1 R IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE20H DAY OF OCTOBER2016BEFORE THE HON’BLE MR.JUSTICE JAYANT PATEL WRIT PETITION NO.44943/2016(GM-CPC) BETWEEN: SMT B V NAGAKANNIKA W/O LATE SRI B M PRAKASH, AGED ABOUT56YEARS, R/AT NO.24, SHAKTHI NILAYA, R.K.PURAM, S.C.ROAD, BENGALURU-560009 ...PETITIONER (BY SRI.R B SADASIVAPPA, ADVOCATE) AND: SRI DASTAGIR S HAROON S/O SRI SHAB JAN, AGED ABOUT52YEARS, NO.2911/A, NEW KATHA, NO.3452/609, B.G.PALYA ROAD, SANTHEPETE, TUMKUR-572137 ...RESPONDENT THIS W.P. IS FILED UNDER ARTICLE227OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE IMPUGNED ORDER
DTD. 28.3.2016 PASSED BY4H2ADDITIONAL CIVIL JUDGE AND ADDITIONAL JMFC-V, TUMKUR ON THE APPLICATION FILED UNDER SECTION151OF CPC IN O.S.NO.970/2014 AND ETC.. THIS PETITION COMING ON FOR PRELIMINARY HEARING THIS DAY, THE COURT PASSED THE FOLLOWING: ORDER
The present petition is directed against the order dated 28.3.2016 passed by the Lower Court whereby the Lower Court has declined to pass the order below the interim application under Section 151 of CPC to direct deposit amounting to Rs.1,89,750/- along with the damages at the rate of Rs.20,000/- per month.
2. I have heard Mr.R.B.Sadashivappa, learned counsel for the petitioner.
3. The contention raised on behalf of the petitioner is that, Karnataka Rent Act, 1999 is not applicable since the rental amount is exceeding the limit prescribed for application of the Rent Act. Therefore, it 3 should be covered by the Transfer of Property Act. The suit was for recovery of amount of arrears of rent and for eviction and the said suit is pending since 2014. It was submitted that the landlord-plaintiff is not getting any rental and the tenant/lessee is enjoying the possession. Therefore, the application was moved to the trial Court for directing to deposit the amount under Section 151 of CPC but, the trial Court has declined to pass the order and has rejected the application. Under the circumstances, this writ petition.
4. The learned counsel in furtherance of his submission relied upon a decision of this Court in case of M/s.Bangalore Builders (P) Ltd., vs. P.P.Anthony and others reported at ILR1978(KAR) 782 and he contended that in the said matter, defence was struck down for non-deposit of amount pursuant to the order of the Court. This Court did not interfere with the order 4 of Lower Court for striking of the defence passed in exercise of power under Section 151 of the CPC.
5. He submitted that, in the said case, the Court had earlier passed the order to deposit the amount of rent against the lessee and therefore, by necessary implication it can be said that order under Section 151 could also be passed for directing the Lessee to deposit the amount of arrears of rent and the regular payment of rent. He therefore submitted that, this Court may consider this aspect.
6. I may at the outset record that the scope of judicial review under Article 227 of the Constitution would be limited to error of law or the error in exercise of the jurisdiction or perversity in exercise of power or there is gross miscarriage of justice.
7. All the aforesaid needs to be considered in light of the provisions of the Transfer of Properties Act read 5 with the powers of the Civil Court under Section 151 of CPC. It is admitted fact that, the suit is filed under the Transfer of Property Act. It is also admitted fact that on account of non-payment of the lease rent of the contract, lease was terminated and the suit is filed for eviction and vacant possession as well as for the amount of lease rent and the damages are also claimed. Be it recorded that it is not a matter under the Karnataka Rent Act or any Rent Act where the provision is made to the effect that so long as the tenant is ready and willing to pay regular rent, no eviction can be made by the landlord. But it was a matter under the Transfer of Property Act. So far as Rent Act is concerned, there is an express provision of Sec.45 enabling the landlord to move the Court and also to enable the Court to pass the order directing to deposit the amount by defendant- tenant pending the suit. Under the Transfer of Property 6 Act, there is no such provision. As such, if there is no mechanism provided under the Transfer of Property Act to direct the lessee to deposit the amount of arrears of rent or damages, such power to the Court would be unavailable. The attempt to contend that such power can be traced from Section 151 of CPC even if considered for the sake of examination cannot be accepted for two reasons; One is that, it is by now well settled that the power under Section 151 of CPC cannot be exercised de hors the express provision under the Transfer of Property Act. Another is that, power under Section 151 can be applied only by way of residuary power and not as if a substantive power of the Court. However, if the Court finds that there is abuse of Court process, the Court may be called upon to invoke the power under Section 151 of CPC. 7 8. The attempt was made on the part of the learned counsel to contend that if the landlord-plaintiff is not getting any amount and the defendant is enjoying the property, it would cause great injustice pending the proceedings and the suit may take long time for its decision and therefore, the power could be exercised under Section 151 of CPC.
9. In my view, the process of law in the normal circumstance as is applicable to any property under the Transfer of Property Act should be the same either eviction or recovery of the rent or for recovery of possession. It is true, if the decree is to remain as the paper decree, there are express provisions made under CPC to protect the interest of the plaintiff but, such is not the situation in the present case nor such power of the Court was invoked. 8 10. The power under Section 151 as observed earlier, cannot be exercised in absence of substantive statutory provision available under Transfer of Property Act or in absence of express provision made authorizing Court or the mechanism to direct the lessee to deposit the amount. I leave it at that without making any further observation for other mode and mechanism which may be resorted to.
11. Under these circumstances, it is not a matter of error of law nor it is a matter of error of jurisdiction which may call for interference under Article 227 of Constitution. When no express power is available under the statute, the learned Judge has not resorted to any power under Section 151 CPC which otherwise also cannot be invoked for issuance of such direction. It cannot be said that there is any perversity in exercise of 9 discretion or that any great injustice would be caused if there is failure of exercise of power.
12. The decision of this Court in case of M/s.Bangalore Builders (Supra) upon which the reliance has been placed by the learned counsel for the petitioner is ill-founded because in the said case, the question arose before the Court was as to whether a defence can be struck down under Section 151 CPC if there is already an order passed by the Court directing the tenant-lessee to deposit the amount. Such are not fact situation in the present case in as much as, there is no order passed by the Court nor there is any question for striking of the defence but in the present case, Court has declined to pass the order directing the lessee to deposit the amount pending the proceedings of eviction. 10 13. In view of the aforesaid, I do not find any case is made out for interference under Article 227 of the Constitution. Hence, petition is dismissed. Sd/- JUDGE Sk/-