Landlord and Tenant-Orders of Rent Control Board to vacate and to pay rent Increase of Rent (Restriction) (Enforcement of Determination and Orders of the Board and Appeals from the, Board's Determinations and Orders to the Supreme Court) Rules of Court, 1950, rule 5-Application for stay of execution to Supreme Court after filing appeal-No previous application to Board-Competency-Whether Order XLI, rule 4 of the Civil Procedure (Revised) Rules, 1948, or inherent jurisdiction can be invoked.
Case summary
Held (5th August 1955):
The applicant ought to have applied to the Rent Control Board for a stay of execution of the order of the Board, before filing an appeal, as regulated by rule 5 of the Increase of Rent (Restriction) (Enforcement of Determinations and Orders of the Board and Appeals from the Board’s Determinations and Orders to the Supreme Court) Rules of Court, 1950.
Order 41, rule 4(1) is not available in case of an application for stay of execution of the order of a Rent Control Board, made after an appeal has been filed, since rule 5 of the Rules of Court, 1950, must be deemed to cover exclusively the field of applications for stay and leaves no room for supplementing or modifying by the more general and earlier Civil Procedure (Revised) Rules, 1948. A Rent Control Board is not a court, and rule 4(1) expressly provides that in every instance application is first to be made to the court appealed from.
An applicant had his proper remedy laid down by rule 5 of the Rules of Court, 1950, and to allow him to flout the procedure prescribed and, then, to invoke an inherent jurisdiction, would amount to an abuse of the process of the Court. Nevertheless, provided an applicant satisfied the Court that he had been prevented, by good cause, from following the procedure regulated by rule 5, stay would usually be granted, in case of orders to vacate, in the absence of special circumstances.
Although the applicant had not shown good cause, the respondent had not opposed stay, since the applicant had vacated the premises, and stay of the order to vacate would be ordered.
Stay of an order to pay rent is not granted unless in exceptional circumstances. The applicant had not proved that payment of rent would entail substantial loss and, consequently, stay of execution was refused.
Stay of execution to vacate granted; stay of execution of order to pay rent refused.
Cases cited: Mohamed Hayat v. Noor Fatma w/o Sheikh Gul Mohamed, Civil Appeal No. 18 of 1953; Bhagwanji Premchand and Others v. Gomes and Others, Civil Appeal No. 52 of 1953; B. G. Vyas v. A. B. De Souza (1954) 27 K.L.R. 120.
