1. ' HAIDER ALI PIRZADA, J.--This is an Inter-Court Appeal against the order, dated 28-5-1989 passed by a learned Single Judge of this Court on an application under section 151, C.P.C. Directing the appellant to furnish a security in the sum of Rs,75,000 to the satisfaction of the Nazir of this Court within a period of two months.
2. ' The facts leading to the filing of the above appeal are that the respondent filed a suit for possession and mesne profits against the appellant. The case as set out in the plaint was that the property in suit was owned by S. Mahmood which was gifted by him to his wife Mst. Fahmida Sultana. A declaration of gift was made and the transfer in the name of Mst. Fahimda was confirmed by the P.E.C.H. Society. On 9-8-1987 a lease was executed by Government of Pakistan in favour of Mst. Fahmida Sultana. On 13-12-1987 the said Fahmida Sultana sold the property in suit to Mahmood Iqbal and it was mutated in his name. On 9-7-1988 the said Mahmood Iqbal entered into an agreement to sell the property in suit to the respondent. A public notice was issued and as no objection was received, a sale-deed was executed by the said Mahmood Iqbal. It is the case of the respondent that at that, time, the appellant, the son of Syed Mahmood was in possession of the property in suit and it is alleged in the plaint that he had promised to vacate it. However, as he did not vacate, the respondent filed the suit as stated hereinabove. The appellant filed written statement wherein he pleaded that the gift is invalid. It is the further case of the appellant that the house has been constructed by ,the funds procured by his father Syed Mahmood and partly by his own funds. It is the further case of the appellant that he also filed a suit bearing No,135 of 1989 for declaration that the gift was not valid and it was never acted upon.
3. ' The respondent filed application under section 151, C.P.C. Praying that the appellant may be directed to deposit Rs,15,000 per month with effect from 8-8-1988 towards mesne profits and compensation for use and occupation of the property in suit till delivery of possession. The 'appellant resisted the application. The application was allowed by order, dated 28-5-1989. The appellant being aggrieved against the order, dated 28-5-1989 has filed the present appeal.
4. ' Mr. M.G. Dastgir, the learned counsel for the appellant contended that where the Civil Procedure Code has specifically provided for the contingency which has arisen in a case there is no room for the application of power arising under inherent jurisdiction. In support of his contention reliance is placed on the decisions reported in 1986 MLD 1356, PLD 1979 Kar. 734 and 1987 CLC 1984.
5. ' On the other hand Mr. Iqbal Kazi, the learned counsel for the respondent submitted that every situation that arises in the day to day administration of justice, cannot be visualized and provision made for the same by the Legislature. Section 151 of the Code which saves the inherent powers of a Court is intended to meet such situation and in exercise of the inherent powers, it is open to a Court to demand a security. In support of his contention, reliance is placed on the decisions reported in PLD 1979 Kar. 179, AIR 1941 Calcutta 70, PLD 1983 Lah. 475, PLD 1983 Kar. 387, 1987 CLC 1784, PLD 1966 Kar. 13, PLD 1959 Quetta 1, PLD 1962 SC 119, PLD 1963 SC 382 and PLD 1975 SC 678.
6. ' We have heard the learned counsel for the parties at length. We have gone through the order passed by the learned Single Judge and also through the other relevant record in this appeal.
7. ' In order to appreciate the respective contentions of the learned counsel for the parties, it is advantageous to reproduce para. 3 of the affidavit filed in support of application under section 151, C.P. C. Which reads:- "That unless the accompanying application is allowed, the decree ultimately passed in respect of mesne profits and compensation for use and occupation may prove to be a paper decree as the defendant has no assets at all of his own nor is he likely to have it at the time of the decree. In the absence of any assets held by the defendant it has not been possible for the plaintiff to apply for attachment before judgment. This is, therefore, an appropriate case for the exercise of inherent jurisidction of this Honourable Court."
8. ' Order XXXVIII, Rule 5, C.P.C. Relates only to attachment before judgment. Rule 5 postulates that it may be proved to the satisfaction of the Court that the defendant owns a property and with intent to obstruct or to delay the execution of any decree that may be paskd against him (a) is about to dispose of the whole or any part of his property, or (b) is about to remove the whole or any part of his property from the local limits of the jurisdiction of the Court. In determining whether the defendant with intent to obstruct or to delay the execution of any decree that may be passed against him is about to dispose of or about to remove the whole or any part of the property, the Court shall take into account all the circumstances of the case.
9. ' Section 151, C.P. C. Deals with the inherent powers of the Court making such orders as may be necessary for the ends of justice or preventing abuse of the process of the Court. The learned counsel for the appellant contended that there is no averment in the application or affidavit that the defendant, with intent to obstruct or to delay the execution of any decree that may be passed against him, is about to dispose of the whole or any part of his property or is about to remove the whole or any part of his property from the local limits of the jurisdiction of the Court and that the Court may direct the appellant to furnish security.
10. ' In this matter, the averment in the affidavit, is that the appellant does not own any property or the appellant has no assets at all of his own nor is he likely to have it at the time of the decree. This averment was not denied by the appellant. Section 151, C.P.C. However, in our view, is wide enough to provide for such furnishing of security as has been prayed for.
11. ' It is true that the Court has the power to direct the defendant to furnish security under Order XXXVIII, Rule 5 but this Rule prescribes certain conditions which regulate the exercise of the powers.
12. ' The words of section 151, C.P.C. Appear to, be rather wide. But the decision of Supreme Court of India', by construction, limited the scope of the said Section. In Padam Sen and. Another v. The State of Uttar Pradesh AIR 1961 SC 218 the question raised was whether a Munsif had inherent powers under section 151 of the Code to appoint a Commissioner to seize account books. It held that he had no power. Raghubar Dayal, J. , speaking for the Court observed:- "The inherent powers of the Court are in addition to the powers specifically conferred on the Court by the Code. They are complementary to those powers and therefore it must be held that the Court is free to exercise them for the purposes mentioned in S.151 of the Code when the exercise of those powers is not in any way in conflict with what has been expressly provided in the Code or against the intentions of the Legislature. It is also well-recognized that the inherent power is not to be exercised in a manner which will be contrary to or different from the procedure expressly provided in the Code."
13. ' The Supreme Court of India again in Manohar Lal Chopra v. Rai Bahadur Rao Raja Seth Hiralal AIR 1962 SC 527 considered the question whether a Court had inherent power under section 151 of the Code to issue a temporary injunction restraining a State. In that context Raghubar Dayal, J. , after quoting the passage cited above from his earlier judgment, interpreted the said observation I thus: "These observations have no bearing on the question of the Court's exercising its inherent powers under S.151 of the Code. The section itself says that nothing in the Code shall be deemed to limit or otherwise affect the inherent power of the Court to make orders necessary for the ends of justice."
14. ' The Supreme Court of India again in Arjun Singh v. Mohindra Kumar AIR 1964 SC 993 at p. 10Q3 considered the scope of section 151 of the Code. One of the questions raised was whether an order made by a Court under a situation to which Order IX, Rule 7 of the Code did not apply, could be treated as one made under section 151 of the Code. Rajagopala Ayyangar, J., made the following observation s: - "It is common ground that the inherent power of the Court cannot override the express provisions of the law. In other words if there are specific provisions of the Code dealing with a particular topic and they expressly or by necessary implication exhaust the scope of the powers of the Court or the jurisdiction that may be exercised in relation to a matter the inherent power of the Court cannot be invoked in order to cut across the powers conferred by the Code. The prohibition contained in the Code need not be express but may be implied or be implicit from the very nature of the provisions that it makes for covering the contingencies to which it relates."
15. ' In Mohiuddin Molla v. The Province of East Pakistan, and others PLD 1962 SC 119 at p.123 it was held as under:- "The Court has inherent jurisdiction to preserve the property of the judgment-debtor in order that it may be available for realization of the decretal amount. This principle has been recognized in Order XXXVIII, rule 5 of the Civil Procedure Code which empowers the Court to attach the property of the defendant in order that any decree that is passed in the suit may be satisfied by the sale of the attached property. If the Court has power to attach the property of the defendant at a time when there is only a possibility of a decree in favour of the plaintiff, it will be anomalous to hold that after he has actually secured a decree the Court cannot act to protect his interests just because the execution of the decree has been postponed. The jurisdiction of the Court to attach the .Property of the defendant truly arises from the fact that the Court has power to grant relief. A power to grant relief necessarily implies powers to take all such steps as may be needed to ensure the grant of relief to the plaintiff. Full relief is not granted to a plaintiff by a paper decree. It is only when the decree is satisfied that he gets full relief and the Court has power to pass all such orders as may be required for the satisfaction of the decree unless any such order be expressly or by necessary implication prohibited. Order XXXVIII, rule 5, should be regarded as a provision which recognizes- a power rather than a provision which confers a power. The Civil Procedure Code, generally speaking, does not create new powers but regulates the exercise of power already possessed by the Court: Even before the Civil Procedure Code was enacted the Civil Court possessed powers of the kind mentioned in the Civil Procedure Code. It possessed- these powers because the Civil Court has jurisdiction to determine and protect civil rights and for the protection of those rights the exercise of such powers is essential."
16. ' In Imtiaz. Ahmad v. Ghulam- Ali and others PLD 1963 SC 382 at p.399 B.Z. Kaikaus, J., observed: "I must confess that having dealt with technicalities for more than forty years, out of which thirty years are at the Bar, I do not feel much impressed with them. I think the proper place of procedure in any system of administration of justice is to help and not to thwart the grant to the people of their rights. All technicalities have to be avoided unless it be essential to comply with them- on grounds of public policy. The English system of administration of justice on which our own is based may be to a certain extent technical but we are not to take from that system its defects. Any system which by giving effect to the form and not to the substance defeats substantive rights is defective to that extent. The ideal must always be a system that gives to every person what is his."
17. ' In a similar context, Cornelius, C.J. Observed in the case of Province of the East Pakistan v. Sirajul Haq Patwari (1967) 1 PSCR 35, as follows:- "It was, as I have already remarked, a res of the highest order and when it was placed in jeopardy by the petitions moved in these cases, it was the duty of the High Court in interpreting and applying the relevant instruments including the Constitution to bear in mind the great maxim to res mages valeat quam pereat that is to say, that the affair should prosper rather than be brought to destruction. It may be that the maxim that was borne in mind was rather fiat justitio rual coelum, that is to say -let justice prevail though the heavens should fall."
18. ' These observations were adopted and followed by our Supreme Court in the case of Manager Jammu and Kashmir State Property in Pakistan v: Khuda Yar and another PLD 1975 SC 678. It was further observed:- "Normally, however, legal technicalities should not be allowed to stand in the way hurdle brushing aside which might lead to unsettlement and uncertainty of law."
19. ' In Muhammad Hashim Khan v. Major Fazal Ellahi Khan PLD 1959 (W,P.) Quetta 1 it was held: "In my opinion 5.151, provides the best solution. Ft has been designedly framed to meet a case of this nature. Its provisions being there, there is no necessity for looking for a solution. Once the justness of the cause is recognised, the provisions of section 151 should be called in aid without any hesitation. It will be, in my opinion, just and proper that a person who has failed to appear on the date of hearing through no fault of his, should not be denied a hearing."
20. ' In Kassamali Alibhoy v. Shaikh Abdul Sattar PLD 1966 (W.P.) Karachi 13, it was held as follows:- "It is well-settled that under section 151 a Court cannot act contrary to the specific provisions of the statute. Section 151 is intended to deal with cases which have not been dealt with by the Code. It is clear that the C.P.G. Cannot deal with every conceivable case that may arise in Courts- of law and section 151 is, therefore, enacted in order to save the inherent powers of the Court to do justice under proper cases."
21. ' In Lahore Development Authority v. Messrs Own Homes Service Ltd. 'PLD 1983 Lah. 475 it was observed as under:- "It is also settled law that there is no room for the application of the inherent power where there is an express provision negativing the claim of the petitioner. Since no express provision governs the situation, as it arises' in this case, and as the relief asked for by the petitioner, in its application, dated 6th October, 1981 should have been granted to it if the petitioner had, in fact, refused to permit the respondent to deposit the decretal amount, in its account, the benefit of the provisions of section 151, C.P.C.. Could be made available to the respondent, in the interest of justice, despite its failure to give notice of payment. This is particularly so because the. Payment had been made within the time provided in the decree. Thus a relief, only to that extent, can be allowed by this Court in this jurisdiction, just to see that justice is not denied to the respondent, if its plea, for the deposit of amount in the Court, was correct."
22. ' In Mst. Selma Jawaid and 3 others v. S.M. Arshad and .7 others PLD 1983 Kar. 303, it was observed:- "In my view it may be taken as a general rule that in a suit a temporary injunction will not be granted to an applicant if the facts and circumstances of the case are not covered by Order XXXIX and a receiver will not be appointed if the case does not fall within Order XL of the Code of Civil Procedure. However, where there are compelling reasons, and the interests of justice require or demand, the Courts are neither helpless nor are they fettered by the specific provisions of Order XXXIX or Order XL, C.P.C. And in exercise of their inherent jurisdiction will certainly grant relief by way of temporary injunction or through appointment of a receiver. To protect the rights of citizens. It is not possible and I also do not consider it prudent to specify or identify the various situations or reasons, where or when the Courts will exercise their inherent powers under section 94 or section 151, C.P.C. For granting a temporary injunction or appointing a receiver. In each 'case the Court evaluates the overall situation considering the peculiar facts and circumstances on record and then the decision is taken whether in the interests of justice inherent powers .Are to be exercised or not. Each case has its own different set of facts and again and again new situations come before the Courts and, therefore, I may repeat, it is not possible to lay down specific principles restricting the power of Courts' to exercise their inherent, jurisdiction in certain specified situations or for certain reasons only. If this were done, it would only impede the administration of justice and restrict the development of law."
23. ' In Durga Dihal Das v. Anoraji (94) 17 All 29 = 1894 AWN 190, it was said by Blair, J., that the Code is not exhaustive, there are cases which are not provided for in it, and he declined to believe that the High Court must fold its hands and allow injustice to be done. These words were adopted by Woodroffe, J., in Hukum Chand Boid v. Kamalanand Singh, (1906) 33 Cal. 92 at p.93 = CLJ 67 and he added that "the law cannot (as pointed out by 'Sir Barens Peacock, C.J.) make express provisions against all inconveniences so that their dispositions shall express all the cases that may possibly happen, and it is, therefore, the duty of a Judge to apply them not only to what appears to be regulated by their express provisions, but to all the cases to which a just application of them may be made and which appear to be comprehended, either within the express sense of the law or within the consequences that may be gathered from it. The Code does not as I have already had occasion to hold, in Punchanon Singh v. Kunuklota Baromoni affect the power and duty of the Court, in cases where no specific rule .Exists, to act according to equity justice and good conscience, though in the exercise of such power it must be careful to see that its decision is based on sound general principles and is not in conflict with them or the intentions of the Legislature.
24. There are also matters, and I do not now deal with them, in which a question may arise whether the right to make an application or the exercise of a power is derived entirely from express legislation, as in the case of the right to prefer and entertain an appeal or to award costs, it being a matter of dispute in the latter case whether a question of costs is one of procedure or one affecting vested rights. The Court has, therefore, in many cases; where the circumstances require it, acted upon the assumption of the possession C of an inherent power to act ex debito justitio and to do that real and substantial justice for the administration, for which it alone exists." These observations were adopted and_ followed in the cases reported in AIR 1920 Lahore 436 and AIR 1940 Allahabad 185.
25. ' This principle now finds expression in section 151 of the new Civil Procedure Code, which enacts that nothing in the Code shall be deemed to limit or otherwise affect the inherent power of the Courts to make such orders the may be necessary for the ends of justice or to prevent abuse of the process of the Court.
26. ' The following principles are deduced from the above decisions:-
(1) The inherent power of a Court is in addition to and complementary to the powers expressly conferred under the Code.
(2) But that power will not be exercised if its exercise is inconsistent with, or comes into conflict with, any of the powers expressly or by necessary implication conferred by the other provisions of the Code.
(a) If there are express provisions exhaustively covering a particular topic, they give rise to a necessary implication that no power shall be exercised in respect of the said topic otherwise than in the manner prescribed by the said provision.
(4) Whatever limitations are imposed by construction on the provisions of Section 151 of the Code, they do not control the undoubted power of the Court ,conferred under section 151 of the Code to make a suitable order to prevent the abuse of the process of the Court.
27. ' The learned Judge in our view expressed quite' accurately the principles governing cases 'of this kind'. He pointed out that the plaintiff/respondent has a prima facie established his case. He further pointed out that the defendant's at last is to the extent of his share which is very nominal i.e, 14/80 as claimed by him. He has stated that the respondent has a just and fair case and it is, therefore, necessary that his interest should be protected so that the decree which may be passed in the .Suit may not be frustrated. Directing the defendant/appellant to furnish a security is entirely a matter of discretion with the learned Single Judge and a Court of appeal will be very slow to set aside the discretion unless it is proved that he has misdirected himself as to the facts or on the law.
28. We have "taken great care to consider the matter, and have given it our fullest consideration.
29. ' There is nothing, in Order XXXVIII, Rule 5 of the Code, E which expressly or by necessary implication precludes the exercise of the inherent power of the Court under section 151 'of the Code. We are, therefore, of the opinion that in the instant case the defendant had no assets of his own or is not likely to acquire till the date of decree, the Court can make a suitable order under section 151 of the Code as may be necessary for the ends of justice or to prevent abuse of the process of the Court.
30. ' We are of the opinion that the learned Single Judge was right in exercise of his discretion on sound principles of law consistently with the facts and circumstances of the case. We Must, therefore, affirm the order directing the appellant to furnish a. Security in the sum of Rs,75,000. The appeal is dismissed but in the circumstances of the case, the parties are directed to bear their own costs.
31. ' The above are the reasons for the short order dated 11-7-1989 dismissing the appeal in limine on conclusion of the arguments.