struck off. The Lower Appellate Court in appeal against the judgment and decree of the Trial Court on merits held to be bound by the order passed by the same Court in revision against an order passed by the Trial Court. It was also held that the High Court in second appeal would not be bound as it was a Court of superior jurisdiction and not coordinate jurisdiction. This case as well as the Division Bench case reported in 1964 MPLJ 502, on which heavy reliance was placed for arriving at the aforesaid conclusion, are clearly distinguishable.
14. The test for determining, if this Court is sitting in judgment over the order passed in Civil Revision No. 1109/98, would be if the order impugned merged in the order dated 24-3- 99. The order dated 24-3-99 merely set aside the order dated 30-3-98 and is eloquently silent about the order impugned dated 31-12-97. The Supreme Court in State of Madras Vs. Madurai Mills Co. Ltd. (AIR 1967 SC 681) pointed out in Paragraph 6 at pages 683-684 as follows :--
"But the doctrine of merger is not a doctrine of rigid and universal application and it cannot be said that wherever there are two orders, one by the inferior Tribunal and the other by a superior Tribunal, passed in an appeal or revision, there is a fusion or merger of two orders, irrespective of the subject-matter of the appellate or revisional order and the scope of the appeal or revision contemplated by the particular statute. In our opinion, the application of the doctrine depends on the nature of the appellate or revisional order in each case and the scope of the statutory provisions conferring the appellate or revisional jurisdiction."
In that case, the Supreme Court examined Commissioner of Income tax, Bombay Vs. M/s. Amritlal Bhogilal & Co. (AIR 1958 SC 868) and that of State of U.P. Vs. Mohammad Nooh (AIR 1958 SC 86) and pointed out that in the case of Commissioner of Income tax, Bombay Vs. Amritlal Bhogilal, the composite order of the I.T.O. making registration as well as assessment could not be deemed to have merged entirely in the order of the Appellate Commissioner of Income tax, who was authorised to hear the appeal against the order of assessment, but not against the order of registration. Therefore, a revision lay against the order of registration, there was only partial merger. It was also pointed out that in Mohammad Nook's case, the Supreme Court did not accept the proposition that the order of dismissal merged in the order of departmental appeal or revisional order. It follows from the decision in the case of State of Madras Vs. Madurai Mills (supra) that the doctrine of merger would depend upon the authority, power or jurisdiction of the appellate or revisional authority and the actual decision rendered by it. It is obvious that applying the aforesaid principles, it can be safely held that the order dated 31-12-97 did not merge into the order dated 24-3-98 in Civil Revision No. 1109/98.
15. As to the merits of this case are concerned, it appears to this Court that the Rent Controlling Authority failed to see that only two tenants Sheikh Idu and Khuda Bux denied the relationship of the landlord and tenant. The other tenants had admitted the relationship and also stated that they had paid the rent. These tenants at least were estopped from denying the title of the applicant as per Section 115 of the Evidence Act, and, therefore, the cases against them could not be dismissed by the order of same nature. This is an error of jurisdiction going to the root of the case vitiating the entire impugned order dated 31-12-97 and on this ground alone is liable to be set aside. That apart, the Rent Controlling Authority, being a Court of initial jurisdiction, could not decide the question of title. It may in order to meet the plea of Sheikh Idu and Khudabux, the Rent Controlling Authority may have wanted to examine the sale-deed in question for lending assurance to its finding. The Rent Controlling Authority should, therefore, give the applicant an opportunity of producing the sale-deed dated 14-6-1985. It, therefore, acted illegally and high-handedly in dismissing the claim for ejectment on the ground of non-production of the sale-deed. The order is contrary to justice in this case and accordingly it is set aside.
16. The result is that this revision as well as the connected revisions are allowed and the impugned order dated 31-12-97 is set aside in each case. No costs.
17. Civil Revision allowed.