MD. SHAHIDUL HAQUE Vs. MST. RAHIMAN BIBI

JUDGEMENT

(1.) In this appeal the short point involved is whether the learned Judges of the High Court Division in granting stay of the execution of the decree for ejectment of monthly tenant for one year exercised his revisional jurisdiction judiciously. All facts need not be recounted at great length except stating that the plaintiff appellant is the landlord who instituted a suit for ejectment after service of notice to quit under section 106 of the Transfer of Property Act on the defendant-tenant. The suit was a Small Cause Court suit No. 28 of 1976 before the Small Causes Court Judge at Dacca. The ground for ejectment was that the tenant was in default of payment of rent, sub-letting without the consent of the landlord and for bonafide requirement of use and occupation of the premises by the landlord. The trial Court decreed the suit but on revision the learned Single Judge reversed the finding of bonafide requirement of the landlord. The result was the decree for ejectment was maintained.

(2.) While maintaining the decree for ejectment, the learned Single Judge took the view that the tenant is one of the two widows with seven children and was using the suit premises as a hotel for their maintenance and she had five daughters and two sons of which two daughters were married and two sons were minors. The learned Judge of the High Court Division thought that a year's time ending on 31st December, 1979 is to be granted during which the execution shall remain stayed failing which the tenants will be liable to ejectment.

(3.) This order has led to the grant of this leave by this Division, and the question is whether the learned Judge of the High Court Division exercised his discretion judiciously. It is to be observed that this extra-ordinary power may be exercised under the Court's inherent jurisdiction but should be done very sparingly. The principles governing the exercise of Court's inherent jurisdiction are well established and need not be repeated. It is to meet the ends of justice and should be used strictly to meet the extra-ordinary situation. It is to be invoked by the person claiming the privilege from the Court. It does not appear that any formal prayer was made by the tenant-Respondents to invoke this extra-ordinary jurisdiction. It does not also appear that the Court while invoking this extra-ordinary jurisdiction took the balance of the convenience or hardship that will entail on the decree holder. The ends of justice presuppose to hold balance even between the contesting parties. It is also to be remembered that the manner in which the stay or moratorium has been granted is uncalled for inasmuch as time could have been prayed for before the executing Court itself. It is to be remembered that after passing of the decree or the final order, the Court becomes functus officio except to review its own order in accordance with law or correct clerical errors. It is on very rare occasion that this extra-ordinary jurisdiction is invoked to meet the ends of justice, and it is to prevent any impending mischief or disaster for which no ready statutory remedy is available. The period of one year obviously is too long a period. It has been stated earlier that the hardship of the landlord decree-holder was not at all taken into consideration. No immediate threat has been mentioned for extending the indulgence of one year to the tenants. Then again, directing the decree-holder to take recourse to the executing proceedings after long lapse of time, if the tenant does not vacate the premises even after one year's time, obviously is not looking to the interest of the decree-holder. It is not a judicial exercise of discretion and, as such, it; cannot be sustained.