A court cannot order a defendant to furnish security for costs at the beginning of proceedings.

1. This is an application in revision by the defendant from an order passed by the Civil Judge, Junior Division, Darwha, in Civil Suit No. 266 of 1959. The applicants are directed to furnish security in a sum of Rs. 30,000/-to cover the costs, mesne profits and future mesne profits that may be accrued to the plaintiff-opponent. A further order is made by the Civil Judge that if they fail to furnish the security within fifteen days from the date of the order, the defence of the defendants shall stand struck off from the record.

2. The plaintiff filed a suit against the applicants with a prayer for their ejectment from the suit field admeasuring 75 acres and also claiming mesne profits at a rate of Rs. 1333.33 per annum. The applicants here have claimed tenancy rights and, therefore, an order was made under Section 125 of the Bombay Tenancy and Agricultural Lands Act, 1958, referring the issue of tenancy to the Mamlatdar. The mamlatdar has found that applicant No. 1 was a tenant. This was confirmed by the Special Deputy Collector also in an appeal heard by him. The matter went up to the Revenue Tribunal and the Revenue Tribunal also confirmed the order of the two lower courts. The matter then went up to the High Court, and this Court in 1968 decided that the reference was not tenable and that reference to the revenue authorities ought not to have been made, because the status of the applicant No. 1 should be considered in the context of the law laid down in the Berar Regulation of Agricultural Leases Act, 1951. Because no revenue officer was specified to hear such reference under the Berar Regulation of Agricultural Leases Act, therefore, this Court decided that the Civil Court had no jurisdiction to refer the issue of tenancy to the revenue officer. It appears that the applicant No. 1 has taken up the matter with the Supreme Court and has also obtained a special leave and got his appeal admitted against the decision of this Court. The matter, therefore, rests there.

3. There is, however, no stay granted by the Supreme Court. When the record and proceedings went back to the Civil Court after the decision of this Court in Special Civil Applications Nos. 243 and 244 of 1966 that reference could not have been made to the revenue authorities, the non-applicant (plaintiff) applied on 13-2-1969 requesting the court to pass an order that the applicants should furnish security against his suit claim of mesne profits. The applicant opposed the said application stating that the passing of such an order asking the applicants to furnish security would be beyond the jurisdiction of the court and would be a violation of Order 38 of the Civil P. C. According to the applicants such order was not enforceable. The trial Court, however, ordered on 14-7-1969 that the applicants should furnish security in a sum of Rs. 30,000/- on or before 29-7-1969, failing which the defence of the applicants would stand struck out. The applicants being aggrieved by this order, have preferred the instant revision application.

4. The learned advocate for the applicants contends here that the order of the trial Court is grossly erroneous because he purported to have passed this order under Section 151 of the Civil P. C. According to him, he could not use his powers under Section 151, Civil P. C. for passing an order to furnish security when the suit claim is yet to be decided and when he was, in fact, found to be a tenant of the suit lands by not only the revenue tahsildar, but also the Special Deputy Collector and the Revenue Tribunal, although those orders were set aside on other grounds by this High Court. It is, therefore, contended by him that the trial Court has grossly erred in passing such an order under Section 151. It is also his contention that such an order could not even be passed under Order 38, Rule 5, Civil P. C. or under any of the provisions of the Civil P. C. According to him, there are some provisions in the Civil P. C. whereunder a partys d