Jairam Jethmal Tapadia vs Kamal Kishor Agrawal and Another

N.P. Chapalgaonker, J.—Heard Shri S.A. Deshmukh, learned Counsel for the petitioner and Shri S.C. Bora, learned Counsel holding for Shri Ajay Deshpande, learned Counsel for the respondent No. 2.

In an application u/s 15 of the Hyderabad Houses (Rent, Eviction and Lease) Control Act, 1954 by the landlord, a decree for eviction against the tenant was passed. The order is challenged in an appeal u/s 25 of the said Act before the learned District Judge, Parbhani. When the appeal was filed, an application under Order 41, Rule 5 of the Civil Procedure Code, 1908 was submitted before the learned District Judge. Since the respondent appeared by caveat, the learned District Judge started hearing the application. This hearing started at about 1.30 p.m. The advocate for the appellant prayed that the matter be expedited since the appellant tenant is likely to be dispossessed within a short time. Shri Ubale requested the Court for a short time for filing say and Shri Ubale, in the open Court, gave a categorical and specific undertaking to the Court on behalf of his client that the order of eviction will not be executed till he files his say and the matter would be heard after recess. On this assurance, the matter was adjourned to 3 p.m. on the same day. It is common ground that the appellant tenant was dispossessed from the disputed premises in furtherance of the execution despite this undertaking before the learned District Judge could pass the order in the letter part of the day.

Rule. Taken up for hearing forthwith by consent. Respondent No. 1 is allowed to be deleted as prayed by the petitioner.

An application, came to be moved before the learned District Judge, Parbhani purporting to be under Order 39, Rules 1 and 2 read with section 151 of the Code of Civil Procedure. The prayer was made that the Rent Controller, Sailu and the Tahsildar, Parbhani be directed by interim mandatory injunction to put the applicant-tenant in possession of the shop in dispute and also the respondent be restrained from altering, changing the existing structure of the shop and not to interfere with the possession and enjoyment of the shop till disposal of the appeal.

This application was vehemently contested. On 19-9-1995, the learned District Judge, Parbhani was pleased to pass the interim order restraining the respondent landlord from altering the suit premises, from changing the existing structure of the shop in dispute and from removing the articles like telephone instrument, electric meter from the said shop. So far as the other prayer for putting the tenant appellant in possession was concerned, the matter was heard at length and the learned District Judge, Parbhani on 13th October, 1995, was pleased to allow the application and directed the Rent Controller to put the tenant back in possession. This order has been challenged in this Civil Revision Application.

Shri S.A. Deshmukh, learned Counsel for the petitioner, contended that the restitution of possession granted u/s 144 of the CPC could be granted only by the Court of first instance and the learned District Judge had no jurisdiction to pass such an order. The another submission made by Shri Deshmukh is that since the law provides for the restitution u/s 144, the inherent powers of the Court u/s 151 cannot be invoked. Thirdly, Shri Deshmukh submitted that the appeal itself can be directed to be disposed of as early as possible and till then, the status quo as on today can be directed to be maintained.

Shri Bora, learned Counsel for respondent No. 2, defended the order of the learned District Judge, Parbhani and submitted that the orders impugned are within the inherent jurisdiction of the Court and cannot be assailed.

The first proposition canvassed by Shri Deshmukh is that the restitution under the section 144 of the CPC can be ordered by the Court of first instance and the Appellate Court has no jurisdiction to exercise the powers u/s 144. I see hardly any dispute with this. The Supreme Court in the case of State Bank of Saurashtra Vs. Chitranjan Rangnath Raja and Another, was pleased to clarify the position after the amendment of section 144 by the Act of 1976. The amendment has merely explained as to which Court shall be construed to be the Court of first instance. When the High Court reversed the decree, which was passed by the Civil Judge, Senior Division, Gondal and the Supreme Court reversed the High Court''s judgment and decree, a prayer was made to the Supreme Court that the restitution be ordered u/s 144. The Supreme Court refused the prayer on the ground that it will have to be made by the Court of first instance i.e. the Civil Judge, Senior Division, Gondal.

Same view is taken by the learned Single Judge of this Court in the case of V.T. Hundlani Vs. Robert C. Kenny, . This Court observed that in an appeal by the tenant challenging the ex-parte decree, the Court ordered the restitution while setting aside the decree. This will have to be ordered by the Court of first instance. Shri Bora was fair enough to concede that this is the correct position of law.

The second contention raised by Shri Deshmukh, learned Counsel is that the District Judge, Parbhani cannot invoke his inherent jurisdiction to restore the possession to the tenant since the provision for restitution has been made in section 144 and when the statute provides for a particular thing, powers u/s 151 cannot be invoked. It is well settled that when an express provision is made by the statute to deal with a particular situation, the matter will have to be dealt as per the procedure laid down in the statute and the powers u/s 151 cannot be invoked for the purpose. In the case of Arjun Singh Vs. Mohindra Kumar and Others, , the Supreme Court was pleased to observe:-

"It is sufficient if we proceed on the accepted and admitted limitations to the existence of such a jurisdiction. If there are specific provisions of the Code dealing with a particular topic and they expressly or by necessary implication exhaust the scope of the powers of the Court or the jurisdiction that may be exercised in relation to a matter, the inherent power of the Court cannot be invoked in order to cut across the powers conferred by the Court."

Therefore, the inherent jurisdiction of the Court to pass any order in the interest of justice can not be invoked to undone or nullify any statutory provision. This part of the submission made by Shri Deshmukh will have to be accepted.

The question is whether in the present case, the learned Judge has exercised his powers u/s 144 of the Civil Procedure Code. Section 144, so far as is material for the purpose of this revision, is quoted below:-

Section 144:

(1) "Where and in so far as a decree or an order is varied or reversed in any appeal, revision or other proceeding or is set aside or modified in any suit instituted for the purpose, the Court which passed the decree or order shall, on the application of any party entitled to any benefit by way of restitution or otherwise, cause such restitution to be made as will, so far as may be, place the parties in the position which they would have occupied but for such decree or order or such part thereof as has been varied, reversed, set aside or modified, and, for this purpose, the Court may make any orders, including orders for the refund of costs and for the payment of interest, damages, compensation and mesne profits, which are properly consequential on such variation, reversal, setting aside or modification of the decree or order."

Thus, it would be seen that the question of passing any order u/s 144 would arise when a decree or order is varied or reversed in an appeal or revision or any other proceeding or is set aside or modified in a suit instituted for the purpose.

Admittedly, in the instant case, the order passed by the learned Rent Controller is very much in tact and is not varied, reversed or modified by any Competent Court. When the Appellate Court stays the decree, the decree is not varied, annulled or reversed. The appeal is still pending and the decree is still intact. Therefore, no orders u/s 144 could have been passed by the learned District Judge. The District Judge appears to have invoked the powers u/s 151. If a decree is varied, annulled or modified, the restitution will have to be asked u/s 144 and the inherent powers cannot be invoked for that purpose. In the present case, the order passed is under Order 41, Rule 1 read with section 151 of the Code of Civil Procedure. When an appeal is filed, Order 41, Rule 5 of the CPC permits the stay of execution. If the execution of a decree is to be stayed during the course of pendency of an appeal or revision, the Appellate Court or Revisional Court may pass stay order but if the party, who has obtained the decree or order, gives an undertaking not to execute the decree, then it is not necessary for the appellate or Revisional Court to pass any further orders.

In this case, the learned advocate for the respondent-landlord undertook that the decree will not be executed. So far as the stay granted by the Appellate Court under Order 41, Rule 5 is concerned, it becomes operative from the time it is communicated but so far as the undertaking is concerned, the undertaking becomes operative the moment it is submitted before the Court, either in writing or orally. Therefore, it operates immediately. There is some sanctity to the undertakings filed or made before the Court either by the party or the Counsel. The decree was for eviction and in the normal course, after the admission of the appeal, stay would follow. The order was not formally passed by the Court merely for the reason that it was undertaken before it that the order will not be executed. This being the position, there should have been no execution the moment the assurance in the form of undertaking was given to the Court.

It is an admitted position that the possession was taken after this undertaking. The learned District Judge, therefore, invoked his inherent jurisdiction which is declared u/s 151 and passed an order for restitution of possession. I do not see any infirmity in it. When the decree is still intact is not varied, annulled, modified but a stay order is passed by the Appellate Court on the basis of the undertaking, the course to be followed is not provided for u/s 144 and has to be dealt with under the inherent powers of the Court as declared u/s 151 of the Civil Procedure Code. Therefore, there is nothing wrong in the orders passed by the learned District Judge, Parbhani and the challenge to it will have to be rejected.

It was submitted by both the parties before me that the appeal could be disposed of at an early date. Looking to the facts of the case, I feel that the submission is justified. The appeal pending before the learned District Judge, Parbhani bearing Rent Appeal No. 1 of 1995, should be disposed of on or before 22-12-1995. The parties to appear before the learned District Judge, Parbhani on 30th October, 1995 and take from him the further date. In the meantime, the tenant after taking possession, shall not alter the present nature of the structure, will not induct any third party and will not create any further encumbrances.

With these observations, the Civil Revision Application is disposed of. Rule discharged. There will be no order as to costs.

It is clarified that this Court has not expressed any opinion about the merits of the original matter i.e. the prayer for eviction.

Rule discharged.