Hari Shankar vs Rao Girdhari Lal Chowdhury

Rewritten Version Notice: This is a rewritten version of the original judgment.

Court: Supreme Court of India

Case Number: Civil Appeal No. 94 of 1959

Decision Date: 5 December, 1961

Coram: M. Hidayatullah, Bhuvneshwar P. Sinha, J.L. Kapur, J.C. Shah

In the matter titled Hari Shankar versus Rao Girdhari Lal Chowdhury, the Supreme Court of India delivered its judgment on 5 December 1961. The opinion was authored by Justice M. Hidayatullah, with the bench comprising Justice Bhuvneshwar P. Sinha, Justice J. L. Kapur and Justice J. C. Shah. The petitioner was Hari Shankar and the respondent was Rao Girdhari Lal Chowdhury. The judgment is reported in 1963 AIR 698, 1962 SCR Supl. (1) 933 and is cited in several subsequent reports, including RF 1964 SC 461 (4), R 1964 SC 1305 (20), R 1964 SC 1317 (15, 16), R 1965 SC 553 (2), R 1969 SC 1344 (8, 9), R 1974 SC 1059 (6), RF 1987 SC 1782 (14, 15) and R 1988 SC 1422 (7). The case concerned a revision application under the Delhi and Ajmer Rent Control Act, 1952 (Act 38 of 1952), specifically sections 34 and 35(1). The headnote summarizes the factual and legal background as follows: In an ejectment suit brought under the Delhi and Ajmer Rent Control Act, the trial judge decreed in favour of the petitioner, and the Additional District Judge affirmed that decree on appeal under section 34 of the Act. The statute did not provide for a second appeal; consequently, a revision was filed under section 35(1) against the order of the Additional District Judge. The Punjab High Court, sitting as a single judge, revisited the matter after a previous decision of the same High Court and held that because all the evidence had not been considered, the court was competent to reassess the concurrent findings of the lower courts. The central issue for determination was whether, exercising its revisional powers, the High Court could re‑evaluate the evidential value and replace the factual conclusions reached by the courts below. The Court held, speaking for the majority (Justices Sinha, C. J., Hidayatullah and Shah), that although section 35 of the Delhi and Ajmer Rent Control Act is phrased in general terms, it does not confer a right to a full rehearing of the case. The Court emphasized that the distinction between an appeal and a revision is substantive: a right of appeal includes a right to rehear both law and fact unless the conferring statute expressly limits that rehearing, whereas the power to hear a revision is exercised by a superior court primarily to ensure that the decision was made “according to law”. The phrase “according to law” in section 35 refers to the decision as a whole and must not be equated with mere errors of law or fact. Accordingly, the High Court’s role in a revision is limited to ascertaining that no miscarriage of justice occurred and that the decision complies with the legal standards articulated in the statute. Justice Kapur, speaking separately, observed that the authority under section 35(1) to interfere by the High Court is not confined to examining whether the trial was proper or whether there was an error concerning the burden of proof or the opportunity to be heard; rather, its scope is broader and extends to situations where the decision is manifestly erroneous on a question of law that affects the merits or is manifestly unjust, thereby justifying High Court interference.

The Court observed that the High Court’s power to interfere is not confined merely to situations where there was no proof or where a party was denied a proper opportunity to be heard. Its jurisdiction is considerably broader, so that when the High Court is confronted with a decision that is erroneous on a question of law affecting the merits of the case, or when the decision is manifestly unjust, the Court may intervene. The principle was endorsed by reference to Bell and Co. Ltd. v. Waman Hemraj (1938) 40 Bom. LR 125.

The matter before the Court was a civil appeal numbered 94 of 1959, filed by special leave against a judgment and decree dated 7 May 1957 issued by the Punjab High Court (Circuit Bench) at Delhi in Civil Revision Application No. 144‑D of 1957. Counsel for the appellants were Bishan Narain R. Mahalingier and B. C. Misra, while the respondent was represented by Gurbachan Singh and Harbans Singh. The appeal was heard on 5 December 1961. The judgment of the Chief Justice Sinha, together with Justices Hidayatullah and Shah, was delivered by Justice Hidayatullah, while Justice Kapur delivered a separate opinion.

Justice Hidayatullah explained that the appellants in this appeal, by special leave, were the sons of Gauri Shankar, the owner of a bungalow identified as No. 5, Haily Road, New Delhi. Gauri Shankar had let the bungalow to the respondent, Rao Girdhari Lal Chowdhury, at a monthly rent of Rs. 234‑6‑0, exclusive of taxes. The suit from which the present appeal arises was instituted by the appellants seeking the eviction of the respondent on several grounds, the principal one being that the respondent had sub‑let a portion of the bungalow after the Delhi and Ajmer Rent Control Act, 1952 (Act 38 of 1952) came into force. The sub‑letttee was Dr. Mohani Jain, and the sub‑letting was alleged to have been done without the landlord’s written consent, a requirement imposed by section 13(1)(b)(i) of the Act.

The respondent’s defence asserted that the original tenancy agreement, entered into around 1940, contained a term expressly allowing the tenant to sub‑let. It was further alleged that a letter embodying the tenancy terms was in the landlord’s possession and that the landlord had been asked to produce it. The tenant contended that the sub‑tenancy began in 1951, i.e., before the 1952 Act became operative, and therefore the statutory requirement of obtaining written consent did not apply. The Court noted that, in any event, no written consent was produced.

The Court observed that it was unnecessary to recount all the ancillary allegations typical in landlord‑tenant disputes, the most significant of which concerned arrears of rent. Those arrears, the Court noted, were eventually deposited in Court with the Court’s permission. The pivotal issue that had divided the lower courts was formulated by the Sub‑Judge, First Class, Delhi, as follows: “Did the plaintiff consent to the sub‑letting of parts of the demised premises by the defendant? If so, when and to what effect?” The trial judge found no evidence that the landlord had ever been consulted before a portion of the bungalow was sub‑let to Dr. Mohani Jain and concluded that the sub‑tenancy had been created after 9 June 1952, i.e., after the Act had come into force.

The trial Judge concluded that the sub‑tenancy began after the enactment of the Act, relying on a dispute before the Rent Control authorities in which Dr Mohani Jain claimed to have been a sub‑tenant from the end of 1951 while the tenant denied that allegation; the Rent Control proceedings ended in a compromise, yet the tenant’s admission was used to support the finding that the sub‑tenancy commenced after the Act, and the trial Judge accordingly decreed in favour of the plaintiff. On appeal, the Additional District Judge, Delhi, affirmed the trial Judge’s decision; although Dr Mohani Jain gave oral testimony that her occupancy started in December 1951, the Additional District Judge categorically held that the sub‑tenancy had begun sometime after the Act became operative, observing that even if she had been present earlier, she would have been a guest rather than a sub‑tenant. Against that order a revision was filed under section 35(1) of the Act, which provides that “The High Court may, at any time, call for the record of any case under this Act for the purpose of satisfying itself that a decision made therein is according to law and may pass such order in relation thereto as it thinks fit.” Acting on a Punjab High Court decision concerning the scope of this provision, the learned single Judge hearing the revision held that he was competent to re‑examine the concurrent findings on the date the sub‑tenancy commenced, concluding that Dr Mohani Jain’s own statement demonstrated that the sub‑tenancy began before the Act and that written landlord consent was therefore unnecessary; he further expressed the view that the lower courts had not considered all the evidence and, invoking the quoted section, felt authorized to revisit the factual issue anew. While the suit was pending before the Subordinate Judge, an application was made to produce a letter referred to in the tenant’s written statement; the letter, marked Ex D‑1, was produced but did not disclose the complete terms of the tenancy, leading to the observation that the original tenancy terms remained unproved and that there was no material upon which a determination could be made as to whether the tenant possessed a right to sublet. The defendant did not press the first‑instance Court to argue that another letter existed, and consequently the matter proceeded without that additional evidence.

The Court observed that the argument that the parties advanced could not be heard in the present proceeding. In reaching the view that the material evidence relevant to the dispute had not been examined, the learned judge of the High Court stated that Exhibit P‑19, which was the petition filed by Dr Mohani Jain under section 8 of the Act for the fixation of the standard rent, had been ignored by the Additional District Judge. The petition, according to the High Court’s description, asserted that Dr Jain’s sub‑tenancy had begun on 1 December 1951 at a rental rate of Rs 100 per month. It further claimed that Dr Jain had handed over a cheque for Rs 1,800 as an advance rent for eighteen months, the cheque being made out in the name of the tenant’s daughter because the tenant alleged that he did not have a bank account and therefore the payment had to be made in his daughter’s name. The learned High Court judge felt that these contents of Exhibit P‑19 adequately supported Dr Jain’s statement, effectively treating it as a witness testimony in the present case. The Court, however, held that the High Court judge was mistaken in concluding that Exhibit P‑19 had not been taken into account by the Additional District Judge. In fact, the Additional District Judge had examined Exhibit P‑19 together with Exhibit P‑20, which was the tenant’s reply to the petition, and Exhibit P‑21, the compromise petition, although he cited only Exhibits P‑20 and P‑21 in his order. The Court found internal evidence that Exhibit P‑19 was indeed considered, because after mentioning the two exhibits the Additional District Judge proceeded to state: “The first of these is the written statement of the present appellant which he had filed in a case brought by Dr Mohani Jain against him for the fixation of fair rent. There he had completely denied, somewhere in the year 1953, that Dr Mohani Jain was his sub‑tenant and could not sue for fixation of rent. This was enough to show that right up to the year 1953 the appellant himself did not regard Dr Mohani Jain as a sub‑tenant.” This passage demonstrated that the Additional District Judge had weighed Exhibit P‑19 against Exhibit P‑20 and had relied on the material admission contained in Exhibit P‑20, which was made by the tenant before the present dispute arose.

Consequently, the Court concluded that the single judge of the High Court erred in departing from a concurrent finding of fact on the incorrect assumption that Exhibit P‑19 had been ignored. The matter before the appellate Court, however, raised a broader issue that went beyond a simple reassessment of the evidence. The pivotal question was whether, in exercising its revisional jurisdiction, the High Court was authorized to re‑evaluate the weight of the evidence and replace the factual conclusions reached by the lower court with its own determinations. To answer this, the Court indicated that it was necessary to examine the scope of the revisionary powers granted to the High Court by section 35 of the Act. The Court noted that such questions of the limits of revisional authority frequently arise in statutes that create special rights and remedies. Although section 35 is expressed in broad terms, the Court signaled that its interpretation must be carried out with reference to the statutory language and the purpose of the provision.

In this case, the Court noted that Section 35 does not create a right to have the case reheard, contrary to what the learned Judge had assumed. Section 35 follows Section 34, where a right of appeal is conferred; however, the second sub‑section of Section 35 provides that no second appeal shall lie. The Court explained that the distinction between an appeal and a revision is a real one. A right of appeal carries with it a right of rehearing on both law and fact, unless the statute that confers the right of appeal limits the rehearing, as has been done for second appeals arising under the Code of Civil Procedure. By contrast, the power to hear a revision is generally given to a superior court so that it may satisfy itself that a particular case has been decided according to law.

Under Section 115 of the Code of Civil Procedure, the High Court’s powers in a revision are limited to determining whether, in a decided case, there has been an assumption of jurisdiction where none existed, a refusal of jurisdiction where it did exist, or a material irregularity or illegality in the exercise of that jurisdiction. Thus the right there is confined to jurisdiction and jurisdiction alone. In other statutes the power is not so limited, and the High Court is enabled to call for the record of a case to satisfy itself that the decision therein is “according to law” and to pass such orders in relation to the case as it thinks fit.

The phrase “according to law” refers to the decision as a whole and is not to be equated with simple errors of law or of fact. The decision must be in conformity with law, and it would not satisfy that requirement if there is a miscarriage of justice caused by a mistake of law. Consequently, Section 35 is framed to confer larger powers than the power to correct an error of jurisdiction which Section 115 limits. Nevertheless, the apparently wide language of the section is controlled by its opening words, which require that the High Court may send for the record of the case to satisfy itself that the decision is “according to law”. It follows that, if a rehearing were considered necessary, a right of appeal would be the more appropriate remedy, but the Act expressly provides that there is to be no further appeal.

The provision under consideration is almost the same as Section 25 of the Provincial Small Cause Courts Act. That section has been examined by the High Courts in numerous cases, resulting in diverse interpretations. The powers that it is said to confer would make a broad spectrum, commencing, at one end, with the view that only substantial errors of law can be corrected under it, and ending,

At the opposite extreme, the power of interference is a little broader than the remedy that an appeal provides. It is unnecessary to examine those cases in which the observations were apparently forced by special facts. It is sufficient to state that the Court considers the most precise explanation of the meaning of such provisions to be the one given by Beaumont, C.J., then Chief Justice, in Bell & Co. Ltd. v. Waman Hemraj, where he addressed section 25 of the Provincial Small Cause Courts Act and said: “The object of section 25 is to enable the High Court to see that there has been no miscarriage of justice, that the decision was given according to law. The section does not list the cases in which the Court may interfere in revision, as does section 115 of the Code of Civil Procedure, and I do not attempt an exhaustive definition of the circumstances that may justify such interference; but examples readily occurring to the mind are cases in which the Court that made the order had no jurisdiction, or based its decision on evidence that should not have been admitted, or where the unsuccessful party was not given a proper opportunity of being heard, or where the burden of proof was placed on the wrong shoulders. Whenever the court concludes that the unsuccessful party has not had a proper trial according to law, the Court may interfere. However, the Court should not interfere merely because it thinks the trial judge might have reached a conclusion that the High Court would not have reached.” The Court gives its full concurrence to this observation and holds that the same principles apply to section 35 of the Act presently before it. Viewed in this light, the single judge was not justified in interfering with a finding of fact, especially since he acted on an incorrect assumption. Consequently, the appeal succeeds and is allowed with costs; the order appealed against is set aside and the order of the Additional District Judge is restored. Regarding the eviction, the respondent has undertaken to vacate the house on or before 25 April 1962, an undertaking accepted by the appellants. Kapur J. agrees that the appeal should be allowed and that the High Court erred in interfering with the finding of fact, but adds that the power of revision under section 35(1) of the Delhi & Ajmer Rent Control Act is not as narrowly limited as Beaumont, C.J. suggested in Bell & Co. Ltd. v. Waman Hemraj, a case concerning section 25 of the Provincial Small Cause Courts Act. The provision requires that an order be in accordance with law, and if it is not, the High Court may intervene.

The Court observed that section 35(1) of the Act empowers the High Court to pass any order it thinks fit. It noted that the language of section 35(1) is almost identical to the wording of the proviso to section 75(1) of the Provincial Insolvency Act. The scope of the power contained in that proviso has been explained by Mulla in his treatise, Law of Insolvency, page 787 of the second edition, where he states: “The power given to the High Court by this proviso is very wide. In the exercise of this power the High Court may set aside any order if it is not `according to law’.” The Court further observed that Indian courts have not treated the power under the Insolvency Act as being restricted in the manner suggested by the observations of Beaumont, C. J., in Bell & Co. Ltd. v. Waman Hemraj (1) with respect to section 25 of the Small Cause Courts Act. In the Court’s opinion the High Court’s power of interference is not confined to ensuring a proper trial according to law, nor limited to errors concerning the onus of proof or the opportunity of being heard; it is considerably broader. When, in the view of the High Court, a decision is erroneous on a question of law that affects the merits of the case, or when the decision is manifestly unjust, the High Court is entitled to intervene. Such error need not be limited to the interpretation of a statutory provision; it may also relate to the evidence on the record. Accordingly, if material evidence has been ignored, or if a finding is such that, taking the evidence as a whole, no tribunal could, by legitimate inference, arrive at that conclusion, the High Court may set aside the order. The Court acknowledged that it is neither possible nor desirable to list every circumstance that would fall within the jurisdiction of the High Court under section 35(1) of the Act. However, it emphasized that the provision should not be interpreted narrowly, nor should it be so broadly construed as to transform the revision power into a factual appeal. Accordingly, the Court allowed the appeal.