Kerala High Court
Pramod vs The Secretary on 25 September, 2024
2024:KER:71197
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE C. JAYACHANDRAN
WEDNESDAY, THE 25TH DAY OF SEPTEMBER 2024/ 3RD ASWINA, 1946
OP(C) NO.2307 OF 2022
AGAINST THE ORDER DATED 25.08.2022 IN I.A NO.435/2021 IN OS
NO.200 OF 2018 OF MUNSIFF COURT, CHITTUR
PETITIONER/RESPONDENT/DEFENDANT:
PRAMOD, AGED 41 YEARS, S/O.PRABHAKARAN,
LAKSHMI FANCY AND FOOT WEAR, 21/123,
ST ANTONY'S CHURCH BUILDING, AMBATTUPALAYAM,
CHITTUR POST, PALAKKAD, PIN - 678104.
BY ADVS.
SAJAN VARGHEESE K.
LIJU. M.P
JOPHY POTHEN KANDANKARY
RESPONDENTS/PETITIONERS/PLAINTIFFS:
1 THE SECRETARY, THE SULTANPET DIOCESE SOCIETY,
RC CHURCH, ST SEBASTIAN'S CATHEDRAL,
PALAYAPET,PALAKKAD, PIN - 678001.
2 THE PROCURATOR, THE SULTANPET DIOCESE SOCIETY,
RC CHURCH, ST.SEBASTIAN'S CATHEDRAL,
PALAYAPET,PALAKKAD, PIN - 678001.
BY ADVS.
SARATH M.S
B.PREMNATH
JACOB P.ALEX, AMICUS CURIAE
THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON
05.04.2024, ALONG WITH OP(C) Nos.1446/2023 AND 2309/2022, THE
COURT ON 25.09.2024 DELIVERED THE FOLLOWING:
2024:KER:71197
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE C. JAYACHANDRAN
WEDNESDAY, THE 25TH DAY OF SEPTEMBER 2024/3RD ASWINA, 1946
OP(C) NO.2309 OF 2022
AGAINST THE ORDER DATED 25.08.2022 IN I.A NO.437/2021 IN OS
NO.202 OF 2018 OF MUNSIFF COURT, CHITTUR
PETITIONER/RESPONDENT/DEFENDANT:
RAVIPRASAD, AGED 52 YEARS, S/O.PONNU, AGED 52,
NANDHA FURNITURE UPHOLSTERY, 21/123,
ST ANTONY'S CHURCH BUILDING, AMBATTUPALAYAM,
CHITTUR POST, PALAKKAD, PIN - 678104.
BY ADVS.
SAJAN VARGHEESE K.
LIJU. M.P
JOPHY POTHEN KANDANKARY
RESPONDENTS/PETITIONERS/PLAINTIFFS:
1 THE SECRETARY, THE SULTANPET DIOCESE SOCIETY,
RC CHURCH, ST SEBASTIAN'S CATHEDRAL, PALAYAPET,
PALAKKAD, PIN - 678001.
2 THE PROCURATOR, THE SULTANPET DIOCESE SOCIETY,
RC CHURCH, ST SEBASTIAN'S CATHEDRAL, PALAYAPET,
PALAKKAD, PIN - 678001.
BY ADVS.
SARATH M S
B.PREMNATH
JACOB P.ALEX, AMICUS CURIAE
THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON
05.04.2024, ALONG WITH OP(C) Nos.2307/2022 AND 2309/2022,
THE COURT ON 25.09.2024 DELIVERED THE FOLLOWING:
2024:KER:71197
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE C. JAYACHANDRAN
WEDNESDAY, THE 25TH DAY OF SEPTEMBER 2024/3RD ASWINA, 1946
OP(C) NO.1446 OF 2023
AGAINST THE ORDERS DATED 28.01.2023 IN I.A.NO.24/2022 &
28/2022 IN O.S NO.122 OF 2021 OF MUNSIFF COURT, NORTH
PARAVUR
PETITIONERS/PETITIONERS IN I.As/DEFENDANTS IN O.S:
1 M.T. VALSON, AGED 65 YEARS, S/O M.P.THOMMY,
HAVING PERMANENT ADDRESS AT 'AKSHARAM',
KUNDUPPADAM ROAD, MANJUMMEL P.O.,
UDYOGAMANDAL (VIA), ERNAKULAM-682 501,
REPRESENTED BY ITS AUTHORIZED POWER OF ATTORNEY
HOLDER, K.M. GEORGE, AGED 68, S/O K.V. MICHEAL,
RESIDING AT KOTHETH HOUSE, MANJUMMEL P.O,
ERNAKULAM, PIN - 683501.
2 ABHEDANANDAN ASARI V., S/O.VISWANATHAN ASARI,
RESIDING AT OORUVILA HOUSE, THIRUPURAM,
NEYYATINKARA TALUK, KANCHAMPAZHINJI P.O.,
THIRUVANANTHAPURAM, PIN - 695525.
BY ADVS.
P.G.JAYASHANKAR
P.K.RESHMA (KALARICKAL)
S.RAJEEV (K/001711/2019)
SAJANA V.H
SHAIJU GEORGE
AADERSH R.S. PANICKER
2024:KER:71197
RESPONDENTS/RESPONDENT IN I.As/PLAINTIFF IN O.S:
VINCY CHERIAN, AGED 77 YEARS, S/O.CHERIAN,
ELENGIKAL HOUSE, NEAR POWER HOUSE, ALUVA,
ERNAKULAM - 683 101,
NOW RESIDING AT BUILDING NO.19/208A,
KUNDUPPADAM ROAD, MANJUMMEL P.O,
UDYOGAMANDAL (VIA), ERNAKULAM, PIN - 683501.
BY ADVS.
JOHN NELLIMALA SARAI .
MOHAMMED SAGHEER(K/1512/2022)
JACOB P.ALEX, AMICUS CURIAE
THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON
05.04.2024, ALONG WITH OP(C) Nos.2307/2022 AND 2309/2022,
THE COURT ON 25.09.2024 DELIVERED THE FOLLOWING:
2024:KER:71197
'CR'
JUDGMENT
Dated, this the 25th September, 2024
A proximate equal of the issues involved in these
Original Petitions may be expressed as
“perversions of best things to worst abuses”
as Milton limned in Paradise Lost.
2. Disquieting is the litigative trend, where a
tenant takes the landlord in a law suit seeking
protection from forcible eviction – a rhetoric,
unaccompanied by a real threat on facts, in many a
cases – but without performing his fundamental
obligation in law to pay the rent? Is the
plaintiff/tenant entitled to an equitable relief of
injunction from eviction? Should the suit continue
even when the plaintiff/tenant fails to pay the
O.P.(C) Nos.2307 & 2309 of 2022
and 1446 of 2023
2024:KER:71197
-: 2 :-
arrears of rent; or whether the same is liable to
be aborted by a process known to law? Can
pleadings be struck off in such cases as an abuse
of the process of the court? Up to what extent,
law recognises the tenant’s right to continue in
the building, without paying the rent, under the
guise of a protective order obtained by alleging a
threat of forcible eviction? These are a few
questions, which surface for consideration in
these Original Petitions.
2. The bare minimum facts in the three Original
Petitions are summarised below:
O.P.(C) Nos.2307 and 2309 of 2022
O.P.(C) Nos.2307 and 2309 of 2022 are more or less
similar and connected. The tenants under a common
landlord are the petitioners herein, who are the
defendants in the suits, O.S.Nos.200 and 202 of
O.P.(C) Nos.2307 & 2309 of 2022
and 1446 of 20232024:KER:71197
-: 3 :-2018, both of the Munsiff’s Court, Chittoor. The
suits were filed by the landlord for eviction, as
also, for realisation of rent arrears. In the
suits, interim applications were filed (marked as
Ext.P3 in both Original Petitions) under Section
151 of the Code, for an order directing the
defendants/tenants to deposit the rent arrears
specified in the petition, within a time limit
stipulated by the court; and to strike off their
defence, in case they fail to comply with the
direction. The interim applications were resisted
inter alia on the premise that Section 12 of the
Kerala Buildings (Lease and Rent Control) Act,
1965 (hereinafter referred as, ‘the Rent Control
Act’ for short) cannot be made applicable to a
suit for eviction. Ext.P3 application was allowed
in both the cases as per order produced at Ext.P5,
which however directed only deposit of rent
O.P.(C) Nos.2307 & 2309 of 2022
and 1446 of 20232024:KER:71197
-: 4 :-arrears by the tenants within a period of one
month, without discussing and directing striking
off the defense, on failure to deposit. Deposit
was not made as directed in Ext.P5 orders by both
the tenants (the petitioners in the Original
Petitions). Thereupon, the plaintiff/landlord
filed Ext.P6 application alleging non-compliance
and seeking the defence to be struck off. It is at
that stage, Ext.P5 order is challenged by the
petitioners/defendants/tenants.
O.P.(C) No.1446 of 2023
Here, the suit – O.S.No.122/2021 of the Munsiff’s
Court, North Paravur – is instituted by the tenant
seeking a permanent prohibitory injunction from
forcible eviction. An ex-parte interim order
(Ext.P2), in the above direction was granted,
which was later confirmed by Ext.P4 order, on
O.P.(C) Nos.2307 & 2309 of 2022
and 1446 of 2023
2024:KER:71197
-: 5 :-
merits. The defendant/landlord filed a written
statement, along with a counter-claim for arrears
of rent. Ext.P5 application was preferred by the
defendant/landlord, again under Section 151 of the
Code of Civil Procedure, seeking an order
directing the plaintiffs/tenants to pay the rent
arrears along with electricity and water charges.
By Ext.P6 order, the claim for rent arrears was
dismissed, holding that the tenanted premises is
located in an area to which the provisions of the
Rent Control Act was applicable, wherefore, civil
court has no jurisdiction. However, there was a
direction to pay the dues on account of
electricity and water charges. Pursuant to the
written statement along with the counter-claim, a
conditional attachment of movables was sought for
vide Ext.P10 in respect of the amounts claimed in
the counter-claim. Ext.P11 objection was filed
O.P.(C) Nos.2307 & 2309 of 2022
and 1446 of 2023
2024:KER:71197
-: 6 :-
inter alia contending that the counter-claim is
not maintainable, since the Rent Control Act
applies. By Ext.P12 order, the application for
conditional attachment was allowed, except in
respect of a car sought to be attached. Yet
another application for deposit of arrears of rent
and also for a direction to continue to deposit
the monthly rent was filed, vide Ext.P13. However,
by the impugned Ext.P17 order, the same was
dismissed, holding that the issue was considered
and disposed of vide Ext.P6 order, wherefore, the
instant application vide Ext.P13 is barred by res
judciata. It appears that the landlord/defendant
had filed one more interim application vide I.A.
No.28/2022, seeking to vacate the order of
injunction, which was originally granted ex-parte
and which was confirmed vide Ext.P4 order. The
said I.A. is seen dismissed vide Ext.P18 order,
O.P.(C) Nos.2307 & 2309 of 2022
and 1446 of 2023
2024:KER:71197
-: 7 :-
holding that, though the tenanted premises is not
included under the notified area of the Rent
Control Act, injunction was granted not only on
the ground that the landlord can seek remedy under
the Rent Control Act, but also, that the eviction
should be in accordance with the due process of
law. As already indicated, Ext.P17 order, which
rejected the application for deposit of arrears of
rent, is under challenge.
3. On facts of O.P.(C) No.1446/2023 afore
referred, it could straight away be observed and
found that dismissing an application for arrears
of rent vide Ext.P17 on the principles of res
judicata is not legal and proper. It is relevant
to note that Ext.P6 application, originally filed
for payment of arrears of rent, was dismissed on a
technical ground that the tenanted premises is
O.P.(C) Nos.2307 & 2309 of 2022
and 1446 of 2023
2024:KER:71197
-: 8 :-
located in an area, where the Rent Control Act
applies, wherefore the landlord should seek remedy
under the said Act. Later, it was established – as
found in Ext.P18 order – that the tenanted
premises is not located in such an area and that
the Rent Control Act is not applicable. If that be
so, the same constitutes a definite change of
circumstance, which warrants consideration of the
matter afresh on merits. There was no
consideration of the issue on merits, insofar as
the claim for deposit of arrears of rent is
concerned, so as to make applicable the principles
of res judicata as between interim applications of
the same suit. Therefore, Ext.P17 order cannot be
sustained on the count alone.
4. However, the larger issues – as has
been framed in paragraph no.2 of this
O.P.(C) Nos.2307 & 2309 of 2022
and 1446 of 2023
2024:KER:71197
-: 9 :-
judgment – require to be answered, for which, it
is necessary to go into the basic concept of
tenancy, as also, the legal obligations, which
arise therefrom for both the parties.
5. Having regard to the complexity of the issue,
this Court availed the service of Adv.Jacob
P.Alex, as Amicus Curiae.
SUBMISSIONS MADE BY THE AMICUS CURIAE:-
The learned Amicus would canvass for the position
that the Court has power under Order 39, Rule 10,
read with Section 151 of Code of Civil Procedure
(C.P.C), to pass an order directing the tenant to
deposit the admitted arrears of rent. However,
learned Amicus has a definite caveat as regards
striking off the pleadings for non-compliance of
such orders. Learned Amicus would invite my
O.P.(C) Nos.2307 & 2309 of 2022
and 1446 of 20232024:KER:71197
-: 10 :-attention to Order VI, Rule 16, which speaks of
the specific power to strike off the defence. The
gamut of Order VI, Rule 16 appears to be to strike
off that particular pleading, which is either
unnecessary, scandalous, frivolous, or which tend
to prejudice or embarrass or delay the fair trial,
or which is otherwise an abuse of the process of
the court. The expression ‘abuse of process of the
Court’ may have to be read ejusdem generis with
clauses (a) and (b) to Order VI, Rule 16. In other
words, non compliance of an order passed by a
Court cannot be treated as an abuse of process of
Court in all circumstances. If a contrary view is
taken, there may be ever so many situations, which
will accordingly amount to abuse of process of
Court. According to the learned Amicus, in the
absence of a specific provision in the Rules – as
is available in the Code for the States of
O.P.(C) Nos.2307 & 2309 of 2022
and 1446 of 20232024:KER:71197
-: 11 :-Uttar Pradesh, Maharashtra, Punjab and Haryana –
it may not be legal or proper to throw the
litigant out of the Court by passing an order
striking off his pleadings, only for reason of non
compliance of an order directing him to deposit
the rent. Learned Amicus would submit that it is
not as if there is no remedy available from such
an order. The remedy lies in Section 36 of the
C.P.C, wherein orders are also liable to be
executed, as in the case of a decree. So far as
the concept of the foundational obligation of a
tenant sought to be canvassed, learned Amicus is
of the opinion that every litigation will involve
obligations on the part of the parties to the lis
and non suiting a party for non-performance of
such an obligation, in the absence of an enabling
statutory power, may not be within the four
corners of law. Learned Amicus is of the opinion
O.P.(C) Nos.2307 & 2309 of 2022
and 1446 of 20232024:KER:71197
-: 12 :-that this Court can make a suggestion to
incorporate a provision in the Code of Civil
Procedure, similar to the one available in the
Code in Uttar Pradesh, Maharashtra, Punjab and
Haryana, by way of a State amendment.
6. SUBMISSIONS MADE BY ADV.B.PREMNATH, LEARNED COUNSEL
FOR THE RESPONDENTS IN O.P.(C) NOS.2307 AND 2309 OF
2022:-
Learned counsel for the respondent would contend
that a clear duty is fastened on the tenant under
Section 108(l) of the Transfer of Property Act to
pay the rent, without which, he cannot claim the
status of a tenant. Thus, according to the learned
counsel, an order can very well be passed
compelling the tenant to deposit the admitted
arrears; and in case the same is not obeyed, the
defence can be struck off. Learned counsel, by
O.P.(C) Nos.2307 & 2309 of 2022
and 1446 of 20232024:KER:71197
-: 13 :-relying upon the Division Bench judgment of this
Court in Jayasree v. Vivekanandan [2012 (2) KLT
249], would submit that the situation envisaged in
Order VI, Rule 16 to strike off defence is not
exhaustive; rather the defence can be struck off
also relying upon Section 151 of the C.P.C.
Learned counsel would submit that an analogy can
be drawn from Section 12 of the Rent Control Act,
which stipulates a time-frame within which order
has to be complied; and on the event of non-
compliance, allowing eviction. Unless, law is
interpreted in accord with the principle
underlying Section 12, thereby compelling and
mandating the tenant to the pay the arrears of
rent, the purpose will not be served, especially
in the case like the one handled by the counsel,
wherein the tenant has been in occupation of the
premises for a period of six years after
O.P.(C) Nos.2307 & 2309 of 2022
and 1446 of 20232024:KER:71197
-: 14 :-termination of the tenancy. Learned counsel would
hasten to add that the rent is due for the past
eight years. Heavy reliance is placed upon the
judgment of the Hon’ble Supreme Court in Manohar
Lal Chopra v. Rai Bahadur Rao Raja Seth Hiralal
[AIR 1962 SC 527] to contend that Section 151 can
be invoked in situations which are not covered by
statutory provisions. In other words, to strike
off the pleadings in cases which do not fall under
Order VI, Rule 16, Section 151 has to be invoked
is the submission made by the learned counsel.
7. SUBMISSIONS MADE BY SRI.P.G.JAYASANKAR, LEARNED
COUNSEL FOR THE PETITIONERS IN O.P.(C) NO.1446 OF
2023:-
The first premise canvassed by the learned counsel
is that an equitable relief of injunction can be
claimed only if the claimant does equity and
O.P.(C) Nos.2307 & 2309 of 2022
and 1446 of 20232024:KER:71197
-: 15 :-approaches the court with clean hands. Learned
counsel would further expatiate that a tenant can
retain his status only so long as, he pays the
rent and he cannot claim a legitimate right to be
in possession of the property without payment of
rent. Learned counsel relied upon a judgment of
the Honourable Supreme Court in Balkrishna
Dattaraya Galande v. Balkrishna Rambharose Gupta
and another [(2020) 19 SCC 119]. It was argued
that upon the expiry of the term of lease, a
tenant becomes a tenant in sufferance, which
status can be retained only on the continued
payment of rent. Once the tenant fails to remit
the rent, such status is lost and his status
partakes the character of a trespasser. While
granting an equitable relief, a court of law,
should ensure that the court’s act does not
prejudice any person. The duty of the tenant under
O.P.(C) Nos.2307 & 2309 of 2022
and 1446 of 20232024:KER:71197
-: 16 :-Section 108(l) of the Transfer of Property Act to
pay the rent cannot be by-passed by the process of
law, by obtaining an injunction order, is another
submission advanced. As regards, the
non-availability of Section 12 of the Rent Control
Act in a suit for eviction, learned counsel would
submit that there cannot be a differential
treatment in respect of tenants, where the
tenanted premises falls within the notified area
and outside the same. On the powers under Section
151 of the Code, learned counsel would submit that
unlike the Tribunal (as constituted by the Rent
Control Act), a civil court has inherent powers.
According to the learned counsel, while the power
of the Rent Control Court to direct deposit of
rent arrears is traceable to statute, such power
is inherent in a civil court, unless barred by
law. The final submission made by the learned
O.P.(C) Nos.2307 & 2309 of 2022
and 1446 of 2023
2024:KER:71197
-: 17 :-
counsel for the petitioners is that every order of
injunction in favour of a tenant should be made
subject to his basic obligation to pay rent, as
otherwise, the tenant will enjoy the premises,
without paying any rent, under the garb of an
injunction order.
8. SUBMISSIONS MADE BY ADV.SAJAN VARGHESE, COUNSEL
FOR THE PETITIONERS IN O.P.(C) NOS.2307 AND 2309 OF
2022:-
Learned counsel would submit that Order VI,
Rule 16, cannot be applied to strike off the
pleadings. To pass an order directing the tenant
to deposit the arrears of rent, learned counsel
would submit that Order 39, Rule 10 cannot be
pressed into service. Learned counsel relied upon
the judgment of the Delhi High Court in Food
Corporation of India v. Kuljinder Pal Singh
O.P.(C) Nos.2307 & 2309 of 2022
and 1446 of 20232024:KER:71197
-: 18 :-Dhillon [2002 AIHC 2641]. As regards invocation of
Section 151, the specific submission of the
learned counsel is that Section 151 can be invoked
only for the purpose of procedural matters; and
not with respect to substantive rights. In this
regard, learned counsel relied upon the judgment
of a Division Bench of this Court reported in
Shyju P.K. v. Nadeera and another [2021 (5) KHC
657]. Learned counsel would refer to the treatise
in Black’s Law Dictionary and Salmond on
Jurisprudence to explain a substantive right. The
judgment of a learned Single Judge of this Court
in Narayana Pisharodi (Dr.) and others v. Stancash
Chits (P.) Ltd., Thrissur [2022 KHC 4564] is also
relied upon. The judgment of the Honourable
Supreme Court in Padam Sen and another vs The
State of Uttar Pradesh [AIR 1961 SC 218] is cited
to drive home that the powers under Section 151
O.P.(C) Nos.2307 & 2309 of 2022
and 1446 of 20232024:KER:71197
-: 19 :-cannot extend to or affect the substantive rights
of the litigant. Finally, learned counsel would
submit that Section 12, or its principle, cannot
be imported to a civil suit, since Section 12 will
apply only in a case where a petition for eviction
under Section 11 has been filed under that Act. In
this regard, learned counsel would rely on the
judgments in Abdul Razak P.M. v. K.C.Thomas and
others [2022 (4) KLT 72] and Ismail v. Sudhakara
Shenoy [2009 (4) KLT 864].
9. SUBMISSIONS MADE BY ADV.JOHN NELLIMALA SARAI,
LEARNED COUNSEL FOR THE RESPONDENTS IN O.P.(C) NO.1446
OF 2023:-
Adv.John Nellimala Sarai would submit essentially
on the peculiar facts of the case, apart from
adopting the contentions raised by Sri.Sajan
Varghese. Learned counsel would submit that the
O.P.(C) Nos.2307 & 2309 of 2022
and 1446 of 20232024:KER:71197
-: 20 :-tenancy arrangement commenced at the time when the
landlord was abroad and arrangement was struck
through his agent with a rent of Rs.10,000/- per
month. During the first Covid attack, the
respondent/tenant could pay rent at the rate of
Rs.8,000/- per month only, which was done based on
the understanding between the respondent and the
agent of the landlord. However, when the landlord
returned to India, he insisted rent at the rate of
Rs.10,000/- per month. As a matter of fact, the
tenant had vacated the premises and moved to
another premise and surrendered the keys to the
landlord. However, the landlord refused the same,
stating that the entire articles of the tenant has
to be removed from the tenanted premises,
whereupon, only the advance amount will be repaid.
According to the learned counsel, all the articles
have in fact been removed. The second key was not
O.P.(C) Nos.2307 & 2309 of 2022
and 1446 of 20232024:KER:71197
-: 21 :-handed over only for the reason that the advance
has not been repaid or returned. It is the further
argument of the learned counsel that the water
connection to the premises has been cut by the
landlord and the tenant has come back to the same
premises when the landlord had claimed rent for the
period during which the tenant had in fact occupied
another premises. Tenant thought that he need not
pay rent at two different places for the same
period. According to the learned counsel, it is in
this peculiar facts that the application for the
landlord for deposit of arrears of rent has to be
considered. Learned counsel would also submit that
there was default in the matter of rent on the
onset of second Covid attack. The Court has
directed to restore the facility of availing water
to the tenant, but the same has not been complied
with by the landlord. Instead, the landlord chose
O.P.(C) Nos.2307 & 2309 of 2022
and 1446 of 20232024:KER:71197
-: 22 :-to challenge the same along with a petition to the
deposit the entire rent arrears.
10. Having referred to the pleadings and
contentions of the respective parties, this Court
will now address the issues raised in the light of
the respective contentions. For a proper
adjudication of the issues involved, the
conceptual significance of a lease, the
obligations created by a lease, the rights and
liabilities of the lessor and lessee etc. are to
be analysed. Section 105 of the Transfer of
Property Act, 1882 defines a lease thus:
“105. Lease defined.–
A lease of immovable property is a
transfer of a right to enjoy such
property, made for a certain time, express
or implied, or in perpetuity, in
consideration of a price paid or promised,
or of money, a share of crops, service or
O.P.(C) Nos.2307 & 2309 of 2022
and 1446 of 20232024:KER:71197
-: 23 :-any other thing of value, to be rendered
periodically or on specified occasions to
the transferor by the transferee, who
accepts the transfer on such terms.Lessor, lessee, premium and rent defined:
The transferor is called the lessor, the
transferee is called the lessee, the price
is called the premium, and the money,
share, service or other thing to be so
rendered is called the rent.”
(Underlined for emphasis)
11. Section 108 of the Transfer of Property Act
deals with the rights and liabilities of lessor
and lessee. Section 108, to the extent it is
relevant, is extracted hereunder:
“Section 108: Rights and liabilities of
lessor and lessee.
108. In the absence of a contract or local
usage to the contrary, the lessor and the
lessee of immoveable property, as against
O.P.(C) Nos.2307 & 2309 of 2022
and 1446 of 20232024:KER:71197
-: 24 :-one another, respectively, possess the
rights and are subject to the liabilities
mentioned in the rules next following, or
such of them as are applicable to the
property leased:–
(A) Rights and liabilities of the
lessor
(a) xxxxxxx
(b) xxxxxxx
(c) the lessor shall be deemed to contract
with the lessee that, if the latter pays
the rent reserved by the lease and
performs the contracts binding on the
lessee, he may hold the property during
the time limited by the lease without
interruption.
The benefit of such contract shall be
annexed to and go with the lessee’s
interest as such, and may be enforced by
every person in whom that interest is for
the whole or any part thereof from time to
time vested.
(B) Rights and liabilities of the
lessee
O.P.(C) Nos.2307 & 2309 of 2022
and 1446 of 2023
2024:KER:71197
-: 25 :-
(l) the lessee is bound to pay or tender,
at the proper time and place, the premium
or rent to the lessor or his agent in this
behalf;”
(Underlined for emphasis)
12. Section 111 of the Transfer of Property Act
provides for determination of lease. One among the
modes of determination is by efflux of time
stipulated in the lease, and another, by issuance
of notice determining the lease. A third mode of
determination of lease contemplated under
Section 111(g) is relevant and is extracted
hereunder:
111. Determination of lease.–
(g)by forfeiture; that is to say, (1) in
case the lessee breaks an express
condition which provides that, on breach
thereof, the lessor may re-enter.”
13. Section 114 of the Transfer of Property Act
provides that, if the lease has been determined by
O.P.(C) Nos.2307 & 2309 of 2022
and 1446 of 2023
2024:KER:71197
-: 26 :-
forfeiture for non-payment of rent and the lessor
sues to eject the lessee, an option is provided
for the lessee to tender the rent arrears,
together with interest and costs, at the hearing
of the suit or furnish sufficient security, in
which case, the court may pass an order relieving
the lessee against the forfeiture, in lieu of
making an order for ejectment, whereafter the
lessee shall hold the property leased, as if the
forfeiture had not occurred. The effect of holding
over is dealt with in Section 116 of the Transfer
of Property Act, which speaks of renewal of the
lease, if the lessor accepts rent from the lessee,
who remains in possession of the tenanted
premises, even after determination of the lease.
14. A scan of the above provisions would
illustrate that, lease of an immovable property is
O.P.(C) Nos.2307 & 2309 of 2022
and 1446 of 2023
2024:KER:71197
-: 27 :-
essentially a contract wherein the lessor
transfers to the lessee the right to enjoy an
immovable property for the time stipulated in the
contract; and the consideration for the contract
is the price paid or promised or the periodical
payment of rent, as defined in Section 105 of the
Transfer of Property Act. Inasmuch as Section 105
of the Transfer of Property Act employ the term
“consideration”, in the context of the obligation
to pay rent, the principles of the Contract Act
can surely be imported. Coming to Section 108 of
the Transfer of Property Act, which specifically
prescribes the rights and liabilities of the
lessor and lessee, the concept of contract is made
explicit, vide Section 108(A)(c). That provision
deems a contract between the lessor and the
lessee, whereby the lessee is permitted to hold
the property during the period of lease, if the
O.P.(C) Nos.2307 & 2309 of 2022
and 1446 of 2023
2024:KER:71197
-: 28 :-
latter (lessee) pays rent reserved by the lease.
It is, therefore, axiomatic that the right of the
lessee to hold the property under the contract
arises and continues if – and only if – the lessee
pays the rent reserved in the lease. Further re-
iteration of this fundamental obligation of the
lessee/tenant could be seen from sub clause (l) to
Section 108 (B) of the Transfer of Property Act,
where it is statutorily provided in explicit terms
that the lessee is bound to pay rent to the lessor
at the proper time and place. The significance of
this obligation also finds reflection in Section
111 of the Transfer of Property Act in the context
of determination of lease, which prescribes the
consequences of non-performance of this basic
obligation of the tenant.
15. Section 111(g) of the Transfer of Property Act
O.P.(C) Nos.2307 & 2309 of 2022
and 1446 of 2023
2024:KER:71197
-: 29 :-
prescribes a mode of determination by forfeiture,
the first category of which speaks of the lessee
committing breach of an express condition. The
breach constitutes a right on the lessor to
re-enter. While enforcing this relief based on
determination of lease by forfeiture, the lessee
has an option under Section 114 of the Transfer of
Property Act to tender the rent arrears, together
with interest and costs and to avoid a decree for
ejectment.
16. The upshot of the above discussion is that it
is statutory, salutary, fundamental and
foundational for a lessee/tenant to pay the rent
to the lessor, failing which he cannot claim or
retain his status as a lessee, or, for that
matter, to hold the property.
O.P.(C) Nos.2307 & 2309 of 2022
and 1446 of 2023
2024:KER:71197
-: 30 :-
17. Though the instant case is not governed
by the provisions of the Rent Control Act,
the statutory stipulations therein are also
relevant, the same being a statute dealing with
lease of buildings, as also, to control the
rent. Section 2(6) of the Rent Control Act defines
a tenant as any person by whom, or on
whose account, rent is payable for a building.
Section 11(2)(b) of the Rent Control Act
specifically contemplates eviction of tenants upon
failure to pay the rent, after affording him a
reasonable opportunity. The specific enabling
provision, in a case which falls under the Rent
Control Act, mandating deposit of rent during the
pendency of proceedings for eviction is Section
12, which puts an embargo on a tenant from
contesting an application for eviction, unless he
pays to the landlord or deposits before the court,
O.P.(C) Nos.2307 & 2309 of 2022
and 1446 of 2023
2024:KER:71197
-: 31 :-
the admitted arrears of rent within the period
stipulated by the statute. Here, we may have to
notice that Section 12 of the Rent Control Act
specifically recognises the right of the lessor
to receive rent and the corresponding obligation
of the lessee to pay rent, so as to hold the
tenanted premises and even to contest a proceeding
instituted by the lessor/landlord for
eviction. The provisions contained in Section 12
of the Rent Control Act is a clear and
unmistakable indication as regards the nature of
the obligation of the lessee/tenant to pay the
rent. In other words, the obligation to pay rent
goes to the root of the matter and it is
foundational to claim the status as a
lessee/tenant.
18. Having found as above, the issue bifurcates
O.P.(C) Nos.2307 & 2309 of 2022
and 1446 of 2023
2024:KER:71197
-: 32 :-
into two. The first is with respect to the
sustainability of an injunction from forcible
eviction, once it is shown that the tenant failed
to perform his fundamental obligation to pay the
rent. The second is whether the pleadings are
liable to be struck off and the proceedings
aborted.
19. The first issue can be adequately guided for
resolution by the first principle that “he who
seeks equity must do equity”. Injunction being a
purely equitable and discretionary relief, is not
liable to be granted, if the plaintiff/tenant
fails to perform an important obligation arising
from the legal relationship of a landlord and
tenant, or for that matter, a licensor and a
licensee. In the facts governing the suits in
question, the professed/claimed status of one of
O.P.(C) Nos.2307 & 2309 of 2022
and 1446 of 2023
2024:KER:71197
-: 33 :-
the parties is that of a tenant. It has already
been found that the tenant has a salutary
obligation to pay the rent, without which he
cannot aspire to retain the status as a tenant, or
for that matter, to hold the tenanted premises. If
this fact is established, will it not disentitle
the tenant in seeking injunction from eviction?
The answer in my opinion, can only be in the
affirmative. By doing so, this Court is not
recognising any right on the landlord to evict the
tenant, otherwise than in accordance with law.
Instead, the court only discounts the right of the
plaintiff/tenant, to maintain a suit, seeking an
equitable and discretionary relief, for failure on
his part to perform his legal and salutary
obligation. This Court does not, for a moment,
sanction the eviction of a tenant by the landlord
taking law into his hands; and if he chooses to do
O.P.(C) Nos.2307 & 2309 of 2022
and 1446 of 2023
2024:KER:71197
-: 34 :-
so, he will be subject to all possible
consequences in law. However, that fetter on the
landlord cannot automatically enure as an
advantage in the form of an unfettered right in
the hands of the tenant to obtain a protective
order and to continue holding the premises,
without paying any rent. So, in suits of that
nature, the correct question to be posed is
whether the plaintiff is entitled to seek an
equitable relief like injunction, once his legal
and salutary obligation is shown to be not
performed. The obvious answer can only be in the
negative. Per contra, if we pose a wrong question
as to whether the defendant/landlord is entitled
to evict the plaintiff/tenant forcibly, the
mistake/injustice will be perpetrated. As it is
well settled, a plaintiff in a suit has to succeed
on his own merits; and not on the weakness of the
O.P.(C) Nos.2307 & 2309 of 2022
and 1446 of 2023
2024:KER:71197
-: 35 :-
defence. Taking cue from that concept, a plaintiff
in a suit for injunction should independently
establish his right for the remedy sought for; he
cannot seek the relief by propounding that the
defendant has no right to do the act, which is
sought to be prohibited/interdicted by the relief
sought for.
20. Needless to say that when such interim relief
sought for by the plaintiff/tenant is an
injunction, the re-iterated principles of prima
facie case, balance of convenience and irreparable
injury is also liable to be adjudged. All the
three concepts, especially the prima facie case,
will turn against the tenant/plaintiff, if he
approaches the court seeking protection from
forcible eviction, without paying the agreed rent
to the landlord/defendant. In other words, an
O.P.(C) Nos.2307 & 2309 of 2022
and 1446 of 2023
2024:KER:71197
-: 36 :-
injunction – though couched in such a manner as
from forcible dispossession – if granted to a
tenant, who fails to perform his salutary,
statutory obligation to pay the rent, will
virtually amount to recognising his right to
continue in the premises without payment of any
rent. Such a situation cannot be contemplated and
it is completely irreconcilable with the
provisions of the Transfer of Property Act.
21. The above discussion persuades me to conclude
the first issue, by holding that a tenant is not
entitled to seek injunction from eviction without
performing his obligation to pay the rent.
22. Coming to the second issue as to whether the
pleadings can be struck off and the proceedings
aborted, one relevant aspect is the applicability
O.P.(C) Nos.2307 & 2309 of 2022
and 1446 of 2023
2024:KER:71197
-: 37 :-
of the principle behind Section 12 of the Rent
Control Act to a civil proceeding, in the absence
of a specific statutory provision in the Code of
Civil Procedure. In this regard, this Court takes
stock of the fact that Section 12 only recognises
the fundamental principles, which governs the
relationship between a lessor and lessee, which is
defined in the Transfer of Property Act. It cannot
be said that the Rent Control Act is a separate
and different package altogether, at least insofar
as the concept of lease, the rights and
obligations of the lessor and lessee etc. are
concerned. The relationship is only defined and
governed by the Transfer of Property Act, from
which foundation only, the Rent Control Act takes
off. The preamble to the Rent Control Act only
says that it is an Act to regulate the lease of
buildings and to control the rent, the conceptual
O.P.(C) Nos.2307 & 2309 of 2022
and 1446 of 2023
2024:KER:71197
-: 38 :-
doctrines governing the lessor and lessee
remaining the same, as defined in the Transfer of
Property Act. It could therefore safely be held
that it is in recognition of the statutory
obligation/liability of the lessee/tenant to pay
the rent – even for holding the property, as is
explicit from (i) the definition of lease under
Section 105 of the Transfer of Property Act,
(ii) the rights and liabilities of the lessor and
lessee under Section 108 of the Transfer of
Property Act and (iii) the concept of forfeiture
under Section 111 of the Transfer of Property Act
– that Section 12 has been engrafted to the Rent
Control Act. Section 12 does not create any new
right in favour of the landlord, which is
completely separate, independent and distinct from
the rights of a lessor under the Transfer of
Property Act. Rather, it only recognises the well
O.P.(C) Nos.2307 & 2309 of 2022
and 1446 of 2023
2024:KER:71197
-: 39 :-
defined statutory relationship between a lessor
and a lessee. The lessor’s rights flowing from the
Transfer of Property Act and the right under
Section 12 of the Rent Control Act mutually
complement each other. Both are inextricably
interwoven and inseparably intertwined. Be that as
it may.
23. Now, the question is how to reconcile and
translate into action, the above conceptual
premises, which encompasses the right of the
lessor, and the corresponding obligation of the
lessee, once it comes to a civil suit at the
instance of the lessor, or for that matter, a suit
for injunction from forcible eviction, at the
instance of the lessee, especially in the absence
of an enabling provision like Section 12. Pithily
put, under which provision the civil court will
O.P.(C) Nos.2307 & 2309 of 2022
and 1446 of 2023
2024:KER:71197
-: 40 :-
deal with the situation, when this Court has
already found that the lessee has no right to
hold/continue in the building without performing
his basic and salutary obligation to pay the rent.
24. This Court is of the opinion that there is
absolutely no inherent lack of power so far as the
civil court is concerned. It goes without saying
that the tenant should be given an
opportunity – seminal in the context of ensuring
natural justice – to pay the arrears of rent, or
for that matter, to deposit the same before the
court, for which an interim order will have to be
passed, calling upon the lessee to do so. The
learned Amicus Curiae would point out that the
source of power in this regard can be traced to
Order XXXIX, Rule 10; read with Section 151 of the
Code of Civil Procedure (hereinafter referred to
O.P.(C) Nos.2307 & 2309 of 2022
and 1446 of 2023
2024:KER:71197
-: 41 :-
as ‘the Code’). However, on a perusal of Order
XXXIX, Rule 10, this Court is not fully convinced
as to whether an order calling upon the tenant to
pay/deposit the admitted arrears of rent can be
passed under Order XXXIX, Rule 10 of the Code.
25. Learned Amicus is correct in his submission
that Section 94 of the Code enables a civil court
to pass orders to prevent the ends of justice
being defeated and sub Section (e) to Section 94
of the Code speaks of residuary clause styled as
“such other interlocutory orders”. However, powers
under Section 94 of the Code is circumscribed by
the pre-condition that an order to be passed under
that section should be so prescribed in the Rules.
See in this regard the definition of ‘prescribed’
under Section 2(16) of the Code and also the
dictum laid down by the Hon’ble Supreme Court in
O.P.(C) Nos.2307 & 2309 of 2022
and 1446 of 2023
2024:KER:71197
-: 42 :-
Manohar Lal Chopra v. Rai Bahadoor Rao Raja Sethi
[AIR 1962 SC 527], to which further reference is
made, while discussing the scope of inherent
powers under Section 151. Coming to Order 39 Rule
10, the ingredients appears to be:
1) The subject matter of the suit is money
or some other thing capable of delivery.
2) The party should admit that he holds money
or other thing as a trustee for another
or that it belongs or is due to another.
26. If the above conditions are satisfied, the
provision enables the court to pass an order for
depositing in court or delivering to the party,
the money or thing as the case may be, without
security and subject to further directions of the
court. This Court is afraid whether the above
specified pre-requisites are satisfied in the
O.P.(C) Nos.2307 & 2309 of 2022
and 1446 of 2023
2024:KER:71197
-: 43 :-
instant facts, where a suit is instituted by the
landlord or the tenant, as the case may be, for
eviction or for injunction from forcible eviction.
27. The residual source is the inherent power
under Section 151 of the Code. Section 151 is
extracted hereunder.
“151. Saving of inherent powers of Court.
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.”
(Underlined for emphasis)
28. To invoke Section 151 of the Code, two
concepts have to be borne in mind. The first is
that, an order under Section 151 is necessary “for
the ends of justice”. The second situation is that
O.P.(C) Nos.2307 & 2309 of 2022
and 1446 of 2023
2024:KER:71197
-: 44 :-
such order is necessary “to prevent abuse of the
process of the court”. Therefore, the question
which requires an answer is whether an order
warranting the lessee/tenant to pay/deposit the
rent, is an order, which is necessary for the ends
of justice, or to prevent abuse of the process of
the court, having regard to the nature and reliefs
sought for in the suits in question. A further
question, which surfaces for consideration is
whether the pleadings are liable to be struck off,
if the lessee/tenant fails to deposit the admitted
arrears of rent, despite an interim order
affording time for payment.
29. This Court will first refer to the scope and
ambit of Section 151 of the Code. The necessity to
bestow inherent powers on court stems from the
fact that a codified law cannot provide for and
O.P.(C) Nos.2307 & 2309 of 2022
and 1446 of 2023
2024:KER:71197
-: 45 :-
cater to all possible and myriad circumstances
which may arise in a suit. Circumstances which
were in the contemplation of the statute makers
are taken care of and provided for; and inherent
powers are bestowed on courts to deal with
situations which are not so expressly provided
for. It may not be a correct proposition of law to
seek for specific enabling provision in the
statute for grant of every relief, for the simple
reason that all possible situations and
circumstances cannot be contemplated in the
statute. It is to take care of the residual
category which is not expressly provided for, but
which warrants grant of a relief in the interest
of justice, that inherent powers are provided. In
Rajendra Prasad Gupta v. Prakash Chandra Misra
[AIR 2011 SC 1137], it was held that Section 151
of the Code gives inherent powers to do justice
O.P.(C) Nos.2307 & 2309 of 2022
and 1446 of 2023
2024:KER:71197
-: 46 :-
and that the provision has to be interpreted to
mean that, every procedure is permitted to the
Court for doing justice unless expressly
prohibited; and not that every procedure is
prohibited unless expressly permitted. It is also
trite by now that, it is not Section 151 which
confers inherent powers to a civil court; instead
Section 151 merely saves the pre-existing power of
every court to pass orders necessary for the ends
of justice, which power inheres with all courts.
Examining the scope of Section 151, in the context
of grant of injunctions in situations not covered
by Order 39 Rules 1 and 2, the honourable Supreme
Court Manohar Lal Chopra (supra) held thus:
“18. ………………….We are of
opinion that the latter view is
correct and that the Courts have
inherent jurisdiction to issue
O.P.(C) Nos.2307 & 2309 of 2022
and 1446 of 20232024:KER:71197
-: 47 :-temporary injunctions in circumstances
which are not covered by the
provisions of Order 39 CPC. There is
no such expression in Section 94 which
expressly prohibits the issue of a
temporary injunction in circumstances
not covered by Order 39 or by any
rules made under the Code. It is well
settled that the provisions of the
Code are not exhaustive, for the
simple reason that the legislature is
incapable of contemplating all the
possible circumstances which may arise
in future litigation and consequently
for providing the procedure for them.
The effect of the expression “if it is
so prescribed” is only this that when
the rules prescribe the circumstances
in which the temporary injunction can
be issued, ordinarily the Court is not
to use its inherent powers to make the
necessary orders in the interests of
justice, but is merely to see whether
the circumstances of the case bring it
within the prescribed rule. If the
provisions of Section 94 were not
O.P.(C) Nos.2307 & 2309 of 2022
and 1446 of 20232024:KER:71197
-: 48 :-there in the Code, the Court could
still issue temporary injunctions, but
it could do that in the exercise of
its inherent jurisdiction. No party
has a right to insist on the Court’s
exercising that jurisdiction and the
Court exercises its inherent
jurisdiction only when it considers it
absolutely necessary for the ends of
justice to do so. It is in the
incidence of the exercise of the power
of the Court to issue temporary
injunction that the provisions of
Section 94 of the Code have their
effcet and not in taking away the
right of the Court to exercise its
inherent power.”
30. The Honourable Supreme Court also took stock
of the fact that, Section 151 starts with a non
obstante clause, to hold that the provisions of
the Code does not control the powers saved under
Section 151.
O.P.(C) Nos.2307 & 2309 of 2022
and 1446 of 2023
2024:KER:71197
-: 49 :-
31. K Subba Rao, J. would define the scope of the
inherent power under Section 151 thus in Ram Chand
and Sons Sugar Mills Private Ltd. v. Kanhayalal
Bhargava and Others [AIR 1966 SC 1899].
“Having regard to the said decisions, the
scope of the inherent power of a court
under Section 151 of the Code may be
defined thus: 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. Whatever
limitations are imposed by construction
on the provisions of Section 151 of the
O.P.(C) Nos.2307 & 2309 of 2022
and 1446 of 20232024:KER:71197
-: 50 :-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. ”
32. It is thus clear that the powers under Section
151 can be invoked to deal with a situation which
is not otherwise expressly provided by the Code,
but which warrants an order/relief in the
interests of justice or to prevent abuse of the
process of the court. I cannot therefore accept
the argument of the learned Amicus that pleadings
cannot be struck off in the absence of a specific
provision enabling the same.
33. This takes us to examine the ambit and scope
of expression ‘ends of justice’ and ‘abuse of the
process of the court’. ‘Ends of justice’ in its
plain natural meaning only signifies, in the
O.P.(C) Nos.2307 & 2309 of 2022
and 1446 of 2023
2024:KER:71197
-: 51 :-
interest of justice or to promote justice. The
parameters and niceties of the expression is
beyond the scope of definition and any attempt to
identify or cull out situations which warrant an
order in the ends of justice, would be idle and
futile. The best course is to leave the concept
open, to be interpreted based on the peculiar fact
situation. Nevertheless, it could safely be said
that the powers under Section 151 can be invoked
to make such orders, as should be made ex debito
justiatiae; and every court should have the power
to pass such orders with a view to shorten the
litigation, prevent duplication of proceedings and
saving parties from harassment and expenses(See,
ILR 61 Cal 711). The concept of ‘ends of justice’
would surely take within its sweep the three time
tested principles of justice, equity and good
conscience, wherefore, it would be safe to
O.P.(C) Nos.2307 & 2309 of 2022
and 1446 of 2023
2024:KER:71197
-: 52 :-
conclude that an order in terms of justice, equity
and good conscience, as applicable to the
particular facts, would be an order in furtherance
of justice, under Section 151 CPC.
34. Coming to the concept of abuse of the process
of the Court, Black’s Law Dictionary defines abuse
as follows:
“Abuse. Everything which is contrary to
good order established by usage. Departure
from reasonable use; immoderate or improper
use. Physical or mental maltreatment.
Misuse. Deception.”
35. In the same treatise, abuse of process is seen
dealt with thus:
“Process. The gist of an action for “abuse
of process” is improper use or perversion
of process after it has been issued.
Publix Drug Co.v. Breyer Ice Cream Co.,
347 Pa.346, 32 A.2D 413, 415.”
O.P.(C) Nos.2307 & 2309 of 2022
and 1446 of 2023
2024:KER:71197
-: 53 :-
36. Prem and Saharay’s Judicial Dictionary of
Words and Phrases depicts abuse of process of the
court thus:
“Abuse of the process of the
court/judicial process. When an adversary
through malicious and unfounded use of
some regular proceeding obtains advantage
over his opponent, it is called abuse of
process of court. Wharton’s Law Lexicon
P.16.
If the appellate court is satisfied that
an action was not maintainable and to
allow it would be abuse of process of
court, action be dismissed e.g. when it is
based on wagering contract. Law v
Dearnley, 1950 All ER 124, (1948) 64 TLR
394, even under inherent powers. Dyson v
A.G (1911) KB 418, (1949)1 All ER 223.
The expression “abusing the process of the
court” within the meaning of section 482
Cr PC is generally applied to a proceeding
which is wanting in bona fides and is
frivolous vexatious or oppressive and the
High Court is under an imperative
O.P.(C) Nos.2307 & 2309 of 2022
and 1446 of 2023
2024:KER:71197
-: 54 :-
obligation to interfere in order to
prevent the harassment of a citizen by an
illegal prosecution.”
(Underlined for emphasis)
37. In Subrata Roy Sahara v. Union of India [2014
(8) SCC 470], the Hon’ble Supreme Court made some
important observations as regards abuse of
judicial process. The relevant findings are
extracted hereunder.
“Abuse of the judicial process is not
limited to any particular class of
litigants. The State and its agencies
litigate endlessly upto the highest Court,
just because of the lack of
responsibility, to take decisions. So
much so, that we have started to entertain
the impression, that all administrative
and executive decision making, are being
left to Courts, just for that reason. In
private litigation as well, the concerned
litigant would continue to approach the
higher Court, despite the fact that he had
O.P.(C) Nos.2307 & 2309 of 2022
and 1446 of 20232024:KER:71197
-: 55 :-lost in every Court hitherto before. The
effort is not to discourage a litigant, in
whose perception, his cause is fair and
legitimate. The effort is only to
introduce consequences, if the litigants
perception was incorrect, and if his cause
is found to be, not fair and legitimate,
he must pay for the same. In the present
setting of the adjudicatory process, a
litigant, no matter how irresponsible he
is, suffers no consequences. Every
litigant, therefore likes to take a
chance, even when counsels advice is
otherwise.”
It could thus be seen that even exhausting an
appellate remedy irresponsibly and without
bonafides may verge on abuse of the judicial
process.
38. P.Ramanatha Aiyar’s Advanced Law Lexicon
explains the term ‘abuse’ as that which is
contrary to good order or established usage. The
O.P.(C) Nos.2307 & 2309 of 2022
and 1446 of 2023
2024:KER:71197
-: 56 :-
author refers to the observations of Brickell,
C.J. in Dawkins v. State, [29 Am. Rep. 754]. The
relevant portion is extracted hereunder.:
“Its proper signification must be ascertained
by reference to the subject-matter or the
context and the meaning of the words with
which it is associated”.
39. Significantly, the author describes “abuse” as
including misuse, which interpretation finds
recognition in M.Narayanan v. State of Kerala
[AIR 1963 SC 1116]. ‘Abuse’, in the context of
abuse of process, is dealt with thus:
“‘Process’ is a general word, meaning in
effect, anything done by the Court. An abuse
of the process may be committed by a party
litigating over again the same question which
has already been decided against him, or by
starting proceeding which is wanting in bona
fides and is frivolous, vexatious or
oppressive.”
O.P.(C) Nos.2307 & 2309 of 2022
and 1446 of 2023
2024:KER:71197
-: 57 :-
40. This Court had occasion to deal with the
concept of abuse of process in C. Sarala v. K.
Nalina K. Shan [1991 SCC OnLine Ker 60]. This
Court held that abuse of process of court takes
various forms. For instance, securing an
injunction to protect one’s possession, when he is
not in possession, filing successive suits in
respect of the same cause, securing a relief by
suppression of facts and so on.
41. In Ranipet Municipality v. M.Shamsheerkhan
[1997(2) LW 761 (Mad)], the following categories
have been culled out as amounting to abuse of
process of the court, with a caveat that the list
is not exhaustive.
(1) Gaining an unfair advantage by
the use of a rule of procedure.
(2) Contempt of the authority of the
Court by a party or stranger.
O.P.(C) Nos.2307 & 2309 of 2022
and 1446 of 2023
2024:KER:71197
-: 58 :-
(3) Fraud or collusion in Court
proceedings as between parties.
(4) Retention of a benefit wrongly
received.
(5) Resorting to and encouraging
multiplicity of proceedings.
(6) Circumventing of the law by
indirect means.
(7) Presence of witness during
examination of previous witness.
(8) Institution vexatious,
obstructive or dilatory
actions.
(9) Introduction of scandalous or
objectionable matter in
proceedings.
(10) Executing a decree manifestly
at variance with its
purpose and intent.
(11) Institution of a suit by a
puppet plaintiff.
(12) Institution of a suit in the
name of the firm by one
partner against the majority
opinion of other partners etc.
O.P.(C) Nos.2307 & 2309 of 2022
and 1446 of 2023
2024:KER:71197
-: 59 :-
42. In the context of striking off the defence,
Section 151 was profitably employed by the Delhi
High Court in Pharma Ventures International
Private Ltd. v. Senior Media Ltd. [2009 SCC OnLine
Del 740].
43. In C.S. Mangalam v. Velayudhan Asari [AIR 1993
Ker 181], the powers under Section 151 was
invoked, when the husband was deliberately
flouting court’s order directing payment of
maintenance under Section 24 of the Hindu Marriage
Act. It was held that, even in the absence of an
enabling provision, the Court can strike off the
defence, in exercise of the inherent power under
Section 151, if one of the parties willfully
refuses to comply with the court’s order.
44. In the context of the rent control
O.P.(C) Nos.2307 & 2309 of 2022
and 1446 of 2023
2024:KER:71197
-: 60 :-
legislation, the Punjab and Haryana High Court had
occasion to deal with the issue of striking off
the defence in Suresh Kumar v. Prem Chand
[AIR 1994 P&H 203]. In that case, there was a
positive finding by the court that the amount
tendered by the tenant was short of the admitted
amount and nothing was shown that he had a good
cause for the default occurred. The tenant’s
defence was struck off by invoking the inherent
power under Section 151. Here, I may pause to
note that the Code of Civil Procedure as
applicable to Punjab and Haryana, contains an
enabling provision for the same, as has been put
to the notice of this Court by the learned Amicus
Curiae.
45. Lastly, a Division Bench of this Court in
Jayasree v. Vivekanandan [2012 (2) KLT 249] held
O.P.(C) Nos.2307 & 2309 of 2022
and 1446 of 2023
2024:KER:71197
-: 61 :-
that, the situations envisaged in Order VI, Rule
16 to strike off defence is not exhaustive; and
that defence can also be struck off relying upon
Section 151 of the Code of Civil Procedure. This
Court therefore concludes that, Order VI, Rule 16
of the Code is not the sole repository of power to
strike off defence. It can also be done under
Section 151, provided the requirements in terms of
Section 151 is fully and clearly satisfied.
46. Juxtaposing the above treatise on abuse of
process and the dicta on striking off the
pleadings to the instant facts, this Court is of
the definite opinion that any litigation, wherein
a litigant fails to perform his basic and
fundamental obligation, which he is statutorily
bound to perform in his admitted and professed
status, will amount to a clear misuse of the
O.P.(C) Nos.2307 & 2309 of 2022
and 1446 of 2023
2024:KER:71197
-: 62 :-
process of court. The mechanism of providing
reliefs through the process of court is meant to
protect the legitimate rights of the parties and
to grant reliefs thereby. This right is not an
unbridled or unfettered one. The right of a
litigant to approach a court is subject to
performance of certain salutary obligations. For
example, a litigant has to approach the court with
clean hands. He cannot seek reliefs by suppressing
true facts. Likewise, the right to approach a
court seeking discretionary reliefs pre-supposes
the satisfaction of certain mandatory legal
obligations on the part of the litigant in his
admitted status, failing which, it cannot be held
that he has got a vested right to institute, or
for that matter, continue a litigation, for the
sake of it. The situation will be different
altogether, if the question as to whether he has
O.P.(C) Nos.2307 & 2309 of 2022
and 1446 of 2023
2024:KER:71197
-: 63 :-
performed his part or not, is itself, a question
of fact to be determined in the suit. However, if
the non-performance of a fundamental obligation of
a litigant is writ large on the pleadings or is
decipherable ex facie from the proceedings, it
will be unwholesome in law to contemplate that
such a litigant still has a right to continue with
the litigation, more so in cases where such
performance is not forthcoming, despite granting a
further opportunity by the Court.
47. It cannot be lost sight of the fact that the
landlord is the paramount title holder of the
tenanted premises; and the tenant’s right to
occupy the same is only as provided for by the
statute, that is to say, the Transfer of Property
Act. This Court has already held that such right
of the tenant to hold the premises is wholly
O.P.(C) Nos.2307 & 2309 of 2022
and 1446 of 2023
2024:KER:71197
-: 64 :-
dependent on his obligation to pay the rent. If
the tenant choose to approach a court of law, that
too seeking an equitable relief of protection from
eviction, without performing the above vital
obligation, is not such a proceeding an abuse of
the process of the court? Will it not amount to
improper use and perversion of the process of the
court? Will not the adversary/tenant, through
unfounded use of a legal proceeding, obtain an
unfair advantage over his opponent/landlord? Is
not such a proceeding – wholly bereft of any
bonafides – oppressive and vexatious and liable to
be aborted to prevent miscarriage of justice? Will
not the continuance of such a proceeding amount to
harassment of the landlord, who is forced to bear
a tenant, without receiving rent? If the cause
espoused is not shown to be fair, legitimate or at
least bonafide, can it be held that the
O.P.(C) Nos.2307 & 2309 of 2022
and 1446 of 2023
2024:KER:71197
-: 65 :-
plaintiff/tenant still has a right to continue the
legal proceeding, for the sake of it? In
permitting such continuance, which legal right of
the plaintiff/tenant is being recognised in law?
If it is sure that the plaintiff/tenant, by his
own conduct, renders it impossible to grant the
relief sought for, is not such a litigation liable
to be shortened, so as to save the valuable time
of the court, as also, harassment and expenses to
the landlord?
48. The answers to the above questions are not far
to seek and it converges to the conclusion that
the plaintiff/tenant, in the above referred fact
situation, is not entitled to institute, or for
that matter, to continue the litigation, as the
same would be nothing short of abuse of the
process of the court. Resultantly, courts will be
O.P.(C) Nos.2307 & 2309 of 2022
and 1446 of 2023
2024:KER:71197
-: 66 :-
justified in striking off the pleadings in such
cases, so as to subserve the ends of justice, or
in other words, to prevent miscarriage of justice.
49. In view of the above declaration of law, this
Court choose to issue the following guidelines to
ensure uniformity in dealing with cases of the
nature above referred:
i) The tenant, who approaches a court
seeking injunction from forcible
eviction shall swear to an
affidavit – to be submitted along
with the plaint – stating that the
agreed rent, which falls due up to
the month previous to the month of
filing has been paid to the
landlord and that he will continue
to do so, pending the litigation.
In case, the rent is not being
paid, the tenant/plaintiff shall
explain in the affidavit
the reasons justifying such
O.P.(C) Nos.2307 & 2309 of 2022
and 1446 of 2023
2024:KER:71197
-: 67 :-
non-payment. The same procedure is
to be followed in cases where the
tenant, as a defendant, files any
application for injunction from
forcible eviction against the
plaintiff.
ii) In all cases where the tenant swears
to an affidavit asserting payment
of rent and where the
tenant/plaintiff makes out a prima
facie case that he is a tenant, the
courts will generally grant an ex-
parte ad interim order of
injunction restraining eviction of
the tenant, except in accordance
with law. In cases where the
affidavit indicates that the rent
has not been paid, the court will
address whether the justification
offered for such non-payment is
prima facie acceptable. Courts
should, as a general rule, adopt a
liberal standard at the ex-parte
stage, while adjudging so. If the
O.P.(C) Nos.2307 & 2309 of 2022
and 1446 of 20232024:KER:71197
-: 68 :-explanation offered is prima facie
satisfactory, courts should grant
an ex-parte ad interim order of
injunction, as indicated above.
iii) Upon the defendant/landlord entering
appearance, if it is shown that the
agreed rent has not been paid –
contrary to the affidavit sworn to
by the plaintiff/tenant – the
court, after hearing the parties,
and on being satisfied of the same,
will issue an order directing the
tenant/plaintiff to deposit the
arrears of rent, within a time
frame fixed by the court. The same
course is to be followed in cases
where the Court is satisfied, after
hearing both sides, that there is
no justification for non-payment of
rent.
iv) In adjudicating the question as to
whether the agreed rent has been
paid or not, the Civil Courts will
O.P.(C) Nos.2307 & 2309 of 2022
and 1446 of 2023
2024:KER:71197
-: 69 :-
be guided by the principles of
Section 12 of the Rent Control Act,
as also, the exposition of law in
this regard by the High Court and
the Supreme Court.
v) If the plaintiff/tenant deposits
such arrears of rent, along with
an undertaking to continue to
pay/deposit further rent pending
litigation, the interim order of
injunction shall be made absolute,
pending adjudication of the lis.
vi) If the tenant/plaintiff fails to
make such deposit, the interim
order of injunction shall be
vacated at the first instance; and
the court shall grant further time
as it deems fit and proper for the
tenant to deposit such arrears.
vii) If such deposit is made, the
interim injunction shall be revived
on condition that the
O.P.(C) Nos.2307 & 2309 of 2022
and 1446 of 2023
2024:KER:71197
-: 70 :-
tenant/plaintiff undertakes to pay
future rent, without fail.
viii) If such a deposit of arrears is
not made even by the extended time,
the pleadings are liable to be
struck off invoking the powers
under Section 151 C.P.C.
50. The above instructions are only broad and
general guidelines. Needless to say that the civil
courts will be at liberty to deviate/depart from
the same for weighty reasons, if the individual
facts and circumstances justify the same.
51. Having declared as above, the impugned orders
in all the three Original Petitions are hereby set
aside. The matters are remitted back to the trial
court to reconsider the interlocutory
application/s afresh, in the light of the law laid
down above and to pass necessary orders therein,
O.P.(C) Nos.2307 & 2309 of 2022
and 1446 of 2023
2024:KER:71197
-: 71 :-
in accordance with law.
52. The Registrar (Judicial) is directed to serve
a copy of this judgment to all civil courts of the
State for necessary guidance and compliance. The
Registrar General is also directed to place the
judgment before the Rule Committee of the High
Court to consider whether necessary State
amendment – in accord with the relevant provisions
of the Code of Civil Procedure as applicable in
the States of Uttar Pradesh, Maharashtra, Punjab
and Haryana etc – has to be made to the Code of
Civil Procedure enabling striking off defence, in
cases where the tenant fails to pay/deposit the
rent, even after the court directing the same to
be done within a time frame.
53. Appreciation galore to Sri. Jacob P. Alex, the
O.P.(C) Nos.2307 & 2309 of 2022
and 1446 of 2023
2024:KER:71197
-: 72 :-
learned Amicus, for the invaluable service
rendered in resolving the legal issues involved.
These Original Petitions are disposed of, as
above.
Sd/-
C.JAYACHANDRAN, JUDGE
ww/vdv
2024:KER:71197
APPENDIX OF OP(C) 2307/2022
PETITIONER’S EXHIBITS:
EXHIBIT P1 THE TRUE COPY OF THE PLAINT IN OS
NO.200/2018 ON THE FILE OF THE
MUNSIFF’S COURT, CHITTUR.
EXHIBIT P2 TRUE COPY OF THE WRITTEN STATEMENT
FILED IN EXHIBIT P1 SUIT.
EXHIBIT P3 TRUE COPY OF IA NO.435/2021 FILED IN
EXHIBIT P1 SUIT.
EXHIBIT P4 TRUE COPY OF THE COUNTER AFFIDAVIT
FILED IN EXHIBIT P3.
EXHIBIT P5 TRUE COPY OF THE ORDER DATED 25-08-2022
PASSED IN EXHIBIT P3 APPLICATION.EXHIBIT P6 TRUE COPY OF IA NO.2361/2022 FILED IN
EXHIBIT P1 SUIT.
2024:KER:71197
APPENDIX OF OP(C) 2309/2022
PETITIONER’S EXHIBITS:
EXHIBIT P1 THE TRUE COPY OF THE PLAINT IN O.S
NO.202/2018 ON THE FILE OF THE MUNSIFF’S
COURT, CHITTUR.
EXHIBIT P2 TRUE COPY OF THE WRITTEN STATEMENT FILED
IN EXHIBIT P1 SUIT.
EXHIBIT P3 TRUE COPY OF IA NO.437/2021 FILED IN
EXHIBIT P1 SUIT.
EXHIBIT P4 TRUE COPY OF THE COUNTER AFFIDAVIT FILED
IN EXHIBIT P3.
EXHIBIT P5 TRUE COPY OF THE ORDER DATED 25-08-2022
PASSED IN EXHIBIT P3 APPLICATION.
EXHIBIT P6 TRUE COPY OF IA NO.2363/2022 FILED IN
EXHIBIT P1 SUIT.
2024:KER:71197
APPENDIX OF OP(C) 1446/2023
PETITIONERS’ EXHIBITS:
EXHIBIT P1 CERTIFIED COPY OF THE POWER OF ATTORNEY
DATED 15.04.2021 DULY AUTHORIZED ON BEHALF
OF THE 1ST PETITIONER.
EXHIBIT P2 A TRUE COPY OF THE SUIT BEARING OS NO. 122
OF 2021 ON THE FILES OF THE MUNSIFF COURT,
NORTH PARAVUR.
EXHIBIT P3 A TRUE COPY OF THE RENT AGREEMENT DATED
27.11.2019 EXECUTED BETWEEN THE 1ST
PETITIONER AND THE RESPONDENT.
EXHIBIT P4 A TRUE COPY OF THE ORDER DATED 14.03.2022
IN IA NO.2 OF 2021 IN OS NO.122 OF 2021 ON
FILES OF MUNSIFF COURT NORTH PARAVUR.
EXHIBIT P5 A TRUE COPY OF THE IA NO.8 OF 2021 IN OS
NO.122 OF 2021 ON THE FILES OF THE MUNSIFF
COURT NORTH PARAVUR.
EXHIBIT P6 A TRUE COPY OF THE ORDER DATED 14.03.2022
IN IA NO.8 OF 2021 IN OS NO.122 OF 2021 ON
THE FILES OF MUNSIFF COURT, NORTH PARAVUR.
EXHIBIT P7 A TRUE COPY OF THE IA NO.14 OF 2021 IN OS
NO.122 OF 2021 ON THE FILES OF MUNSIFF
COURT, NORTH PARAVUR.
EXHIBIT P8 A TRUE COPY OF THE OBJECTION FILED BY THE
RESPONDENT IN IA NO.14 OF 2021 IN OS NO.
122 OF 2021 ON THE FILES OF MUNSIFF COURT
NORTH, PARAVUR.
EXHIBIT P9 A TRUE COPY OF THE COUNTER CLAIM CUM
WRITTEN STATEMENT FILED BY THE PETITIONER
IN OS NO.122 OF 2021 ON FILES OF MUNSIFF
COURT, NORTH PARAVUR.
2024:KER:71197
APPENDIX OF OP(C) 1446/2023
EXHIBIT P10 A TRUE COPY OF THE IA NO.17 OF 2022 IN OS
NO.122 OF 2021 ON THE FILES OF MUNSIFF
COURT, NORTH PARAVUR.
EXHIBIT P11 A TRUE COPY OF THE OBJECTION FILED BY THE
RESPONDENT IN IA NO.17 OF 2022 IN OS NO.
122 OF 2021 ON THE FILES OF MUNSIFF COURT,
NORTH PARAVUR.
EXHIBIT P12 A TRUE COPY OF THE ORDER DATED 20.10.2022
IN IA NO.17 OF 2022 IN OS NO.122 OF 2021 ON
THE FILES OF THE MUNSIFF COURT, NORTH
PARAVUR.
EXHIBIT P13 A TRUE COPY OF THE IA NO.24 OF 2022 IN OS
NO.122 OF 2021 ON THE FILES OF THE MUNSIFF
COURT, NORTH PARAVUR.
EXHIBIT P14 A TRUE COPY OF THE OBJECTION FILED BY THE
RESPONDENT IN IA NO.24 OF 2022 IN OS NO.
122 OF 2021 ON THE FILES OF THE MUNSIFF
COURT, NORTH PARAVUR.
EXHIBIT P15 A TRUE COPY OF IA NO.28 OF 2022 IN OS NO.
122 OF 2021 ON THE FILES OF THE MUNSIFF
COURT NORTH PARAVUR.
EXHIBIT P16 A TRUE COPY OF THE ORDER DATED 28.01.2023
IN IA NO.14 OF 2021 IN OS NO.122 OF 2021 ON
THE FILES OF THE MUNSIFF COURT, NORTH
PARAVUR.
EXHIBIT P17 A TRUE COPY OF THE ORDER DATED 28.01.2023
IN IA NO.24 OF 2022 IN OS NO. 122 OF 2021
ON THE FILES OF THE MUNSIFF COURT, NORTH
PARAVUR
EXHIBIT P18 A TRUE COPY OF THE ORDER DATED 28.01.2023
IN IA NO.28 OF 2022 IN OS NO.122 OF 2021 ON
THE FILES OF THE MUNSIFF COURT, NORTH
PARAVUR
2024:KER:71197
APPENDIX OF OP(C) 1446/2023
EXHIBIT P19 A TRUE COPY OF THE WRITTEN STATEMENT DATED
23.03.2023 FILED BY THE RESPONDENT TO THE
COUNTER CLAIM PREFERRED BY THE PETITIONERS
HEREIN IN OS NO.122/2021 ON THE FILES OF
THE MUNSIFF COURT, NORTH PARAVUR
RESPONDENT’S EXHIBITS:
EXHIBIT R1(A) A TRUE COPY OF THE BANK STATEMENT OF THE
RESPONDENT FROM 01.01.2019 TO 31.03.2021EXHIBIT R1(B) A TRUE COPY OF THE RENTAL AGREEMENT DATED
18.04.2021.