Premwati v. Vlth Addl. District Judge — 1986 DIGILAW 711 (ALL)

JUDGMENT B.L. Loomba, J. - Petitioner Smt. Premwati seeks to challenge the order dated 10.3.86 passed by the then VI Addl. District Judge, Hardoi, Sri Ram Kishore, whereby the application of opposite party No. 2 Sob a Ram, in Misc. Case No. 1 of 1986 was allowed and the Petitioner was directed to deliver back the possession of the disputed shop within specified time failing which the possession of the shop shall be delivered to the opposite-party Sobha Ram through court. Respondent No. I Sobha Ram alone is contesting this Writ Petition, the Respondents 3 to 5 are sons and daughters of Petitioner Smt. Premwati. 2. The impugned order is a reasoned order giving out detailed facts pertaining to the controversy. Petitioner Smt. Premwati's late husband Chet Ram was admittedly the tenant of the shop in question while Respondent No. 2 Sobha Ram was his sub-tenant. Petitioner purchased the shop in the year 1962 and after the death of her husband in the year 1982 she filed Small Causes Suit No. 64 (w /82) seeking eviction of Sobha Ram and Respondents 3 to 5, her sons and daughters. The suit was decreed by Munsif East, Hardoi. by his judgment dated 24.1.86. Copy of judgment has not been filed by either party. However, at the time of the hearing of the writ petition a certified copy of the moment in the suit has been made available by the learned Counsel for the Petitioner. A perusal of the judgment would indicate that one of the pleas raised by Sobha Ram in contest of the suit was that the sale deed in favour of Petitioner Smt. Premwati was Benami and her husband Chet Ram was in fact the true purchaser. A plea also raised that in any case Chet Ram was acting as agent of his wife and was the main functionary. Chet Ram had filed a suit against Sobha Ratn being Suit No. 75 of 1978. Papers relating to this suit (Suit No. 75 of l978) have not been produced on record by either party. From the judgment of aforesaid Small Cause Suit No. 64 (w/82) dated 24.1.86, it, however, appears that there was some partnership deed between Chet Ram and Sobha Ram and Chet Kam had claimed rendition of accounts. Papers relating to this suit (Suit No. 75 of l978) have not been produced on record by either party. From the judgment of aforesaid Small Cause Suit No. 64 (w/82) dated 24.1.86, it, however, appears that there was some partnership deed between Chet Ram and Sobha Ram and Chet Kam had claimed rendition of accounts. Eventually, the suit was decided through compromise, according to which Chet Ram was no more a partner m the business and was entitled only to get rent from Sobha Ram. It is un disputed that till the time of his death Chet Ram bad been receiving rent from Sobha Ram. Learned Counsel for the Respondent argues that initially the rate of rent payable to the arts-while owners ot the shop was Ks. 60/- per month but as a result of compromise decree in suit No. 7 of 1978, rate of rent was increased from Rs. 60/- to Rs. 100/- per mon In any case, the substance of the plea of Sobha Ram was that he was occupation of the shop in question in the capacity of tenant and not unauthorised sub-tenant who could be liable to be evicted by petition Smt. Premwati. Since this controversy is the subject matter of decision civil revision u/s 25 of the Small Cause Courts Act, pended before the District Judge, I refrain from making any observations as to try merits or otherwise ot the pleas raised by Sobha Ram. As is mention above, Petitioner's suit for eviction of Sobha Ram was decreed. Other respondents, namely, the sons and daughters of the Petitioners did not conte the suit. Sobba Kam was obviously in exclusive physical possession of to shop and the eviction decree for all practical purposes was operating one against Sobha Ram. 3. Now, about the developments which have direct bearing on the writ petition. After the suit was decreed on 24.1.86, the petition is said to have obtained possession over the shop as against. the Defendants-Respondents 2 to 5. A copy of the Dakhalnama dated 25.1.has been filed as annexure 3 to this writ petition. According to the contain of this Dakhalnama, possession over the shop was delivered to the petioner, not only on behalf of Petitioner's sons and daughter but also Sobha Ram who was described as sub-tenant. the Defendants-Respondents 2 to 5. A copy of the Dakhalnama dated 25.1.has been filed as annexure 3 to this writ petition. According to the contain of this Dakhalnama, possession over the shop was delivered to the petioner, not only on behalf of Petitioner's sons and daughter but also Sobha Ram who was described as sub-tenant. It was mentioned that act possession was removed by the Defendant-judgment-debtors and actus possession was taken by Petitioner and a lock was placed. The Dakbal nama contains the signatures of Respondents 3 to 5. the sons and daughter of the Petitioner and that of three witnesses, the time of the delivery of the possession has been mentioned to be 8 a.m. On 25.1.86 Respondent Sobha Ram moved an application before the Musif East who in exercise of powers under the Provincial Small causes Courts Act had decreed the suit on 24.1.86. On the same day delivery of possession was stayed for one month by that court. 4. Sobha Ram filed revision petition u/s 25 of the Provincial Small Cause Courts Act against the judgment and decree dated 24.1.86 and moved an application dated 13.2.84, Under Sections 94 and 151 of the Code of Civil Procedure; copy of this application is annexure 4, to the writ petition. It is in disposal of this application that the impugned order annexure 1 was passed. Through the application Under Sections 94 and 151 of the Code it was submitted that the judgment was delivered at about 4 p.m. on 24-1-86 and the next day he moved the trial court and the delivery of possession was stayed for one month. On 31.1.86 revision petition was filed and on the same day delivery of possession was stayed by the District Judge and that the Petitioner Smt. Premwati and her sons had full knowledge of the stay orders dated 25.1.86 and 31.1.86. It was alleged that on 10.2.86 he was forcibly evicted from the shop and the articles in the shop valuing over Rs. 15,000/- were thrown out. The details of the articles have been given in the list appended to the application dated 13.2.86. Petitioner Smt. Premwati filed objections against this application, copy whereof Annexute-5 is. It was alleged that on 10.2.86 he was forcibly evicted from the shop and the articles in the shop valuing over Rs. 15,000/- were thrown out. The details of the articles have been given in the list appended to the application dated 13.2.86. Petitioner Smt. Premwati filed objections against this application, copy whereof Annexute-5 is. It was asserted in this objection, vide paragraph 3 thereof, that the possession over the shop was taken by the Petitioner on 25.1.86 at 8 in the morning with the consent of Sobha Kam and that Sobha Ram was subsequently instigated by other persons and he came forward to make false allegations about his forcible eviction on 10.2.86 despite the stay orders dated 25.1.86 and 31.1.86. Respondents 2 to 4 also filed their reply, copy being annexure 6 to this writ petition. They have also asserted that Sobha Ram had delivered possession of the shop to the Petitioner on 25.1.86. It is also to be noted that Sobha Ram had made an application before the ial court on 30.1.86 that the Petitioner was making attempts on 26.1.86 to t lock over the shop forcibly and he had sought the intervention of the police d that the police had taken the key of the shop but eventually refused stove it back, copy ot this application is annexure 7. Annexure 8 is the copy f the report of the station officer denying the allegations about taking key f the shop stating that Sobha Ram had approached the police on 27.1.86 aging that he had obtained a stay order from the trial court on 25.1.86 but copy of the stay order was under preparation and could not become available to him. It was also mentioned that the lock of the Petitioner was found in the shop on 26.1.86. 5. The learned Additional District Judge upon consideration of the material placed before it came to the conclusion that the Petitioner instead of taking recourse to the lawful process of execution of decree through the court obtained possession of the shop as against her own children on the very next day of the delivery of the judgment. He disbelieved the contention of the Petitioner that the contesting Defendant Sobha Ram had also delivered possession of the shop to the Petitioner. He disbelieved the contention of the Petitioner that the contesting Defendant Sobha Ram had also delivered possession of the shop to the Petitioner. It was noticed that the Dakhalnama did not contain signatures of Sobha Ram and his conduct in seeking stay of the execution of the decree on 25.1.86 and filing revision u/s 25 of the Provincial Small Cause Courts Act and obtaining stay order from the revisional court indicated that there was no question of his handing over the possession willingly. Learned Additional District Judge observed that the transaction of delivery of possession underlying the Dakhalnama dated 25.1.86 is fictitious document in so far as Respondent Sobha Ram is concerned. The plea that Sobha Ram could have recourse to Section 144 of the CPC in the event of his success in the revision petition was rejected and the learned Additional District Judge observed that it was proper and just to allow the application and put the Respondent in possession of the shop and accordingly passed the impugned order. 6. In so far as factual assessment made by the learned Additional District Judge is concerned, the same appears to be well founded and in the totality of circumstances it appears that Sobha Ram had not delivered possession of the shop to the Petitioner on 25.1.86 at 8 a.m. as represented in the Dakhalnama relied upon by the Petitioner. The fact that Sobha Ram approached the trial court the very next day and obtained stay order clearly shows that he intended to contest the matter. Had he delivered the possession willingly on 25.1.86 there is no reason why his signatures were not obtained on the Dakhalnama and that should be sufficient to accept his contention and discard the Petitioner's plea in that behalf. The question then is whether the learned Additional District Judge had no jurisdiction to pass the impugned order as is argued on behalf of the Petitioner. Attention has been drawn to Sections 4 and 33 of the Provincial Small Cause Courts Act. According to Section 4 of this Act a court of Small Causes constituted Under this Act and includes any persons exercising jurisdiction under this Act in any such court. Attention has been drawn to Sections 4 and 33 of the Provincial Small Cause Courts Act. According to Section 4 of this Act a court of Small Causes constituted Under this Act and includes any persons exercising jurisdiction under this Act in any such court. Section 33 of this Act provides that a court exercising jurisdiction under the Small Cause Courts Act and the same court with respect to the exercise of jurisdiction in suits of civil nature shall be different courts with reference to Section 7 of the CPC it has been pointed out that Section 94(e) which empowers a Court from making an interlocutory orders has been expressly excluded from application to courts under the Small Cause Courts Act. The impugned order is obviously an interlocutory order and as such the contention of the learned Counsel for the Petitioner has to be upheld that the Additional District Judge had no jurisdiction to invoke the provisions of Section 94 of the CPC in passing the impugned order of delivery of possession. 7. In so far as the application of Section 151 of the CPC is concerned, the basic contention raised is that the court of Ad District Judge while exercising revisional powers u/s 25 of the Provincial Small Cause Courts Act is not a civil court and that the power u/s 151 of the CPC is an inherent power which can be exercised only by Ca Courts. Reference has been made to Section 33 of the Provincial Small Ca Courts Act which lays down that a court invested with the jurisdiction of Court of Small Causes and the same court with respect to the exercise of i jurisdiction in suits of a civil nature which are not cognizable by a Court c Small Causes, shall, for the purpose of this Act and the Code of Civil Procedure, be deemed to be different courts. This section has to be read along with Section 17 of the Provincial Small Cause Courts Act which clearly provides that the procedure prescribed in the Code of Civil Procedure, shall, save in so far as is otherwise provided by that Code or by this Act, be the procedure followed in the Court of Small Causes in all suits cognizable by it and in all proceedings arising out of such suits. Section 151 of the CPC has not been excluded from its application to proceedings under the Provincial Small Cause Courts Act. Normally speaking, it should be open to the Small Causes Courts to invoke Section 151 of the Code and exercise inherent powers in suitable causes. The argument of the peutioner's learned Counsel in this connection, however, is that Section 151 of the code does not fall within the scope of procedure and this section confers substantive powers on the Civil Courts and for that reason Section 17 of the said Act cannot be pressed in service for invoking powers u/s 151 of the Code of Civil Procedure. 8. Petitioner's learned Counsel has placed reliance on two decisions of the Supreme Court, the first being the State of West Bengal v. Indira Debi, (1977) 3 SCC 559 . The matter related to validity of notice issued u/s 57 of the West Bengal Estates Acquisition Act, 1954. Their Lordships of the Supreme Court decided that reference to Section 151 CPC cannot be a source of power so far as notice under the said Act is concerned. It was observed that Section 151 of the CPC does not confer any additional jurisdiction on the court and in so far as civil courts are concerned they have their inherent powers recognised by Section 151 Code of Civil Procedure. Another decision relied upon is Padam Sen and Another Vs. The State of Uttar Pradesh, AIR 1961 SC 218 it related to the appointment of a commissioner for the purposes of seizing the account books of the Plaintiff. The plea raised was that the power of civil court to issue a commission is limited by the provisions of Section 75 and Order 36 of the Code of Civil Procedure. Their Lordships of the Supreme Court held that the inherent powers saved by Section 151 of the code are with respect to the procedure to be followed by the court in deciding the cause before it. These powers are not powers over the substantive rights which any litigant possesses. An other decision relied upon is Zakeria Suleman Vs. Their Lordships of the Supreme Court held that the inherent powers saved by Section 151 of the code are with respect to the procedure to be followed by the court in deciding the cause before it. These powers are not powers over the substantive rights which any litigant possesses. An other decision relied upon is Zakeria Suleman Vs. The Collector, Yeotmal and Others, AIR 1963 Bom 233 , in which it was held that inherent powers u/s 151 of the CPC can only be implied in civil courts having general jurisdiction, but where special authorities are constituted under a special statute and for special object it is not possible to imply inherent powers in them. The matter related to the power of Rent Controller to dismiss the proceedings for default and then to have the power to restore the same. It was held that the Rent Controller could not invoke inherent powers to set aside the order which indirectly would have the effect of reviewing his order for which again there were no powers with him. 9. Ramkarandas Radhavallabh Vs. Bhagwandas Dwarkadas, AIR 1965 SC 1144 relate to exercise of inherent powers to set aside a decree. It was held that since express provision for setting aside a decree is contained in Order 37 of the code, there is no scope to resort to Section 151, of the CPC for setting aside such decree. None of these rulings has direct application to the facts herein. 10. As against this, learned Counsel for the Respondent has placed reliance on the Supreme Court decision in Jaipur Mineral Development Syndicate, Jaipur Vs. The Commissioner of Income Tax, New Delhi, AIR 1977 SC 1348 . This case has no direct application because the question involved was one of exercise of inherent powers by the High Court in a matter relating to an appeal against an order refusing to entertain an application for re-hearing the reference u/s 66 of the Income Tax Act. The Commissioner of Income Tax, New Delhi, AIR 1977 SC 1348 . This case has no direct application because the question involved was one of exercise of inherent powers by the High Court in a matter relating to an appeal against an order refusing to entertain an application for re-hearing the reference u/s 66 of the Income Tax Act. It was held that the courts have powers in the absence of any express or implied prohibition to pass an on er as may be necessary for the ends of justice or to prevent the abuse of the process of the court and to hold otherwise would result in a quite a number of cases in gross miscarriage of justice Another case relied by the Respondent's counsel is Sujit Pal v. Prabir Kumar Sen AIR 1966 Cal 220. This related to exercise of powers u/s 151, of the CPC and the observation made was that no technicalities can prevent the court from doing justice in exercise of inherent powers. 11. The next case relied was Ahmad Abdul Sukkoor v. Vallabhdas Kami Firm AIR 1950 Mad. 219 . This related to insolvency proceedings and it was held that the word " Court " used in Section 151 Code of CPC is not restricted to High Court. It is wide enough to include any court under the code. The next case relied upon is Abdul Shakoor v. Lateef Uddin, 1976 AWC 288 That was a case relating to the U.P. Cantonments (Control of Rent and Eviction) Act. It was held that a court passing an ex prate order for eviction under the Act has powers to set aside the order under its inherent powers and direct restoration of possession to the tenant who had been evicted under the exparte order. Ram Lai v. Ram Narain 1953 AWR 143 Lucknow Bench was a Full Bench decision. The case related to orders passed by a Sales Officer under the provisions of U.P. Tenancy Act. It was held that the powers vested in courts u/s 151, Code of Civil Procedure, is applicable to the proceedings in execution before the Revenue court as well. It was mentioned that Schedule II, U.P. Tenancy Act does not exclude Section 151, CPC from the application to proceedings in the Revenue courts under that Act. It was held that the powers vested in courts u/s 151, Code of Civil Procedure, is applicable to the proceedings in execution before the Revenue court as well. It was mentioned that Schedule II, U.P. Tenancy Act does not exclude Section 151, CPC from the application to proceedings in the Revenue courts under that Act. Section 151, CPC gives inherent powers to courts to make such orders as may be necessary in the ends of justice or to prevent abuse of the process of the court and that the Sale Officer had power to pass suitable orders in the ends of justice. 12. After careful consideration of the matter as a whole, it is difficult to agree with the proposition that a District Judge in exercise of revisional powers u/s 25 of the Provincial Mnall Cause Courts Act. is not a court within the meaning of Section 151, Code of Civil Procedure, and not competent to invoke powers contained in the said Section 1H in suitable Cases. The word " Court " has not been defined but obviously it includes every court under the code ; that the court of a District Judge while hearing revision under the said Section 25 is a court under the CPC does not appear to be in doubt. Even Small Causes Court would be a court under the code. Section 7 of the code and Sections 17 and 33 of the Provincial Small Cause Courts Act will clearly hold out this position. The provisions of CPC which cannot;. be applied to proceedings under the Provincial Small Cause Courts Act have been expressly excluded by Section 7 of the Code of CPC meaning thereby tnat all the remaining provisions of the CPC are applicable to the proceedings under the Small Cause Courts Act. Whatever be the nature of powers u/s 151 of the code they apply in the same way to the proceedings under the Small Cause Courts Act as they apply to any other proceedings before the civil court. 13. It may be noticed that Section 25 of the Small Cause Courts Act confers the powers of revision on the High Court against the decree and orders made by the Small Causes Court It is only through U.P. Amendment that in certain categories of suits revisional powers are vested in the District Judge which includes an Additional districts Judge. 13. It may be noticed that Section 25 of the Small Cause Courts Act confers the powers of revision on the High Court against the decree and orders made by the Small Causes Court It is only through U.P. Amendment that in certain categories of suits revisional powers are vested in the District Judge which includes an Additional districts Judge. The High Court has obviously an inherent power u/s 151 of the Code of Civil Procedure. Likewise the District Judge (or Additional District Judge) while exercising powers u/s 25 of the Provincial Small Cause Courts Act, shall be a court and as such empowered to exercise powers u/s 151, Code of Civil Procedure. The learned Counsel for the Petitioner could not refer to any provision of the Small Cause Courts Act which expressly empowers a Small Causes Court or revisional court to deal with the situation of the type with which the Additional District Judge was concerned in this case. When Section 151, Code of CPC has not been excluded from application to proceedings under the Small Cause Courts Act, it is obviously not open to argument that Section 151 of the code deals with inherent powers of the court while only the procedural provisions of the code can apply to proceedings under the Small Cause Courts Act. Section 151, CPC in fact does not clothe a civil court with inherent powers, it merely saves inherent powers which every court possess to make orders necessary for the ends of justice or to prevent abuse of the process of the court. These inherent powers are in addition to the powers specially conferred on the court and are complimentary to such powers. 14. In Chandra Kishore and Others Vs. Nanak Chand and Others, AIR 1975 Delhi 175 it was held that inherent powers of court u/s 151 of the code are not restricted by Section 94 of the code. Reliance was placed for this proposition on the decision of the supreme Court in Manohar Lal Chopra Vs. Rai Bahadur Rao Raja Seth Hiralal, AIR 1962 SC 527 and Arjun Singh Vs. Mohindra Kumar and Others, AIR 1964 SC 993 . 15. Reliance was placed for this proposition on the decision of the supreme Court in Manohar Lal Chopra Vs. Rai Bahadur Rao Raja Seth Hiralal, AIR 1962 SC 527 and Arjun Singh Vs. Mohindra Kumar and Others, AIR 1964 SC 993 . 15. The Kerala High Court in the Deputy Conservator of Forest Nemmara v. K.S. Sarojini AlR 1981 Ker 44, held that inherent jurisdiction u/s 151 of the CPC is available even to Tribunals of limited midsection That was a case relating to the powers of a District Judge to pass interlocutory order in appeal under the Kerala Forest Act. 16. In view of the above, it is clear that a District Judge acting u/s 25 of the Provincial Small Cause Courts Act exercise powers only as court of law and not as a persona designate. All the provisions of the CPC excepting those which are expressly excluded by Section 7 of the code are available for purposes of revision proceedings under said section. If the Legislature intended that Section 151 of the code containing inherent powers was not available for exercise with respect to the proceedings under the Small Cause Courts Act, this section would also have been expressly excluded for the purpose u/s 7 of the code. As mentioned above, Section 151 of the code does not confer any new powers, it only declares to protect inherent powers which every court possesses for exercise for the ends of justice or to prevent the process of the court, A court exercising powers u/s 25 of the Small Cause Courts Act would be a court for the purposes of Section 151, of the code. The Additional District Judge recorded twilit the decree-holder Petitioner obtained possession without putting the decree in execution and took forcible possession as against the contesting Respondent under the cover of fictitious Dakhaluama and on that basis considered it necessary to pass the impugned order for the ends of justice. There is nothing to differ from the finding of the learned District Judge and the impugned order appears proper and justified. The court had power and jurisdiction to pass the order invoking inherent jurisdiction u/s 151 of the Code of Civil Procedure. 17. This petition lacks merit and no case has been made out for interference under Article 226 of the Constitution of India. I8. The writ petition is dismissed. Stay order is vacated. The court had power and jurisdiction to pass the order invoking inherent jurisdiction u/s 151 of the Code of Civil Procedure. 17. This petition lacks merit and no case has been made out for interference under Article 226 of the Constitution of India. I8. The writ petition is dismissed. Stay order is vacated. No order as to costs.