Allahabad High Court
Mahboob Ali vs Suresh Kumar Dixit on 16 March, 2015
Author: Anil Kumar
Bench: Anil Kumar
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH Reserved Case :- SECOND APPEAL No. - 380 of 2014 Appellant :- Mahboob Ali Respondent :- Suresh Kumar Dixit Counsel for Appellant :- Mohd. Aslam Khan,V.K.Dubey Counsel for Respondent :- N.K. Shukla Hon'ble Anil Kumar,J.
(C.M. Application No. 126109 of 2014) Heard Sri Mohd. Arif Khan, learned Senior Advocate assisted by Mohd. Aslam Khan Advocate for the applicant and Sri O.P. Srivastava, learned Senior Advocate assisted by Sri V.K. Dubey Advocate for the respondents on C.M. Application No. 126109 of 2014 for modification/ Correction of the order dated 28.11.2014 passed by this Court.
In order to decide the controversy involved in the present case it will be appropriate to state some facts, in brief, which are to the effect that initially plaintiff/ tenant filed a suit for a mandatory injunction, restraining the landlord/respondent from forcefully evicting him from the shop in question otherwise than in accordance with law and not to interfere with his peaceful possession, registered as Regular Suit No. 355 of 2011 (Mahboob Ali Kurashi Vs. Suresh Chand Dixit), dismissed by means of judgment and decree dated 21.2.2014.
Aggrieved by the same defendant/plaintiff filed a Regular Civil Appeal no. 40 of 2014 ( Mahboob Ali Kurashi Vs. Suresh Chand Dixit), dismissed by means of judgment and order dated 18.11.2014.
Now by means of present second appeal judgments and decrees passed by the appellate court as well as trial court have been challenged by the appellant.
On 28.11.2014, this Court after hearing learned counsel for the appellant and Sri N.K. Shukla, learned counsel for contesting respondent/ plaintiff admit the appeal and granted interim injunction, the relevant portion of the same is quoted as under:-
"Prima facie, submission made by learned counsel for the appellant for the purpose of interim relief appears to be correct as in the instant matter appellant/tenant filed a suit for a mandatory injunction, restraining the respondent from forcibly evicting him from the shop in question otherwise than in accordance with law and not to interfere with his peaceful possession. keeping in view the above said facts, if the trial court comes to the conclusion that if the tenant fail to prove his case by way of material on record then the same may be dismissed by the court below, but there is no justification or reason on the part of the trial court to give a direction while dismissing the suit to handover the possession of the shop in question by the tenant/appellant to the land lord within a period of one month as no counter claim has been filed by the landlord for the said purpose. Accordingly, an interim measure, it is provided that till the next date of listing, parties are directed to maintain status quo in respect of the shop in question as exits today and no coercive measure shall be taken against the appellant."
By means of present application, plaintiff/ appellant seeks modification of the order dated 28.11.2014 passed by this Court.
Mohd. Arif Khan, learned counsel for the appellant while pressing the said application has placed reliance on para nos. 5 to 7 of the affidavit filed in support of the application in question which on reproduction reads as under:-
" 5. That the respondent, who is hands in glove with the local police of Police Station Krishna Nagar , got the shop in dispute locked and despite the order passed by this Hon'ble Court shown to the Station House Officer, Police Station, Krishna Nagar, the locks were not removed , as a result of which, the deponent is unable to carry on his business from the shop in dispute.
6. That having no recourse open, the deponent made an application to the Senior Superintendent of Police, Lucknow, through speed post on 30.11.2014, praying therein that the police authorities of P.S. Krishna Nagar, Lucknow may be directed to unlock the shop. A copy of the application made by the deponent to the Senior Superintendent of Police, Lucknow is filed herewith as Annexure No. A-1.
7. That from the facts stated herein above, it is thus apparent that the deponent, who was in possession of the shop in dispute and the local police, in order to favour the respondent, illegally put the locks and despite the orders passed by this Hon'ble Court, the locks illegally put in have not been removed and despite the complaint made by the deponent to the Senior Superintendent of Police, Lucknow , no action has been taken in the matter i.e. for removal of the locks, with the result , the deponent and his family is at the verge of starvation as the income from the shop in dispute is the only source of their livelihood."
Accordingly, it is submitted by Mohd. Arif Khan learned counsel for the appellant that keeping in view the above said facts as well as the provisions as provided under Section 151 of the CPC , the action on the part of respondent thereby putting a lock on the shop in question is clear disregard and violation of the order dated 28.11.2014 passed by this Court so the respondent as well as the police authorities of the district Lucknow may be directed to open the lock and handover the possession of the shop in question to the appellant and the order dated 28.11.2014 passed by this Court be modified . In support of his arguments, he has placed reliance on the judgment passed by this Court in the case of Mohd Hamja Vs. Additional Civil Judge ( S.D.) Lucknow and others, 2010 (28) LCD 637.
Sri O.P. Srivastava, learned counsel for the respondent while opposing the application in question placed reliance on the affidavit stated in para -21 of the counter affidavit/ objection filed by the respondent to the application for seeking modification/ correction of the order dated 28.11.2014 that the appellant on 21.11.2014 has started running a meat shop from another shop which is allotted by Lucknow Development Authority and the said shop is vacant and is in possession of deponent with effect from 21.11.2014.
In addition to above said fact, Sri O.P. Srivastava , learned counsel for respondent has also placed reliance on the facts in the supplementary counter affidavit filed by respondent/ landlord and submitted that at present appellant is running a meet shop from the shop which is allotted to him ( Shop/ Chabutara No. 1333 by way of license granted to him by Lucknow Development Authority on 27.11.2012) and a photograph filed alongwith the said affidavit.
Accordingly, Sri O.P. Srivastava, learned counsel for the respondent/landlord submits that the prayer as made by the appellant in the application for seeking modification/ correction of the order dated 28.11.2014 by taking aid under Section 151 CPC is nothing but amounts to get fresh interim/injunction order, which cannot be granted to the appellant as per the provisions as provided under Section 151 CPC as for the said purpose, he has got a statutory remedy available to him under the provisions of civil procedure, so the application in question, liable to be rejected.
I have heard learned counsel for the parties and gone through the record.
In order to decide the controversy it will be appropriate to go through the provisions as provided under Section 151 CPC.
Section 151. Saving of inherent power of Court:- 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 end of the justice or to prevent abuse of the process of the Court.
From the reading of Section 151 CPC , the position which emerge out is as follows:-
(1) the inherent powers of the Court are very wide and are not in any way controlled by the provisions of the Code.
(2) They are in addition to the powers specially conferred on the Court by the Code and the Courts are free to exercise them.
(3) The only limitation put on the exercise of the inherent powers is that when exercised, they are not in conflict with what has been expressly provided for, or those exhaustively covering a particular topic, or against the intention of the Legislature. These limitations are not due to the fact that the inherent power is controlled by the Code, but because it should be presumed that the procedure specifically provided for orders in certain circumstances is dictated by the interests of justice.
(4) Inherent powers are to be exercised where specific provision does not meet the necessities of the case.
Further, no party has a right to insist on the Court exercising its inherent jurisdiction. This jurisdiction is to be exercised by the Court in very exceptional circumstances for which the Code provides no procedure. The Legislative has made detailed provisions in the Code for various matters. If there are express provisions in the Code covering a particular topic, they give rise to the necessary implication that no power shall be exercised in respect of the said topic otherwise than in the manner prescribed by the said provision. The power under the Code need not even be express. It may be implied or can even be implicit from the very nature of the provisions made for covering the contingencies to which they relate (see: G.K. Prabhakaram v. David Traders AIR 1973 Ker. 1 (F.B.) The inherent power of a Court under Section 151 is not intended to enable a Court to confer a right upon a party. The distinction between the procedural law and the substantive law must be borne in mind. Section 151 does not invest a Court with legislative powers but only enables a Court to pass interim orders to do justice between the parties considering the rights conferred upon the parties by substantive law. The inherent powers of a Court are in addition to and complementary to the powers expressly conferred upon it by other provisions of the Code. (See Shantaram v. Dagubai A.I.R. 1987 Bpm. 182 (D.B.)) Hon'ble the Apex Court in the case of Manohar Lal Chopra v. Rai Bahadur Rao Raja Seth Hiralal AIR 1962 SC 527 (V 49 C 80) wherein paragraph no.43 held as under :-
"The Code of Civil Procedure is undoubtedly not exhaustive : it does not lay down rules for guidance in respect of all situations nor does it seek to provide rules for decision of all conceivable cases which may arise. The civil courts are authorized to pass such orders as may be necessary for the ends of justice, or to prevent abuse of the process of court, but where an express provision is made to meet a particular situation the Code must be observed, and departure therefrom is not permissible. As observed in 62 Ind App 80 (AIR 1938 PC 85).
"It is impossible to hold that in a matter which is governed by an Act, which in some limited respects gives the court a statutory discretion, there can be implied in court, outside the limits of the Act a general discretion to dispense with the provisions of the Act."
Thus, inherent jurisdiction of the court to make orders ex debito justitiae is undoubtedly affirmed by Section 151 of the Code, but that jurisdiction cannot be exercised so as to nullify the provisions of the Code. Where the Code deals expressly with a particular matter, the provision should normally be regarded as exhaustive.
So, recourse to inherent powers in face of or in conflict with the specific provisions of the statute would not be permissible. Inherent powers cannot be used as an instrument to intrude the powers of the Court in regard to a procedure or a remedy, if specifically provided in other provisions of the Civil Procedure Code. No code or law could be codified so as to provide for each and every situation, at every stage of the proceedings arising from the vacuum left in the enactment. Such situations are to be supplied by the Court by recourse to inherent powers to create a bridge over such situation for meeting the ends of justice or prevent abuse of process of law. To do justice is the primary duty of the Court but duty imposed should be discharged in consonance with the provisions of the Civil Procedure Code and within four corners of well enunciated principles. Inherent powers being adjunct to the specifically provided powers of the Court as codified in the Civil Procedure Code, they could not be used for disturbing the procedure provided under the Civil Procedure Code because its ramification could prove retrogative to the administration of justice by civil court. Entertainment of such application would have the effect of infringing the concept of finality doctrine of civil jurisprudence (Kalia Devi v. State of Haryana (1999) 1 Punj. L.J. 585) Section 151 of the C.P.C. retains the inherent jurisdiction which every Court possesses to strike out from its record a suit which is frivolous, vexatious, malicious or tantamount to abuse of the process of the Court or tends to bring the administration of justice to ridicule by persistently and consistently filing proceedings and suits though the matter has been settled finally by the highest Court of the land. It is true that such power of striking off the plaint from the record of the Court on the ground of abuse of process is to be exercised sparingly and with circumspection and in rarest of rare cases but when the conduct of a litigant is so glaringly contumacious intended to keep a matter alive in a Court having no jurisdiction, such litigation deserves to be dealt with sternly (See SNP Shipping Services Pvt. Ltd. v. Kara Mara Shipping Co. Ltd. AIR 2000 Bom. 57) In the case of K.K. Velusamy Vs. N. Palanisamy (2011) 11 SCC 275 Hon'ble the Apex Court has held as under:-
"The respondent contended that section 151 cannot be used for re-opening evidence or for recalling witnesses. We are not able to accept the said submission as an absolute proposition. We however agree that section 151 of the Code cannot be routinely invoked for reopening evidence or recalling witnesses. The scope of section 151 has been explained by this Court in several decisions (See : Padam Sen vs. State of UP-AIR 1961 SC 218; Manoharlal Chopra vs. Seth Hiralal - AIR 1962 SC 527; Arjun Singh vs. Mohindra Kumar - AIR 1964 SC 993; Ram Chand and Sons Sugar Mills (P) Ltd. vs. Kanhay Lal - AIR 1966 SC 1899; Nain Singh vs. Koonwarjee 1970 (1) SCC 732; The Newabganj Sugar Mills Co.Ltd. vs. Union of India - AIR 1976 SC 1152; Jaipur Mineral Development Syndicate vs. Commissioner of Income Tax, New Delhi - AIR 1977 SC 1348; National Institute of Mental Health & Neuro Sciences vs. C Parameshwara - 2005 (2) SCC 256; and Vinod Seth vs. Devinder Bajaj - 2010 (8) SCC 1). We may summarize them as follows:
(a) Section 151 is not a substantive provision which creates or confers any power or jurisdiction on courts. It merely recognizes the discretionary power inherent in every court as a necessary corollary for rendering justice in accordance with law, to do what is `right' and undo what is `wrong', that is, to do all things necessary to secure the ends of justice and prevent abuse of its process.
(b) As the provisions of the Code are not exhaustive, section 151 recognizes and confirms that if the Code does not expressly or impliedly cover any particular procedural aspect, the inherent power can be used to deal with such situation or aspect, if the ends of justice warrant it. The breadth of such power is co-extensive with the need to exercise such power on the facts and circumstances.
(c) A Court has no power to do that which is prohibited by law or the Code, by purported exercise of its inherent powers. If the Code contains provisions dealing with a particular topic or aspect, and such provisions either expressly or necessary implication exhaust the scope of the power of the court or the jurisdiction that may exercised in relation to that matter, the inherent power cannot be invoked in order to cut across the powers conferred by the Code or a manner inconsistent with such provisions. In other words the court cannot make use of the special provisions of Section 151 of the Code, where the remedy or procedure is provided in the Code.
(d) The inherent powers of the court being complementary to the powers specifically conferred, a court is free to exercise them for the purposes mentioned in Section 151 of the Code when the matter is not covered by any specific provision in the Code and the exercise of those powers would not in any way be in conflict with what has been expressly provided in the Code or be against the intention of the Legislature.
(e) While exercising the inherent power, the court will be doubly cautious, as there is no legislative guidance to deal with the procedural situation and the exercise of power depends upon the discretion and wisdom of the court, and the facts and circumstances of the case. The absence of an express provision in the code and the recognition and saving of the inherent power of a court, should not however be treated as a carte blanche to grant any relief.
(f) The power under section 151 will have to be used with circumspection and care, only where it is absolutely necessary, when there is no provision in the Code governing the matter, when the bona fides of the applicant cannot be doubted, when such exercise is to meet the ends of justice and to prevent abuse of process of court."
In the case of Rajendra Prasad Gupta Vs. Prakash Chandra Mishra and others (2011) 2 SCC 705, Hon'ble the Apex Court has held as under:-
"We do not agree. Rules of procedure are handmaids of justice. Section 151 of the Code of Civil Procedure gives inherent powers to the court to do justice. That provision has to be interpreted to mean that every procedure is permitted to the court for doing justice unless expressly prohibited, and not that every procedure is prohibited unless expressly permitted. There is no express bar in filing an application for withdrawal of the withdrawal application."
In Narsingh Das v. Mangal Dubey, ILR 5 All 163 (FB) (1882), Mr. Justice Mahmood, the celebrated Judge of the Allahabad High Court, observed :-
"Courts are not to act upon the principle that every procedure is to be taken as prohibited unless it is expressly provided for by the Code, but on the converse principle that every procedure is to be understood as permissible till it is shown to be prohibited by the law. As a matter of general principle prohibition cannot be presumed.
The above view was followed by a Full Bench of the Allahabad High Court in Raj Narain Saxena Vs. Bhim Sen & others, AIR 1966 Allahabad 84 FB, and we agree with this view. Accordingly, we are of the opinion that the application praying for withdrawal of the withdrawal application was maintainable. We order accordingly. ( See also: Raj Narain Saxena Vs. Bhim Sen and others, AIR 1966 Allahabad 84 ( FB)"
In the instant matter appellant/defendant does not controvert the averment made on behalf of landlord/ respondent in para -21 of the counter affidavit/ objection filed by him against the application for seeking modification / correction of the order dated 28.11.2014 as well as the facts which are stated in the supplementary counter affidavit filed on his behalf .
So, keeping in view the said fact as well as the scope of section 151 CPC as stated herein above, it is not permissible under law to grant relief as prayed by the appellant for modification/correction of the order dated 28.11.2014 which amounts to grant a fresh interim/ injunction orders because the inherent powers vested in the Court under Section 151 C.P.C. could be invoked to do justice but without infringing and overreaching the specific provisions of law or provisions of the Civil Procedure Code. If exercise of such powers is likely to contravene the manner and the method for which specific provisions have been enacted in the Civil Procedure Code, the Court would have to refrain from passing such order in exercise of its inherent powers. In other words, express provisions of law in the statute would be necessary implication exclude the exercise of inherent powers in regard to that particular Act where specific remedy is available to the party in such definite remedy is normally not permissible in law and that has been consistent view held by the Courts including the highest Court of the land. So the inherent powers cannot be permitted to be substituted for appellate Court powers to judge the merits and correctness of the judgment pronounced. (See Kalia Devi v. State of Haryana (1999) 1 Punj. L.J. 585).
Further, the appellant cannot derive any benefit from law cited on his behalf [Mohd Hamja ( supra)] as the same is not applicable in the facts and circumstances of the case because in the said matter an interim/injunction order has been granted and the same has not been complied with, so he approached this Court with the prayer for implementation of the same. Accordingly as per the facts of the said case, a direction has been issued to local authorities/ administration to ensure the compliance of the injunction granted by invoking the provisions as provided under Section 151 CPC. However, in the present case by an order dated 28.11.2014 an interim order has been granted to the extent that that till the next date of listing, parties are directed to maintain status quo in respect of the shop in question as exists today and no coercive measure shall be taken against the appellant. From the perusal of the affidavits exchanged between the parties specially an affidavit filed by landlord/ respondent that the possession of the shop in question has been taken by him prior to passing of the said order and the said fact has not been controverted / rebutted by the appellant/defendant, so I do to find any good ground or reason for modifying/ correcting the order dated 28.11.2014.
For the forgoing reasons, the application in question lacks merit and is rejected as such.
List the matter before appropriate Bench.
Dated: 16.03.2015 D.K.