Gauhati High Court
Viswanath Bogar vs Gyarasilal Agarwalla on 23 March, 2006
Equivalent citations: (2006)3GLR177
JUDGMENT P.G. Agarwal, J.
1. Heard Mr. C.K. Sharma Baruah learned senior counsel for the appellant and Mr. N. Choudhury, learned Counsel for the respondent.
2. The brief facts leading to the present second appeal may be noted. The present appellant/plaintiff, Sri Vishwanath Bogar instituted a Title Suit No. 63/96 before the Civil Judge (Junior Division) No. 1 Sivasagar for eviction of the respondent/defendant, Sri Gyarsilal Agarwal from the suit premises and the eviction was sought on the ground of default and bona fide requirement as provided under the Assam Urban Areas a Rent Control Act, 1972 (for short the "Act") The said Title Suit was decreed ex parte on 9.9.1996 and thereafter the execution proceeding was initiated arid on execution of the said proceeding the plaintiff got delivery of possession of the suit premises. On 18.11.1996, the respondent-defendant filed application under Order 9, Rule 13 of the . CPC for setting aside the ex parte decree and thereafter vide Order dated 14.6.1999, the ex parte decree was set aside. The petitioner had filed another application under Section 144 CPC for restitution of the possession of the suit premises and the said prayer was also allowed. The present appellant thereafter preferred miscellaneous Appeal No. 16/99 against the Order dated 14.6.1999 and the said appeal was disposed of by the learned appellate court affirming the Order setting aside the ex parte decree by issuing a writ of possession of the suit premises. It may be mentioned here that the matter was brought to this Court being C.R.P. No. 232/99 and the said miscellaneous appeal was remanded back for fresh disposal and accordingly an Order dated 15.3.2003 was passed by the learned appellate court. On a petition under Section 144 read with Section 151 CPC Misc (J) Case No. 120/96 was registered, where in the present appellant filed written objection and thereafter the said Misc. (J) Case No. 120/96 was finally disposed of vide Order dated 20.9.2004. The present appellant filed Title Appeal e No. 21/2004 and the same was dismissed on 31.3.2005. Hence, the present Second Appeal:
3. this Court vide Order dated 29.7.2005 admitted the appeal to be heard on the following substantial question of law :
Whether the proceeding under Order 9, Rule 13 of the Code of Civil Procedure is 'the other proceeding' within the meaning of Section 144 of the Code of Civil Procedure ?"
"Section 144, CPC. Application for restitution. (1) Where and in so far as a decree (or an order) - is varied or reversed in any appeal, revision or g 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 well, 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, h 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 revisional 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 any restitution or other relief which could be obtained by application under Sub-section (1).s
4. The learned Counsel for the appellant has submitted that the ex parte decree was set aside under Order 9, Rule 13 CPC and admittedly there was no separate suit for the purpose of setting aside the ex parte decree. It is further submitted that the proceeding under Order 9, Rule 13 CPC is not covered by the word 'other proceeding1 appearing under Section 144 CPC and the word 'other proceeding1 appearing there may be one under Article 226 or 227 of the Constitution of India.
5. The learned Counsel for the appellant has placed reliance on the decision of the Orissa High Court in the case of Garuda Singh Majhi v. Dhana Bai and Ors. . The hon'ble Orissa High Court held:
Prior to the amendment, the prerequisite for applicability of Section 144 is that the decree is to be Varied or reversed'. After amendment, the decree is required to be varied or reversed in appeal, revision or other proceeding or set aside or modified in any suit instituted for the purpose. The Legislature having used the words 'varied', 'reversed', 'set aside' and 'modified' each term has to be given its own meaning since the Legislature never uses words unnecessarily. On the plain language of Section 144 CPC, the decree is to be varied or reversed in appeal, revision or other proceeding. In case of a decree being set aside or modified, it is to be in any suit instituted for the purpose. The term 'set aside' has been used in Order 9, Rule 13 CPC. Unless the context otherwise requires the term 'set aside' in Section 144 CPC, would carry the same meaning as in Order 9, Rule 13 CPC. When Section 144, CPC provided that it would be applicable where a decree is set aside in a suit filed for the purpose, the Legislature did not intend that the provision would be attracted in a case where a decree is set aside under Order 9, Rule 13 CPC. Section 144, CPC in terms, therefore, does not apply to a case where the decree is set aside under Order 9, Rule 13 CPC. Even if the provision is not attracted, the inherent power of the court may be exercised for restitution where a party has been injured by act of the court by application of the maxim actus curiae neminem gravabit.
6. In a later case, namely, Puni Devi Sahu and Anr. v. Jagannath Mohapatra , the honble Orissa. High Court had the occasion to consider the amended expression, decree is varied Or reversed and the hon"ble Orissa High Court has this to say (paras 5 and 6):
5. In view of the vital submissions at the Bar the first question that c arises for consideration is what is the true meaning of the expression "decree must have been varied or reversed". Before examining the aforesaid question, it would be appropriate to notice that the sole object and purpose of engrafting Section 144 into, the Code is that the acts of Courts should not be allowed to work injury on the suitors. The doctrine of restitution contemplates suitors that if the property has been received d by the holder under his decree but the decree is subsequently, wholly or partially, reversed or varied, then the judgment debtor can seek the relief of restitution. In other words, Section 144; CPC has been enacted for the purpose of granting restitution in a case where a decree might have been executed during the pendency of an appeal against it and the e decree so executed was later on set aside on appeal partially or totally. The law raises an obligation on the party who received the benefit of the erroneous judgment to make restitution to the other party for what he had lost.
6. The dictionary meaning of the word "vary" in Chambers is to make f different; tq diversity, modify; to alter or embellish preserving its identity, to change to something else ; to be or become different; to deviate ; to disagree. The word "varied" is adjective of the word 'Vary". In Shorter Oxford English Dictionary the word "Varied" has been given the meaning differing' from one another; marked by variation or varied; presenting different forms or qualities." .
7. Mr. N. Choudhury, learned Counsel for the respondent, on the other hand , submitted that the word 'miscellaneous proceedings' has been defined in Section 141 CPC which reads as follows :
141. Miscellaneous proceedings. - The procedure provided in this Code in regard to suits shall be followed as far as it can be made applicable, in all proceedings in any Court of civil jurisdiction.
Explanation : In this Section, the expression 'proceedings' includes proceedings under Order IX, but does not include any proceeding under article 226 of the Constitution.
8. Thus, the word 'other proceedings' appearing in Section 141 CPC a includes a proceeding under Order 9, Rule 13 CPC and it cannot be confined or limited to an application under articles 226 and 227 of the Constitution of India.
9. We find that the provisions of Section 141 CPC as well as Section 144 CPC, are included in Part 9 of the Civil Code, providing for the miscellaneous provisions and we do not find any substance in to submission that Order 9, Rule 13 proceeding is excluded from the purview of Section 144 CPC and that when an ex parte decree is set aside under Order 9, Rule 13 CPC, the benefit of Section 144 CPC is not available and the same available only when the said ex parte decree is set aside in a separate suit only. If the above proposition is accepted, it will provide for multiplicity of proceeding, whereas the Civil Procedure Code is amended to grant relief expeditiously, avoiding multiplicity of proceedings.
10. Mr. N. Choudhury has drawn our attention to the decision of the Delhi High Court in the case of Rama Saroop v. Daljit Singh . The facts of which are somewhat identical with the present case. Hon'ble Delhi High Court held (para 8) as follows :
It may be recalled that so far as question of setting aside the eviction decree is concerned, it had become final on the appeal against the Order of the Additional Rent Controller having been dismissed by the Rent Control Tribunal on 28th September, 1989. On the eviction decree being set aside, the landlord became liable to restore possession of the premises to the tenant. The effect of setting aside the decree was that there was no eviction decree against the tenant and, therefore, the landlord could not claim or retain possession of the tenanted premises.
11. Mr. C.K. Sharma Baruah, learned senior counsel for appellant has further submitted that the respondent continued to be the defaulter and as such the benefits of Section 144 may not be extended to a defaulter tenant in view of the observations made by this Court in the case of Abdul Matin Choudhury and Ors. v. Nilyananda Dutta Banik reported in 1997 (2) GLT 590. To rebut the above submission, it has been stated that in view of the setting aside of the decree of eviction, the question whether the respondent is a defaulter tenant or not is yet to be decided and the matter is pending for disposal. Moreover in view of the provision of Section 5(1) of the Act, the respondent-tenant cannot be evicted unless there is a decree passed against him under the Act. In this connection, we may recapitulate the observations of the Apex Court in the case of Gurjoginder Singh v. Jaswant Kaur (Smt.) and Anr. :
4. In our view the above principle will apply in the case in hand as it is the decreeholder who has put respondent No. 2 in possession and, therefore, when the decree has been set aside he is bound to restore to a the judgment-debtor what he gained under the decree and subsequently transferred to respondent No. 2.
12. In a later case of Kavita Trehan (Mrs.) and Anr. v. Balsara Hygiene Products Ltd. , the Apex Court has extended the purview of relief under Section 144 CPC and held (paras 16 and 22) :
16. The Law of Restitution encompasses all claims founded upon the principle of unjust enrichment. 'Restitution claims are to be found in equity as well as at law'. Restitutionary law has many branches. The law of quasi-contract is ' that part of restitution which stems from the common indebitatus counts for money had and received and for money paid, and from quantum meruit and quantum valebant claims'."
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 d within the ambit of Section 144. Section 144 opens with the words :
Where and insofar 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 Bench and general powers of restitution inherent in every court.
13. In view of what is submitted above, we hold that a proceeding under Order 9, Rule 13 CPC is included in the other proceeding appearing under Section 144 CPC and when a decree of ex parte is set aside under f Order 9, Rule 13 CPC, the party is entitled to the benefit of a restitution under Section 144 CPC. The substantial question of law is answered as aforesaid.
14. Thus, there is no merit in this Second Appeal, accordingly, it is dismissed.
Send down the case records to the learned court below.