Full Judgment Text
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CASE NO.:
Appeal (civil) 5183 of 2006
PETITIONER:
G.L. Vijain
RESPONDENT:
K. Shankar
DATE OF JUDGMENT: 24/11/2006
BENCH:
S.B. Sinha & Markandey Katju
JUDGMENT:
J U D G M E N T
(Arising out of SLP (C) No. 23738 of 2004)
S.B. SINHA, J.
Leave granted.
Extent of application of revisional jurisdiction of High Court under
Section 25 of the Tamil Nadu Buildings (Lease and Rent Control) Act, 1960
(for short "the Act") falls for question in this appeal which arises out of a
judgment and order dated 30.09.2004 passed by a learned Single Judge of
the Madras High Court (Madurai Bench) which is in the following terms:
"This Revision Petition is admitted, subject to the
condition that the petitioner deposits 50% of the
entire post arrears, by calculating the monthly rent
as Rs. 12,650/-, fixed by the appellate authority
from the date of fair rent control petition, named,
30.03.1992, which shall be paid within a period of
eight weeks from today. The petitioner shall also
continue to pay the monthly rent of Rs. 12,650/- on
or before 10th of every succeeding month."
Having regard to the point involved in this matter, it is not necessary
to state the fact of the matter in details. Suffice it to notice that Appellant,
herein is a tenant. Respondent filed an application for fixation of fair rent
before the Rent Controller. The Additional District Court, Madurai (Rent
Controller) fixed rent of Rs. 15,870/- per month in respect of the tenanted
premises by an order dated 4.04.2000. The said amount of fair rent
determined by the Rent Controller was directed to be paid from the date of
filing of the said petition, viz., 30.03.1992. An appeal was preferred
therefrom before the Principal Subordinate Judge, Madurai, being the
appellate authority under the Act. The appellate authority by an order dated
27.01.2004 fixed fair rent @ Rs. 12,650/- per month for the said premises
and directed the appellant to pay the same from the date of institution of the
application filed before the Rent Controller. Aggrieved by and dissatisfied
therewith, the appellant filed a revisional application before the High Court
wherein the aforementioned order was passed.
We are not concerned herein with the merit of the matter.
The short question which arises for consideration is as to whether
while admitting the revision petition, the High Court could have imposed
conditions as has been purported to be done by reason of the impugned
judgment.
Mr. K.V. Viswanathan, learned counsel appearing on behalf of the
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respondent, in support of the impugned order, would submit that the High
Court has plenary jurisdiction to pass such an order as:
(i) its powers are implied and, thus, there need not be any express
provision in this behalf;
(ii) a statute can never be exhaustive and, thus, the court can exercise its
inherent jurisdiction;
(iii) the High Court’s jurisdiction being plenary, it can evolve its own
procedure;
(iv) the power to pass any interim order is incidental or ancillary to its
appellate jurisdiction;
(v) the revisional power conferred under Section 25 of the Act is wider.
We would start with the last contention of the learned counsel that
Section 25 of the Act confers a wide jurisdiction upon the High Court. The
said jurisdiction is wider than one under Section 115 of the Code of Civil
Procedure. The revisional court, therefore, would exercise its jurisdiction if
the conditions precedent laid down in Section 25 of the Act are fulfilled. The
limitation of power as contained in Section 115 of the Code of Civil
Procedure, therefore, is not applicable. [See Sri Raja Lakshmi Dyeing
Works and Others v. Rangaswamy Chettiar (1980) 4 SCC 259]
There cannot be any dispute with regard to the proposition of law that
the High Court having plenary jurisdiction has incidental or ancillary power.
There cannot further be any dispute that the court in appropriate cases can
exercise its inherent jurisdiction to pass an interim order.
It is, however, one thing to say that the court has an incidental,
ancillary or inherent power, but, it is another thing to say that its revisional
jurisdiction can be curtailed by imposing condition while admitting a
revisional application. Incidental or ancillary powers are provided for in the
Code of Civil Procedure. They otherwise inhere in the jurisdiction of the
court exercising plenary jurisdiction in certain situations but it must be stated
that an appellate court can exercise the incidental or ancillary power only
after the appeal has been entertained and not as a condition precedent for
entertaining the same.
It must be borne in mind that incidental power is to be exercised in aid
to the final proceedings. In other words an order passed in the incidental
proceedings will have a direct bearing on the result of the suit. Such
proceedings which are in aid of the final proceedings cannot, thus, be held to
be at par with supplemental proceedings which may not have anything to do
with the ultimate result of the suit.
Such a supplemental proceeding is initiated with a view to prevent the
ends of justice from being defeated. Supplemental proceedings may not be
taken recourse to in a routine manner but only when an exigency of situation
arises therefor. The orders passed in the supplemental proceedings may
some time cause hardships to the other side and, thus, are required to be
taken recourse to when it is necessary in the interest of justice and not
otherwise. There are well-defined parameters laid down by the Court from
time to time as regards the applicability of the supplemental proceedings.
Incidental proceedings are, however, taken recourse to in aid of the
ultimate decision of the suit which would mean that any order passed in
terms thereof, subject to the rules prescribed therefor, may have a bearing on
the merit of the matter. Any order passed in aid of the suit is ancillary power.
The expression ’ancillary’ means aiding, auxiliary; subordinate;
attendant upon; that which aids or promotes a proceeding regarded as the
principal.
The expression ’incidental’ may mean differently in different contexts.
While dealing with a procedural law, it may mean proceedings which are
procedural in nature but when it is used in relation to an agreement or the
delegated legislation, it may mean something more; but the distinction
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between an incidental proceeding and a supplemental proceeding is evident.
There is furthermore no dispute that the High Court can exercise its
inherent jurisdiction in appropriate cases. The revisional jurisdiction,
however, in effect and substance is an appellate jurisdiction.
In Narinder Mohan Arya v. United India Insurance Co. Ltd. and
Others [(2006) 4 SCC 713], this Court observed:
"47. A revisional jurisdiction as is well known
involves exercise of appellate jurisdiction. (See
Shankar Ramchandra Abhyankar v. Krishnaji
Dattatreya Bapat and Nalakath Sainuddin v.
Koorikadan Sulaiman.)"
The court’s power to impose condition for entertaining an application
must be provided for under the statute itself. We may immediately notice
the distinction between the power of the court exercised under Order IX,
Rule 7 of the Code of Civil Procedure vis-‘-vis Order IX, Rule 13 thereof.
Whereas while exercising its jurisdiction under Order IX, Rule 7 of the Code
of Civil Procedure, the court can impose conditions in regard to payment of
costs, but while exercising its power under Order IX, Rule 13 thereof, the
court can exercise a larger jurisdiction in the sense that it can impose other
conditions.
In Tea Auction Ltd. v. Grace Hill Tea Industry & Anr. [2006 (9)
SCALE 223], it was stated:
"Order IX Rule 13 of CPC did not undergo
any amendment in the year 1976. The High
Courts, for a long time, had been interpreting the
said provision as conferring power upon the courts
to issue certain directions which need not be
confined to costs or otherwise. A discretionary
jurisdiction has been conferred upon the court
passing an order for setting aside an ex parte
decree not only on the basis that the defendant had
been able to prove sufficient cause for his non-
appearance even on the date when the decree was
passed, but also other attending facts and
circumstances. It may also consider the question
as to whether the defendant should be put on
terms. The court, indisputably, however, is not
denuded of its power to put the defendants to
terms. It is, however, trite that such terms should
not be unreasonable or harshly excessive. Once
unreasonable or harsh conditions are imposed, the
appellate court would have power to interfere
therewith..."
Strong reliance has been placed by Mr. Viswanathan on Atma Ram
Properties (P) Ltd. v. Federal Motors (P) Ltd. [(2005) 1 SCC 705] wherein
Lahoti, CJ, speaking for a Division Bench of this Court, opined that
conditions may be imposed by the revisional court while granting stay.
There is no dispute with regard to the said legal proposition inasmuch as the
court can exercise such a power in terms of Order XLI, Rule 5 of the Code
of Civil Procedure or the provisions akin or analogous thereto. This Court
did not say that such conditions can be exercised while admitting a revision
petition.
However, we may notice that in Devi Theatre v. Vishwanath Raju
[(2004) 7 SCC 337], a Division Bench of this Court has clearly held:
"5. The learned counsel for the appellant submits
that appeal lies from every decree passed by any
court exercising original jurisdiction. The
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jurisdiction of the court in first appeal extends to
examine the questions of facts as well as that of
law. It is though true as pointed out by the learned
counsel for the respondent that under Order 41
Rule 11 CPC it would be open for the court to
dismiss the appeal in limine at the time of
admission but even examining the matter from that
point of view we find that the court while
considering the question of admission of appeal
filed under Section 96 CPC, may admit the appeal
if considered fit for full hearing having prima facie
merit. Otherwise, if it finds that the appeal lacks
merits, it may be dismissed at the initial stage
itself. But admission of the appeal, subject to
condition of deposit of some given amount, is not
envisaged in the provision as contained under
Section 96 read with Order 41 Rule 11 CPC. The
deposit of the money would obviously have no
connection with the merits of the case, which alone
would be the basis for admitting or not admitting
an appeal filed under Section 96 CPC. Further,
imposition of condition that failure to deposit the
amount, would result in dismissal of the appeal
compounds the infirmity in the order of
conditional admission.
6. It is a different matter, in case the appellant
prays for stay of the execution of the decree or for
any order by way of an interim relief during the
pendency of the appeal; it is open for the court to
impose any condition as it may think fit and proper
in the facts and circumstances of the case.
Otherwise imposing a condition of deposit of
money subject to which an appeal may be admitted
for hearing on merits, is not legally justified and
such order cannot be sustained."
It is, therefore, evident that while the court can impose conditions
while granting stay in exercise of its jurisdiction under Order XLI, Rule 5 of
the Code of Civil Procedure, it cannot pass any such order where the
appellate or revisional jurisdiction is to be exercised.
We may, however, hasten to add that by saying so, we do not mean
that the revision petitions are to be admitted as a matter of course. This
Court, while exercising its revisional jurisdiction, may also consider the
merit of the matter and may not admit the same. But, in any event, upon
application of mind, if the court comes to the conclusion that it is a fit case
where revisional jurisdiction should be exercised, in our opinion, no
condition therefor can be imposed. Such conditions, it will bear repetition to
state, can be imposed only when the court considers the question of grant of
stay.
For the reasons aforementioned, the impugned judgment cannot be
sustained and that part of the order whereby conditions have been imposed
for admission of the revision application is set aside. This appeal is allowed.
No costs.