Nagendra Rai, J.
1. The defendants-' tenants have filed the present revision application against the order dated 11-1-1988 passed by Munsif, 1st Court, Samastipur in Misc. Case No. 6 of 1987 by which he has rejected the application of the petitioners under Order IX, Rule 13 of the Code of Civil Procedure (hereinafter to be referred to as the Code) for setting aside the ex parte decree dated 29-4-1987 passed in Title Suit No. 1 of 1987 on the ground that the aforesaid application was not maintainable in view of the specific provisions contained in Section 14 of the Bihar Buildings (Lease, Rent & Eviction) Control Act, 1982 (hereinafter to be referred to as the Act).
2. Primary question for determination in the present case is as to what is the remedy available in law to a tenant to challenge an order of eviction passed against him under Section 14(4) of the Act on the ground that the said order was passed without service of summons on him for his appearance.
3. As the point involved is a pure question of law, a detailed factual background is not necessary in this case. The original plaintiff-opposite party (now dead and his heirs and legal representatives have been substituted) had filed suit for eviction on 12-1-1987 against the petitioners from the suit premises which is a shop situate in Mohalla Kasbe Aahar, P.S. Tajpur, District Samastipur on the ground of personal necessity. According to the case of the plaintiff, the defendants were inducted tenants of the premises on the monthly rental of Rs. 111/-. He wanted the suit premises for starting a business for his son. He requested the defendants to vacate the premises but they refused, hence the suit for eviction.
4. Summonses were issued to the petitioners both in ordinary course as well as by registered post with acknowledgement due. Summonses sent in ordinary course are alleged to have been served upon the petitioners who after knowing the contents of the same, refused to sign the same. The summonses sent by registered post were returned by the postal peon with a report that no men of such names could be traced out at the place mentioned in the envelopes. The Court treated the summonses sent in ordinary course to have been served upon the petitioners and thereafter, as the petitioners did not appear to contest the suit, an ex parte decree dated 29-4-1987 for eviction against the petitioners was passed. On 14-5-1987 the plaintiff filed a petition for the amendment of the ex parte order dated 29-4-1987 on the ground that no specific date was given in the decree by which the defendants were directed to vacate the suit premises and thereafter the Court by order dated 25-5-1987 amended the 'decree and directed the defendants-petitioners to vacate the premises within thirty days from the date of the order of the amendment.
5. According to the case of the petition-
ers, on 28-4-1987 they came to know that
some suit had been filed against them in which
29-4-1987 was notified as the next date.
Petitioner No. 1 made an enquiry about the
present case and thereafter after having come
to know about the filing of the present suit
filed vakalatnama in the suit on 29-4-1987
itself but he was informed that on the same
day an ex parte decree had been already
passed. Thereafter, he filed a petition for
recalling the aforesaid ex parte decree but the
Court below passed order that the aforesaid
petition should be kept on the record. There
after, he filed the present application for
setting aside the ex pane decree stating there
in that they were not the tenants of the suit
premises and the same belongs to them. No
summons either in ordinary course or by
registered post was served upon them. The
report submitted by the peon with regard to
the service of summons on them in ordinary
course was a false one as no summonses have
ever been served upon them which are said to
have been refused by them. An ex parte decree
has been obtained by the plaintiff against
them fraudulently by suppressing the sum
monses on them.
6. The plaintiff filed a rejoinder to the said petition and asserted that the summonses were duly served and the application filed under Order IX, Rule 13 of the Code was not maintainable for setting aside the ex parte decree.
7. The plaitiff-opposite parties filed a petition (Annexure-1) before the Court below on 10-6-1987 praying therein that the question of maintainability of the application under Order IX, Rule 13 of the Code may be decided as preliminary issue. A rejoinder to the said petition was filed by the petitioner, a copy of which has been annexed as Annexure-2, wherein it has been stated that the application under Order IX, Rule 13 of the Code was maintainable and thereafter the Court considered the aforesaid question and by the impugned order dated 11-1-1988 held that the application under Order IX, Rule 13 of the Code was not maintainable for setting aside the decree/order passed under Section 14(4) of the Act.
8. This civil revision was placed before a learned single Judge for admission who, while admitting the referred the matter for hearing before a Division Bench as according to him the questions involved in the case required interpretation of the special procedure for disposal of the case for eviction as provided under Section 14 of the Act.
9. Learned counsel appearing on behalf of the petitioners, Mr. Uday Shankar Sharan Singh, submitted that when an order for eviction is passed against the tenant under Section 14(4) of the Act in default of his appearance an application for setting aside the aforesaid order is maintainable under Order IX, Rule 13 of the Code in view of the provisions contained in Section 14(7) of the Act which provides that notwithstanding anything contained in the Code of Civil Procedure, or any other law, the Court while hearing a suit under this section shall follow the practice and procedure of Court of Small Causes including the recording of evidence. According to him, practice and procedure to be followed by the Small Cause Court has been stated in Chapter IV of the Provincial Small Cause Courts Act, 1887 and according to Section 17 of the said Act the procedure prescribed under the Code shall save in so far as is otherwise provided by that Code or by Provincial Small Cause Courts Act be the procedure followed in a Court of Small Causes in all suits cognizable by it and in all proceedings arising out of such suits. By virtue of the aforesaid section, provisions of Order IX, Rule 13 of the Code will be attracted in this case and as in the present case summonses were not duly served, the application under Order IX, Rule 13 of the Code was maintainable before the Court below. In support of his submission, learned counsel for the petitioners relied upon a judgment of the learned single Judge of this Court in the case of Narain Chandra Gorain v. Amulyadhan Banerjee, reported in 1987 PLJR 1158. He also relied upon a decision of the Delhi High Court in the case of Sri Chaman Lal v. Sq. Ldr. Prakash reported in 1980 (I) All India Rent Control Journal 483.
10. Learned counsel appearing on behalf of the plaintiff-opposite parties, Sri Arun Bihari Mathur, on the other hand, contended that the special procedure for disposal of eviction suit filed by the landlord on the ground of personal necessity and on the ground of expiry of lease as contained in Sections 11l(1)(c) and 11(c)(e) respectively of the Act has been provided under Section 14 of the Act and in view of the provisions of Section 13 of the Act the provisions of Section 14 or any Rule made therein shall have effect notwithstanding anything inconsistent therewith contained either in the Act or in any other law for the time being in force. It has been submitted that in a case where an order of eviction is passed either under provision of Section 14(4) of the Act on the deemed admission of the tenants or on merits, the only remedy of the tenant against the order of eviction is revision under proviso to Sub-section (8) of Section 14 of the Act and not an application under Order IX, Rule 13 of the Code.
11. As the controversy between the parties centres round the scope of Sections 13 and 14 of the Act, it is apt to reproduce the aforesaid sections for the proper appreciation of the submissions advanced by the parties.
Section 13 -- 'The provisions of Section 14 to have overriding effect -- The provisions of Section 14 or any rule made thereunder shall have effect notwithstanding anything inconsistent therewith contained elsewhere in this or in any other law for the time being in force.'
Section 14 -- 'Special procedure for disposal of cases for eviction on ground of bona fide requirement -
(1) Every suit by a land lord for the recovery of possession of any premises on the ground specified in Clauses (c) and (e) of Sub-section (1) of Section 11 shall be dealt with in accordance with the procedure specified in this section
(2) The Court shall issue summons in the prescribed form in every suit referred in subsection (1) without delay.
(3)(i)The Court shall, in addition to, and simultaneously with, the issue of summons for service on the tenant or tenants, also direct the summons to be served by registered post with acknowledgment due, addressed to the tenant or his agent empowered to accept the service at the place where the tenant or his agent actually and voluntarily resides or carries on business or personally works for gain and may, if the circumstances of the case so require also direct the publication of the summons in the official gazette or in newspapers circulating in the locality, in which the tenant is last known to have resided or carried on business or personally worked for gain, (ii) When an acknowledgment purporting to be signed by the tenant or his agent is received back with an endorsement purporting to have been made by a postal employee to the effect that the tenant or his agent has refused to take delivery of the registered article, the Court may declare that there has been a valid service of summons.
(4) The tenant on whom summons is duly served (whether by ordinary mail or by registered post) shall not contest the prayer for eviction from the premises unless he files an affidavit stating the ground on which he seeks to make such contest and obtains leave from the Court as hereinafter provided, and in default of the appearance in pursuance of the summons or his obtaining such leave the statement made by the landlord in the suit for eviction shall be deemed to be admitted by the tenant and the landlord shall be entitled to an order for eviction on the ground aforesaid.
(5) The Court shall give to the tenant leave to contest the suit if the affidavit filed by the tenant discloses such facts as would disentitle the landlord from obtaining an order for eviction on the grounds specified in Clauses (c) and (e) of Sub-section (1) of Section 11.
(6) When leave is granted to the tenant to contest the suit, the latter may, within fifteen days from the date of the order, pray after filing the requisite Court fee, required for a written statement that the affidavit may be treated as the written statement or if he chooses to file a separate written statement he may do so within fifteen days of the grant of leave to contest the suit and if he does not file the written statement within the period he shall not be allowed to do so later. The Court shall thereafter commence the hearing of the suit as early as practicable.
(7) Notwithstanding anything contained in the Code of Civil Procedure, 1908 (V of 1908) or any other law, the Court while hearing a suit under this section shall follow the practice and procedure of a Court of Small Causes including the recording of evidence.
(8) No appeal or second appeal shall lie against an order for the recovery of possession of any premises made in accordance with procedure specified in this section :
Provided that on an application being made within sixty days of the date of the order of eviction the High Court may for the purpose satisfying itself that an order under the section is according to law, call for the records of the case and pass such order in respect thereto as it thinks fit.
(9) Where no application has been made to the High Court in revision as laid down in Sub-section (8) above, the Court, which passed the order for eviction may exercise the powers of review in accordance with the provision of Order XLV1I of the First Schedule to the Code of Civil Procedure, 1908 (V of 1908):
Provided that no such review shall be made unless an application is filed for the same within ninety days of the date of order of eviction.'
12. It is to be stated here that the Act has been enacted to regulate letting of building and the rent of such buildings and to prevent unreasonable eviction of tenants therefrom in the State of Bihar. A tenancy is initially based on an agreement or contract. With a view to protect the tenant from unreasonable eviction, Bihar Buildings (Lease, Rent and Eviction) Control Act, 1947 was passed and the same was replaced by another Act of 1977 and thereafter by the present Act which came into force in January, 1983. According to Section 11(1) of the Act, a tenant is not liable to eviction except in execution of a decree passed by a Court on one or more of the grounds mentioned in the said sub-section. All the suits for eviction are filed in Civil Court under Section 9 of the Act on any of the grounds enumerated therein. Before the present Act all the suits on any of the grounds as mentioned in Section 11 of the Act were disposed of by following the procedure as prescribed under the Code and thereafter a decree was passed which was appealable under Sections 96 and 100 of the Code. In many cases it was noticed that the disposal of the case took longer time because of delaying tactics adopted by the tenants as a result of which many of the landlords became sufferer in the sense that though they wanted the suit premises urgently on the ground of personal necessity or expiry of terms of lease but they could not get relief due to delaying tactics adopted by the tenant. The Legislature being conscious of the aforesaid situation for the first time introduced Section 14 in the present Act prescribing special summary procedure for disposal of the eviction suit filed by the landlord for eviction of the tenant on the ground of personal necessity as mentioned in Section 11(1)(c) and on the ground of expiry of the lease as mentioned in Section 11(1)(e) of the Act. The aforesaid provisions have been introduced for the benefit of the landlords so that they may obtain a decree on the aforesaid grounds quickly.
13. A bare perusal of Section 14 of the Act will show that a departure of substantial nature has been made from the provision provided under the Code of Civil Procedure for disposal of the suit. Sub-section (2) of Section 14 provides that after filing of the suit summons shall be issued in the prescribed form without delay and Sub-section (3)(i) provides that, in addition to, and simultaneously with the issue of summons for service on the tenant, the Court shall also direct the summons to be served by registered post with acknowledgment due addressed to the tenant or his agent empowered to accept the service at the place mentioned in the aforesaid subsection. Sub-section (3)(ii) provides that when an acknowledgment purporting to be signed by the tenant or his agent is received back and the endorsement made by the postal employee to the effect that the tenant or his agent has refused to take delivery of the registered article, the Court may declare that there has been a valid service of summons. According to Sub-section (4) the tenant on whom summons is duly served shall not contest the prayer for eviction from the premises unless he files an affidavit stating the ground on which he seeks to make such contest and obtains leave from the Court. It further provides that in default of the appearance in pursuance of the summons or his obtaining such leave the statement made by the landlord in the suit for eviction shall be deemed to be admitted by the tenant and the landlord shall be entitled to an order for eviction on the ground mentioned. Sub-section (5) provides the ground on which the tenant is to get leave to contest the suit. Sub-section (6) provides the tenant to file written statement to contest the suit or to inform the Court that affidavit filed by him may be treated as written statement. If he does not file written statement within the said period, he shall not be allowed to do so later. After filing of the written statement the Court shall commence the hearing of the suit as early as possible. Sub-section (7) provides that the Court while hearing the suit shall follow the practice and procedure of a Court of Small Causes including the recording of evidence. Sub-section (8) provides that no appeal or second appeal shall lie against an order of eviction but provides revision against the order of eviction before the High Court and subsection (9) provides a power of review to the Court in accordance with the provision of Order XLVII of the First Schedule to the Code of Civil Procedure in case no revision has been filed under Sub-section (8) of Section 14 of the Act.
14. At the outset I may mention that there is nothing like an ex parte decree or order being passed under Section 14(4) of the Act in case of default on the part of the tenant to appear after service of summons. When the defendant does not appear in spite of service of summons the Court does not pass an ex-parte decree/order; on the other hand, the statement made by the landlord is deemed to be admitted by the tenant and the landlord is entitled to an order of eviction on the grounds' mentioned in the plaint. The order passed, in the present case is not an ex parte order but an order for eviction on the deemed admission of the tenant as provided under Sub-section (4) of Section 14 of the Act.
15. The question for consideration is as to whether in view of the specific procedure provided for disposal of the suit for eviction on the aforesaid two grounds, the provisions of the Code of Civil Procedure including Order IX, Rule 13 is applicable by virtue of Sub-section (7) of Section 14 of the Act when the order for eviction has been passed against the tenant in default of his appearance.
16. Hi, The said question has to be determined with reference to the provisions of Sections 13 and 14 of the Act. As stated above, the order of eviction passed under Section 14(4) of the Act on the basis of the deemed admission of the tenant is not an ex parte order/decree and as such the provisions under Order IX, Rule 13 which provides for setting aside the ex parte decree will not be applicable in the case.
17. After filing of the suit and up to the stage of grant or refusal of the leave to contest the suit as provided under Sub-section (4) of Section 14 of the Act, a special procedure has been provided by Section 14 of the Act. If the defendant-tenant does not appear or the leave to contest the suit has been refused then the landlord shall be entitled to an order of eviction as provided by Sub-section (4) of Section 14 of the Act. Whereas under the Code of Civil Procedure Order IX provides procedure for appearance and consequence of non-appearance of the parties in the suit. According to Order IX, Rule 6 where the plaintiff appears and the defendant does not appear when the suit is called on for hearing and it is proved that the summonses have been duly served, the Court may order that the suit be heard ex parte. In case, the summons was not served, the Court shall direct the issuance of second summons for service on the defendant. Order IX, Rule 7 provides that where the suit is adjourned for ex parte hearing and the defendant at or before such hearing appears and assigns good cause for his previous non-appearance, the Court may, upon such terms as to costs or otherwise permit the defendant to be heard in answer to the suit as if he had appeared on the day fixed for his appearance. Where the suit is decreed ex pane, the remedy provided under the aforesaid Order is Rule 13 which permits the defendant to apply to the Court by which the decree was passed for an order to set it aside and if he satisfies the Court that the summons was not duly served, or that he was prevented by any sufficient cause from appearing when the suit was called on for hearing, the Court shall make an order setting aside the decree as against him on such terms as to costs, payment into Court or otherwise as it thinks fit and shall appoint a day for proceeding with the suit. Under Section 14 of the Act, no such option as given to the Court and on default of appearance of the defendant in pursuance of the summons or in default of obtaining leave to contest the suit, the statement made by the landlord in the suit for eviction shall be deemed to be admitted by the tenant and the landlord shall be entitled to an order for eviction on the aforesaid ground. Thus it is clear that the procedure provided under Order IX for non-appearance of the defendant is inconsistent with the provisions contained under Section 14(4) of the Act and in view of Section 1,3 of the Act the provision of Sub-section (4) of Section 14 shall have overriding effect arid provisions of Order IX, Rule 13 shall not apply.
18. There is another ground to reject the aforesaid submission. Further Sub-section (7) of Section 14 says that notwithstanding anything contained in the Code of Civil Procedure or any other law, the Court while hearing a suit under this section shall follow the practice and procedure of a Court of Small Causes including the recording of evidence. Chapter IV of the Provincial Small Cause Courts Act provides practice and procedure. Section 17 falling under the said Chapter is as follows :
'Application for the Code of Civil Procedure-
(1) The procedure prescribed in the Code of Civil Procedure, 1908 shall, save in so far as is otherwise provided by that Code or by this Act, be the procedure followed in a Court of Small Causes in all suits cognizable by it and in all proceedings arising out of such suits:
Provided that an applicant for an order to set aside a decree passed ex parte or for a review of judgment shall, at the time of presenting his application, either deposit in the Court the amount due from him under the decree or in pursuance of the judgment, or give such security for the performance of the decree or compliance with the judgment as the Court may on a previous application made by him in this behalf have directed.
(2) Where a person has become liable as surety under the proviso to Sub-section (1), the security may be realized in manner provided by Section 145 of the Code of Civil Procedure, 1908.'
The said section deals with the procedure of Small Cause Court and according to the said section the procedure prescribed under the Code of Civil Procedure shall apply to Small Cause Court including the procedure under Order IX, Rule 13 for setting aside the ex parte decree. Thus, in view of the said provision, the procedure provided under the Code of Civil Procedure will apply before the Court while hearing the suit in accordance with the provisions of Section 14 of the Act.
19. The question arises as to when the hearing commences under Section 14 of the Act. In this connection, Sub-section (6) of Section 14, as quoted above, is relevant. According to said section, the hearing commences after filing of the, written statement. Accordingly, when the suit is at the stage of grant or refusal of leave to contest the prayer of eviction, or at the stage of passing an order of eviction on the deemed admission of the tenant as contemplated under Section 14(4) of the Act the hearing does not commence and in that view of the matter an application under Order IX, Rule 13 of the Code for setting aside an order of eviction under Section 14(4) of the Act on the ground that summonses are not served upon the defendants is not maintainable in law.
20. I may mention at this place that if the suit is at the stage of hearing as contemplated under Sub-section (7) of Section 14 of the Act, the practice and procedure of Small Cause Courts shall apply in the suit and by virtue of Section 17 of Chapter IV of the Provincial Small Cause Courts Act the provisions of Code of Civil Procedure shall apply. If during the course of hearing the defendant does not appear and the order is passed ex parte then by virtue of Section 17 of the Small Cause Courts Act the provisions of Order IX, Rule 13 shall be attracted in the case and the Court' may set aside the ex parte decree on fulfilment of the condition mentioned in the aforesaid rule.
21. In the case of Narain Chandra Gorain (supra) learned single Judge of this Court held that if the tenant does not appear in spite of service of summons and the order for eviction has been passed under Sub-section (4) of Section 14 of the Act, then the defendant has right to file an application for setting aside the order under Order IX, Rule 13 of the Code on the ground that in view of the provisions of Section 14(7) of the Act the Court is required to follow the procedure laid down by the Provincial Small Cause Courts Act. It was also held in the said case that revision application against the said order is maintainable but the tenant is not estopped from filing an application under Order IX, Rule 13 of the Code. The conclusion arrived at by the learned single Judge is as follows :
'For harmonious construction of Section 4(4) and Section 14(7) of the Act, the irresistible conclusion is that the Court is required to follow the procedure laid down under the Provincial Small Cause Courts Act as well as the procedure as laid down under Section 14(4) of the Act. If it is so, then the defendant tenant has a right to file an application under Order IX, Rule 13 of the Code. If it is so, the Court erred in law in holding that the application under Order IX, Rule 13 of the Code is not maintainable.
Learned counsel for the opposite party, contends that after final judgment the petitioner ought to have moved Civil Revision Petition under Section 14(8) of the Act. It is true that the petitioner could have moved a Civil Revision under Section 14(8) of the Act but the petitioner is not estopped from filing an application under Order IX, Rule 13 of the Code. In my opinion, it can be done by the petitioner and the petition under Order IX, Rule 13 of the Code is maintainable.'
22. In my view, the aforesaid judgment does not lay down the correct law for the simple reason that there the learned Judge failed to take note of the fact that at the stage of Section 14(4) when the question of grant and refusal of leave to contest the suit against the prayer for eviction is decided or where the order of eviction is passed on the deemed admission of the tenant the hearing of the suit does not commence. As the hearing does not commence at that stage there is no question of application of Section 14(7) of the Act which envisages the applicability of the practice and procedure of a Court of Small Causes at the hearing of the suit. Accordingly, the law laid down in the aforesaid case that when the case is at the stage of Section 14(4) of the Act by virtue of Sub-section (7) of Section 14 of the Act the provision of Order IX, Rule 13 will apply is not a good law and is hereby overruled. The other decision relied upon by the learned counsel for the petitioners of the Delhi High Court in the case of Sri Chaman Lal (supra), no doubt, has taken the same view as the learned Judge of this Court has taken in the aforesaid case but for the reasons stated above I do not agree with the reasonings given in the aforesaid decision. Thus I hold that when the suit is at the stage of Section 14(4) of the Act the hearing does not commence and accordingly the provisions of Order IX, Rule 13 will not apply when order of eviction have been passed in default of the tenant to appear and contest the suit and the same is challenged on the ground that no summons was served on him. However, after the hearing commences and the defendant does not appear and order/decree is passed ex parte then the provisions of Under Order IX, Rule 13 shall apply by virtue of Section 17 of the Small Cause Courts Act read with Section 14(7) of the Act.
23. The next question for consideration is as to what is the 'remedy available to the tenant in such a situation. Proviso to Sub- section (8) of Section 14 of the Act provides for filing a revision by the tenant against an order of eviction before the High Court within the time prescribed therein. There can be no dispute on the point that a tenant can file a revision under the aforesaid provision when an order of eviction has been passed against him either under Sub-section (4) of Section 14 of the Act or the same has been passed on merit but the question is when the Court has passed an order of eviction under Section 14(4) of the Act on the ground that the tenant has not appeared in spite of service of summons and the tenant on his appearance challenges the said order on the ground that summonses were not duly served, the remedy by way of revision can be said to be an effective and purposeful remedy, Similarly, whether an application for review under Sub-section (9) of Section 14 of the Act can be said to be effective remedy.
24. Learned counsel appearing on behalf of the petitioners, during the course of argument, submitted that if the provisions of Order IX, Rule 13 is held to be not applicable at the stage of Section 14(4) of the Act when the order of eviction is passed in default of appearance of the defendant and is challenged on the ground of, non-service of summons then the Court can take recourse to the provisions of Section 151 of the Code of Civil Procedure for setting aside the order of eviction as the remedy of revision and review provided under the Act are not efficacious and meaningful remedy. Learned counsel appearing on behalf of the opposite parties, on the other hand, refuted the aforesaid submission on the ground that in view of specific provision of review and revision an application under Section 151 of the Code will not be maintainable as it is well settled that if there is specific provision under the Code or under any law dealing with the particular subject the same should be followed and the inherent jurisdiction should not be invoked. Section 151 of the Code runs as follows:
'Save 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.'
The aforesaid section preserves 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. Code of Civil Procedure is not exhaustive. The Legislature could not visualise all the situations which might arise in a cause and to provide a procedure for them and with that end in view the inherent power has been preserved in the Court to do justice to the parties as and when the circumstances require.
25. The scope of Section 151 of the Code came up for consideration before the Supreme Court in the case of Padam Sen v. State of Uttar Pradesh, reported in AIR 1961 SC 218: (1961 (l)Cri LJ 322). The question arose in that case was as to whether the Court has power to issue Commission under Section 151 of the Code regarding circumstances not covered by the provision of Section 75 and Order XXVI of the Code of Civil Procedure. Dealing with the said matter, the Supreme Court observed as follows at page 219:
'The inherent powers of the Court are in addition to the powers specifically conferred on the Court by the Code. They are complementary to those powers and therefore it must be held that the Court is free to exercise them for the purpose mentioned in Section 151 of the Code when the exercise of those powers is not in any way in conflict with what has been expressly provided in the Code or against the intentions of the Legislature. It is also well recognized that the inherent power is not to be exercised in a manner which will be contrary to or different from the procedure expressly provided in the Code.'
In the case of Mahohar Lal Chopra v. Rai Bahadur Rao Raja Seth Hiralal reported in AIR 1962 SC 527 : (1963 All LJ 169), the scope of Section 151 of the Code was considered. In that case the question in issue was whether the Court has power to issue injunction in exercise of inherent power when there is specific provision in the Code for issuance of injunction under Section 94 read with Order XXXIX of the Code. It was held in that case that the Courts have inherent jurisdiction to issue temporary injunction in the circumstances which are not covered by the provisions of Order XXXIX of the Code. The Supreme Court observed as follows at page 532:
'There is no such expression in Section 94 which expressly prohibits the issue of a tempoary injunction in circumstances not covered by Order XXXIX 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 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 effect and not in taking away the right of the Court to exercise its inherent power.'
It was further observed that the inherent powers are not controlled by the provisions of the Code. The observations made in the case of Padam Sen (Supra) were also noticed and thereafter it was held as follows:
'These observations clearly mean that the inherent powers are not in any way controlled by the provisions of the Code as has been specifically stated in Section 151 itself. But those powers are not to be exercised when their exercise may be in conflict with what had been expressly provided in the Code or against the intentions of the Legislature. This restiction, for the practical purposes, on the exercise of those powers is not because those powers are controlled by the provisions of the Code but because it should be presumed, that the procedure specifically provided by the Legislature for orders in certain circumstances is dictated by the interest of justice.'
Again the Supreme Court in the case of Ram Chand and Sons Sugar Mills Private Limited, Barabanki v. Kanhayalal Bhargava, reported in AIR 1966 SC 1899 considered the scope of Section 151 of the Code and held that 'the inherent power of a Court is in addition to and complementary to the powers expressly conferred under the Civil Procedure Code. But that power will not be exercised if or 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.' It was further observed that 'whatever limitations are imposed by construction on the provisions of Section 151 of the 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.' The scope of Section 151 was again the subject-matter of consideration in the case of Nain Singh v. Koonwarjee, reported in AIR 1970 SC 997, wherein it has been held as follows at page 998 :
'Under the inherent power of Courts recognized by Section 151 C.P.C., a Court has no power to do that which is prohibited by the Code. Inherent jurisdiction of the Court must be exercised subject to the rule that if the Code does contain specific provisions which would meet the necessities of the case, such provisions should be followed and inherent jurisdiction should not be invoked. In other words, the Court cannot make use of the special provisions of Section 151 of the Code where a party had his remedy provided elsewhere in the Code and he neglected to avail himself of the same. Further the power under Section 151 of the Code cannot be exercised as an appellate power.'
The scope of Section 151 was also considered by a Full Bench of five Judges of this Court in the case of Bajrang Rai v. Ismail Mian reported in 1978 PLJR 519 : (AIR 1978 Pat 339). The question came for consideration in the aforesaid case was as to whether in view of the specific provision of appeal contained in Order XLIII, Rule l(c) providing appeal from an order under Order IX, Rule 9 rejecting the application for an order to set aside the dismissal of the suit, an application under Section 151 of the Code was maintainable against the order dismissing the application under Order IX, Rule 9 of the Code for setting aside the dismissal of the suit for default.
26. This Court held that the application under Section 151 of the Code is maintainable even if the remedy of appeal is provided under Order XLII, Rule l(c) of the Code on the ground that remedy of appeal is not an effective remedy but is only an empty formality and observed as follows at page Pat 347 & 348; of AIR 1978 :
'Judged in the light of the aforesaid propositions, it is manifest that, where an application under Order IX, Rule 13 has been dismissed for default, merely on account of the fact that an appeal could be preferred against the order of dismissal for default of such application under Clause (d) of Rule 1 of Order XLIII that provision is not such which could be said to be a prohibition against entertaining an application under Section 151 of the Code for restoring an application under Order IX, Rule 13 of the Code. Under the scheme of the Code, where there is provision for appeal that does not necessarily bar other remedies for setting aside a decree. For example, Section 96 provides for appeal from a decree, unless it is expressly barred. It also provides for an appeal from an original decree passed ex parte. Nevertheless, provision has been made under Order IX, Rule 13 for setting aside such ex parte decree. The aggrieved party can also apply for review of a decree on the grounds mentioned in Order XLVII. He can also institute a suit for setting aside the decree on the ground of fraud. Therefore, provision for appeal against dismissal for default of an application under Order IX, Rule 9 or Rule 13 or under Order XLIII could not be said to expressly or impliedly bar filing of an application for restoration of an application under these Rules, the reason being, as I have' already mentioned, that in such cases, the party concerned without leading further evidence, will not be able to satisfy the Court that the order of dismissal for default of an application filed under Order IX, Rule 9 or Rule 13 should be set aside and the application restored. Provision for appeal in such cases will be illusory, as the parties will not be entitled to lead any evidence before the appellate Court as a matter of right. Order XLI, Rule 27 specifically lays down that the parties to an appeal shall not be allowed to adduce additional evidence, but, if the appellate Court requires any document to be produced or any witness to be examined, to enable it to pronounce judgment, or for any other substantial cause, it may allow such evidence to be given. The following observation of their Lordships of the Judicial Committee in Parsotim Thakur v. Lal Mohur Thakur (AIR 1931 Privy Council 143), made while examining the provisions of Order XLI, Rule 27(l)(b) may be usefully reproduced in this context:--
'Under Clause (l)(b) it is only where the appellate court 'requires' it (i.e. finds it needful) that additional evidence can be admitted. It may be required to enable the Court to pronounce judgment or for any other substantial cause, but in either case, it must be the Court that requires it. This is the plain grammatical reading of the sub-clause. The legitimate occasion for the exercise of this discretion is not whenever before the appeal is heard a party applies to adduce fresh evidence, but, 'when on examining the evidence as it stands some inherent lacuna or defect becomes apparent'.'
To the same effect is the observation of their Lordships of the Supreme Court in the case of Arjan Singh v. Kartar Singh (AIR 1951 SC 193), in which case the above decision has been relied on.
Such being the position, mere provision for appeal will not at all be an efficacious remedy but will be an empty formality in cases where the appellate Court does not allow additional evidence to be given. The trend of the decisions of the Supreme Court unmistakably shows that only in such cases where the remedy provided in the Code is such as can meet the necessities of the case, inherent powers of the Court may not be exercised. Therefore, I have no doubt in my mind that the decision in Doma Choudhary's case (supra) that, where an appeal is provided even when the remedy is not efficacious, it will bar the exercise of inherent powers, except in cases, where there is abuse of the process of the Court is no longer good law, in view of the decisions of the Supreme Court discussed above.'
27. A Full Bench of Calcutta High Court had occasion to consider the scope of 151 of the Code in the case of Smt. Bimla Devi v. Aghore Chandra Mallick, reported in AIR 1975 Cal 80. There the question involved was as to whether in spite of specific provision of appeal under Order XLIII, Rule l(j) providing appeal against the order setting aside or refusing to set aside the sale under Order XXI, Rule 90 of the Code an application under Section 151 was maintainable against the order dismissing the application for setting aside the sale for default. It was held therein that the remedy by way of appeal is illusory because the appellate Court would have to go by the records and to determine whether the appellant was prevented by sufficient cause from appearing before the trial Court. It was also held that the appellate Court would have no material to render a decision on the sufficiency of the case and can give no relief to the appellant and in such a situation it is open to the applicant to move the Court who passed the order of dismissal under Section 151 of the Code to have the order of dismissal set aside.
28. Thus, it is well settled that the inherent powers are in addition to and complementary to the powers specifically conferred under the Code and the Court under that section can pass a suitable order to prevent the abuse of process of Court or for the ends of justice. However, there are certain well recognized restrictions on the exercise of the said power. It there is specific provision which would meet the necessities of the case in question, such provision should be followed and the inherent jurisdiction should not be invoked Similarly, the power under Section 151 is nut to be exercised when the exercise of power is excluded or prohibited or restricted by the specific provision of the Code or other statutes. However, in a case where the specific provision is not sufficient to meet the necessities of the case in question then recourse can be taken to the provision of Section 151 of the Code even if there is specific provision covering the field. If the remedy provided by specific provision is not the real remedy or is ineffective and meaningless, an application under Section 151 of the Code to challenge the order is competent in spite of the fact that there is specific provision dealing with a particular subject.
29. However, the question to be determined in this case is as to whether the remedy of revision and review as provided under Sub-sections (8) and (9) of Section 14 of the Act are sufficient to meet the necessities of the case in question. In other words., whether the remedy of revision or review is real, effective and meaningful remedy or it is an illusory one. It is well settled that the revision and review are decided, ordinarily on the basis of the materials on the record and aggrieved party assails the propriety of the order within the limited power conferred under revision or review on the basis of materials that are available on the record. The parties are allowed to adduce additional evidence only in rare of the rarest cases In a case where an order for eviction is passed on the default of the petitioners there may not be anything on the record from which the petitioners can show before the revisional or review court that the summonses were not duty served on them. There may not be any material before the court exercising the powers of revision or review on the basis of which the court may determine as to whether ihe assertion made by the petitioners that summons were not served on them is right or wrong. The petitioners may have a very good case before the court to show that summonses were not served on them hut as the revision at court or the court exercising the power of review ordinarily does not take additional evidence, the petitioners will be deprived of an opportunity to prove bona fide of his case. In my considered opinion, the remedy should be a real one and not an illusory one and of form only. In such a situation the remedy of revision or review will not meet the necessities of the case of the tenant. The remedy would be ineffective and meaningless. Thus, there is no difficulty in holding that when in a case an order of eviction is passed by the court on the failure of defendant to appear and to pray for grant of leave and the said order is challenged on the ground that summons was not duly served, the remedy of revision or review is not efficacious and meaningful remedy rather the remedy is an illusory and meaningless. The revision or review will not meet the necessities: of the case and, accordingly, an application under Section 151 of the Code is maintainable and the same will meet the necessities of the case.
30. I may mention at this stage that the maintainability of an application under Section 151 of the Code for setting aside an order of eviction under Section 14(4) of the Act on the ground that the summons was not duly served on the tenant does not mean that the statutory remedy of revision and review as provided under Sections 14(8) and 14(9) of the Act is barred or excluded. In appropriate cases the court can exercise the power under the aforesaid sub-sections if the conditions mentioned therein are fulfilled. It is neither practicable nor desirable to give examples of all the situations to which the court may interfere under the aforesaid sub-sections. However, for example such instances are where the court has passed the order of eviction on default of the tenant to appear on a date which was not fixed in the case or an order of eviction has been passed against the tenant though the service report shows that summons was not duly served on the tenant. In such cases, on the basis of materials on the record, the tenant can show the revisional court or the review court the mistake committed by the trial court and the court on the basis of materials on the record may pass an appropriate order in accordance with law.
31. It is pertinent to state here that where the leave to contest has been refused to the tenant on his appearance under Sub-section (4) of Section 14 of the Act then different consideration will arise. There the court on the basis of the materials on the record rejects the prayer of the tenant to contest the suit for eviction and the tenant can challenge the aforesaid order in revision under Section 115 of the Code and the revisional court will be able to decide the question on the basis of the materials on the record. If the court has passed a composite order under Sub-section (4) of Section 14 of the Act rejecting the prayer of the tenant to grant leave to contest the suit as well as passing an order of eviction, in that case, the tenant can challenge the aforesaid order in revision under both sections, former order under Section 115 of the Code and latter one under Section 14(8) of the Act.
32. Coming to the facts of the case, as stated above, the court below has rejected the application filed by the petitioners on the ground that the said application under Order IX, Rule 13 of the Code was not maintainable. In view of my conclusion mentioned above, the court below rightly held that the aforesaid application was not maintainable. However, as I have held that an application under Section 151 of the Code is maintainable to challenge the said order, the said application should have been treated as an application under Section 151 of the Code for the simple reason that it is the substance of that matter and not the labelling.
33. In the result, the impugned order passed by the court below is set aside and this revision application is allowed with a direction to the court below to dispose of the aforesaid application in accordance with law by treating the same as an application under Section 151 of the Code. However, in the facts and circumstances of the case, there shall be no order as to costs.
B.N. Agrawal, J.
34. I agree.