SUPREME COURT OF INDIA
G.L. Vijain
Vs
K. Shankar
Civil Appeal No. 5183 of 2006
(S. B. Sinha and Markandeya Katju, JJ)
24.11.2006
S. B. SINHA, J.
1. Leave granted.
2. 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."
3. 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.
4. We are not concerned herein with the merit of the matter.
5. 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.
6. Mr. K.V. Viswanathan, learned counsel appearing on behalf of the 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.
7. 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, .
8. 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.
9. 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.
10. 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.
11. 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.
12. 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.
13. The expression 'ancillary' means aiding, auxiliary; subordinate; attendant
upon; that which aids or promotes a proceeding regarded as the principal.
14. 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 between
an incidental proceeding and a supplemental proceeding is evident.
15. 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.
16. In Narinder Mohan Arya v. United India Insurance Co. Ltd. and others,
, 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.)"
17. 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-a-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.
18. 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 pane 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..."
19. Strong reliance has been placed by Mr. Viswanathan on Atma Ram Properties
(P) Ltd. v. Federal Motors (P) Ltd., 8
wherein Lahoti, C.J., 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.
20. However, we may notice that in Devi Theatre.v. Vishwanath Raju, 2, 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
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."
21. 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.
22. 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.
23. 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.
J