Bombay High Court
Suresh S/O Haribhau Admane vs Purshottam Shankarrao Purohit on 23 June, 1980
JUDGMENT S.C. Pratap, J.
1. Question of some interest and importance arising for determination in this ably argued petition is :
In a suit by a landlord against his tenant for possession of the suit premises and mesne profits, can the Court, in the exercise of its inherent powers under section 151 of the Code of Civil Procedure, order the tenant (while the suit is yet pending trial) to deposit interim past and/or future mesne profits?
According to the learned Advocate, Mr. R.D. Chaudhari, a senior member of the Bar, this is a test case. Submission has been that orders, such as the one here, are frequently passed by the subordinate courts at Nagpur almost as a matter of course and in a manner routine in nature. It becomes difficult to challenge and test these on every occasion. It is, therefore, best that this Court elucidates the correct position.
2. A quick reference to the relevant facts would help enlighten the context in which the question arises. Plaintiff is a landlord and defendant is monthly tenant of the suit premises situated at Nagpur. Contractual rent Rs. 120/- per month. According to the plaintiff, the Rent Control Order does not apply to the suit premises. In July 1978, the landlord filed the instant suit claiming:
(a) possession of the suit premises;
(b) past mesne profits at the rate of Rs. 5/- per day;
(c) notice charges and costs of the suit; and
(d) order for inquiring into future mesne profits under Order 20, Rule 12 of the Code of Civil Procedure.
By his written statement, the tenant denied the suit claim including the claim for past and future mesne profits. According to him, the Rent Control Order applies to the suit premises. Furthermore, he had, while taking the suit premises on lease, made a deposit of Rs. 5,000/- with the landlord. He further averred that because of his refusal to increase the rent and insistence on rent receipts and because of police complaints against the landlord, the landlord gave he suit notice purporting to terminate his tenancy followed by the instant suit which was false and mala fide. The suit is pending hearing and trial. In March 1979, the landlord filed application Exhibit 16 far an order directing the tenant (a) to deposit Rs. 1,440/- made up of Rs. 550/- as past mesne profits from the date of termination of tenancy till the filing of the suit and Rs. 890/- as future mesne profits from the date of the suit till the filing of this application; and (b) to also deposit Rs. 120/- regularly every month. The tenant opposed this application including its very maintainability contending inter alia that granting such an application would be akin to awarding "decree without trial". The trial Court, however, allowed the application and directed and directed the tenant to deposit Rs. 120/- every month with effect from 5th September, 1979. The aggrieved tenant challenges this order.
3. Hearing and considering the rival submissions of the respective Advocates, Mr. R.D. Chaudhari and Mr. G.K. Potey, I find the impugned order to be one without jurisdiction and liable to be set aside. Apart from the rather insignificant circumstance that neither the landlord's application nor the Court's order discloses the provision under which it is made, even the learned Advocates were unable to pinpoint any express provision in that behalf. The order is certainly not under Orders 38, 39 or 40 of the Code of Civil Procedure (hereafter "the Code") nor under Rule 42 of Order 21 of the Code. Though Rule 42 applies the principle of attachment before judgment, inter alia, to matters relating to rent or mesne profits, it does so only at the post-decree stage i.e. after decree for inquiry in that behalf is passed and not before. In the present case, the suit itself is still in its embryonic stage. It is yet to commence hearing. Question of decree is, therefore, far away. There is no other provision in the Code for grant of interim mesne profits pending a suit for possession and mesne profits. Thus, and as also submitted by the learned Advocates, the validity of the impugned order falls to be determined on the only touch-stone of section 151 of the Code which speaks of Court's inherent powers;
"......to make such orders as may be necessary for the ends of justice or to prevent abuse of the process of the courts."
However, even examining the impugned order accordingly, I find the same to be unsustainable. Before proceeding further, it is necessary at the outset to observe that in a matter such as this, the minimum expected of the trial Court, as indeed of any judicial Tribunal, was not an order bare skeletal but a speaking order, not an order blissfully dumb and reasonless but one supported by a disclosed application of mind through reasons. That is a vital and fundamental element of a judicial process. When even quasi judicial orders are expected to disclose reasons, much stronger is this hope and expectation in relation to judicial orders. An aggrieved litigant is, at the minimum, entitled to know why an order is against him. Reasons constitute the very life-line of a judicial order. Devoid or bereft of reasons the very substratum of the order is left inarticulate rendering it weaker still and all the more vulnerable.
4. Turning now to inherent power and jurisdiction, there already exists a welter of judicial dicta operating in the filed. Nothing really remains to be said thereon. And yet regarding its actual exercise disputes do keep on arising. Hence on an occasion like this, a few words become inevitable. Inherent power and jurisdiction is indeed a complex amalgam. It defies definition. It refuses to be cast into a rigid mould. It covers albeit in its own limited way an infinite variety of circumstances and a wide spectrum of administration of justice. And for its benevolent exercise, there is no prearranged scheme, no single litmus test. It cannot be "cribbed, cabined and confined" within any straitjacket formula. Even so however it is not an open sesame or a magic wand. It is not a panacea for all situations not otherwise expressly provided for. It is not a universal answer to all questions otherwise remaining unsolved. Nor is it to be invoked to short-circuit or circumvent the normal legal process in the matter of substantive rights. As held by the Supreme Court in Padam Sen v. State of U.P. :
"......The inherent powers saved by section 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 possesses. 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 source in the Court possessing all the essential powers to regulate its practice and procedure."
(Emphasis given) Thus even while exercising this wholesome power and salient jurisdiction, the judge, to quote and adapt to the context herein the famous words of Benjamin Cardozo.
"......even when he is free, is still not wholly free. He is not to innovate at pleasure. He is not a knight errant rooming at will......".
Moreover, inherent power does not create or confer any new jurisdiction. It only saves and preserves one already otherwise inherent in courts. It is a legal safety valve in matters of procedure. It is the power to act ex debito justitiae but only if;
(a) the situation is one of procedure and not of substantive right;
(b) it is necessary to meet the said situation;
(c) the Code provides no express remedy; and
(d) the necessity aforesaid arises for meeting the ends of justice or to prevent abuse of the process of Court.
5. Adverting in this context to the impugned order one finds that it directs the tenant to make deposits of mesne profits without adjudicating his seriously contested liability in that behalf. As indicated, the suit in that respect is yet to be tried and decided. Whether the once uncontoverted, lawful and rightful possession of the tenant has to all become wrongful or illegal, and if so, since when, are questions yet to be considered and determined. Indeed, if the tenant succeeds in his defence that the Rent Control Order applies to the suit premises, then the very termination of his tenancy without permission of the Rent Controller would be bad and his possession would continue to be as much rightful and lawful as before the suit notice. There would then be no question at all of any mesne profits. Again there was also no necessity to make the order in disputes. This was not a case of a tenant in arrears. There is in the plaint not a single averment of the tenant being in any arrears of rent much less is any relief claimed in that behalf. On the contrary, apart from possession, the claim in the suit is only for mesne profits and that obviously only from the date 1st April, 1978 when the tenancy allegedly stood terminated by the suit notice. Even if this had been a case, which it is not, of a tenant in arrears, it is extremely doubtful whether order for its deposits could be validly made in the exercise of inherent powers. Furthermore, what is the legal value of such an order? Zero indeed. There is no prescribed mode for its legal enforcement nor any prescribed penalty in breach thereof. Even if it is ignored or disobeyed by the tenant, no adverse consequence can ensue. The landlord's suit would still have to be hard and decided on its own merits and, apart from Order 11, Rule 21, of the Code which has no application hereto, there being no other relevant provision in the Code for striking out defence, the tenant's defence to the instant suit would also have to be considered on its own merits. In this behalf, see also a Division Bench ruling of the Madras High Court in Ramayya Servai v. Sama Ayyar, A.I.R. 1947 Madras 92. The binding value of the order or its consequence if disobeyed is, therefore, nil. It is an order innocuous in nature and helpless in its effect. It constitutes a self-defeating exercise of inherent powers. Courts are not expected to pass such innocuous judicial orders.
6. Situation analogous hereto but in the context of an appeal, arose before a Division Bench of Calcutta High Court in the case of Kamal Kumar Bose v. Ashalata Dev . Landlord's suit for possession was decreed in its entirety by the trial Court. In appeal against the same to the High Court, the said decree was modified into one for partial eviction. Against this appellate decree, the tenant preferred a letters patent appeal. In this latter appeal the landlord filed an application for an order directing the tenant to deposit arrears contending that such order could be passed under section 151 of the Code in the interest of justice. Rejecting this application and contention, the Division Bench observed :
".....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. .....Any condition in regard to deposit, if imposed on the tenant appellant, would, in out view amount to a clog on the appeal which is not warranted by the provision of the relevant statue."
The ratio decidendi of this ruling, with which I agree, squarely applies to the present case. Thus if even after decree and in appeal therefrom, no order in the exercise of inherent powers could be passed directing the tenant to deposit arrears much less can any such order be passed before decree. Much stronger, therefore, would be the position of the tenant before me here qua any such order in a suit yet to go to a trial and yet to ripen, if all, into a positive decree.
7. The order is also not covered by the residuary Clause (e) of section 94 of the Code. Under this clause, the Court may pass such interlocutory orders as may appear to it to be "just and convenient", but this also the Court can do only "if it is so prescribed" vide the opening condition of section 94 itself. As held by this Court (Vimadalal, J.), in Govindbhai Appaji v. Aruna Gajanan, (1975)77 Bom.L.R. 156 at 158 :
"Dealing first with section 94 of the Code of Civil Procedure, under the residuary Clause (e) thereof, the Court can make an interlocutory order, other than the types of interlocutory orders specified in the earlier clauses of the said section, only if such interlocutory relief is provided for by any rule having statutory force. The word 'prescribed' has been defined in section 2(16) of the Code as meaning prescribed by rules. The word 'Rules' in section 2(16) must be understood as referring to rules framed under the rule-making power conferred by one or other of the sections contained in Part X of the Code, the most obvious being the Rules contained in the First Schedule to the Code itself which have statutory force by reason of section 121 thereof. The position, therefore, is that, unless there is a statutory rule of the nature of the Rules in the First Schedule, or framed under any of the other provisions of Part X of the Code, which so prescribes, there is no jurisdiction in the Court to grant any interlocutory relief other than the specific interlocutory reliefs provided for in Clauses (a) to (d) of section 94 of the Code."
8. There is thus not a single relevant circumstance either on fact or in law in favour of the landlord and his application. On the contrary, the emerging situation is eloquently against him. The impugned order does not meet but rather defeats the ends of justice designed to be achieved by the Code itself. The order cuts across the very scheme of the Code. It reverses and subverts the normal legal and judicial process. It rests on no legal foundation. My answer consequently to the main question supra is, without hesitation, in the negative viz., at this pre-decree stage of the suit the landlord is not, in the exercise of Court's inherent powers, entitled to an order of deposit by the tenant of interim past and/or future mesne profits. His application in that behalf is misconceived and untenable. The order there below is outside the law. It travels beyond the four corners of the Code. It is totally uncalled for and clearly without jurisdiction.
9. In the result, this petition succeeds and the same is allowed. The impugned order is set aside and the landlord's application Exhibit 16 is dismissed. Rule earlier issued on this petition is made absolute, but being a test case, with no order as to costs.