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2003 DIGILAW 46 (AP)

D. Ram Mohan Rao v. Sridevi Hotels private Limited, Nizamabad

2003-01-09

L.NARASIMHA REDDY

body2003
L. NARASIMHA REDDY, J. ( 1 ) THIS Civil Revision Petition is filed by the defendant in O. S. No. 34 of 2002 on the file of the Additional District judge, Nizamabad, assailing the order of the Trial Court striking off his defence. For the sake of convenience, the parties are referred to as arrayed in the suit. ( 2 ) PLAINTIFFS 1 to 4 are the owners of hotel by name M/s. Sridevi Hotels Private limited, situated at Station Road, Nizamabad. They have leased the same to the defendant under lease deed dated 11- 4-2001. They cancelled the lease on the ground that the defendant had violated the conditions of lease. They filed OS No. 34 of 2002 before the Trial Court claiming the relief of recovery of possession as well as damages. ( 3 ) ALONG with the suit, the plaintiffs filed IA. No. 1894 of 2002 for a direction to the defendant to deposit the arrears of rent, which accumulated by that date to rs. 6,86,400/- and also for a direction to continue to pay the lease at the rate of rs. 10,400/- per day. After issuing notice to the defendant, the Trial Court passed the order on 29-7-2002 directing the defendant to deposit the rents at the rate of Rs. 5,200/- per day and to deposit the arrears calculated at that rate from 29-3-2002. ( 4 ) THE defendant filed CRP. No. 4021/ 2002 in this Court challenging the order in 1a. No. 1894 of 2002. After hearing the parties, this Court, through orders dated 12-9-2002, affirmed the order of the Trial court in IA. No. 1894 of 2002, except that the defendant was permitted to pay the arrears of rent as directed by the Trial court in two instalments payable on or before 12-10-2002 and 12-11-2002 respectively. ( 5 ) THE plaintiffs filed la. No. 296 of 2002. under Order XV-A read with section 151 CPC to strike off the defence of the defendant on the ground that he has not complied with the orders of the Trial court in IA. No. 1894/2002 as offirmed by this Court in CRP. No. 4021/2002. ( 6 ) THE defendant did not dispute the fact that he has not complied with the orders in IA No. 1894/2002. No. 1894/2002 as offirmed by this Court in CRP. No. 4021/2002. ( 6 ) THE defendant did not dispute the fact that he has not complied with the orders in IA No. 1894/2002. However, he has taken the plea that Order XV-A of CPC was only an amendment by the State of maharashtra and it has no application to the State of Andhra Pradesh. It was further contended that the inherent power under section 151 CPC cannot be invoked to strike off the defence. The Trial Court repelled the contention of the defendant and, through order under revision, has struck off his defence. Hence, the present CRP. ( 7 ) SRI M. S. Rarnchander Rao, learned counsel for the defendant submits that order XV-A has no application so far as the State of Andhra Pradesh is concerned and, as such, the very IA filed by the plaintiffs was not maintainable. So far as the inherent powers under Section 151 CPC are concerned, he submits that striking off the defence is provided for under specific provisions of CPC and that being the situation; inherent powers cannot be invoked for the same. He has relied upon the judgment of this Court in R. Ganga reddy v. P. Raghunatha Rcddy, AIR 1978 ap 457 . He submits that even if the defendant had committed any default, the only course open to the plaintiffs was to seek enforcement of the order in the IA, be it by way of execution under Order XXI of CPC or otherwise and the default by itself did not provide any basis for invocation of powers under Section 151 to strike off the defence. ( 8 ) SRI J. V. Suryanarayana, learned senior Counsel appearing for the plaintiffs, on the other hand, submits that there is no controversy that Order XV-A of CPC was the result of an amendment to CPC by the state of Maharashtra and it has no application to the State of Andhra Pradesh. He does not contradict the contention of the learned Counsel for the Petitioner in this regard. He, however, submits that section 151 of CPC confers inherent powers in the Courts and such powers are available to pass appropriate orders to prevent abuse of process of Court. He does not contradict the contention of the learned Counsel for the Petitioner in this regard. He, however, submits that section 151 of CPC confers inherent powers in the Courts and such powers are available to pass appropriate orders to prevent abuse of process of Court. He submits that with impunity the defendant had refused to comply with the orders of the trial Court as well this Court and, in a way, had abused the process of the Court. The learned Senior Counsel submits that the purpose of having a residuary provision like section 151 CPC is to meet the situation as in the present case. ( 9 ) THE fact that the defendant did not comply with the orders of the Trial Court in la. No. 1894/2002 as affirmed by this Court in CRP. No. 4021/2002 is not in dispute. The question is, as to whether, that by itself would enable the Court to strike off the 226 2003 (1 )ALD Feb. 1" defence. The plaintiffs have invoked two provisions before the Trial Court in support of their claim for striking off the defence, viz. . Order XV-A and Section 151 of CPC. ( 10 ) THE learned Counsel for the defendant submits that Order XV-A of CPC has no application to the State of Andhra pradesh and that Section 151 of CPC does not cover the situation as the present one. Since the learned Counsel for the plaintiffs fairly conceded that Order XV-A of CPC has no application in the State of Andhra pradesh, the only aspect that needs to be considered is as to whether it was compatible for the Trial Court to pass the order under Section 151 CPC. ( 11 ) THE learned Counsel for the defendant has extensively relied upon the judgment of this Court in Ganga Reddy s case (supra), Madhusudhan Rao, J. , after referring to the various provisions of CPC and. decided cases on the subject, held as under: "insofar as the Legislature has provided in order 11, Rule 21, the circumstances under which a defence may be struck out, it will not be possible for the Court to exercise inherent powers so as to extend the rule to cover circumstances not specified in the rule. Striking out a defence is an extreme step. It is penal and so it is specifically provided in the rule. Striking out a defence is an extreme step. It is penal and so it is specifically provided in the rule. That the step can be taken only for the disobedience of certain orders. By imposing this penalty in other cases not covered by the rule under the guise of the inherent powers, the Court would be investing in itself with a penal power not conferred on it by the statute. The inherent power of a Court can be exercised in procedural matters when there is no express provision of law applicable to the particular topic or subject. I am, therefore, unable to share the view expressed in the bombay case (supra) cited by the learned counsel for the respondent. " ( 12 ) THE learned Senior Counsel for the plaintiffs, on the other hand, submits that in view of the judgments of the Supreme Court in Ram Chand and Sons Sugar Mills v. Kanhayalal, AIR 1966 SC 1899 , and Vikas agarwal v. Anubha, (2002) 4 SCC 468 , the judgment in Ganga Reddy s case (supra) cannot be said to be the final one. ( 13 ) SECTION 151 CPC confers inherent powers in the Civil Courts. Though its text and scope are well known, for the sake of convenience, it is extracted hereunder:"nothing in this Code shall be deemed to limit or otherwise affect the inherent power of the Court to make such orders as may be necessary for the ends of justice or to prevent abuse of the process of the court. "fairly good number of precedents on CPC relate to the scope and ambit of this section. One of the most exhaustive consideration of this was by Subba Rao, J. , (as he then was) in Ram Chand and Sons sugar Mills s case (supra ). He observed as under:"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 provisions of the Code. 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. 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. " ( 14 ) IN fact this was extracted in the judgment in Ganga Reddy s case (supra ). It was, however, indicated that Order XI rule 21 CPC is the sole repository insofar as the power of the Court to strike off the defence is concerned and Section 151 is not at all available for the Courts to strike off the defence. The situations, which do not squarely fall under Order XI Rule 21 of cpc, were not at all considered. ( 15 ) IT can be said that CPC contains specific provisions touching on all aspects of cases ranging from presentation of plaints to execution of decrees. The specific provisions, however, stipulate certain prescribed norms. However, there may exist situations, that may warrant the Court to take a measure or step, which, incidentally may have been contemplated under certain provisions of CPC, but the situation containing such ingredients may not squarely fit into the relevant provision. For example, it may be found by the Court that having obtained an ex parte temporary injunction, the plaintiffs had entered the possession of suit schedule property, hitherto in the possession of the defendant and had caused loss to the latter. It can be argued that the temporary injunction can be discharged or set aside under Order XXXIX Rule 4 of cpc and at best, the defendant can file a suit to recover possession or to claim damages. In such situations, the Court can certainly pass appropriate orders to restore the parties to the situations that existed before the ex parte temporary injunction came to be granted. There can be myriad such situations. It is in this context that the Supreme Court in Ram chand and Sons Sugar Mills s case (supra) further held as under: "whatever limitations are imposed by construction on the provisions of Section 151 of the Code, they do not control the undoubted power of the Court conferred under Section 151 of the Code to make a suitable order to prevent the abuse of the process of the Court. " ( 16 ) IN Vikas Agarwal s case (supra), the Supreme Court dealt with the power of the Court to strike off defence in exercise of power under Section 151 CPC. There, the defendant did not appear before the court in spite of specific orders. The Delhi high Court struck off the defence in exercise of inherent powers. Just as it is contended on behalf of the defendant herein that there is a specific provision, viz. , order XXI for execution of the order in la. No. 1894/2002, it was pleaded before the Supreme Court that there are specific provisions to ensure the presence of the defendant. The contention was repelled and it was held that it was competent for the Trial Court to strike off the defence of the defendant, who does not comply with the orders of the Court. Reliance was placed on the judgment in Ram Chand and sons Sugar Mitis s case (supra ). In view of the same, the judgment of this Court in ganga Reddy s case (supra) cannot hold the field. ( 17 ) SRI Ramchander Rao, learned counsel for the defendant, is correct when he submits that the power under Section 151 cpc cannot be invoked to secure a relief or measure provided for by any other specific provisions of CPC. He is also correct in his submission that the only course open to the plaintiffs to ensure compliance with the order in la. No. 1894/2002 as affirmed by this Court in the CRP is to initiate execution under Order XXI of CPC. ( 18 ) IT, however, needs to be seen that by no means the trial had purported to execute the Order in IA No. 1894/2002 through the order under revision. Striking off defence by itself does not compel the defendant to pay the amount or enable the plaintiffs to recover the same without initiation of further proceedings. ( 19 ) ONE of the known circumstances to invoke or exercise the powers under section 151 of CPC is to prevent abuse of process of Court. In fact, Section 151 clearly spells out its avowed object, viz. , to prevent abuse of process of Court. What constitutes abuse of process of law, by its very nature, is too difficult to be defined. Any attempt to define may end up only in discussion or enlisting of illustrations. In fact, Section 151 clearly spells out its avowed object, viz. , to prevent abuse of process of Court. What constitutes abuse of process of law, by its very nature, is too difficult to be defined. Any attempt to define may end up only in discussion or enlisting of illustrations. As is the case with many legal concepts, this also depends on facts and circumstances of the case. One of the guiding factors can be to see whether a party to the proceedings had failed or refused to comply with his part of obligations while continuing to enjoy the corresponding benefit. ( 20 ) COMING to the facts of this case, after hearing both the parties, the trial Court as well this Court passed orders indicating the method of payment. The orders have become final. The enjoyment of the property by the defendant was subject to compliance with the said conditions. It was at his instance that instalments were granted and the claim of the plaintiffs as regards daily rent was slashed to half. The defendant just did not care to comply with the orders of this Court. In a way, he just ignored it. Unlike in inquisitorial proceedings, both the parties ln an adversarial litigation stand on similar footing in many respects. If the court could have non-suited the plaintiff for any default on his part, there is no reason why the defendant could be galvanized for all his defaults. ( 21 ) THEREFORE, the order of the Trial court cannot be found fault with on facts or in law. I do not see any error of jurisdiction and the CRP is accordingly dismissed.