Punjab-Haryana High Court
Basant Ram And Ors. vs Smt. Devi And Ors. on 16 November, 1999
Equivalent citations: AIR2000P&H134, (2000)124PLR755, AIR 2000 PUNJAB AND HARYANA 134, (2000) 1 CURLJ(CCR) 146, (2000) 1 RENCJ 576, (2000) 1 RENTLR 380, 2000 HRR 471, (2000) 1 RENCR 138, (2000) 124 PUN LR 755
Author: V.S. Aggarwal
Bench: V.S. Aggarwal
ORDER V.S. Aggarwal, J.
1. Petitioners Basant Ram and others have filed the present revision petition directed against the order of the learned Rent Controller, Karnal dated 5-3-1999. By virtue of the impugned order, the learned Rent Controller allowed the application filed by the respondents for restitution of the possession. The petitioners were directed to restore and hand over the vacant possession of the premises within two months.
2. Some of the relevant facts can well be mentioned. One Mangal Dass had filed a petition for eviction for ejectment of Santu Ram alias Basant Ram. On 9-10-1993 the eviction application was allowed ex parte by the learned Rent Controller. Santu filed the application for setting aside the ex parte ejectment order. The same was dismissed on 27-1-1997. Aggrieved by the dismissal of the application seeking setting aside of the ex parte order, an appeal was preferred. On 25-9-1998 the learned Appellate Authority had set aside the ex parte order of eviction and accepted the application. During the pendency of the appeal, the landlord who filed the petition for eviction had sold the property. The learned Appellate Authority had remanded the case to the learned Rent Controller to decide the eviction application on merits. It appears that an application was made on behalf of the original landlord-owner withdrawing the eviction application. Respondents 1 to 4 filed an application under Section 144 of the Code of Civil Procedure against the petitioners seeking restitution of possession. It was asserted that since the order of eviction had been set aside, respondents 1 to 4 who had been dispossessed are entitled to restoration of possession. The learned Rent Controller vide the impugned order had allowed the said application. Aggrieved by the same, the present revision petition has been preferred.
3. Learned counsel for the petitioners at the outset urged that eviction application was withdrawn by the earlier landlord. He could not do so. To this respondents 1 to 4 through their counsel had stated that they had no objection in this regard. Accordingly, it is directed that on an appropriate application being filed before the learned Rent Controller, he will restore the petition.
4. The main controversy herein was as to whether respondents 1 to 4 were entitled to restitution of possession or not? The relevant portion of Sub-section (1) of Section 144 of the Code of Civil Procedure reads :--
"144 (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 will, 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 modified of the decree or order.)"
It is abundantly clear from reproduced portion of Sub-section (1) of Section 144, Code of Civil Procedure that when a decree or an order is varied or set aside, the Court can direct restoration of possession. In this regard there is little controversy that was raised. Reference with advantage can well be made to the decision of Allahabad High Court in the case of Minto Lal v. Naraindas, 1966 All LJ 510. The Court held that in proceedings for restitution the Court has to consider the equities arising in the case. The Court has to pass the orders which will do justice to both the parties. Such relief has to be given as is properly consequential on the reversal or variation of the order. In other words, there cannot be any broad guidelines because the Court has to see as to whether in the peculiar facts restitution of the premises should be ordered or not.
5. On behalf of the petitioners reliance was strongly placed on the decision of this Court in the case of Mewa Singh v. Jagir Singh, AIR 1971 Punjab & Haryana 244. Herein the land was obtained in execution of a decree. It was gifted by the decree holder. The question for consideration was as to whether it was hit by the provisions of lis pendens or not. The Cour theld (at p. 246):--
'This clause was deleted by an amended petition and the result of the deletion of that clause, in my opinion, is that the appellants recognised that they were not entitled to get back the possession of that land from Purshotam Das Rattan as he was not a party to the appeal and in his absence it could not be held that the gift in his favour was fictitious. The appellants also recognised that Jagir Singh was not in a position to deliver back the possession to them of 30 Bighas of land which he had gifted in favour of Purshotam Das Rattan. For these reasons, the appellants cannot now seek the assistance of the Court to get possession of 30 Bighas of land from Purshotam Das Rattan."
It is abundantly clear from aforesaid that restoration of possession was not allowed in the peculiar facts and not that in any case where the land is sold, the restitution of possession cannot be ordered. The judgment referred to above is of little avail to the petitioners.
6. In fact the peculiar facts clearly show that petitioners have stepped into the shoes of original landlord-owner. Consequently, if the original landlord was duty bound for restoration of possession, so would be the petitioners. They cannot be placed in a better position than the original landlords. They cannot reap the harvest of any wrong that has been done. Reference in this connection can well be made to the decision of the Supreme Court in the case of Gurjoginder Singh v. Jaswant Kaur, (1994) 1 Ren CR 517. In the cited case the landlord got possession in pursuance of an ex parte order of eviction. He had again let out the premises. The ex parte order of eviction was set aside. It was held that the landlord is bound to restore the possession and so the new tenant is also liable to vacate the premises. The Supreme Court held :--
"We are unable to share the view expressed by the High Court as in our considered opinion, the status of a bona fide purchaser in an auction sale in execution of a decree to which he was not a party stands on a distinct and different footing from that of a person who is inducted as a tenant by a decree-holder-landlord. A stranger auction purchaser does not derive his title from either the decree-holder or the judgment-debtor and therefore restitution may not be granted against him but a tenant who obtains possession from the decree holder landlord cannot avail of the same right as his possession as a tenant is derived from the landlord. Even in the case of Binayak Swain, (AIR 1966 SC 948) (supra) which the High Court relied upon this Court has drawn a distinction between purchase made by a decree-holder and a stranger in auction-sale by quoting with approval the following observation made in the case of Zain-ul-Abdin Khan v. Muhammad Asghar All Khan, (1888) ILR 10 All 166 (PC) :
"It appears to their Lordships that there is a great distinction between the decree-holders who came in and purchased under their own decree, which was afterwards reversed on appeal, and the bona fide purchasers who come in and brought at the sale in execution of the decree to which they were no parties, and at a time when that decree was a valid decree, and when the order for the sale was a valid order."
4. In our view the above principle will apply in the case in hand as it is the decree-holder who has put the respondent No. 2 in possession and, therefore, when the decree has been set aside he is bound to restore to the judgment-debtor what he gained under the decree and subsequently transferred to the respondent No. 2." Same was the view that prevailed with the Karnataka High Court in the case of Chanda Sab v. Jamshed Khan, (1994) 2 Rent LR 292. Herein also an ex parte order of eviction was passed. The landlord took possession in execution. The ex parte order of eviction was set aside. Meanwhile the landlord had transferred the property. It was held that tenant is entitled for restitution not only against the landlord but also against the transferee. The conclusions drawn by the said Court are :--
"(a) Whenever an ex parte order/decree for possession/eviction is set aside, the party who has dispossessed/evicted in pursuance of such an ex parte decree or order, is entitled to restitution forthwith in spite of the fact that ultimately on merits, he may lose the cause and may have to yield back possession. This is in view of the salutary principle embodied in Section 144 of C.P.C. that no party to lis should suffer or be prejudiced on account of an erroneous action or decision of the Court.
(b) The order for restitution, if not complied with can be enforced as a decree, not only against the person who obtained the ex parte decree/order and caused the dispossession, but against his representative-in-interest, assigns, transferees, including tenants of transferees, irrespective of the fact whether such transferee or person in possession, is a party to the suit or the restitution proceedings;
(c) No person who has entered into possession through the party obtaining the ex parte decree/order can resist or obstruct restitution on the ground that he is bona fide transferee or tenant without notice, neither bona fides nor notice is relevant to the principle of lis pendcns which is principle of public policy that neither party to a litigation can alienate the property in dispute, pendente lite, so as to affect his opponent;"
Similar was the view of the Supreme Court in the subsequent decision in the case of Padanathil Rugmini Amma v. P.K. Abdulla, (1996) 1 Rent LR 241 : (AIR 1996 SC 1204). The Supreme Court considering an identical situation concluded (para 15 of AIR) :--
"The distinction between a stranger who purchases at an auction sale and an assignee from a decree-holder purchaser at an auction sale is quite clear. Persons who purchase at a Court auction who are strangers to the decree are afforded protection by the Court because they are not in any way connected with the decree. Unless they are assured of title; the Court auction would not fetch a good price and would be detrimental to the decree-holder. The policy, therefore, is to protect such purchasers. This policy cannot extend to those outsiders who do not purchase at a Court auction. When outsiders purchase from a decree-holder who is an auction purchaser clearly defeasible title liable to be defeated if the decree is set aside. A person who takes an assignment of the property from such a purchaser is expected to be aware of the defeasibility of the title of his assignor. He has not purchased the property through the Court at all. There is, therefore, no question of the Court extending any protection to him. The doctrine of a bona fide purchaser for value also cannot extend to such an outsider who derives his title through a decree-holder auction purchaser. He is aware or is expected to be aware of the nature of the title derived by his seller who is a decree-holder auction purchaser."
It is obviously clear from aforesaid that the petitioners were bound by the order that has been passed and merely because they have purchased the property from the landlord will not come to their rescue having walked into the rights of the landlord. They must obey the order.
Another fact which can well be highlighted is that sale of the property by the earlier landlord took place during the pendency of the appeal. It is not disputed that petitioners were the neighbourers to the suit premises. They knew respondents 1 to 4 who are the tenants. In such a situation, it can, therefore, not be termed that the sale was bona fide. In such a situation it does not look proper that the tenant should be kept out of the premises. It would be inequitable to do so.
8. Learned counsel for the petitioners urged that in the meantime certain changes have been made in the premises and, therefore, respondents 1 to 4 should not be allowed to get back the possession and some compensation can well be awarded to the tenants. As already pointed out above, the sale appears to be not just and proper. The petitioners are not total strangers to what has happened. Therefore, such a plea cannot be allowed to be raised. A similar argument was advanced in the case of Smt. Anusuya Bai v. B. N. Ramaiah Raju, AIR 1961 Mysore 238. It was held by the Court repelling such a plea (para 18) :--
"It seems to me that this view taken by the Court below rested on a misconstruction of the provisions of the section. The compensation payable under the provisions of this section is clearly what is payable to the person asking for restitution and not to the person from whom restitution is asked.
That that is so clear from the fact that whatever order may be made under Section 144 can be made only on an application presented for that purpose and so long as the decree of this Court did not create a right in the respondent for restitution against the petitioners and indeed he asked for none it Is difficult to understand how, on the application presented by the petitioners, the respondent could ask for the payment to him of any compensation in respect of the improvements which he claimed to have made during the pendency of the litigation.
It seems to me that where an order is asked for under Section 144 of the Code of Civil Procedure for refund of costs or for the payment of interest, damages, compensation or mesne profits, that order can be made only in favour of the person who is entitled to restitution and it can hardly be contended, in this case, that the order which the respondent wanted to be made in his favour is either properly consequential on the decree of this Court or can be regarded as in the nature of restitution."
The Supreme Court in the case of Binayak Swain v. Ramesh Chandra Panigrahi, AIR 1966 SC 948 also went into the same controversy. It was held (at p. 950 of AIR) :--
"We are of the opinion that the appellant 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 favour of the plaintiff at the time when the application for restitution was made. 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 has lost. This obligation arises automatically on the reversal or modification of the decree and necessarily carries with it the right to 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."
The conclusions are obvious. The principle of doctrine of restitution is very much applicable in the facts of the case. Once the ex parte order of eviction had been set aside, the law is under obligation to restore the possession. The person entitled to restitution of the possession will have the right to get back the property in the same condition as it was. Even if certain improvements have been made, the rights of the respondents cannot be defeated on that count. In these circumstances, there is no ground to interfere in the impugned order.
9. As an off shoot (off shot?) of these reasons, the revision petition being without merit must fail and is dismissed.