LAWS(CAL)-1977-1-15

KAMAL KUMAR BOSE Vs. ASHALATA DEY

Decided On January 31, 1977
KAMAL KUMAR BOSE Appellant
V/S
ASHALATA DEY Respondents

JUDGEMENT

(1.) This is an application by the plaintiffs landlords respondents for a direction on the tenant appellant to deposit all arrears of damages in respect of the suit premises. The plaintiffs respondents, the petitioners in this application obtained on May 20, 1967 a decree before the trial Court for recovery of possession of the suit premises on eviction of the defendant therefrom. The said decree was modified on appeal in this Court by the learned Judge on June 26, 1973 by a decree for partial eviction. The learned Judge, it is alleged, on concession by the tenant appellant decreed the suit in respect of the ground-floor and first-floor of the premises leaving the defendant to remain in possession of the other portion of the premises and the monthly rent was apportioned from Rs. 85/- to Rs. 40/- in respect of the premises allowed to be retained by the tenant The tenant defendant however was dissatisfied with the judgment and preferred the instant appeal. It has also been stated before us that the landlord has also filed an appeal thereafter against the decree for partial eviction and both the appeals are pending.

(2.) Mr. Roy Chowdhury, learned advocate appearing for the respondents in this appeal, submitted that the tenant filed his appeal mala fide in spite of his concession before the learned Judge in this Court. He further stated that taking advantage of the appeal filed by the landlord the tenant has stopped paying or depositing any rent or damages in respect of the suit premises of which he is to be deemed to be in occupation and thus liable to pay rent or damages in respect thereof. He accordingly submitted that the appellant should be directed to deposit all arrears of rent or damages in Court during the pendency of the appeal. Mr. Roy Chowdhury submitted that such order could be passed by the Court in exercise of powers under Section 151 of the Civil Procedure Code in the interest of justice. He referred to the decision in Manohar Lal Chopra v. Rai Bahadur Rao Raja Seth Hiralal in which in paragraph 23, the Court has noted that Section 151 of the 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, The Court further observed that the inherent power had not been conferred upon the Court but it is a power inherent in the Court by virtue of its duty to do justice between the parties before it. Mr. Roy Chowdhury also referred to the decision in Sibani Rani Dutta v. Balai Chandra Dutta, reported in (1964) 68 Cal WN 1064 in which the Court observed that there may be extraordinary cases when the application of Section 151 of the. Code may be justified even though there may be alternative remedy. Reli-ance was also placed on the decision of this Court in Smt. Bimla Devi v. Aghore Chandra Mallick, in which it was observed that there is no reason why, specially when the legislature has in this country taken special care to provide for the exercise of special powers to prevent injustice in special circumstances in the form of Section 151 the Court should hesitate to exercise these powers because of their fondness for a formula. It was further observed that the Court ought not to take an attitude which would deny to litigants the assistance of the beneficial provisions of Section 151 of the Civil procedure Code unless it was compelled to do so by a binding authority or principle. Strongly relying on these decisions, Mr. Roy Chowdhury submitted that this was a fit case where the Court should exercise this inherent power under Section 151 of the Code and direct the opposite party to deposit or pay all damages payable by him in respect of the suit premises,

(3.) In this appeal by the tenant defendant, there is no application for stay of proceedings in execution. Mr. Roy Chowdhury's contention is that even if there is no such application in view of the fact that the tenant has been or is deemed to be in possession of the suit premises he is liable to pay rent or damages in respect thereof during the period of his occupation, He accordingly cannot be allowed) to proceed with his appeal unless he deposited or paid the rent in respect of the suit premises.