Karnataka High Court
Imtiaz Ahmed vs Taha Export on 29 September, 1995
Equivalent citations: ILR1995KAR3410, 1995(5)KARLJ436, 1996 A I H C 2934, (1996) 1 RENCR 160
ORDER
Hari Nath Tilhari, J
1. This House Rent Revision Petition has been filed under Section 50 of the Karnataka Rent Control Act, 1961 challenging the Judgment and Order dated 19.9.95 passed by the House Rent and Accommodation Controller, South Range, Bangalore, rejecting the petitioners-applicants' application under Section 151 of the Code of Civil Procedure in a proceedings under Section 14 of the Karnataka Rent Control Act (hereinafter referred to as Act 22/61) for fixation of fair rent. The Petitioners-applicants moved an application to the effect that under the orders of this Court in Revision Nos. 389 and 613/94, the tenants had to make deposits of the rents but the tenant has committed default and he has not deposited the rent and he was in arrears for a sum of Rs. 2,40,000/-. The applicants prayed that the tenant be directed to deposit the said rent at the admitted rent of Rs. 15,000/- p.m. In case of non-compliance of direction to pay a sum of Rs. 2,40,000/-, the application under Section 14 of the Rent Control Act moved by the tenant opposite party be dismissed. The Rent and Accommodation Controller, South Range, Bangalore, dismissed therefore the said application of Revisional applicant observing that the proceedings could be initiated under Section 29 of the Rent Control Act. Section 29 of the Rent Control Act would be applicable to the Civil Court and it is the jurisdiction of the Civil Court to issue such a direction and the Controller has no such jurisdiction to issue direction. The Rent Controller having rejected the application of the petitioner on the ground that it has no jurisdiction to issue any such direction as prayed and there is no ground to dismiss the application for fixation of rent on that basis as well. That feeling aggrieved from this order dated 19.9.1995, the landlord who were respondents before the Accommodation Controller, preferred this Petition under Section 50 of the Act.
2. I have heard Sri R.B. Sadashivappa, Counsel for petitioner and Shri Ashok B. Patil, Counsel for applicant and applied my mind to their respective contentions.
2.A, Section 50 of the Karnataka Rent Control Act confers Revisional Power on the High Court and those powers are very clear as circumscribed by the conditions mentioned therein. Section 50(1) reads as follows:-
"The High Court may at any time call for and examine any order passed or proceeding taken by(the Court of Small Causes or the Court of Civil Judge) under this Act or any order passed by the Controller under Sections 14, 15, 16 or 17 for the purpose of satisfying itself as to the legality or correctness of such order or proceeding and may pass such order in reference thereto as it thinks fit."
Sub-section (2) is not relevant. Sub-section 1 of Section 50 reveals that Revisional Power is conferred on the High Court. This authority under the Section is available and exercisable in case the following conditions are satisfied. Firstly that the order impugned is one which has been passed by the Small Cause Court under the provisions of this Act or that the order impugned is one passed by the Controller and said order has been passed by the Controller under Sections 14, 15, 16 or 17 of the Act. So the first condition that the applicant has to prove if the order is one passed by the Controller under either of these Sections and the second condition, to be fulfilled by the applicant who files a Revision in this Court is that he must show to the satisfaction of the Court that the order which is alleged to have been passed under Sections 14, 15, 16, or 17 of the Act suffers from illegality or of substantial incorrectness. The order, in the present Case according to the case of the applicants, has been passed on an application which has been moved under Section 151 C.P.C., rejecting that application on the ground that there is no jurisdiction to entertain and allow or to issue any such direction as prayed for. Even on the lenient view that it is an order passed in proceedings under Section 14 even then in this case, I do not find any illegality or incorrectness in the order of the Accommodation Controller. The Accommodation Controller has opined that there is no jurisdiction to issue any such direction, and the direction of such nature as prayed or sought could be issued by the Civil Court under Section 29. As regards Section 151, in my opinion, the application under Section 151 which had been moved by the applicant itself is mis-conceived. Section 151 of the Code of Civil Procedure reads as under:-
"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."
3. A bare reading of Section 151 per se reveals that this Section is declaratory of inherent power which are already vested in the Courts and it only provides that inherent powers to pass order in the interest of Justice shall not be deemed to be controlled or restricted or to be deemed to be limited by any of the provisions of the Code. It means 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 have been recognised and preserved under the Code so far as Courts are concerned. The Courts are distinct from quasi-judicial authorities or Tribunals. A perusal of Section 3(c) and (d) per se reveals that the Legislature while enacting the Rent Control Act, mentioned in clear terms that the Controller stood on a different footing and was not a Court.
4. Section 3(c) defines the Controller as under-
"Controller" means in respect of any local area any officer not below the rank of a Gazetted Officer appointed by the State Government to perform the functions of the Controller under this Act.
4. Clause (d) of Section 3 defines the 'Court' as under:
"Court" means:-
i) in respect of the area comprised within the limits of the City of Bangalore the Court of Small Causes;
ii) in such other areas as the State Government may in consultation with the High Court by notification specify, the Court of the Civil Judge having territorial jurisdiction over such area; and
iii) in respect of areas other than those referred to in sub-clauses (i) and (ii), the Court of Munsiff having territorial jurisdiction over such area;
5. A perusal of these definitions, as I have mentioned earlier, clearly reveals that the Court refers with reference to the limits of the City of Bangalore to the Court of Small Causes in Clause (i) and in respect of other areas i.e. covered by Clause (ii) it refers to Civil Judges Court and in respect of the areas covered by Clause (iii) to the Court of Munsiff. The definition does not include the Controller within the definition and scope of expression of the Court. The learned Counsel for the Revision petitioner invited my attention to Rule 35 contained in Chapter !V of the Rules framed under the Act. Rule 35 reads as under:-
35. The provisions of the Civil Procedure Code to be generally followed:-
In deciding any question relating to procedure not specifically provided for by these rules, the Court shall as far as possible be guided by the provisions contained in the Code of Civil Procedure, 1908.
6. Perusal of the Rules 13 to 16 of the Rules framed under the Karnataka Rent Control Act under the head 'Procedure in Application and Appeals under the Act' further reveals that Rule 13 prescribes the procedure to be followed by the Controller in applications made under the Act in dealing, deciding and disposing of the same under the Act including the one under Rule 14 of the Act. But so far as the Courts are concerned, Rule 14 prescribes the procedure in applications made to the Court under the Act and it provides that so far as the Courts are concerned any application made under the Act to the Court, the Court shall follow, as far as may be and with the necessary modifications, the procedure applicable to small cause suits prescribed in the Code of Civil Procedure, 1908, when such suits are tried by Courts invested with the jurisdiction of a Court of Small Causes under any law relating to Small Cause Courts in force in any area of the State. Perusal of this Rule indicates in the matter of procedure entire C.P.C. has not been applied but only the provisions which are specified or prescribed by the Code to apply, to the suits to be tried by Courts having the jurisdiction of a Court of Small Causes under any law relating to Small Cause Courts and that procedure has got to be followed with necessary modifications. Rule 15 again deals with the procedure to be followed in appeals under Section 12 and Section 41 of the Act by the Deputy Commissioner, or the Divisional Commissioner as Appellate Authority. That Rule 16 of the Rules again shows that so far as appeal under Section 48 of the Act are concerned, from the order of the Controller or of the Court, it has been further provided that the District Judge shall as far as may be and with the necessary modifications, follow the practice and procedure prescribed for appeals from original decrees by the Code of Civil Procedure 1908. The reading of these Rules along with Rule 35 further substantiates my opinion that the Legislature has made a distinction between the Court and Court of District Judge on one hand and the Controller and the Deputy Commissioner on the other hand. The Appellate Authority is different from Court and distinct procedure has been prescribed. Perusal of these Rules clearly indicates and suggests that the framers of the Act and the Rules clearly maintained the distinction between the Courts and quasi-judicial authorities. Under the provisions of the Act also the Controller has never been given power of the Court. When the Controller is not the Court, then in my opinion Section 151 or provisions of C.P.C. are not to apply to the proceedings before the Controller. The Controller's jurisdiction and powers are limited according to the procedure prescribed. Even for a moment it be assumed that in the matter of procedure C.P.C. applied that there is marked distinction between the procedure and the power, the procedure does not include power such as power to issue injunction or granting an order of stay unless specifically provided by the Act or Rules applicable in that regard. The provisions of C.P.C. relating to the trial of suits which have been applied in the matter of procedure to the application, then it will not include the powers vested in the Court or recognised by Code of Civil Procedure to be vested in the Civil Court. Section 151 is the declaratory power, inherent power of the Court and the use of procedure to the application and proceedings under the Act will not be deemed to confer power on any authority unless it is a Court. Reference may be made to the Decision of the Allahabad High Court in the case of RAMESHWAR DAYAL v. SUB-DIVISIONAL OFFICER ILR 1961 (2) Allahabad 298, where the Division Bench of the Allahabad High Court laid it down that "Section 151, Civil Procedure Code, as is well known, does not confer any power upon a Court but simply recognizes the existence in every Court of the power to make such orders as may be necessary in the ends of justice or to prevent the abuse of the process of Court. This being the case, the appellant cannot contend that Rule 25 confers upon an election tribunal the power of making such orders as may be necessary for these purposes. If Section 151 does not confer this power upon a Civil Court, it certainly does not confer it upon an election tribunal. If an election tribunal can make orders for these purposes, it must be because it has the power just as any Court has the power i.e., because it has its own inherent power.
Referring to Rule 25 of the Rules framed under the U.P. Panchayat Raj Act, Their Lordships observed that :
"A sub-divisional officer has only such powers in respect of the hearing of the election petition and the procedure to be followed at the hearing as may be prescribed by the State Government, and Rule 25 contains the prescribed powers. The only power conferred upon him is to try the petition in accordance with the procedure applicable under the Code of Civil Procedure to the trial of suits. All that is meant by Rule 25 is that an election petition is to be tried as if it were a suit i.e., that those provisions of the Code of Civil Procedure which relate only to the trial of suits will be followed by the Sub-Divisional Officer when hearing the petition. Though the Code of Civil Procedure lays down Rules of procedure, it does more than laying down the procedure for the trial of suits; Rule 25 however applies only those provisions of the Code which relate to the trial of suits to the trial of election petitions; in other words, it does not confer upon a Sub-Divisional Officer all the powers that are conferred upon a Court by the Code of Civil procedure."
7. Their Lordships further held that :
"Section 151 expressly speaks of "power" to make orders. Whatever may be said in respect of orders of a procedural nature, orders regarding matters not covered by the Code are not orders regarding procedure but are an exercise of power. Injunction is a relief according to Sections 52 and 53 of the Specific Relief Act and a relief is a matter of power, not procedure. We are, therefore, of the opinion that a sub-divisional officer hearing an election petition has not the powers conferred upon Civil Courts by Sections 94 and 151 and Orders XXXIX and XLI of the Code of Civil Procedure."
8. This is a marked distinction of procedure prescribed for trial of the suits and the power vested in the Civil Courts. Subsequently in full Bench Decision in the case of SYED AJAZ v. MOHD RAFIQ , the Full Bench of the Allahabad High Court took the same view which I expressed earlier. The material observations in this regard reads as under:
"The exercise of inherent jurisdiction is the attribute of a Court of Law of general jurisdiction for every Court is constituted for the purpose of doing justice according to law and must be deemed to possess, as a necessary corollary and as inherent in its very constitution all such powers as may be necessary to do the right and to undo a wrong in the course of the administration of justice. Even in the case of a Court, the inherent power is not unlimited in that if a matter falls within the ambit of the express provisions of the statute, the inherent power of the Court must, to that extent be regarded as abrogated by the Legislature. An authority or Tribunal of limited jurisdiction not being a Court can have no inherent power, unless the statute confers such a power on them and in the absence of any such conferment of power, the authority or Tribunal can pass only such orders as the provisions of the Act under which they are created provide for. Special authorities and Tribunal are constituted under special statutes and for special objects and, therefore, it is not possible to imply inherent powers in them. In their case one must turn to the statute itself to find a power either in express terms or by necessary implication. Inherent power was held not to exist in an election Tribunal in Rameshwar Dayal v. Sub-Divisional Officer, Ghatampur . A perusal of Section 144 or 151 of the Code of Civil Procedure will also show that its terms apply to Courts only and not to authorities or Tribunals."
9. This brings out that inherent powers are those which are vested in the Courts from inception. The law only declares those powers. For illustration, we may take Section 25 of the Karnataka Land Revenue Act. This also expressly provides that Legislature considered the inherent power to remain vested in Revenue Court as described under Section 24 thereof. Section 25 of Land Revenue Act reads:
"25. Savings of inherent powers of a Revenue. Court. - Nothing in this Act, shall be deemed to limit or otherwise affect the inherent power of the Revenue Court to make such orders as may be necessary for the ends of justice or to prevent the abuse of the process of the Revenue Court,"
The marked distinction which has been pointed out as above by me in between the Controller and the Court under the provisions of the Rent Control Act, nodoubt very clearly exhibits the legislative intent that the Controller cannot be considered nor taken to be Court under the Act or the Rules. The procedure which the Accommodation Controller has to follow in an application made before him is specially prescribed one. The Rent Controller not being the Court the power conferred on the Civil Courts or power declared to be inherent in the Civil Court under Section 151 of C.P.C. cannot be exercised by the Rent and Accommodation Controller. This being the position of law that Section 151 did not apply to the proceedings before the Rent Controller, I am of the opinion that the application which had been moved by the Revision petitioner itself was misconceived and was not maintainable and was as such liable to be rejected as the Rent Controller had no jurisdiction to grant an order under Section 151. Thus considered I am of the opinion that in the present case, no illegality has been committed by the Rent and Accommodation Controller in rejecting the present Revision applicant's above mentioned application filed under Section 151 C.P.C. The H.R.R.P. is as such has no force and substance and as such is hereby rejected.