SHANKAR RAMCHANDRA ABHYANKAR Vs. KRISHNAJI DATTATREYA BAPAT

JUDGEMENT

(1.) This is an appeal by special leave from a judgment of the Division Bench of the Bombay High Court. The only question for decision is whether the High Court could interfere, under Arts. 226 and 227 of the Constitution with the order of the appellate Court in proceedings under the Bombay Rents, Hotel Rates Control Act, 1947, hereinafter called the "Act", when a petition for revision under Section 115, Civil Procedure Code, against the same order had been previously dismissed by a Single Judge of that Court.

(2.) The appellant is the owner of a house in Poona. The respondent, who was a teacher, was the tenant of a block of four rooms on the first floor of the house. In 1958 he was transferred to another town Wai where he was allotted suitable residential accommodation. His son, however, stayed on in Poona as he was studying there. The appellant filed a suit in the Court of Judge, Small Causes, under the provisions of the Act for possession of the suit premises, inter alia, on the ground that the respondent had acquired suitable accommodation elsewhere. The position taken up by the respondent was that his son was required to stay on in Poona and for that reason it could not be said that he had acquired suitable residence at Wai. Moreover he had gone away from Poona only temporarily and on his return the premises would be required for his own use. The trial Court held that only a part of the premises which were required by the son should be vacated. It granted a decree for possession of two out of four rooms and directed proportionate reduction of the rent. Both sides filed appeals in the Court of the District Judge. The Extra Assistant Judge who disposed them of was of the view that the Court was not empowered to bifurcate the premises. It was either suitable for the whole family or it was not suitable. But he affirmed the decree on the ground that the order of the trial Court was an equitable one. The respondent preferred a petition for revision under Section 115 of the Code of Civil Procedure before the High Court. A learned Single Judge who heard the petition dismissed it as he was not satisfied that the appellate Court had acted in the exercise of its jurisdiction illegally or with material irregularity. The respondent moved a petition under Articles 226 and 227 of the Constitution challenging the same order of the appellate Court. Following a decision of a full Bench in K. B. Sipahimalani vs. Fidahussein Vallibhoy, (1958) 58 LR 344 the Division Bench which heard the writ petition held that in spite of the dismissal of the petition by the learned Single Judge there could be interference under Articles 226 and 227 of the Constitution on a proper case being made out. After going into the merits the bench expressed the view that the respondent had not acquired an alternative suitable residence. The Courts below were, therefore, wrong in coming to the contrary conclusion. As Section 13 (1) (1) of the Act had been misconstrued and the error was apparent on the record the orders of the Courts below were set aside.

(3.) Now as is well known Section 115 of the Civil Procedure Code empowers the High Court to call for the record of any case which has been decided by any Court subordinate to it and in which the appeal lies to it. It can interfere if the subordinate Court appears to have exercised the jurisdiction not vested in it by law or to have failed to exercise the jurisdiction so vested or to have acted in the exercise of its jurisdiction illegally or with material irregularity. The limits of the jurisdiction of the High Court under this section are well defined by a long course of judicial decisions. If the revisional jurisdiction is invoked and both parties are heard and an order is made the question is whether the order of the Subordinate Court has become merged in the order of the High Court. If it has got merged and the order is only of the High Court, the order of the Subordinate Court cannot be challenged or attacked by another set of proceedings in the High Court, namely, by means of a petition under Article 226 or 227 of the Constitution. It is only if by dismissal of the revision petition the order of the Subordinate Court has not become merged in that of the High Court that it may be open to a party to invoke the extraordinary writ jurisdiction of that Court. There again the question will arise whether it would be right and proper for the High Court to interfere with an order of a Subordinate Court in a writ petition when a petition for revision under S. 115, Civil Procedure Code, against the same order has been dismissed. Such a consideration will also enter into the exercise of discretion in a petition under Article 226 or 227.