MADAYI KANDOTHI ALIAS CHERIA SANKARAN Vs. CHERUKANDAN SEKHARAN

JUDGEMENT

(1.) This is a petition to revise an order of the District Judge of Kozhikode, confirming the order of the Subordinate Judge of South Malabar, Kozhikode.

(2.) The Respondent is a tenant of the petitioner, having taken on lease a residential building which belonged to the petitioner. The latter applied for eviction under the provisions of the Madras Buildings (Lease and Rent Control) Act, 1949 alleging that he required the building for his own occupation and that the respondent had wilfully defaulted payment of rent. The Rent Controller held that there was wilful default on the part of the respondent. The other ground namely that the petitioner required the building for his own use was found against him. The tenant preferred an appeal to the Subordinate Judge who allowed the appeal and dismissed the petition for eviction, holding that there was no wilful default on the part of the tenant in the payment of rent. The finding of the Rent Controller on the other point was confirmed. The petitioner took the matter in revision before the District Judge, Kozhikode, under S.12 (b) of the Act but the Revision Petition was dismissed confirming the order of the Subordinate Judge. Aggrieved by this decision the petitioner has preferred this Civil Revision Petition.

(3.) A preliminary objection has been raised on behalf of the respondent that in view of the findings of the Subordinate Judge and the District Judge on the question of wilful default, there is no scope for interference in revision. It was pointed out that this is not a revision under S.12 (b) of the Act but under S.115 of the Code and that it was not open for this court to interfere with the finding that there was no wilful default in the matter of payment of rent. Learned counsel for the petitioner relied on the decision in Ethirajamma v. Raghavulu Setti (1956 Andhra Weekly Reporter, 1079) in support of his argument that the powers of the revisional court under S.12 (b) are wider than those under S.115 of the Code of Civil Procedure. Satianarayana Raju, J. held in that case that the words Legality, Regularity or Propriety of the order in S.12 (b) are wide enough to cover both questions of law and fact and go far beyond the revisional jurisdiction under S.115. It was also held that the question whether default was wilful or not was a mixed question of fact and law. The point which arose for decision in that case was whether the order passed by the District Judge under S.12 (b) was proper. It was held that the District Judge was competent to infer from the proved facts that there was no wilful default and that the order did not suffer from any infirmity so as to attract the jurisdiction of the High Court under S.115. This decision is not of any help to the petitioner because this court is asked to exercise its jurisdiction under S.115 of the Code of Civil Procedure and not under S.12 (b) of the Madras Buildings (Lease and Rent Control) Act. Raju v. E.V. Ramaswami Naicker ( AIR 1954 Mad. 1016 ) which is another decision relied on by petitioner also cannot support his position. The revisional jurisdiction of the High Court was exercised in that case as it was held that the order of the District Judge was without jurisdiction. Another decision cited by (the petitioners learned counsel is Ramaswami Iyer v. Veeracode Vellala Charity (1957 (2) M. L.J.123). The point for decision in that case was whether the District Judge had acted within his jurisdiction in setting aside concurrent orders of the Rent Controller and the appellate authority. So far as this case is concerned the Subordinate Judge who was entitled to go into the whole evidence and come to independent conclusions on questions of fact and law held that the default of the tenant was not wilful. The learned District Judge in revision came to the same conclusion. It cannot therefore be said that the District Judge acted in excess of jurisdiction in confirming the decision of the appellate authority. Had the District Judge come to a different conclusion on this point there might have been some scope for invoking the revisional powers on this court. The matter comes before me under S.115 of the Code of Civil Procedure and it is not the function of this court to enter into the merits of the evidence. It has only to see whether any of the grounds which justify interference under S.115 exists. The only ground urged by the petitioner is that the concurrent decision of the Subordinate Judge and the District Judge that the default was not wilful is erroneous. This is not a valid ground for interference under S.115. I may in this connection refer to a decision of the Madras High Court in Kuppuswami Iyer v. Harinarayanachari (1956 L.W. 72). That was a case in which the Rent Controller as well as the Subordinate Judge held that though there was default in the payment of rent, such default was not wilful. The District Judge in revision held that there was wilful default. Rajagopala Ayyangar, J. held that the question whether the default was wilful involved the determination of the state of mind of the tenant and was thus primarily a question of fact. It was also held that if there were materials on which the conclusion of the Rent Controller could be based and that finding was not disturbed by the appellate authority, the District Judge was not justified in setting aside that order. Here the position is stronger for the Respondent as the Subordinate Judge considered the evidence and circumstances and held that the tenants default was not wilful and this decision was confirmed by the District Judge. It is not proper for this court to examine the evidence and decide whether non payment of rent by the tenant amounts to wilful default as contemplated by the Act. The objection raised by the Respondent must therefore be upheld.