Satyanarayan Laxminarayan Hegde v Mallikarjun Bhavanappa Tirumale (1959)

The phrase "error apparent on the face of the record" does double duty in procedural law. It is the ground on which a superior court may quash a tribunal's decision by certiorari, and it is also one of the grounds of review under Order XLVII Rule 1 CPC. Everyone agrees an error of law is not enough by itself; the difficulty is saying when an error becomes "apparent".

This case gives a working test, and the Supreme Court later relied on it in Haridas Das v Smt Usha Rani Banik (2006) in the review context: an error that can only be shown by a long-drawn process of reasoning, on a point where two opinions are conceivable, is not an error apparent on the face of the record. The Court applied the test against the landlord even though it expressly declined to decide whether the tribunal's view of the law was right. That is the lesson: the question is not whether the decision is wrong, but whether its wrongness is self-evident.

On 22 August 1949 the landlord (respondent) applied to the Mamlatdar of Sirsi, District Kanara, for possession of land held by the appellant as tenant under a "Mulegeni" deed. The lease provided that if rent for three consecutive years fell in arrears the Mulegeni right would be void and the lessee must hand over possession. The tenant admitted three years' rent was unpaid, but argued the landlord had not terminated the tenancy by notice.

• The Mamlatdar ordered possession.
• The Collector of Kanara allowed the tenant's appeal, holding the Mamlatdar lacked jurisdiction and that the tenancy had not been terminated by due notice.
• The Bombay Revenue Tribunal held the Bombay Tenancy Act applied to Mulegeni tenure but that the landlord must fail because he had not terminated the tenancy by notice before suing for ejectment.
• The Bombay High Court, on the landlord's application invoking Art. 227 and asking for certiorari, held the Tribunal had committed an error apparent on the face of the record, quashed its order and restored the Mamlatdar's.

The tenant appealed by special leave.

1. Was the Tribunal's view — that possession could not be ordered without prior notice terminating the tenancy — an error apparent on the face of the record, correctable by certiorari?
2. Or was it at most "a mere error not so apparent on the face of the record", which can only be corrected by appeal, if an appeal lies at all?

The appeal was allowed. The High Court's order was set aside and the order of the Bombay Revenue Tribunal restored, with costs to the appellant in both courts.

The governing principles

The Court restated the propositions from Hari Vishnu Kamath v Syed Ahmed Ishaque: certiorari corrects errors of jurisdiction and illegal exercise of jurisdiction, and the issuing court "acts in exercise of a supervisory and not appellate jurisdiction", so it "will not review findings of fact reached by the inferior Court or Tribunal, even if they be erroneous."

On errors of law, it adopted the passage from the same case: "a writ of certiorari could be issued to correct an error of law. But it is essential that it should be something more than a mere error; it must be one which must manifest on the face of the record." And it accepted that the category resists definition: "what is an error apparent on the face of the record cannot be defined precisely or exhaustively, there being an element of indefiniteness inherent in its very nature, and it must be left to be determined judicially on the facts of each case."

Both sides had arguable cases

The Court set out the competing arguments at length without choosing between them:

• For the tenant: s. 14(1) says a tenancy "shall not be terminated" unless a default occurs — language that suggests an overt act by the landlord communicating his option, in contrast to s. 14(2), where the tenancy simply "shall terminate" by efflux of time. Section 3 of the Tenancy Act applies Chapter V of the Transfer of Property Act, and s. 111(g) requires the lessor to give notice in writing of his intention to determine the lease on forfeiture. The Court also noted that the Act is beneficial legislation: "In interpreting provisions of such beneficial legislation the Courts always lean in favour of that interpretation which will further that beneficial purpose of that legislation."
• For the landlord: neither s. 14 nor s. 29(2) expressly requires notice; s. 24 requires written notice only for the ground in s. 14(1)(b); the application for possession itself sufficiently expressed his intention to terminate; and the notice requirement in s. 111(g) was added only by the 1929 amending Act, which by its s. 63 did not affect transfers made before 1 April 1930 — and this lease was older.

The test applied

Having laid out that debate, the Court held it unnecessary to decide who was right: "If it is clear that the error if any is not apparent on the face of the record, it is not necessary for us to decide whether the conclusion of the Bombay High Court on the question of notice is correct or not."

Then the central sentence: "An error which has to be established by a long drawn process of reasoning on points where there may conceivably be two opinions can hardly be said to be an error apparent on the face of the record."

Here "the alleged error in the present case is far from self evident and if it can be established, it has to be established by lengthy and complicated arguments." Such an error cannot be cured by certiorari, and "the High Court was wrong in thinking that the alleged error in the judgment of the Bombay Revenue Tribunal, viz., that an order for possession should not be made unless a previous notice had been given was an error apparent on the face of the record".

An error of law is "apparent on the face of the record" only when it is self-evident. If establishing it needs a long-drawn process of reasoning, or lengthy and complicated argument, on a point on which two opinions are conceivable, it is not such an error, and a superior court exercising supervisory jurisdiction cannot correct it by certiorari — whether or not the lower decision is in fact wrong.

• Review under Order XLVII Rule 1 CPC: What is an error apparent on the face of the record? Can a court review its judgment merely because it is erroneous? Use this case for the "long-drawn process of reasoning" test, and pair it with the point that review is not an appeal in disguise.
• Writs / supervisory jurisdiction: Distinguish an error of law apparent on the face of the record from a mere error of law. Give the Hari Vishnu Kamath propositions, then this case as the application.
• Problem question: a tribunal adopts one of two plausible readings of a statute; the loser seeks certiorari or review. Answer: even if the reading is wrong, the error is not apparent, because showing it requires argument on a point admitting two opinions.
• Point worth marks: the Supreme Court restored the Tribunal's order without holding that the Tribunal was right. The test is about how visible the error is, not whether there is an error.