Balakrishnan v. Mariyumma

Koshy, J.

The important question raised in this revision petition is whether a revision petition will lie under S.115 of the Code of Civil Procedure against an interim order passed by the Rent Control Court. A learned Single judge of this Court in CRP No. 2756 of 1994 held that no revision under S.115 of the Code of Civil Procedure will lie against the order of the Rent Control Court as it is a persona designata. Based upon the above decision, when the present revision petitioner tiled this revision, office did not number the same. Another learned Stigler Judge of this Court directed the office to number the revision petition in view of the decision in Abdul Rehiman v. Hameed Hassan (1995 (2) KLT 794) wherein it was held that Rent Control Court is a Court and not a persona designata. Therefore, office numbered the same and in view of the conflicting views the matter was referred to the Division Bench.

2. Revision petitioner herein was the respondent in Rent Control Proceedings R.C.P. No. 111 of 1995 before the Rent Control Court, Kannur. The eviction petition was filed by the respondent/ landlord on the assumption that he is entitled to apply for eviction. Revision petitioner filed O.S. No. 265 of 1995 before the Munsiffs Court, Kannur. Respondent/ landlord is the second defendant in the above suit. The contention in the above case was that the revision petitioner/ tenant is not a tenant but he is the owner entitled to deal with the properties. Since the Rent Control Petition as well the suit, O.S. No. 265 of 1995, came before the same Munsiff, petitioner filed I. A. No. 2430 of 1996 in the RCP praying for joint trial of the Rent Control petition along with the suit. The Rent Control Court rejected the above application holding that such joint trial is improper. According to the Court, if a joint trial is ordered it virtually amounts to consolidation of the cases and only one judgment can be pronounced, but the appellate Authorities are different. Accordingly the application for joint trial was rejected. While rejecting the application for joint trial court also referred to the decision of this Court in Kajaria Co. (P) Ltd. v.. Vimala Bai (1967 KLT 575). It is contended by the revision petitioner that the above order is incorrect. It. was held by this Court in Sumathi v. Devasan (1991 (1) KLT 453) that any order of whatever nature made by the Rent Control Court is not made appealable under S.18 merely because it is an order passed by the Rent Control Court. The expression "an order" cannot be construed as making each and every order, interlocutory or otherwise, appealable. It was also held that orders pertaining to matters merely of procedure are not appealable. Various earlier decisions were followed in the above case. Similar view was taken in the decision in Charulatha v. Manju (1994 (1) KLT 133). It was held in Narayanan v. Shertallai Miittathu Pallikariam (ILR 1970(2) Ker. 310) that an appeal under S.18(1) is not restricted to the final order passed in a case. It is submitted that since this is an order merely on procedure, an appeal will not lie and therefore, a revision petition under S.115 of the CPC alone will lie. S.115 of the Code of Civil Procedure reads as follows:

"115. Revision:- (1) The High Court may call for the record of any case which has been decided by any Court subordinate to such High Court and in which no appeal lies thereto, and if such subordinate Court appears -

(a) to have exercised a jurisdiction not vested in it by law, or

(b) to have failed to exercise a jurisdiction so vested, or

(c) to have acted in the exercise of its jurisdiction illegally or with material irregularity, the High Court may make such order in the case as it thinks fit:

Provided that the High Court shall not, under tins section, vary or reverse any order made, or any order deciding an issue, in the course of a suit or other proceeding, except where -

(a) the order, if it had been made in favour of the party applying for revision, would have finally disposed of the suit or oilier proceeding, or

(b) the order, if allowed to stand, would occasion a failure of justice or cause irreparable injury to the party against whom it was made.

(2) The High Court shall not, under this section, vary or reverse any decree or order against which an appeal lies either to the High Court or to any Court subordinate thereto."

3. It is the contention of the petitioner that Rent Control Court is aCourt and when a non-appealable order is passed by that Court, a revision petition under S.115 will lie. Learned Counsel for the petitioner relied on the devisors of the Supreme Court in Gopalan v. Aboobacker (1995 (2) KLT 205 [LQ/SC/1995/692] =1995 (2) KLJ 136 [LQ/SC/1995/692] ) wherein it was held that Rent Control Court is not a persona designata and it is a Court for the purpose of Limitation Act. It was held in the above case that the District Judge functioning as an appellate Authority is not apersona designata and even if concerned District Judge retires or gets transfer, otherwise ceases to hold the office of the District Judge, his successor in office can pick up the thread of the proceedings from the stage where it was left by his predecessor and can function as an appellate Authority under S.18. Therefore, it is obvious that while adjudicating upon the dispute between the landlord and tenant and while deciding the question whether the Rent Control Courts order is justified or not such appellate Authorities would be functioning as Courts. The above decision was followed in Abdul Rehiman v. Hameed Hassan Peruvad & Ors. (1995 (2) KLT 794 =1995 (2) KLJ 435 [LQ/KerHC/1995/348] ). In Gopalans case, (1995(2) KLT 205) it was held by the Supreme Court that application under S.29(2) of the Limitation Act applies to all courts where judicial functions are carried out and it need not necessarily be constituted under the CPC or a civil court. It was held that provisions of S.4 to 24 of the Limitation Act are applicable to the appellate Court constituted under the Kerala Buildings (Lease and Rent Control) Act on a finding that the appellate Authority constituted by S.18 of the Rent Control Act was not apersona designata. Overruling the Full Bench decision of the High Court of Kerala in Jokkim Fernandez v. Amina Kunhi Umma (1973 KLT 138) it was held by the Supreme Court that Rent Control Court and the appellate Authority are not persona designata. The Court referred to the decision of the Supreme Court in Central Talkies Ltd., Kaiipurv. Dwarka Prasad (AIR 1961 SC 606 [LQ/SC/1961/20] ) wherein Hidayatullah, J. observed as follows:

"A persona designata is " a person who is pointed out or described as an individual,

as opposed to a person ascertained as a member of a class, or as filling a particular character". (See

Osboms Concise Law Dictionary, 4th Edn. P. 253.) In the words of Schwabe, C..T. in Parthasaradhi Naidu v. KoteswaraRao, lLR 47 Mad. 369 [LQ/MadHC/1923/395] , (AIR 1924 Mad. 561 [LQ/MadHC/1923/396] ) (FB), persona designata are "persons selected to act in their private capacity and not in their capacity as Judges". The same consideration applies also to a well known officer like the District Magistrate named by virtue of his office, and whose powers the Additional District Magistrate can also exercise and who can create other officers equal to himself for the purposes of the Evident Act. The decision of Sapru, J. in the Allahabad case, with respect, was erroneous."

applying the above decision in 1995(2) KLT 205 Supreme Court held that appellate Authorities as constituted under S.18 of the Rent Act being the District Judges they constituted a class and cannot be considered to be persona designata. applying the above reasoning the Rent Control Court being Munsiffs are also constituted a class and cannot be considered as persona designata. Therefore, the view of the learned Single Judge that Rent Control Court is a persona designata cannot be accepted in view of the decision of the Supreme Court reported in 1995 (2)

.4. In Abdul Rehiman v. Hameed Hassan Peruvad (1995 (2) KLT 794) learned Single Judge of this Court followed the decision of the Supreme Court in 1995 (2) KLT 205. [LQ/SC/1995/692] In view of the binding pronouncement of the Supreme Court it can be clearly stated that Rent Control Court or the appellate Authority under the Rent Act cannot be called a persona designata, but it is a Court. But that will not be enough for attracting the provisions of S.115 of the Code of Civil Procedure.

5. For application of S.115 of the Code of Civil Procedure it should be a court subordinate to the High Court. Which is a court subordinate to the High Court is mentioned in S.3 of the CPC which reads as follows:

"3. Subordination of Courts - For the purpose of this Code, the District Court is subordinate to the High Court, and every Civil Court of a grade inferior to that of a District Court and every Court of Small Causes is subordinate to the High Court and District Court."

Therefore, for attracting S.115 of the CPC, it should be a Civil Court and provisions of the CPC should be applicable to the above. In Sailaja Kanta Mitra v. State of West Bengal (AIR 1971 Calcutta 137) it was held that an arbitrator for settling compensation payable under S.19 of the Defence of India Act is not a Civil Court eventhough he is deemed to be a Court and the decree passed by him is enforceable in the same manner as a decree of the Civil Court. So, the question to be considered is that whether Rent Control Court is a Civil Court subordinate to the High Court covered by S.115 of the Code of Civil Procedure. Admittedly, all provisions of the Code of Civil Procedure are not applicable to the Rent Control Court. Merely because it is aCourt as held for the purpose of certain sections in Limitation Act, the Rent Control Court will not be a Civil Court for application of S.115 of the CPC. This question was also considered by the Supreme Court in Gopalans case reported in 1995 (2) KLT 205. [LQ/SC/1995/692] The question to be considered in Gopalans case as well as by this Court in Abdul Rehimans Case reported in 1995 (2) KLT 794 was whether provisions of S.29(2) of the Limitation Act applies to appeals under S.18 of the Rent Act and whether S.5 of the Limitation Act applies to appeals filed under S.18. It was argued in that case that S.29(2) itself will not apply to them unless it is held that the appellate authority functioning as a court was constituted under the Civil Procedure Code. Supreme Court rejected that argument and held that:

"If according to Mr. Nariman S.29(2) can apply to only those courts which are constituted under the Civil Procedure Code then the entire scheme of Limitation Act from Ss.3 to 24 onwards would apply to proceedings of such courts on its own force and in that eventually provisions contained in S.29(2) for applying Ss.4 to 24 of Limitation Act, 1963 to such Court proceedings would be rendered otiose and redundant."

After analysis of the section court held that nowhere it is indicated that as per S.29(2) the Courts functioning under such special or local law must be governed whole hog by Civil Procedure Code. But Supreme Court accepted the argument of Mr. Nariman in the above case that Rent Control Court is not a full-fledged civil court and it cannot be considered strictly as civil courts fully governed by the Code of Civil Procedure. The Court held as follows:

"In order to support his contention Mr. Nariman invited our attention to the relevant provisions of the Rent Act, namely, Ss.20, 22, 23 as well as second proviso to S.11(1) and contended that a Rent Court functioning under the Rent Control Act is not a full-fledged civil Court. If it was a full-fledged civil court there would have been no occasion for the Legislature to provide that certain provisions of Code of Civil Procedure, 1908 will govern such proceedings. To that extent, Mr. Nariman is right We will proceed on the basis that Rent Court functioning under the Rent Act or for that matter the appellate authority disputes between landlords and tenants in a judicial manner may not be considered strictly as civil courts fully governed by the Code of Civil Procedure.

6. In Town Municipal Council, Athani v. Presiding Officer, Labour Court, Hubli & Ors. (1970 (1) SCR 51 [LQ/SC/1969/137] ) it was held by the Supreme Court that Labour Court is not a court as contemplated under the Code of Civil Procedure. This decision was considered and accepted by the Supreme Court in Gopalans case (1995 (2) KLT 205 [LQ/SC/1995/692] ). In that case, a bench of two judges of the Supreme Court was concerned with the short question whether any period of limitation governed an application under S.33(c)(2) of Industrial Disputes Act, 1947. The High Court had taken the view agreeing with the Labour Court that Art.137 of the Limitation Act, 1963 would govern such applications. Reversing that view it was held that Labour Court exercising powers under S.33(c) (2) of Industrial Disputes Act may be acting as quasi judicial authority or even as a court but as it was not a civil court contemplated by the Civil Procedure Code, Art.137 of the Schedule to the Limitation Act could not get attracted. Bhargava, J. speaking for the Supreme Court held that Art.137 of the Limitation Act, 1963 governs only applications presented to Courts under the Civil and Criminal Procedure Codes. Supreme Court also referred to the earlier decisions in Nityananda M. Joshi & Ors. v. Life Insurance Corporation of India & Others. (1971 (1) SCR 396 [LQ/SC/1970/230] ) and in Kerala State Electricity Board, Trivandrum v. T.P.K.K. Amsom and Desom, Kerala (1976 KLT 810 [LQ/SC/1976/406] ). Both these cases deal with Art.137 of the Limitation Act. It was held that the said Article relates to application before a civil court and Labour Court under the Industrial Disputes Act or the District Judge under the Indian Telegraph Act is not a civil Court eventhough they are courts. But it was held that the above decisions will not be attracted for application of Ss.4 to 24 of the Limitation Act. The Court distinguished the case of Town Municipal Council, Athani v. Presiding officer Labour Court, Hubli and Ors as follows:

"We fail to appreciate how the aforesaid decision is of any avail to Mr. Nariman on the facts of the present case. It is obvious that Schedule to the Limitation Act is a part and parcel of the Limitation Act. It has therefore, to be read in conjunction with S.3. Sub-s.1 of S.3 of Limitation Act lays down that subject to the provisions contained in Ss.4 to 24 (inclusive) every suit instituted, appeal preferred and application made after the prescribed period shall be dismissed although limitation has not been set up as a defence. It becomes therefore clear that the as such governs period of limitation prescribed for suit, appeal or application under the schedule and the schedule to the Limitation Act which consists of different divisions relates to proceedings which are to be filed before full fledged civil or criminal courts as the case may be. First Division deals with suits. Part I deals with suits relating to accounts. Part II deals with suits relating to contracts. Part III deals with suits relating to declarations. Part IV deals with suits relating to decrees and instruments. Part V deals with suits relating to immovable property. Part VI deals with suits relating to movable property. Part VIII deals with suits relating to trusts and trust property. Part IX deals with suits relating to miscellaneous matters. Part X deals with suits for which there is no prescribed period. It is obvious that provisions of these parts in first division will govern suits to be filed before regular courts functioning under Civil Procedure Code. When we turn to the second division, it deals with appeals which may be filed under Civil Procedure Code or Criminal Procedure Code or from a decree or order of any High Court to be same Court. They would obviously refer to appeals before regular, Civil or Criminal Courts or High Courts as the case may be. The third division deals with applications. These applications also have to be filed before regular civil court or High Court or Supreme Court as the case may be. To all these proceedings of these Courts, the entire machinery of the Civil Procedure Code would get attracted and they can be considered to be full-fledged civil courts before whom applications can be moved. Consequently, it has to be held mat the entire schedule to the Limitation Act prescribes various periods of limitation for suit, appeal or application to be moved before full-fledged civil or criminal Courts. As Art.137 deals with one of such applications as found in third division, this court held in the case of Town Municipal Council, Athani v. Presiding Officer, Labour Court, Hubli & Ors. (Supra), that the said Article could apply only to application before full-fledged civil court and as the labour court was not one of such courts though established under special or local law".

Therefore, on the same reasons in Gopalans case, it can be held that eventhough the appellate Authority under the Rent Act is a court and not a persona designata it is not a full fledged civil court under the Civil Procedure Code.

7. The next decision cited by the petitioner is the decision of the Punjab and Haryana High Court in Smt. Vidya Devi, widow of Ramji Dass v. Firm Madan Lai Prem Kumar (AIR 1971 P & H 150) wherein the question considered was whether Rent Control Court is a civil Court for the purpose of S.195(1)(b) and whether such court can take action for committing perjury. The Court held that Rent Controller is a Court in view of the deeming provisions of S.195(1)(b) of the Cr.P.C. and therefore, that decision is not helpful to the petitioner.

8. In Bhanumathi v. Eapen (1966 KLT 393) it was held by this Court that a Munsiff before whom an election petition is filed under S.22 and 24 of the Kerala Panchayat Act, 1960 has to act judicially in the sense that he has to function in all respects as a court, but that does not mean that he functions as a court subordinate to this Court so as to enable this Court to exercise jurisdiction under S.115 of the Code of Civil Procedure. Eventhough, the above decision also referred to R.4 of the Kerala Panchayat (decision of Election Disputes) Rules, 1963 which makes the Munsiff exercising jurisdiction under Ss.22 and 24 of the as a persona designata, Court also observed as follows:

"Now the question is as to whether the contention of the learned counsel for the petitioner that this revision petition under S.115 CPC, as against the order passed by the Munsiff functioning under the provisions of the, is maintainable, is to be accepted or not. In my opinion, it is not possible to accept the contention of the learned counsel that the correctness or otherwise of the order under attack, can be considered by this Court exercising jurisdiction under S.115 of the Code. It will be seen that S.22(6) of the clearly states that the exercise of jurisdiction by the Munsiff is subject to the provisions of the and the rules."

9. In Leela v. Pushpam (1996 (2) KLT 350) it was held by one of us (Koshy, J.) that eventhough the Munsiff hearing the election petition under the provisions of the Panchayat Raj Act is not a persona designata, it is not a Court as contemplated under S.115 CPC and therefore, revision petition is not maintainable from the interim orders of the Munsiff who is acting as an election tribunal under the Panchayat Raj Act eventhough such interim orders are not appealable.

10. In Shyam Sunder agarwal & Co. v. Union of India ((1969) 2 SCC 132) it was held by the Apex Court that a revision petition filed under S.115 CPC from the decision of the District Court under the Arbitration Act is maintainable eventhough as per the such decisions are final. It was held by the Supreme Court that revision application can be filed under S.115 CPC before the High Court against the appellate order passed under S.39 of the Arbitration Act in view of specific provisions attracting CPC. S.39(2) of the Arbitration Act states as follows:

"No second appeal shall lie from an order passed in appeal under this Section, but nothing in this section shall eject or take away any right to appeal to the Supreme Court". Section 41 of the Arbitration Act provides as follows:

"(a) the provisions of the Code of Civil Procedure, 1908 shall apply to all proceedings before the Court, and to all appeals, under this Act; and

(b) the Court shall have, for the purpose of, and in relation to, arbitration proceedings, the same power of-making orders in respect of any of the matters set in the second schedule as it has for the purpose of, and in relation to, any proceedings before the Court."

11. In Medill and Co. (P) Ltd. v. Gouri Shankar Sarada (1991 (2) SCC 548 [LQ/SC/1991/142] ) Supreme Court held that S.41 of the Arbitration Act provides that the provisions of CPC shall apply to all proceedings before the court and to all appeals, under this Act. In view of the above provisions there is no bar of jurisdiction of the High Court under S.115 of the CPC. All provisions of the CPC are made expressly applicable to the appeals, under the Arbitration Act and in the absence of any specific bar, S.115 of the CPC is also applicable. There is no such provision in the Rent Control Act, but it was repeatedly held that all provisions of the CPC are not applicable to Rent Control Proceedings. If all provisions of CPC are applicable there was no necessity for S.23 which provides for application of certain provisions of CPC, as helAm Sathyanarayana Chettiar v. Rent Controller (1992 (2) KLT 298)

12. It was held by the Supreme Court in Chhotelal Pyarelal v. Shikarchand (AIR 1984 SC 1570 [LQ/SC/1984/184] ) that Code of Civil Procedure does not apply to proceedings under the and therefore, application for eviction cannot be maintained against a firm in the firm name. In various decisions including the decision in Ebrahim Ismail Kunju v. Phasila Beevi (1991(1) KLT 861) it was held by this Court that if there be no statutory prohibition, the Tribunal should therefore, normally be in a position to ordain its affairs and modulate its procedures in such a manner as to best subserve the interest of the public and in particular the litigant public.

13. In the Reference Order, a decision of the Full Bench of this Court in Ouseph Vareedv. Mary (1968 KLT 583 [LQ/SC/1986/511 ;] ">(1968 KLT 583 [LQ/SC/1986/511 ;] [LQ/SC/1986/511 ;] ) (FB) is mentioned where it was held that in exercising the revisional power under S.20 of the the revisional authority, viz., the District Court, functions as a Court and that the ordinary incidents of the procedure of that Court, including any rights of appeal or revision, will attach to the decision rendered by the District Court in the exercise of the jurisdiction conferred by S.20. Apex Court overruled this decision in Aundal Animal v. Sadasivan Pillai (1987 (1) KLT53) and held that a second revision will not lie under S.115 of the CPC from such order. But, in the Full Bench decision, it was also held that Rent Control Court and appellate Authority are persona designata and are not courts. Even though in view of the Supreme Court decision in Gopalans case, it can no longer be held that Rent Control Court is a persona designata, the following observation of the Full Bench is not overruled:

"It is clear from an examination of the relevant provisions of the that the Rent Control Courts as well as the appellate authorities are special tribunals created by the statute and do not form part of the hierarchy of the established civil courts of the State".

14. A Division Bench of this Court in Beemn v. Rajappan (1980 KLT 210) considered whether a non-appealable order of the Claims Tribunal under the Motor Vehicles Act can be revised under S.115 of the CPC. This Court held that the Claims Tribunal ims judicial power of the State to decide the disputes between the citizens and the disputes between citizens and State which are to be left to the adjudication of the hierarchy of the Courts established under the Constitution. The Civil Court and Tribunal, both are vested with the judicial powers of the State. But that does not mean both are same. In one sense, all Courts are tribunals. But all tribunals will not be Courts, Courts in the strict sense. A Civil Court has judicial power of the State to try of all suits of civil nature excepting suits for which there is statutory bar. But judicial power is statutorily conferred on a tribunal to deal with special matters only. The Division Bench of this Court noted that only certain provisions of the CPC are applicable under the Motor Vehicles Act and held that Claims Tribunal is not a Court and its non-appealable orders are not revisable under S.115 of the CPC. It was held by this Court that it is clear from the relevant provisions of the that Rent Control Court as well as appellate Authority are not civil Courts. It was held by the Supreme Court that it is not a persona designata but from the observations in Gopalans case it is clear that Rent Control Court and appellate Authority are not Civil Courts coming under the hierarchy of the Courts under the CPC and therefore, S.115 of the Code of Civil Procedure is not applicable.

In view of the discussion, it is clear that eventhough Rent Control Court under the Rent Control Act is a Court and is not a persona designata, it is not a Civil Court for the purpose of the provisions of S.115 of the CPC. Therefore, against an interim order of the Rent Control Court, no re vision petition will lie. We are not considering whether an appeal will Me against the interim order in question or whether a petition under An. 227 of the Constitution is maintainable We are informed that a writ petition was already filed. This revision petition is dismissed as not maintainable without prejudice to the right of the petitioner in pursuing any other remedies legally available to him.