RAMKARANDAS RADHAVALLABH versus BHAGWANDAS DWARKADAS

Citation: [1965] 2 S.C.R. 186 · Decided: 20-11-1964 · Supreme Court of India · Bench: A.K. SARKAR · Disposal: Dismissed

Judgment (excerpt)

RAMKARANDASRADHAVALLABH 
v. 
BHAGWANDAS DWARKADAS 
November 20, 1964 
[A. K. SARKAR AND R. S. BACHAWAT, JJ.] 
Bombay Rentt, Hotel and Lodging House Rates (Control) Act, 1947 
-Rules made under the Act-Rule 8-Whether ultra vires. 
Code of Civil Procedure (Act 5 of 1908), s. 151-lnherer>t powers, 
exercise of. 
A 
B 
The appellant ·firm was the tenant and the respondent landlord of a c 
flat in Bombay, The parties were governed by the Bombay Rents, Hotel 
and Lodging House Rates (Control) Act, 1947. 
Rule 8 under the Act 
made the procedure in 0. 37 of the Civil Procedure Code. applicable to 
suits for possession by the landlord against the tenant. The re>poodeot 
filed a suit for the ejectmeot of the appellant from the suit premises 
under the procedure prescribed in r. 2 of 0. 37, as amended by the 
Bombay High Court. 
Under that procedure the trial court gave lea\ll 
to the appellant to defend the suit on condition that he paid tbe arrears 
D 
of rent in fixed instalments. On the failure of the appellant to pay these 
the trial court passed a decree against him without giving him leave to 
defend. 
His application under r. 4 of 0. 37 for setting aside the deeree 
was rejected, for the special circumstances required by that rule were 
held · not to exist. 
In appeal, a bench of the Court of Small Causes 
set aside the decree holding that the trial court should have considered 
the use of its inherent powers under s. 151 of the Code. 
On appeal 
by the respondent-landlord the High Court held that s. !SI was not E 
applicable to the case. 
The appellant came to the Supreme Court by 
special leave. · 
Apart from the applicability of s. 151 of the Code, the contention 
of the appellant was that r. 8 which made 0. 37 applicable to suits under 
the Rents Act was ultra vires the reason being that under the provisions 
of the Rent Act the court had to consider the position of the tenant and 
had a discretion to pass or not to pass a decree, whereas under r. 2 of F 
0. 37 once the tenant defaulted the Court had no course open except to 
pass a decree against him. 
HELD : ( i) Inherent powers are to be exercised by the Court in 
very exceptional circumstances for which the Code lays down no special 
procedure. Rule 4 of 0. 37 expressly gives power to a court to set aside 
a decree under the provisions of that Order. Hence if a case does not come 
withh the provisions of that rule there is no scope for resort to s. 151 
G 
for setting aside such a decree. 
[189 B-C] 
(ii) The appeal was against the order passed on an application made 
by the appellant under r. 4 of 0. 37. If the contention of the appellant 
that 0. 37 was not applicable were to be accepted then the result would 
not be to set aside the decree; it would only cause the dismissal of his 
application as being incompetent. 
No relief based on this contention 
could therefore be granted in the appeal. 
[190 F-G] 
ff 
(iii) It is not correct to say· that when leave to defend has been 
refused to a defendant, the court is bound to pass a decree. What sub-
rule 2 of r. 2 of 0. 37 contemplates is that the court will accept the 
RADHAYALLABH v. BHAGWANDAS (Sarkar, J.) 
187 
A 
statements in the plaint as correct and on those statements pass such 
decree as the plaintiff may in law be entitled to. If the plaint discloses 
no cause of action, the court cannot pass any decree in favour of the 
plaintifi. If the law requires the court to exercise a discretion on the 
facts deemed to be admitted, it will have to do so. [191 B-D] 
B 
c 
D 
E 
F 
G 
H 
(iv) Jn the procedure laid down under 0. 37 the defendant may 
not be allowed to place his side_ of the case for assisting the court in 
the exercise of its discretion, but that does not create any conflict with 
the Rents Act. 
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 r. 8 is not ultra vires. [191 
D-F] 
C1VJL APPELLATE JURISDICTION: Civil Appeal No. 851 of 
1964. 
Appeal by special leave from the judgment and order dated 
February 17, 1964, of the Bombay High Court in Civil Revision 
Application No. 1969 of 1962. 
D. R. Dhanuka, K. Rajendra Chaudhuri and K. R. Chaudhuri, 
for the appellant. 
Purshottam Trikamdas, S. T. Tajasiwala, J. B. Dadachanji, 
0. C. Mathur and Ravinder Narain, for the respondent. 
The Judgment of the Court was delivered by 
Sarkar J. The appellant was the tenant of the respo

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