MADHURILATA DEVI AND ORS. Vs. SRI. GOURAPADA BASAK

JUDGEMENT

(1.) THIS revision petition arises out of a suit for eviction based on two grounds, namely, (1) the Defendant had defaulted in making payment of rent and (2) the shop in question adjacent to the shop of the Plaintiff is bonafide required for the purpose of expanding the business of the Plaintiff. The trial Court decreed the suit on the ground that the Defendant was a defaulter in payment of rent. That decree was however reversed by the learned Assistant District Judge No. 2 on at appeal filed by the tenant Defendant. The Plaintiff then preferred a revision petition in this Court being civil Revision No. 50 of 1978. This Court declined to interfere with the finding reached by the appellate Court on the issue as to whether the Defendant was a defaulter. The appellate Court had held that the Defendant was not a defaulter in making payment of rent. This Court however found that the finding relating to lack of bonafide requirement recorded by the Assistant District Judge was based on misconceptions of law and without discussing the materials on record. Hence it was set aside by this Court. The revision petition was allowed and the judgment and decree passed by the appellate Court below were set aside and the matter was remanded to the learned Assistant District Judge to give his finding on issue No. 8 after perusal of the evidence of both sides already on record. The matter was then taken up again by the appellate Court below. The learned Assistant District Judge No. 2 Cachar, Silohar held on appraisal of the evidence that there was noting to show that the Plaintiffs needed the suit room for their own use and occupation. The decided against the Plaintiff and the suit was dismissed. The Plaintiffs have once again come up to this Court in revision under Section 115 Code of Civil Procedure.

(2.) BEFORE we proceed to examine the contentions rated by the parties before us it would be pertinent to point out that we are not sitting in appeal over the judgment of the appellate Court below. The Plaintiffs Petitioners have invoked the revisional jurisdiction of this Court under Section 115 Code of Civil Procedure. The jurisdiction under Section 115 Code of Civil Procedure is limited in its scope. The High Court in exercise of its revisional High Court in exercise of its revisional jurisdiction under Section or 115 Code of Civil Procedure may call Code of Civil Procedure for the record of any case which has been decided by any Court subordinate to the High Court and in which no appeal lies and may pass such order in the case as it thinks fit if the Subordinate Court appears to have exercised a jurisdiction not vested in it by law or to have failed to exercise a jurisdiction not vested or to have acted in the exercise of the jurisdiction illegally or with material irregularity. The scope of Section 115 or the Code of Civil Procedure was examined in a member of casts by the Privy Council as also by the Supreme Court (See Rajah Amir Hussain Khan v. Sheo Baksh Singh, (1884) 11 Ind App 237, Balakrishna Udayar v. Vasudeva Aiyer, A.I.R. 1917 PC 71; Venkatagiri Ayyangar v. Hindu Religious Endowments Board, Madras : AIR 1949 PC 156; Manindra Land Building Corporation Ltd. v. Bhutnath Banerjee, AIR 1954 SC 1336; Abbasbhai v. Gulamnabi : AIR 1964 SC 1341: D.L.H. Housing and Construction Co. Pvt. Ltd. New Delhi v. Sarup Singh : AIR 1971 SC 2324; Pandurang Dhondi v. Maruti Hari Jadhav : AIR 1966 SC 153; M.L. Sethi v. R.P. Kapur : AIR 1972 SC 2379. Referring to these decisions the Supreme Court once again in Sher Singh v. Joint Director of Consolidation and Ors. : AIR 1978 SC 1341 laid down:

(3.) IT is not the case of the Plaintiff Petitioners that the appellate Court below has exercised a jurisdiction not vested in it by law. It had in fact the jurisdiction to entertain and hear the appeal. The contention of the Plaintiffs Petitioners who are landlords of the premises in question however is that the appellate Court below has based its finding on extraneous considerations and has reached the conclusion which is not only perverse but which no reasonable man will arrive at. In examining this contention it has to be borne in mind that Section 115 Code of Civil Procedure applies to question of jurisdiction above, the irregular exercise or non -exercise of it or the illegal assumption of it. It is out directed against conclusions of law or fact in which the question of jurisdiction is not involved. In other words, an erroneous decision on a question of law or fact reached by the subordinate Court which has no relation to question of jurisdiction of that Court cannot be connected under Section 115 Code of Civil Procedure. An erroneous finding of fact was therefore, be not amenable to challenge under Section 115 Code of Civil Procedure on the ground that on reappraisal of the evidence a different conclusion may be reached. The error must relate to the question of jurisdiction and it must be shown that the Court below had acted illegally or with material irregularity in exercise of its jurisdiction.