TUKARAM Vs. DAYALNATH

JUDGEMENT

(1.) What principally falls for determination in this writ petition is the width of power of "review" under Cl.21(2)(a) of the C.P.and Berar Letting of Houses and Rent Control Order, 1949 ("The HRC" Order for short). This is how the point arises. The respondent, Dayalnath Mishra, the original landlord filed an application under Cl.13(3)(i) and (ii) of the HRC Order against the petitioner Tukaram Sonkusare, original tenant a rickshaw puller. The landlord claimed the arrears of rent at Rs. 21/- per month for the period Sept 1973 to Jan. 1974. The tenant contested the application contending inter alia that not he but his elder brother Pandurang - a Karta of the family is the tenant the premises were taken on rent since 1968 and the rent last paid was at the rate of Rs. 11/- per month and not Rs. 21/- as alleged. Both parties entered into witness box. Documentary evidence such as copy of one receipt, notice given by the landlord, copy of assessment register etc. was also filed. Rent Controller rejected the application mainly on the ground that relationship of a landlord and tenant between the parties is not proved. Dissatisfied with this Order, the landlord filed an appeal. In view of the admission that the petitioner was jointly living with his elder brother and was himself paying the rent sometimes, it was held that considering the definition of the term "tenant" in the HRC Order the relationship was established and, therefore, application against the petitioner was. maintainable. After appreciating documentary as well as oral evidence it was further held that the rent was not Rs. 21/- as alleged by the landlord but was Rs. 11/- as contended by the tenant. What weighed with the appellate authority was the illiteracy of the petitioner, issuance of only one receipt dt. 4th Oct. 1973 even though tenancy was from 1968, entries in the assessment list showing rent at Rs. 7.25 per month. It was held that advantage of illiteracy and poor condition of the petitioner was taken by taking his signature on the copy of receipt snowing Rs.21/- as rent only to create evidence sometime before filing of the application. Evidence of landlord was not under the circumstances, preferred to evidence of the tenant and direction to make payment of arrears at the rate of Rs.11/- was made under Cl.13(3)(i). Application under Cl.13(3)(ii) was rejected holding that the petitioner was not a habitual defaulter. Being aggrieved by this appellate Order, the landlord filed a review petition. By that time, a new incumbent took charge of the file. He disagreed with the appreciation of evidence of his predecessor and allowed the review application holding that Rs. 21/- was the agreed rent.

(2.) The petitioner has challenged in this petition not only the Order passed in review dt. 29th Oct. 1977 but also the appellate Order passed dt. 12th July. 1976 holding that relationship of landlord and tenant was established, I do not see any merit whatsoever in this challenge to the appellate Order. The petitioner clearly falls within the definition of "tenant". Moreover, there is a long delay and it looks clear that petitioner has chosen to challenge the appellate Order only because unfortunately for him the review was allowed.

(3.) This takes me to the real point involved in this matter. It is true that Cl.21(2)(a) does not prescribe any statutory limitations on the power of review unlike, say for example O.47, R.1 C.P.C. where grounds for review are enumerated. Absence of restrictive language in the statute does make the scope of review wider. Review is not restricted to points of law only and in a given case may embrace even points of fact Order under review may contain a manifest error of fact which has resulted into injustice. In such a case review may be entertained but this does not mean that evidence can be reappreciated and a different conclusion arrived at only because other view of totality of evidence is possible. In other words, Court cannot under cover of review abrogate to itself the power to decide the case over again because it now feels that the assessment of the evidence etc. done formerly was faulty or even incorrect. Two views of evidence in a given case may be possible but that does not make it a fit case for review. To hold otherwise would amount to equate the review with appeal. The error of fact for being a valid ground for review must be so manifest and apparent on the face of the record that no reasonable Court would permit such an error. If the said error requires for its detection process of examining the whole material afresh and detailed reasonings, it cannot be called manifest. Moreover, it must also be seen whether the said error has resulted into injustice and does not involve mere academic interest. Not mentioning of a circumstance here and a circumstance there by the lower Court or tribunal is no ground to interference with the end result even at appellate stage. By the very nature of review power it can neither be wider or even equal to appellate power. Certainty and finality to a decision is a vital feature of rule of law. If review is permitted on such grounds it would introduce an element of disconcerting unpredictability - usually associated with gambling - and this is a reproach which any judicial process must carefully and scrupulously avoid.