MANU/KE/3559/2024

Equivalent/Neutral Citation: ILR2024(4)Kerala421, 2024/KER/71197, 2024 (6) KHC 321, 2024(5)KLT750, 2024(2)RC R(Rent)588

IN THE HIGH COURT OF KERALA AT ERNAKULAM

OP (C) Nos. 2307 of 2022, 2309 of 2022 and 1446 of 2023
Decided On: 25.09.2024
Pramod Vs. The Secretary, The Sultanpet Diocese Society and Ors.
and
Raviprasad Vs. The Secretary, The Sultanpet Diocese Society and Ors.
and
M.T. Valson and Ors. Vs. Vincy Cherian
Hon'ble Judges/Coram:
C. Jayachandran, J.
Counsels:
For Appellant/Petitioner/Plaintiff: Sajan Vargheese K., Liju M.P., Jophy Pothen
Kandankary, P.G. Jayashankar, P.K. Reshma, S. Rajeev, Sajana V.H., Shaiju George and
Aadersh R.S. Panicker, Advs.
For Respondents/Defendant: Sarath M.S., B. Premnath, Advs., Jacob P. Alex, Amicus
Curiae, John Nellimala Sarai and Mohammed Sagheer, Advs.
JUDGMENT
C. Jayachandran, J.
1. 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 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.
3. 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
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 defendants in the suits, O.S.Nos.200 and 202 of 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 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 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 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 judicata. 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, 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.
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4. 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 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.
5. However, the larger issues - as has been framed in paragraph no.2 of this 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.
6 . 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 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 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 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.
7 . SUBMISSIONS MADE BY ADV.B.PREMNATH, LEARNED COUNSEL FOR THE

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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 relying upon the Division Bench
judgment of this Court in Jayasree v. Vivekanandan [MANU/KE/0616/2012 :
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
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 [MANU/SC/0056/1961 : 1961:INSC:312 : 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.
8 . 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 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
[MANU/SC/0148/2019 : 2019:INSC:153 : (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 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
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 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 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.
9. 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 Dhillon
[MANU/DE/0521/2002 : 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
[MANU/KE/2366/2021 : 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-K:4564 : 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 [MANU/SC/0065/1960 : 1960:INSC:167 : AIR 1961 SC 218] is cited to
drive home that the powers under Section 151 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
[MANU/KE/1794/2022 : 2022 (4) KLT 72] and Ismail v. Sudhakara Shenoy
[MANU/KE/1118/2009 : 2009 (4) KLT 864].
1 0 . 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 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
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 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 to challenge the same along with a
petition to the deposit the entire rent arrears.
1 1 . 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 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)
12. 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 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
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 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
(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)
13. 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."
14. Section 114 of the Transfer of Property Act provides that, if the lease has been
determined by 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.
1 5 . A scan of the above provisions would illustrate that, lease of an immovable
property is 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
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

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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.
16. Section 111(g) of the Transfer of Property Act 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.
17. 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.
18. 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, 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.
19. Having found as above, the issue bifurcates 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.
20. 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 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,

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sanction the eviction of a tenant by the landlord taking law into his hands; and if he
chooses to do 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 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.
21. 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 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.
22. 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.
23. Coming to the second issue as to whether the pleadings can be struck off and the
proceedings aborted, one relevant aspect is the applicability 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 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
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recognises the well 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.
2 4 . 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 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.
25. 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 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.
26. 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
Manohar Lal Chopra v. Rai Bahadoor Rao Raja Sethi [MANU/SC/0056/1961 :
1961:INSC:312 : 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.
27. 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 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.
28. 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.
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 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)
29. 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 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.
30. 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 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
[MANU/SC/0211/2011 : 2011:INSC:34 : AIR 2011 SC 1137], it was held that Section
151 of the Code gives inherent powers to do justice 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 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 Section94 were not there

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 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."
31. 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.
32. 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
[MANU/SC/0263/1966 : 1966:INSC:70 : 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
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. "
33. 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.
34. 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 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 justitiae; 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 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.

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35. 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."
36. 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."
3 7 . 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 obligation to interfere in order to prevent the harassment of a citizen
by an illegal prosecution."
(Underlined for emphasis)
38. In Subrata Roy Sahara v. Union of India [MANU/SC/0406/2014 : 2014:INSC:367 :
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 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
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without bonafides may verge on abuse of the judicial process.
39. P.Ramanatha Aiyar's Advanced Law Lexicon explains the term 'abuse' as that which
is contrary to good order or established usage. The 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".
4 0 . Significantly, the author describes "abuse" as including misuse, which
interpretation finds recognition in M.Narayanan v. State of Kerala [MANU/SC/0164/1962
: 1962:INSC:357 : 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."
41. This Court had occasion to deal with the concept of abuse of process in C. Sarala v.
K. Nalina K. Shan [MANU/KE/0066/1991]. 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.
4 2 . 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.
(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.

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43. 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.
[MANU/DE/0717/2009].
44. In C.S. Mangalam v. Velayudhan Asari [MANU/KE/0032/1993 : 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.
45. In the context of the rent control 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 [MANU/PH/0049/1994 : 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.
4 6 . Lastly, a Division Bench of this Court in Jayasree v. Vivekanandan
[MANU/KE/0616/2012 : 2012 (2) KLT 249] held 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.
47. 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 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 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.
48. 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

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that such right of the tenant to hold the premises is wholly 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
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?
49. 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 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.
50. 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 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 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

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 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 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.
v i ) 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 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.
51. 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.
52. 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, in accordance with law.
53. 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.
54. Appreciation galore to Sri. Jacob P. Alex, the learned Amicus, for the invaluable
service rendered in resolving the legal issues involved.
These Original Petitions are disposed of, as above.

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