NARESH THAPER Vs. NARAYANA RAO PATALAY DIED

JUDGEMENT

(1.) COMMON ORDER :Narayana Rao Patalay (hereinafter called the deceased) filed R.C. No.231 of 1988 against the petitioner seeking his eviction from the premises bearing Door No.3-6-341 at Bashir Bagh, Hyderabad. After contest by the petitioner, the said R.C. was dismissed. So, deceased filed R.A. No.134 of 1994 and died during the pendency of the appeal. So, respondents filed I.A. No.1140 of 1995 to bring themselves on record as the legal representatives of the deceased and to permit them to continue the appeal proceedings. After contest by the petitioner the said I.A. No.1140 of 1995 was allowed and subsequently R.A. No.134 of 1994 was dismissed on merits. Revision against that order in C.R.P. No.2324 of 1998 preferred by the respondents was allowed by me on 6.8.2002 granting time till the end of December, 2002 to the petitioner to vacate the premises. Against the said order in C.R.P., petitioner preferred an S.L.P. (Civil) No.21179 of 2002 before the Supreme Court. On 14.2.2003 the Supreme Court passed the following order:

(2.) Heard Mr. Vilas V. Aftul Purkar, learned Counsel for the petitioner, and Sri Challa Sitharamayya, learned Senior Counsel appearing on behalf of respondents.

(3.) The contention of the learned Counsel for the petitioner is that since petitioner preferred an SLP before the Supreme Court, he did not file the review petition intime and since the delay in preferring the review was his preferring SLP., the delay that occurred in preferring the review petition deserves to be condoned. On the question of maintainability of the review petition in a CRP, preferred as per the provisions of A.P. Buildings (Lease, Rent and Eviction) Control Act, 1960 (hereinafter called 'the Act') he contends that though a learned Single Judge of this Court in A. Manmohan Shah v. Gopinath, 1999 (1) ALT 459, observed that an application for review of an order passed in revision under the provisions of the Act not maintainable, inasmuch as that order was set aside by the Supreme Court in Civil Appeal No.5417 of 1999 dated 20.9.1999, A. Manmohan Shah (supra) is no longer good law. He contends that since the Supreme Court in MM. Thomas v. State of Kerala and another, 2000 (1) SCC 666, held that the High Court, as a Court of record, has inherent power to review its orders, review petition is maintainable. He, relying on Rajasekharan v. M/s Paramartha Bhushanam Nathella Sampathu Chetty Charities, 1983 (2) APLJ 276, contends that G.O.Ms.No.622 dated 4.5.1960, issued under the provisions of the A.P. Charitable and Hindu Religious Institutions and Endowments Act, 1951 exempting all the buildings belonging to Hindu Religious and Charitable Institutions from the purview of the Act, continues to apply even after coming into force of A.P. Charitable and Hindu Religious Institutions and Endowments Act, 1966 and 1987 (for short 'the Endowments Act'), and so the building in question belonging to the first respondent would be exempt from operation of the provisions of the Act, and so respondents cannot seek eviction of the petitioner under the provisions of the Act. He contends that this point could not be raised at the time of hearing of the revision since the petitioner did not foresee the prospect of revision being allowed. It is his contention that since this Court while disposing of the revision petition clearly held that the building in question would be covered by the Endowments Act, the remedy, if any, of the respondents is elsewhere, but not under the provisions of the Act, and contends that since according to the provisions of the Endowments Act the Commissioner can order eviction of a tenant holding over as an encroacher, respondents can seek the remedy under Endowments Act or file a Civil Suit for eviction, but petition for eviction under the provisions of the Act cannot be continued. He relied on A.R. Antulay v. R.S. Nayak AIR 1988 SC 1531, in support of his contention that an order, which is per incuriam, can always be reviewed; and since the question as to whether G.O. Ms. No.622 is applicable to the building in question was not considered by this Court while disposing of the revision, and the order in revision would be non est in view of the above said G.O., the order in revision deserves to be reviewed, and so the review petition is maintainable. He relied on A. V.G.P. Chettiar and Sons v. T. Palanisamy, 2002 SAR (Civil) 822, where it is held that in view of the exemption granted to the building governed by the Tamil Nadu Endowments Act, from the provisions of the Rent Control Act in Tamil Nadu, petition for eviction under the provisions of Rent Control Act in Tamil Nadu is not maintainable, and contends that the ratio in that decision squarely applies to the facts of this case. The contention of the learned Senior Counsel for the respondents is that a petition seeking to review the order in a C.R.P. filed under the provisions of the Act, is not maintainable, as held in Gantasala Eswara Rao v. Gundimi Somasekhar, 1998 (3) ALD 92 (DB). It is his contention that the ratio in MM. Thomas case (supra) does not apply to the facts of this case because the Court in that case was dealing with a case arising under Kerala Private Forests (Vesting and Assignment) Act, 1971 (1971 Act), and from para-7 of the said judgment it is seen that power of review is available under the provisions of the 1971 Act. It is his contention that since this Court while disposing of the C.R.P. held that the appeal and the revision should be deemed to be continuation of proceedings initiated by the deceased, the proceeding in C.R.P. is not and cannot be treated as a fresh proceeding, initiated by the Trust created by the deceased, under the provisions of the Act, and since a proceeding validly instituted can be continued till the end, the fact that subsequent to the institution of the proceedings the person that instituted the proceeding did not survive, though the cause of action survives is not and cannot be a ground for throwing out the proceedings on the ground that subsequent to the death of the party that instituted the proceedings a new jurisdiction for seeking the same relief came into existence. In short his contention is because of a subsequent event of the death of the person that instituted the proceedings, the fact that his legal representatives can obtain the relief through some other forum, by itself would not be a ground for non-suiting the legal representative of the deceased petitioner. He fortified his said contention by relying on Smithies v. National Association of Operative Plasterers, 1908 Kings Bench Division 310, K.Kapen Chako v. The Provident Investment Company (P) Ltd., (1997) 1 SCC 593, Commissioner of Income Tax v. Dhadi Sahu, 1994 Supp (1) SCC 257, R. Kapilanath v. Krishna, AIR 2003 SC 565, and Ambalal Sarabhal Enterprises Ltd. v. Amrit Lal And Co., (2001) 8 SCC 397. It is his contention that this Court did hear on the question of maintainability of the proceedings subsequent to the death of the deceased vis-a-vis the G.O.Ms.No.622 relied on by the Court for petitioner, and contends that since the learned Counsel for petitioner did not seriously dispute the maintainability of the revision by the revision petitioners i.e., respondents, the question of applicability of the said G.O. might not have been considered in the order sought to be reviewed. It is his contention that since the appellate authority in I.A. No.1140 of 1995 clearly held that the respondents, as legal representatives of the deceased, are entitled to continue the proceedings instituted by the deceased, it means that the proceedings are continued for and on behalf of the deceased, and, therefore, the mere fact that the Trust came into existence subsequent to the death of the deceased is not and cannot be a ground for review. It is his contention that the points that arise for consideration in this petition would be whether an application for eviction under the provisions of the Act can be continued by the legal representatives of the deceased-landlord and can a tenant question the capacity of the statutory authorities under the Act by way of review when he did not choose to question the reasoned order of the appellate authority by way of a revision or in the main revision petition filed by the respondents, who are the legal representatives of the deceased, and since both the questions are to be answered in favour of the respondents, the question of reviewing the earlier order does not arise. In reply the contention of the learned Counsel for the petitioner is that since the Supreme Court in para 14 of MM Thomas case (supra) clearly held that the High Court, as Court of record, as envisaged in Article 215 of the Constitution, must have inherent power to correct the records, de hors the powers conferred under the provisions of Section 8(c) of the 1971 Act, and had clearly held that the High Court, as a Court of record, has inherent jurisdiction to review its order, the review petition is maintainable. It is his contention that the fact that petitioner did not question the order of the appellate authority in IA No.1140 of 1995 independently by way of revision or during the hearing of the C.R.P. filed by the respondents by itself is not and cannot be a ground for rejecting this petition, because petitioner had an option either to file a revision against the order in I.A. No.1140 of 1995 or to wait till the disposal of the appeal, and prefer a revision questioning the final order in the appeal by way of revision and in any event since the appeal filed by the respondents was dismissed by the appellate authority, the fact that petitioner did not challenge the order of the appellate authority in IA No.1140 of 1995, in this Court is of no consequence.