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Pirubhai Ramjubhai Vs. Trikamlal Nanjibhai - Court Judgment

LegalCrystal Citation
SubjectTenancy;Civil
CourtGujarat High Court
Decided On
Case NumberCivil Revn. Appln. No. 892 of 1968
Judge
Reported inAIR1969Guj285; (1969)GLR747
ActsCode of Civil Procedure (CPC), 1908 - Sections 115 and 151 - Order 6, Rule 16 - Order 8, Rule 10 - Order 11, Rule 21 - Order 16, Rule 20 - Order 29, Rule 3; Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 - Sections 11, 11(4), 31 and 49
AppellantPirubhai Ramjubhai
RespondentTrikamlal Nanjibhai
Appellant Advocate P.M. Raval, Adv.
Respondent Advocate D.D. Vyas, Adv.
Cases ReferredPrabhudas Ishwardas v. Bhogilal Nathalal
Excerpt:
.....given sufficient time to deposit money as ordered previously and not entitled to appear in and defend suit - petition against said order - petitioner debarred from defending without previous direction as contemplated - procedure to be observed by court before exercising power under section 11 (4) - court's failure to observe procedure would amount to irregularity within meaning of section 115 (c) - order of court that petitioner not entitled to appear and defend suit set aside - revision allowed. - - 699.50. the suit was filed on 19-6-1967. alter the suit was filed the respondent made an application to the court on 12-9-1967 requesting the court to exercise its powers under section 11(4) of the act and to direct the defendant (petitioner) to deposit in the court all the arrears..........empowers the court to strike off the defence lays down the procedure to be observed before that power is exercised. the procedure so laid down relates to the manner in which the suit or defence before the court shall proceed to its conclusion. it is a procedure akin to the procedure in respect of similar subjects provided for in rule 21, order 11; rule 16, order 6; rule 20, order 16; and rule 10, order 8. there being an express provision made in regard to that procedure and the consequence of the order made by the court on the right of the party to defend being serious, the court's failure to observe the procedure so laid down would to a material irregularity within the meaning of that expression as used in clause (c) of section 115 of the code. therefore, the revisional jurisdiction.....
Judgment:
ORDER

Akbar S. Sarela, J.

1. In a suit by the respondent as landlord against the petitioner as tenant for eviction of the petitioner from the leased premises on the ground of arrears of rent, the learned Civil Judge, Junior Division, Surendranagar, has, by an order dated 20-11-1907, made under Section 11(4) of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 (hereinafter called 'the Act') directed that the petitioner shall not be entitled to appear in and defend the suit henceforth unless otherwise ordered. Against that order the petitioner went in revision to the District Court, Surendranagar. The learned District Judge, by his order dated 18-7-1968, dismissed that revision application, thereby upholding the order passed by the learned trial Judge. Against the order of the District Judge, the petitioner has come in revision to this Court.

2. The material facts are not in dispute. On the date the suit was filed the petitioner was alleged to be in arrears of rent and mesne profits to the tune of Rs. 699.50. The suit was filed on 19-6-1967. Alter the suit was filed the respondent made an application to the Court on 12-9-1967 requesting the Court to exercise its powers under Section 11(4) of the Act and to direct the defendant (petitioner) to deposit in the Court all the arrears of rent and further to direct that on failure to make such deposits he shall not be entitled to defend the suit. On that application the learned Judge ordered as under:--

'Defendant should be ordered to pay up in Court Rs. 500 towards arrears or rent and up to the date of suit and costs of this suit without prejudice to the rights of the parties in the suit. He should also pay up rent due from the date of suit till today. The deposit to be made on or before 5-10-1967.'

It will he noticed, therefore, that the order was for deposit of Rs. 500 only both towards the arrears of rent and costs of the suit and the further order was that rent as due from the date of the suit was to be deposited. The monthly rent was Rs. 8 per month, and, therefore, by 5th October, 1967, the amount on that account required to be deposited would be about Rs. 32. There was no further order that on failure to deposit, the defendant shall not be entitled to defend, In pursuance of this order the petitioner deposited on the required date Rs. 250 only. Therefore, what remained to be deposited in accordance with the order was another sum of Rs. 250 phis current arrears since the date of the suit. For that he applied for time and time for the depositing that sum was extended. At that time also there was no direction that on failure to deposit within the extended time, the defendant shall not be entitled to defend. Within the extended time, the petitioner deposited a sum of Rs. 250. But failed to deposit the balance which I am told would be about Rs. 40 on 20-11-1967. On that date the petitioner asked for further time for depositing the balance required to be deposited. That application for time was opposed by the respondent and was rejected by the Court. While rejecting the application the Court made the following order which is the subject of this revision application:--

'I am, however, of the opinion that the defendant has been given sufficient time to deposit money as ordered previously. For the reasons aforesaid the defendant's application for seeking further time is hereby rejected. I, therefore, order that the defendant is not entitled to appear in and defend the suit henceforth unless otherwise ordered.'

It is not disputed that there was no further opportunity given to the petitioner to comply but that the very order deprived the petitioner of the right to defend.

8. Mr. Raval who appears for the petitioner submitted that the order in so far as it directs that the defendant was not entitled to appear and defend is in clear violation of the terms of Section 11(4) of the Act and cannot 'be sustained. That contention, as I shall presently point out, must be accepted. But the submission of Mr. Vyas for the respondent is that even if that is so, this Court cannot revise that order under Section 115 of the Civil Procedure Code because the trial Court had jurisdiction to make an order that the defendant shall not be entitled to defend and the fact that the jurisdiction was not exercised strictly in accordance with the terms of Section 11(4) would only mean that it was wrongly exercised but a wrong exercise of jurisdiction cannot be corrected under the revisional powers under Section 115 of the Civil Procedure Code (hereinafter referred to as 'the Code'). He argued in the alternative that even if a violation of the provision of Section 11(4) could be made the subject of revision under Section 115 of the Code, even then this order could be justified on the ground of exercise of inherent power of the Court under Section 151 of the Code and if the order could be so justified, this Court cannot interfere with the said order in exercise of the jurisdiction under Section 115. Mr. Raval's reply to these two submissions of Mr. Vyas, firstly, is that the Section 151 of the Code cannot in law be attracted when a provision relating to the procedure has been expressly made in that behalf by the Legislature and he submitted that the procedure relating to the striking off the defence laid down under See. 11(4) was such a provision. He next submitted that in following the procedure so laid down, the trial Court has acted illegally or with material irregularity and at any rate it has acted arbitrarily and, therefore, the error committed is a jurisdictional error revisable under Section 115 of the Code. These are the only submissions required to be considered.

4. There is no doubt that the order passed by the learned Judge is in violation of the express provision Sub-section (4) of Section 11 of the Act. The Sub-section reads as under:--

'Where at any stage of a suit for recovery of rent whether with or without a claim for possession of the premises, the Court is satisfied that the tenant is withholding the rent on the ground that the rent is excessive and standard rent should be fixed, the Court shall, and in any other case if it appears to the Court that it is just and proper to make such an order, the Court may make an order directing the tenant to deposit in Court forthwith such amount of rent as the Court considers to be reasonably due to the landlord. The Court may further make an order directing the tenant to deposit in Court, monthly or periodically, such amount as it considers proper as interim standard rent during the pendency of the suit. The Court may also direct that if the tenant fails to comply with any such order within such time as may be allowed by it, he shall not be entitled to appear in or defend the suit except with leave of the Court which leave may be granted subject to such terms and conditions as the Court may specify,'

The last part of Sub-section is relevant for the present purpose. Under that part of the Sub-section the Court is empowered to direct that if the tenant fails to comply with any such order of deposit made in the Court within such time as may be allowed by it, he shall not be entitled to appear in or defend the suit except with leave of the Court. Therefore, the consequence that the tenant shall not be entitled to defend the suit except with leave of the Court is a consequence of the direction issued by the Court in that behalf. On a plain reading of the provision the direction must precede the consequence. The direction contemplated is one under which the tenant knows that if he fails to comply with the order of deposit, the consequence as set out in the direction shall follow. Till such direction has been issued, the penal consequence provided cannot follow. This is as it should be, because the tenant is to be deprived of the right to defend a right normally available to him and Inherent in the rule of law. Before he is deprived of that right, there must be clear indication that the Court was going to exercise the power available to it under this provision because of his failure to comply. The very nature of the consequence calls for notice to the party affected that his failure to comply with the order of the Court would entail the penalty. Therefore both on language and on principle it will not be competent For the Court to strike out the defence unless previous to that striking out a direction has been made by it as contemplated by the relevant part of Section 11(4). The same view it appears has been taken by my brother Sheth J. in Second Appeal No. 470 of 1961 decided on 16/17-2-1963 (Guj.) and I am in respectful agreement with him.

5. In the present case the petitioner has been debarred from defending without a previous direction as contemplated, and therefore, the order to that effect passed by the learned Judge is bad in law.

6. Therefore, the question only is whether it is competent for this Court to revise the order of the trial Court. The revision, it is conceded, can only be in exercise of the power under Section 115 of the Civil P. C. Under that section the power of revision can be exercised in respect of a case decided and if subordinate Court appears-

(a) to have exercised a jurisdiction not vested in it by law, or

(b) to have failed to exercise a jurisdiction so vested, or

(c) to have acted in the exercise of its jurisdiction illegally or with material irregularity.

Mr. Vyas concedes that this is a case decided and therefore, the only question is whether the matter falls under any of three clauses. The submission of Mr. Raval is that the matter falls under Clause (c). In the alternative his general submission is that in any case this is a case of an arbitrary exercise of the jurisdiction by the lower Court which went clearly to the root and was a jurisdictional error of the kind dealt with in Messrs. Shivlal Amarji and Sons v. Maganlal Lakhmichand, ILR (1966) Guj. 799, to which he invited my attention.

7. But before I deal with the submissions in respect of Section 115 of the Code, it would be convenient to deal with the submission made by Mr. Vyas that even if the order made by the learned Judge is in violation of the terms of Section 11(4), and cannot be justified under the provision of that section, such an order could have been made outside those provisions in exercise of the inherent power of the Court under Section 151 of the Code and if such an order could be made under the said Section 151, it is neither an illegal order nor a wrong order in law. In support of that submission he invited my attention to three decisions, viz., (1) Ramchand and Sons Sugar Mills Private Ltd. v. Kanhayalal Bhargava, : [1966]3SCR856 Venkatacharyulu v. Yesobu, AIR 1932 Mad 263; and (3) Mulchand Samana v. Imus Miya Shaikh, : AIR1956Bom245 . After reading the third of these decisions, Mr. Vyas conceded that the said Bombay decision was not of assistance to him. It is, therefore, necessary to refer only to the other two decisions.

8. In : [1966]3SCR856 (supra) the Subordinate Judge, Delhi, struck out the defence of the party who was the appellant before the Supreme Court. That party was a private Limited Company named Ramchand and Sons Sugar Mills Pvt. Ltd. The Subordinate Judge had made an order under Order XXIX, Rule 3, requiring personal attendance of the party in order to answer the material questions relating to the suit. That order was not complied with in spite of several adjournments being given for compliance. Then on February 25, 1965, the Court issued a notice to the appellant which was first defendant to show cause why its defence should not be struck off and on March 16, 1965, after hearing the arguments and talking into account the persistent default to comply with the order earlier passed, the Court ordered that the defence of the appellant should be struck off. The High Court upheld that order holding that the learned Subordinate Judge had jurisdiction to strike out the defence of the appellant. Against that order the appellant came in appeal before the Supreme Court and one of the contentions before the Court was that the Code did not provide for such a power in respect of non-compliance of the order made under Order XXIX, Rule 3 of the Code. The Supreme Court held that the Court had inherent powers under Section 151 of the Code to pass the order if deemed to limit (be fit?). After referring to earlier decisions of the Supreme Court on the point, their Lordships laid down the position in law (p. 1902) as under:--

'Having regard to the said decisions, the scope of the inherent power of a Court under Section 151 of the Code may be defined thus: The inherent power of a Court is in addition to and complementary to the powers expressly conferred under the Code. But that power will not be exercised if its exercise is inconsistent with, or comes into conflict with, any of the powers expressly or by necessary implication conferred by the other provisions of the Code. If there are express provisions exhaustively covering a particular topic, they give rise to a necessary implication that no power shall be exercised in respect of the said topic otherwise than in the manner prescribed by the said provisions. Whatever limitations are imposed by construction on the provisions of Section 151 of the Code, they do not control the undoubted power of the Court conferred under Section 151 of the Code to make a suitable order to prevent the abuse of the process of the Court,'

Therefore, the Court has Inherent power to make orders as may be necessary for the ends of justice or to prevent the abuse of the process of the Court and that power can be exercised when the exercise or power is not in any conflict with what has been clearly provided in the Code or against the intentions of the Legislature. When the Legislature provides that the Court shall proceed only in a particular manner, the a it should be presumed that the procedure specifically provided by the Legislature for orders in certain circumstances is dictated in the interests of justice.

9. In the Madras case (AIR 1932 Mad 263) (supra), the defence of defendant No. 3 who was the appellant before the High Court was struck off by the lower Court. It was struck off for failure of the said appellant to make the deposit as ordered by the lower Court. It appears that at the instance of the appellant a receiver of certain properties was not appointed by the Court; instead, he was ordered to furnish security deposit in respect of the property. On failure to furnish security deposit, a fresh order for the deposit of the sum of Rs. 100 within 15 days was made and warning was also given at the same time that if such deposit is not made, his defence would be struck off. In spite of this stringent Order he failed to make the deposit and consequently his defence was struck off. It was contended before the High Court that there was no express provision which would cover a case of this kind. It was argued that there were express provisions of this type in the Code in respect of specified topics, namely, Rule 21, Order 11; Rule 16, Order 6; Rule 20, Order 16; and Rule 10 Order 8 which contain provisions for punishing a party for a particular default and, therefore, orders of such penalty passed by the Court could be justified only if they could be brought under any of the express provisions and not under the inherent powers of the Court. The contention was negatived and it was held that the inherent powers of the Court were available.

10. Therefore, these decisions go to establish that in respect of a topic on which the Legislature has not made a provision expressly or by necessary implication, the inherent powers of the Court are available to it to make Sub- orders as are necessary for the ends of justice or to prevent the abuse of the process of the Court. It is not necessary for the purpose of this case to consider whether orders of the nature of penalty could be passed under Section 151 of the Code without a previous warning to the party that such an order would be passed in default of compliance of another order. In the two cases relied on by Mr. Vyas such warnings were given. In the present case no such warning was given. However, that point is not material in the present case because in the present case the matter can be disposed of on the ground that express provision has been made by the Legislature in respect of the exercise of this Kind of power and having regard to the principles enunciated by the Supreme Court in Ram Chand and Sons Sugar Mills' case : [1966]3SCR856 , inherent powers under Section 151 would not be available. That express provision is found in Section 11(4) of the Act. Whether that express provision is a provision laying down a procedure is a point which I shall consider presently, but whether or not it is relating to procedure, it is a provision expressly made in respect of the exercise of this power and having regard to the principles enunciated by the Supreme Court in the above case, the interests of justice would require that the exercise of the power can be only in that manner.

11. Therefore, the only question to be considered is whether the violation by the Court of the manner of exercise of power as laid down under Section 11(4) of the Act amounts to the Court having acted illegally or with material irregularity as contemplated by Clause (c) of Section 115 of the Code which according to Mr, Raval is attracted in this case. He invites my attention, firstly, to the fact that in accordance with the rules prescribed under Section 49 read with Section 31 of the Act in suits of this nature the Court is to follow the procedure prescribed for a Court of the first instance by the Code. He then submits that Section 11, particularly Sub-section (4) thereof, is complementary to the procedure prescribed by the Code in so far as power is conferred on the Court to order that the deposit be paid and further to direct that on failure of compliance the defendant shall not be entitled to appear in or defend the suit except with the leave of the Court, His next argument is that if that is so, the failure to follow the procedure prescribed in the last part of Sub-section (4) of Section 11 is either an illegality or a material irregularity in respect of the procedure prescribed by this section and that being so, the case falls under Clause (c) of Section 115 of the Code. There is considerable force in these submissions. There is no doubt that Clause (c) of Section 115 relates to illegality or material irregularity connected in respect of the procedure which the Court is required to follow. As pointed out by Division Bench of this Court in Prabhudas Ishwardas v. Bhogilal Nathalal : AIR1968Guj236 , the words 'illegality' and 'material irregularity' do not cover either errors of fact or law. They do not refer to the decision arrived at but to the manner in which it is reached. The errors contemplated relate to material defects of procedure and not to error of either law or fact after the formalities which the law prescribes have been complied with. What is, therefore, necessary in order to attract the Jurisdiction of the High Court under Clause (c) of Section 115 of the Code is that the Subordinate Court must have acted illegally, that is, in breach of some provisions of law or with material irregularity, that is, by committing some error of procedure in the course of the trial which is material in that it may have affected the ultimate decision. This is the test which must be applied in order to determine whether the case falls within Clause (c) of Section 115. Now in this case there is no doubt that the part of Section 11(4) of the Act which empowers the Court to strike off the defence lays down the procedure to be observed before that power is exercised. The procedure so laid down relates to the manner in which the suit or defence before the Court shall proceed to its conclusion. It is a procedure akin to the procedure in respect of similar subjects provided for in Rule 21, Order 11; Rule 16, Order 6; Rule 20, Order 16; and Rule 10, Order 8. There being an express provision made in regard to that procedure and the consequence of the order made by the Court on the right of the party to defend being serious, the Court's failure to observe the procedure so laid down would to a material irregularity within the meaning of that expression as used in Clause (c) of Section 115 of the Code. Therefore, the revisional jurisdiction of this Court is attracted. It is not necessary then to consider the alternative submission of Mr. Raval that the Court acted arbitrarily in this case and this arbitrary exercise of power was itself a jurisdictional error.

12. For these reasons this revision must be allowed and that part of the order of the Court under which it has ordered that the defendant is not entitled to appear in and defend the suit henceforth unless otherwise ordered is set aside.

13. Rule made absolute with costs.


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