The inherent powers of the Court under section 151 of the Code of Civil Procedure cannot be used to affect the substantive rights of a litigant.

JUDGMENT - Pratap S.C.J.-Question of some interest and importance arising for determination in this ably argued petition is:

In a suit by a landlord against his tenant for possession of the suit premises and mesne profits, can the Court, in the exercise of its inherent powers under section 151 of the Code of Civil Procedure, order the tenant (while the suit is yet pending trial) to deposit interim past and jot future mesne profits ?

According to the learned Advocate, Mr. R. D. Chaudhari, a senior member of the Bar, this is a test case. Submission has been that orders, such as the one here, are frequently passed by the subordinate Courts at Nagpur almost as a matter of course and in a manner routine in nature. It becomes difficult to challenge and test these on every occasion. It is, therefore, best that this Court elucidates the correct position.

2. A quick reference to the relevant facts would help enlighten the context in which the question arises. Plaintiff is a landlord and defendant his monthly tenant of the suit premises situated at Nagpur. Contractual rent: Rs. 120 per month. According to the plaintiff, the Rent Control Order does not apply to the suit premises. In July 1978, the landlord filed the instant suit claiming:

(a) possession of the suit premises;

(b) past mesne profits at the rate of Rs 5 per day;

(c) notice charges and costs of the suit; and

(d) order for inquiry into future mesne profits under Order 20, Rule12 of the Code of Civil Procedure.

By his written statement, the tenant denied the suit claim including the claim for and future mesne profits. According to him, the Rent Control Order applies to the suit premises. Furthermore, he had, while taking the suit pre­mises on lease, made a deposit of Rs. 5,000 with the landlord. He further averred that because of his refusal to increase the rent and insistence on rent receipts and because of police complaints against the landlord, the landlord gave the suit notice purporting to terminate his tenancy followed by the” instant suit which was false and mala fide. The suit is pending hearing and trial. In March 1979, the landlord filed application exhibit 16 for an order directing the tenant (a) to deposit Rs. 1440 made up of Rs. 550 as past mesne profits from the date of termination of tenancy till the filing of the suit and Rs. 890 as future mesne profits from the date of the suit till the filing of this application; and (b) to also deposit Rs. 120 regularly every month. The tenant opposed this application including its very maintainability contending inter alia that granting such an application would be akin to awarding “decree without trial”. The trial Court, however, allowed the application and directed the tenant to deposit Rs. 120 every month with effect from 5th September 1979. The aggrieved tenant challenges this order.

3. Hearing and considering the rival submissions of the respective Advocates, Mr. R. D. Chaudhari and Mr. G. K. Potey, I find the impugned order to be one without jurisdiction and liable to be set aside. Apart from the rather insignificant circumstance that neither the landlord's application nor the Court's order discloses the provision under which it is made, even the learned Advocates were unable to pinpoint any express provision in that behalf. The order is certainly not under Order 38, 39 or 40 of the Code of Civil Procedure (hereafter “the Code”) not under rule 42 of Order 21 of the Code. Though rule 42 applies the principle of attachment before judgment, inter alia, to matters relating to rent or mesne profits, it does so only at the post-decree stage i.e. after decree for inquiry in that behalf is passed and not before. In the present case, the suit itself is still in its embryonic stage. It is yet to commence hearing. Question of decree is, therefore, far away. There is no other provision in the Code for grant of interim mesne profits pending a suit for possession and mesne profits. Thus, and as also submitted by th

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