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Judgment
Mr. Lakshmaiah, J.—The point that arises for determination in this case is:-
Whether the High Court has power to review an order passed in exercise of revisional powers conferred upon it u/s 12 of the Hyderabad Small Causes Courts Act (Act No. VI of 1330 Fasli) referred to hereinafter merely as "the Act"?
Facts;-The respondents filed a Small Cause Suit No. 347/73 on the file of the learned Additional Chief Judge, City Small Causes Court, Hyderabad seeking the recovery of a sum of Rs. 765/- being the arrears of rent due by the petitioner to him, That suit was decreed for a sum of Rs. 765/- with costs and with future interest at the rate of 6% per annum from the date of the suit till the date of realisation. Aggrieved by that decision the petitioner filed before this court Civil Revision Petition No. 591/75 u/s 12 of the Act. This Court dismissed that Civil Revision petition on 23rd December, 1977. Thereafter Civil Misc. Petition No. 2306/78 was filed by the petitioner u/s 114 read with Order 47 Rule 1 of the Code of Civil Procedure, 1908 requesting this court to review the Judgment and decree dated 23rd of December, 1977 on the ground that there is an error apparent on the fact of the record in as much as the privity of contract of tenancy was not proved before the learned Additional Chief Judge, City Small Causes Court, Hyderabad and that this court did not advent to the finding called for by this court and received from the trial court dated 10th July, 1976 wherein the trial court found that there was no privity of contract between the parties which negatives the allegation of attornment. Sri Syed Shah Mohammed Quadri. learned counsel appearing for the respondent took a preliminary objection as regards the very maintainability of the review petition stating inter alia that there is no provision in the Act providing for review of a decision rendered by this court u/s 12 of the Act and as such this petition is liable to be dismissed at the very outset.
As against that, Sri Mohammed Azizullah Khan, the learned counsel appearing for the petitioner submitted that the Act provides both expressly as well as by necessary implication for the review of a decision rendered by this court u/s 12 of the Act. Even otherwise, this court can exercise the powers of review u/s 134 of the CPC and in any event, as per section 14 of the Code of Civil Procedure, the power of review conferred under the Code of Civil Procedure, 1908 is available to this court exercising jurisdiction u/s 12 of the Act.
The first question, therefore, to be answered is whether the Act provides either expressly or by necessary implication for the review of a decision rendered by the High Court u/s 12 of the Act.
Scheme of the Act:- The Preamble of the Act says that it is expedient to make law relating to suits in Small Causes. The Act contains twenty one sections with a schedule appended thereto, the entire subject matter being spread over five chapters, The first chapter deals with "preliminary".
Section 3 of the Act contains the "Definition of court of Small Causes" by making it mean " a court established under this Act". "Chapter II deals with establishment and composition of Court of Small Causes. Section 4 occurring therein says that the Government may establish a court of Small Causes. Chapter HI deals with suits cognizable by a Court of Small Causes. The court of Small Causes u/s 6 shall take cognizance of money suits arising out of contract other than a contract of marriage where the value of the suit does not exceed one thousand rupees. But the Government may, at the instance of the High Court, empower such court to try suits, the value of which is upto two thousand rupees, provided that the Court of Small Causes shall not take cognizance of any suit in which any immoveable property or a right therein is affected by a decree. Under subsection 2 of the aforesaid section, no suit can be instituted against the Government and such suit shall not be cognizable by a court of Small Causes.
Chapter IV deals with "procedure". Section 9 occurring therein deals with "provisions of CPC to apply". That section, in so far as it is material, reads thus:-
"9. (1) Provisions of CPC to apply:-A Court of Small Causes Shall, in the trial of suits cognizable, by it and in proceedings ancillary thereto, as far as possible, follow the provisions of the Code of Civil Procedure, except those specified in the schedule annexed hereto":
As per the Schedule, the provisions of the Hyderabad CPC No. HI of 1323 fasli specified therein, shall not apply to Courts of Small Causes and to the Courts invested with the Jurisdiction of a Court of Small Causes,. Clause 9 of that schedule reads thus:-
Chapter XLVIII, review, (sections 617, 618, 620, 621.622):-A reading of the above provisions makes it explicit that a court of Small Causes shall, in the trial of suits cognizable by it, follow the procedure contained in the Code of Civil Procedure, but where a person files an application for review of a judgment, what he shall have to do under sub-section (1) appended to Section 9 provides as follows;-
Provided that where a person files an application to set aside a decree passed ex parte or for review of judgment, he shall along with the application, either deposit in the Court the amount due under the decree or in pursuance of the judgment or give such security to the satisfaction of the Court for the execution of the decree or compliance with the judgment, as the Court may direct".
The judgment of a court of Small Causes is thus rendered u/s 9 of the Act statutorily reviewable. Section 11 provides for appeals from certain orders. Under this section, where an order specified in sub-sec. (31) of Section 605 of the Hyderabad CPC is made by a Court of Small Causes, an appeal therefrom shall lie to the High Court. What orders are intended to be appealable this section provides for,
Section 12 deals with revisional powers of the High Court and provides that the High Court may call for and inspect any file of a Court of Small Causes and pass such order thereon as it thinks fit. We may notice in this connection that the framers of the Act intended to draw a distinction between the High Court exercising revisional powers u/s 12 and a Court of Small Causes, the file of which can be called for and inspected by the High Court in order to enable the High Court to pass such orders thereon as the High Court thinks fit.
Section 13 secures finality to every decree or order made under the Act by a Court of small causes subject to the provisions contained in chapter IV and that section reads thus:-
"Subject to the provisions herein contained, every decree or order made under this Act by Court of Small Causes shall be final".
The Hyderabad Limitation Act was amended by section 31 of the Act which reads thus:-
Amendment of Hyderabad Limitation Act:-After Article 152 of the Schedule to the Hyderabad Limitation Act No. 11 of 1322 F., the following Article 152 (A) shall be added.
"152 (A):- the review of the decisions of a Court of Small Causes or of a court invested with the jurisdiction of a Court of Small Causes when the court exercises such jurisdiction.
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15 days from the date of the decree or order".
What follows from the aforesaid provisions of the Act is that a court of Small Causes as defined by section 3 of the Act means a court established under the Act and section 4 provides for the establishment of a Court of Small Causes by the Government. The proviso appended to section 9(1) of the Act deals with filing of an application for review of a judgment and having regard both to the text of the proviso as well as its context u/s 9 (1) of the Act, the right to have the judgment reviewed is confined only to the judgment of a Court of Small Causes as defined u/s 3 and as established u/s 4 of the Act.
The framers of the Act provided for right of appeal only in certain specified cases as is the case obtaining u/s 11 of the Act. Provision for revision to the High Court u/s 12 also is made. Subject to the aforesaid provisions of law, finality is secured u/s 13 of the Act to the decrees or orders made under this Act by a Court of Small Causes. No doubt that finality can be imperilled by the exercise of revisional jurisdiction conferred upon the High Court u/s 12 of the Act and in certain cases exercising the right of appeal u/s 11 of the Act. The framers of the Act defined expressly by way of description what decisions are intended to be appealable, revisable and reviewable not leaving anything thus for being implied.
The amendment of the Hyderabad Limitation Act u/s 21 of the Act also specifically refers to the decision of a court of Small Causes alone which was rendered reviewable on an application filed within fifteen days from the date of the decree or order. One has got to search in vain the provisions of the Act for coming to the conclusion that a decision rendered by the High Court in exercise of the revisional jurisdiction conferred upon it u/s 12 of the Act is reviewable. Nor is there anything in the Act to suggest by way of necessary implication for the conferral of a power of review. Far from providing by necessary implication for the conferral of such a power of review upon the High Court with respect to a decision rendered u/s 12 of the Act, the provisions of the Act clearly negatived such power on account of the fact that the framers of the Act provided, where they choose to provide, for review of certain decisions providing for the limitation period also, confining the same to the decree passed by a Court of Small Causes. For the aforesaid reasons, I am satisfied that the Act does not either expressly or by necessary implication provide for the conferrable of power upon the High Court to review its judgment or decision rendered in exercise of the powers conferred upon it u/s 12 of the Act.
It is next contended by the learned counsel for the petitioner that the inherent power conferred upon the court u/s 151 of the CPC read with section 141 as sufficiently comprehensive enough to subsume within its ambit the power of the High Court to review its decision rendered u/s 12 of the Act even if the same is found to be not discertable from the provisions of the Act. Justice Hedge, speaking for the Supreme Court in Patel Narshi Thakershi and Others Vs. Shri Pradyumansinghji Arjunsinghji, made this observation with respect to the nature and ambit or inherent power of the court at page 1275 of the report.
It is well settled that the power to review is not an inherent power. It must be conferred by law either specifically or by necessary implication.
A Division Bench of the Madras High Court consisting of Justice Oldfield and Seshagiri Aiyar, in Anantharaju Shetty vs. Appu Hegade AIR 1919 Mad. 244 dealt with the interpretation of Section 10 of the Religious Endowments Act (20 of 1863) and held that the power to review is not inherent in a court and it can only be exercised if conferred by statute. It is further held that in as much as there is no explicit provision in the Religious Endowments Act for to review an order passed by him u/s 10 of the Act, nor has he any such power u/s 141 of the Code of Civil Procedure, Justice Oldfield observed thus:-
The only question we have to decide is whether a District Judge can, at the instance of a party, review an order passed by him under S. 10 of Act 20 of 1863. The Act contains no explicit provision for a review and petitioner has accordingly supported his claim to one with reference to (1) the Code of Civil Procedure, (2) the inherent power of the Court. As regards the Code there is nothing in the Act to apply its provisions and they can be applicable, if at all, only with reference to S. 141 of the Code itself. That section however does no more than provide for the procedure to be adopted by courts of Civil Jurisdiction in dealing with matters before them. It does not authorise an appeal, since that would not be a mere matter of procedure but the recognition of a substantive right, which must be conferred in explicit terms. Damodara Menon vs Kittappa Menon (1913 36 Mad. 16-10 I.C. 879) And similarly it confers no right to a review. For we have not shown how the one right stands on a different footing from the other.
Seshagiri Aiyar, J., observed at page 246 thus :-
It was next argued that S. 141, Civil P.C., is indicative of a general enunciation of principle by the legislature that to all the judicial proceedings, the CPC is applicable. The section only empowers the Judge to regulate judicial trials by rules as to summoning of witnesses, etc., which are to be found in the Code, and not that the Code is to be applied in its entirety to such proceedings, including power of appeal and of review. The last argument related to the inherent power of a judicial officer to review his own judgment. It is settled law that a case is not open to appeal unless the statute gives such a right. The power to review must also be given by the statute. Prima facie a party who has obtained decision is entitled to keep it unassailed, unless the legislature has indicated the mode by which it can be set aside. A review is practically the hearing of an appeal by the same officer who decided the case. There is at least a good reason for saying that such power should not be exercised unless the statute gives it, as for saying that another tribunal should not hear an appeal from the trial court unless such a power is given to it by a statute.
S.J.S. Fernandes Vs. V. Ranganayakulu Chetty, is a case where the petitioner was a tenant and the respondent was a landlord in regard to certain premises. The landlord filed a petition for eviction of the petitioner on the ground of sub-letting. The Rent Controller found the allegation to be proved and ordered eviction. The Appellate Tribunal upheld that order. The revision petition filed before the High Court was dismissed. Thereafter a review application was filed on grounds mentioned in order 47 Rule 1 of the Code of Civil Procedure. Sustaining the preliminary objection that such a review application is not maintainable and repelling the contention that the inherent power of the court can be invoked to maintain such an application for review, the court held that in as much as the Madras Buildings (Lease and Rent Control) Act, contains no explicit provision for review, the application for review shall have to be dismissed and it was accordingly dismissed. It was observed in paragraph 6 of the report thus;-
So far as the invocation of the inherent powers of court is concerned, it has been held repeatedly and has now become well settled law that the power to review is net an inherent power of a judicial officer but such a right must be conferred by statute. This is based upon the commonsense principle that prima facie a party who has obtained a decision is entitled to keep it unassailed unless the Legislature has indicated the mode by which it can be set aside. A review is practically the hearing of an appeal by the same officer who decided the case. Thereafter, the course of decisions in this country has been to the effect that a right to review is not as inherent power; see �David Nadar vs. Manicka Vachaka Desika Gnana Sambanda Pandara Sannathi" 33 Mad. 65 Lala Prayag Lal vs. Jai Narayan Singh 22 Cal. 419 Bainjath Ram Goenka vs. Nand Kumar Singh 34 Cal. 677 and ''Anantaraju Shetty vs. Appu Hegada'' (31 MLJ 162).
Speaking about section 141 of the Civil Procedure, Code, it was observed at page 238 thus: -
''...S.141 Civil P.C. is indicative of general enunciation of the principle by the Legislature that to all judicial proceedings the CPC is applicable and I have pointed out how the judicial committee of the Privy Council has held that this arises only where the proceedings reach the court appealed to as one of the ordinary courts of the country with regard to whose procedure, orders and decree, the rules of the CPC are applicable, and which is not the case in so far as this special enactment is concerned as was found to be the case with regard to the Madras Hindu Religious Endowments Act in ''Anantharaju Shetty vs. Appu Hegada 37 MLJ 162.
In G. Ramappa and Others Vs. Secretary to the Revenue Dept. and Others, Justice Umamaheswaram observed at page 320 thus:-
There would be no right of review unless the statute confers such a power, That a court or tribunal has no inherent power of review is well established. (Vide Rameswaraswami Varu vs. Ramalinga Raju 1958 An. W.R.290
Dealing with the question whether an order passed u/s 679 (2) (a) of the Hyderabad Municipal Corporation Act 2 of 1956 is reviewable, Justice Gopala Rao Ekbote (as he then was) observed in N.V. Subba Rao and Others Vs. The Government of Andhra Pradesh and Others, bserved at page 99 thus:-
It is now a fairly settled rule of law that like the power to hear appeal, the power to review must expressly be conferred by a statute. In the absence of any such conferment of power to review, it is plain that the Government could not have reviewed its order passed on 26th March, 1962.
Without the need to further burden this judgment with decisions on the point at issue, the position may be summed up:
Jurisdiction means authority to decide. That authority to decide flows from legislation. Whether a decision should be conclusive and final or whether the conclusiveness or finality of such a decision should be imperilled through providing for its review, revision or appeal, are all matters pertaining exclusively to the domain of legislative policy. They cannot be relegated to the realm of inherent power of a Court. A right of review or a right of appeal shall have to be conferred expressly by a statute. In the ultimate analysis, whether or not such a right is conferred is a matter of statutory interpretation or construction.
If, therefore, there is no provision contained in the Act conferring the power of review, the power of review cannot be inferred.
Section 152 C.P.C says that the court has inherent power to make such orders as may be necessary for the ends of justice or to prevent abuse of the process of the court. Inherent power is not an independent power. Like the right to appeal, the right to review is a substantive right which has to be conferred expressly by a statute. It cannot be inferred from inherent power of a court u/s 151 of the Code of Civil Procedure.
The procedure provided under the CPC in regard to suits can be followed as per section 141 of the Code of Civil Procedure, as far as can be made applicable in all proceedings in any court of Civil Jurisdiction. Matters initiated in the court and found passed through the hierarchy of the courts provided for under the CPC are alone considered to be proceedings to which the procedure contemplated under the CPC is intended to be applied. The Hyderabad Small Causes Courts Act provide for its own hierarchical authorities. They cannot answer the description of the courts as contemplated under the CPC though the procedure indicated in the CPC was rendered, as per the provisions contained in the Act, applicable. The power to review cannot be delegated to the realm of procedure as to secure an exception to section 141 to sustain the review petition under the Act where the Act does not otherwise provide for Judges by the aforesaid propositional position. I have no hesitation to come to the conclusion that the High Court has no power to review an order passed in exercise of its revisional powers conferred upon it u/s 12 of the Hyderabad Small Causes Courts Act, 1330 Fasli.
My attention has been drawn by the learned counsel for the petitioner to a decision rendered by the Supreme Court in Shivdeo Singh and Others Vs. State of Punjab and Others, . That is a case where a writ petition by ''A'' was filed seeking the cancellation of order of allotment passed by the Director of Rehabilitation in favour of ''B'' though he was not a party to the writ proceedings. Subsequently ''B'' filed a petition under Article 226 for impleading him as a party in the writ petition and for rehearing the whole matter. The High Court allowed that petition,. In that context, justice Madholkar held at page 1911 thus:
The other contention of Mr. Gopal Singh pertains to the second order of Khosla, J. which, in effect, reviews his prior order. Learned counsel contends that Art. 226 of the Constitution does not confer any power on the High Court to review its oun order and, therefore, the second order and of Khosla, J., was without jurisdiction. It is sufficient to say that there is nothing in Art. 226 of the constitution to preclude a High Court from exercising the power of review which inherits in every court of plenary jurisdiction to prevent miscarriage of justice or to correct grave and palapable errors committed by it. Here the previous order of Khosla, J., affected the interests of persons who were not made parties to the proceedings before him. It was at their instance and for giving them a hearing that Khosla, J., entertained the second petition. In doing so, he merely did what the principles of natural justice required him to do. It is said that the respondents before us had no right to apply for review because they were not parties to the previous proceedings. As we have already pointed out, it is precisely because they were not made parties to the previous proceedings though their-interests were sought to be affected by the decision of the High Court, that the second application was entertained by Khosla, J.,
A decision rendered by the High Court in exercise of powers conferred upon it under Article 226 of the Constitution of India in violation of the principles of natural justice was set at naught by the High Court. As is well settled, a decision afflicted with the infirmity of non-observance of the principles of natural justice is void and the decision that was reviewed was in exercise of the powers conferred upon the High Court under Article 226 of the Constitution. This decision cannot help the petitioner in this case because we are concerned with the review of a decision rendered by the High Court u/s 12 of the Act. For the aforesaid reasons, I am satisfied that the preliminary objection raised by the learned counsel for the petitioner shall have to be upheld and this petition (Civil Misc. Petition No. 2306.2306/78) shall have to be dismissed and it is hereby accordingly dismissed, but in the circumstances without costs. The other civil miscellaneous petitions are dismissed.