JUDGMENT
Naseemuddin, J.
1. List has been revised. Learned counsel for the revisionist-defendant is present and has been heard. Counsel for plaintiff-opposite parties has not turned up.
2. This revision has been filed for setting aside the order dated 27.5.93 passed on-Application C-2 in Original Suit No. 272 of 1991 whereby the application of the plaintiff-opposite party moved under Section 151. C.P.C. was allowed and the plaintiff-opposite party was permitted to carry out the repairs as prayed in application under Section 151, C.P.C.
3. Learned counsel for the revisionist-defendant says that ‘this application under Section 151. C.P.C. was not maintainable : firstly, because the suit itself was not maintainable, and secondly, because it was barred by the provisions of the U. P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972. The learned counsel took the Court through the entire file of the case. The facts which come out are that the defendant purchased the building in suit in insolvency proceedings from insolvency Court/Official Receiver in auction sale on 22.12.1964. At that time, one Chandra Kishore Trivedi was the tenant in the building. Suit No. 309 of 1969 was filed for the eviction of the tenant and was decreed on 25.4.72 on the basis of the compromise and the decree was
passed in terms of the compromise. The main condition of compromise was that the tenant was to vacate the building and deliver vacant possession to the present defendant upto 25.4.1977. Pratap Narain Mishra, opposite party No. 2 father of plaintiff filed suit for injunction on 10.9.72 but the suit was got dismissed as father shifted to some other building. An application was moved, before the Prescribed Authority under Section 28 of the U. P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 [hereinafter referred to as the Act), on 12.7.90 which was registered as P.A. Case No. 48 of 1990 and was decided on 21.9.91. The Prescribed Authority held that Pramod Kumar Mishra, Opposite Party No. 1 plaintiff, was not the tenant of the building and. therefore, application under Section 28 of the Act was not maintainable and thus application under Section 28 was rejected. Against that order no remedy in the higher Court was sought. The present injunction Suit No. 272 of 1991 was filed for injunction for restraining the present revisionist from taking the possession of the building in Execution Case No. 10 of 1983 passed in execution of the compromise decree dated 25.4.1972 passed in Eviction Suit No. 309 of 1969 against Chandra Kishore Trivedi. In this suit, the present application under Section 151. C.P.C. was moved for permitting the plaintiff to carry out the repairs.
4. The learned counsel argues that in the suit, as well as in the application under Section 28 of the Act, the main case of the plaintiff is that he is tenant and is not liable to be evicted in a decree passed against Trivedi, i.e., to say in both the cases, viz., under Section 28 of the Act and the present suit the plaintiff came with the allegation that he is the tenant and according to the plaintiff the Act applied to him and that is why he had moved application under Section 28 of the Act before the Prescribed Authority. Section 28 of the Act runs as follows :
“28. Enforcement of landlord’s obligation regarding repairs etc.–(1)
If the landlord falls to carry out
whitewashing or repairs as required by sub-section (2) of Section 26, the tenant may, by notice in writing, call upon him to cany out the same within one month from the date of service of such notice.
(2) Where the cost of the requisite whitewashing or repairs is likely to exceed the amount of (two months’ rent) in a year, then the tenant in his notice shall also intimate to the landlord his willingness to pay enhanced rent in accordance with the provisions of Section 6.
(3) If the landlord fails to comply with the notice, the tenant may himself carry out the whitewashing or repairs at a cost not exceeding (two months’ rent) in a year and deduct the amount from the rent, and in any such case he shall furnish the account of the expenditure incurred to the landlord.
(4) Where the tenant claims that the building requires whitewashing or repairs to such extent that the cost thereof is likely to exceed the amount of (two month’s rent) in a year, hereinafter in this section referred to as “major repairs”, and the landlord either declines his responsibility to carry out the same or fails to comply with the notice, the tenant may apply to the prescribed authority for an order under sub-section (5).
(5) The Prescribed Authority on receiving an application under subsection (4) may, after giving an opportunity of hearing to the parties :
(a) either reject the application ; or
(b) requires the landlord to carry out the requisite major repairs within such period as may be specified in the order, and on his failure to do so. permit the tenant to carry out those repairs at a cost not exceeding such amount (which shall not be more than the amount of two years’ rent)
and within such period as may be specified in the order.
(6) Where in pursuance of an order under sub-section (5) any major repairs are carried out by the tenant, he shall furnish an account of the expenditure to the prescribed authority, which shall certify the amount recoverable by the tenant, and thereupon such amount, unless paid or otherwise adjusted by the landlord, may be deducted by the tenant from the rent in monthly instalments not exceeding twenty-five per cent of one month’s rent, and in any such case, the enhancement of rent under Section 6 shall come into effect only from the month following the month in which the cost is fully recovered by the tenant.
(7) No appeal or revision shall lie and order of the Prescribed Authority under sub-section (5) or sub-section (6) which shall be final.”
5. A reading of Section shows that the application for whitewashing or repairs has to be moved before the Prescribed Authority which application was admittedly moved and rejected. It is also made clear in this Section that the order passed by the Prescribed Authority either allowing or rejecting the prayer of whitewashing or repairs was final and it could not be challenged by means of an appeal or revision. So that order became final in between the parties. By means of an application under Section 151, C.P.C., the plaintiff claimed the same relief which he had claimed under Section 28 of the Act which claim had been rejected by the Prescribed Authority. Counsel referred to the Explanation VIII of Section 11. C.P.C. which runs as follows :
“Explanation VIII.–An issue heard and finally decided by a Court of limited jurisdiction, competent to decide such issue, shall operate as res judicata in a subsequent suit, notwithstanding that such Court of limited jurisdiction was not competent to try such subsequent suit or the suit in
which such issue has been subsequently raised.”
Section 11 lays down that no Court shall try any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties, or between parties under whom they or any of them claim, litigating under the same title, in a Court competent to try such subsequent suit or the suit in which such issue has been subsequently raised, and has been heard and finally decided by such Court. In this subsequent suit, the previous order under Section 28 of the Act cannot be reagitated because it gets finality under sub-section (7) of Section 28 of the Act. Reference in this connection was also made to the provisions of Section 37 of the U. P. Act No. 13 of 1972 which runs as follows :
“37. Finality and presumption.–(1) No order in exercise of any power conferred by or under this Act shall be called in question in any Court.
(2) Where an order purports to have been made and signed by any authority in exercise of any power conferred by or under this Act, a Court shall, unless the contrary is proved, presume that such order was so made by that authority.”
So the orders passed under Section 28 besides becoming final in view of sub-section (7) of Section 28 of the Act as well as under Explanation VIII of Section 11 of the Code also get finality and cannot be called in question in any Court as laid down under Section 37 of the Act. quoted above. So when no order passed under Act 13 of 1972 can be called in question, then the question could not have been raised in that matter which was subject-matter of Section 28 of the Act. Learned counsel in this connection also referred to the provisions of Section 9 of the Code which runs as follows :
“9. Courts to try all civil suits unless barred.–The Courts shall (subject to the provisions herein
contained) have jurisdiction to try all suits of a civil nature excepting suits of which their cognizance is either expressly or impliedly barred.”
Learned counsel says that Section 9 of the Code bars the jurisdiction of the civil court of those matters which are impliedly barred. He says that since matter of Sections 28 and 37 of the Act make matter of repair final, therefore, this question cannot be raised again and the raising of this question is impliedly barred. The present suit is for the relief of nullifying the execution proceedings and is not for repairs. So the argument of the learned counsel as regards application under Section 151, C.P.C. is concerned may be accepted as having force.
6. Learned counsel also argued that execution of the decree passed in Original Suit No. 309 of 1969 was being challenged in the suit by a person who says that the decree is not binding on him as he was in possession as a tenant in his own right and the possession was being resisted. The learned counsel says that when resistance or obstruction to possession of immovable property is offered, then a third person alleging himself to be in possession and alleging himself to be having some title to possession can challenge its possession only under Rule 97 of Order XXI, C.P.C. Rule 101 of Order XXI lays down that no separate suit shall lie in this respect. This argument is open to the defendant before the trial court. However, the learned counsel wanted simply to impress upon the Court that the application under Section 151, C.P.C. for repairs could not have been moved in that suit subverting the provisions of Section 11. Explanation VIII of the Code and Sections 28 and 37 of U. P. Act No. 13 of 1972. He says that inherent powers of the Court should be exercised only for advancing the cause of justice judiciously and taking into consideration the entire material of the case and also taking into consideration the inherent merits of the case. Inherent powers should not
be exercised in cases where the process of the Court is being misused and proper forums are not being selected and proper forum is not being adopted. It is true that the trial court in the instant case should not have taken into consideration the application under Section 151, C.P.C. In isolation from the chequered history of the matter in a case where the defendant had purchased the property in Court auction sale. Learned counsel rightly argued that one suit was filed by the father and got the suit dismissed then son comes and files another suit after losing the battle before the Prescribed Authority under Section 28 of the Act. What he could not get under Section 28 of the Act. he got by invoking the inherent powers of the Court under Section 151. C.P.C. in my opinion, the learned trial court should not have invoked his powers under Section 151. C.P.C. Sectlor 151. C.P.C. runs as follows :
“151. Saving of inherent powers of Court.–Nothing in this Code shall be deemed to limit 01 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.”
7. Section 151. C.P.C. gives ample powers to the Court to pas; orders necessary for the “ends o justice” or “to prevent abuse of the process of the Court”. In the instant case, prima facie it appears that the shoe was pinching on the other leg The exercise of powers in the instan case did not advance the cause of justice. The learned trial court also did not mention any reason to the effect that by exercising the powers under Section 151, C.P.C. ignoring orders passed under Section 28 of the Act, he was doing it for the ends of justice. The trial court also did not mention that by passing the orders in the exercise of inherent powers, he was preventing the abuse of the process of the Court. So the inherent powers could have been exercised only for the ends of justice and to prevent abuse of the process of the
Court. It was argued that the plaintiff was out to retain the possession and was adopting course as detailed above. Very cogent reasons ought to have been given as to why an order under Section 151. C.P.C. was being passed and as to why the civil court was invoking its inherent powers. If the orders do not serve the ends of justice and do not prevent the abuse of the process of the Court, then the powers should not be exercised under Section 151 of the Code. Learned trial court had, therefore, no jurisdiction, in the facts and the circumstances of the case, to pass the impugned order under Section 151 of the Code. Therefore, the learned lower court should have rejected the application under Section 151. C.P.C. The revision has got force and has to be allowed. The revision is allowed. The order under revision dated 27.5.93 is set aside and the application under Section 151. C.P.C. stands rejected. The Court below shall decide the suit expeditiously. Learned counsel also says that a direction be issued for early disposal of Execution Case No. 10 of 1983. The revisionist may make an application before the Executing Court for expeditious disposal, who shall consider it favourably.