TMI Blog1955 (11) TMI 46X X X X Extracts X X X X X X X X Extracts X X X X ..... ention urged by the Advocate General is that the petition is not maintainable on the ground that it is the final order which must be challenged by the respondent in order to succeed, which is the order of the Custodian General passed on April 10, 1954, and as the Custodian General's office is in Delhi, this Court has no jurisdiction to issue a writ against him. The Advocate General is right, and now it is well settled, that if the order which must be quashed by this Court is the order of the Custodian General, this Court has no jurisdiction to issue a writ against a person who is or a tribunal which is outside its jurisdiction. But what has been urged by the other side is that it is not incumbent upon the petitioner to challenge the order of the Custodian General. The order which is challenged is the order of the Custodian which was passed within jurisdiction and which admittedly can be quashed by this Court. What is urged by the Advocate General is that the order of the Custodian General was passed after consideration of the merits of the matter, that it was not a decision given on any preliminary point but it was given after the Custodian General had considered the order of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... upervision over subordinate Courts or tribunals and it is in the exercise of that right that the revisional Court passes its orders. It is not obligatory upon the revisional Court to interfere with the order under revision even though the order may be improper or even illegal. When the revisional Court does interfere with the order of the Court below, the result is not that the order of the lower Court is merged in the order passed by the revisional Court, but the result is that the order of the revisional Court sets aside or modifies the order of the lower Court. Whereas in the case of an appeal when the appeal is dismissed the appellate Court confirms the decree of the trial Court, in the case of a revisional Court when it dismisses the petition in revision all that it does is that it does not interfere with the order of the Court below. The effect of the dismissal of the petition in revision is not to confirm the order of the trial Court because no confirmation is necessary from the revisional Court. When the revisional Court dismisses the petition, the true effect in law is that it refuses to exercise the revisional jurisdiction conferred upon it. Whereas, when the appellate C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... st the jurisdiction of the civil Court, and the order of the Custodian General is final in the sense that whatever his decision might be it cannot be challenged either by way of appeal or revision or in any original suit. But what we have to consider is whether this order of the Custodian General supersedes the order passed by the Custodian. Section 28 does not throw any light on the decision of that question. 7. Reliance is then placed on the rules framed under this Act and-the rule relied upon is Rule 31. Sub-rule (9) of that rule is material and it provides: Any authority hearing any appeal or an application for revision may admit additional evidence before its final disposal or may demand the case for admission of additional evidence and report or for a fresh decision, as such authority may deem fit. What is contended by the Advocate General is that this rule confers a power upon the revisional authority, which power is not conferred upon the High Court under Section 115 of the Code. It is difficult to understand how the jurisdiction exercised by a particular Court or tribunal or authority can be affected by the powers conferred upon that Court, tribunal or authority. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... I.L.R. 57 All. 781. This decision, which is also of a single Judge, distinguishes the judgment in Gauri Shankar v. Jagat Narain. In this case upon the dismissal of an application in revision against a decree passed by a Small Cause Court, it was held that the decree remained the decree of the Small Cause Court and was not merged in the deree of the High Court, and Mr. Justice Bennett who decided this case points out that in Gauri Shankar v. Jagat Narain the High Court allowed the revision and modified the decree, and therefore the learned Judge takes the view that in that case there was a merger. As we have pointed out, we do not agree with the expression that the decree of the Small Cause Court was merged, but undoubtedly, inasmuch as the High Court modified the decree, the order of the High Court was the only order which was effective and enforceable. 10. The Advocate General has strongly relied on a later decision of the Allahabad High Court in Hafiz Mohd. Yusuf v. Custodian General . There, the High Court was considering the Evacuee Property Act itself and the learned Judges held that for all practical purposes the powers of the Custodian General were indistinguishable from ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... original decree or order is and continues to be the subsisting and final decree or order. In this respect an order rejecting a review petition stands on a different footing from a decision passed on appeal confirming the lower Court's judgment and dismissing the appeal. If the decision on review or revision does interfere with the original decision, the former decision becomes the only subsisting order and stands on the same footing as the decision passed in a competent appeal. In Sawaldas Madhavdas v. Arati Cotton Mills (1954) 57 Bom. L.R. 894 we pointed out the vital distinction between an application for review and an appeal and we stated that an appeal is a vested right and that right is a substantive right. There is no vested right in a litigant to prefer an application for review. Hence, when an application for review is filed, it is an independent proceeding which is initiated by the litigant. The same observations would apply to an application in revision. Clearly, the litigant has no vested right to prefer an application in revision and in that sense the application for revision is an independent proceeding. It is true that the revision application arises out of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s the occupancy right and that occupancy right vested in the Custodian. We agree with the learned Judge that a statutory tenancy or a personal right to occupy premises could not be construed to mean an occupancy right within the meaning of Section 18(1). Therefore, if Section 18(1) has no application and Section 18(1) does not cover the case of a statutory tenancy or a personal right to occupy certain premises, it is clear that on the termination of the tenancy of the evacuee the tenant continued to be a statutory tenant and that right could not vest in the Custodian. The learned Judge has also accepted the contention of the petitioner, and in our opinion rightly, that in any view of the case the petitioner was in occupation under a colour of title, and if he was there under a colour of title, he could not be evicted as a trespasser by the summary procedure permissible to the Custodian under the Act. What has been pointed out to us is that there was inconsistency in the petitioner's case as put forward in his reply to the show cause notice and in the petition before us. At one time, it is pointed out, the petitioner contended that the lease was surrendered to him. At another ti ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
