Disputed Liability Cannot Be Converted Into Admitted Obligation To Attract Order 39 Rule 10 CPC: J&K&L High Court

The Court dismissed an appeal challenging an interlocutory order directing the deposit of alleged arrears of rent and monthly occupational charges, holding that in the absence of a clear and unequivocal admission, the order was not appealable under Section 104 read with Order XLIII of the Code.

The Court was hearing an appeal directed against an order passed by the Additional District Judge, Srinagar, in a civil suit for ejectment, possession and mesne profits, whereby the appellant-defendant was directed to deposit an amount towards alleged arrears of rent and to continue depositing occupational charges per month during the pendency of the suit.

The trial court had further granted liberty to the respondent-plaintiff to seek execution of the order in the event of default. The appellant assailed the order principally on the ground that the direction to deposit arrears and pay occupational charges was arbitrary and beyond the jurisdiction exercisable by the trial court at an interlocutory stage.

The appeal was heard by Justice Sanjay Parihar, who observed,

“A disputed liability cannot ordinarily be converted into an admitted obligation merely by drawing inferences from isolated statements divorced from their context.”

Background

The respondent-landlord instituted two separate suits for ejectment, possession and mesne profits against two different tenants, both pending adjudication before the same trial court. In both suits, substantially similar interlocutory directions requiring payment of arrears and occupational charges came to be issued.

The order passed in the connected suit was challenged by the defendant therein through a separate appeal, which was dismissed by a Coordinate Bench of the Court as not maintainable, holding that the order did not fall within the category of appealable orders contemplated by Sections 96 and 104 of the Code, while reserving liberty to the aggrieved tenant to avail of an appropriate remedy, including invocation of the supervisory jurisdiction under Article 227 of the Constitution of India.

The appellant claimed to have been in continuous possession of the suit premises as a tenant since the year 1975. The respondent-landlord instituted the suit alleging that the appellant had continued in unauthorized occupation of the premises since the year 2005.

The appellant disputed the allegation of unauthorized occupation and maintained that he had consistently been ready and willing to pay rent at the agreed rate, and that the respondent refused to accept rent with a view to treating him as an unauthorized occupant. It was further asserted that the appellant deposited the rent with the Shopkeepers' Committee.

By the order impugned, the trial court directed the appellant to deposit arrears of rent and to continue paying occupational charges per month. The trial court appears to have proceeded on the premise that the appellant had admitted enhancement of rent and that such admission furnished sufficient justification for directing payment of the amount considered payable.

The appellant contended that the order was, in substance, referable to Order XXXIX Rule 10 CPC or the principles underlying Rules 1 and 2 thereof, and consequently appealable. It was submitted that the mere omission of the trial court to specify the provision of law could not determine the true legal character of the order or defeat a statutory right of appeal.

Per contra, the respondent opposed the maintainability of the appeal, contending that Order XXXIX Rule 10 CPC operates within a limited statutory field and can be invoked only where the requisite admission regarding money belonging or due to another party is established. It was submitted that the impugned order was traceable to the inherent powers of the Court under Section 151 CPC and did not attract appellate jurisdiction.

Court's Observation

The Court observed that the controversy requiring determination was confined to the maintainability of the appeal. The Court noted that the jurisdiction contemplated by Order XXXIX Rule 10 CPC is founded upon an admission of the requisite liability or entitlement. The Court held,

“Such admission must be clear, unequivocal and ascertainable from the pleadings or other material properly forming part of the record.”

The Court observed that in the present case, the alleged admission relied upon by the trial court did not satisfy the aforesaid requirement. The appellant had consistently disputed his liability to pay occupational charges at the rate determined by the trial court, and his stand was that the agreed rent was a specific lower amount and that the rent payable by him had already been deposited with the Shopkeepers' Committee.

The Court held that whether such deposits were actually made, whether they constituted valid discharge, and whether any amount remained outstanding were questions involving disputed facts which could not be treated as conclusively established merely on the basis of an alleged admission whose existence and extent were themselves contested.

The Court further observed that there was a material distinction between contractual rent payable during the subsistence of a tenancy and mesne profits or occupational charges claimed on the premise that possession had become unauthorized. The two concepts rest upon different legal foundations and cannot be employed interchangeably without regard to the status of the occupant, the court explained.

The Court noted that the essential foundation for exercise of jurisdiction under Order XXXIX Rule 10 CPC, namely, a clear and unequivocal admission of the liability sought to be enforced, was not discernible from the material referred to in the order. The order could not be characterized as one under Order XXXIX Rule 10 merely because it directed deposit of money during the pendency of the suit, the court opined.

The Court further held that the impugned order could not be brought within the ambit of Order XXXIX Rules 1 and 2 CPC, as those provisions are concerned with the grant of temporary injunctions, and the direction under consideration was not an order granting or refusing temporary injunctive relief.

The Court held,

“The mere fact that the Trial Court has not expressly mentioned the provision of law under which it exercised jurisdiction is not, by itself, decisive.”

The Court observed that having regard to the nature of the application, the absence of any clear statutory foundation under Order XXXIX Rules 1, 2 or 10 CPC, and the substance of the direction issued, the impugned order appeared to have been passed in exercise of the inherent jurisdiction of the trial court under Section 151 CPC. The Court held that an order passed in exercise of inherent powers under Section 151 CPC is not, merely by reason of being interlocutory, appealable.

The appeal was accordingly dismissed as not maintainable,.