Case: Ramkarandas Radhavallabh Vs. Bhagwandas Dwarkadas

hereunder, be instituted by presenting a plaint in the prescribed form but the summons shall be in form No. 4 in appendix B, or in such other form as may be from time to time prescribed.(2) In any case in which the plaint and summons are in such forms respectively, the defendant shall not defend the suit unless he enters an appearance and obtains leave from a Judge as hereinafter provided so to defend; and in dafault of his entering an appearance and of his obtaining such leave to defend, the allegations in the plaint shall be deemed to be admitted, and the Plaintiff shall be entitled to a decree for possession.It is by virtue of this rule that the decree in the present case was passed without permitting the tenant to be heard. This was because the tenant had been given leave to defend on May 2, 1961 on a condition that it paid the arrears of rent by instalments as prescribed in the order. This order had been made by consent and the tenant had failed to permorm that condition, the result of which was to deprive him of the leave to defend earlier granted; the case became one as if no leave to defend had been given to the tenant and upon which the landlord became entitled to a decree under sub-rule (2) of R. 2 of O. 37.8. The contention of learned advocate for the tenant is that under the provisions of the Rents Act the landlord is not entitled to a decree as a matter of right; the Court has to consider the position of the tenant and has a discretion to pass or not to pass a decree. Therefore to a suit governed by the Act the provisions of R. 2 of O. 37 which make it incumbent on the Court to pass a decree in circumstances coming within that sub-rule, are inapplicable. It is on this ground that it is said that R. 8 of the Rules made under the Rents Act is ultra vires and, void.9. The first difficulty that appears to us to arise on this line of argument is that even if the contention is right, we cannot in the present appeal make an order setting aside the decree. The appeal has come to us out of an application originally filed in a Court of Small Causes under the provisions of O. 37 R:4 by the tenant itself. If the present contention it right, then the tenants application was wholly incompetent. The result of that however would not be to set aside the decree; it would only cause the dismissal of the tenants application. The tenant has to take other appropriate proceedings to show that the decree was ineffective in case it wants to contend that the suit had not been brought according to the procedure permissible in law, and that it had been illegally deprived of a hearing. It itself having resorted to O. 37, it scarcely lies in it now to contend that that Order is wholly inapplicable. Furthermore, by consenting to the Order of May 2, 1961, it had in this case clearly agreed that the suit had been rightly brought under O. 37. It cannot be allowed to change its position in the proceedings arising out of that very suit. For that reason alone we think no relief can be granted to it in this appeal based on the present contention.10. On the merits too, we think that the contention is fallacious. It proceeds on the basis that when leave to defend has been refused to a defendant, the Court is bound to pass a decree. It seems to us that what sub-rule (2) of R. 2 of O. 37 contemplates is that the Court will accept the statements in the plaint as correct and on those statements pass such decree as the plaintiff may in law be entitled to. If, for example, the plaint discloses no cause of action, the Court cannot pass any decree in favour of the plaintiff. If this were not so, the words "allegations in the plaint shall be deemed to be admitted" in sub-rule(2) of R. 2 of O. 37 would have been unnecessry. The Court in making a decree under sub-rule (2) of R. 2 of O. 37 has to keep the law in mind. If the law requires the Court to exercise a discretion on the facts deemed to be admitted, it will have to do so.11. In the procedure laid down under O. 37 the defendant may not be allowed at the hearing to place his side of the case for assisting the Court in the exercise of that discretion, but that does not create any conflict with the Rents Act. A rule can be made quite consistently with the Act that the defendant will have to adopt a certain procedure and to act within a certain time in order to be heard in that matter. Suppose a defendant does not put in an appearance in a suit for ejectment not brought under O. 37, can he say that the Act gave him a right to appear at the hearing and place his case before the Judge? We feel no doubt that such a thing is not contemplated by the Act and cannot be permitted. Rules of procedure may be framed for the exercise of rights and such rules are not ultra vires only because the right has to be exercised in accordance with them.Therefore we do not think that R. 8 is ultra vires.12. In what we have-said in the preceding paragraph we have proceeded on the assumption that the Court has a discretion. Certain provisions in Ss. 12 and 13 of the Rents Act had been read to us and it had been contended that they conferred that discretion on the Court. In the view that we have taken, it is unnecessary to express any opinion on that contention and we do not do so.

Decision (1 = appeal accepted, 0 = rejected): 0

Explanation:
0[ds]We are unable to accept this contention,. It has been observed by this Court in Manohar Lal v. Hiralal, AIR 1962 SC 527   at p. 534 : "The inherent powers are to be exercised by the Court in very exceptional circumstances, for which the Code lays down no procedure". This is a well recognised principle. Rule 4 of O. 37 expressly gives power to a Court to set aside a decree passed under the provisions of that Order. Express provision is thus made for setting aside a decree passed under O. 37 and hence if a case does not come within the provisions of that rule, there is no scope to resort to S. l5l for setting aside such a decree. We, therefore, agree with the High Court that the appellate bench of the Court of Small Causes was in error in setting aside the ex parte decree in exercise of powers under S. l5l. Again all the Courts have taken the view, and we think rightly, that no circumstances justifying the setting aside of the decree under R. 4 of O. 37 existed in the present case. We did not also understand learned advocate for the tenant to rely on any such circumstances in this Court. No question of setting aside the decree under that Order, therefore, arises.The first difficulty that appears to us to arise on this line of argument is that even if the contention is right, we cannot in the present appeal make an order setting aside the decree. The appeal has come to us out of an application originally filed in a Court of Small Causes under the provisions of O. 37 R:4 by the tenant itself. If the present contention it right, then the tenants application was wholly incompetent. The result of that however would not be to set aside the decree; it would only cause the dismissal of the tenants application. The tenant has to take other appropriate proceedings to show that the decree was ineffective in case it wants to contend that the suit had not been brought according to the procedure permissible in law, and that it had been illegally deprived of a hearing. It itself having resorted to O. 37, it scarcely lies in it now to contend that that Order is wholly inapplicable. Furthermore, by consenting to the Order of May 2, 1961, it had in this case clearly agreed that the suit had been rightly brought under O. 37. It cannot be allowed to change its position in the proceedings arising out of that very suit. For that reason alone we think no relief can be granted to it in this appeal based on the present contention.10. On the merits too, we think that the contention is fallacious. It proceeds on the basis that when leave to defend has been refused to a defendant, the Court is bound to pass a decree. It seems to us that what sub-rule (2) of R. 2 of O. 37 contemplates is that the Court will accept the statements in the plaint as correct and on those statements pass such decree as the plaintiff may in law be entitled to. If, for example, the plaint discloses no cause of action, the Court cannot pass any decree in favour of the plaintiff. If this were not so, the words "allegations in the plaint shall be deemed to be admitted" in sub-rule(2) of R. 2 of O. 37 would have been unnecessry. The Court in making a decree under sub-rule (2) of R. 2 of O. 37 has to keep the law in mind. If the law requires the Court to exercise a discretion on the facts deemed to be admitted, it will have to do so.In the procedure laid down under O. 37 the defendant may not be allowed at the hearing to place his side of the case for assisting the Court in the exercise of that discretion, but that does not create any conflict with the Rents Act. A rule can be made quite consistently with the Act that the defendant will have to adopt a certain procedure and to act within a certain time in order to be heard in that matter. Suppose a defendant does not put in an appearance in a suit for ejectment not brought under O. 37, can he say that the Act gave him a right to appear at the hearing and place his case before the Judge? We feel no doubt that such a thing is not contemplated by the Act and cannot be permitted. Rules of procedure may be framed for the exercise of rights and such rules are not ultra vires only because the right has to be exercised in accordance with them.Therefore we do not think that R. 8 is ultrais a well recognised principle. Rule 4 of O. 37 expressly gives power to a Court to set aside a decree passed under the provisions of that Order. Express provision is thus made for setting aside a decree passed under O. 37 and hence if a case does not come within the provisions of that rule, there is no scope to resort to S. l5l for setting aside such a decree. We, therefore, agree with the High Court that the appellate bench of the Court of Small Causes was in error in setting aside the ex parte decree in exercise of powers under S. l5l. Again all the Courts have taken the view, and we think rightly, that no circumstances justifying the setting aside of the decree under R. 4 of O. 37 existed in the present case. We did not also understand learned advocate for the tenant to rely on any such circumstances in this Court. No question of setting aside the decree under that Order, therefore,vires.12. In what wein the preceding paragraph we have proceeded on the assumption that the Court has a discretion. Certain provisions in Ss. 12 and 13 of the Rents Act had been read to us and it had been contended that they conferred that discretion on the Court. In the view that we have taken, it is unnecessary to express any opinion on that contention and we do not do so.