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Judgment
S. Palanivelu, J.—The property in door No. 224, N.S.C. Bose Road, Channai-1, is the first floor sprawling to an extent of 2757 Sq.ft.,
which belongs to the first respondent. With regard to tenancy transaction between the petitioner and the first respondent, disputes arose between
them and hence the first respondent filed eviction petition in Petition No. 7 of 2006 before the second respondent. After certain proceedings, the
second respondent passed the impugned order of eviction on 30.4.2007, directing this petitioner to vacate the premises within 15 days. Aggrieved
against the order, the petitioner carried the matter in C.M.A. No. 70 of 2007 on the file of the Principal Judge, City Civil Court, Chennai. After
hearing both sides, the learned Principal Judge, allowed the appeal remanding the matter back to the second respondent directing him to decide the
preliminary issue raised by the appellant/applicant herein and pass order on merits within a period of one month from the date of receipt of order.
The appellant took the matter in revision before this Court in C.R.P.(NPD) No. 1932 of 2008 and after hearing both sides this Court revised the
remand order passed by the appellate Authority to the effect that the purpose of remand is not only to decide the preliminary objections or issue
raised in the I.As filed by the petitioner, but also on the consideration of entire merits of the matter in the main petition comprehensively for a just
decision at the end of the second respondent on 9.4.2009.
Feeling aggrieved at the observations of this Court, in the Order above stated, the petitioner has come forward with this review application to
review the order of this Court by stating mainly that this Court has not recorded any finding as to why the appellate Court did not consider the
preliminary issue itself and whether the remand was necessary in the circumstances and that the said issue remains unanswered. It is further
contention of the petitioner in the affidavit appended to the review application that the preliminary objection raised by this petitioner is only based
on case laws and not depending upon any facts. In the affidavit it is the definite stand taken by the petitioner that absence of finding of this Court
justifying the remand by the appellate Court and the circumstance that the dispute to be decided in the preliminary issue is based only on law and
under these categorical circumstances, the Judgment of this Court suffers from error apparent on the face of record and hence this Court may
exercise its review jurisdiction.
Learned Counsel for the applicant would contend that when the appellate authority has not followed the principles regarding the remand of a
case to the forum below, this Court need not have justified it and that necessary findings are absent in the orders of both the Courts. He further
says that the decision with regard to the preliminary issue does not involve any recording of evidence i.e., there is no factual aspects to be
considered.
Conversely, learned Counsel for the first respondent would submit that after due consideration of the facts and circumstances of the case, this
Court has concluded that a comprehensive hearing of I.As and main matter is essential and no valid ground is made out to review the order passed
by this Court.
The operative portion of the order passed by this Court is as follows:
The Appellate Authority has also observed that the petitioner was under the impression that the arguments of both parties were heard in both
I.As and the orders were reserved for those applications and at no point of time the attention of the appellant was drawn to the main petition and
that no evidence was let in from both parties regarding the main petition and that since the petitioner had pleaded before the Estate Officer that he
is not ''unauthorised occupant'' by filing I.As, the second respondent ought to have decided the issue whether the appellant is an unauthorised
occupant or not, or the parties ought to have been informed that the same will be decided along with the main petition, but the same has not been
done in this case. If it is so, the original authority has to record relevant evidence, if necessary and to hear both the parties in full with regard to
main petition and I.As in a comprehensive manner and then come out with a definite finding. In the considered opinion of this Court, mere hearing
of the I.As alone will not serve any purpose and when those applications are heard by the authority, incidentally it has to touch the merits of the
matters covered by the main petition and the I.As could not be heard independent of the main petition since they are closely inter-related.
The learned Counsel for the applicant placed reliance upon decisions of various High Courts, highlighting the principles which have been laid
down therein in the matter of review of an order of the Court. It is his bottomline contention that when a Court omits to follow decision of the
Supreme Court and proceeds to pass order on its own premise, as per settled position, it is the error apparent on the face of record and hence it
could very well be reviewed by the same Court. In support of his contention he garnered support from a Full Bench decision of the Himachal
Pradesh High Court reported in The Nalagarh Dehati Co-operative Transport Society Ltd., Nalagarh Vs. Beli Ram etc., wherein the Court after
referring to various decisions of the Privy Council and other High Courts held that failure to notice an existing decision of the Supreme Court on a
question of law results in not applying the law which should have been applied, therefore, a contrary decision given on such a question would
amount to a mistake or error apparent on the face of the record, the error would be obvious and no elaborate reasoning would be necessary to
find it.
In another decision cited by him reported in The Selection Committee for Admission to the Medical and Dental College, Bangalore Vs. M.P.
Nagaraj, it is held that where there is a decision of Supreme Court appearing on a point and where a court takes a view on the point which is not
consistent with the law laid down by the Supreme Court which means no elaborate argument to point to the error and there could reasonably be
no two opinions entertained about such error.
He also cited a decision of Calcutta High Court in Tinkari Sen and Others Vs. Dulal Chandra Das and Others, in which review application was
allowed under observation that the judge who has passed order, any error committed by the judge by oversight itself could be a ground for
reviewing the order passed by him and it would be a mistake apparent on the face of record.
In a decision of Kerala High Court in E.S.I. Corporation Vs. Rajagopal Textile Mills (P) Ltd., it is observed that non-consideration of an
existing decision to the contrary, rendered by a superior Court, is a ground for review of judgment. Identical propositions have been laid down in
the following decisions:
i) Mrs. Mallika and Others Vs. Mr. Chandrappa and Others,
ii) Union of India (UOI) and Others Vs. Lachman Singh and Others,
iii) Sri Krishna Salt Works Vs. State of A.P.,
Learned Counsel for the first respondent placed much reliance upon a decision of the Supreme Court in Jain Studios Limited through its
President Vs. Shin Satellite Public Co. Ltd., wherein it is held as follows:
So far as the grievance of the applicant on merits is concerned, the learned Counsel for the opponent is right in submitting that virtually the
applicant seeks the same relief which had been sought at the time of arguing the main matter and had been negatived. Once such a prayer had been
refused, no review petition would lie which would convert rehearing of the original matter. It is settled law that the power of review cannot be
confused with appellate power which enables a superior court to correct all errors committed by a subordinate court. It is not rehearing of an
original matter. A repetition of old and overruled argument is not enough to reopen concluded adjudications. The power of review can be
exercised with extreme care, caution and circumspection and only in exceptional cases.
Drawing support from the above said decision learned Counsel would argue that having invited the Court to pass an Order, subsequently the
petitioner cannot turn round and pray for review of the Order and since his request was already negatived by this Court, coming with identical
pleas, he could not pray for review which is virtually to rehear the matter.
12.(a) The first ground on which the review application is filed is that this Court is that this Court has not observed as to why the appellate Court
did not consider the preliminary issue itself and as to why the remand was necessary in this circumstance? It is in the opinion of the appellate
authority that the procedure followed by the second respondent does not inspire any confidence as he had not given real and effective opportunity
to deal with the case put forth by the appellant but pronounced the impugned Order in a doubtful manner, giving rise to so many speculations,
further, the findings given by the second respondent regarding the preliminary objection raised by the appellant that if such course as sought for in
the I.A. by the respondent is to be adopted, every petition has to be dismissed on the basis of the two judgments cited is not proper and the same
is against law and that this Court (Appellate Authority) hopes that the principle of audi alteram partem and in turn the larger principle of natural
justice would stand vindicated and strengthened.
12.(b) Further the appellate authority in para 20 of its Judgement has observed that it is clear that the appellant was made to understand that the
Orders were reserved only on the interim applications and at no point of time the attention of the appellant was drawn to the main petition, or
directed to him to argue the main petition and that there is no dispute that no evidence was let in by both sides regarding the main petition and that
to proceed with the eviction proceedings the Estate Officer must first come to the conclusion that the person concerned is an unauthorised
occupant. This Court in its Order in paras 9 and 23 after extracting both the above said portions of the impugned order and finally concluded as
under:
If it is so, the original authority has to record relevant evidence, if necessary and to hear both the parties in full with regard to main petition and I.As
in a comprehensive manner and then come out with a definite finding. In the considered opinion of this Court, mere hearing of the I.As alone will
not serve any purpose and when those applications are heard by the authority, incidentally it has to touch the merits of the matters covered by the
main petition and the I.As could not be heard independent of the main petition since they are closely inter-related.
12.(c) In view of the above, it is manifest that the appellate authority has rendered its observation as to the purpose for which the remand was
necessary. In turn, this Court is also categorically found as above, that for what reason both the I.As and main petition have to be heard in a
comprehensive manner. There could be no doubt in the minds of anybody else much less the petitioner that the order of the appellate Court and
this Court are bereft of the findings as expected by law. It is reiterated that the appellate Court could not decide the issue by itself since it felt that
no sufficient opportunities were accorded to appellant, the petitioner herein.
13.(a) As far as the second ground for review adduced in the affidavit annexed to the review petition is concerned, it is with regard to the
contention that the order of remand was challenged before this Court, that the issue to be decided is only based on law and that the appellate court
itself could have decided it independent of any factual features. For this query, the response is very much available in the order of this Court itself
dated 09.04.2009. This Court after a conspectus of the circumstances reached a decision, accepting the conclusion of the appellate authority in
para 20 of its order that when the appellant has submitted before the Estate Officer that he is not an ''unauthorised occupant'' by filing I.As, the
second respondent ought to have decided the issue whether the appellant is an unauthorised occupant or not or the parties ought to have been
informed that the same will be decided along with main petition, but the same has not been done in this case.
13.(b) Indicating the above said portion, this Court in para 23 of its order has observed that, ""If it is so, the original authority has to record relevant
evidence, if necessary and to hear both the parties in full with regard to main petition and I.As in a comprehensive manner and then come out with
a definite finding."" In the considered view of this Court, this Court thought fit that there shall be hearing of both the I.As and the main matter
simultaneously.
13.(c) The pleadings of the parties in this respect are highlighted herein. In the eviction petition, the first respondent has categorically mentioned that
subsequent to the termination of termination of tenancy, the authority of the respondents to occupy the premises has been determined on the expiry
of 15 days from the date of receipt of notice and hence the respondent is an ''unauthorised occupant'' of the premises after the expiry of the notice
period as defined in Section 2(g) of the Public Premises (Eviction of Unauthorised Occupants) Act 1971. Even though this petitioner has not filed
any counter to the main petition. In the affidavit in I.A. No. 1 of 2006 filing under the Act, it has been mentioned that the applicant/tenant herein
became a genuine and lawful tenant under the respondent LIC in the month of May, 2004 and that at least he was a genuine lawful monthly tenant.
Hence, the dispute between the parties is manifest viz., whether the petitioner is a lawful tenant or unauthorised occupant in the premises. It is
purely a question of fact. This dispute could be resolved only by due enquiry after hearing both the parties, if circumstances warrant, by recording
oral evidence. Only if this dispute is adjudicated, then the authority could proceed further to the next stage.
13.(d) In this context, it is advantageous to refer herein the extraction of the relevant portions of the guidelines of the Government of India in the
matter of eviction of tenants in Public Premises as mentioned in para 6 of I.A. No. 1 of 2006 filed by this petitioner before the second respondent
which reads thus:
I further submit that as directed by the Supreme Court of India in Ashoka Marketing Ltd. and another Vs. Punjab National Bank and others,
the Government of India on 30.5.2002 issued certain guidelines to prevent arbitrary use of powers to evict genuine tenants from public premises
under the control of the Public Sector Undertakings/Financial Institutions. The same has been duly gazetted on 8.6.2002. The relevant portion of
the guidelines for the purpose of this case are stated hereunder:
I. The provisions of the Public Premises Act should be used to evict totally unauthorised occupants of the premises of public authorities.
II. The provisions of the Public Premises Act should not be used where the premises were in occupation of the original tenants to whom the
premises were let by the public authorities.
III. Contractual agreement shall not be wound up by taking advantage of the provisions of the Public Premises Act.
IV. The public authorities would have rights similar to private landlords under the Rent Control Act in dealing with genuine legal tenants.
V. It is necessary to give no room for allegation that evictions were selectively resorted to for the purpose of securing an unwarranted increase in
rent.
VI. Public Sector Undertakings should immediately review even the pending cases before the Estate Officer or Courts with reference to this
guidelines and withdraw eviction proceedings against genuine tenants on the ground otherwise than as provided under these guidelines.
13.(e) Taking advantage of the issuance of the above said guidelines, the petitioner contends that the jurisdiction of second respondent is excluded
and that civil Court alone has got jurisdiction for eviction. This Court does not enter into the discussion as to the applicability of the above said
guidelines since it is the job of the second respondent. Suffice it to indicate that guideline No. 1 enables the landlord to invoke provisions of Public
Premises Act to evict the unauthorised occupants. In order to decide whether this petitioner is an ''unauthorised occupant'', necessary enquiry has
to be held by the second respondent and there is nothing wrong on the part of this Court to direct the second respondent to hear the I.As and main
matter simultaneously since it involves mixed questions of fact and law.
There is no deviation by this Court from the settled proposition of law and no oversight could be discerned on the scrutiny of the order passed
by this Court and there is nothing to show that there is an error apparent on the face of record. In view of this Court, the review application is
misconceived which does not contain any merits and the same suffers dismissal.
In fine, the review application is dismissed. No costs.