Kerala High Court
Sigma Agencies (P) Ltd. vs P.V. Thomas And Ors. on 25 July, 1990
Equivalent citations: AIR1991KER102, AIR 1991 KERALA 102, (1990) 2 KER LT 454, (1991) ILR(KER) 1 KER 55, (1990) 2 KER LJ 263, (1990) 2 RENCJ 632
ORDER Chettur Sankaran Nair, J.
1. Shorn of frills and embroidery, the question that comes to sharp focus in this petition is, whether Ext. P4 order of remand made by this Court under Section 115 of the Code of Civil Procedure, revising an order made under the Kerala Buildings (Lease and Rent Control) Act is 'void'. Special leave to appeal against that order was declined by the Supreme Court. Invoking the jurisdiction of superintendence under Article 227 of the Constitution, petitioner seeks to quash Ext. P6 order made pursuant to the order of remand, Ext. P4.
2. Mother of first respondent-landlord, filed an application for eviction, R.C.P. 134/77 on the ground of bonafide need, the ground under Section 11(3) of the Kerala Buildings (Lease and Rent Control) Act, hereinafter called "the Act". The application was allowed by Ext.P1 order dated 23-12-1977. On appeal, the appellate authority remitted the case to the Rent Controller. Both sides filed revision petition against that order. The revisional authority (District Judge) considered the petitions RCRP142/78 and R.C.R.P.150/78, and set aside the order of remand and remitted the matter to the appellate authority, to consider the appeal afresh. Petitioner filed a second revision before this Court under Section 115 of the Code of Civil Procedure, against the order of the revisional authority. That was dismissed. Thereafter the appellate authority allowed the appeal by Ext. P2. First respondent filed a revision and that was dismissed by Ext. P3. Against that, first respondent filed a revision petition before this Court under Section 115 of the Code. The revision petition was allowed by Ext. P4, remitting the case to the appellate authority. Petitioner moved the Supreme Court for special leave to appeal, and the application S.L.P.8123/86 was dismissed on 21-8-1986. Thereafter, the appellate authority considered the appeal and allowed it by Ext. P5 order dated 23-7-1987. Ext. P5 order in appeal was set aside by the revisional authority by Ext. P6. Upon that, petitioner moved this petition invoking the jurisdiction of this Court under Article 227 of the Constitution. This is an eleventh round litigation. Beginning with the Court of the Rent Controller, it passed through the appellate authority thrice, revisional authority thrice, through this Court thrice, through the Supreme Court once, and is here again under Article 227.
3. After the dismissal of SLP8123/86, by the decision in Aundal Ammal v. Sadasivan Pillai (1987 (1) KLT 53): (AIR 1987 SC 203) dated 9-10- the Supreme Court held that a second revision under Section 115 of the Code of Civil Procedure, will not lie in proceedings arising under the Act. According to petitioner, despite the dismissal of SLP8123/86, by reason of a subsequent decision of the Supreme Court, Ext. P4 order of the High Court is null and void. Petitioner would further submit that dismissal of the Special Leave Petition does not imply that Ext. P4 order of the High Court is correct.
4. Counsel for respondent-landlord, would submit that in Aundal Ammal v. Sadasivan Pillai ;(1987 (1) KLT 53) the order of the High Court was only 'set aside' in appeal, and that it was not declared 'null and void'. It was also submitted that the order of the High Court can be set aside, but that it cannot be deemed null and void, if the Court has jurisdiction over the subject matter and the parties. Otherwise put, the argument is that the order Ex. P4 was open to challenge, butnot void.
5. The arguments centre round Aundal Animal's case. The Supreme Court held in the said case, that the High Court had no jurisdiction to revise an order under Section 20 of the Act, exercising powers under Section 115 of the Code. The Court held :
"To vest the High Court with such jurisdiction would be contrary to the scheme of the Act, would be contrary to public policy and contrary to the legislative indent", (paragraph 23) and then "set aside the order of the High Court".
6. As observed by the Supreme Court in Janardhan Reddy v. The State of Hyderabad (AIR 1951 SC 217): (52 Cri LJ 736):
"..... if a Court acts without jurisdiction, its decision can be challenged in the same way as it would have been challenged if it had acted with jurisdiction".
7. The Five Member Bench of the Supreme Court in Ittiyavira Mathai v. Varkey Varkey (AIR 1964 SC 907) held that a decree would not be a nullity, in spite of a fatal error of jurisdiction, if the Court had jurisdiction over the subject matter and the party. The Court observed (at page 910 of AIR 1964 SC:
".....If the party does not take appropriate step to have that error corrected, erroneous decree would hold good, and will not be open to challenge on grounds of nullity".
With great respect, the view in Ittiyavira Mathai v. Varkey Varkey is based on sound reasons, and enduring principles and perceptions that have 'mellowed with time like old wine'. It is useful to refer to H.W.R. Wade --Administrative Law (5th Editioti) at page 312.
"An order, even if not made in good faith, is still an act capable of legal consequences. It bears no brand of invalidity upon its forehead. Unless the necessary proceedings are taken at law to establish the cause of invalidity and to get it quashed or otherwise upset, it will remain as effective for its ostensible purpose as the most impeccable of orders.
This must be equally true even where the 'brand of invalidity' is plainly visible; for there also the order can effectively be resisted in law only by obtaining the decision of the Court. The necessity of recourse to the Court has been pointed out repeatedly in the House of Lords and Privy Council, without distinction between patent and latent defects. Lord Diplock has spoken still more clearly, saying that it leads to confusion to use such terms as Voidable ab initio', 'void' or 'a nullity' as descriptive of the status of subordinate legislation alleged to be ultra vires for patent or for latent defects, before its validity has been pronounced on by a Court of competent jurisdiction.
The words 'patent or latent' show that it makes no difference for this purpose, whether the order bears a 'brand of invalidity upon its forehead'. Lord Diplock pointed out that the order would be presumed to be valid unless the presumption was rebutted in competent legal proceedings by a party entitled to sue".
A passage in American Jurisprudence (at 46 -- American Jurisprudence 2nd -- 768) deserves notice. It reads:
"Although there are cases in which judgments have been opened because of the subsequent adjudication of the unconstitutionally of statutes upon which they are based, it has also been held that there is no authority, after the term of the rendition of a judgment, to vacate it on the ground that a statute involved in the case is subsequently adjudged to be unconstitutional, since the defect in the judgment consists merely of an error on the part of the Court in passing on the constitutionality of the statute. This result has been reached in spite of a reservation in the judgment of jurisdiction of the cause and parties for the purpose of making or entering any further orders or judgments necessary to protect the plaintiff and to enforce performance of the judgment. The opening or vacation of ajudgment may be secured only in a proper proceeding. The application for such reliefs is generally made by motion, or petition."
8. The High Court, though not under Section 115 of the Code, has jurisdiction over the subject matter and over the parties, under Article 227 of the Constitution, by reason of its visitorial powers conferred by the Constitution. Though in Aundal Animal's case, the Supreme Court was not inclined to treat the revision petition before the High Court as proceedings under Article 227, the Coui i did not doubt that jurisdiction inhered in the High Court under Article 227, to entertain proceedings against a revisional order under Section 20 of the Act. In Natraja Chettiar v. Sulekha Ammal (1987 (1) KLT 829) the Court held :
"In view of the decision in Anundal Ammal v. Sadasivan Pillai, it will be perfectly open to the party aggrieved by the decision of the District Judge to invoke the jurisdiction of the High Court under Article 227 of the Constitution".
In M/s. Jatha Bai and Sons v. Sunderdas Rathenai (1988 (1) KLT 386): (AIR 1988 SC 812), the Supreme Court surveyed the law on the subject in extenso, and after noticing Aundal Animal's case, found that even if powers under Section 115, C.P.C. are not available to the High Court, it has jurisdiction under Article 227. The Court observed (at page 304, 1988(1) KLT):
"A thought may occur to some whether by a rigid construction of Section 20(1) read with Section 18(5), the High Court's power of superintendence over the District Court, even when it functions as a revisional Court under Section 20(1) of the Kerala Act, will not stand forfeitted. We may only state that legislative history would indicate that the superintending and visitorial powers exercisable by a High Court under Section 115, C.P.C. appear to have been conferred and vested ''because the supervisory jurisdiction to issue writs of certiorari and prohibition over subordinate courts in the mofussil could not be exercised, (and hence) it would be reasonable to hold that it was intended to be analogous with the jurisdiction to issue the high prerogative writs and the power of supervision under the Charter Act and its successor provisions in the Constitution Acts ..... Legislature has not taken away and indeed it cannot take away the power of superintendence of the High Court "under Article 227 of the Constitution over all Courts and Tribunals which are within the territories in relation to which the High Court exercises its jurisdiction."
(paragraphs 16 and 17) Therefore, the High Court has jurisdiction over the 'subject matter and the person' and the order in Ext. P4 is not void. In Kesavan v. Ammukutty Amma (1988 (1) KLT 104) : (AIR 1988 SC 339) also, the Supreme Court did not declare the order of the High Court made under Section 115 of the Code void, notwithstanding the decision in Aundal Ammal.
9. Even if the dismissal of Special Leave Petition does not put the imprimatur of the Supreme Court on Ext. P4 as contended by petitioner, it does not mean that unless approved, an order of the High Court is without force. The decision relied on by petitioner in M/s. Rup Diamonds v. Union of India (AIR 1989 SC 674) also does not yield that inference. On the contrary, the Court observed (at page SC 677 of AIR 1989):
"Petitioners were not vigilant, but were content to be dormant and chose to sit on the fence till somebody else's case came to be decided. Their case cannot be considered on the analogy of one, where a law had been declared unconstitutional and void by a Court.....".
Hence, on the strength of an unrelated judgment, Ext. P4 order cannot be treated as void. It was open to petitioner on the strength of Aundal Ammal, to have challenged Ext. P4 order of the High Court, or to have sought a writ of prohibition to restrain the appellate forum from proceeding with the appeal. Instead, petitioner participated in the proceedings that culminated in its favour before the appellate forum. Long years thereafter, petitioner cannot contend that by reason of Aundal Ammal, Ext. P4 order is void. That would be an attempt to blow off an order made by the High Court, by a side wind.
10. Therefore:
(a) an order made by the High Court, even without jurisdiction, unless set aside, cannot be considered void;
(b) the High Court has inherent jurisdiction over the subject matter and the parties; and
(c) notwithstanding the error in jurisdiction. Ext. P4 will hold good, until set aside.
11. Relying or the decisions in Kiran Singh v. Chaman Paswan (AIR 1954 SC 340) : (1954 All LJ 551) and Vasudev Dhanji Bhai Modi v. Raja Bhai, Abdul (AIR 1970 SC 1475), Counsel for petitioner contended that a decree passed by a Court without jurisdiction is a nullity, and that its invalidity could be set up whenever and wherever it is sought to be enforced. True. But, that is not the case here. The High Court has inherent visitorial powers under Article 227, and hence it is not a case of want of inherent jurisdiction. The principles in Ittiyavira Mahati v. Varkey Varkey (AIR 1964 SC 907) govern this case.
12. Counsel then relied on the decision in Srimati Bai Lakshmi Desi v. Banamali Sen (AIR 1953 SC 33). where the principles of res judicata arose for consideration in the case of an appeal that ended in compromise. Counsel then relied on the decision in Jnanendra Mohan Bhaduri v. Rabindra Nath Chakravarty (AIR 1933 PC 61): (1933 ALJ 343). It eludes comprehension, what relevance the decision has, in the circumstances of the case. The Judicial Committee was considering the scope ofSs. 11 and 15 of the Arbitration Act. The decision in Keshardeo Chamria v. Radha Krishen Chamria (AIR 1953 SC 23) : (1953 All LJ 101) was also relied on. The propriety of the Court restoring execution proceedings fell Cor consideration- The case cited by petitioner bears no analogy to the facts of the instant case. Reliance was also placed on the decision in Kshitish Chandra Bose v. Commissioner of Ranchi (AIR 1981 SC 707). The Supreme Court held that an interlocutory judgment which did not terminate proceedings could be challenged in the appeal arising from the final order. In the instant case, the order of remand was challenged by petitioner before the Supreme Court, but unsuccessfully. Ext. P4 order thus became final. Petitioner cannot now make a collateral challenge based on an unrelated decision of the Supreme Court. After Aundal Ammal, petitioner could have challenged Ext. P4 directly. Not having done that, and after availing of an order in its favour from the appellate forum, petitioner cannot now challenge the order of remand, Ext. P4. As pointed out in M/s. Rup Diamonds v. Union of India (AIR 1989 SC 674), after choosing to sit on the fence for five years or as near, petitioner cannot be permitted to raise this contention. The argument that Ext. P4 order and proceedings pursuant thereto are void has to be rejected.
13. Counsel for petitioner then submitted, that the revisional authority exceeded its jurisdiction and substituted its findings for that of the appellate authority. I am unable to agree. In paragraph (5) of its order, the revisional authority noticed that the reason for the appellate authority to reject the Commissioner's report is that, while the Commissioner found that 'Pulikkal Agencies* did not have sufficient space, he also found that some of the articles were kept in the 'Medical Trust'. That certain articles were kept in a sister concern, instead of negativing the case of lack of space, fortifies it, according to revisional authority. If the revisional authority thought that this finding was not proper, it was justified in thinking so. In paragraph (6) of its order, the revisional authority noticed another reason that persuaded the appellate authority to reject the petitioner's case. The appellate authority thought that the account books (Exts. A4 and A5) relating to 'Pulikkal Agencies' did not substantiate the case that 'Pulikkal Agencies' was an independent unit. Revisional Authority noticed that Exts. A33 and A34, were ignored by the appellate authority and also that they were not challenged in cross examination. The reasoning was considered untenable by the revisional authority --rightly too. In paragraph (7), the revisional authority noticed an observation by the appellate authority to the effect that "it is not the will of the customers that matters, it is the state of mind of the petitioner himself and the requirement that counts". Any prudent business man is likely to take into account the responses of his customers. If the first respondent took that into consideration, there is nothing unusual about it. In paragraph (11), the revisional authority noticed that the appellate authority considered each and every item of evidence separately, but did not consider "the cumulative effect of the items of evidence adduced". If the revisional authority thought that this was not proper, it was justified in thinking so. On another aspect, the appellate authority observed :
"In spite of elaborate oral evidence tendered P.W. 1 (father of first respondent), nothing was spoken as to the state of mind, or the intention of the minor petitioner for whose business the building was allegedly required..... P.W. 1 appears to have been much anxious about the well being of his minor son......".
The revisional authority did not agree. If the father "appears to have been much anxious about the well being of his minor son", it is nothing unusual. Again, the appellate authority observed in paragraph (12) of its judgment:
"Certainly P.W. 1 (father of the minor) has tendered evidence to the effect that the premises is required for the expansion of the business by name Tulickal Agencies'. But, this version cannot be taken as the version regarding the minor petitioner's decision or as to his state of mind......".
To say that the minor's evidence should invariably be better than his guardian's evidence, or to say that the guardian's evidence cannot be relied on in a situation where the guardian is looking after the minor, is to say the untenable. If the revisional authority thought that the findings are not proper, it was more than justified, in thinking so. If there are two plausible views and if the revisional authority substitutes its view, for that of the appellate authority, then it acts in excess of its jurisdiction. If the view of the appellate authority, even on facts, is patently untenable, the revisional authority will be within its jurisdiction, in setting aside the finding, in exercise of its power of examining the propriety of the findings.
14. Petitioner submitted further that bona fide need is not made out on the evidence. The jurisdiction exercised by this Court under Article 227 in quality is not in the nature of a second-first appeal. The contours of the jurisdiction are well defined, and as observed by Sabyasachi Mukherji, J. (as His Lordship then was) in Chandavarkar Sita Ratna Rao v. AshaJatha S. Guram (AIR 1987 SC 117), a rehearing on facts is not contemplated under Article 227. The High Court must guard itself against using the jurisdiction of superintendence, as an appellate power. A finding cannot be interfered with, unless it is perverse, and perverse it is, if it is a finding which no person reasonably instructed in law or facts would have come to AS stated in India Pipe Fitting Co. v. Fakruddin (AIR 1978 SC 45), however erroneous a finding may be, it is not liable to be interfered with under Article 227. Indeterminate rounds of hearing on facts is not in the contemplation of law, much less in the contemplation of Article 227. In an eleventh round litigation, spanning over a decade and three years, and after the matter was considered once by the Rent Controller, thrice by the appellate authority, thrice by the revisional authority, twice by this Court, and once by the Supreme Court. I see no justification foi interference.
15. After arguments were closed, counsel for petitioner submitted a list of citations, including cases not cited at the bar. Despite this, the case was reposted on 11-7-1990 to afford an opportunity to counsel to cite the decisions. He did not cite-any authority, and he was not in a position to state what some of the abbreviations stood for:
(Example: (1909) ICR (3) Calcutta 193, Homes (7) on Jurisdiction, (1890) Atlantic Rep. 898, (1856) 5 Duer-- NY 217, etc. It is difficult to see why such a list was submitted after oral arguments concluded.
Writ petition fails and is dismissed with costs, which I fix at Rs. 500/- (Five Hundred). I express appreciation of the help rendered by Shri N. Viswanatha Iyer and Shri Bhaskaran as Amicus Curiae.