Delhi District Court
Kashmiri Lal Bhutani vs Arvind Kumar Adukia on 22 March, 2014
IN THE COURT OF SH. KULDEEP NARAYAN,
ADDITIONAL DISTRICT JUDGE - 18, (CENTRAL),
TIS HAZARI COURTS, DELHI
RCA No. - 26/14
Unique ID No. - 326612013
Kashmiri Lal Bhutani
S/o Sh. Bahadur Chand Bhutani
R/o G-40, Saket, Delhi.
.......... Appellant
VERSUS
Arvind Kumar Adukia
S/o Sh. G. S. Adukia
R/o R-20, South Extension, Part - I,
New Delhi.
.......... Respondent
Date of Institution : 06/07/2013
Date on which reserved for judgment : 18/02/2014
Date of decision : 22/03/2014
Appeal Under Section 96 of the Code of Civil Procedure, 1908 for
setting aside the order dated 07/05/2013, in suit no. 1017/18 titled as
"K ashmiri Lal Bhutani Vs. Arvind Kumar Adukia
JUDGMENT
By way of present appeal the appellant (plaintiff) assails the order dated 07/05/2013 (for short " Impugned Order" ), passed by Learned Civil Judge-9, Central, Delhi in suit no. 1017/08 titled as " Kashmiri Lal RCA No. 26/14 Kashmiri Lal Bhutani Vs. Arvind Kumar Adukia 1/8 Bhutani Vs. Arvind Kumar Adukia" , whereby the Learned Trial Court allowed the application under section 144 read with section 151 of the Code of Civil Procedure (for short "CPC") filed by the respondent (defendant). For the sake of convenience, the parties to the appeal are referred to as in the suit before the Learned Trial Court.
2. The factual matrix for just disposal of the present appeal is that the plaintiff filed a suit for possession and recovery of damages / mesne profit against the defendant with respect to 2nd Floor in the property bearing no. 4692-4694, Laxmi Bazar Cloth Market, Fatehpuri, Chandni Chowk, Delhi - 110 006 (hereinafter referred to as " the suit property") as shown in colour red in the site plan Ex. PW1/2 filed in the suit. The suit was filed on 10/10/1994. After filing of the suit, summons were issued to the defendant who could be served through substituted service and was proceeded against ex-parte vide order dated 12/03/1996. Subsequently, the plaintiff led ex-parte evidence and vide order dated 19/03/2001, the suit was decreed in favour of the plaintiff, consequent upon which, the plaintiff filed an execution petition and possession of the suit property was taken over in execution of Warrant of possession.
Thereafter, the case file was taken up for hearing on 09/08/2002 on moving an application under order 9 rule 13 of the CPC by the defendant which was allowed vide order dated 22/11/2004. The defendant filed Written Statement alongwith one application under section144 of the CPC. The issues were also framed on 11/05/2005, however the plaintiff could not lead the evidence for one reason or the other. Subsequently, Learned Counsel for defendant pressed for disposal RCA No. 26/14 Kashmiri Lal Bhutani Vs. Arvind Kumar Adukia 2/8 of pending application under section 144 of the CPC which was allowed by the Learned Trial Court by way of impugned order. Feeling aggrieved, the plaintiff filed the present appeal.
After filing of the appeal, notice was issued to the defendant and Trial Court record was also summoned.
3. I heard arguments addressed by Sh. Varun Mehlawat, Learned Counsel for Appellant (plaintiff) and Sh. Jugal Wadhwa, Learned Counsel for respondent (defendant) and perused the entire material available on record.
4. The grounds for preferring the present appeal taken by the plaintiff are; that the impugned order is contrary to well established legal propositions and parameters for adjudication of application under section 144 of the CPC and suffers from non application of mind to the facts of the case as well as to the law; that the Learned Trial Court did not consider the conduct of the defendant in evading the process of the Court who illegally retained the suit property by abusing the process of law; that the defendant could not have been granted any relief under section 144 of the CPC being a rank trespasser, moreso, in his application under order 9 rule 13 of the CPC, he himself had admitted that he was not in possession of the suit property and therefore, the possession of the suit property could not have been restored back to him under section 144 of the CPC; that Learned Trial Court ignored the facts that the defendant was never a tenant in the suit property and was merely a licensee whose license was terminated way back in 1994 and thereafter, the defendant continued to RCA No. 26/14 Kashmiri Lal Bhutani Vs. Arvind Kumar Adukia 3/8 retain the suit property as an unauthorized occupant who never tendered the rent or any charges and kept the suit property locked in order to harass the plaintiff. Further, there is no proof of electricity or water consumption to show that the defendant was in possession of the suit property; that the defendant had taken false stands before the Learned Trial Court that he was residing in the suit property alongwith his family members and was also running a business in the name and style of " M/s Abhishek International", which is inconceivable, particularly, in view of the fact that the defendant could not be served with summons of the suit for more than seven years and it is only when a decree was passed against him, exhibiting his malafide conduct, he jumped into the picture; that the impugned order was passed in summary manner without deciding any of the objection raised by the plaintiff whereas. The Learned Trial Court ought to have asked the defendant to lead evidence in the matter to prove his averments and could have completed the trial of the suit in a time bound manner. Lastly, the suit filed by the plaintiff is at the stage of PE, wherein, the defendant is not coming forward to cross-examine the plaintiff as his only agenda is to delay the suit.
5. Having heard the submissions of both sides and perused the entire material including the impugned order as well as the citations cited by both sides, I am not satisfied with the contentions of Learned Counsel for the Appellant (Plaintiff).
6. In Binayak Swain Vs. Ramesh Chand Panigarahi, AIR 1966 SC 948, the Apex Court while dealing with scope of Section 144 of the CPC observed as follows:
RCA No. 26/14 Kashmiri Lal Bhutani Vs. Arvind Kumar Adukia 4/8 " 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 Learned Trial court relying upon Binayak Swain (Supra) case and Mohan Lal Khemka Vs. Harihar Prasad & Ors. I (1997) CLT 367, came to the conclusion that the defendant was entitled to restoration of the possession of the suit property upon setting aside of the ex-parte decree dated 19/03/2001, rightfully observing that the plaintiff obtained the possession of the suit property by virtue of ex-parte decree dated 19/03/2001 which was subsequently set aside by order dated 24/11/2004, whereby the application under order 9 rule 13 of the CPC moved on behalf of the defendant was allowed and therefore, the plaintiff was obliged to restore the possession of the suit property to the defendant.
It is noteworthy here that the plaintiff had preferred the CM (M) No. 1782/2004 before the Hon'ble High Court challenging the order dated 24/11/2004, but the aforesaid petition was dismissed for non prosecution on 07/08/2006.
RCA No. 26/14 Kashmiri Lal Bhutani Vs. Arvind Kumar Adukia 5/8
7. During the course of arguments, Learned Counsel for defendant also placed reliance on Gurjoginder Singh Vs. Jaswant Kaur (Smt.) & Another, (1994) 2 SC 368, in support of his contentions, wherein, the landlord, in pursuance of ex-parte eviction order, obtained the possession of the suit premises and let out the same to another tenant, however on filing of appeal by the original tenant, the ex-parte order of eviction was set aside and possession of the suit premises was restored to the original tenant under section 144 of the CPC. The objections and appeal preferred by the second tenant on the grounds of his being bonafide transferee were dismissed by the Rent Controller as well as the Rent Control Tribunal prompting him to move to the Hon'ble High Court by way of second appeal which was allowed on the ground that the transferee i.e. the second tenant had on independent right to occupy the suit premises which could not be disturbed either in equity or in law under section 144 of the CPC. However, on appeal by the original tenant, the Apex Court disagreed with the view expressed by the Hon'ble High Court and held that the status of bonafide purchaser in an auction sale in execution of a decree to which he was not a party stands on a distinct and a different footing from that of a person who is inducted as a tenant by a decree holder and landlord. It was further held that 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 and Landlord cannot avail of the same right as his possession as a tenant is derived from the Landlord and accordingly it was held that the Decree Holder who had put the second tenant in possession is bound to restore to the original tenant upon setting aside of the decree what he had gained RCA No. 26/14 Kashmiri Lal Bhutani Vs. Arvind Kumar Adukia 6/8 under the decree. Hon'ble High Court also laid down in DTC Vs. International Avenues, 161 (2009) DLT 16 (DB) that the object of section 144 of the CPC is that no person can be allowed to retain benefit derived pursuant to an order / judgment of Court if such order / judgment is ultimately finally not sustained.
8. As far as, contentions of Learned Counsel for the plaintiff with regard to the conduct of the defendant in evading the process of the Court, being a rank trespasser and taking false stands before the Learned Trial Court are concerned, suffice here to say that the issues have already been settled in the suit before the Learned Trial Court, wherein evidence is yet to be led by both the parties. In the absence of any evidence, the status of the defendant as a rank trespasser or his stand being false, cannot be assumed. So far, the plaintiff failed to demonstrate how the impugned order is against the well established legal propositions and parameters for deciding the application under section 144 of the CPC or in what manner the Learned Trial Court did not apply its mind to the facts before it. The careful perusal of the application under order 9 rule 13 of the CPC moved by the defendant before the Learned Trial Court goes to show that there are no admissions on his part for not being in possession of the suit property and therefore, the ground taken by the plaintiff in this regard is misconceived. The Learned Trial Court rightfully observed about an anomaly in the suit wherein though the plaintiff prayed for relief of possession of the suit property whereas he already obtained the possession by virtue of ex-parte decree dated 19/03/2001. Obviously, the trial of the pending suit would be meaningless if the suit property is not restored to the defendant. The case of the defendant is squarely covered RCA No. 26/14 Kashmiri Lal Bhutani Vs. Arvind Kumar Adukia 7/8 within the ratio as laid down in Binayak Swain (Supra) and Gurjoginder Singh (Supra) case, which is perfectly echoed by the Learned Trial court in the impugned order. In the given facts and given circumstances, the Learned Trial Court could not have arrived at any other conclusion except the one arrived at.
9. Therefore, in my considered opinion, the impugned order does not suffer from any perversity and non application of mind. There is no infirmity in the impugned order. I do not find any merit in the present appeal, the same is hereby dismissed.
Decree Sheet be prepared accordingly.
Appeal file be sent to records.
Copy of this order alongwith Trial Court Record be sent back forthwith to the Trial Court.
Dated: 22/03/2014 (Kuldeep Narayan)
Announced in open Court. Additional District judge-18, (Central)
Room No. 349, Tis Hazari Courts,
Delhi.
RCA No. 26/14 Kashmiri Lal Bhutani Vs. Arvind Kumar Adukia 8/8