Karnataka High Court
Chanda Sab vs Jamshed Khan And Others on 3 June, 1993
Equivalent citations: AIR1993KANT338, ILR1993KAR2197, 1993(2)KARLJ638, AIR 1993 KARNATAKA 338, (1993) ILR (KANT) 2197, (1994) 1 CIVILCOURTC 663, (1993) 2 KANT LJ 638, (1993) 2 RENCJ 427, (1994) 1 RENCR 4, (1994) 2 RENTLR 292, (1994) 1 CIVLJ 603
Author: R.V. Raveendran
Bench: R.V. Raveendran
ORDER
1. The Revision Petition is against grant of a temporary injunction restraining restitution. Petitioner is the dispossessed tenant. Respondents 1 and 2 are the present tenants in occupation. Respondent No. 3 is the owner who dispossessed the petitioner. Respondents 4 and 5 are stated to be the present owners.
2. The petitioner was a tenant in regard to the suit premises under the third respondent. The third Respondent owner filed H.R.C. 175/1977 on the file of the 1 Munsiff, Mysore, on 18-3-1977 and obtained an ex parte order of eviction on 22-8-1978. By executing the said ex parte order, the third respondent evicted the petitioner from the suit premises. The petitioner thereafter, that is on 19-1-1979, filed Misc. case No. 14/1979 for setting aside the ex parte order. The ex parte order was set aside and the petitioner was permitted to contest the eviction petition. Ultimately, the eviction petition filed against the petitioner in H.R.C. 175/1977 was dismissed on 10-12-1986. The Revision preferred by the third respondent against the dismissal of the eviction petition was rejected by the District Court, Mysore on 29-8-1988. After dismissal of the eviction petition, the petitioner filed a petition for restitution against the third respondent under Section 144 of the Code of Civil Procedure in Misc. 33 of 1987 on the file of the I Munsiff, Mysore and obtained an order for restitution.
3. At the stage when petitioner obtained a delivery warrant and was about to obtain restitution, respondents 1 and 2 herein filed a suit in O.S. No. 941 of 1988 on the file of the I Munsiff for a permanent injunction to restrain the petitioner herein from dispossessing them from the suit schedule property by executing the order for restitution passed in Misc. 33 of 1987. Respondents 1 and 2 contended that third respondent who was the original owner settled the suit premises in favour of his wife and son (respondents 4 and 5) on 22-10-1977; that immediately after evicting the petitioner, they (respondents I and 2) were inducted as tenants in the premises in the year 1978; that they have been in possession for 10 years as bona fide tenants under respondents 3 to 5 and their possession cannot be disturbed by any order for restitution in favour of the petitioner. Respondents 1 and 2 also filed an application under Order 39, Rule 1, CPC for a temporary injunction to restrain the petitioner herein from dispossessing them by executing the decree in Misc. 33/1987.
4. The said application for temporary injunction was rejected by the trial Court by order dated 2-11-1988. The trial Court held that the petitioner having obtained an order for restitution, which amounted to a decree, was entitled to execute the same and obtain actual possession; that the petitioner as the displaced tenant was entitled to the remedy of restitution not only against the original owner but also against any of his transferee, assignee or representative-in-interest; and that the respondents 1 and 2 who were in possession having been inducted by the owner or his transferees, did not have any right to resist the restitution, nor seek an injunction against execution or dispossession.
5. Against the said order dated 2-11-1988, respondents 1 and 2 filed an appeal in Misc. Appeal No. 60 of 1988 on the file of the II Addl. Civil Judge, Mysore. By Judgment dated 16-12-1988 the appeal was allowed on the ground that respondents 1 and 2 having been put in possession by the landlord, were bona fide tenants and there cannot be any restitution against them. Feeling aggrieved by the said order, the petitioner has filed this revision petition.
6. Learned counsel for the petitioner Sri R.J. Babu, strenuously contended that having obtained an order for restitution from a competent court, the petitioner was entitled to get possession from the original landlord or any transferee or representative of the original landlord (third respondent); that persons claiming to be tenants inducted by the landlord were not entitled to resist the petitioner's claim for possession and therefore respondents 1 and 2 were not entitled to temporary injunction. He also contended that the Appellate Court seriously erred in interfering with the discretion exercised by the trial Court. He strongly relied on the decision of this Court in Visalakshamma v. M/s. Balaji Agencies and other decisions. On the other hand, learned counsel appearing for respondents 1 and 2 contended that they were bona fide tenants having been inducted by the original owner who was in legal possession and they were entitled to defend their possession against any one claiming restitution and relied on the decision in M.M. Thimmaiah v. Jinde Ramakrishnappa reported in (1984) 1 Kant LJ 311 : (AIR 1984 NOC 236) and the decision in Paramound Industries v. C.M. Milliga to contend that a person in possession can protect his possession and maintain an action for injunction against any one trying to dispossess him. Hence the following points arise for consideration:
A. Whether a subsequent tenant in possession can resist an order for restitution obtained by the previous tenant, against the owner.
B. Whether the Appellate Court was justified in interfering with the discretion exercised by the trial Court.
7. The relevant portion of Section 144 of Code of Civil Procedure reads thus:
"144 (1) Where and in so far as a decree or an order is varied or reversed in any appeal, revision of 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."
8. The Supreme Court, on an examination of the scope of Section 144 of Code of Civil Procedure, held as follows in Binayak Swain v. Ramesh Chandra Panigrahi, :
"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.
9. In Ramayya Acharya v. Cyril Lesrado, (1977) 2 Kant LJ 54, this court held that once the decree under which possession was delivered, was set aside, there is no jurisdiction in a court to stay restitution. In Visalakshamma v. M/s. Balaji Agencies, , a similar matter arose for consideration. In that case the landlord obtained possession of executing an ex parte order of eviction. The proceeding initiated by the tenant to set aside the ex parte order of eviction was ultimately allowed and thereafter the tenant sought restitution. The landlord therein resisted the petition on three grounds: (a) that Section 144 of CPC was inapplicable in regard to a proceeding under the Karnataka Rent Control Act; (b) that the landlord has invested huge amounts for installation of machinery and to make the premises suitable for running an industry; and (c) that the landlord's brother was running the industry by borrowing heavily from financial institutions. This Court negatived the said contentions and held:
"If as a result of the reversal of the order of eviction, the tenant who was evicted became as of right entitled to seek restitution, there is no justifiable reasons to prevent him from claiming the said relief. The landlord having invested funds and starting an industry as alleged by her could not be made a ground for refusing restitution nor can such a restitution be stayed pending disposal of the eviction proceedings.
XX XX XX XX XX XX It is well settled that the acts of Courts shall not be allowed to work injury on the suitors. On the ex parte order of eviction being set aside and an order of restoration of possession to the tenant being made, it appears to be inequitable to keep the tenant out of possession pending disposal of the application for eviction."
10. The above observations were made in a case where the lis was still at the stage of setting aside of the ex parte eviction order against the tenant and where there was no final rejection of the petition for eviction on merits. The case on hand is much more stronger. In this case, not only the ex parte order of eviction has been set aside, but subsequently, the eviction petition against the petitioner has been dismissed and the application for restitution filed by him has been allowed. In these circumstances, to prevent or delay the petitioner from having the benefit of the order of restitution, by granting any injunction, in the second round of litigation commenced at the instance of the present occupants who claim to be the bona fide tenants, will only lead to patent injustice.
11. The Appellate Court, however, held that respondents 1 and 2 were, as persons in possession as bona fide tenants, entitled to an order of temporary injunction in spite of the order for restitution in favour of the petitioner. The Appellate Court relied on the decision of this Court in M. M. Thimmaiah v. Jinde Ramakrishnappa, (1984) 1 Kant LJ 311 : (AIR 1984 NOC 236) in support of its decision. The learned counsel for respondents 1 and 2 also placed strong reliance of this decision. In Thimmaiah's case, the Court was considering two cross-appeals filed against an order granting restitution by way of delivery of symbolic possession. The trial Court had refused actual possession on the ground that the premises was in the occupation of a bona fide tenant. Both parties felt aggrieved by the order. The contention of the party opposing restitution was that the person who sought restitution was a trespasser and could not therefore seek restitution against the person who had the present right to be in possession having been inducted under a valid lease and therefore restitution, even by symbolic possession, ought not to have been granted. On the other hand, the person claiming restitution contended that he was entitled to actual possession by way of restitution and restricting the order for restitution to symbolic possession was erroneous. This Court held that the question whether a person claiming restitution was a trespasser or not was pending decision and it was not therefore proper to decide the application for restitution till the said suit was decided. This Court consequently set aside the order and remitted the matter for fresh consideration. This Court also directed the trial court to examine whether the subsequent tenant was inducted without following the procedure contemplated under the Rent Control Act and if so to substitute the order for restitution by symbolic possession by an order for restitution by actual delivery of possession. This Court nowhere held that a person who has been granted an order of restitution is not entitled to claim restitution against a transferee in possession, but merely made a general observation that a person in bona fide possession through another, who was in legal possession, can protect his possession and there cannot be any restitution against him. This observation does not assist the respondents 1 and 2.
12. The learned counsel for respondents 1 and 2 next relied on the following observation of this Court in Paramount Industries v. C.M. Mallica, :
"It is open to the person in possession of an immoveable property, not being a party to the decree for possession or ejectment or an order of eviction passed under the Act (Karnataka Rent Control Act), to obstruct the execution either by filing an objection to execution before the delivery warrant is issued; or to obstruct the execution of the delivery warrant".
The above observations were made while examining the rights of a person in possession in his own right. The said observations, with which I am in respectful agreement, do not however apply to a case arising under Section 144 of C.P.C. read with Section 52 of Transfer of Property Act. When an order of restitution is made in favour of the previous tenant he becomes the decree-holder, and the owner who obtained an ex parte order of eviction becomes the judgment-debtor. Any subsequent tenant inducted by the owner becomes a person claiming possession through the owner/Judgment-debtor, and will not be a person in possession in his own right. Further such a subsequent tenant having been inducted during the pendency of the eviction proceedings against the previous tenant, his right to defend his possession is hit by the doctrine of lis pendens. The subsequent tenants (respondents 1 and 2) cannot contend that as on the date of their induction there was no pending proceedings and therefore Section 52 was not applicable. Even assuming that respondents 1 and 2 were inducted between 22-8-1978 (date of ex parte eviction order) and 19-1-1979 (date on which petitioner filed an application for setting aside the ex parte order) when the proceedings were not actually pending, having regard to the explanation to Section 52 of the Transfer of Property Act, the proceedings against the previous tenant (petitioner) will be taken as having commenced on 18-3-1977 and ended on 29-8-1988 when the appeal was decided. When a petition to set aside the ex parte order is allowed, the proceedings stand revived and will be deemed to have been pending even during the period between the date of ex parte order and the date of order setting aside the ex parte order.
13. At this juncture, it will be useful to refer briefly to some decisions which make it clear that a transferee, even a bona fide tenant as claimed by respondents 1 and 2 herein, cannot resist an order for restitution, having regard to the Rule of lis pendens enunciated in Section 52 of the Transfer of Property Act. Section 52 embodies the maximum pendente lite nihil innovetur (pending a litigation nothing new should be introduced). The scope of the doctrine has been explained by Turner, L.J. in Bellamy v. Sabine reported in (1857) 44 ER 842 as follows :
"It is, as I think, a doctrine common to the Courts both of Law and Equity, and rests, as I apprehend, upon this foundation that it would plainly be impossible that any action or suit could be brought to a successful termination, if alienations pendente lite were permitted to prevail. The plaintiff would be liable in every case to be defeated by the defendant's alienating before the judgment or decree, and would be driven to commence his proceedings de novo, subject again to be defeated by the same course of proceeding."
In the same decision, Lord Cranworth observed :
"It is scarcely correct to speak of lis pendens as affecting a purchaser through the doctrine of notice, though undoubtedly the language of the Courts often so describes its operation. It affects him not because it amounts to notice, but because the law does not allow litigant parties to give to others, pending the litigation, rights to the property in dispute, so as to prejudice the opposite party".
14. A. Narayana Pai C.J. in the case of Mohammed Ali Abdul Chanimomin v. Bi-sahemi Kom Abdulla Saheb Momin reported in AIR 1973 Mysore 131, explained the scope and object of Section 52 of the Transfer of Property Act in the following manner (para 14) :
"So far as the legal aspect is concerned, little argument is necessary to make out that the object of Section 52 is to subordinate all derivative interests or all interests derived from parties to a suit by way of transfer pendente lite, to the rights declared by the decree in the suit and to declare that they shall not be capable of being enforced against the rights acquired by the decree-holder. A transferee in such circumstances therefore takes the consequences of the decree which the party who made the transfer to him would take as the party to the suit. The principle of lis pendens embodied in Section 52 being a principle of public policy, no question of good faith or bona fides arises. Such being the position, the tranferee from one of the parties to the suit cannot assert or claim any title or interest adverse to any of the rights and interests acquired by another party under the decree in suit. The principle of lis pendens prevents anything done by the transferee from operating adversely to the interest declared by the decree."
15. In Sukhan Singh v. Uma Shankar, AIR 1935 Allahabad 65 it was held :
"Section 144 makes it imperative, where a decree passed by the Court of first instance is reversed on appeal, that the Court should place the winning party in the position which he or she would have occupied but for such decree. The winning party is entitled to have her land restored to her free from all encumbrances, including any tenancy that might have been created in the meantime by the party who was successful in the first Court but eventually was found to have no title to the land. Restitution under S. 144 can be claimed not only against the opposite party; but also his representatives or persons deriving title from him."
16. In Kanakasabai Mudaliar v. Rajago-pal Naidu, AIR 1918 Madras 673, it was held that Section 144 is imperative in its terms and gives the court no discretion and when a party to a suit is bound to restore possession under any provision of law, his legal representatives or assigns are equally liable. In Badri Dass v. Birendra Bikram Singh, AIR 1938 Oudh 169 it was held that Sections 47 and 144 should be read together and the word 'parties' in S. 144 must be taken to include their representatives and the term 'representatives' does not mean only a party's legal representative, but it means his representative-in-interest also. In Narayan Laxman v. Vishnu Waman, , it was held that persons inducted as lessees during the pendency of an appeal, after dispossession of the defendant in execution of a decree, must be treated as representatives-in-interest of the plaintiff and as such bound by the ultimate result of the suit under the rules of lis pendens enunciated in Section 52 of the Transfer of Property Act and the order for restitution could be executed against them although they were not parties to the suit.
17. In Manikchand Sarupchand Shah v. Gangadhar Shankar Shete, , a decree for possession was made in regard to a premises which was in the occupation of the defendant's tenants; the decree-holder obtained possession in execution and evicted the defendant's tenants and inducted other tenants. Subsequently, the decree was set aside in appeal and defendant sued for restitution. It was held that the said tenants inducted by the plaintiff were liable to be evicted in the restitution proceedings and the said tenants cannot claim any protection against eviction under the Bombay Rent Act.
18. In Samarjut Singh v. Dy. Director of Consolidation U.P., , it was held that a transferee pendente lite, is a representative-in-interest of the party from whom he got the transfer. Such a transferee is not entitled to raise any claim against the decree or order for restitution ultimately passed on the reversal of the decree. It was also held that the transferee pendente lite, need not be impleaded or brought on record as a party and when a decree for restitution is made, any transferee, even if not joined as a party, being a representative of the judgment-debtor (against whom restitution has been obtained) in all matters relating to the execution, discharge or satisfaction of the decree, will be bound by the order for restitution, in spite of the fact that he was not impleaded as a party.
19. In Jagdish Lal Arora v. M.E. Periera, , the rights of a transferee pendente lite, to resist restitution were considered in detail. In that case, the premises in question belonged to one J. Rani Sethi. One Corea was the tenant of the premises. Periera was in occupation of the premises either as a sub-tenant or a licensee under Corea. Corea obtained an ex parte decree against Periers and took possession. Thereafter, the said Corea is said to have surrendered the premises to the landlady who in turn let out the portion of the premises to one J.L. Arora. In the meanwhile, on a motion by Periera, the ex parte decree was set aside and Corea was directed to restore possession. The proceedings for restoration was resisted by the existing tenant J. L. Arora on the ground that he was a bona fide tenant and his possession could not be disturbed in a proceeding pursuant to the order of restoration. Thereupon Periera sought police aid. J. L. Arora made an application for stay of further proceedings till his claim was determined. The trial Court refused to grant stay holding that as J. L. Arora was inducted during the pendency of the suit, his rights were prima facie barred under Section 47 and that in a proceeding under Section 144 of the Code of Civil Procedure, it was the duty of the Court to restore the benefit taken by a party under a decree which has since been set aside. The trial Court subsequently made an order dismissing the application filed by J. L. Arora, reiterating its earlier conclusions and rejeted his request for investigation into the right claimed by him. The said order was challenged by J. L. Arora before the Delhi High Court on the ground that us a tenant who was in bona fide possession in his own right and in good faith, he was not bound by the order of restitution. H. L. Anand, J. went into the question whether a transferee, from a decree holder who had obtained possession order an ex parte decree, would be within the reach of the court in restitution proceedings even though such transferee may not have any knowledge of the earlier proceedings and was dealing with the property in good faith. The Court after referring to and examining Sections 47 and 144 of CPC, Order 21 Rules 97 to 103 of CPC and Section 52 of the Transfer of Property Act and several decisions on the matter, held as follows (paras 9 and 10 of AIR):
"A combined reading of the three sets of provisions referred to above hardly leaves any doubt that any transfer of possession of immoveable property during the pendency of a suit which involves any right to such property, would be incapable in law of affecting the rights that flow in relation to the property from a decree that may be passed in the suit. It is also evident that where a defendant has been deprived of the possession of the property in execution of a decree for such possession and the decree was eventually set aside, the party who is deprived of possession is entitled to the possession being restored to him unless the justice of the cause points to the contrary and the party that has taken the benefit is under an obligation to restore possession and the court is fully empowered, as indeed obliged, to order restitution by evicting not only the party which has taken the advantage but all those whose possession is relatable to such a party. In such cases, the transferee from the party, who obtains the advantage, or a further transferee from such a transferee, would be within the reach of the court irrespective of whether such transferee or transferees were acting in good faith and without any knowledge of the earlier proceedings. The power and the obligation of the court to restore the property, to the person who has been deprived of it, in such cases, would transcend all limitations except those founded in justice of the cause. If, therefore, either the person who took the benefit or any transferee from him or a transferee from such a transferee resisted or obstructed the execution of an order of restitution, would not have the protection of Rule 99 of Order XXI of the Code of Civil Procedure.
It, therefore, follows that the petitioner, being a person who claims to be in possession as a tenant under the landlady, who admittedly came by the possession of the portion in dispute and surrender by Corea, who was a party to the proceedings and had taken advantage of the ex parte decree, is within the reach of the Court and is bound to restore the possession of the portion in dispute to Periera, I do not see any reason why, in the facts and circumstances, of this case, the legal obligation cast on the petititioner, as indeed the others, to restore the possession of the property to Periera, who was wrongfully deprived of it, should not be enforced by the court. There is no reason why the solemn duty cast on the court to make such a restoration should not be discharged by it. The contention that Periera was merely a licensee or, even if a sub-tenant, was an unauthorised subtenant and, therefore, held the property on a precarious tenure which would not survive judicial scrutiny and the claim of Corea to dispossess Periera was bound to succeed in the suit, which has been restored, to my mind, would not justify the benefit of restitution being declined. It has been pointed out above, that the judgment-debtor would be entitled to restoration even though ultimately he may lose it or was even bound to lose it and restoration proceedings were justified by the Supreme Court, even though at the trial of the suit, a decree had already been passed in favour of the decree-holder, who was required to make the restoration. It is also of no avail that the surrender by Corea in favour of the landlady did not amount to transfer of property because it did amount to dealing with the property in a manner that was prejudicial to the right of Periera. There is nothing in the justice of the cause that may justify any interference except to the extent indicated below.
20. The following principles emerge from a conspectus of the aforesaid decisions :
(a) Whenever an ex parte order/decree for possession/eviction is set aside, the party who was 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 S. 144 of C.P.C. that no party to a 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 a bona fide transferee or tenant without notice; neither bona fides nor notice is relevant to the principle of lis pendens which is a principle of public policy that neither party to a litigation can alienate the property in dispute, pendente lite, so as to affect his opponent;
(d) Only a stranger who is in bona fide possession, in his own right and who does not claim possession is a transferee/representative of the party who obtained possession in pursuance of the ex parte order/decree, can resist a claim for restitution;
(e) the provisions of S. 144 being imperative, courts should aid restitution and not help obstruction to restitution on vague pleas of equity or technicalities.
21. Applying the above principles, it is clear that respondents 1 and 2 are not entitled to obstruct restitution. Thus they have not made out a prima facie case for grant of injunction. The trial Court, by applying correct principles, had refused a temporary injunction. There was no justification for the appeallate court to interfere with the discretion so exercised. The Appellate Court acted with material irregularity in exercise of its jurisdiction leading to failure of justice.
22. Hence this revision petition is allowed and the order of the trial Court is restored. The application for temporary injunction filed in O.S. No. 941/88 to restrain the petitioner from executing the order of restitution and dispossessing respondents 1 and 2, shall stand rejected. Parties to bear their respective costs.
23. Petition allowed.