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CASE NO.: Appeal (civil)  5183 of 2006

PETITIONER: G.L. Vijain                                                              

RESPONDENT: K. Shankar                                                                 

DATE OF JUDGMENT: 24/11/2006

BENCH: S.B. Sinha & Markandey Katju

JUDGMENT: J U D G M E N T (Arising out of SLP (C) No. 23738 of 2004)  

S.B. SINHA, J.

Leave granted.

       Extent 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:

"This 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.

       We are not concerned herein with the merit of the matter.   

       The 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.

       Mr. K.V. Viswanathan, learned counsel appearing on behalf of the

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respondent, in support of the impugned order, would submit that the High  Court has plenary jurisdiction to pass such an order as: (i)     its powers are implied and, thus, there need not be any express  provision in this behalf;  (ii)    a statute can never be exhaustive and, thus, the court can exercise its  inherent jurisdiction;  (iii)   the High Court’s jurisdiction being plenary, it can evolve its own  procedure;  (iv)    the power to pass any interim order is incidental or ancillary to its  appellate jurisdiction;  (v)     the revisional power conferred under Section 25 of the Act is wider.

       We 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 power.   There cannot further be any dispute that the court in appropriate cases can  exercise its inherent jurisdiction to pass an interim order.   

       It is, 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.

       It 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.

       Such a 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.

       Incidental 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.  

       The expression ’ancillary’ means aiding, auxiliary; subordinate;  attendant upon; that which aids or promotes a proceeding regarded as the  principal.

       The expression ’incidental’ may mean differently in different contexts.  While 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

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between an incidental proceeding and a supplemental proceeding is evident.

       There 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.   

       In Narinder Mohan Arya v. United India Insurance Co. Ltd. and  Others [(2006) 4 SCC 713], this Court observed:

"47. 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.   Whereas 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  conditions.

       In Tea Auction Ltd. v. Grace Hill Tea Industry & Anr. [2006 (9)  SCALE 223], it was stated:

"Order 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.   There 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.

       However, we may notice that in Devi Theatre v. Vishwanath Raju  [(2004) 7 SCC 337], a Division Bench of this Court has clearly held:  "5. The learned counsel for the appellant submits  that appeal lies from every decree passed by any  court exercising original jurisdiction. The

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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 admission. 6. It 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.  Otherwise 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.   

       We 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.

       For 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.   No costs.