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Whether court can direct tenant to deposit rent amount

in court under inherent powers


U/S 151 of CPC?

The attempt was made on the part of


the learned counsel to contend that if
the landlord-plaintiff is not getting
any amount and the defendant is
enjoying the property, it would cause
great injustice pending the
proceedings and the suit may take
long time for its decision and
therefore, the power could be
exercised under Section 151 of CPC.
9. In my view, the process of law in the
normal circumstance as is applicable
to any property under the Transfer of
Property Act should be the same either
eviction or recovery of the rent or for
recovery of possession. It is true, if the
decree is to remain as the paper
decree, there are express provisions
made under CPC to protect the
interest of the plaintiff but, such is not
the situation in the present case nor
such power of the Court was invoked.

The power under Section 151 as observed earlier, cannot be


exercised in absence of substantive statutory provision
available under Transfer of Property Act or in absence of
express provision made authorizing Court or the mechanism
to direct the lessee to deposit the amount.

IN THE HIGH COURT OF


KARNATAKA AT BENGALURU
Writ Petition No. 44943/2016 (GM-
CPC)
Decided On: 20.10.2016

B.V. Nagakannika
Vs.

Dastagir S. Haroon

Hon'ble Judges/Coram:

Jayant M. Patel, J.

Citation:AIR 2017 Karnat 48

1. The present petition is directed


against the order dated 28.3.2016
passed by the Lower Court whereby
the Lower Court has declined to pass
the order below the interim
application under Section 151 of CPC
to direct deposit amounting to Rs.
1,89,750/- along with the damages at
the rate of Rs. 20,000/- per month.
2. I have heard Mr. R.B.
Sadashivappa, learned counsel for the
petitioner.
3. The contention raised on behalf of
the petitioner is that, Karnataka Rent
Act, 1999 is not applicable since the
rental amount is exceeding the limit
prescribed for application of the Rent
Act. Therefore, it should be covered by
the Transfer of Property Act. The suit
was for recovery of amount of arrears
of rent and for eviction and the said
suit is pending since 2014. It was
submitted that the landlord-plaintiff is
not getting any rental and the
tenant/lessee is enjoying the
possession. Therefore, the application
was moved to the trial Court for
directing to deposit the amount under
Section 151 of CPC but, the trial Court
has declined to pass the order and has
rejected the application. Under the
circumstances, this writ petition.
4. The learned counsel in furtherance
of his submission relied upon a
decision of this Court in case of M/s.
Bangalore Builders (P) Ltd., v. P.P.
Anthony and others reported atILR
1978 (KAR) 782 and he contended
that in the said matter, defence was
struck down for non-deposit of
amount pursuant to the order of the
Court. This Court did not interfere
with the order of Lower Court for
striking of the defence passed in
exercise of power under Section 151 of
the CPC.
5. He submitted that, in the said case,
the Court had earlier passed the order
to deposit the amount of rent against
the lessee and therefore, by necessary
implication it can be said that order
under Section 151 could also be
passed for directing the Lessee to
deposit the amount of arrears of rent
and the regular payment of rent. He
therefore submitted that, this Court
may consider this aspect.
6. I may at the outset record that the
scope of judicial review under Article
227 of the Constitution would be
limited to error of law or the error in
exercise of the jurisdiction or
perversity in exercise of power or there
is gross miscarriage of justice.
7. All the aforesaid needs to be
considered in light of the provisions of
the Transfer of Properties Act read
with the powers of the Civil Court
under Section 151 of CPC. It is
admitted fact that, the suit is filed
under the Transfer of Property Act. It
is also admitted fact that on account
of non-payment of the lease rent of the
contract, lease was terminated and
the suit is filed for eviction and vacant
possession as well as for the amount
of lease rent and the damages are also
claimed. Be it recorded that it is not a
matter under the Karnataka Rent Act
or any Rent Act where the provision is
made to the effect that so long as the
tenant is ready and willing to pay
regular rent, no eviction can be made
by the landlord. But it was a matter
under the Transfer of Property Act. So
far as Rent Act is concerned, there is
an express provision of Sec. 45
enabling the landlord to move the
Court and also to enable the Court to
pass the order directing to deposit the
amount by defendant-tenant pending
the suit. Under the Transfer of
Property Act, there is no such
provision. As such, if there is no
mechanism provided under the
Transfer of Property Act to direct the
lessee to deposit the amount of arrears
of rent or damages, such power to the
Court would be unavailable. The
attempt to contend that such power
can be traced from Section 151 of CPC
even if considered for the sake of
examination cannot be accepted for
two reasons; One is that, it is by now
well settled that the power under
Section 151 of CPC cannot be
exercised de hors the express
provision under the Transfer of
Property Act. Another is that, power
under Section 151 can be applied only
by way of residuary power and not as
if a substantive power of the Court.
However, if the Court finds that there
is abuse of Court process, the Court
may be called upon to invoke the
power under Section 151 of CPC.
8. The attempt was made on the part
of the learned counsel to contend that
if the landlord-plaintiff is not getting
any amount and the defendant is
enjoying the property, it would cause
great injustice pending the
proceedings and the suit may take
long time for its decision and
therefore, the power could be
exercised under Section 151 of CPC.
9. In my view, the process of law in the
normal circumstance as is applicable
to any property under the Transfer of
Property Act should be the same either
eviction or recovery of the rent or for
recovery of possession. It is true, if the
decree is to remain as the paper
decree, there are express provisions
made under CPC to protect the
interest of the plaintiff but, such is not
the situation in the present case nor
such power of the Court was invoked.
10. The power under Section 151 as
observed earlier, cannot be exercised
in absence of substantive statutory
provision available under Transfer of
Property Act or in absence of express
provision made authorizing Court or
the mechanism to direct the lessee to
deposit the amount. I leave it at that
without making any further
observation for other mode and
mechanism which may be resorted to.
11. Under these circumstances, it is
not a matter of error of law nor it is a
matter of error of jurisdiction which
may call for interference under Article
227 of Constitution. When no express
power is available under the statute,
the learned Judge has not resorted to
any power under Section 151 CPC
which otherwise also cannot be
invoked for issuance of such direction.
It cannot be said that there is any
perversity in exercise of discretion or
that any great injustice would be
caused if there is failure of exercise of
power.
12. The decision of this Court in case
of M/s. Bangalore Builders (Supra)
upon which the reliance has been
placed by the learned counsel for the
petitioner is ill-founded because in the
said case, the question arose before
the Court was as to whether a defence
can be struck down under Section 151
CPC if there is already an order passed
by the Court directing the tenant-
lessee to deposit the amount. Such are
not fact situation in the present case
in as much as, there is no order
passed by the Court nor there is any
question for striking of the defence but
in the present case, Court has
declined to pass the order directing
the lessee to deposit the amount
pending the proceedings of eviction.
13. In view of the aforesaid, I do not
find any case is made out for
interference under Article 227 of the
Constitution.
Hence, petition is dismissed.

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