Bombay High Court
Bhaskar S/O Rushi Lanjewar And 3 Others vs Meerabai Wd/O Sadashiv Bankar And 6 ... on 26 August, 2025
1 SA655.05 (J).odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
: NAGPUR BENCH : NAGPUR.
SECOND APPEAL NO. 655 OF 2005
APPELLANTS : 1] Bhaskar S/o Rushi Lanjewar,
Aged about 33 years, Occu. Cultivation,
2] Vilas S/o Rushi Lanjewar,
Aged about 20 years, Occu. Cultivation
3] Archana D/o Rushi Lanjewar,
(Now Nanda W/o Narendra Korekar)
Aged about 19 years, Occu. Cultivation
4] Rushi S/o Kisan Lanjewar,
Aged about 50 years, Occu. Cultivation,
All residents of Palasgaon Jat,
Tah. Sindewahi, Dist. Chandrapur.
VERSUS
RESPONDENTS : 1] Meerabai Wd/o Sadashiv Bankar,
Aged about 60 years, Occu. Cultivation
(Dead, deleted as per Court's order dated
24.11.2022)
2] Sau. Sindhbai W/o Gulabrao Sawarkar,
Aged about 40 years, Occu. Cultivation,
3] Prakash S/o Sadashiv Bankar,
Aged about 38 years, Occu. Cultivation
4] Prashant S/o Sadashiv Bankar,
Aged about 26 years, Occu. Cultivation,
Nos.1 to 4 residents of Palasgaon Jat,
Tah. Sindewahi, Dist. Chandrapur (Mah.)
5] Latabai W/o Umaji Nimkar,
Aged about 34 years, Occu. Cultivation,
(Dead. Thru. Lehal heirs)
2 SA655.05 (J).odt
5A] Nikesh Umaji Nimkar,
Aged 28 years, Occu. Cultivation
5B] Mahesh Umaji Nimkar,
Aged 23 years. Occu. Cultivation
5C] Sapna Umaji Nimkar,
Aged 26 years, Occu. Household
5D] Umaji Dinaji Nimkar,
Aged 28 years, Occu. Cultivation,
All R/o Thanegaon, Tah. Armori,
Dist. Gadchiroli.
6] Varsha D/o Sadashiv Bankar
(now Varsha Someshwar Sontakke)
Aged about 28 years, R/o Near Binba Gate,
Chandrapur, Tah. & Dist. Chandrapur
7] Kiran D/o Sadashiv Bankar,
Aged about 26 years, R/o Palasgaon Jat,
Tah. Sindewahi, Dist. Chandrapur (Mah.)
8] Sitaram Natthu Bankar,
Aged about 35 years, R/o Palasgaon,
Tah. Sindewahi, Dist. Chandrapur (Mah.)
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Mr. M. P. Khajanchi, Advocate for the appellants
Mr. R. D. Dharmadhikari, Advocate for the respondents.
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CORAM : M. W. CHANDWANI, J.
Date of Reserving Judgment : JULY 03, 2025
Date of Pronouncement of Judgment : AUGUST 26, 2025
JUDGMENT
1. Whether the Court can take aid of its inherent power under Section 151 of the Code of Civil Procedure (for short "CPC") to 3 SA655.05 (J).odt restore the possession which has been lost pending the suit, is the question raised in this appeal
2. This appeal challenges the order dated 06.07.2005 passed by the learned District Judge, Chandrapur in Regular Civil Appeal No. 134/1996 whereby, the learned District Judge reversed the order dated 04.05.1996 passed by the learned Civil Judge, Junior Division, Sindewahi in M.J.C. No. 02/1995 and dismissed the application filed by the appellants under Section 144 read with Section 151 of the CPC for restoration of their possession over the suit house.
3. The thumbnail sketch of the facts is as under :
The predecessor of respondent nos.1 to 7 - Sadashiv as well as respondent no.8 filed Regular Civil Suit No. 128/1988 against appellant no.4 and Sundarabai (since deceased) for injunction restraining them from disturbing their peaceful possession over the suit house. They obtained ex-parte temporary injunction against the original defendants on 20.08.1988 and on the basis of the said ex-
parte interim order, they ousted the original defendants by manipulating and winning over the Bailiff to get possession of the suit
4 SA655.05 (J).odt property. The original defendants reported the matter to Police Station, Sindewahi but no cognizance was taken. Thereafter, the original defendants appeared in the suit and got the order of temporary injunction vacated on 16.03.1989. Thereafter, the original defendants filed an application under Section 144 of the CPC before the trial Court for restoration of possession of the suit property as well as moveable property, the possession of which was taken by the respondents/original plaintiffs under the guise of ex-parte injunction order by playing fraud. The original plaintiffs herein resisted the application. The learned trial Court, after conducting inquiry by recording evidence of the parties, came to the conclusion that on the date of filing of the suit, the original defendants were in possession of the suit house and they were dispossessed by the original plaintiffs on the day the ex-parte injunction order was served and therefore, allowed the application thereby restoring the possession of the suit house under Section 144 of the CPC.
4. The respondents, the legal heirs of the original plaintiff no.1, challenged the order passed by the trial Court by filing an appeal before the learned District Judge, Chandrapur. The learned District Judge allowed the appeal by the impugned judgment and order on the ground that the possession has not been taken by the 5 SA655.05 (J).odt original plaintiffs under the direction of the Court but under false pretext of temporary injunction. The learned District Judge by strictly going with the language of Section 144 of CPC, opined that the application filed under Section 144 of CPC is not maintainable as the original defendants were not dispossessed under a decree on an order of the Court and dismissed the application, thereby reversing the order passed by the trial Court. Feeling aggrieved, the present second appeal came to be filed.
5. This Court admitted the appeal on 13.09.2010 on the substantial question of law which was modified on 01.07.2025 as under :
"Whether the application filed by the appellants for restitution of possession was tenable under the provisions of Section 144 read with Section 151 of the Code of Civil Procedure ?
6. I have heard Mr. M. P. Khajanchi, learned counsel appearing on behalf of the appellants and Mr. R.D. Dharmadhikari, learned counsel appearing on behalf of the respondents. With their able assistance, I have gone through the record and proceedings.
7. Before proceeding to deal with the substantial question, it 6 SA655.05 (J).odt would be necessary to state here that, the learned trial Court as well as the first Appellate Court are ad idem on the fact that the original defendants were in possession of the suit house on 23.08.1988 when the suit came to be filed and the original plaintiffs dispossessed the original defendants while serving the ex-parte injunction order through the bailiff. Therefore, there are concurrent findings of fact by the trial Court as well as the first Appellate Court. The learned First Appellate Court has non-suited the original defendants only on the ground that the original plaintiffs had not obtained the possession under a decree or an order of the Court. The learned first Appellate Court recorded a finding that, only in the circumstance when the possession has been given to a party under a decree or an order of the Court, the provisions of Section 144 of the CPC will be applicable. It has further been held that the application filed by the original defendants under Section 144 is not maintainable and even Section 151 of the CPC cannot be made applicable to the case in hand. Feeling aggrieved, the present appeal came to be filed.
8. In order to appreciate the arguments of the learned counsels for the respective parties, it is necessary to reproduce Section 144 of the CPC under which the appellants made the application for 7 SA655.05 (J).odt restitution of possession which reads as under :-
"Section 144 - 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 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 modification of the decree or order.
Explanation.--For the purposes of sub-section (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 revision 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.
(2) No suit shall be instituted for the purpose of obtaining 8 SA655.05 (J).odt any restitution or other relief which could be obtained by application under sub-section (1)."
9. Section 144 empowers the Court to order the restitution of any benefit by placing the party back in the position which was disturbed on reversal of the decree or order. The Court is duty bound to place a party in the position which they had occupied prior to passing of the decree or order. Thus, if any person is dispossessed or displaced under a decree or an order of the Court and if such a decree or order is later on set aside or modified in any appeal, revision or any other proceeding on an application by the person so displaced, the Court shall place the said person in the position in which they were prior to the passing of such an order or decree.
10. Here in this case, undisputedly, the ex-parte injunction order passed by the trial Court was restraining the predecessor of appellant nos.1 to 3 - Sundarabai and appellant no.4 from disturbing the peaceful possession of the respondents over the suit house which was obtained by the original plaintiffs/the respondents, by misleading the Court that they are in possession of the suit house. In reality, the predecessor of appellant nos.1 to 3 as well as appellant no.4 were in possession of the suit house. The original plaintiffs got forcible 9 SA655.05 (J).odt possession of the suit house while serving the ex-parte injunction order of the trial Court. Thus, the original plaintiffs did not get possession of the suit house under any decree of the trial Court or under the order of the Court. Now the question which arises is, in a case where the plaintiff plays fraud and obtains ex-parte injunction and thereafter, takes law into his own hands to dispossess the defendant, can the defendant get his possession back under Section 144 with the aid of Section 151 of the CPC by way of speedy remedy ?.
11. Mr. Khajanchi, learned counsel for the appellants would submit that when fraud is played on the Court by making false submissions about the factum of possession and ex-parte temporary injunction has been sought; in that situation, the Court cannot act as a mute spectator and need not direct the aggrieved party to file a separate suit for possession. According to him, the Court always has inherent powers to restore the party who has been put to loss by the other party by playing fraud. To buttress his submission, the learned counsel seeks to rely on the decisions in Bansidhar Sharma (since deceased) represented by his legal representative vs. State of Rajasthan and others, reported at (2019) 19 SCC 701 ; and South 10 SA655.05 (J).odt Eastern Coalfields Ltd. vs. State of M.P. and others, reported at (2003) 8 SCC 648.
12. Conversely, Mr. R.D.Dharmadhikari, learned counsel for the respondents submitted that restitution by the trial Court can be done only when possession has been delivered under the order of the Court. In the present case, the interim order of the trial Court did not require the original defendants to hand over possession to the original plaintiffs. There was no order by virtue of which the original plaintiffs were given possession of the suit house. Therefore, the first Appellate Court has rightly held that the possession has not been given by the original defendants to the original plaintiffs under the dictum of the Court. To buttress his submission, he seeks to rely on the decision in Murti Bhawani Mata Mandir represented through Pujari Ganeshi Lal (Dead) through legal representative Kailash vs. Ramesh and others, reported at (2019) 3 SCC 707.
13. Mr. R.D.Dharmadhikari further submitted that the Court can invoke the powers under Section 151 of the CPC sparingly when no alternate remedy exists or there is no provision under the Code. To buttress his submission, he seeks to rely on the decision in My 11 SA655.05 (J).odt Palace Mutually Aided Co-operative Society vs. B. Mahesh and others , reported at (2022) 19 SCC 806. According to the learned counsel, the appellants could have filed a suit for possession, if at all they were dispossessed during pendency of the suit. An application under Section 144 of CPC is not maintainable in such a case. He supported the judgment of the learned first Appellate Court.
14. The Legislature has equipped the Court with inherent powers enumerated under Section 151 of CPC. The powers under Section 151 are wide. If justice and equity demands, the Court under inherent powers can pass appropriate orders to do complete justice even in absence of statutory provisions. In exceptional cases, the Court can pass an order under Section 151 of the CPC even when specific provisions of the CPC do not apply; provided that, inherent powers do not override any provisions of the CPC. It is also explicitly clear from Section 151 CPC itself that such inherent power can also be used to prevent abuse of the process of law.
15. On the other hand, restitution is the statutory recognition of a pre-existing rule of justice, equity and fair play. The law of restitution encompasses all claims founded upon unjust enrichment.
12 SA655.05 (J).odt Section 144 incorporates only a part of the general law of restitution. It is not exhaustive. Therefore, restitution comes under the inherent powers of the Court and can be exercised when the case demands justice, even though it does not strictly fall within the ambit of Section 144 of the CPC.
16. Proved it is that the original plaintiffs, though were not in possession of the suit property on the day of filing of the suit, got the ex-parte order of injunction by misleading the Court and by abusing the process of law. They went to the extent of managing the bailiff to get possession and dispossessed the original defendants under the guise of ex-parte injunction. In this situation, the Court cannot sit as a mere spectator and ask a litigant to go through the tedious and lengthy process of litigation by filing a separate suit for possession. A wrong order should not be perpetuated by keeping it alive and respecting it. If no remedial measure is taken, the injury suffered by the litigant would aggravate. To prevent abuse of the process of law, the Court has to not only set aside an order passed erroneously but the party that suffered loss by such abuse also to be restituted. Thus, to meet the ends of justice and equity as well as to prevent abuse of the process of law, the Court in its inherent powers can restore the 13 SA655.05 (J).odt possession even though the case does not strictly fall under the ambit of Section 144 of the CPC.
17. It will be useful to refer to the decision in Jai Berham and others vs. Kedar Nath Marwari and others [(1921-22) 49 IA 351 : AIR 1922 PC 269] wherein, Their Lordships of the Privy Council observed as under :
"....It is the duty of the Court under Section 144 of the Civil Procedure Code to place the parties in the position which they would have occupied but for such decree or such part thereof as has been varied or reversed. Nor indeed does this duty or jurisdiction arise merely under the said section. It is inherent in the general jurisdiction of the Court to act rightly and fairly according to the circumstances towards all parties involved."
18. Reference can be made to decision in the case of South Eastern Coalfields Ltd. (supra) wherein, the Supreme Court in paragraph 28 has observed as under :
"28. ......... The factor attracting applicability of restitution is not the act of the Court being wrongful or a mistake or error committed by the Court; the test is whether on account of an act of the party persuading the court to pass an order held at the end as not sustainable, has resulted in one party gaining an advantage which it would not have otherwise earned, or the other party has suffered an impoverishment which it would not have suffered but for the order of the Court and the act of such party. ........
14 SA655.05 (J).odt There is nothing wrong in the parties demanding being placed in the same position in which they would have been had the court not intervened by its interim order when at the end of the proceedings the court pronounces its judicial verdict which does not match with and countenance its own interim verdict. Whenever called upon to adjudicate, the court would act in conjunction with what is the real and substantial justice. The injury, if any, caused by the act of the court shall be undone and the gain which the party would have earned unless it was interdicted by the order of the court would be restored to or conferred on the party by suitably commanding the party liable to do so. Any opinion to the contrary would lead to unjust if not disastrous consequences. Litigation may turn into a fruitful industry. Though litigation is not gambling yet there is an element of chance in every litigation. ......."
19. In the decision of Mrs. Kavita Trehan And Another vs Balsara Hygience Products Ltd. [(1994) 5 SCC 380] the Supreme Court in para 22 has observed as under:
"22. The jurisdiction to make restitution is inherent in every court and will be exercised whenever the justice of the case demands. It will be exercised under inherent powers where the case did not strictly fall within the ambit of Section 144. Section 144 opens with the words "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 instant case may not strictly fall within the terms of Section 144; but the aggrieved party in such a case can appeal to the larger and general powers of restitution inherent in every 15 SA655.05 (J).odt court."
20. This Court, in Harishchandra Maurya .vs. Rajeshprasad Dargahi Varma, [1997 (3) Mh.L.J. 437], in similar facts and circumstances has held that in such a case, Section 151 of CPC is applicable and during the pendency of the suit, by filing a simple application, the possession of the defendant who is dispossed under the guise of ex-parte injunction order can be restored in the same suit. The ruling clearly indicates that if such an order could not have been passed under Section 144(1), the inherent powers under Section 151 can be exercised to restore the possession.
21. In the decision in Murti Bhawani Mata Mandir (supra), relied upon by the respondent, the complaining party did not approach the Court with an exceptional case, nor the equity was in her favour. In the said case, the possession was not taken under the guise of the order of the Court. Therefore, it will not be helpful to the respondents.
22. So far as the decision in My Palace Mutually Aided Cooperative Society (supra), relied upon by the respondent is concerned, in the case before the Supreme Court, the final decree was 16 SA655.05 (J).odt recalled under the inherent powers of the Court which had the effect of unsettling the proceedings and transactions having a history of more than 60 years in a proceeding on the basis of the application filed under Section 151 of the CPC. Whereas, in the present case under the guise of ex-parte injunction order and by abusing the process of law, the original defendants were dispossessed in the year 1988 i.e. 37 years ago. Relegating them to file a separate suit for possession which will take years together, will be nothing but a travesty of justice. The facts of the case in hand demand exercise of inherent powers of the Court. In the background of the facts of the present case, the decision in My Palace Mutually Aided Co-operative Society (supra) will not be applicable.
23. In view of the above, the jurisdiction to make restitution is inherent in every court and will be exercised whenever the case demands justice. That apart, under Section 151 of the CPC, the Court not only has inherent powers, but can also pass an appropriate order to prevent the abuse of process of the Court. The act of the plaintiffs of misleading and playing fraud to make the court believe that they are in possession of the suit property and thereafter, taking forcible possession from the original defendants is nothing but the 17 SA655.05 (J).odt abuse of process of the Court. In this background and the legal position, the order of the trial Court, in my view, is expedient and meets the ends of justice. The findings of the first Appellate Court in such a case are erroneous. The second appeal succeeds.
24. Accordingly, the Second Appeal is allowed.
(i) The judgment and order dated 06.07.2005 passed by the learned District Judge, Chandrapur in Regular Civil Appeal No. 134/1996 is set aside.
(ii) The order dated 04.05.1996 passed by the learned Civil Judge, Junior Division, Sindewahi in M.J.C. No. 02/1995, is restored.
(iii) The appeal stands disposed of. No order as to costs.
(M.W.Chandwani, J.) Diwale Signed by: DIWALE Designation: PS To Honourable Judge Date: 26/08/2025 20:47:05