Karnataka High Court
S. Ibrahim Khan vs Mohammed Noorulla on 27 July, 1999
Equivalent citations: 1999(6)KARLJ89
Author: H.N. Narayan
Bench: H.N. Narayan
ORDER
1. This revision under Section 115 of the CPC is directed against the order of the learned Principal District Judge, Mysore dismissing the tenant's revision petition preferred against the order of the learned Additional Civil Judge, Mysore on I.A. I passed in HRC No. 196 of 1998.
2. The petitioner is the tenant of the premises in question which is a non-residential premises. He filed a petition under Section 44 of the KRC Act. He filed an interlocutory application under Section 115 of the CPC praying permission to carry out necessary repairs to the petition schedule premises. In the affidavit filed in support of the application, the tenant has stated that the rice bags stocked in the schedule premises are likely to be damaged due to heavy rains and therefore the petition premises requires immediate repairs. He has produced the report of the Regional Engineer who has certified that the petition premises needs immediate repairs. The landlord opposed this application on the grounds that such an application was not maintainable either on law or on facts; the tenant had not made out a prima facie case; that the petition is bad for non-joinder of necessary parties as he is a mortgagee in possession of the property; the petition premises is in a habitable and good condition which does not require any major repairs as alleged; whether the petition premises requires major repairs or not is a matter of evidence and the same could be gathered by appointing a Court Commissioner and that the certificate issued by the Regional Engineer is a created paper which cannot be relied upon to grant reliefs.
3. The petitioner had filed an application under Section 115 of the CPC for interim relief praying permission to carry out repairs immediately. The learned Counsel for the tenant relied upon a catena of decisions to convince the Courts below that a Court which has got jurisdiction to grant relief under the CPC has inherent powers to grant interim relief also. Though the learned Civil Judge, Jr. Division agreed with the principles laid down by this Court and the Apex Court, he has refused to grant the interim relief on the simple ground that there is no scope for passing any interim order with respect to carrying out repairs pending disposal of the main petition invoking Section 115 of the CPC. Learned District Judge has virtually agreed with this view of the learned Civil Judge and therefore dismissed the revision.
4. The short question which needs consideration in this revision as rightly contended by Sri K. Gopal Hegde, learned Counsel for the petitioner is whether a Court of limited jurisdiction has power to grant interim relief under Section 115 of the CPC.
5. Learned Counsel has mainly relied on the decision of this Court in M/s. Paramound Industries and Metal Finishers v Smt. C.M. Malliga, at paragraph 23, page 295 and the judgment of the Apex Court in the case of State of Maharashtra and Others v Admane Anita Moti and Others , at paragraph 4. He has submitted that interim orders are granted by the Court as they are necessary to protect the interest of the petitioners till the rights are finally adjudicated upon and that the Court has inherent power to grant such interim orders. It is further contended that he approached the Trial Court in view of the provisions of Section 44 of the Act wherein he has to incur more than 1/12th of the monthly rent to get the premises repaired as there is leakage of the premises and in spite of the service of notice, the landlord has not permitted the tenant to repair the premises nor he is prepared to bear the costs and the Courts below have failed to exercise their jurisdiction in not granting the interim relief prayed for even though there was sufficient material before the Court to grant such a relief.
6. Sri S.V. Shastry, learned Counsel for the respondent however submitted that the Trial Court has recorded the statements of 4 witnesses and that it is in the process of finalising the proceeding and in the absence of satisfactory material before the Court to find out whether the premises in question requires repairs or not, interim order cannot be granted and therefore the Courts below have rightly rejected the request of the tenant. His further apprehension is that by virtue of an interim order of the Court, the tenant is likely to put up new construction thereby changing the nature of the property.
7. During the pendency of this application, the report of an Engineer and the statements of some witnesses were produced before the Court. The landlord's apprehension was that a Commissioner's report was not sufficient to determine this question. The contentions raised on behalf of the respondent in my opinion are not tenable and have no substance. From the perusal of the impugned orders, this Court notices failure on the part of Trial Courts to exercise its jurisdiction and discretion. The law empowers the Courts of law to grant interim reliefs to the parties and denial of such reliefs amounts to non-exercise of jurisdiction. It is trite that under Section 115 of the CPC, Courts have inherent powers to grant interim order even if such power is not provided under the statute. The Apex Court in Admane Anita's case, supra, has stated as follows.-
"Interim orders are granted by the Court as they are necessary to protect the interest of the petitioner till the rights are finally adjudicated upon. Even where it is not provided under the statute this Court has held that the Courts have inherent power to grant it".
8. The Division Bench of this Court had an occasion to deal with this question in M/s. Paramound Industries case, supra. At paragraph 23 of the judgment while considering the scope of Section 41 of the Specific Relief Act, the Division Bench has laid down the law as follows.-
"If the relief sought for in the suit lies within the jurisdiction of the Civil Court, it is open to it to pass an appropriate interim order to aid the final relief which is sought in the suit. If passing of such a decree or an interim order results in disabling the defendant in the suit from instituting or prosecuting any proceeding in a Court not subordinate to the Court in which the suit is filed, it cannot be held that it is hit by Section 41(b) of the Specific Relief Act because interim reliefs are ancillary to the main relief. When the Civil Court has jurisdiction to entertain the suit and grant the decree as prayed for, it follows that it has jurisdiction to pass appropriate interim order in aid of the main relief.
9. It is an admitted fact that the tenant made an interlocutory application-I.A. I under Section 115 of the CPC praying the Trial Court to grant interim relief viz., to permit the tenant to carry out necessary repairs to the petition premises in view of the urgency of the matter. In order to substantiate this request, he enclosed the report of an Engineer which shows that there is need for immediate repairs. It is our experience that Courts of law take their own time to conclude any proceeding civil or other proceeding. The Court has to necessarily summon the opponent, consider his objections if any, record the evidence of the parties, hear them on merits and pass a final order. As disclosed from the records produced before the Court, the Trial Court has taken roughly 2 years to dispose of this miscellaneous proceeding. When the petitioner-tenant approached the Court for an urgent relief, the Courts below have refused to exercise the powers vested in them. This amounts to negate a relief which the party is entitled in law. To grant such relief is inherent in the Court of law. Failure to exercise the jurisdiction is failure to do justice. Therefore, the Courts below have erred in not exercising their jurisdiction to grant the relief prayed for. I am satisfied from the material placed before the Court that premises in question requires immediate repairs and there is no impediment for the Court to grant this interim relief as prayed however subject to the condition that the petitioner shall bear the cost of repairs pending disposal of the petition. If the Trial Court were to hold after trial that the petitioner is entitled for repairs of the premises, the landlord is liable to bear the cost of such repairs in terms of Section 44(3) of the KRC Act. If the petitioner were to fail in his attempt to get the relief under Section 44, he alone is liable to incur the expenses of repairs.
10. This revision is disposed of accordingly. The petitioner is permitted to carry out the repairs without changing the nature of the petition premises or putting up any new structure.