LexSHAIK JAFFAR SHAIK MAHMOOD & ORS versus MOHD. PASHA HAKKANI SAHAB & ORS.
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890 SHAIK JAFFAR SHAIK MAHMOOD & ORS. A v. -MOHD. PASHA HAKKANI SAHAB & ORS. December 3, 1974 [V. R. KRISHNA !YER, P. K. GOSWAMI AND A. C. GUPTA, JJ.] Nature of re1•isio11al power-Narrower than appellate power-Whether evi- B dence can be re-app1eciated~~ection 1t5 of Civil Procedure Code-~ection 26( c) of Hyderabad Houses (Rent El'ic1io11 and Lease) Control Act, 1954. The wpondent Landlords made an application to the Rent Con!ro hr for eviction of the appellant-tenants on the ground of non-payment of rent and per- sonal requirer.oent under Hyderabad Houses (Rent. Eviction and Lelj'le 1 Co1J! ·o) Ac!, 1954. The Rent Controller negatived the landlords' contention and dis- missed the eviction appli;ation. An appeal filed by the landlords before the Assistant Judi:e was a'so dismissed. In a Revision Petition filed by the 1:.nd- C lords l>~fore the High Court under section 26 of the Act the High Court ex- amined the re.asons given by the Rent Controller and the Assistant Judge and held that there was no cogent reason to reject the testimony of the fi•st p.:ti- tioner on the question of bona fide requirement. - ·On appeal to this Court by Special Leave it was contended on behalf of the appellant-tenants that the High Court was wrong in reappreciating the evid1moe to come to a contrary conclusion to the one a•rived at by both the courts bc:low in Revision u.nder sedion 26 of the Act. The scope of the section 26 of the D Act is narrower than section 115 of the Civil Procedure Code. Allowing the appeal, HELD : 'there is a 3 tier machinery provided in the Act. The first court is that of Rell! Contro'lcr which is to make a summary enquiry. Tue sec.ond stage is of an appeal before the District Judge which is a comr,lete re-hea ing with additional power to make further enquiry if necessary. Tue third stage is the revision to the High Court. It is well known that the appellate powi'r is E different. f ·om revisional power. Usually in the ab'ence of any clear provision in the law power of revision is narrower than that of appeal. There is no substantial dilferen:e between the powers conforred by section 26 of the Act and section 115 of the Civil Procedure Code. In a series of decisions s•a·ting from Privy Council days it is firmly well established that section • 115 of the Civil Procedu:e Code applies to jurisdiction alone, the irregular exercise or the non-exercise of it or the illegal assumption of it. The section is not directed against conclusions of law or fact in which the question of jurisdi:tion is -not involved. [89'2E-893C] F Rajah Amir Hasseq Khan v. Sheo Baksh Sin11h, 11 Indian. Appeals 237, Balak•ishna Udayar v. Vasudeva Aiyar, 44 Indian Appeals 261, Keshardeo r Chamria v. Radha Kissen Chamriya and Others, [1953] S.C.R. 136 and D.L.F. Housing & Construction Company Private Ltd., New Def/ii v. Sarup Singh and Others, (1970] 2 S.C.R. 368. Under seclion 26, the High Court has to see whether there is any error of jurisdiction or whether there is any such manifest error of procedure commi'tted G by th-o courts as may affect the ultimate decision resulting in gross injustice. The High Ccurt in reappreciating the evidence in o•der to differ from the ,;on- clusions of the two authorities below has clearly made an error of jur;sdiction and acted in excess of the .power conferred on it under section 26 of the Act. The High Court ca·nnot sit in appeal over the order> of the original and the ~ppellate authority. [893C-EJ CIVIL APPELLATE JURISDICTION : Civil Appeal No. 1586 of 1974. Appeal by Speciai Leave from the Judgment & Order dated the H 12th February, 1974 of the Bombay High Court in Revision Applica- tion No. 136 of 1968. SHAIK JAFFAR i'. MOHD. PASHA (Goswami, J.) 891 A M. N. Phadke and A. G. Ratnaparkhi for the Appellants. B c D E F G H S. Balakrishnan and N. M. Ghatate for the Respondents. The Judgment of the Court was delivered by Gosw AMI, J. The short question that arises for consideration in this appeal is as to the scope of section 26 ( c) of the Hyderabad Houses (Rent, Eviction and Lease) Control Act, 1954 (No. XX of 1954) (briefly the Act). The facts may briefly be stated: The lai;idlords (respondents herein) made an. application to the Rent Controller for an order of eviction of the tenants (appellants herein) on. two grounds, namely, default in payment of rent and secondly requirement of the premises for their personal occupation to op
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