Karnataka High Court
C.N. Ramachandra vs State Of Karnataka And Others on 9 October, 1996
Equivalent citations: AIR1997KANT181, AIR 1997 KARNATAKA 181
ORDER
1. This review application arises from the order dated 28-6-1994 delivered by Hon'ble. Mr. Justice R. Vsanth, Kumar dis-missing the writ petition whereby the peti-tioner had challenged the order dated 21-6-199.4, passed by 3rd respondent in the appeal viz., by the Deputy Commissioner in Appeal No. 13/93-94. The contentions that had been raided before Brother R. V. Vasanth Kumar was to the effect that the Rent Controller (sic) while notifying the premises, mentioned the rate of rent for the permises some other than Rs.3300/-. Petitioner's case is that Rs. 3,500/- was shown as rental for the building as per column No. 9 of the Form No. 1. He had submitted that in notifying the rental either as Rs.2,000/- or as Rs. 1,500/-, the Rent Controllei had committed irregularity and he ought to have notified the rental as Rs. 3,500/- and he has not done that. The notification of vacancy was illegal and allotment was illegal, Before Hon'ble Justice R. V. Vasanth Kumar reference was also made to single Judge decision of this Court in the case of Girja Rudra v. The House Rent and Accommodation Controller Bangalore City, Hon'ble Justice R.V' Vasanth Kumar considered the contentions made by the learned counsel for the petitioner' and opined, that so-far-as the allotment is considered it is. confirmed in full subject to allottee paying a monthly rent of Rs. 3,500/-per month and disposed of that wril petition. Having felt aggrieved from that judgment, the Land Lord/writ petitioner filed an appeal before, the Division Bench of this Court, which Division Bench consisted of Mr. G. G. Nahavathy, Hon'ble Chief Justice and Mr. A, J. Sadashiva, Hon'ble Judge. A Contention was raised by the counsel for the appellant Sri. Aravind Kumar apart from objecting the amount of rent that appellant had made various other grievances' were raised but those points had not been considered in view of that contention, the Division Bench passed the order "If that is so, it is open to the appellants to file a review petition before the learned single Judge for the review of the earlier order" and rejected the appeal. Taking note of the order of the Division Bench, the petitioner has filed this review application.
2. I have heard Sri. Aravind Kumar and Sri. K. Suman.
3. Sri. Aravind Kumar appearing for the appellant submitted that the rate of rent or amount of rent that has been mentioned in Column 9 of the application was Rs. 3,500-/ which had been indicated, by the petitioner-landlord as for the rental and amenities. He again raised the same contention which he had pressed before the Hon'ble Justice R. V. Vasanth Kumar and placed before me the decision of this Court in the cast of Girja Rudray. The House Rent and Accommodation Controller, Bangalore City, . Sri, Aravind Kumar laid emphasis on the expression used by the learned Judge that there was illegality committed by the authority in fixing the rental of the building earlier as Rs. 800/- and submitted that where the order was challenged the learned single Judge of this Court had also taken the view that this was illegal and allowed the writ petition. It is his contention that leraned single Judge' while deciding the writ petition should have remitted the matter back to the 2nd respondent. He submitted that wrong figure had been mentioned in the column of rent in the notification as Rs. 1,500/'- while landlord had indicated in his intimation of vacancy in Form 1, Col. 9 as Rs. 3,500. This contention was heard for good length of time almost for in hour. No other contention his been raise before me by Sr. Aravind Kumar. It may be; mentioned that at this stage (sic) Sri Aravind Kumar has raised no other new argument not any other ground taken in the writ petition has been pressed before met Before the Division Bench it was alleged as Some" of His pleas or arguments which ha4 urged before learned single Judge had not been considered by the learned single Judge (Hon'ble 'Vasant Kumar, J.) who had decided the "writ petition but 1 may repeat no new point or'nd bther point or plea taken in writ petition' has been pressed. However except he alleged wrong figure as rent i.e. Rs. 1,500,'-
as per month. It is expected from the Bar to be fair in arguing and drafting the memo of appeal or writ petition. When we sitting on the Bench give credence, and rely on the statement of the Bar, we Would expect the Bar to be fair and just and right in making any statement or in drafting the ground. What contentions have been raised by Sri. Aravind kumar at present, I have mentioned earlier and no other contention; so-far has been raised, and this has been contention which appears only to have been raised before the learned single Judge. Such conduct does not bring a fair name either to the Bar or to the counsel. The observations of the Division Bench is to the effect -- "The contention of the learned Advocate for, appellant is that apart from the Objection regarding amount of rent the appellant made various other grievances and those points have not been considered. If that is so it is open to him to file a review petition before the learned single Judge for the review of the earlier order".
This it appears that Sri. Aravind Kumar had said before the Division Bench that he had raised, certain points and which were not considered by the learned Single Judge. In the, circumstance above narrated a conduct of Counsel cannot be said td be appreciable one or fair.
4. As regards the merits of the review, application, 1 have applied my mind to the contentions of counsel for appellant. It is to be remembered that the review is not an appeal in disguise. The review jurisdiction of the 'Court is well defined; under Order 47 of C.P.C: as observed by the Supreme Court in very many cases. In the case of Thungabhadra Industries v. Government of Andhra Pradeh v AIR 1964 SC 1378 it has been laid down (Para 11):
"A review is by no means an appeal in disguise whereby an erroneous decision is reheard and corrected, but lies only for patent error. We do not consider that this furnishes a suitable occasion for dealing with this difference exhaustively or in any great detail, but, it would suffice for us to say that where without any elaborate argument one could point to the error and say here is a substantial point of law which stares one in the face, and there could reasonably no two opinions entertained about its dear case of error apparent on the face of the record would be made out."
Merely because there can be two opinions opened, the point does not make a case for review. Error apparent means error which can be pointed out from the record without lengthy arguments: It will be just as well as be; profitable to refer to the following observa-tions of their Lordships of Supreme Court in the case of Smt. Meeer Bhanjn v. Nirmala Kumari Chpudhury, ; which reads as follows (Para 8):
"It is well settled that the review proceedings are not by way of an appeal and, have to, be strictly confined to the scope and ambit of Order 47, Rule 1, G.P.C. In connection with the limitation of the powers of the Court under Order 47, Rule 1, while dealing with similar jurisdiction available' to the High Court while seeking to review the orders junder Article 226 of the Constitution of India, this Court, in the case of Aribam Tuleshwar Sharma v. Aribarn Pishak Sharma, , speaking through Chinhappa Reddy J. has made the following pertinent observations (Para 3):
"It is true there is nothing in Article 226 of the Constitution to preclude the High Court from exercising the power of review which inheres in every Court of plenary jurisdiction to prevent miscarriage of justice or to correct grave and palpable errors committed by it. But, there are definitive limits to the exercise of the power of review. The power of review may be exercised on the discovery of new and important matter or evidence which, after the exercise of due diligence was not within the knowledge of the person seeking the review or could not be produced by him at "the time when the order was made; it may be exercised where some mistake or error apparent on the face of the record is found; it may also be exercised on any analogous ground. But, it may not be exercised on the ground that the decision was erroneous on merits. That would be the province of a Court of Appeal. A power of review is not to be confused with appellate power which may enable an Appellate Court to correct all manner of errors committed, by the Subordinate Court".
Now it is also to be kept in view that in the impugned judgment, the Division Bench of the High Court has clearly observed that they were entertaining the review petition only on the ground of error apparent on the face of the record, and not on any other ground. So far as that aspect is concerned, it has-to be kept in view that an error apparent on the face of record must be such an error which must strike one on mere looking at the record and would not require any long drawn process; of reasoning, on points where there may con-celvably be two opinions. We may usefully refer to the observation of this Court in the case of Satyanarayan Laxminarayan Hegde v. Malli Karjur Bhavanappa Tirumale , wherein K.C. Das Gupta, J.
speaking for the Court has made the following observations in connection with an error apparent on the face of the record :
"An error which has to be established by a long drawn process, of reasoning on points where there may conceivably be two opinions, can hardly be said to be an error apparent on the face of the record. Where an alleged error is far from self evident and if it can be, established, it has to, be eatablished, by lengthy and complicated, arguments, such an error cannot be cured by a writ of certiorari according to the rule goerning the powers of the superior Court to issue such a writ".
5. In the present case in my opinion there has been no error in the judgment of the learned single Judge when he passed the order impugned in the review application. The learned Judge has taken the view that as-far-as the mentioning of rate of rent of Rs. 1,500/- per month there may be a legal infirmity but the respondents have filed a memo that without prejudice to his contention he is prepared to pay rent of Rs. 3,500. Learned Judge has also referred to the landlords counsel's submission in Para 5 and as appears from Para 5 that break-up of Rs. 3,500/- per month has been allotted to be either Rs. 2,000;-for rent of the building and Rs. 1,500/'- for maintenance-or it may be rent as Rs. 2.500/-forthe building and Rs. 1,000;-for maintenance. Anyway there was break-up in the rent. Rent of the building as per breakup might have been between Rs. 3,000 and 2.500/- and with reference to the amenities it might be between Rs. 1,000 and 1,500/-. Learned single Judge was further observed that so-far-as the allotment is concerned, the allotment in favour of 4th respondent is to confirmed but the learned Judge further in the interest of justice passed the Order to the effect that it stands confirmed subject to the allottees paying a monthly rental of Rs. 3500/-. In these circumstances, the learned Judge refused to quash the allotment proceedings in the interest of the landlord which was going to be adversely effected. The landlord in his intimation of vacancy had intimated Rs. 3,500/-. The Court had directed that the respondent will pay Rs.3500/-when he is taking possession under order of allotment. No doubt the rental that is determined under .Section 8(4) of the Karnataka Rent Control Act, 1961 as per Proviso is subject to fixation of a fair rent under Section 14 and it has so provided under the Proviso to Section 8(4). The operation of Sections has been suspended. Even if Section 8(4) should not have been suspended in that case the proviso clearly provided further that unless the rent is specified in such order as the fair rent of the building the tenant or the landlord shall be entitled to apply for fixation of fair rent in respect of such building. Thus this sub-section kept the doors under Section open and either the landlord or the tenant can approach the authorities under Section 14 for fixation of fair rent. Learned counsel has emphasised that Rent Control Officer or the Rent Controller cannot and should not have fixed or shown the rental to be Rs. 1500/- or so. A reading of Clauses 3, 5 and 9 of Form No. 1 that is intimation when these clauses are read together it reveals that the rental is given in the lump sum it may be that rental, not only for the building but for furnishing and things provided as Fan, Telephone, Television or the facilities in the house etc., and the rent of the building let-out. In such cases it is the duty of the landlord when intimating the vacancy to intimate the rental of the building apart from monthly charges for permitting the user of furnishing such as Television, Fan etc., if they are provided specifically. In this case counsel for the landlord had submitted that rental of the building and rental for the use of the facilities such as Television or the light was different was the view of the learned single Judge. It may be Rs. 2500/- for building and Rs. 1,000/- for television etc., or may be Rs. 2,000/- for the building and Rs. 1,500/-for other things but it is the duty of the landlord to have specifically indicated the rental of the building and the rental for the amenities. It has not been done in this case. The case that had been relied on by the learned counsel for the applicant very clearly emphasised on the rent of the premises. As per Para 4, Column 9 of Form No. 1 "For information being given in regard to monthly rent if building became vacant" so reference to be made as to monthly rent of the building or the premises to be occupied. Again in Para 6 the learned Judge observed that it is clear from the reading of sub-section (4) of Section 8 and Clause (c) of Section 9 and that rent controller has to apply his mind in regard to rent payable for the permises at the stage when he makes the order. Rent Controller cannot direct the owner of a building to provide the tenant/allottee Television, Telephone, Fan etc. If landlord so intends to provide such facilities he may charge the rental for those facilities separately but then there must be clear specification and declaration for those charges i.e., the rental for the premises and charges for permitting the user of Fan or other facilities such as Telephone, Television etc., but so so-far-as essential facilities such as that the building should be light proof, water proof and water facilities must be there, they are essential as the part of the building let-out. They have to be distinguished from the facilities of Fan or Television being provided. In the present case in the application form which has been placed before me that landlord had not shown any such bifurcation instead he has indicated that the rental that was paid was Rs. 3,500/- and not specifically either for premises or for Fan or Television etc. It became necessary for the Rent Controller to indicate the rental of the building and take an approximate estimate. He cannot be said to have, acted, in such a case, without jurisdiction. Even if for a moment that might be an irregularity but in such a case I am unable to take it as between, whether landlord himself does not bifurcate two types of charges and in the intimation only he clumsily indicates as the rental. It is open to the rent controller to do the guess work and indicate the rent of building distinct and separate from charge for facilities, but that rent indicated is always subject to fixation of fair rent.
6. Thus considered, in my opinion the order of the learned single Judge disposing of the writ petition maintaining the allotment order subject to allottee paying a sum of (sic) Rs. 3,500/- as indicated by the landlord does not require or call for any modification nor does it suffer from any error apparent on the face of it. The review petition as such being devoid of force has to be dismissed.
7. I am again clarifying the position that no other point has been pressed before me except the one I have mentioned. This I am mentioning specifically with a view so that learned counsel may not say that his other arguments were not considered. This entire order has been dictated in presence of Sri. Aravind Kumar on one-hand and on the other hand counsel for the respondent Sri. K. Suman. No other point has been pressed. Review application is dismissed as being without merits. Costs are assessed of Rs. 1.500/- payable by the petitioner to the respondents.
8. Application dismissed.