Mohd. Afzal and Another vs Common Wealth Hotel Private Limited

P.L.N. Sarma, J.—Plaintiffs are the petitioners in this revision. This revision is filed questioning the order of the IVth Additional Judge, City Civil Court, Hyderabad dt.1-7-1991 dismissing I.A.No. 525 of 1991 in O.S.No. 1426 of 1987 filed for delivery of possession of the suit schedule premises.

For convenience sake, the parties to this revision are referred as landlords and tenant.

Landlords are the petitioners. They filed the suit O.S.No. 1426 of 1987 on the file of IVth Additional Judge, City Civil Court, Hyderabad for recovery of suit schedule building after terminating the tenancy. The respondent-tenant took the premises on lease from the landlords to run a hotel. The amount payable to the premises per month was fixed at Rs. 10,000/- (Rs.6,000/- towards accommodation and Rs. 4,000/- towards fixtures and fittings). Landlords also sought a decree for arrears of rent as well as future rents etc., in the said suit.

Pending suit, landlords filed LA. No. 1077 of 1988 for a direction to the tenant to deposit all arrears of rent. The said LA. was dismissed by the trial Court. Landlords carried the matter to the High Court in CR.P.No. 240 of 1990 and the same was allowed by this Court on 19-3-1991 directing the tenant- respondent to deposit all arrears of rent to the tune of Rs. 1,40,000/- from 1-1-1990 to 28-2-1991 and also directed to deposit every month''s rent on or before 10th of succeeding month etc. The tenant failed to comply with the directions given by this Court in C.R.P. No. 240 of 1990. No amount was deposited as per the directions in the said revision. The landlords filed I.A.No. 515 of 1991 seeking possession of the suit schedule premises on the ground that the rents have not been deposited pursuant to the directions of this Court, in particular, they relied upon by the observations of this Court in C.R.P.No. 240 of 1990 that the tenant should not be allowed to continue in possession without paying any rent. Landlords stated that in view of the above observation contained in the judgment in C.R.P.No. 240 of 1990, the tenant, having failed to pay the rent as directed by this Court, should not be allowed to continue in possession of the suit schedule premises.

Counter is filed by the tenant in the above mentioned application. It is stated therein that the main suit itself is for recovery of possession of the suit schedule building and several contentions have been raised in the same in resisting the suit and unless and until the suit is decreed, possession cannot be disturbed and that pending said suit, if delivery of possession is ordered in an Interlocutory Application, it will practically amount to decreeing the suit at the Interlocutory stage and that failure to comply with the directions of the High Court in C.R.P. No. 240 of 1990 will not enable this Court to direct delivery of possession pending suit.

Learned trial Judge dismissed the said application on the ground that in the judgment in C.R.P.No. 240 of 1990 itself, it was made clear that any observations or findings recorded in the said revision are only prima facie findings and the trial Court while disposing of the suit is free to proceed with the same on its own merits and in accordance with law and therefore, the said directions are only directions pending suit which will have to be gone into in the suit itself finally.

One other important aspect that has to be considered at this stage is that the landlords filed C.C.No. 375 of 1991 in this Court for punishing the tenant under the provisions of Contempt of Courts Act for wilfully disobeying the directions of this Court in C.R.P.No. 240 of 1990 directing the tenant to deposit the arrears of rent. The said contempt case is dismissed by me today on the ground that failure to comply with the directions of this Court will not attract the provisions of Contempt of Courts Act and I also further stated that the order in C.R.P.No. 240 of 1990 dated 19-3-1991 should be treated as a decree and the landlords are entitled to execute the same for recovery of the amount as provided under the Code of Civil Procedure.

The short question is whether pending suit for recovery of possession, failure to comply with the orders of this Court i.e., deposit of all arrears of rent and also future rents given in C.R.P.No. 240 arising out of an Interlocutory Application pending suit, entails eviction of the tenant?

Sri Muralinarayana Bung, learned counsel for the landlords relied upon decisions in Manohar Lal Chopra Vs. Rai Bahadur Rao Raja Seth Hiralal, ; Tahera Sayeed Vs. M. Shanmugam and Others, ., and The Newabganj Sugar Mills Co. Ltd. and Others Vs. The Union of India (UOI) and Others, ., for the proposition that the Court has inherent power u/s 151 of the CPC to direct delivery of possession of suit schedule premises for the failure to obey the orders of this Court in C.R.P.No. 240 of 1990.

The decision in Manoliar Lal v. Seth Hiralal is only an authority for the proposition that even in a case where the requirements of Order 39 of the CPC are not satisfied, the Court has inherent power to issue injunction in the interest of justice and that the inherent power u/s 151 of the CPC is not affected or limited by the other provisions of the Code of Civil Procedure. This decision is not an authority for the proposition that for the failure to comply with certain directions given by the Court pending suit, the suit itself can be decreed in exercise of inherent power u/s 151 of the Code of Civil Procedure. If the application is allowed, it will amount to decreeing the suit itself at the Interlocutory stage for the failure of the tenant to comply with the orders of this Court passed in an Interlocutory Application. In my opinion, such a situation is not contemplated by Section 151 of the Code of Civil Procedure. If the contention of the landlord is accepted, then it amounts to granting of interim decree for recovery of possession pending suit. Suit is yet to be decided on merits and I am informed in the Court that the trial in the said suit is over and it is posted for arguments. I am of the view mat the decision referred to above is not applicable to the facts of the present case.

Similarly, I am unable to see as to how the decision in N.S. Mills v. Union of India is helpful to the landlords. In the said case, the price of levy sugar was pegged down by the State. The appellants therein i.e., Mill owners challenged the validity of the control and obtained stay of operation of the order pend main proceedings. Under the cover of the Court''s stay order, the sugar was sold at free market price, on bank guarantee for the excess price being furnished to the Court. Finally, their main cases themselves were dismissed and the High Court directed the Registrar to encash the security and recover the amount to be paid. While upholding the said decision, the Supreme Court granted certain directions with a view mat the amount obtained on encashing the bank guarantees should reach the ultimate buyers. In that connection, the learned Judges observed that though there are limitations on the powers of the Court it cannot abandon its inherent powers. It is not an authority for the proposition that failure to obey certain orders passed in an I. A. entails granting of main relief sought for in the suit.

To a similar effect is the decision in Tahera Sayeed v. M. Shanmugam (2 supra). This decision also deals with the inherent power of the Court. I am of the considered upon that this decision is also not relevant to the facts of the present case.

In case the contention of the landlords is accepted and delivery of possession is directed in these proceedings pending main suit for recovery of possession and if the main suit is ultimately dismissed, what is to happen? It means that even though the main suit is dismissed, at the Interlocutory stage the relief in the main suit itself is granted. I am of the opinion that such a situation is not contemplated by Section 151 of the Code of Civil Procedure. I am of the opinion that the decisions cited by the learned counsel appearing for the landlords have no application to the facts of the present case.

Learned counsel for the landlords also relied upon the provisions of Section 11(4) of the A.P. Buildings (Lease, Rent and Eviction) Control Act, 1960 and contended that even though similar provision is not available in the Code of Civil Procedure, this Court on the same analogy can grant direction to the tenant to put the landlords in possession of the premises. The fact that such a provision is available under the Rent Control Act and not available in the CPC itself cuts at the root of the argument of the learned counsel for the landlords. Since similar provision is not provided for in the Code of Civil Procedure, it is not open to this Court to give such a direction. Learned counsel for the landlords also drew my attention to Sections 105 and 108(1) of Transfer of Property Act and contended that there is an obligation on the part of the tenant to pay the rent and if that obligation is not discharged, a direction can be given to the tenant to put the landlords in possession of the premises. Section 105 of the Transfer of Property Act only deals with the definition of lease, wherein it was stated that a lease of immovable property is a transfer of a right to enjoy such property for a certain time in consideration of a price and that has nothing to do with the present contention of the landlords. Similarly, Section 108(1) of the Transfer of Property Act only enumerates rights and liabilities of the lessee and the lessee is bound to pay the rent. Failure to comply with the obligation under the said provision entails the landlord to take appropriate proceedings for recovery of the money. Here the question is for non-payment of rent, can the Court straight-away direct delivery of possession of the premises at Interlocutory stage itself, pending suit for recovery of possession? I am of the opinion that the contentions raised on behalf of the landlords have no substance. The order passed by this Court in C.R.P.No. 240 of 1990 can be treated as a decree and executed for recovery of the amount.

Having regard to what is stated above, I do not find any substance in this revision and it is accordingly dismissed. No order as to costs.