@JUDGMENTTAG-ORDER
1. The petitioner is a tenant under the respondent in respect of a nonresidential premises bearing CTS No. 544/B measuring 169 Sq. Yds., situated in Ward III of Hubli City. The landlord claimed possession of the premises in H.R.C. No. 293 of 1972 on the file of the Munsiff, Hubli under clause (h) of sub-sec. (1) of S. 21 of the Karnataka Rent Control Act, 1961 (the Act). Though the learned Munsiff held that the premises was reasonably and bona fide required by the land lord, he rejected his claim on the ground that greater hardship would be caused to the tenant by passing a decree than by refusing to pass it. In the revision preferred by the land lord, the II Additional District Judge, Hubli, by his order dt. 14-9-83, in C.R.P. No. 26 of 1977 on his file, upholding the landlord''s claim has directed the tenant to vacate and handover vacant possession of the premises in favour of the land lord. In this revision preferred under S. 115 CPC, the tenant is challenging that order.
2. The tenant is carrying on wholesale business in fruits in the premises. The premises consists of a small room measuring about 35'' x 35'' and some open space in front. The tenant is said to have temporarily covered that space using the entire area for his business. The land lord has more than one business in the town. Near the premises in question he is also carrying on business in betel nuts in a rented premises.
3. Since both the Courts below have concurrently held that the land lord bonafide and reasonably required the premises in question for his own use I am not, in this revision under S. 115 CPC., inclined to disturb that finding.
4. The only question that survives for consideration is the question of comparative hardship within the meaning of sub-sec. (4) of S. 21 of the Act.
5. Elaborate submissions were made by the learned counsel appearing for the contesting parties on this question. At the very outset the learned counsel for the respondent raised a preliminary objection for admitting this revision. Drawing my attention to the limits of jurisdiction under S. 115 CPC he argued that the case on hand was not a fit one for entertaining a revision under that provision. Let me examine that question first.
6. This Court, in exercise, of its revisional powers under S. 115, can interfere, with the decision of any Court subordinate to it...........If such Court appears (a) to have exercised a jurisdiction not vested in it by law, or (b) to have failed toexercise a jurisdiction so vested, or (c) to have Acted in the exercise of its jurisdiction illegally or with material irregularity.
7. The Court below cannot be said to have committed any errors falling into the clauses (a) and (b) of sub-sec. (1) of S. 115 CPC. We have to examine as to whether this revision can be entertained under cl. (c) of that sub-section.
8. Counsel for the petitioner-tenant submitted that the Court below had not properly approached the question of comparative hardship and, having not applied the relevant norms to find an answer to the question, had erred in awarding possession to the landlord. According to him such a lapse committed by the Court below clearly comes within the mischief of clause (c) of sub-sec. (1) of S. 115 CPC and therefore, entertaining this revision, the question raised may be examined on merits.
9. While opposing the admission of this revision the Counsel for the respondent-landlord also placed for my consideration several authorities.
In Manindra Land and Building Corporation Ltd., v. Bhutnath Banerjee (AIR 1964 S.C. 1336), a Subordinate Court, exercising its discretion had condoned the delay committed by a party in filing an application to set aside abatement of a suit. That order was challenged in the High Court successfully. The Supreme Court was of the view that the High Court had committed an error in interfering with that order of the Subordinate Court in view of the fact that no question re; the irregular exercise or non-exercise of jurisdiction or illegal assumption of jurisdiction by the Subordinate Court had arisen for interference.
In Vora Abbasbhai Alimakomed v. Haji Gulamnabi Haji Safibhai (AIR 1964 SC 1341), with reference to clause (c) of sub-sec. (1) of S. 115 itself the Supreme Court observes that "if the trial Court had jurisdiction to decide a question before it and did decide it, whether it decided it rightly or wrongly the Court had jurisdiction to decide the case and even if it decides the question wrongly it did not exercise its jurisdiction illegally or with material irregularity" (See left hand column at page 1342 and end of para 16 at page 1348).
On Similar lines are the observations of the Supreme Court in Ramniklal Pitambardas Mehta v. Indradaman Amratlal Sixth (AIR 1976 SC 153); The Managing Director (MIG) Hindustan Aeronautics Ltd., Balanagar, Hyderabad v. Ajit Prasad Tarway, Manager (Purchase & Stores) H.A.L. Balanagar, Hyderabad (AIR 1973 SC 76); and of this Court in Rajagopalaiah Shetty v. N. Radhakrishnan ((1983) 2 Kar. L.J. 284) wherein this Court has observed that "it is only mis-interpretation of law affecting jurisdiction like limitation, res judicata, or provisions creating bar of jurisdiction that can be corrected under S. 115 CPC".
10. In Pandurang Dhondi Chougule v. Maruti Hari Jadhav (AIR 1966 SC 153), a decision of the Supreme Court and by a Bench consisting of five learned Judges, the bone of contention between the parties centred round the construction of a decree obtained in a previous Civil Proceeding. The District Court was of the view that that previous decree had extinguished the right of redemption vested in the respondent. Exercising its powers of revision under S. 115 CPC the High Court differing from the District Court, held that the previous decree had not extinguished the equity of redemption. In the appeal before the Supreme Court the appellants contended that, in reversing the conclusion of the District Court, the High Court had exceeded its jurisdiction under S. 115 CPC.
While agreeing with this contention the Supreme Court observed in Pandurang case "that the High Court was in error in assuming jurisdiction to correct what it thought to be the misconstruction of the decree passed in Civil Suit No. 102 of 1932-33" (para-13). Earlier, while considering the ambit and scope of S. 115 CPC., it has observed at para 10 thus:
"The provisions of S. 115 of the Code have been examined by judicial decisions on several occasions. While exercising its jurisdiction under S. 115 it is not competent to the High Court to correct errors of fact, however gross they may be or even errors of law, unless the said errors have relation to the jurisdiction of the Court to try the dispute itself. As Clauses (a), (b) and (c) of S. 115 indicate it is only in cases where the Subordinate Court has exercised a jurisdiction not vested in it by law, or has failed to exercise a jurisdiction so vested or has acted in the exercise of its jurisdiction illegally or with material irregularity that the revisional jurisdiction of the High Court can be properly invoked. It is conceivable that points of law may arise in proceedings instituted before Subordinate Courts which are related to questions of jurisdiction. It is well settled that a plea of res judicata is a plea of law which concerns the jurisdiction of the Court which tries the proceedings. A finding on these pleas in favour of the party raising them would oust the jurisdiction of the Court, and so, an erroneous decision on these pleas can be said to be concerned with questions of jurisdiction which fall within the purview of S. 115 of the Code. But an erroneous decision on a question of law reached by the Subordinate Court which has no relation to questions of jurisdiction of that Court, cannot be corrected by the High Court under S. 115,"
Then, dealing with the High Court''s right to interfere with a decision of the Subordinate Court under S. 115 CPC when it thinks that the Subordinate Court had misconstrued a provision of law the Supreme Court observes at para 11 as under:
"The history of recent Legislation in India shows that when Legislatures pass Acts dealing with socio-economic matters, or make provisions for the levy of sales tax it is realised that the operative provisions of such legislation present difficult problems of construction; and so, sometimes, the Act in question provides for a revisional application to the High Court in respect of such matters or authorises a referenee to be made to it. In such cases, the High Court will undoubtedly deal with the problems raised by the construction of the relevant provisions in accordance with the extent of the jurisdiction conferred on it by the material provisions contained in the statute itself. Sometimes, however no such specific provision is made and the questions raised in regard to the constructions of the provisions of such a statute reach the High Court under its general re-visional jurisdiction under S. 115 of the Code. In this class of cases the revisional jurisdiction of the High Court has to be exercised in accordance with the limits prescribed by the said section. It is true that in order to afford guidance to Subordinate Courts and to avoid confusion in the administration of the specific law in question important questions relating to the construction of the operative provisions contained in such an Act must be finally determined by the High Court but in doing so the High Court must enquire whether a complaint made against the decision of the subordinate Court on the ground that it has misconstrued the relevant provisions of the statute, attracts the provisions of S. 115. Does the alleged misconstruction of the statutory provision have relation to the erroneous assumption of jurisdiction or the erroneous failure to exercise jurisdiction or the exercise of jurisdiction illegally or with material irregularity by the Sub-ordinate Court? These are the tests laid down by S. 115 of the Code and they have to be borne in mind before the High Court decides to exercise its revisional jurisdiction under it."
At para-12, referring to its previous decisions Manindra case and Vora Abbasbhai case-The Supreme Court observes in Pandurang case as follows:
"The question has been recently considered by this Court in Manindra Land and Building Corporation Ltd., v. Bhutanath Banerjee and Abbasbhai Alimohamed v. Gulamnabi. The effect of these two decisions clearly is that a distinction must be drawn between the errors committed by Subordinate Courts in deciding questions of law which have relation to or are concerned with, questions, of the jurisdiction of the said Court, and errors of law which have no such relation or connection. It is, we think, undesirable and inexpedient to lay down any general rule in regard to this position. An attempt to define this position with precision or to deal with it exhaustively may create unnecessary difficulties. It is clear that in actual practice, it would not be difficult to distinguish between cases where errors of law affect, or have relation to the jurisdiction of the Court concerned and where they do not have such a relation."
It is clear from Pandurang case that this Court, exercising its powers under S. 115 CPC can interfere with a decision of the Subordinate Court on the ground that that Court had committed an error on law or facts only if that error "had relation to or is concerned with questions of jurisdiction of the said Court". Now, how should we relate the ratio enunciated, as aforesaid, by the Supreme Court in Pandurang to clauses (a), (b) and (c) of sub-sec. (1) of S. 115?
No difficulty at all would arise if it is apparent that the Court below had exercised a jurisdiction not vested in it or had failed to exercise a jurisdiction vested in it within the meaning of clauses (a) and (b) respectively of sub-sec. (1) of S. 115 CPC. These questions-relate to jurisdiction and are covered by the aforesaid clauses. But, in Pandurang case, the Supreme Court has observed that all the clauses, including clause (c), are attracted only to a case "related to or concerned with" the jurisdiction of that Court (Court subordinate to High Court). What aspect of jurisdiction when clause (c) deals with? It is not conceived, however to operate in areas already covered by the other two clauses.
To attract clause (c) the Subordinate Court having had jurisdiction over the matter should have exercised its powers but "in the exercise of its jurisdiction it should have acted illegally or with material irregularity". If the law, conferring jurisdiction with powers to decide a question, has also prescribed a procedure following which that Court could exercise its jurisdiction or suggests the manner or method to deal with the question or lays down guidelines following which that Court should approach the question any failure on the part of that Court in observing the above would amount to that Court exercising its jurisdiction either illegally or with material irregularity within the meaning of clause (c) of sub-sec. (1) of S. 115 CPC. It is so for the reason, that a Court or authority exercising a jurisdiction conferred on it by law the very conferment being hedged in with a procedure, a form of approach or a guideline (the latter two expressly or impliedly) cannot exercise that jurisdiction by allowing its power to flow in channels not ear-marked for its passage. At the very source of direction is shown following which alone it can exercise its jurisdiction or power. The law expects that power conferred by it on the authority to yield the desired result only when flows in the conduct ear-marked for it''s flow. If the power flows elsewhereby its own momentum (by a purported exercise of jurisdiction) the authority can be said to have committed an illegality or material irregularity in the exercise of its jurisdiction.
11. Clause (c) alone did not come up for consideration in any of the aforesaid decisions of the Supreme Court including Pandurang case. The ambit and scope of clause (c) was considered by the Supreme Court in Keshardeo Chamria v. RadhaKissen Chamria (AIR 1953 SC 23). The Bench consisted of four learned Judges, and Mahajan J. (as he then was), after referring to the various decisions of the Privy Council and two other Courts, at para-20 observes thus;
"Reference may also be made to the observations of Bose J., in his order of reference in Narayan Sonajt v. Shesharao Vitobha (AIR 1948 Nagapur 258), wherein it was said that the words ''illegally'' and ''material irregularity'' do not cover either errors of fact or law. They do not refer to the decision arrived at, but to the manner in which it is reached. The errors contemplated relate to material defects of procedure and not to errors of either law or fact after the formalities which the law prescribes have been complied with". (Underlining italic supplied).
The learned Judge has also referred to a decision of the Privy Council in (Venkatagiri Ayyangar v. Hindu Religious Endowments Board, Madras, 76 Indian Appeals, 67), wherein the Privy Council has observed that Subordinate Court committing breach of some provision of law amounts to exercising its jurisdiction illegally or Subordinate Court committing some error of procedure in the course of the trial which will have the effect on the ultimate decision of that Court amounts to the Subordinate Court exercising its jurisdiction with material irregularity within the meaning of clause (c) of S. 115(1) CPC.
12. I have carefully examined the impugned order with particular reference to this question. It is not possible to say that the learned Judge has approached the question of hardship keeping in mind the guidelines available in the relevant provision and also laid down by binding authorities.
Sub-sec. (4) of S. 21 of the Act reads thus:
"(4) No decree for eviction shall be passed on the ground specified in clause (h) of the proviso to sub-section (1) if the Court is satisfied that having regard to all the circumstances of the case including the question whether other reasonable accommodation is available for the Landlord or the tenant, greater hardship, would be caused by passing the decree than by refusing to pass it.
If the Court is satisfied that no hardship would be caused either to the tenant or to the landlord by passing the decree in respect of a part of the premises, the Court shall pass the decree in respect of such part only.
Explanation: For the purpose of clause (h) of the proviso to sub-sec. (1), the expression ''landlord'' shall not include a rent-farmer or rent-collector or estate manager".
The Court below should have taken into consideration all the circumstances of the case including the question whether other reasonable accommodation was available for the landlord or the tenant. That has not been done in the instant case.
13. In Bhaichand Ratanshi v. Laxmishankar Tribhoyan (AIR 1981 SC 1690), the Supreme Court, while examining the question of comparative hardship under a provision of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947, similar to sub-sec. (4) of S. 21 of the Act, has stated as to how that question has to be approached by the Courts and what factors are required to be taken into consideration, The observations of the Court made at para-5 be noted:
"The Legislature by enacting S. 13(2) of the Act seeks to strike a just balance between the land lord and the tenant so that the order of eviction under S. 13(1)(g) of the Act does not cause any hardship to either side. The consideration weigh in striking a just balance between the land lord and the tenant were indicated in a series of decisions of the court of appeal, interpreting an analogous provision of the Rent and Mortgage Interest Restrictions (Amendment) Act, 1933 (c. 32) S. 3(1) Schedule I para (h): Sims v. Wilson (1946) 2 ALL E.R. 261 (CA); Fowle v. Bell (1946) 2 ALL E.R. 668 (CA) Smith v. Penny (1946) ALL E.R. 672(CA); Chandler v. Strevett (1947) 1 ALL E.R. 164 (CA); and Kelley v. Goodwin (1947) 1 ALL E.R. 810 (CA). One of the most important factors in considering the question of greater hardship is whether other reasonable accommodation is available to the landlord or the tenant. The Court would have to put in the scale other circumstances which would tilt the balance of hardship on either side, including financial means available to them for securing alternative accommodation either by purchase or by hiring one, the nature and extent of the business or other requirement of residential accommodation, as the case may be. It must, however, be observed that the existence of alternative accommodation on both sides is an important but not a decisive factor (Halsbury''s Laws of England 3rd Edn. Vol. 23, p. 824) On the issue of greater hardship the English Courts have uniformly laid down that the burden of proof is on the tenant. We are inclined; to the view that on the terms of S. 13(2) of the Act, the decision cannot turn on mere burden of proof, but both the parties must lead evidence. The question whether or not there would be greater hardship caused to the tenant by passing the decree must necessarily depend on facts and circumstances of each case."
14. In Bhaichand Ratanshi case the Supreme Court has taken note of the decisions of Court of Appeal referred to in the 3rd Edn., Volume 23 of Halsbury''s Laws of England. Touching this very question, in the 4th Edition, Volume 27 of Halsbury''s laws of England at para-676, two more factors that are to be taken note of are mentioned. It is stated, relying on Segal v. Morgan-(1966) 200 Estates Gazette, 407 CA-that the tenant "having to move does not of itself constitute hardship". It is also mentioned, relying on Burman v. Woods-(1948) 1 K.B. 111 C.A.-that "changes in circumstances after the date of hearing may form the basis of a fresh application to the Court."
15. The learned Judge has observed in Bhaichand Ratanshi case that one of the most important factor in considering the question of hardship in whether other reasonable accommodation is available to the landlord or the tenant. In my opinion the Court below has to re-examine this question after carefully considering the pros and cons and in the light of the observations made by the Supreme Court in Bhaichand Ratanshi case.
16. Therefore, this revision is allowed. The order of the District Judge in C.R.P. No. 26 of 1977 on his file is hereby set aside. The matter involved is remitted to that Court for a fresh disposal and in the light of the observations made above. No costs.
