AMBUBHAI SOMABHAI PATEL Vs. KAPILABEN MULSHANKER VYAS

JUDGEMENT

(1.) The petitioner in this Civil Revision Application is the original defendant and the opponent is the original plaintiff. The plaintiff is the landlady i. e. the owner of the building in which the premises in suit are situated at Baroda and the defendant is her tenant. The plaintiff landlady filed a suit for possession of the premises in suit on the ground that she required the suit premises reasonably and bona fide for her own use. The trial Court found that the plaintiff had failed to prove that she required the suit premises reasonably and bona fide for her own use and thereupon the learned trial Judge dismissed the plaintiffs suit. Thereafter the plaintiff landlady filed an appeal before the District Judge at Baroda and according to the plaintiff-landlady during the pendency of the appeal the tenant had been allotted residential accommodation by the University at Baroda where he had been working as a Reader. According to the contention of the plaintiff-landlady the tenant was serving as a Reader in the M. S. University at Baroda and in that capacity he had been appointed a warden to be in charge of Dr. Gajjar Hall and had been assigned rent free residential quarters by the University. The judgment of the trial Court dismissing the suit of the plaintiff was delivered on April 21 1962 and the appointment of the tenant as the warden and the consequent allotment of resident premises to him occurred in the month of February 1963 when the appeal was pending before the District Court. Thereafter an application was made for recording additional evidence regarding the new ground for eviction which would arise under sec. 13(1)(1) of the Bombay Rents Hotel and Lodging House Rates Control Act (Bombay Act No. LVII of 1947) ( herein after referred to as the Act ). Thereupon the learned District Judge formulated two issues viz:- (1) Whether the plaintiff proves that the defendant has acquired vacant possession of or been allotted a suitable residence ? (2) Whether the defendant proves that the suit is liable to be dismissed for want of notice for filing the suit for possession under sec. 13(1)(1) of the Bombay Rent Act ? The learned District Judge after the additional evidence had been recorded by the trial Court on these two issues and the findings had been certified to the District Judge heard the arguments of the parties and came to the conclusion that a ground for eviction under sec. 13(1)(1) of the Act had been made out and he passed the decree for possession in favour of the plaintiff-landlady. The present Revision Application has been filed against the judgment and decree of the learned District Judge passed in a ppeal.

(2.) Mr. J. B. Patel appearing on behalf of the petitioner wanted to urge various points before me but his principal point was that the learned District Judge had exercised his jurisdiction illegally and for this purpose he relied upon the provisions of clause (c) of sec. 115 of Code of Civil Procedure. This point has been considered in various authoritative pronouncements both of the Privy Council and of the Supreme Court and it is necessary for the purposes of this judgment to refer to only a few of them.

(3.) In the case of N. S. Venkatagiri Ayyangar v. Hindu Religious Endowments Board Madras. 76 I. A. 67 Sir John Beaumont delivering the judgment of Their Lordships of the Privy Council held as follows:- Section 115 of the Code of Civil Procedure applies to jurisdiction alone and empowers the High Court to satisfy itself on three matters (a) that the order of the subordinate court is within its jurisdiction (b) that the case is one in which the subordinate court ought to exercise jurisdiction and (c) that in exercising jurisdiction the court has not acted illegally that is in breach of some provision of law or with material irregularity that is by committing some error of procedure in the course of the trial which is material in that it may have affected the ultimate decision. So far as the words material irregularity are concerned by this judgment of the Privy Council it has been clearly indicated that material irregularity must be by committing some error of procedure in the course of the trial but in this judgment the Privy Council has not explained elaborately what was meant by breach of some provision of law in the passage cited above. This decision of the Privy Council was delivered on January 24 1949 But in the Pull Bench case of Narayan Sonaji V. Sheshrao Vithoba A. I. R. 1948 Nagpur 258 the Nagpur High Court had taken the view that there must be an error of procedure and not merely of law to justify interference under cl. (c) of sec. 115 C. F. C. It must be something independent of the decision itself an irregularity or illegality in the manner of arriving at it and not in the conclusion reached. Vivian Bose J. of the Nagpur High Court ( as he then was ) had made this Reference to the Full Bench and in the order of Reference it has been pointed out in paras 30 and 31 as follows:- This analysis reveals to my mind that cases like the present can in no event fall within clauses (a) and (b) of sec. 115. I turn now to clause (c):- To have acted in the exercise of its jurisdiction illegally or with material irregularity. I am clear that the words illegally and material irregularity do not cover either errors of fact or of law. They do not refer to the decision arrived at but to the manner in which it is reached. The errors contemplated relate to material defects of procedure and not to errors either of law or fact after the formalities which the law prescribes have been duly complied with both in letter and in spirit. As I have said in I.L.R. (1938) Nag. 73 at p. 77- It must be something independent of the decision itself an irregularity or illegality in the manner of arriving at it not in the conclusion reached. Pollock J. at page 271 para 99 of the report. agreed with the dictum of Sir Lawrence Jenkins C. J. in 41 Cal. 323 that there must be an error of procedure and not merely of law to justify interference under clause (c) and he also agreed with the observations of Bose J. in I. L. R. (1936) Nag. 73 that it must be something independent of the decision itself an irregularity or illegality in the manner of arriving at it not in the conclusion reached. I have extensively quoted from this decision of the Pull Bench of the Nagpur High Court because in the subsequent decision of the Supreme Court this decision of the Nagpur High Court has been app roved.