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Shashi Kapur Vs. O.P. Gogne and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtDelhi High Court
Decided On
Case NumberCivil Miscellaneous (Main) Appeal No. 92 of 1980
Judge
Reported inAIR1982Delhi245; 19(1981)DLT25
ActsCode of Civil Procedure (CPC), 1908 - Sections 151
AppellantShashi Kapur
RespondentO.P. Gogne and ors.
Advocates: Daljit Singh,; M.C. Bhandare,; A. Bhattacharya and;
Cases ReferredManohran Lal Chopra v. Bai Bahadw Ran Raja Seth Him Lal
Excerpt:
.....case examined the jurisdiction of the civil court to appoint local commissioner in exercise of its inherent powers wherein a petition was filed under article 227 of the constitution of india - it was held that the court had power in the absence of any express or implied prohibition to pass an order as might be necessary for the ends of justice or to prevent the abuse of the process of the court under section 151 of the civil procedure code, 1908. - - 3 transferring out of love and affection half share in the said premises. it is well- settled that the provisions of the code are not exhaustive for the simple reason that the legislature is incapable of contemplating all the possible circumstances which may arise in future litigation and consequently for providing the procedure if it is..........breadth is co-extensive with necessity. the inherent power is not conferred upon a court; it is a power inherent in a court by virtue of its duty to do justice. the provisions of section 151 of the code do not control or otherwise limit the inherent power. the court has power, in the absence of any express or implied prohibition, to pass an order as may be necessary for the ends of justice or to prevent the abuse of the process of the court. the cases and circumstances always arise which arc not covered by the express provision of the code of civil procedure and where justice has to be done as is the case before me when the learned subordinate judge passed the impugned order of appointment of a local commissioner because of necessity to enforce the interim order of injunction issued in.....
Judgment:

S.S. Chadha, J.

(1) This petition under Article 227 of the Constitution of India raises an important question of the jurisdiction of a Civil Court to appoint a Local Commissioner in the exercise of inherent powers under Section 151 of the Code of Civil Procedure.

(2) The dispute between the parties relates to premises No. S-231, Panchsheel Park, New Delhi built on a leasehold plot of land. Smt. Sulakshana Malhan (Respondent No. 2) was the exclusive owner of the said premises. She entered into an agreement on September 11, 1976 with the petitioner for letting out the said premises at a monthly rent of Rs. 1200.00 . There are other conditions in the lease agreement with which this Court is not concerned in the present proceedings. The said premises are a single storeyed house. Smt. Mohini Devi (Respondent No. 3) lost her husband leaving behind a minor son and she came back from England to settle in, India. Respondent No. 2 executed a gift deed in favor of respondent No. 3 transferring out of love and affection half share in the said premises. The name of respondent No. 3 is alleged to have been entered as joint owner in the records of the Panch Shiela Cooperative House Building Society, Delhi Development Authority and the Municipal Corporation of Delhi. Respondents 2 and 3 submitted plans for the construction of first floor of the said premises. The plans were duly sanctioned by the competent authorities. Respondents 2 and 3 took steps to store the building material at the open. space of the said premises and wanted to commennnence the construction of the first floor of the building. The petitioner started objecting to the construction of the first floor and thus the relations between the parties became strained. Respondent No. 4 is the mother of respondents 2 and 3. Respondents 2 to 4 filed a civil suit for permanent injunction against the petitioner herein for restraining him from obstructing their construction activity. Respondents 2 to 4 also filed an application for the grant of an interim injunction. Shri 0. P. Gogne, Sub Judge 1st Class, Delhi by his order dated September 6, 1979 came to the conclusion that respondents 2 to 4 had shown a prima fade case and also the balance of convenience in their favor; that in case the temporary injunction was not granted, they might suffer irreparable loss because respondent No. 3 being a widow and helpless lady wanted to settle down in. Delhi along with her son and for that purpose she sought to have shelter by constructing the first floor of the house in question and that on the other hand, no loss was going to be caused to the petitioner by the construction of the first floor. In the result, the petitioner and other defendants in the suit were restrained from obstructing respondents 2 to 4 in the construction of the first floor of house No. S-231, Panchsheel Park, New Delhi till the disposal of the suit. An appeal was directed against the order dated September 6, 1979 passed by Shri 0. P. Gogne, Sub Judge 1st Glass, Delhi. The appeal was dismissed by Shri K.S.Gupta, Additional District Judge, Delhi in his order dated April 22, 1980. Being aggrieved, the petitioner filed a revision petition under Section 115 of the Code of Civil Procedure in this Court. The revision petition was dismissed with costs on May 23, 1980. The petitioner then filed a special leave petition (Givil), being No. 5527/80 from the judgment and order of this Court dated May 23, 1980. The special leave petition was, however, permitted to be withdrawn on May 30, 1980.

(3) In the meanwhile, respondents 2 to 4 filed an application under Section 151 of the Code of Givil Procedure before the trial Court alleging that after the decision of the High Court, the petitioner and defendants in the suit have become desperate and have locked the main gate and also the staircase leading to the first floor where the construction is to be carried on with a view to obstruct the entry of respondents 2 to 4 and their servants and labourers for executing the work of construction in the property. A prayer is made in that application that the Court may appoint some Local Commissioner to go to the spot and get the construction commenced and he may also be permitted to gat the locks of the main gate and staircase removed/ broken in order to enable the construction commenced in the interest of justice. An objection was raised by the petitioner before the trial Court that the Local Commissioner could not be appointed having regard to the provisions of Section 75 read with Order Xxvi oF the Code of Givil Procedure. The trial Court repelled that objection and expressed the opinion that having regard to the circumstances and the conduct of the petitioner and other defendants in the suit in not allowing respondents 2 to 4 to commence the construction work despite the injunction order operating against them, respondents 2 to 4 were within their rights to seek the assistance of the Court to get the construction work commenced and that ends of justice demand that the relief sought by respondents 2 to 4 should be granted to them. Accordingly, that application was allowed and Shri Jaspal Singh, Advocate was appointed as Local Commissioner with the direction to visit the spot on the day the respondent 2 to 4 intended to start the construction work on the first floor of house No. S-231, Panchsheel Park, New Delhi and to get the construction work commenced in his presence. It was further directed that in case the main gate and the staircase of the said building were locked by the defendants in the suit, the Local Commissioner should ask them for the keys and in case of their non-availability or on account of their refusal, he should get the locks removed/broken in order to enable the commencement of the construction. These orders were passed on May 31, 1980 by Shri 0. P. Gogne, Sub Judge, 1st Glass, Delhi which are impugned in the present petition under Article 227 of the Constitution.

(4) The main argument of Shri Daljit Singh, the learned counsel for the petitioner is that the trial Court had no jurisdiction to appoint a Local Commissioner in exercise of the powers conferred under Section 151 of the Code of Givil Procedure. The contention is that the power of the Court must be found within the four corners of the Code of Givil Procedure when the Code has expressly dealt with the subject matter of the grant of Commission in Section 75 and Order Xxvi of the Code of Givil Procedure. Section 75 empowers the Court to issue a commission subject to such conditions and limitations as may be prescribed and it enumerates the situations that arise for the exercise of that power. The procedure for the grant and the conditions are contained in Order Xxvi of the Code of Civil Procedure. The counsel urges that Section 75 empowers the Court to issue a commission for the purposes specified therein, even though it is not so expressly stated that there is no power to appoint a Commissioner for other purposes, a prohibition to that effect is implicit in Section 75. Reliance is heavily placed on the judgment of the Supreme Court in 'Padom Sen and another v. The State of Uttar Pradesh', 0065/1960 : 1961CriLJ322 wherein their Lordships held that in exercise of the powers under Section 151 of the Code of Civil Procedure, the Court could not issue a Commission for seizing books of account. Reliance is next placed on 'Arjun Singh v. Mohinder Kumar'', : [1964]5SCR946 wherein the question arose about the exercise of inherent powers for setting aside the ex parte decree. Reliance is also placed on 'Jaiswal Coal Co. v. Fatehganj Co-operative Marketing Society Ltd.', : AIR1975Cal303 .

(5) Section 151 of the Code of Civil Procedure saves the inherent power of the Court. It provides that nothing in this Code shall be deemed to limit or otherwise affect the inherent power of the Court to make such orders as may be necessary for the ends of justice, or to prevent abuse of the process of the Court. The Court is constituted for the purpose of doing justice and must be deemed to possess all such powers as may be necessary to do the right and to undo a wrong in the course of the administration of justice. The provisions of the Code are not exhaustive. Where the provisions of the Code are not sufficient to meet the necessities of the case, the inherent powers could be called in aid to act ex debito justice. The inherent powers have its roots in necessity and its breadth is co-extensive with necessity. The inherent power is not conferred upon a Court; it is a power inherent in a Court by virtue of its duty to do justice. The provisions of Section 151 of the Code do not control or otherwise limit the inherent power. The Court has power, in the absence of any express or implied prohibition, to pass an order as may be necessary for the ends of justice or to prevent the abuse of the process of the Court. The cases and circumstances always arise which arc not covered by the express provision of the Code of Civil Procedure and where justice has to be done as is the case before me when the learned Subordinate Judge passed the impugned order of appointment of a Local Commissioner because of necessity to enforce the interim order of injunction issued in the suit. The Legislature can foresee only the most natural and ordinary circumstances ^hi .l3LTOa.V, arise in future litigation and no rules can regulate for all times to come, so as to make express provisions against all mconvemenceswiilch are infinite in number. It is for this reason that in cases, not falling within the ambit of the express provisions, the inherent power of the Court to pass such orders, as may be necessary in the ends of justice, remain.

(6) The court has inherent jurisdiction to issue temporary injunction in circumstances which are not covered by the provisions of Order Xxxix Rules I and 2. There is nothing in Order Xxxix which provides speci- ca])y that a temporary injunction is not be issued in cases which are not mentioned either in Rule I or Rule 2 of Order XXXCX. T/iac question n-as raised in 'Manohran Lal Chopra v. Bai Bahadw Ran Raja Seth Him Lal', : AIR1962SC527 . Their Lordship of the Supreme Court noticed the difference of opinion between the High Courts. One view was that a Court cannot issue an order of temporary injunction if the circumstances do not fall with the provisions of Order Xxxix of the Code. The other view was that a Court can issue an interim injunction under the circumstances which are not covered under Order Xxxix of the Code, if the Court is of the opinion that the interests of justice require the issue of such interim injunction. Their Lordship expressed the opinion that the latter view is correct and that the Courts have inherent jurisdiction to issue temporary injunctions in circumstances which are not covered by the provisions of Order Xxxix in these words:

'THEREis no such expression in Section 94 which expressly prohibits the issue of a temporary injunction in circumstances not covered by Order Xxxix or by any rules made under the Code. It is well- settled that the provisions of the Code are not exhaustive for the simple reason that the Legislature is incapable of contemplating all the possible circumstances which may arise in future litigation and consequently for providing the procedure if it is so prescribed is only this that when the rules prescribe the circumstances in which the temporary injunction can be issued, ordinarily the Court is not to use its inherent powers to make the necessary orders in the interests of justice, but is merely to see whether the circumstances of the case bring it within the prescribed rule. If the provisions of Section 94 were not there in the Code, the Court could still issue temporary injunctions, but it could do that in the exercise of its inherent jurisdiction. No party has a right to insist on the Court's exercising that jurisdiction and the Court exercise its inherent jurisdiction only when it considers its absolutely necessary for the ends of justice to do so. It is in the incidence of the exercise of the power of the Court to issue temporary injunction that the provisins of Section 94 of the Code have on their effect and not in taking away the right of the Court to exercise its inherent power.'

(7) A question arose about the powers of the Court to issue a commission in the exercise of its powers under Section 151 of the Code incircumstances not covered by Section 75 and Order Xxvi in the case of 'Padam Sen' (supra) heavily relied upon by the counsel for the petitioner. The Supreme Court held that the Court can issue a commission in such circumstances and observed:

'THEinherent powers of the Court are in addition to the specifically conferred on the Court powers by the Code. They are complementary to those powers and thereforee it must be held that the Court is free to exercise them for the purposes mentioned in S. 151 of the Code when the exercise of those powers is not in way in conflict with what has been expressly provided in the Code or against the intentions of the Legislature. It is also well recognized that the inherent power is not to be exercised in a manner which will be contrary to or different from the procedure expressly provided in the Code.'

In that case, the Supreme Court did not uphold the order of the Civil Court, not coming under the provisions of Order Xxvi, appointing a Commissioner for seizing the account books of the plaintiff there on the application of the defendants there. The order was held to be defective not because the Court had no power to appoint a Commissioner in circumstances not covered by Section 75 and Order Xxvi, but because the power was exercised not with respect to matters of procedure but with respect to a matter affecting the substantive rights of the plaintiff. This is so expressed by their Lordship of the Supreme Court in Manohar Lnl's case (supra) as is also clear from the observations made at page 219 of the report :

'THEquestion for determination is whether the impugned order of the Additional Munsif appointing Sri Raghubir Pershad Commissioner for seizing the plaintiff's books of account can be said to be an order which is passed by the Court in the exercise of its inherent powers. The inherent powers saved by S. 151 of the Code are with respect to the procedure to be followed by the Court in deciding the cause before it. These powers are not powers over the substantive rights which any litigant possessess. Specific powers have to be conferred on the Courts for passing such orders which would affect such rights of a party. Such powers cannot come within the scope of inherent powers of the Court in the matters of procedure, which powers have their sourie in the Court possessing all the essential powers to regulate its practice and procedure...'

(8) In Arjun Singh's case (supra) it was the common ground that the inherent powers of the Court could not override the express provisions of law. In other words if there are specific provisions of the Code dealing with a particular topic and they expressly or by necessary implication exhaust the scope of the powers of the Court or the jurisdiction that may be exercised in relation to the matter, the inherent power of the Court could not be invoked inorder to cut across the powers conferred by the Code. On a examination of the provision of Order Ix it is found that every contingency which is likely to happen in the trial vis-a-vis the non-appearance of the defendant at the time of hearing of the suit has been provided for and Order Ix Rule 7 and Order Ix Rule 13 between them exhaust the whole gamut of situations that might arise during the trial. If, thus provision has been made for every contingency, it stands to reason that there is no scope for the invocation of the inherent powers of the Court to make an order necessary for the ends of justice. It is in those circumstances that the Supreme Court held that the powers are not to be exercised when their exercise may be in conflict with what had been expressly provided in the Code or against the intention of the Legislature. This restriction is not because those powers are controlled by the provisions of the Code but because it should be presumad that the procedure specifically provided by the Legislature for orders in certain circumstances was dictated by the interest of justice.

(9) The case of Jaispal Coal Company (supra) dealing with the powers of the Court to issue a commission to enquire into the secret profits of agents and to ask the Commissioner to decide the question of agents' liabilities for such secret profits. The Calcutta High Court, inter alia, relied upon Padam Sen's . case but relied upon the observation made by Shah, J. in the dissenting note that Section 75 empowers the Court to issue a. commission. for purpose. specified therein; even though it is not expressly stated that there is no power to appoint a Commissioner for other purposes, a prohibition to that effect is in view of the Court in Padam Sen's case (supra) implicit in Section 75'. Then the power of the Court in the words of Section 75(c) is 'to examine or to adjust accounts'. The Commissioner could not enquire into the secret profits of agents out of those accounts. The Commissioner could not also decide the question of liability of the agent for payment of secret profits to the principal as that is a matter for the Court to decide. It is for these reasons that it was held that there is no jurisdiction to pass an order directing a referee for accounts outside the limit of Section 75(c). Reference was made to Section 75 of the Code of Civil Procedure to contend that initially the Legislature had desired that the commission may issue (a) to examine any person; (b) to make a local investigation; (e) to examine or adjust accounts; or (d) to make a partition. The Legislature then thought that the commission may also issue (e) to hold a scientific, technical, or expert investigation; (f) to conduct sale of property which is subject to speedy and natural decay and which is in the custody of the Court pending the determination of the suit; and (g) to per- for many ministerial act. The last three contingencies have been added on amendment by Act 104 of 1976 with effect from February 1, 1977. The contention is that the intention of the Legislature is clear that when the circumstancies justified, they were incorporated by an amendment in the Code as the commissions could not issue by the exercise of power under Section 151. In my opinion, the power to issue the commissions in the exercise of its inherent jurisdiction was still there in circumstances now mentioned in Clauses (e) to (g) of Section 75 of the Code. If the provisions of Section 75 were not there in the Code, the Court still could issue commissions, but it could do that in the exercise of its inherent jurisdiction. Section 75 does not say that the commissions will not be issued in the eventualities not mentioned in Section 75.

(10) The provisions of Order 39 Rule 2-A cannot come to the assistance of the petitioner as those provisions relate to the consequence of disobedience or breach of injunctions. Order Xxi Rule 32(5) provides that where a decree for an injunction has not been obeyed) the Court may) in lieu of or in addition to all or any of the processes mentioned in Rule 32, direct that the act acquired to be done may be done so far as practicable by the decree-holder or some other person appointed by the Court, at the cost of the judgment-debtor, and upon the act being done the expenses incurred may be ascertained in such manner as the Court may direct and may be recovered as if they were included in the decree. This provision is for the enforcement of decrees for an injunction. There is no decree for injunction as the suit is still pending but a temporary injunction is operative against the petitioner. The learned Subordinate Judge expressed the opinion that the ends of justice demand that the relief sought by respondents 2 to 4 should be granted to them. The orders passed by the learned Subordinate Judge appointing a Local Commissioner are both within the jurisdiction and in the interest of justice on the facts and circumstances of the case and have to be upheld.

(11) The result is that the petition fails and is dismissed leaving the parties to bear their own costs as an important question of jurisdiction of the Civil Court to appoint a Local Commissioner in the ' exercise of inherent powers under Section 151 of the Code of Civil Procedure was involved. The stay of the operation of the impugned order is hereby vacated.


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