Delhi District Court
Ram Rich Pal (Dead Through Lr'S) vs Bhushan Lal Sawhney on 26 August, 2015
IN THE COURT OF SH. SIDHARTH MATHUR,
SCJ Cum RC (NORTH-EAST), KARKARDOOMA COURTS, DELHI.
1. RAM RICH PAL (Dead through LR's)
........... Plaintiff No. 1
Through
Sh. M. N. Kural,
Advocate.
2. NET RAM ((Dead through LR's)
........... Plaintiff No. 2
Through
Nemo.
Versus
BHUSHAN LAL SAWHNEY
........... Defendant
Through
Sh. Anurag Lakhotia,
Advocate.
JUDGMENT
1. UID No. : 02402C0000431988.
2. Under Section : 144 CPC.
3. Date of institution : 13/03/2015.
4. Date of Final Order : 26/08/2015.
5. Final Order : Restitution Ordered.
BRIEF FACTS
1. The application of the defendant seeking restitution u/S 144 CPC is the subject matter. As per him, the CS no. 860/06 filed by the plaintiffs was decreed by the trial court on 02.05.2012 whereafter during its Execution No. 62/12, the (CS No. 860/06) (Page No. 1/11) possession of the suit property was delivered to Rajbir Sharma, one of LR of the plaintiffs. During the same execution proceedings, the defendant also had de-
posited Rs. 16,00,000/- on 01.03.2013 towards mesne profits etc. This judgment & decree of the trial court was then set aside by the appellate court on 17.01.2015 and hence now both the possession of the suit property as well as the deposit of Rs. 16,00,000/- needs to be returned to the defendant.
2. The LR's of the plaintiff Net Ram did not contest this application, which was only contested by the LR's of plaintiff Ram Rich Pal.
The erudite counsel of the LR's of plaintiff Ram Rich Pal argued that the de-
fendant is not entitled to any restitution whatsoever in terms of Section 144 CPC because the defendant being a trespasser can not termed as "the person entitled for restitution".
FINDINGS
3. In order to appreciate the rival contentions, the judgment & decree both of the trial court as well as of the appellate court have been perused.
The trial court decreed the suit in favour of the plaintiffs holding that the plaintiff is the owner of the suit property and hence entitled to the reliefs of possession with mesne profits etc. During its execution, the possession was tak-
en from the defendant, who also had deposited Rs. 16,00,000/- on 01.03.2013 towards mesne profits etc. This judgment & decree of the trial court was challenged by the defendant in appeal wherein it was set aside on dated 17.01.2015 thereby remanding the (CS No. 860/06) (Page No. 2/11) case back to decide afresh the twin issues pertaining to the inherent and pecu-
niary jurisdiction of this court.
4. The relevant excerpts of the judgment of the appellant court are repro-
duced as below :-
"16. Having found an answer with regard to the nature of land as in the order dated 11.4.1990, the further finding in the impugned judgment based on the ruling of Neelima Gupta Vs. Yogesh Saroha (supra) holding that the civil court would have the jurisdiction of the dispute appears contradictory with the ruling in Usha Gupta (Supra). The impugned judgment held " the land beneath the suit prop- erty has lost its basic character as agricultural land". In the cross examination of PW-1 dated 05.05.1992, PW-1 had ad- mitted that " it was previously agricultural land but not af- ter that. It is not agricultural land for the last 30 years". Ac- cording to the plaintiff himself in the trial court the land is not agricultural one. If that is so the valuation of the prop- erty only on the basis that it is agricultural by accepting the valuation of the suit for relief of possession at 30 times the land revenue ( land revenue being 56 paisa and paying court fee of Rs. 5 and 60 paisa) is highly unjustified. The land ought to have been assessed at the market value of the price as on the date of filing of the suit. This court is of the firm opinion that in the circumstances the finding ar- rived in the final judgment is in total conflict with the find- ings of the very court dated 11.04.1990. Hence, the matter is to be dealt again to find out the true nature of the land as on the date of filing of the suit as to whether it was in- deed agricultural land (as held in the order dated 11.04.1990) or whether it has lost its agricultural character or not as held in the final judgment dated 02.05.2012. Hence, both the findings are to be nullified by keeping open the question to arrive at a fresh decision by the court below.
(CS No. 860/06) (Page No. 3/11)
19. The only point that can be considered in the appeal is with regard to the maintainability of the suit and the de- cree on the ground that the ld. court below having held the property to be agricultural in nature vide its order dated 11.04.1990, by an interim order had treated the same as having lost the agricultural character in the final judgment. If it has lost the character of agricultural nature, the plain- tiff ought to have paid the court fee as per the market val- ue on the suit and not as valued in para 16 of the plaint by paying Rs. 5 and paise-60 for the main relief, though court fee is paid on the damages/mesne profits. This aspect needs to be looked into afresh by the court below to an- swer the following two aspects of the matter :-
a) Whether the suit property as on the date of filing of the suit was agricultural land or not ?
b) If not whether the suit of the plaintiff is under val-
ued and whether proper court fee is paid or not ?
These above issues are imperatively to be decided since in case the court holds it to be an agricultural land, the ruling of our Hon'ble High Court in Usha Gupta Vs. Subhash Chand Tyagi (supra) would come into play. If this ruling is to be followed then the suit before the Civil Court would not be maintainable. On the other hand, if it has lost the agricultural character, the civil court is empowered to en- tertain the suit following the ruling in Neelima Gupta (supra) but upon the payment of the court fee on the mar- ket value of the suit property as on the date of filing of the suit.
20. In view of the above conclusion, this court is of the opinion that the matter requires a reconsideration at the hands of the ld. court below, which shall decide only the above two issues. Consequently, the appeal is being dis- posed of by the following order :-
The appeal stands disposed by setting aside the judgment and decree in Suit No. 860/2006 dated 02.05.2012 on the files of Ld. SCJ-cum-
RC (N/E), Karkardooma Courts with a direction to render its findings on the above two issues (CS No. 860/06) (Page No. 4/11) also by receiving evidence on either side inti- mated the above two issues only and render. Thus, the matter is remitted back to be dealt in accordance with law.
Parties to appear before the ld. court below on 18.02.2015.
Trial court records be sent along with the a copy of this judgment.
File be consigned to Record Room."
5. Undoubtedly the judgment & decree of the trial court has been set aside.
This court has been commanded to decide afresh the issues of its inherent and pecuniary jurisdiction on the evidence to be led by the contesting parties. The is-
sue of inherent jurisdiction goes to the very root and will certainly have a bearing on all the remaining findings given by the trial court earlier in its judgement. If the issue of inherent jurisdiction is decided in favour of the defendant thereby holding the suit property to be an agricultural land, the findings rendered by the trial court on all the remaining issues of ownership etc. would be rendered nuga-
tory and non est in the eyes of law. And if this issue is decided in favour of the plaintiffs, they can always reclaim the possession vide execution just like they previously did during Ex. No. 62/12.
Now since the judgement & decree of the trial court is not in existence any more after its reversal by the appellate court, then in the given circumstances this court is laden with the duty to relegate the parties to the exact same posi-
tion as they were during the trial. This reversal is only possible via Section 144 CPC. The possession of the suit property was admittedly with the defendant dur-
ing the trial till it was given to the LR's of the plaintiff during Ex. No. 62/12. It thus along with the deposit of Rs. 16,00,000/- needs to be reverted to the defen-
(CS No. 860/06) (Page No. 5/11) dant to restore status quo ante after the Ex.No.62/12 has been rendered infruc-
tuous in light of the order passed in appeal.
Resultantly the plaintiffs neither are entitled to retain the possession, nor can object to the return of the deposit of Rs. 16,00,000/- after the original judge-
ment & decree has been set aside.
6. In support of my observations, reference can be made to the judgement of the Apex Court titled as "South Eastern Coalfields Ltd Vs. State of MP & Ors."
2003 (8) SCC 648, wherein the power of restitution was discussed in the follow-
ing manner :-
25. In our opinion, the principle of restitution takes care of this submission. The word 'restitution' in its etymological sense means restoring to a party on the modification, varia-
tion or reversal of a decree or order, what has been lost to him in execution or decree or order or the court or in direct consequence of a decree or order (See : Zafar Khan and Ors. v. Board of Revenue, U.P., and Ors., . In law, the term 'restitu- tion' is used in three senses; (i) return or restoration of some specific thing to its rightful owner or status; (ii) compensation for benefits derived from a wrong done to another; (iii) com- pensation or reparation for the loss caused to another. (See Black's Law Dictionary, Seventh Edition, p.1315). The Law of Contracts by John D. Calamari & Joseph M. Perillo has been quoted by Black to say that 'restitution' is an ambiguous term, sometimes referring to the disgorging of something which has been taken and at times referring to compensation for injury done. "Often, the result in either meaning of the term would be the same. ..... Unjust impoverishment as well as unjust enrichment is a ground for restitution. If the defen- dant is guilty of a non-tortuous misrepresentation, the mea-
(CS No. 860/06) (Page No. 6/11) sure of recovery is not rigid but, as in other cases of restitu- tion, such factors as relative fault, the agreed upon risks, and the fairness of alternative risk allocations not agreed upon and not attributable to the fault of either party need to be weighed." The principle of restitution has been statutorily recognised in Section 144 of the Code of Civil Procedure, 1908. Section 144 of the C.P.C. speaks not only of a decree being varied, reversed, set aside or modified but also in- cludes an order on par with a decree. The scope of the provi- sion is wide enough so as to include therein almost all the kinds of variation, reversal, setting aside or modification of a decree or order. The interim order passed by the Court merges into a final decision. The validity of an interim order, passed in favour of a party, stands reversed in the event of fi- nal decision going against the party successful at the interim stage. Unless otherwise ordered by the Court, the successful party at the end would be justified with ail expediency in de- manding compensation and being placed in the same situa- tion in which it would have been if the interim order would not have been passed against it. The successful party can de- mand (a) the delivery of benefit earned by the opposite party under the interim order of the court, or (b) to make restitution for what it has lost; and it is the duty of the court to do so un- less it feels that in the facts and on the circumstances of the case, the restitution would far from meeting the ends of jus- tice, would rather defeat the same. Undoing the effect of an interim order by resorting to principles of restitution is an obligation of the party, who has gained by the interim order of the Court, so as to wipe out the effect of the interim order passed which, in view of the reasoning adopted by the court at the stage of final decision, the court earlier would not or ought not to have passed. There is nothing, wrong in an effort being made to restore the parties to the same position in which they would have been if the interim order would not have existed.
(CS No. 860/06) (Page No. 7/11)
26. Section 144 of the C.P.C. is not the fountain source of restitution; it is rather a statutory recognition of a pre-exist- ing rule of justice, equity and fair play. That is why it is often held that even away from Section 144 the Court has inherent jurisdiction to order restitution so as to do complete justice between the parties. In Jai Berham v. Kedar Nath Marwari (1922) 49 LA. 351, their Lordships of the Privy council said: "It is the duty of the Court under Section 144 of the Civil Proce- dure 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. Cairns, L.C., said in Rodger v. Comptoir d'Escompte de Paris, (1871) L.R. 3 P.C.: "One of the first and highest duties of all Courts is to take cars that the act of the Court does no injury to any of the suitors and when the expression, the act of the Court is used, it does not mean merely the act of the primary Court, or of any intermediate Court of appeal, but the act of the Court as a whole from the lowest court which entertains jurisdiction over the matter up to the highest Court which fi- nally disposes of the case". This is also on the principle that a wrong order should not be perpetuated by keeping it alive and respecting it, A.A. Nadar v. S.P. Rathinasami, (1971) 1 MLJ
220. In the exercise of such inherent power the Courts have applied the principles of restitution to myriad situations not strictly falling within the terms of Section 144.
27. That no one shall suffer by an act of the court is not a rule confined to an erroneous act of the court; the 'act of the court' embraces within its sweep all such acts as to which the court may form an opinion in any legal proceedings that the court would not have so acted had it been correctly apprised (CS No. 860/06) (Page No. 8/11) of the facts and the law. The factor attracting applicability of restitution is not the act of the Court being wrongful or a mis- take 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 oth- erwise corned, or the other party has suffered an impoverish- ment which it would not have suffered but for the order of the Court and the set of such party. The quantum of restitution, depending on the facts and circumstances of a given case, may take into consideration not only what the party excluded would have made but also what the party under obligation has or might reasonably have made. 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 or- der of the court would be restored to or conferred on the par- ty by suitably commanding the party liable to do so. Any opinion to the contrary would lead to unjust if not disastrous consequences."
7. The last leg of the arguments advanced by the counsel for the LR's of plaintiff Ram Rich Pal was that section 144 CPC lays that only the "person enti-
tled" is eligible for restitution. He sought to contend that defendant being a tres-
passer can not be assumed as the "person entitled".
(CS No. 860/06) (Page No. 9/11) This argument is not at all convincing or sustainable. It rather seems to be a feeble attempt on behalf of the counsel for the LR's of plaintiff Ram Rich Pal to evade the aftermath of the setting aside of the judgement & decree of the trial court. In my considered opinion, the requirement of section 144 CPC regarding the term "person entitled" would include all or any person(s) from whom some-
thing has been taken away or who have lost something in pursuance of a judg-
ment and decree, which later was either reversed or varied. Any other strict in-
terpretation of this provision regarding the term "person entitled" would result in the defeat of the very object of this provision. This provision and its language has to be given a wide interpretation so as to see that ends of justice does not get defeated. Thus in the present case also, the defendant is squarely protected by section 144 CPC.
8. The LR's of plaintiff Ram Rich Pal have relied upon the citations of "Ramji Seth Vs Zohra Kalmi" 1983 AWC 673, "Ganesh Parshad Vs Hindu Social Service League" AIR 1975 AP 310, "Puni Devi Sahu Vs Jagan Nath Mohpatra" AIR 1994 Orissa 240 to bolster their arguments.
These citations have been perused by the court. Their can be no denial to the legal ratio laid therein. But none of the citations deals with a situation as in the present case wherein the trial court judgment & decree was set aside and re-
manded back to decide the issue of inherent jurisdiction. As already been ob-
served herein above, the issue of inherent jurisdiction will certainly have a mate-
rial bearing on the residual findings earlier given by the trial court. Hence the LR's of plaintiff Ram Rich Pal cannot derive any benefit out of the aforesaid cita-
tions so as to seek refusal of restitution to the defendant.
(CS No. 860/06) (Page No. 10/11)
CONCLUSION
9. For the reasons assigned herein above, the application of the defendant u/S 144 CPC is allowed.
The plaintiffs are directed to restore the possession of the suit property in favour of the defendant within 04 weeks from today. Failing which, the defen-
dant shall be at liberty to seek execution of this order for seeking the possession.
The FD of Rs.16,00,000/- lying with the court in Ex. No. 62/12 be also re-
leased to the defendant along any interest accruing thereupon. On its presenta-
tion, the bank concerned shall release the FD amount to the defendant as per rules.
One copy of this order be also placed on the file of Ex. No. 62/12.
To come up for PE on the issues formulated by the appellate court on 28.10.2015.
Announced in the Open Court (SIDHARTH MATHUR) on 26th August 2015. SCJ-cum-RC (NE) KKD. Courts, Delhi.
(CS No. 860/06) (Page No. 11/11)