Karnataka High Court
Visalakshamma vs Balaji Agencies on 28 November, 1985
Equivalent citations: ILR1986KAR471
ORDER Hakeem, J.
1. In this Revision Petition the landlord has questioned the legality and correctness of the Trial Court's order directing redelivery of possession of the non-residential premises in question to the tenant by way of restitution under Section 144 of the Civil Procedure Code.
2. The landlord sought for eviction of the tenant from the non-residential premises in H.R.C. No. 1361 of 1973 on several grounds under Section 21 of the Karnataka Rent Control Act, 1961 (the Act). On 7-4-1975 an exparte eviction order came to be passed against the tenant therein by the Trial Court. In Execution case No. 242 of 1975 possession of the premises came 'to be delivered in pursuance of the said exparte order on 9-10-1975. On 11-10-1975 the tenant filed H.R.C. Misc. No. 136 of 1975 before the Trial Court for setting aside the ex-parte order passed in the aforesaid eviction proceedings. The said Petition was ultimately allowed in revision by the District Court, Bangalore, by its order dated 14-12-1976 whereby the ex parte eviction order passed in H.R.C. No. 1361 of 1973 was set aside. Thereafter the tenant filed a Petition under Section 144 of the C.P.C. in H.R.C. Misc. 75 of 1977 on the file of the Civil Judge, Bangalore City, for restitution of the premises from which he had been dispossessed by the landlord by virtue of the ex parte order of eviction. The tenant also bought for payment of damages and interest which according to him accrued on account of his dispossession.
3. Upon consideration of the matter the Trial Court held that the tenant is entitled to the restitution and directed the landlord to put the tenant in vacant possession of the premises. The other question regarding damages was kept pending. The correctness and legality of the said order is challenged in this Revision Petition by the landlord, who obtained stay not only of the impugned order but also the eviction proceedings pendings before the Trial Court.
4. Sri H.B. Datar, Learned Counsel for the petitioner, urged two contentions. Firstly that the restitution being a discretionary relief depending upon the circumstances of the case, and in this case upon the relative hardship that may be caused to one of the parties i.e., the landlord, the Trial Court was in error in ordering the same. Secondly, it is urged that in any event the application under Section 144 of the C.P.C. is not maintainable in the proceedings arising under the Act in the absence of a similar provision in the Act itself. Elaborating his contention Sri Datar has urged that the landlord having obtained possession of the premises has invested huge amount for the installation of machineries to carry on certain industry by her brother. Furthermore, the machineries are also pledged to certain financial institutions for raising the required funds for the purpose. According to him, the said facts are not controverted as the tenant has not filed any objections to the additional grounds urged by the landlord.
5. On the other hand, Sri Mirle Krishnamurthy, Learned Counsel for the respondent-tenant, sought to justify the order of the Trial Court and submitted that the application for restitution under Section 144 of the C.P.C. being an application for execution, the said application is maintainable by virtue of the provisions of Rule 35 of the Rules. He further urged that the order under which the tenant was dispossessed having been set aside the tenant is legitimately entitled to seek restitution, and therefore, the Trial Court was justified in directing restitution of possession of the premises to him.
6. Taking the second contention urged by Sri Datar first, I have no hesitation in holding that the application for restitution under Section 144 of the C.P.C. being an application for execution of a decree or order, the Court is entitled to exercise all the powers under the Code of Civil Procedure. This Court in the case of Meenakshamma v. Modur Rangarama, 1968(2) KLJ 255, has held that the Court functioning for the purpose of Part-IV of the Act is a Civil Court and as such it is entitled to exercise jurisdiction under the provisions of the Code of Civil Procedure. The said decision is affirmed by a Division Bench of this Court in Periyakkal v. Co-operative Tourist & Transport Society, 1979(2) KLJ 190. This Court has held the same view in V. Babulal v. M.K.M. Shariff, 1981(1) KLJ 273. As such there is no merit in the said contention of the Learned Counsel for the landlord.
7. The next contention of Sri Datar is that restitution cannot be granted as a matter of course either on variation or on reversal of the decree. Reliance is placed by him on the decision of the Supreme Court in Lal Bhagwant Singh v. Sri Kishen Das, , wherein it is observed thus :
''An order of restitution in the manner asked for in the circumstances of this case would be contrary to the principles of doctrine of restitution which is that on the reversal of a judgment the law raises an obligation on the party to the record who received the benefit of the erroneous judgment to make restitution to the other party for what he had lost and that is the duty of the Court to enforce that obligation unless it is shown that restitution would be clearly contrary to the real justice of the case."
Sri Datar's contention is that the landlord being in possession of the premises for the past about 10 years and having invested heavily for carrying on business therein, to allow restitution at this stage will cause great hardship and inconvenience to her in the peculiar facts and circumstances of the case and as such restitution would be clearly contrary to the real justice in the case. Hence, it is suggested that the reasonable course would be to stay the restitution pending disposal of the eviction petition which is still pending before the Trial Court. It seems to me that in view of the clear provisions of Section 144 of the C.P.C as applicable to the facts and circumstances of this case it is not possible to interfere with the order of restitution passed by the Trial Court.
8. In Binayak Swain v. Ramesh Chandra, the scope and ambit of Section 144 of the C.P.C. has been expressed in the following terms :
"The principle of the doctrine of restitution is that on the reversal of a decree, the law imposes an obligation on the party to the suit who received the benefit of the erroneous decree to make restitution to the other party for what he bus lost. This obligation arises automatically on the reversal or modification of the decree and necessarily carries with it the right of restitution of all that has been done under the erroneous decree and the Court in making restitution is bound to restore the parties, so far as they can be restored to the same position they were in at the time when the Court by its erroneous action had displaced them from."
It is further held therein that the judgment-debtor is entitled to restitution notwithstanding anything which happened subsequently as the right to claim restitution is based upon the existence or otherwise of a decree in favovr of the plaintiff at the time when the application for restitution was made. In the same decision Ramaswamy, J., speaking for the Court has explained and distinguished the principles stated in Lal Bhagwant Singh's case, thus :
"On behalf of the Respondents reference was made to the decision of this Court in Bhagwant Singh v. Sri Kishen Das . But the ratio of that case has no application to the present case. It should be noticed that the decree in that case was affirmed at all stages of the litigation except that the amount of the decree was slightly altered from Rs. 3,88,300 and odd to Rs. 3,76,790 and odd which amount was ultimately decreed by the Privy Council in the appeal which the judgment-debtor preferred from the decision of the Oudh Chief Court which restored the decree of the Trial Judge who decreed a sum of Rs. 3,88,300/-. It was held by this Court that Privy Council had merely restored the amended decree without altering the provisions as to payment by instalments or extending the time for payment by instalments and its decree did not in any way alter the position of the parties as it stood under the amended decree and the sale was not in consequence of any error in a decree which was reversed on appeal by the Privy Council and so the judgment-debtor was not entitled to restitution. In the present case the material facts are manifestly very different."
9. In the instant case it is clear that the investment made by the landlord for the installation of the machineries etc. as alleged by her are not in pursuance of or attributable to the order of eviction passed by the Trial Court But the same was done voluntarily by the landlord on her own accord during the pendency of the restoration and restitution proceedings before the Trial Court. Therefore, it seems to me that the landlord cannot resist the tenant's claim for restitution. If as a result of the reversal of the order of eviction, the tenant who was evicted became as of right entitled to seek restitution, there is no justifiable reasons to prevent him from claiming the said relief. The landlord having invested funds and starting an industry as alleged by her could not be made a ground for refusing restitution nor can such a restitution be stayed pending disposal of the eviction proceedings. In Ramayya Acharya v. Cyril Lasrado, 1977(2) KLJ 54 Govinda Bhat, C.J., has held that the Court had no jurisdiction to stay restitution when once the decree pursuant to which possession was delivered had been set aside. It is well settled that the acts of Courts shall not be allowed to work injury on the suitors. On the ex-parte order of eviction being set aside and an order of restoration of possession' to the tenant being made, it appears to be inequitable to keep the tenant out of possession pending disposal of the application for eviction. In the circumstances of the case I do not find any valid ground to interfere with the Trial Court's order.
10. In the result, the Civil Revision Petition is dismissed. But in the circumstances of the case the parties are directed to bear their own costs.
FURTHER ORDER After the pronouncement of the order Smt. G. Anasuya, Learned Counsel for the petitioner-landlord, prayed for some time to vacate and deliver the premises to the Respondent-tenant. In the circumstances, I think it is reasonable to grant three months time. Accordingly the petitioner-landlord is granted three month's time to vacate and deliver the premises to the Respondent-tenant.