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When party can challenge order passed by district court before high court by revision as well as by writ petition?

IN THE HIGH COURT OF BOMBAY (NAGPUR BENCH)

Writ Petition Nos. 5552 and 3431/2013

Decided On: 07.12.2016

Gajanan and Ors.
Vs.
Mohd. Jamil Mohd. Amad and Ors.

Hon’ble Judges/Coram: B.R. Gavai and V.M. Deshpande, JJ.

B.R Gavai, J.:— These matters have been placed before this Court in view of the order passed by the Hon’ble Chief Justice in view of the reference made by the learned Single Judge of this Court in the present petitions.

2. The learned Single Judge, while making a reference found that the learned single Judge of this Court (B.P Dharmadhikari, J.) in the case of Dilip Bidesh v. Shivgopal Madangopal Chaurasia, reported in 2005 (4) Mh.LJ 967 : 2005 (6) Bom.C.R 207 had taken a view that the revision under section 115 of the code of civil procedure (Hereinafter referred to as the “Code”) would not be tenable against the order of the District Judge passed under section 27 of the Bombay Provincial Small Cause Courts Act, 1887 (hereinafter referred to as the “Said Act”). Whereas, another Single Judge of this Court (A.S Oka, J.) in the case of Dhuliabai Mana Praga v. Manikbai Vithalrao Bhusarath (Deceased), reported in 2009 (5) Mh.L.J 524 has taken a view that the writ petition under article 227 of the constitution of india would not be tenable since the revision under section 115 of the code is an alternate remedy available to a litigant. Noticing this conflict, the learned Single Judge has framed the following question for consideration by the Larger Bench.

“Whether the judgment and decree passed by the Court under the provisions of the section 26-a of the provincial small cause courts act, 1887 can be challenged in revision under section 115 of the code of civil procedure or under article 226 and/or article 227 of the constitution of india or under section 25 of the provincial small cause courts act, 1887?”

As such, the learned Chief Justice has placed these matters before us for answering the said issue.

3. Mr. Kavimandan holding for Mr. Khapre, learned counsel appearing on behalf of the petitioner has made the following submissions.

i. Section 27 of the said Act has been amended vide maharashtra amendment act 24 of 1984, which was brought into effect from 1-1-1985, has renumbered section 27 as 25-A of the said Act. He further submits that vide the said amendment, the new chapter i.e chapter 4-A1 has been brought into the statute book providing for recovery of possession of certain immovable property and certain license fees and rents. Mr. Kavimandan submitted that as such in view of placement of section 27 which is now section 25-A, insofar as the State of Maharashtra is concerned, the word “foregoing” would make its application restricted to the sections which are prior to section 25-A.

ii. Mr. Kavimandan submits that even if his first contention is not accepted, in view of the law laid down by the Apex Court in the case of I.T.I Ltd. v. Siemens Public Communications Network Ltd., reported in (2002) 5 SCC 510 : AIR 2002 SC 2308, and in the case of Jetha Bai and Sons, Jew Town, Cochin etc. v. Sunderdas Rathenai etc., reported in (1988) 1 SCC 722 : AIR 1988 SC 812, it will have to be held that presumption is in favour of the availability of jurisdiction to a Civil Court. The learned counsel further submits that the bar of tenability of revision under section 7 of the code is restricted only to the orders passed by the ‘Courts’ established under the said Act. The learned counsel further submits that the District Court is not a Court established under the said Act but is a Court of ordinary civil jurisdiction established under the Bombay Civil Courts Act. The learned counsel therefore submits that the bar under section 27 of the said Act could not be stretched to the extent that an order passed by the District Court under section 26-A is not amenable to the revision under section 115 of the code. He submits that the District Court, being a Court subordinate to the High Court, an order passed by it under section 26-A can very well be challenged in revision under section 115 of the code.

iii. The learned counsel further relied on judgment in Jetha Bai and Sons (supra) and submits that merely giving finality to the order passed by the Court of Small Causes is not sufficient to infer that the Legislature also intended to take away jurisdiction of the High Court under section 115 of the code. Mr. Kavinamdan, further drawing a distinction between the kerala act and the karnataka act, which have been amplified by the Apex Court in the case of Jetha Bai and Sons (supra), would submit that the provisions in the maharashtra act are more nearer to the Karnataka Act and as such revision would be tenable.

iv. The learned counsel further submits that the Division Bench of this Court in the case of Prabhulal Chhogalal Mandore v. Bastiram Himatram Bhutada, reported in 1990 (1) Bom.C.R 529 held that when an order is passed by the District Judge under the analogous provision, a party has an option to challenge the said order either under section 115 of the code or under article 227 of the constitution of india. Mr. Kavimandan further submits that even during the pendency of this reference, the learned Single Judge of this Court (A.S Chandurkar, J.) in Wamanrao s/o Vyankatrao Shinde v. Mrs. Munnibai WdJo Parmanand Jain, reported in 2015 (5) Mh.LJ 891 has, relying on the aforesaid judgment of the Division Bench, taken a similar view. He, therefore, submits that the view taken by the Division Bench of this Court in Prabhulal Chhogalal Mandore (supra) as has been followed by the learned Single Judge in the case of Wamanrao s/o Vyankatrao Shinde (supra) is a correct view of law and as such, the views taken by both the learned Single Judges i.e Shri Justice B.P Dharmadhikari and Shri Justice A.S Oka are not correct in law.

4. Per contra, Mr. Deshpande with Mr. Mirza, learned counsel appearing on behalf of the respondents, fairly concede that in view of amendment to the said act by maharashtra amendment act 24 of 1984, the bar of renumbered section 25-a would not come in the way of tenability of the revision application. The learned counsel further submits that by way of 1984 Amendment, a new chapter being Chapter No. IV-A, has been brought on the statute book. He submits that sub-section (3) of section 26-a clearly makes the legislative intent explicit. He submits that the said sub-section clearly provides that no further appeal shall lie against any decision in an appeal under sub-section (1). Relying on the judgment of the Apex Court in the case of Vishesh Kumar v. Shanti Prasad , reported in (1980) 2 SCC 378 : AIR 1980 SC 892, the learned Counsel submits that the legislative intent was to restrict the number of the tiers in the proceedings arising between the licensor and licensee or landlord and tenant. He further submits that if the legislative intent is very clear then the Court will have to give effect to it and hold that in view of sub-section (3) of section 26-a of the said Act and section 7 of the code, the revision under section 115 would not be tenable and the only remedy to a party would be under article 227 of the constitution of india.

5. For appreciating the rival submissions, it would be appropriate to refer to section 26-A read with section 27 of the said Act, which is now renumbered as section 25-A, insofar as the State of Maharashtra is concerned, and section 7 of the code, which read thus:

“25-A. Finality of decrees and orders.— Save as provided by this Act, a decree or order made under the foregoing provisions of this Act by a Court of Small Causes shall be final.

Section 25-A : State Amendment-[Maharashtra]-In its application to the State of Maharashtra, section 27 shall be renumbered as section 25-a, and after section 25-a as so renumbered, insert the following Chapter, namely:—

“CHAPTER IV-A

RECOVERY OF POSSESSION OF CERTAIN IMMOVABLE PROPERTY AND CERTAIN LICENCE FEES AND RENT.”

Section 26-A. Appeal-(1) An appeal shall lie, from a decree or order made by the Court of Small Causes exercising jurisdiction under section 26, to the District Court.

(2) Every appeal under sub-section (1) shall be made within thirty days from the date of the decree or order, as the case may be:

Provided that, in computing the period of limitation prescribed by this sub-section, the provisions contained in sections 4, 5 and 12 of the limitation act, 1963, shall, so far as may be, apply.

(3) No further appeal shall lie against any decision in appeal under sub-section (1).

(4) The District Court may, for the purpose of satisfying itself that a decree or order made in any case decided by the Court of Small Causes was according to law, call for the case in which such decree or order was made and pass such order with respect thereto as it thinks fit.”

Section 7 of the Civil Procedure Code

7. Provincial Small Cause Courts.— The following provisions shall not extend to Courts constituted under the Provincial Small Cause Courts Act, 1887 (9 of 1887), or under the Berar Small Cause Courts Law, 1905 or to Courts exercising the jurisdiction of a Court of Small Causes under the said Act or Law, or to Courts in any part of India to which the said Act does not extend exercising a corresponding jurisdiction, that is to say,—

(a) so much of the body of the Code as relates to—

(i) suits excepted from the cognizance of a Court of Small Causes;

(ii) the execution of decrees in such suits;

(iii) the execution of decrees against immovable property; and

(b) the following sections, that is to say,—

Section 9, sections 91 and 92, sections 94 and 95 so far as they authorize or relate to—

(i) orders for the attachment of immovable property;

(ii) injunctions;

(iii) the appointment of a receiver of immovable property; or

(iv) the interlocutory orders referred to in clause (e) of section 94, and sections 96, 112 and 115.”

6. After amendment, which the said Act suffered in the year 1984, now insofar as the State of Maharashtra is concerned, section 27 will have to be read as section 25-A. As a corollary, Chapter IV-A, in the placement in the statute, would be after section 25-A. By now, it is well settled principle of law that it is to be presumed that each and every word used by the Legislature has been used with an intention and the Courts are bound to give effect to the legislative intent. The words used in section 25-A refer to the decree or order made under the foregoing provisions of the said Act. It could thus be seen that the legislative intention is clear to the effect, that section 25-A would be applicable only to the orders or decrees passed under any of the provisions which fall between sections 1 to 25 and would not be applicable to the sections which follow section 25-A. Even otherwise, in view of the reasons given by us hereinafter, merely using the words that the “decree shall be final”; in our view would not bar the jurisdiction of this Court under section 115 of the said Act.

7. Insofar as contention of Mr. Mirza with regard to sub-section (3) of section 26-a is concerned, the words used by the Legislature are that no further appeal shall lie against any decision in an appeal under sub-section (1). It could thus be seen that the legislative intent is to bar further appeal. In any case, by now, it is settled principal of law that a remedy by way of appeal can only be created by the statutory provision. It could thus be seen that what is barred is; further appeal. If the legislative intent was to bar all further proceedings, the Legislature could have very well used the words, “no further proceedings.” That might have, to some extent, helped the arguments on behalf of the respondents. In that view of the matter, we find that the contention in that regard would not support the case of the respondents.

8. That leaves us with the arguments based on section 7 of the code. The words used in section 7 are that, “The following provisions shall not extend to Courts constituted under the Provincial Small Cause Courts Act, 1887 (9 of 1887) or under the Berar Small Cause Courts Law, 1905”. Sub-Clause (iv) of Clause (b) of section 7 of the code, no doubt bars the remedy of revision. However, we are of the considered view that the bar of revision would be applicable only when a decree or order is passed by a Court constituted under the said Act. Admittedly, the orders under section 26-A are not passed by the Courts constituted under the said Act but by the District Courts, which are constituted under the provisions of the Maharashtra Civil Courts Act.

9. To appreciate the arguments in that behalf, it will be appropriate to refer to the observations of the Apex Court in the case of I.T.I Ltd. (supra). In the said case, a question arose for consideration before the Court that whether revision under section 115 of the code would lie to the High Court as against the order made by the Civil Court in an appeal under section 37 of the Arbitration and Conciliation Act, 1996.

As is prescribed in sub-section (3) of section 26-a of the said Act, subsection (2) of section 37 of the Arbitration Act took away the right of second appeal. It was, therefore, sought to be argued that by necessary implication, it should be held that even revision is not maintainable under section 115 of the code.

Rejecting the said submission, Their Lordships of the Apex Court through Hon’ble Shri Justice Santosh Hegde (As His Lordship then was) observed thus:

“10. We do not agree with this submission of the learned counsel. It is true in the present Act application of the Code is not specifically provided for but what is to be noted is : Is there an express prohibition against the application of the Code to a proceeding arising out of the Act before a civil Court? We find no such specific exclusion of the Code in the present Act. When there is no express exclusion, we cannot by inference hold that the Code is not applicable.

11. It has been held by this Court in more than one case that the jurisdiction of the civil Court to which a right to decide a lis between the parties has been conferred can only be taken by a statute in specific terms and such exclusion of right cannot be easily inferred because there is always a strong presumption that the civil Courts have the jurisdiction to decide all questions of civil nature, therefore, if at all there has to be an inference the same should be in favour of the jurisdiction of the Court rather than the exclusion of such jurisdiction and there being no such exclusion of the Code in specific terms except to the extent stated in section 37(2), we cannot draw an inference that merely because the Act has not provided the Civil Procedure Code to be applicable, by inference it should be held that the Code is inapplicable. This general principle apart, this issue is now settled by the judgment of a 3-Judge Bench of this Court in the case of Bhatia International v. Bulk Trading S.A in C.A No. 6527/2001 decided on 13-3-2002 where in while dealing with a similar argument arising out of the present Act, this Court held:

“While examining a particular provision of a statute to find out whether the jurisdiction of a Court is ousted or not, the principle of universal application is that ordinarily the jurisdiction may not be ousted unless the very statutory provision explicitly indicates or even by inferential conclusion the Court arrives at the same when such a conclusion is the only conclusion.”

It could thus be clearly seen that it has been held by Their Lordships that the jurisdiction of the Civil Court to which a right to decide a lis between the parties has been conferred, can only be taken by a statute in specific terms and such exclusion of right cannot be easily inferred because there is always a strong presumption that the Civil Courts have the jurisdiction to decide all questions of civil nature. Their Lordships further held that there being no such exclusion of the Code in specific terms except of the extent stated in sub-section (2) of section 37 of the arbitration act, an inference has to be drawn in favour of the jurisdiction of the Court rather than exclusion of such a jurisdiction.

10. In the said case, Hon’ble Shri Justice Dharmadhikari, (As His Lordship then was) while concurring with the view taken by Hon’ble Shri Justice Hegde observed thus:

“18. Power conferred on the High Court under section 115 of the code of civil procedure 1908 over all subordinate Courts within its jurisdiction is a supervisory power and has been distinguished from its power of appeal to correct errors of fact and law. The power of revision under section 115 being in the nature of power of superintendence to keep subordinate Courts within the bounds of their jurisdiction cannot be readily inferred to have been excluded by provisions of a special Act unless such exclusion is clearly expressed in that Act. The arbitration and conciliation act of 1996 which is for consideration before us by provision contained in section 37(3) of the said Act only takes away the right of Second Appeal to the High Court. The remedy of revision under section 115 of the code of civil procedure is neither expressly nor impliedly taken away by the said Act.

19. Revisional jurisdiction of superior Court cannot be taken as excluded simply because subordinate Courts exercise a special jurisdiction under a special Act. The reason is that when a special Act on matters governed by that Act confers a jurisdiction on an established Court, as distinguished from a ‘persona designata without any words of limitation, then the ordinary incident of procedure of that Court right of Appeal or revision against its decision is attracted. The right of Second Appeal to the High Court has been expressly taken away by sub-section (3) of section 37 of the Act, but for that reason it cannot be held that the right of revision has also been taken away. See National Telephone Company Ltd. v. Postmaster-General, 1913 Appeal Cases 546 and decision of the Privy Council in Adaikappa Chettiar v. Chandresekhara Thevar, AIR 1948 PC 12 which have been relied by Supreme Court in case of National Sewing Thread Co. Ltd. v. James Chandwick, AIR 1953 SC 357. In National Telephone Company’s case (supra), Viscount Haldane L.C observed thus:—

“When a question is stated to be referred to an established Court without more, it in my opinion, imports that the ordinary incidents of the procedure of that Court are to attach, and also that any general right of appeal from its decision likewise attaches.”

20. ‘The True rule’ is said by Lord Simonds [in Adaikappa Chettiar’s case (supra)] that “where a legal right is in dispute and the ordinary Courts of the country are seized of such dispute the Court are governed by the ordinary rules of procedure applicable thereto and an appeal lies if authorised by such rules, notwithstanding that the legal right claimed arises under a special statute which does not, in terms confer a right of appeal.”

It has been held by Their Lordships that the power conferred on the High Court under section 115 of the code, over all subordinate Courts within its jurisdiction is a supervisory power. It has further been held that the power being in the nature of power of superintendence to keep subordinate Courts within the bounds of their jurisdiction, cannot be readily inferred to have been excluded by provisions of a special Act unless such exclusion is clearly expressed in that Act. Their Lordships further observed that the remedy of revision under section 115 of the code is neither expressly nor impliedly taken away by the said Act.

11. Like in the Arbitration Act, what has been taken by sub-section (3) of the section 26-A of the said Act is right to the second appeal. As has been fairly conceded by Mr. Mirza, the provision of section 25-A of the said Act would not be applicable to section 26-A of the said Act. As already discussed by us that the bar under section 7 of the code would only be applicable if the order is passed by any of the Courts constituted in the said Act.

12. We may also gainfully refer to the judgment of the Supreme Court of a Bench consisting of Three Hon’ble Judges in the case of Jetha Bai and Sons (supra). In the said case, the matter was referred to the Hon’ble Three Judges since the referral Bench was of the view that there was conflict of views in the cases of Aundal Ammal v. Sadasivan Pillai., reported in (1987) 1 SCC 183 : AIR 1987 SC 203 and Shyamaraju Hegde v. V. Venkatesha Bhat, reported in 1987 Supp SCC 321 : AIR 1987 (1) SCC 2323.

13. In Aundal Ammal (supra), the Supreme Court had considered the provisions of the kerala act wherein the words used were thus:

“18. Appeal.— (1) (a) to (4) …………

(5) The decision of the appellate authority, and subject to such decision, an order of the Rent Control Court shall be final and shall not be liable to be called in question in any Court of law, except as provided in section 20.”

(Emphasis supplied).”

Whereas the words used in sub-section (2) of section 50 of the Karnataka Act were thus:

“50. Revision.— (1) …………

(2) The District Judge may, at any time, call for and examine any order passed or proceeding taken by the Court of Munisiff referred to in sub-cl. (in) of Cl. (d) of section 3 for the purpose of satisfying himself as to the legality or correctness of such order in reference thereto as he thinks fit. The order of the District Judge shall be final.”

Noticing this distinction in the two enactments, Their Lordships observed thus:

“15. Even without any discussion it may be seen from the narrative given above that there is really no conflict between the two decisions because the provisions in the two Acts are materially different. However, to clarify matters further we may point out the differences between the two Acts in greater detail and clarity. Under the Kerala Act, against an order passed by a Rent Control Court presided over by a District Munsif, the aggrieved party is conferred a right of appeal under section 18. The Appellate Authority has to be a judicial officer not below the rank of a Subordinate Judge. The Appellate Authority has been conferred powers co-extensive with those of the Rent Control Court but having overriding effect. Having these factors in mind, the Legislature has declared that insofar as an order of a Rent Control Court is concerned it shall be final subject only to any modification or revision by an Appellate Authority; and insofar as an Appellate Authority is concerned, its decision shall be final and shall not be liable to be called in question in any Court of law except as provided in section 20. As regards section 20, a division of the powers of revision exercisable thereunder has been made between the High Court and the District Court. In all those cases where a revision is preferred against a decision of an Appellate Authority of the rank of a Subordinate Judge under section 18, the District Judge has been constituted the revisional authority. It is only in other cases i.e where the decision sought to be revised is that of a judicial officer of a higher rank than a Subordinate Judge, the High Court has been constituted the Revisional authority. The revisional powers conferred under section 20, whether it be on the District Judge or the High Court as the case may be are of greater amplitude than the powers of revision exercisable by a High Court under section 115, civil procedure code. under section 20 the Revisional Authority is entitled to satisfy itself about the legality, regularity or propriety of the orders sought to be revised. Not only that, the Appellate Authority and the Revisional Authority have been expressly conferred powers of remand under section 20-A of the Act. Therefore, a party is afforded an opportunity to put forth his case before the Rent Control Court and then before the Appellate Authority and thereafter if need be before the Court of Revision viz. the District Court if the Appellate Authority is of the rank of a Subordinate Judge. The Legislature in its wisdom has thought that on account of the ample opportunity given to a party to put forth his case before three Courts, viz. the Trial Court, the Appellate Court and the Revisional Court, there was no need to make the revisional order of the District Court subject to further scrutiny by the High Court by means of a second revision either under the Act or under the Civil Procedure Code. It has been pointed out in Aundal Ammal’s case, (1987) 1 SCC 183 : AIR 1987 SC 203 that the Full Bench of the Kerala High Court had failed to construe the terms of section 20 read with section 18(5) in their proper perspective and this failing had affected its conclusion. According to the Full Bench, a revisional order of a District Court under section 20 laid itself open for further challenge to the High Court under section 115, civil procedure code because of two factors viz. (1) there was no mention in the Act that the order would be final and (2) there was no provision in the Act for an appeal being filed against a revisional order under section 20. The Full Bench failed to notice certain crucial factors. In the first place, section 20 is a composite section and refers to the powers of revision exercisable under that section by a District Judge as well as by the High Court. Such being the case if it is to be taken that an order passed by a District Court under section 20 will not have finality because the section does not specifically say so, then it will follow that a revisional order passed by the High Court under section 20(1) also will not have finality. Surely it cannot be contended by anyone that an order passed by a High Court in exercise of its powers of revision under section 20(1) can be subjected to further revision because section 20(1) has not expressly conferred finality to an order passed under that section. Secondly, the terms of section 20(1) have to be read in conjunction with section 18(5). Section 18(5), as already seen, declares that an order of a Rent Control Court shall be final subject to the decision of the Appellate Authority and an order of an Appellate Authority shall be final and shall not be liable to be called in question in any Court of law except as provided for in section 20. When the Legislature has declared that even an order of the Rent Control Court and the decision of the Appellate Authority shall be final at their respective states unless the order is modified by the Appellate Authority or the Revisional Authority as the case may be, there is no necessity for the legislature to declare once over again that an order passed in revision under section 20(1) by the District Judge or the High Court as the case may be will also have the seal of finality. The third aspect is that the legislature has not merely conferred finality to the decision of an Appellate Authority but has further laid down that the decision shall not be liable to be called in question in any Court of law except as provided for in section 20. These additional words clearly spell out the prohibition or exclusion of a second revision under section 115, civil procedure code to the High Court against a revisional order passed by a District Court under section 20 of the Act. This position has been succinctly set out in para 20 of the judgment in Aundal Ammal’s case, (1987) 1 SCC 183 : AIR 1987 SC 203. As was noticed in Vishesh Kumar’s case, the intent behind the bifurcation of the jurisdiction is to reduce the number of revision petitions filed in the High Court and for determining the legislative intent, the Court must as far as possible construe a statute in such a manner as would advance the object of the legislation and suppress the mischief sought to be cured by it.”

14. Their Lordships observed that as a matter of fact, there was no conflict between the two views in the cases of Aundal Ammal and Shyamaraju Hegde (supra). Under the Kerala Act, against an order passed by a Rent Control Court presided over by a District Munsif, the aggrieved party is conferred a right of appeal under section 18. It is further found that the appellate Court has to be a judicial officer not below the rank of a Subordinate Judge. It was further found that the appellate Court has been conferred with the powers coextensive with those of the Rent Control Court but having overriding effect. Their Lordships observed that having these factors in mind, the Legislature has declared that insofar as an order of a Rent Control Court is concerned, it shall be final subject only to any modification or revision by an appellate authority and insofar as an appellate authority is concerned, its decision shall be final and shall not be liable to be called in question in any Court of Law except as provided in section 20. It has further been held that under section 20, division of the powers of revision exercisable thereunder has been made between the High Court and the District Court. It was observed that insofar as the cases where revision is against an order passed in appeal by an appellate authority of the rank of a Subordinate Judge under section 18, the District Judge has been constituted the revisional authority. It has been held that only in other cases i.e where the decision sought to be revised is that of a judicial officer of a higher rank than a Subordinate Judge, the High Court has been constituted the revisional authority. It was further found that the revisional powers conferred under section 20, whether it be on the District Judge or the High Court, as the case may be, are of greater amplitude than the powers of revision exercisable by a High Court under section 115 of the code. In this background, Their Lordships held that the Legislature in its wisdom has thought that on account of the ample opportunity given to a party to put forth his case before three Courts i.e the trial Court, the appellate Court and the revisional Court, there was no need to make the revisional order of the District Court subject to further scrutiny by the High Court by means of a second revision either under the Act or under the Code.

15. It can thus be clearly seen that the case, which fell for consideration in Aundal Ammal (supra) was a case of second revision. Their Lordships further held that sub-section (5) of section 18 specifically provides that the decision shall not be liable to be called in question in any Court of Law except as provided in section 20. Their Lordships observed that these additional words clearly spell out the prohibition or exclusion of a second revision under section 115 of the code to the High Court against a revisional order passed by a District Court under section 20 of the Act.

16. As against this, the words used in the Karnataka enactment, which we have reproduced herein above, only provided that the order of the District Judge shall be final.

17. In the case of Shyamaraju Hegde (supra), Their Lordships relied on their earlier decision in the case of Krishnadas Bhatija v. A.S Venkatachala Shetty (Dead) by LRs., Special Leave Petition No. 913/1978 decided on 12-2-1978 and observed thus:

“The petitioner contends that the order of the High Court. Is without jurisdiction because under section 50 of the karnataka rent control act, 1961, a revision does not lie to the High Court. We do not agree. section 115, civil procedure code gives powers to the High Court to revise any order from the district Court, subject of course to the limitations set out therein. The narrow point then is as to whether the District Judge can be equated with a district Court. The High Court, following its own earlier decisions, has held so. We agree that in the scheme of Karnataka Rent Control Act, the District Judge and the district Court are interchangeable expressions and nothing turns on the mere fact that the section uses the expression ‘District Judge’. section 115, civil procedure code therefore applies and the revisional jurisdiction is vested in the High Court.”

Agreeing with its earlier view in the case of Krishnadas Bhatija, Their Lordships in paragraph 14 of the judgment in the case of Shyamaraju Hegde has observed thus:

“14. On the view we have taken, it must follow that we too are bound by the decision taken by this Court in Krishnadas Bhatija’s case. Krishnaji’s case, ILR 1978 KAR 1585 (F.B) was rendered under the Karnataka Rent Control (Amendment) Act, 1975 and has held the field for over a decade. No justification has been pointed out by the High Court why that should be discarded. It is one of the essential requirements of the administration of justice that judgments rendered by superior Courts and particularly with the approval of the Apex Court should not be frequently changed so as to unsettle settled positions. The fact that the State Legislature has not thought it necessary to amend the law and set at naught Krishnaji or Bhatija is indicative of the position that this Court had not taken a wrong view of the legislative intention. In these circumstance we feel advised not to enter into an analysis of the provisions of the Act for a fresh look at the matter and prefer to follow Bhatija. We make it clear that we have not felt it necessary to examine whether the ratio of Aundal Ammal, (1987) 1 SCC 183 : AIR 1987 SC 203 is binding or requires reconsideration in the presence of Bhatija in the field as a direct authority.”

18. It can thus be seen that Their Lordships in the case of Jetha Bai and Sons (supra) have considered the distinction between the provisions under the kerala act and the provisions under the Karnataka Act. Under the Kerala Act, legislative intent was clear by words that, “an order of the Rent Control Court shall be final and shall not be liable to be called in question in any Court of law, except as provided in section 20.” Therefore, it was held that the legislative intent was to bar all further revision against a revisional order passed by the District Court. Whereas the words used in the Karnataka Act were only giving finality to the order passed by the learned District Judge. Therefore, it was held that the revision under section 115 was tenable.

19. It can thus be seen that the words used in sub-section (3) of section 26-a of the said Act are more nearer to the words used in the Karnataka Act and, as already discussed herein above, section 7 of the code would not be applicable to the orders passed by the District Court since, it is not a Court constituted under the said Act. We are of the considered view that the revision under section 115 of the code would be tenable against the order passed by the District Judge.

20. Insofar as the judgment in the case of Vishesh Kumar v. Shanti Prasad (supra) is concerned, the judgment arose out of the question as to whether once the District Judge having exercised revisional powers, whether consequent revision before the High Court would be tenable either under section 115 of the code or under section 25 of the said Act.

21. In this case, the facts are peculiar. section 115 of the code was amended by the U.P Civil Laws (Amendment) Act, 1970, which provided for exclusive jurisdiction on revision arising out of the original suit of the value of Rs. 20,000/- and above with the High Court and the District Court having concurrent jurisdiction in other matters. However, by the 1972 state amendment, section 115 further suffered an amendment wherein an exclusive jurisdiction was vested with the High Court in the cases arising out of the original suits of the value of Rs. 20,000/- and in all other cases, jurisdiction was vested with the District Court. By the code of civil procedure (amendment) act, 1976, parliament amended section 115 making substantial changes therein. As per the amended Code, the revisional jurisdiction was only with the High Court and, therefore, the earlier Uttar Pradesh laws stood repealed. Again, an amendment was made to section 115 in the year 1978 restoring the original position and also carving out the third situation, by which it provided that the High Court will have exclusive revisional jurisdiction in respect of the cases arising out of the original suits or other proceedings decided by the District Court.

22. In this background, Their Lordships held that the High Court is not vested with the revisional jurisdiction under section 115 of the code over a revisional order made by the District Court under that section. The only question that fell for consideration before Their Lordships was as to when the District Court has exercised the revisional jurisdiction under section 25 of the provincial small cause courts act, whether it was open to the High Court to exercise jurisdiction under section 115 of the code.

Their Lordships held that the revision would not be tenable. This has been held on a conjoint reading of sections 24, 25 and section 27 of the said Act as are applicable to the then State of Uttar Pradesh. It can be seen that in the scheme of the said Act, which is applicable to the State of Uttar Pradesh, section 25 precedes section 27 and since section 27 gives finality to the decrees which are made under the foregoing provisions of the said Act, the view taken by Their Lordships was on account of the statutory scheme as is applicable therein.

23. The distinguishing factor in the present case would be that the prohibitive section i.e Section 25-A of the Act precedes section 26-A and it is made applicable by the Legislature only to the sections which are preceding the section 25-A of the Act.

24. It would also be relevant to note that the judgment in Vishesh Kumar (supra), has also been considered by Their Lordships in Shyamaraju Hegde (supra) wherein Their Lordships observed thus:

“6. This Court then proceeded in Vishesh Kumar’s case to examine the second question. section 25 of the provincial small cause courts act vested revisional jurisdiction in the High Court and that provision was amended in its application of Uttar Pradesh from time to time. By amendment it vested revisional jurisdiction in the District Judge and by a later amendment provided that in relation to any case decided by a District Judge or Additional District Judge exercising jurisdiction of a Judge of Small Causes, the power of revision under section 25 would vest in the High Court. In that case the District Judge had exercised revisional power under section 25 and the question arose as to whether the High Court could entertain a further revision under section 115 of the code of civil procedure. This Court took the view by analysing section 25 of the provincial small cause courts act that it was a self-contained code and section 25 provided the whole revisional jurisdiction and, therefore, the question of invoking the revisional jurisdiction under section 115 of the code of civil procedure did not at all arise. The answer to the second question was in the negative. The two conclusions reached in Vishesh Kumar’s case on the facts thereof were certainly correct but we are concerned with a different set of facts and law. The ratio of the decision in Vishesh Kumar’s case is not directly applicable to the present facts.”

Their Lordships clearly held that the conclusions reached in Vishesh Kumar (supra) was on different set of facts and law.

25. We find that the provisions that fall for consideration before this Court are more similar with the provisions that were considered by Their Lordships of the Apex Court in the cases of Krishnadas Bhatija and Shyamaraju Hegde (supra) and a Bench of the Hon’ble Three Judges of the Supreme Court in Jetha Bai and Sons (supra), has upheld the view taken in the case of Shyamaraju Hegde.

26. In that view of the matter, we find that the present case would not be governed by the law laid down in the case of Vishesh Kumar (supra) but would rather be governed by the law laid down by Shyamaraju Hegde and Jetha Bai and Sons (supra). Though, Mr. Mirza had attempted to contend that there is conflict between the views taken in the cases of Vishesh Kumar and Jetha Bai and Sons (supra), we are of the considered view that there is no conflict in the views taken in the cases of Shyamaraju Hegde and Aundal Ammal (Supra). Both the judgments consider different statutory provisions.

27. Here, it will be appropriate to refer to the following observations in the case of Regional Manager v. Pawan Kumar Dubey, reported in (1976) 3 SCC 334, wherein it is observed thus:

“7. …………Indeed, we do not think that the principles of law declared and applied so have really changed. But, the application of the same law to the differing circumstances and facts of various cases which have come up to this Court could create the impression sometimes that there is some conflict between different decisions of this Court. Even where there appears to be some conflict, it would, we think, vanish when the ratio decidendi of each case is correctly understood. It is the rule deducible from the application of law to the facts and circumstances of a case which constitutes its ratio decidendi and not some conclusion based upon facts which may appear to be similar. One additional or different fact can make a world of difference between conclusions in two cases even when the same principles are applied in each case to similar facts.”

It can thus be seen that Their Lordships have held that one additional or different fact can make a world of difference between the conclusions in two cases even when the same considerations are applied in each case on similar facts.

28. The law laid down by the Hon’ble Apex Court in the case of Jetha Bai and Sons (supra), since is by Three Hon’ble Judges of the Supreme Court, as such the said is binding on us.

29. In that view of the matter, we are of the considered view that the learned Single Judge, in the case of Dilip Bidesh (supra) has erred in holding that revision under section 115 of the code would not be tenable against an order passed under section 26-A of the said Act.

30. That leads us to consider the last question i.e as to whether in view of the availability of the remedy under section 115 of the code, a party would be precluded from approaching this Court by way a writ petition under article 227 of the constitution as has been held by the learned Single Judge of this Court in the Case of Dhuliabai Mana Praga (supra).

31. We find that it will not be necessary for us to labour much on the said issue, in view of the judgment of the Division Bench of this Court in the case of Prabhulal Chhogalal Mandore (supra). It will be appropriate to refer to paragraph 11 of the said judgment, which reads thus:

“11. Shared Manohar J. while construing the provisions of section 25 of the amending act had observed that “No doubt the proceedings contemplated by the explanation to said section 25 include the proceedings under section 115 of the code of civil procedure that is to say the revisional proceedings instituted in this Court”. section 115 of the code of civil procedure, provides that the High Court may call for the record of any case which has been decided by any Court subordinate to such a High Court and in which no appeal lies thereto, obviously subject to the limitations enumerated in the said section. It is an admitted position that against the order of district Court in appeal under section 29 of the bombay rent act, no appeal lies to the High Court. Therefore obviously powers of the High Court under section 115 of the code of civil procedure could be invoked. As held by the Supreme Court in Shankar R. Abhankar’s case, there are two modes of invoking jurisdiction of the High Court, i.e either under section 115 of the code of civil procedure and/or under article 227 of the constitution of india. The law laid down therein has been further clarified by the Supreme Court in (1986) 4 SCC 146 : AIR 1986 SC 1780, Indian Oil Corpn. Ltd. v. State of Bihar, which reads as under:

“11. The doctrine of election referred to by the High Court has no application at all to the present situation and the decision in Shankar Ramchandra Abhyankar v. Krishnaji Dattatraya Bapat, is clearly distinguishable. The question that arose in that case was whether a party who had a choice of resorting to one of two remedies before the same Court namely, the High Court, could successively move the High Court under section 115 of the civil procedure code and again under articles 226 and 227 of the constitution. The question was answered in the negative for the simple reason that the order passed by High Court under the first proceeding would conclude the matter interparties. In such a situation the party had to exercise his choice and elect which remedy he would resort to in the High Court.”

Therefore, obviously two modes are available for approaching the High Court against the order passed in appeal by the district Court under section 29 of the Bombay Rent Act. A revision under section 115 of the code of civil procedure is a normal remedy provided by the Code of Civil Procedure itself. A writ petition under article 227 of the constitution of india is the second mode available to an aggrieved party. Therefore, in our view it will not be fair to hold that the word ‘proceeding’ as used in section 25 of the amending act, will cover a proceeding instituted under section 115 of the code of civil procedure but will not include a writ petition filed under article 227 of the constitution of india.”

Perusal of the aforesaid would reveal that the Division Bench relying on the law laid down by the Hon’ble Apex Court in the case of Indian Oil Corpn. Ltd. v. State of Bihar, reported in (1986) 4 SCC 146 : AIR 1986 SC 1780, has held that there are two modes of invoking jurisdiction of the High Court under almost identical provisions i.e either under section 115 of the code and/or under article 226 and 227 of the constitution of india. The Supreme Court in unequivocal terms held that in such a situation, a party had to exercise the choice and to elect a remedy, which he would resort in the High Court.

32. The learned Single Judge, in the case of Wamanrao s/o Vyankatrao Shinde (supra), has rightly, without waiting for the answer by this Court, taken a view that in similar circumstances a party would be entitled to elect a remedy either by filing the revision under section 115 of the code or under article 227 of the constitution of india.

33. In that view of the matter, we hold that the view taken by the learned Single Judge in the case of Dhuliabai Mana Praga v. Manikbai Vithalrao Bhusarath (deceased), that remedy of filing writ petition under Article 227 to challenge the order passed by the District Judge, is not laying a correct position of law.

34. We, therefore, answer the reference as under:

(I) The view taken by the learned Single Judge in the Case of Dilip Bidesh v. Shivgopal Madangopal Chaurasia that revision under section 115 of the code would not be tenable against the order under section 26-A of the said Act does not lay down the correct position of law.

(II) The view taken by the learned Single Judge in the case of Dhuliabai Mana Praga v. Manikbai Vithalrao Bhusarath (Deceased), to the extent that revision under section 115 of the code is tenable against an order passed under the analogous provisions, is correct. However, the view that the writ petition would not be tenable under article 227 of the constitution of india against such an order, in our view, does not lay down correct position of law.

(III) In our considered view, a party aggrieved by the order passed under section 26-A of the said Act by the District Court would be at liberty to choose to file either Civil Revision Application under section 115 of the code or a petition under article 227 of the constitution of india.

(IV) The matter be placed before the learned Single Judge for decision, in accordance with what has been held herein. Before parting, we express our gratitude for valuable assistance rendered by Mr. Kavimandan, Advocate under the able guidance of Mr. R.L Khapre, Advocate and also Mr. F.T Mirza, Advocate with Mr. Anand Deshpande, Advocate.

Reference answered accordingly.

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