Vs. K. Shankar  Insc 859 (24 November 2006)
Sinha & Markandey Katju
out of SLP (C) No. 23738 of 2004) S.B. SINHA, J.
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:
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." 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.
not concerned herein with the merit of the matter.
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.
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:
powers are implied and, thus, there need not be any express provision in this
statute can never be exhaustive and, thus, the court can exercise its inherent
High Court's jurisdiction being plenary, it can evolve its own procedure;
power to pass any interim order is incidental or ancillary to its appellate
revisional power conferred under Section 25 of the Act is wider.
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
(1980) 4 SCC 259] There cannot be any dispute with regard to the proposition of
law that the High Court having plenary jurisdiction has incidental or ancillary
cannot further be any dispute that the court in appropriate cases can exercise
its inherent jurisdiction to pass an interim order.
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.
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.
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.
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.
expression 'ancillary' means aiding, auxiliary; subordinate; attendant upon;
that which aids or promotes a proceeding regarded as the principal.
expression 'incidental' may mean differently in different contexts.
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.
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.
Mohan Arya v. United India Insurance Co. Ltd. and Others [(2006) 4 SCC 713],
this Court observed:
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.)" 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-`-vis
Order IX, Rule 13 thereof.
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
Auction Ltd. v. Grace Hill Tea Industry & Anr. [2006 (9) SCALE 223], it was
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 parte 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..." Strong reliance has been placed by Mr. Viswanathan
on Atma Ram Properties (P) Ltd. v. Federal Motors (P) Ltd. [(2005) 1 SCC 705]
wherein Lahoti, CJ, speaking for a Division Bench of this Court, opined that
conditions may be imposed by the revisional court while granting stay.
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.
we may notice that in Devi Theatre v. Vishwanath Raju [(2004) 7 SCC 337], a
Division Bench of this Court has clearly held:
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
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.
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." 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.
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.
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.