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Kamal Kumar Bose Vs. Sm. Ashalata Dey and ors. - Court Judgment

LegalCrystal Citation
SubjectTenancy;Civil
CourtKolkata High Court
Decided On
Case NumberL.P.A. No. 186 of 1974
Judge
Reported inAIR1977Cal197
ActsCode of Civil Procedure (CPC) , 1908 - Section 151; ;West Bengal Premises Tenancy Act, 1956
AppellantKamal Kumar Bose
RespondentSm. Ashalata Dey and ors.
Appellant AdvocateS.P. Roy Chowdhury and ;Phani Bhusan Das, Advs.
Respondent AdvocateSaktinath Mukherjee and ;Nihar Rajan Chatterjee, Advs.
Cases ReferredSmt. Bimla Devi v. Aghore Chandra Mallick
Excerpt:
- .....for a direction on the tenant appellant to deposit all arrears of damages in respect of the suit premises. the plaintiffs respondents, the petitioners in this application obtained on may 20, 1967 a decree before the trial court for recovery of possession of the suit premises on eviction of the defendant therefrom. the said decree was modified on appeal in this court by the learned judge on june 26, 1973 by a decree for partial eviction. the learned judge, it is alleged, on concession by the tenant appellant decreed the suit in respect of the ground-floor and first-floor of the premises leaving the defendant to remain in possession of the other portion of the premises and the monthly rent was apportioned from rs. 85/- to rs. 40/- in respect of the premises allowed to be retained by.....
Judgment:

S.K. Datta, J.

1. This is an application by the plaintiffs landlords respondents for a direction on the tenant appellant to deposit all arrears of damages in respect of the suit premises. The plaintiffs respondents, the petitioners in this application obtained on May 20, 1967 a decree before the trial Court for recovery of possession of the suit premises on eviction of the defendant therefrom. The said decree was modified on appeal in this Court by the learned Judge on June 26, 1973 by a decree for partial eviction. The learned Judge, it is alleged, on concession by the tenant appellant decreed the suit in respect of the ground-floor and first-floor of the premises leaving the defendant to remain in possession of the other portion of the premises and the monthly rent was apportioned from Rs. 85/- to Rs. 40/- in respect of the premises allowed to be retained by the tenant The tenant defendant however was dissatisfied with the judgment and preferred the instant appeal. It has also been stated before us that the landlord has also filed an appeal thereafter against the decree for partial eviction and both the appeals are pending.

2. Mr. Roy Chowdhury, learned advocate appearing for the respondents in this appeal, submitted that the tenant filed his appeal mala fide in spite of his concession before the learned Judge in this Court. He further stated that taking advantage of the appeal filed by the landlord the tenant has stopped paying or depositing any rent or damages in respect of the suit premises of which he is to be deemed to be in occupation and thus liable to pay rent or damages in respect thereof. He accordingly submitted that the appellant should be directed to deposit all arrears of rent or damages in Court during the pendency of the appeal.

Mr. Roy Chowdhury submitted that such order could be passed by the Court in exercise of powers under Section 151 of the Civil Procedure Code in the interest of justice. He referred to the decision in Manohar Lal Chopra v. Rai Bahadur Rao Raja Seth Hiralal reported in : AIR1962SC527 in which in paragraph 23, the Court has noted that Section 151 of the Code itself says that nothing in the Code shall be deemed to limit or otherwise affect the inherent power of the Court to make orders necessary for the ends of justice, The Court further observed that the inherent power had not been conferred upon the Court but it is a power inherent in the Court by virtue of its duty to do justice between the parties before it. Mr. Roy Chowdhury also referred to the decision in Sibani Rani Dutta v. Balai Chandra Dutta, reported in (1964) 68 Cal WN 1064 in which the Court observed that there may be extraordinary cases when the application of Section 151 of the. Code may be justified even though there may be alternative remedy. Reli-ance was also placed on the decision of this Court in Smt. Bimla Devi v. Aghore Chandra Mallick reported in : AIR1975Cal80 (FB) in which it was observed that there is no reason why, specially when the legislature has in this country taken special care to provide for the exercise of special powers to prevent injustice in special circumstances in the form of Section 151 the Court should hesitate to exercise these powers because of their fondness for a formula. It was further observed that the Court ought not to take an attitude which would deny to litigants the assistance of the beneficial provisions of Section 151 of the Civil procedure Code unless it was compelled to do so by a binding authority or principle. Strongly relying on these decisions, Mr. Roy Chowdhury submitted that this was a fit case where the Court should exercise this inherent power under Section 151 of the Code and direct the opposite party to deposit or pay all damages payable by him in respect of the suit premises,

3. In this appeal by the tenant defendant, there is no application for stay of proceedings in execution. Mr. Roy Chowdhury's contention is that even if there is no such application in view of the fact that the tenant has been or is deemed to be in possession of the suit premises he is liable to pay rent or damages in respect thereof during the period of his occupation, He accordingly cannot be allowed) to proceed with his appeal unless he deposited or paid the rent in respect of the suit premises.

4. We are afraid we are unable to accept this contention of Mr. Roy Chowdhury, The powers under Section 151 of the Code cannot be extended to defeat any provision of law or a substantive right conferred by law. The Code has provided for an appeal to higher Courts and it is nowhere the condition under the West Bengal Premises Tenancy Act, 1956 or under the Code that unless such amounts are deposited the appeal would be liable to be dismissed. This substantive right of appeal conferred under the law cannot be defeated; or frustrated by exercise of inherent powers which would thus be contrary to provisions of law. We may profitably refer to the provisions of Section 14 (4) of the West Bengal Premises Rent Control (Temporary Provisions) Act, 1950 which provide that in a case for recovery of possession where the suit is contested by a tenant, the tenant on the application of the landlord may be directed to deposit all arrears of rent as also current rent within a specified date and in default the Court shall order defence to be struck out and the tenant to be placed in the same position as if he had not defended the claim for ejectment. In Sub-section (5) of Section 14 it is provided that the power given under Subsection (4) may be exercised by Courts of appeal with necessary adaptation. It could therefore be contended that in a case governed by this Act the Court could order under Sub-section (5) that an appeal by the tenant would be liable to be dismissed if there was non-compliance with the provision of Sub-section (4). We however do not find any similar provision in the Act of 1956. Any condition in regard to deposit, if imposed on the tenant appellant, would, in our view, amount to a clog on the appeal which is not warranted by the provision of the relevant statute.

5. It would further appear that problem in this case had arisen because of the fact that the landlords had preferred an appeal against the decree for partial ejectment which may not thus be put into execution. But for the filing of the appeal, there was no difficulty in executing the decree and in such case if the decree was to be put into execution, the Court could impose terms on the tenant in granting a stay of execution of such a decree. There is in this case no necessity for tenant's applying for stay of execution of the decree as by reason of their appeal the landlords have not to put the decree into execution. Accordingly we cannot saddle the defendant appellant with the obligation to deposit the arrears of rent or damages on penalty of dismissal of his appeal. It 13 not a case where the Court would be justified in exercising its power under Section 151 of the Code and we are not prepared to pass an innocuous order. We therefore reject the application but feel that in the circumstances the appeal should be heard out with utmost expedition. We accordingly direct the tenant-defendant to file the requisite number of typewritten paper-books within a fortnight from date; in default, the appeal will be placed for orders before us.

6. We also make it clear that we are making no observation in respect of the landlords petitioners' right to move this Hon'ble Court against certain alleged orders passed in S. C. C. Suit No. 555 of 1974 staying deposits of rents or damages in respect of the suit premises in a suit for recovery of the same instituted by the landlord.

7. Mr. Roy Chowdhury states that he will also file paper-books in his appeal against the said judgment if such paper-books are filed, liberty is given to Mr. Roy Chowdhury to pray for analogous and expeditious hearing of the appeals.

8. Liberty is given to mention for early hearing of the appeals after the paper-books have been filed.

G.N. Ray, J.

9. I agree.


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