Shanti Swaroop Jain v. Sagarmal Sharma — 1984 DIGILAW 215 (CAL)

ORDER Those two Rule are heard together in view of the order dated December 21, 1983 in C.R. No. 3662 of 1983 C.R. No. 3302 of 1983 is at the instance of the petitioner Shanti Swaroop Jain against the order dated September 24, 1983 passed by the learned Additional District Judge, 4th Court, Alipore in Misc. Appeal No. 406 of 1983 setting aside the order dated August 17, 1983 made by the learned Munsif, 5th Court, Alipore in Title Suit No. 517 of 1982. The petitioner Shanti Swaroop Jain is the defendant against whom the opposite parties Sargarmal Sharma and Gokulchand Sharma instituted a suit for eviction on the ground of default, reasonable requirement and cashing nuisance and annoyance Sagarmal Sharma and Gokulchand Sharma are petitioners in C.R. No. 3662 of 1983 and Shanti Swaroop Jain, the defendant, is the opposite party. The allegation the plaint is that the defendant Shanti Swaroop Jain was a monthly tenant in respect of the suit premises under the plaintiffs on a monthly rental of Rs. 300/- plus electric charges at the rate of Rs. 50/- per month. 2. The suit was instituted on October 10, 1982. The defendant appeared on December 12, 1982. On January 7, 1983 the defendant filed an application under Ss. 17(2) and 17(2A) (b) of the West Bengal Premises Tenancy Act (hereinafter referred to as the Act) contending that there was no relationship of landlord and tenant between the plaintiffs and the defendant. The defendant further contended that he was a monthly tenant under Messrs Sagarmal Gokalchand on a monthly rental of Rs. 300/- including electricity charges. The plaintiffs filed objection against the said petition denying the allegations. 3. On June 20, 1983 the defendant filed an application under Order 39 Rules 1 and 2 read with S. 151 of the Code of Civil Procedure alleging that the defendant along with three other tenants was being supplied with electricity from a meter No. 395046 standing in the name of Gokulchand Prodhan. The plaintiffs stopped payment of electric charges since November 1982 and the Calcutta Electric Supply Corporation Ltd disconnected the supply to the said meter on June 13, 1983. Immediately after the disconnection of the said meter, the plaintiffs have started supplying electricity to the three other tenants from other meters. The defendant is being deprived of electricity. The plaintiffs stopped payment of electric charges since November 1982 and the Calcutta Electric Supply Corporation Ltd disconnected the supply to the said meter on June 13, 1983. Immediately after the disconnection of the said meter, the plaintiffs have started supplying electricity to the three other tenants from other meters. The defendant is being deprived of electricity. The defendant thus prayed for mandatory injunction directing the plaintiffs to arrange for restoration of supply of electricity to the suit premises immediately. The plaintiffs objected to the said prayer and contended that the defendant's tenancy was determined and he was no longer a tenant of the suit premises and he was not entitled to mandatory injunction. Electricity is not an amenity attached to the tenancy. The electric meter belonged to Gokulchand Prodhan, a tenant of the plaintiffs, with whom the other tenants might have made arrangement for supply of electricity. 4. The learned Munsif after hearing the parties held that the landlord was under obligation to supply electricity till the defendant remained tenant which included statutory tenancy. The learned Munsif further held that supply of electricity was within the terms of tenancy upon payment of Rs. 50/- per month. The learned Munsif directed the plaintiffs to supply electricity to the defendant as before on and from 22.8.83 till the defendant got a meter and the defendant was directed to deposit a sum of Rs. 20/- for the month of August 1983 on account of electric charges and to deposit Rs 50/- per month till the date he got a connection. The plaintiffs preferred an appeal against the laid decision. The learned Additional District Judge came to the conclusion that the order of the learned Munsif was unsustainable for the fact that tile defendant did not admit the plaintiffs as landlords and the plaintiffs were under no obligation to supply electric energy to the defendant. The learned Judge has further observed that as long as the dispute as to the relationship of landlord and tenant is undecided, the plaintiffs cannot and should not be saddled with such a responsibility. The learned Judge further observed that he could not imagine that someone who was consuming electricity should go without the same. The learned Judge has further observed that as long as the dispute as to the relationship of landlord and tenant is undecided, the plaintiffs cannot and should not be saddled with such a responsibility. The learned Judge further observed that he could not imagine that someone who was consuming electricity should go without the same. The learned Judge was of the opinion that the defendant should be allowed to get electricity through the meter standing in the name of Gokulchand Prodhan on reconnection by clearing all outstanding dues of this meter and pay in each month all the charges of this meter to the Calcutta Electric Supply Corporation. The learned Judge made a further observation regarding the adjustment that if the defendant was found to be a tenant under the plaintiffs he was entitled to abatement of rent for a sum of Rs. 50/- per month from the monthly rental and he was entitled to recover the same from the landlord by a suit. With these observations the learned Judge allowed the appeal and dismissed the application for temporary mandatory injunction. The said order of the learned Judge has been challenged by both the parties. 5. Mr. Matilal, appearing on behalf of the defendant, has argued that the dispute between the parties was whether the rent was Rs. 300/- inclusive of electric charges as contended by the defendant or whether the rent was Rs. 300/- plus Rs. 50/-, as alleged by the plaintiffs. Mr. Matilal has contended that whatever might be the position, the fact remains that the defendant was being supplied with electricity before disconnection of the matter in question. The argument of Mr. Matilal is that the plaintiffs are claiming Rs. 50/- for electric charges will show that they are under an obligation to supply electricity to the defendant. It has been further argued that the learned Judge was wrong in holding that as the defendant's application under Ss 17(2) and 17(2A) of tile Act was pending, no order could be made. It has been further contended that the defendant has not proceeded under S 34 of the Act asking the landlord to restore connection of electricity. The application is an application under Order 39 Rules 1 and 2 read with S 151 of the Code of Civil Procedure for temporary mandatory injunction. It has been further contended that the defendant has not proceeded under S 34 of the Act asking the landlord to restore connection of electricity. The application is an application under Order 39 Rules 1 and 2 read with S 151 of the Code of Civil Procedure for temporary mandatory injunction. Referring to the case of Loken Bose v. Sm Ashima Dey & anr 1977(2) CLJ 69 , Mr. Matilal has argued that in a suit for eviction the power of the court to grant temporary mandatory injunction for restoration of essential services has not been fettered or restricted by the provisions of the Act Mr. Matilal has further contended that the materials on record will clearly show that Gokulchand Prodhan is no other than Gokulchand Sharma. 6. Mr. Bhattacharjee, learned Advocate for the plaintiffs, has argued that the application under Order 39 Rules 1 and 2 of the C.P. Code is not maintainable at the instance of the defendant in the present case. Mr. Bhattacharjee submits that Order 39 Rule 2 would clearly show that none but a plaintiff can apply under the said Rule for a temporary injunction. An regards Order 39 Rule 1, the argument of Mr. Bhattacharjee is that the defendant has no right to file application under the said Rule under clauses (b) and (c). The only clause under which a defendant may apply for temporary injunction is clause (a) of Order 39 Rule 1. The argument of Mr. Bhattacharjee is that in the instant suit the defendant's application does not come within the purview of clause (d) of Order 39 Rule 1 C.P. Code. The application of the defendant is thus not maintainable Mr. Bhattacharjee has further argued that in view of the specific provisions of Order 39 Rules 1 and 2 of the C.P. Code, no application under S 151 C.P. Code lies. The remedy of the defendant, according to Mr. Bhattacharjee, is to institute a suit for injunction against the plaintiff. In support of his contention that an application under S 151 C.P. Code does not lie, Mr. Bhattacharjee has referred to the decision in Fakira Mahatabji Maratha & anr. v. Mst. Ramsukibai AIR 1946 Nagpur 428. He has also referred to the case of Union of India & ors v. Sailendranath Chakraborty Thakur AIR 1966 Calcutta 603. As regards the decision in Loken Bose's case, Mr. Bhattacharjee has referred to the decision in Fakira Mahatabji Maratha & anr. v. Mst. Ramsukibai AIR 1946 Nagpur 428. He has also referred to the case of Union of India & ors v. Sailendranath Chakraborty Thakur AIR 1966 Calcutta 603. As regards the decision in Loken Bose's case, Mr. Bhattacharjee has contended that in this decision the question whether an application for temporary injunction lies at the instance of the defendant in the circumstances of the said case was not considered and as such the said case is not an authority for the said proposition of law Mr. Bhattacherjee has further contended that as the relationship of landlord and tenant is pending decision of the learned court, no order can be made upon the plaintiffs regarding the restoration of electric supply. 7. Mr. Matilal has referred to the case of Manoharlal Chopra v. Raju Sheth Hiralal AIR 1962 Supreme Court 527 and has argued that S 151 C.P. Code lies. Mr. Bhattacharjee has referred to the case of Messrs Ramchand & Sons Sugar Mills Pvt. Ltd. v. Kanhaiyalal Bhargava AIR 1966 Supreme Court 1899 and contends that S. 151 of the C.P. Code does not lie. 8. It appears that the learned Judge has not property considered the points involved in the appeal. The learned Judge has dismissed the application for temporary injunction only on the ground that as the defendant does not admit the plaintiffs as landlords they are not under any obligation to supply electrical energy to the suit premises and as long as this dispute as to relationship of landlord and tenant remains undecided, they cannot be and should not be saddled with such a responsibility. The application filed by the defendant is not under S 34 of the Act. Had the application been one under S 34 of the Act, the reason advanced by the learned Judge could have been relevant. The plaintiffs have instituted the suit against the defendant for eviction. The defendant has filed an application for temporary mandatory injunction asking the plaintiffs to restore supply of electricity alleged to have been disconnected by the plaintiffs. The learned Munsif has considered the application on merits. The learned Judge has not at all considered the other relevant factors. The plaintiffs have instituted the suit against the defendant for eviction. The defendant has filed an application for temporary mandatory injunction asking the plaintiffs to restore supply of electricity alleged to have been disconnected by the plaintiffs. The learned Munsif has considered the application on merits. The learned Judge has not at all considered the other relevant factors. The observation of the learned Judge that he cannot imagine that someone who used to consume electrical energy should go without the same and should be permitted to have electricity though a meter not standing in his name is wholly irrelevant. 9. In Manohar Lal Chopra's case AIR 1962 Supreme Court 527 it has been held that S 151 C.P. Code itself says that nothing in the Code shall be deemed to limit or otherwise affect the inherent power of the Court to make orders necessary for the ends of justice. In the face of such a clear statement it is not possible to hold that the provisions of the Code control the inherent power by limiting or otherwise affecting it. The inherent power has not been conferred upon the Court; it is a power inherent in the Court by virtue of its duty to do justice been the parties before it. It has been further held that when the Code itself recognises the existence of the inherent power of the Code, there is no question of implying any power outside the limits of the Court. 10. This decision was considered in Ramchand's case in AIR 1966 Supreme Court 1899. It has been held in this decision that the inherent power of a Court is in addition to and complementary to the powers expressly conferred under the Code. But that power will not be exercised if its exercise IS inconsistent with, or comes into conflict with, any of the powers expressly or by necessary Implication conferred by the other provision, of the Code. It has been further held that if there are express provisions exhaustively covering a particular topic, they give rise to a necessary implication that no power shall be exercised in respect of the said topic otherwise than in the manner prescribed by the said provisions. It has been further held that if there are express provisions exhaustively covering a particular topic, they give rise to a necessary implication that no power shall be exercised in respect of the said topic otherwise than in the manner prescribed by the said provisions. This decision further lays down that whatever limitations are imposed by construction on the provisions of S 151 of the Code, they do not control the undoubted power of the Court conferred under S 151 of the Code to make a suitable order to prevent the abuse of the process of the Court. 11. Even if it be considered that the application of the defendant does not specifically come under Order 39 Rules 1 and 2 of the Code, the Court has jurisdiction under S. 151 C.P. Code to make orders fur the ends of justice or to prevent the abuse of the process of the Court. In the instant case, the plaintiff, have not only claimed the rent but they have also claimed Rs. 50/- as electric charges. This would obviously imply that the plaintiffs were supplying electricity to the defendant. The defendant alleges that the said supply of electricity has been disconnected and the defendant thus prays for a temporary mandatory injunction for direction upon the plaintiffs to restore the electric connection. Mr. Bhattacharjee has submitted that the defendant may institute a suit for that purpose. When the suit is pending between the parties, it will not be in the interest of justice to institute a suit only for the purpose of reconnection of electrical energy particularly when the question whether the rent includes electric charges is pending decision in the present suit. 12. In the circumstances, the application of the defendant is maintainable and the learned Judge ought to have considered the appeal on merits. There was jurisdictional error on the part of the learned Judge and his order cannot thus be maintained. The appeal should be sent back to the learned Judge for rehearing on merits. 13. The order of the learned Additional District Judge is set aside and the appeal is sent back to the learned Judge for rehearing in accordance with law in the light of the observations made in this judgment. There will be no order as to costs. Let the records be sent below forthwith. The Rules and the application are thus disposed of. There will be no order as to costs. Let the records be sent below forthwith. The Rules and the application are thus disposed of. Order set aside ; appeal remitted to lower appellate court.