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Direction Under Order 41 Rule 5 CPC Can Be Interfered With Only If It Is Arbitrary Or Perverse : Bombay HC [Read Judgment]

Arabhi Anandan
2 Jan 2020 1:29 PM GMT
Direction Under Order 41 Rule 5 CPC Can Be Interfered With Only If It Is Arbitrary Or Perverse : Bombay HC [Read Judgment]
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The Bombay High Court has observed that an order passed by an appellate court under Order 41 Rule 5 of the Code of Civil Procedure can be interfered with only if it is arbitrary or perverse.

"I must observe that the appellate Court's power under Order 41, Rule 5 is discretionary. And so long as that exercise is not arbitrary or perverse, the Revisional Court, either under Section 115 of CPC or under Article 227 of the Constitution of India, does not interfere", observed Justice Dama Seshadri Naidu.. 

The Court further observed Order 41, Rule 5 of the Code of Civil Procedure is a "step-in-aid in appeal" and that it is to "keep the rival parties on an even keel". Justice Naidu remarked that "it is a balancing act between the competing interests of a party who secured a decree and a party who entertains the hope of emerging successful in the appeal proceedings".

Brief facts :

In 1961 the respondent Trust leased out certain open space to the petitioners in the writ petition. The petitioner could raise a structure and use it for the next 40 years. A formal agreement was executed in 1964 and agreed that the tenants (petitioners) could construct four floors. And the 40 years initial lease to be renewed one more term, i.e., 40 more years.

When the lease ended in 2001, the Trust assigned its leasehold rights to the original respondent. In 2005, the respondent filed Rent and Eviction (RAE) suit. He sought the tenant's eviction on the grounds of illegal subletting and change of user. Another RAE suit was filed about the same property alleging that the tenant's sub-lessee was using the property for illegal and immoral purposes. The trial court decreed both the suits and eviction was ordered.

The original lessees as well as the sub-lessee challenged the impugned order by filing appeals before the Appellate Bench of the Small Cause Court to stay the operation of the decree in both the suits. The Appellate Bench stayed the decree subject to a condition that the tenants should pay the monthly interim compensation at a rate determined by the bench for the use and occupation of the leased properties.

The appellants thus filed two writ petitions against the orders in the two appeals before the High Court.

The bench opined,

" The interim compensation, I may note, is to ensure that neither party gets an unfair advantage over the other. Either too high an amount or too low an amount as compensation prejudices one or the other party. The whole endeavour under Order 41, Rule 5 of CPC is to keep the rival parties on an even keel. It is a balancing act between the competing interests of a party who secured a decree and a party who entertains the hope of emerging successful in the appeal proceedings."

The court while dismissing the writ petitions, reckoned that the Appellant Bench orders are well - reasoned and impeccable and that they need no interference.

" The appellate Bench has fixed the compensation at the rates lower than those shown in the Ready Reckoner. So this Court's remanding the matter, as the lessees have insisted, serves no purpose", added the court.

The court further added that the scope for judicial interference by the revisional court is narrow in such cases and also that the appellate bench has exercised its discretion judiciously.
[Read Judgment]


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