Allahabad High Court
Kailash Kumar vs Ivth Adl. District Judge, Moradabad And ... on 11 August, 1998
Equivalent citations: 1999(1)AWC352
Author: J.C. Gupta
Bench: J.C. Gupta
JUDGMENT J.C. Gupta, J.
1. This writ pelition is directed against the order dated 30.5.1990 passed by Rent Control and Eviction Officer and as affirmed by the lower revisional court by the order dated 25.7.1990.
2. The facts in brief may be stated.
3. The dispute relates to a shop which was in the tenancy and occupation of one Rama Shanker. The landlord Shree Kripa Krishan filed suit for ejectment against the tenant-Rama Shanker and the said suit was decreed by Judge Small Cause Court on 26.9.1975. The revision filed by the tenant-Rama Shanker was also dismissed on 18.11.76 so also the second revision filed in this Court, by the order dated 21.3.1978. Even before the decree of eviction could be put in execution, one Kailash Kumar. who according to the respondents is a close relative of Rama Shanker. moved an application on 30.11.1981 before the Rent Control and Eviction Officer for allotment of the shop in his favour stating therein that the shop was likely to fall vacant. A report was called for from the Rent Control Inspector who submitted his report on 9.12.1981 and thereafter by the order dated 7.1.1982, vacancy was declared,and 3.2.1982 was fixed for consideration of objection, if any. filed in the meantime. Since no objection was filed the Rent Control and Eviction Officer by the order dated 22.7.1982, allotted the shop in question to the petitioner, who also succeeded in obtaining possession on 26.7.1982. The landlord filed an application under Section 16(5) of the Act stating therein that he had never been served with any notice at any stage of proceedings, which were initiated by the present petition in collusion with the outgoing tenant Rama Shanker against whom the landlord had obtained a decree of eviction and, thus, he was deprived of an opportunity of being heard before the order of allotment was made. The landlord also moved an application for the release of the shop in question for his personal use. Simultaneously, the landlord also filed Revision No. 23 of 1982 under Section 18 of the Act before the District Judge challenging the order of allotment made in favour of the petitioner. Before the said revision could be decided, the Rent Control and Eviction Officer by the order dated 9.8.1982 allowed the landlord's application moved under Section 16 (5) of the Act and cancelled the order of allotment made in favour of the petitioner. Against this order dated 9.8.1982, the petitioner also filed rent Revision No. 27 of 1982 before the District Judge. Both the revisions came up for hearing before the District Judge who by a common judgment dated 4.11.1982 decided them and passed the following order :
"R. C. R. No. 23 of 1982 is allowed and the order dated 22.7.1982 challenged in revision is set aside. The Rent Control and Eviction Officer will proceed in the matter according to law in the light of the observations made above."
4. It is not disputed that this order of the revisional court was never challenged by the petitioner before any Court of law.
5. It further appears that after the aforesaid decision of the revisional court, the landlord moved an application under Section 18 (3) of the Act for restitution and the same was allowed by the order dated 13.5.1990 and restoration of possession of the shop in question in favour of the landlord was ordered. Aggrieved by this order, the petitioner filed Revision No. 7 of 1990 which has been dismissed by respondent No. 1 by the impugned order dated 25.7.1990.
6. I have heard learned counsel for the parties and have also examined the record.
7. Learned counsel for the petitioner argued before me that from a perusal of the judgment of the revisional court dated 4.11.1982, it is evident that the learned District Judge was of the view that the order of Rent Control and Eviction Officer allowing the landlord's application under Section 16 (5) of the Act was bad in law as the same was passed without giving any opportunity of hearing to the petitioner. Therefore, it was urged that the order of allotment made in favour of the petitioner still subsisted and accordingly application under Section 18 (3) of the Act was not legally maintainable and was premature. On the other hand, Shri A. B. Saran, learned counsel for the respondents, contended that if the judgment of the District Judge is examined in its entirety, it would be clear that the learned Judge though was of the opinion that before allowing the landlord's application under Section 16 (5) of the Act. the allottee should have been given an opportunity of hearing but at the same time, the learned District Judge has also held categorically that the order of allotment was not made in accordance with the provisions of the Act and Rules and for that reason in paragraph No. 9 of the judgment, the learned District Judge specifically set aside the order dated 22.8.1982 whereby the shop in question was allotted in favour of the petitioner.
8. It is well-established principle of interpretation of judgments that it is neither desirable nor permissible to pick out. a word or a sentence from the judgment divorced from the context of the question under consideration. The judgment is to be read as a whole and not in piece-meal.
9. In the present case, a perusal of the judgment dated 4.11.1982 shows that learned District Judge thoroughly examined the legality and validity of the order of allotment dated 22.8.1982 and it was observed by the learned District Judge that it was significant to note that the execution of decree of eviction was still pending in the Court of Judge Small Cause Court when surprisingly in the meantime Kailaah Kumar applied for allotment and the Rent Control Inspector gave a wrong report that the shop was likely to fall vacant. It was also held that Kripa Krishan. the landlord, has never refused to accept notice and the manner in which the allotment order was made, did not look proper. The learned Judge for the reasons assigned in the said judgment set aside the order dated 22.8.1982 of the Rent Control and Eviction Officer whereby the shop in question was allotted to the petitioner. In view of this finding of the learned District Judge, the application moved by the landlord under Section 16 (5) and the order passed by the Rent Control and Eviction Officer thereon were of no consequence as the relief claimed in the said application was already granted by the revisional court, whereby the order of allotment made in favour of the petitioner was set aside.
10. As already pointed out, the aforesaid order of the learned District Judge was not challenged by the present petitioner and the same became final. The landlord, therefore, was entitled to move an application under Section 18 (3) of the Act for restoration of possession on the ground of cancellation of order of allotment.
11. Learned counsel for the petitioner then argued that subsection (21 of Section 18 of the Act provides that in the revisions filed under Section 18. the revising authority has the power either to confirm or rescind the final order made under sub-section (1) or remand the case to the District Magistrate for rehearlng, and pending the revision, may Stay the operation of such order on such terms, if any, as it thinks fit. According to the submissions of the learned counsel for the petitioner. when the case was being remanded by the revisional court by the order dated 4.11.1982 for rehearing, the revisional court had no power to rescind the final order. This argument of the learned counsel for the petitioner is wholly misconceived. A plain reading of sub-section (2) makes it clear that the revising authority may either confirm the final order made under Section 16 or Section 19 or rescind or cancel the same. The power of remanding the case is an additional one which is conferred on the revising authority. The revisional court may remand the case to the District Magistrate for a finding on a particular issue without rescinding or cancelling the final order or it may remand the case for a de novo decision after setting aside the final order, as the circumstances of the case may require. In the present case, it is clear from the perusal of the judgment dated 4.11.1982 that the order of allotment made in favour of the petitioner was set aside specifically and in clear terms. When the matter came up before the District Magistrate after the remand, there existed no order of allotment in favour of the petitioner, the same having been set aside in the order passed in the revision.
12. Section 18 (3) contains a provision which is in the form of restitution as provided in the Code of Civil Procedure. It lays down that the District Magistrate on being satisfied on an application made to him in that behalf that an order made under Section 16 or 19 has been rescinded or-cancelled, he shall place the parties back in the position which they would have occupied but for such order or such part thereof as has been rescinded, and may for that purpose, use or cause to be used such force as may be necessary. The jurisdiction to make restitution is inherent in every Court and should be exercised whenever (he justice of the case so demands. Such a jurisdiction is embodied in Section 18 (3) of the Act. Whenever an application under Section 18 (3) of the Act is made and the District Magistrate is satisfied that an order made under Section 16 has been rescinded or cancelled, he is under a bounden duty to relegate back the parties to the position which they had occupied prior to the making of order under Section 16 which was subsequently cancelled or rescinded. The object of this provision is clearly to enable the authority to place a party, who has been prejudicially affected by an order which has been varied or reversed in his favour, in the same position as he would have occupied if the order had not been made at all. Even where restitution may not be covered strictly in terms of Section 18 (3), it can be ordered under Section 151. C.P.C. read with Rule 22 (0 of the Rules because every authority/tribunal is possessed with inherent jurisdiction to remedy a wrong done to a party. In the present case, the District Magistrate has ordered delivery of possession of the shop in question to the landlord as the order of allotment made in favour of the petitioner dated 22.7.1982 stood cancelled on the date when application under Section 18 (3) of the Act was made by the landlord. It could not. therefore, be said that the District Magistrate exceeded jurisdiction in passing the impugned order whereby the delivery of possession of the shop in question in favour of the landlord has been ordered.
13. Learned counsel for the petitioner then contended that undisputedly the petitioner has been in occupation of the shop in question for the last about 16 years and since the District Magistrate has not yet finalised the proceedings in pursuance of the order of the revisional court dated 4.11.1982, the petitioner's possession may be protected until finallsation of the said proceedings. He further submitted that the petitioner is ready to file an undertaking before the Rent Control and Eviction Officer that when the Rent Control and Eviction Officer decides the proceedings against him, he shall handover vacant possession of the shop in question to the landlord within one month from the date of the decision of the Rent Control and Eviction Officer.
14. In the peculiar circumstances of the case while dismissing this writ petition, it is ordered that the Rent Control and Eviction Officer shall finalise the proceedings according to law and in the light of judgment of the revisional court dated 4.11.1982 within one month from the date of production of a certified copy of this Order. Until the proceedings are finally decided, the operation of the order dated 30.5.1990, made under Section 18 (3) of the Act, shall remain suspended subject to the petitioner's filing an undertaking before the Rent Control and Eviction Officer within three weeks to the effect that he shall vacate and handover possession of the shop in question to the landlord within one month from the date of the final order passed by the Rent Control and Eviction Officer in the proceedings pending before him. In case no such undertaking is filed, the order dated 30.5.1990 passed by the Rent Control and Eviction Officer on the application made under Section 18 (3) shall be given effect to forthwith.
15. With the above observations, this writ petition is disposed of.
In the circumstances, parties shall bear their own costs.