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PETITIONER:

WARYAM SINGH AND ANOTHER

Vs.

RESPONDENT:

AMARNATH AND ANOTHER.

DATE OF JUDGMENT:

19/01/1954

BENCH:

DAS, SUDHI RANJAN

BENCH:

DAS, SUDHI RANJAN

MAHAJAN, MEHAR CHAND (CJ)

MUKHERJEA, B.K.

BOSE, VIVIAN

HASAN, GHULAM

CITATION:

1954 AIR 215 1954 SCR 565

CITATOR INFO :

R 1955 SC 233 (20)

R 1958 SC 321 (6)

R 1958 SC 398 (30)

F 1965 SC1994 (18)

F 1972 SC1598 (12)

R 1975 SC1297 (7)

R 1978 SC 45 (5)

RF 1979 SC 1 (11)

RF 1986 SC1272 (102)

F 1987 SC 117 (17)

ACT:

Constitution of India, arts. 227 and 241-High Court-Whether

conferred power of judicial superintendence-Rent

Controllerand District Judge-Whether Tribunals within the

meaning of art. 227-East Punjab Urban Rent Restriction Act

(III of 1949 as extended to Himachal Pradesh, s. 13(2)(i),

Proviso Non-payment of arrears of rent on first hearing of

application for ejectment-Legal effect thereof.

HEADNOTE:

The Court of the Judicial Commissioner of Himachal Pradesh

exercises jurisdiction in relation to the whole of the

territories of Himachal Pradesh.

The Rent Controller and the District Judge exercising juris.

diction under the East Punjab Rent Restriction Act,,1949,

are certainly tribunals it not courts within the meaning of

art. 227 of the Constitution and they function within the

territories of

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Himachal Pradesh. Therefore art. 227(1) read with art. 241

confers on the Court of the Judicial Commissioner power of

superintendence over such tribunals.

The words "in relation to which" in art. 227(1) qualify the

word "territories" and not the words "courts and tribunals".

There is no force in the contention that cl. (2) of art.

227 only confers on the High Court administrative

superintendence over the subordinate courts and tribunals

because cl. (2) of the article is expressed to be without

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prejudice to the generality of the provisions in cl. (1).

The power of superintendence conferred by art. 227

should be exercised most sparingly and only in appropriate

cases in order to keep the subordinate courts within the

bounds of their authority and not for correcting mere

errors.

In view of the admitted failure by the tenants to pay the

rent as provided by the rent deed or at the first hearing of

the court under the proviso to s. 13(2)(1) the lower courts

had acted arbitrarily in refusing to make an order for

ejectment against the tenants who had not done what was

incumbent on them to do under the law and thereby refused to

exercise jurisdiction vested in them by law and it was a

case which called for interference by the Court of Judicial

Commissioner and it acted quite properly in doing so.

Moti Lal v. The State through Shrimati Sagrawati (I.L.R.

[1952] 1 All. 558 at p. 567) and Dalmia Jain Airways Ltd. v.

Sukumar Mukherjee (A.I.R. 1951 Cal. 193) referred to.

JUDGMENT:

CiviL APPELLATE JURISDICTION: Civil Appeal No. 64 of 1953.

Appeal by special leave from the Judgment and

Decree, dated the 29th November, 1951, of the Court of the

Judicial Commissioner for Himachal Pradesh at Simla in Civil

Revision No. 52 of 1951.

Gopal Singh for the appellants.

S. C. Isaacs (Amar Nath Chona, with him) for the

respondents.

1954. January 19. The Judgment of the Court was delivered

by

DAS J.-This is an appeal by special leave against the order

made on the 20th November, 1951, by the Judicial

Commissioner of Himachal Pradesh in proceedings instituted

by the respondents under articles 226 and 227 of the

Constitution of India.

There is no substantial dispute as to the facts leading

up to the present appeal. The 'appellants

567

were tenants of a certain shop premises situate in Solan

Bazar in the district of Mahasu in Himachal Pradesh. On the

llth October, 1947, they had executed a rent deed by which

they agreed to pay an annual rent of Rs. 175 payable as to

Rs. 50 on the last of Baisakh and as to the balance of Rs.

125 in the month of October, in default of which payment,%

the respondents, as landlords, would be entitled to recover

the whole of the said rent in one lump sum. The tenancy

created by the rent deed was only for one year in the first

instance but it provided that if the tenants desired to

continue in occupation they must execute a further rent deed

before the expiration of the said term. The appellants

never executed any further rent deed but held over and

continued in occupation of the demised premises.

The appellants fell into arrears with the payments of

rents due for the years 1948 and 1949 and the respondents

made applications to the Rent Controller for eviction of the

appellants under section 13 (2) (i) of the East Punjab Urban

Rent Restriction Act, 1949, as extended to Himachal Pradesh.

The appellants, however, paid up the arrears of rent into

court and claimed the benefit of the proviso to section 13

(2) (i). The claim was allowed and the said applications

were dismissed accordingly on the 18th December, 1950.

The appellants again fell into arrears with the pay-

ment of rent due for the year 1950. On the 26th December,

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1950, the respondents served on the appellants a notice c

alling upon the latter to pay whole of the said rent

forthwith but the appellants failed to do so. The

respondents thereupon, on the 2nd January, 1951, filed an

application under section 13 (2) (i) for the eviction of the

appellants on the ground of nonpayment of rent.

Thereafter, on the 10th January, 1951, the appellants

made an application to the Rent Controller for the fixation

of a fair rent under section 4 of the said Act.

On the 25th January, 1951, the appellants filed their

written statements in the proceedings under section 13

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(2) (i) admitting the nonpayment of rent and the receipt of

the notice but pleaded (i) that the respondents' application

was barred by reason of the rejection of the previous

applications for eviction made by the respondents and (ii)

that the present application could not be entertained in

view of the pendency of their application for fixation of a

fair rent under section 4 of the said Act.

On the 20th February, 1951, the Rent Controller framed the

following issues:-

(1) Whether the application in question was not

entertainable in view of the judgment of the District Judge,

dated the 18th December, 1950 Onus on defendants.

(2) If issue No. I is not proved, had the opposite party

(tenants) not paid the rent and as such were they liable to

be ejected? Onus on plaintiffs.

(3) Have the opposite party already filed an application in

the said court for the fixation of rent and are they,

therefore, not liable for ejectment pending the decision on

the application and what is its effect on the said

application? Onus on defendants.

By his judgment, dated the 29th May, 1951, the Rent

Controller held that as the previous applications related to

non-payment of rents for the years 1948 and 1949 the present

application which was founded on non-payment of rent for

1950 was not barred under section 14 of the said Act but,

although the fact of rent being in arrears was admitted, the

Rent Controller did not think fit to make an order directing

the appellants to put the respondents in possession of the

demised premises. The reasons given by him were as

follows:-

" Regarding the non-payment of the rent when the plea of the

tenant is only that he is waiting for the fixation of fair

rent by the Rent Controller there is not enough ground for

ejectment. A civil suit for the recovery of the rent would

have been a more appropriate method of obtaining that rent.

I therefore dismiss the suit.' The parties should bear their

own

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The respondents preferred an appeal to the District Judge of

Mahasu under section 15 of the said Act. The learned

District Judge dismissed the appeal observing-

"On behalf of the landlord it was urged that under section

13 (2) of the Punjab Urban Rent Restriction Act, as applied

to Himachal Pradesh, the Controller, if it came to the

finding that rent had not been paid, had no option but to

direct the tenant to put the landlord in possession.

Undoubtedly, that is the correct legal position, but in the

present case the non-payment of rent was due to a

misapprehension of the legal position created by the tenant

filing an application for fixing fair rent. 1, therefore,

think that this case can be distinguished and does not fall

within section 13 (2), Punjab Urban Rent Restriction Act."

The respondents moved the Judicial Commissioner, Himachal

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Pradesh, under articles 226 and 227 of the Constitution of

India for setting aside the order of the District Judge.

The learned Judicial Commissioner held that in view of the

admitted failure to pay the rent as provided by the rent

deed or at the first hearing of the court under the proviso

to section 13 (2) (i) the courts below had acted arbitrarily

in refusing to make an order for ejectment against the

tenants who had not done what was incumbent on them to do

under the law and that such a situation called for inter-

ference by the court of the Judicial Commissioner in order

to keep the subordinate courts within the bounds of their

authority. He accordingly set aside the orders of the

courts below and allowed the application for ejectment but

gave the appelants three months' time for vacating the

premises. The appellants have now come up before this court

on appeal by special leave obtained from this court.

Learned advocate appearing in support of this appeal urges

that the learned Judicial Commissioner acted wholly without

jurisdiction inasmuch as (1) the Rent Controller or the

District Judge exercising powers

570

under the Act was not amenable to the jurisdiction of the

High Court and, therefore, article 227 confers no power on

the court of the Judicial Commissioner over the Rent

Controller or the District Judge, and (2) that article 227

read with article 241 confers no power of judicial

superintendence on the court of the Judicial Commissioner.

Re. l.-The court of the Judicial Commissioner of Himachal

Pradesh exercises jurisdiction in relation to the whole of

the territories of Himachal Pradesh. The Rent Controller

and the District Judge exercising jurisdiction under the Act

are certainly tribunals, if not courts, and they function

within the territories of Himachal Pradesh. Therefore,

article 297 (1) read with article 241 confers on the court

of the Judicial Commissioner power of superintendence over

such tribunals. The words " in relation to which "

obviously qualify the word " territories " and not the words

"courts and tribunals".

Re. 2.The material part of article 227 substantially

reproduces the provisions of section 107 of the Government

of India Act, 1915, except that the power of superintendence

has been extended by the article also to tribunals. That

the Rent Controller and the District Judge exercising

jurisdiction under the Act are tribunals cannot and has not

been controverted. The only question raised is as to the

nature of the power of superintendence conferred by the

article. Reference is made to clause (2) of the article in

support of the contention that this article only confers on

the High Court administrative superintendence over the

subordinate courts and tribunals. We are unable to accept

this contention because clause ( 2) is, expressed to be

without prejudice to the.generality of the provisions in

clause (1). Further, the preponderance of judicial opinion

in India was that section 107 which was similar in terms to

section 15 of the High Courts Act, 1861, gave a power of

judicial superintendence to the High Court apart from and

independently of the provisions of other laws conferring

revisional jurisdiction on the High Court. In this

connection it has to

571

be remembered that section 107 of the Government of India

Act, 1915, was reproduced in the Government of India Act,

1935, as section 224. Section 224 of the 1935 Act, however,

introduced sub-section (2), which was new, providing that

nothing in the section should be construed as giving the

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High Court any jurisdiction to,question any judgment of any

inferior court which was not otherwise subject to appeal or

revision. The idea presumably was to nullify the effect of

the decisions of the different High Courts referred to

above. Section 224 of the 1935 Act has been reproduced with

certain modifications in article 227 of the Constitution.

It is significant to note that sub-section (2) to section

224, of the 1935 Act has been omitted from article 227.

This significant omission has been regarded by all High

Courts in India before whom this question has arisen As

having restored to the High Court the power of judicial

superintendence it had under section 15 of the High Courts

Act, 186 1, and section 107 of the Government of India Act,

1915. See the cases referred to in -Moti Lal v. The State

through Shrimati Sagrawati(1). Our attention has not been

drawn to any case which has taken a different view and, as

at present advised, we see no reason to take a different

view.

This power of superintendence conferred by article 227 is,

as pointed out by Harries C. J., in Dalmia Jain Airways Ltd.

v. Sukumar Mukherjee(2), to be exercised most sparingly and

only in appropriate cases in order to keep the Subordinate

Courts within the bounds of their authority and not for

correcting mere errors. As rightly pointed out by the

Judicial Commissioner in the case before us the lower courts

in refusing to make an order for ejectment acted

arbitrarily. The lower courts realised the legal position

but in effect declined to do what was by section 13 (2) (i)

incumbent on them to do and thereby refused to exercise

jurisdiction vested in them by law. It. was, therefore, a

case which called for an interference by the court of the

Judicial Commissioner and it acted

(1) I.L.R. [1952] 1 All. 558 at p. 567,

(2) A.I.R. 1951 Cal. 193.

75

572

quite properly in doing so. In our opinion there is no

ground on which in an appeal by special leave under article

136 we should interfere. The appeal, therefore, must stand

dismissed with costs.

Appeal dismissed.

Agent for the appellants: M. M. Sinha. Agent for the

respondent: K. L. Mehta.