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Cites 8 docs - [View All]
The Specific Relief Act, 1963
Section 6 in The Specific Relief Act, 1963
S.N. Bannerjee And Secretary Of ... vs Kurchwar Lime And Stone Company, ... on 31 October, 1938
Pappu Reddiar vs P.Sv.Rm. Ramanatha Iyer on 25 June, 1962
The Commissioner Of Income Tax, ... vs Sri J.H. Gotla, Yadagiri on 29 August, 1985

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Calcutta High Court
Sri Dilip Kumar Dey, Adv. vs Mrs. Vishwa Mitra Ram Kumar And ... on 16 September, 1994
Equivalent citations: AIR 1995 Cal 31, (1995) 1 CALLT 43 HC
Author: J K Mathur
Bench: S Mukherjee, J K Mathur

ORDER J. K. Mathur, J.

1. This appeal is directed against an order passed by the 12th Bench of City Civil Court, Calcutta, allowing the application under Section 144 of C.P.C. and directing the possession of suit premises to be delivered to the applicant/respondents.

2. The appellant before us filed a suit for recovery of possession of the disputed premises under S. 6 of the Specific Relief Act, claiming that he was a tenant in possession in the said premises and that he had been forcibly dispossessed by the defendant/respondents, who claimed to have purchased the property from the original landlord Fide Hussain Ahmed Bhoi & Zainal Baid Ahmed Bhoi, a firm, this suit being No. 107 of 1989 was decreed ex parte on 4-6-1990. On the strength of this decree, the appellant obtained possession on 22-5-1992. The respondents thereupon moved an application for setting aside of the ex parte decree. This was allowed and the ex parte decree was set aside on 5-5-1993. The respondents thereafter initiated the proceedings under S. 144, C.P.C. and sought restitution of the possession of property on the ground that the ex parte decree on the basis of which the appellant had taken possession having been set aside, they were entitled to be restored the possession of the premises, to be put in the position which they occupied before passing to the said decree. Plaintiff/ appellant got the suit dismissed on 22-7-1993 during pendency of the proceeding for restitution.

3. This application was contested. In a written objection filed on behalf of the appellant, it was asserted inter alia, that the application was not maintainable and the suit having been dismissed for non-prosecution on 22-7-1993, the miscellaneous proceedings under S. 144 also could not continue. Certain other objections were also raised in the course of the argument before the Ld. Trial Court. It was found that the provisions of S. 144 were applicable in the present case and that the plea that the respondent was in wrongful possession was not available in the proceedings under S. 144, C..P.C.

4. The application was, therefore, allowed and possession ordered to be delivered to respondents.

5. In this Court availability of proceedings under S. 144 in cases where decree was set aside in miscellaneous proceedings under Order, rule 13, C.P.C. was not challenged, in view of the amendment to -- C.P.C. effected in 1977. However, it was asserted that the proceedings under S. 144, C.P.C. have to take into account the equities and also the fact that the appellant was in rightful possession as a tenant and that the respondents were trespassers. This ought to have been taken into account by the Ld. Trial Judge and in not doing so, he has committed an error of law which has vitiated the order. It was also asserted that after termination of the suit from which the proceedings under S. 144 arose, the proceedings could not continue and would lapse with the termination of the suit.

6. Section 144(1), C.P.C. runs as follows :--

"Application for restitution:-- (1) where and in so far as a decree (or an order) is varied or reversed in any appeal, revision or other proceeding or is set aside or modified in any suit instituted for the purpose, the Court which passed the decree or order shall, on the application of any party entitled to any benefit by way of restitution or otherwise, cause such restitution to be made as well, so far as may be, place the parties in the position which they would have occupied but for such decree (or order) or such part thereof as has been varied, reversed, set aside or modified and, for this purpose, the Court may make any orders, including orders for the refund of costs and for the payment of interest, damages, compensation and mesne profits, which are properly consequential on such variation, reversal, setting aside or modification of the decree or order.

Explanation:-- For the purposes of sub-s. (1), the expression "Court which passed the decree or order" shall be deemed to include -

(a) where the decree or order has been varied or reversed in exercise of appellate or revisional jurisdiction, the Court of first instance;

(b) where the decree or order has been set aside by a separate suit, the Court of first instance which passed such decree or order;

(c) where the Court of first instance has ceased to exist or has ceased to have jurisdiction to execute it, the Court which, if the suit wherein the decree or order was passed were instituted at the time of making the application for restitution under this section, would have jurisdiction to try such suit".

7. A plain reading of these provisions will show that if a person has obtained any benefit in pursuance of a decree on order, on reversal variation setting aside or modification of that decree or order in a manner that he is no longer entitled to that benefit, the Court will ask him to restore the benefit obtained by him under the decree or order which was set aside or reversed, varied or modified.

8. The Ld. Trial Court also applied only these principles when he found that the appellant had obtained possession of the disputed premises in pursuance of ex parte decree and that ex parte decree having been set aside, he was no longer entitled to retain possession and would therefore be liable to give back the possession to the respondents who were dispossessed by execution of the decree.

9. However, on behalf of the appellant, it has been urged that these are not the only factors which ought to have been taken into account and in case where the person having taken possession is prima facie entitled to the possession while the person seeking restitution is patently a trespasser this should be also be taken into account and restitution refused.

10. In support of this contention Shri Roy Chowdhury relies on a decision of Madras High Court reported in ILR XXIII, Madras 306, Dora Sami Ayyar v. Annasami Ayyar.

11. In this case, a suit was filed by the respondents claiming that they were trustees of the property of the temple while the appellant defendant who had also been a trustee had been removed from his Office by the committee exercising control over the temple property. He, however, continued to interfere in the conduct of the management of the temple. An injunction was sought against him in a suit which was decreed by the trial court but the High Court subsequently reversed the decree and the suit was dismissed. The application for restitution was there upon moved by the appellant on the ground that the property of which he was in posses-

sion had been taken in the proceedings of the court purporting to have been issued in execution of the decree.

12. The application for restitution was contested inter alia on the ground that during the pendency of the proceedings one Siva Sami Ayyar had been vaiidly appointed as an additional trustee and had taken over the properties of the trust in his possession and the application for restoration could not be preferred against him as he was not a party to the original proceedings.

13. The Court turned down the argument that granting of the restoration is a discretionary remedy. It was held that it was the duty of the Court to enforce restitution unless it was shown that it would he clearly contrary to the real justice of the case.

14. This dictum was relied upon to urge that restitution is not such a statutory remedy in which equities cannot be seen and a person has to be given the possession only because the decree has been reversed.

15. A similar observation in the case of Lal Bhagwant Singh v. Hari Kishen Das, was also relied upon. The Supreme Court held that it is the duty of the Court to order restitution where a party has received benefit of an erroneous judgment unless it would be clearly contrary to the interests of justice.

16. Another case relied upon by the Ld. Counsel for the appellant is S. N. Banerjee v. The Kuchwar Lime & Stone Co. Ltd., reported in (1942) 46 CWN-374. In this case the possession had been taken on a finding that the appellants were guilty of contempt._ When they sought restitution it was found that Section 144 did not apply. The Privy Council refused to deliver the possession in exercise of power under Section 151, C.P.C. in view of the fact that there was a clear judgment of the Privy Council that the appellants were trespassers while the respondent company had a valid lease for property. In view of the circumstances the possession was refused.

17. In this case the provisions of S. 144 were not being considered and also there was a judgment of the Privy Council itself that appellants who were claiming restoration under inherent powers were trespassers. In the use of the inherent powers the equities play much more role than they do in exercising of power under statutory provisions. In exercise of inherent powers the primary object is to meet out complete justice between the parties, and to prevent the abuse of the process of the Court. The consequences of restitution would therefore be important determinants to see that the order does not result in unentitled gain to any party.

18. In the present case the proceedings are being taken under statutory provisions of Section 144 and not under Section 151 and the statutory determinants shall be necessary considerations.

19. In another Full-Bench decision of the Madras High Court; Pappu Reddier v. P.S.V.Rm. Ramanath Iyer, , relied upon by Sri Roy Chowdhury, it was held as follows at page 46 :

"Before we refer to the decisions on the subject, it will be appropriate to refer to the principle which underlies the granting of restitution. It is one of he highest duties of the Court to see that no party suffers by any erroneous act done by it. On the reversal of a judgment law places an obligation on the party who received a benefit under that erronueous judgment to make restitution to the other party of what he had lost. The Court possesses the power, a power which is both inherent and statutory to enforce that obligation. But the mere restoration of what a party lost under a decree or order which is later set aside might not secure 'to him complete justice. Restitution of property so called is restoration to the original state which would include reparation for the injury done. Section 144, C.P.C. recognises this when it says that for the purpose of placing the panics in the position which they would have occupied but for the decree that had been set aside, the Court would have powers to direct payment of interest, damages, mesne profits, etc. Essentially, therefore, restitution is doing justice between the two parties".

"Restitution conceived in that light namely doing justice between the parties, will necessarily have to depend on the facts and circumstances of each case and cannot be reduced to the form of an inflexible rule that Court should have regard only to the detriment suffered by one party and not to the position of the other. Indeed the very statement of the principle above there is a correlation of the injury to the benefit secured under the erroneous judgment".

20. Emphasis was laid by the Ld. Counsel for appellant on the dictum that complete justice has to be done between the parties while enforcing the provision Section 144, C.P.C. and take into account fact and cicumstances of the case. In this case the dispute related to the interest demanded on the amount of money deposited by the petitioner in the Court in execution of a decree which was varied in appeal. The Opposite Party contested by saying that he had not taken any benefit as having not withdrawn the amount from the Court and was therefore not liable to pay the interest. The decision therefore relates itself to the extent of reparation and not to the entitlement to restitution.

21. A perusal of these cases does show that there may be certain occasions where the grant of the benefit under a decree and its reversal may not be only determinants always.

22. There may be some rare occasions where other factors may also have to be taken into account by the Court in determining entitlement to restitution. This question however, need not be gone into in detail to determine the extent to which the circumstance may be considered in view of the specific contention raised on behalf of the appellants that he being a tenant and having been unlawfully dispossessed should be the factors taken into account to refuse restitution which question alone arises for determination in this appeal.

23. Before this question is considered, it may be pointed out that, it is not disputed between the parties that the appellant was a tenant of the property. The contention of the appellant is that he was forcibly dispossessed while the respondents, who are the owners of the property contend that the appellant had surrendered his tenancy long before the alleged dispossession.

24. The appellant instituted a suit under Section 6 of the Specific Relief Act to regain the possession of the property on the allegation that he had been forcibly dispossessed, having been in possession of the property till the date of such alleged dispossession. He, however, withdrew the suit after the ex parte decree was set aside.

25. In the aforesaid circumstances, the appellant avoided a decision in the regular forum which would have definitely decided whether appellant was actually in possession, as claimed by him or had already surrendered the possession to the respondents. Instead of haying those questions decided in the appropriate suit filed for the purpose, he wants this question to be considered in these proceedings, having withdrawn the suit.

26. The extent of enquiry under Section 144 cannot be enlarged to usurp the jurisdiction of the regular court, especially when that court had the question raised before it by parties but was not permitted to adjudicate finally. This Court cannot enter upon rights of the parties which were in fact the subject matters of the suit and decide them in the proceedings under Section 144, C.P.C., in the circumstances of the present case where the appellant pressing for the decision of this question has avoided a decision by a competent Court and also because the parties still have the forum of the regular suit to have their rights determined. In these circumstances, the proceedings under Section 144, cannot be converted into omnibus proceedings while they are meant only to consider entitlement to restitution in terms, of the provisions of law.

27. This proposition is also supported by the decision in Dura Sami Ayyar (supra) :

"Suppose, for instance, the party wanting the restitution chooses to institute a fresh suit for the purpose, as he is entitled to do in the absence of a statutory prohibition on the point, instead of pursuing the other remedy open to him, viz, the less costly and more expeditious process of applying for restitution in the very suit in which the decision in consequence of which restitution is claimed was passed. In such fresh suit the defendant pleads that the right to the property claimed has been all along vested in himself and that the plaintiff never had any title to it, there is no authority, that I am aware of for laying down that he would be estopped from raising such a plea, that he must surrender the property in that suit and then bring an action to recover it. To hold so would of course lead to unnecessary multiplicity of suits. But whether this opinion is correct or not, it must, I think, be conceded that if restitution is claimed in proceedings commenced by an application the party opposing the claim will not be entitled to the same latitude that think is allowable to a defendant in a suit brought for restitution. A different view will scarcely be consistent with the limited scope of the proceedings which ex hypothesis are taken in subordination to the decision in consequence whereof the restitution is claimed and without reference to the actual rights of the parlies except so far as they can be gathered from that decision itself."

28. The proceedings under Section 144 have limited scope and, therefore, we find that it would be impermissible to allow either of the parties to prove their rights as they stood before the order of reversal was passed.

29. It was also urged by the Ld. Counsel for the appellant that in appropriate cases this Court has even granted mandatory injunction to restitute the possession to a tenant if he has been illegally dispossessed. For this proposition reliance was placed on the India Cable Co. Ltd. v. Smt. Sumita Chakraborty, .

30. The equities which are considered by the Court for injunction are not exactly the same as are considered in determining the rights under Section 144, C.P.C. This case cannot therefore help the appellant.

31. We, therefore, find that in this case the question of the appellant being a tenant and having been dispossessed forcibly are the questions, which could not have been validly considered in determining an application under Section 144, C.P.C.

32. The other question raised by the ld. Counsel for the appellant was that the proceedings under Section 144 are in the nature of interlocutory proceedings arising out of the main suit and they would come to an end on determination of the suit itself.

33. These arguments were very ably advanced but we are unable to convince ourselves of their validity.

34. The very first reason is that Section 144, the provisions of which have been cited above does not intrinsically contain any words or clauses suggestive of their being available only during the pendency of a suit. In fact, the provisions were not referred to suggest any intrinsic material for such interpretation. In absence of any such meanings attributable to any part of this provision, it cannot be held that it is a remedy available only during pendency of a suit.

35. Even where a possible interpretation of a provision suggested is one which will attribute such a meaning, the Court will not construe the provision in a manner which will lead to inconvenience, hardship or injustice. (See Tirath Singh v. Bachittar Singh, . Commission of Income-tax v. J. H. Gotla Yedgin, AIR 1985, SC 1968 : 1985 Tax LR 1443).

36. If the suggested interpretation is adopted the respondents would be driven to initiate a suit again for the same relief, which suit would also be of controversial maintainability in view of Section 144(2) which bars suits, where a relief is obtainable under Section 144. Admittedly the proceedings lay under Section 144, when they were instituted. In view of this multiplicity of proceedings, inconvenience and a probability of respondents being left without a remedy will cause hardship to them. Such an interpretation would be eschewed by the Court.

37. No provision of law providing a right, substantive or processual can be so interpret-

ed as to permit it being frustrated by the person against whom it is available, over the conduct of whom the holder of the right has no control. In the present case the appellant himself brought an end to the suit, and may not be permitted to say that it would non-suit the respondents.

38. Another fallacy in the contention can be seen by the fact that it was not disputed that an application for restitution would lie where a benefit is realised in execution of decree which is set aside in appeal, in which situation no suit would be pending even at the time the cause to claim restitution arises. If the arguments of the appellant are accepted the proceedings for restitution would be still born as they would stand lapsed on conclusion of the suit.

39. Indeed there is nothing in the provisions of Section 144 to suggest that the order under which a benefit is gained should have been passed only in a suit. If an Order has been passed in any proceedings not being a suit and benefit obtained on its compliance, the proceedings subsequently initiated for restitution may not be relatable to any suit, and the hypothesis that such proceedings would be co-extensive with a suit, so deftly conjured on behalf of the appellant would have no legs to stand on.

40. When a decree passed in one suit is set aside in another suit filed for that purpose, the cause to claim restitution of any benefit obtained under the decree set aside will arise only when both the suits stand terminated and no application can possibly be moved during the pendency of either of them. Yet this is explicitly provided to be a situation where an application under Section 144 would lie, negativing the appellants contention according to which in such a situation, no such proceedings can be taken,

41. The argument, therefore, does not get support either from the provisions of the Section 144 or on consideration of the possible consequences.

42. These proceedings being interlocutory proceedings and, therefore, being liable to lapse on determination of suit is also not a tenable argument.

43. Interlocutory proceedings have been given to be the preparatory stages of an action accruing between the originating summons or the issue of a writ and the trial of resulting issues, according to the Dictionary of Law' by L.B. Curzon (Pitman publishing) 4th Ed.

44. Some proceedings are meant either to be steps in aid of a suit or are aimed at protecting rights of a party during pendency of a suit. The very purpose of the proceedings is such that they need not be continued after the suit terminates. These are the interlocutory proceedings which need not, and do not survive the suit in which they arise. There may yet be other proceedings which may arise out of a suit but the culmination of the suit has no logical impact on the continuance of the proceedings. Proceedings under Section 144 are meant to effectuate rights of a person who has been deprived of them in pursuance of an order passed in a suif or proceedings. The right of restitution is not limited in its availability to the period during which the suit or proceeding is pending nor would it therefore perish with the suit. The proceedings which are meant only to make the right effective cannot by any stretch of logic be dependent on proceedings is suit and stop midway before making the right available.

45. The proceedings are not step in aid of the suit, nor are meant to make arrangement pendente iite, and therefore do not lapse with the conclusion of the suit.

46. It is the nature of the proceedings which will determine their surviving the suit, and not the name that is given to them.

47. We therefore find that conclusion the suit cannot render the proceedings under Section 144 infructuous.

48. The learned Counsel for the appellant also relied upon certain provisions of Code of Civil Procedure to urge that wherever the legislature intended the proceedings to continue on determination of a suit it has specifically so provided while there was no such provision appended to Section 144, C.P.C. It was therefore inferred that these proceedings lapse on culmination of a suit. In this context, reference was made to Order I, Rule 8(4), Order 8, Rule 6D, Order 23, Rule 1(2) and Order 41, Rule 22(4), C.P.C.

49. Order 23,Rule 1(5) and Order 1, Rule 8(5) provide for the competence of only one of the parties to conclude a suit without the consent or notice to the other parties. Under Order 23, rule 1(5), no suit may be withdrawn by only one of the plaintiffs without the consent of the other co-plaintiffs while under Order 1, Rule 8(4), C.P.C. the party on record who represents the interest of the numerous other persons in representative suit may not compromise or withdraw the suit without notice to the other persons having the interest. Neither of these two provisions deal with the survival of any proceedings consequent to termination of the other. They provide for disability of one of the parties in aforesaid circumstances to conclude the proceedings. These provisions do not provide any guidance for the construction of Section 144, C.P.C

50. Under Order 8, Rule 6D a counter claim is permitted to survive a suit where the suit is discontinued, stayed or dismissed. Similarly, a cross-objection is to survive an appeal in certain circumstances under Order 41, Rule 22(4). In either of these the cross-objection -- or the coutner-claim is heard in the very proceedings of the appeal or the suit and unless there was a provision to the contrary once the appeal or the suit stand terminated, there would be no proceeding in which the cross-objection or counter-claim could be adjudicated. They, however, being independent claims of the respondents or the defendant cannot be permitted to become infructuous on the appellant or the plaintiff withdrawing the suit on appeal.

51. In centra-distinction to the aforesaid proceedings, proceedings under Section 144 are not heard in the suit and, therefore, termination of the suit would not ipso facto result in conclusion of the proceedings under Section 144, C.P.C. These proceedings are not proceedings in the suit and they are not heard as a part of the proceedings in the suit and cannot be interlocutory proceedings in the sense implied above. These proceedings are taken distinctly from the suit and as pointed out above may not necessarily be even contemporaneous with the suit. They, therefore, do not need any separate provision to save them after a suit ends.

52. In view of the above, we do not find any force in either of the two contentions raised on behalf of the appellant against the judgment of the Trial Court.

53. No other point was raised. The appeal, therefore, fails and is hereby dismissed.

54. There will be no order as to costs.

S.K. Mookherjee, J.

55. I agree.

56. A prayer for stay of operation of the judgment is made and is refused.

57. Appeal dismissed.