Court clarifies interlocutory order directing tenant to pay arrears and occupational charges is not appealable under CPC Sections 104 and Order 43, advises supervisory jurisdiction under Article 227 as remedy
In a significant judgment dated October 29, 2026, the Jammu & Kashmir and Ladakh High Court, Srinagar Bench, presided over by Mr. Justice Sanjay Parihar, dismissed an appeal filed by tenant Ghulam Mohammad Dhobi against an order directing him to deposit alleged rent arrears and continue payment of occupational charges during the pendency of an ejectment suit filed by landlord Abdul Hamid Malla.
The appellant challenged the order passed by the Additional District Judge, Srinagar, which required him to deposit Rs. 56,250 towards rent arrears and pay Rs. 5,000 per month as occupational charges while the suit remained pending. The tenant contended that the direction was arbitrary and beyond the Trial Court's jurisdiction, as it effectively granted a major portion of the final relief without evidence or proper adjudication of disputed facts, such as the tenancy's existence, rent agreed, and entitlement to mesne profits.
However, the High Court held that the order did not fall under the appealable categories prescribed by the Code of Civil Procedure (CPC), specifically Sections 104 and Order 43, which govern appeals against interlocutory orders. The Court emphasized that the mere interlocutory nature of an order or the imposition of a monetary liability does not automatically confer a right of appeal. The Court further clarified that the order could not be classified as one under Order XXXIX Rules 1, 2, or 10 CPC, as these provisions require a clear and unequivocal admission of liability by the party ordered to deposit money, which was absent in this case.
The Court elaborated on the distinction between contractual rent payable during tenancy and mesne profits or occupational charges claimed on the basis of unauthorized occupation, noting that these concepts rest on different legal foundations and require proper adjudication. It found that the Trial Court's direction to pay occupational charges at an enhanced rate without clear legal basis could not be treated as a final determination.
Significantly, the High Court recognized that the impugned order appeared to have been passed under the Trial Court's inherent powers under Section 151 CPC, which are not appealable under Section 104 read with Order XLIII CPC. As such, the appropriate remedy for the tenant, if any, lies in invoking the supervisory jurisdiction of the High Court under Article 227 of the Constitution of India.
The Court also referred to a recent coordinate bench decision involving a similar order in a connected ejectment suit, which had held the appeal to be non-maintainable on identical grounds. While that decision did not bind the present appellant as he was not a party, the legal principles were deemed persuasive.
The judgment leaves open the substantive questions of tenancy, rent payment, and entitlement to mesne profits for trial courts to decide in due course, clarifying that this ruling pertains only to the maintainability of the appeal against the interlocutory order.
Ultimately, the High Court dismissed the appeal as not maintainable but granted liberty to the appellant to seek appropriate remedies permissible under law, including invoking the High Court's supervisory jurisdiction.
This decision provides critical clarity on the limits of appealability of interlocutory orders directing payment of rent and occupational charges in ejectment proceedings, reinforcing the principle that statutory appeal rights cannot be presumed and must be expressly conferred by law.
Bottom Line:
Order directing tenant to deposit alleged arrears of rent and to pay occupational charges during pendency of ejectment suit, in absence of clear and unequivocal admission, is not an order under Order XXXIX Rules 1, 2 or 10 CPC and is not appealable under Section 104 read with Order XLIII CPC; such order is traceable to Section 151 CPC and remedy lies, if permissible, under Article 227 of Constitution of India.
Statutory provision(s): Code of Civil Procedure, 1908 Sections 104, 151, Order 39 Rules 1, 2, 10, Order 43 Rule 1(r); Constitution of India Article 227
