Madras High Court
A.G. Pasupathy vs Mohamed Ismail on 14 October, 1997
Equivalent citations: (1998)1MLJ746
ORDER S.S. Subramani, J.
1. This revision petition under Article 227 of the Constitution of India, is by the tenant in R. CO.P. No. 3678 of 1988, on the file of XI Judge, Court of Small Causes at Madras.
2. Relevant facts that are necessary for the proper disposal of the revision may be summarised as follows:
Petitioner herein is a tenant of the building belonging to the respondent. R. CO.P. No. 3678 of 1988 was filed for eviction. Petitioner herein was set ex parte on 27.7.1989, and subsequently an ex parte order of eviction was also passed on 16.8.1989.
3. Petitioner herein filed M.P. No. 265 of 1990, to set aside the ex parte order of eviction, and the same was allowed as per order dated 31.10.1990. Petitioner thereafter filed a counter in the main petition on 11.12.1990. The main eviction petition itself was posted to 3.1.1991 for enquiry. The matter was again adjourned to 10.1.1991, and since there was no representation on behalf of the respondent, the eviction petition itself was dismissed for default. It is not disputed that as on date, the dismissal order has become final. It is said that pursuant to the original ex parte order, respondent herein filed E.P. No. 288 of 1993, for taking delivery of the property, and in fact, dispossession also took place on 1.11.1993. It is the case of the petitioner that his dispossession is unlawful, and he is entitled to restitution.
4. Petitioner herein filed M.P. No. 947 of 1993 for restitution, under Section 144 read with Section 151, C.P.C.
5. A detailed counter was filed by respondent herein. According to him, the petition itself is not maintainable. It is his case that he has not committed any fraud on court. He applied for certified copy of order on 10.12.1991 and the copy was delivered on 16.4.1993, and on receipt of the certified copy, he filed the Execution Petition on 22.4.1993. It is said that notice was ordered in the execution petition on 30.4.1993, and notice was returnable by 16.6.1993, and the execution petition was posted on 29.6.1993. On that day, notice was issued and the case was posted to 7.7.1993. The case was being adjourned from time to time, viz., on 9.8.1993, 16.8.1993 and 17.8.1993, and finally substituted service was ordered on 9.9.1993. After effecting publication on 17.9.1993, delivery was ordered by court on 20.9.1993. Respondent has further said that he took the bailiff on 29.9.1993, and the bailiff found that the house was locked, and, therefore, an application was filed to break open the lock, and finally he took possession through orders of court. It is the case of the respondent that several times delivery was ordered, and the bailiff also went to the premises and returned the warrant as he was unable to execute the warrant as the door was locked, and finally with police aid, possession was obtained. According to the respondent, the miscellaneous petition filed by the petitioner herein is barred, since, on the termination of the Execution Petition, the court has become functus officio. It is further said that the court has no jurisdiction to entertain the petition since the Government of Tamil Nadu has exempted the building from the provisions of Rent Control Act. It is further said that the petitioner himself filed a writ petition questioning the exemption, but failed. According to the respondent, once the building has been exempted from the provisions of Rent Control Act, the court cannot entertain any application in respect of the building, and the application for restitution is also not maintainable. It is said that the restoration application filed by the petitioner was one without jurisdiction since there was a delay of more than five months. The entire procedure in the restoration matter is one without jurisdiction and he came to know about it only on 10.1.1990 when notice in the miscellaneous petition viz., M.P. No. 265 of 1990 was served on him. It is his case that no notice was served on him in the proceedings filed for setting aside the ex parte order of eviction. It is said that he acted bona fides and, in none of the courtproceedings, the order setting aside the earlier ex parte decree was made mention of and, therefore, he is not entitled to get restitution.
6. On the above pleadings, respondent got himself examined as R.W. 1, and finally, the court below, by the impugned order, dismissed the petition. Court below found that the ex parte decree has been set aside, and the principle of restitution also applies to Rent Control Act, but dismissed the petition on the ground that since satisfaction was entered in the execution petition, it has no jurisdiction to order restitution. The finding of the court below may be extracted thus:
7. Learned Counsel for petitioner seriously challenges this finding of the court below. According to me, the said contention of the counsel deserves consideration.
8. In an application under Section 144 and 151, C.P.C., the only condition which the petitioner has to satisfy is that the decree on the basis of which he has been dispossessed, has been set aside.
9. In Zafar khan v. Board of Revenue, 1984 S.C.C. (Supp.) 505, their Lordships, in paragraph 14 of the judgment, held thus:
... In a proceeding under Section 144 of the Code of Civil Procedure, the party applying for restitution has to satisfy the court of first instance that a decree under which it was made to part with the property is varied or reversed or modified in appeal or revision or other proceeding or is set aside or modified in any suit instituted for the purpose and, therefore, restitution must be. ordered. Section 144 is founded on the equitable principle that one who has taken advantage of a decree of a court should not be permitted to retain it, if the decree is reversed or modified. That is why the marginal note to Section 144(1) reads 'application for restitution' and the word 'restitution' in its etymological sense means restoring to a party on the modification, variation or reversal of a decree what has been lost to him in execution of the decree or in direct consequence of the decree. In such a proceeding, the party seeking restitution is not required to satisfy the court about his title or right to the property save and except showing its deprivation under a decree and the reversal or variation of the decree...
[italics supplied] The finding of the court below is that an ex parte decree has been set aside. Even though the respondent has contended before the court below that the procedure for setting aside the ex parte decree is not valid on various grounds, it has not entered any finding in his favour. It is also admitted in the counterstatement that the ex parte order of eviction has been set aside, though there is a further statement that it is invalid, and that he has acted bona fidely. It is also seen from the counter affidavit that the Rent Control Petition itself was subsequently dismissed for default. It is also his case that the same was also without notice to him.
10. When the only qualification required for an application for restitution is, that the decree on the basis of which he was dispossessed must be set aside, and that has been satisfied, the natural consequence is that he must be restored to possession. The court below took a peculiar view, that since the decree has been satisfied, it cannot order restitution. This, according to me is a perverse finding, which cannot be supported legally.
11. The question as to what is the purpose of restitution, came for consideration in Rodger v. Comptoir D' Escomote De Paris, 17 English Reports. 314. In that case, an ex parte decree for recovery of money was passed and the same was subsequently set aside. On the basis of the ex parte decree, the money was also realised. Application was filed by the defendant to have the ex parte decree set aside, and the same was ultimately allowed. Defendant in that case applied for restitution. The High Court of Hongkong held that the defendant is entitled to restitution, and directed the plaintiff to deposit the actual amount realised/The Hongkong High Court came to the conclusion that it has no power to order any payment of interest upon any part of the sum. This question came for consideration before the Privy Council. At page 237 of the reports, it was held thus:
The result is this, that in the opinion of their Lordships, it was in the power, and it became the duty, of the Court at Hong Kong to do everything, and to make every order which was fairly and properly consequential upon the reversal of the original judgment by this tribunal. The Supreme Court at Hong Kong has entertained no doubt that it had the power, and that it was its duty, to order restitution of the principal sum that was paid over, and all the costs that were paid over under the judgment. But it has held the opinion, that it had not the power to order any payment of interest upon any part of the sum paid over by the present petitioners to the respondents. The question which their Lordships have to consider is, whether the Court at Hong Kong had or had not that power to order payment of the interest, and if so, whether in this case, it was or was not proper to exercise that power?
Now, their Lordships are of opinion, that one of the first and highest duties of all courts is to take care 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 the act of the court as a whole, from the lowest court which entertains jurisdiction over the matter upto the highest court which finally disposes of the case. It is the duty of the aggregate of those tribunals, if I may use the expression, to take care that no act of the court in the course of the whole of the proceedings does an injury to the suiters in the court.
[Italics supplied]
12. The said decision was followed by the Privy Council in the decision reported in Jai Barham v. Kedar Nath A.I.R. 1922 P.C. 269 : 41 M.L.J. 735 : L.R. 49 LA. 351 : 69 I.C. 278. At age 271, their Lordships said thus:
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 which decree or such part thereof as has 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.
13. Both the above decisions were accepted by our Supreme Court in the decision reported in Kavita Treben v. Sahara Hygiene Products , wherein their Lordships, in paragraphs 16 to 22, have held thus:
The Law of restitution encompasses all claims founded upon the principle of unjust enrichment. Restitutionary claims are to be found in equity as well as at law,' Restitutionary law has many branches. The law of quasicontract 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 valebart claims. " (See The Law of Restitution Goff & Jones, 4th Edn., page 3) Halsbury's Laws of England, 4th Edn., page 434 states:
Common Law. Any civilised system of law is bound to provide remedies for cases of what has been called unjust entrichment or unjust benefit, that is, to prevent a man from retaining the money of, or some benefit derived from, another which it is against conscience that he should keep. Such remedies in English law are generically different from remedies in contract or in tort, and are now recognised to fall within a third category of the common law which has been called quasicontract or restitution.
For historical reasons, quasicontract has traditionally been treated as part of, or together with, the law of contract. Yet independently, equity has also developed principles which are aimed at providing a remedy for unjustifiable enrichment. It may be that today these two stands are in the process of being woven into a single topic in the law, which may be termed 'restitution. ' Recently the House of Lords had occasion to examine some of these principles in Woolwich Equitable Building Society v. I.R.C. In regard to the law of restoration of loss or damage caused pursuant to judicial orders, the Privy Council in Alexdander Rodger Charles Carnie v. Comptoir D' Escopmpte De Paris, 17 E.R. 314 stated:
...one of the first and highest duties of all courts is to take care that the act of the court does not 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 finally disposes of the case.
In Jai Berham v. Kedar Nath Marwari, the Judicial Committee referring to the above passage with approval added:
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 reveised. Nor indeed 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.
In Binayak Swain v. Ramesh Chandra Panigrahi this Court stated that principle thus:
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. Section 144, C.P.C. incorporates only a part of the general law of restitution. It is not exhaustive. (See: Gangadhar v. Raghubar and State Government of A.P. v. Manickchand Jeevraj & Co.
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 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 aggrieved party in such a case can appeal to the larger and general powers of restitution inherent in every court.
14. In Neelathupara K.S.K. Phangal v. Montharapalla P. Attakova , their Lordships held thus:
The application for restitution would lie when the decree executed is reversed or varied or modified. The doctrine of restitution is based upon the high cardinal principle that the acts of the court should not be allowed to work in injury or injustice to the suitors. Section 144, therefore, contemplates restitution in a case where property has been received by the decreeholder under the decree, which was subsequently either reversed or varied wholly or partly in those proceedings or other proceedings. In those set of circumstances law raised an obligation on the party that received the benefit of such reversed judgment to restitute the property to the person who had lost it.
15. In Gurjoginder Singh v. Jaswant Kaur , which is a case under the Delhi Rent Control Act, their Lordships held that the principle of Section 144, C.P.C. applies in such cases. There also, an ex parte decree for eviction was passed, which was subsequently, set aside, and in the meanwhile, the landlord took possession and inducted another person into the building. The question was, whether the tenant who was inducted subsequently, is liable to be dispossessed even if he is considered to be a bona fide tenant without knowledge about the proceedings regarding the earlier ex parte decree. Their Lordships held that there is an obligation on the part of the decreeholder to put the earlier tenant in possession and the question of bona fide is not a matter which could be agitated by a subsequent tenant, since his claim is only under the landlord. In that case, their Lordships said thus:
The status of a bona fide purchaser in an auction sale in execution of a decree to which he was not a party stands on a distinct and different footing from that of a person who is inducted as a tenant by a decreeholder landlord. 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 landlord cannot avail of the same right as his possession as a tenant is derived from the landlord. It was the decree holder who had put Respondent 2 in possession and, therefore, when the decree had been set aside he was bound to restore to the judgment-debtor what he gained under the decree and subsequently transferred to respondent 2.
16. In view of the above settled legal position, it cannot be doubted that the respondent is bound to hand over possession of the building to the petitioner. In this case, the ex parte order of eviction was set aside and subsequently even the eviction petition was also dismissed for default. It was thereafter the execution petition was filed and the property was taken delivery through court. On that date, there was no decree enabling the respondent to get possession. He was not entitled to file execution petition. In spite of that, he took possession of the property. Respondent has his own explanation for taking possession of the building. It is his case that he bona fide believed that the ex parte decree has become final, and he was not aware of the subsequent proceedings. As I have said earlier, the finding of the lower court is that the petitioner herein is entitled to restitution, but dismissed the miscellaneous application on the ground that the Execution Petition has been satisfied.
17. In this case, the petitioner is entitled to the benefits of the Rent Control Act, is not disputed, and that is why the respondent filed R.C.O.P. for eviction. Of course, he has got a case that subsequently the Government has exempted the building from the purview of the Rent Control Act. How far the said contention is valid or could be accepted will be dealt with by me later.
18. Under the Rent Control Act, the tenant has got certain legal rights. That cannot be taken away, nor could it be waived. Unless the court is satisfied that there are valid grounds for eviction, a tenant cannot be dispossessed. Rent Control Legislation is a self contained Code in so far as matters dealt with under that law. Once the ex parte decree for eviction has been set aside, the legal relationship of landlord and tenant continues, and the tenant cannot be dispossessed except under the provisions of that law. When the eviction petition is ultimately dismissed, it follows that the petitioner herein continues to be a tenant. If he is not liable to be dispossessed, the reasoning of the lower court that since pursuant to the ex parte decree, satisfaction has been entered, it does not have the jurisdiction to order restitution, is perverse. A wrong has been committed by the court below by ordering delivery of the property, for, there was no decree for eviction. Even if there was any ignorance on the part of the court, dispossession was by order of court. The same has to be rectified by the court itself. This question came for consideration by a Full Bench of the Orissa High Court in Sagarmal Panch v. Chief Judicial Magistrate, Puri , which is also a case under the Rent Control Act. In that case, against an ex parte decree for eviction, an appeal was filed by the tenant, but no stay was ordered. In the meanwhile, landlord took possession. Ultimately, the appeal was allowed. In that circumstance, in paragraph 15 of the judgment, it was held thus:
The submission is entirely misconceived and must be rejected as that would be contrary even to the elementary principles of civil law. All decrees and orders passed by a court, which may although be subject to appeal, become executable, and the appellate authority is not bound to grant stay of execution in all cases. If the contention raised on behalf of the petitioner is accepted, then all those appeals would become infructuous and the appellate courts functus officio. It is for this purpose that Section 144, C.P.C. contains a provision of restitution. The learned Judge in Smt. Debmeni's case (1985) 1 Orissa L.R. 215 has already taken such a view on reference to various earlier authorities of this Court. The same view, which, if I may say so, is correct, has also been taken in Kandula Pravakar Rao's case A.I.R. 1988 Orissa 263 at 264-65 where the following observation has been made:
... consequently, it would follow that an eviction, in the eye of law, had never been carried out. The question of re-occupation by the petitioner forcibly also would not arise and he would continue to fill the same character in respect of the premises which he was originally holding prior to the purported eviction. The petitioner, if it had continued to remain evicted even after the restoration of the House Rent Control Case, would always file an application for restitution to be put back in the house...
The second question, therefore, does not deserve consideration any longer. The answer must be given against the petitioner. I would firmly hold that on account of the discharge and satisfaction of the decree under appeal, the appellate court does not become functus officio and the benefits, if any, which can flow to the appellant from the appellate order must be given to him by applying the principles of restitution enshrined in Section 144, C.P.C.
19. When a wrong decree has been passed, execution pursuant to the same is also wrongful. Satisfaction entered by court was also wrongful. The court is bound to restore the parties to their original position. If the finding of the court below is accepted, it will amount to saying that even a wrongful act of the court cannot be rectified by it. That will be quite against the settled legal principles of restitution.
20. Learned Counsel for the respondent submitted that no restitution can be allowed in this case since the building which was let out to the tenant has already bene demolished and a new construction has been made, and regarding the new construction, exemption has also been obtained from the Government. When the tenanted building is not in existence, there is no scope for restitution. Learned Counsel relies on a decision of this Court reported in Mahaveer Electrie Corporation v. Ashok Kumar A.I.R. 1997 S.C. 1301 for the said purpose. It is true that there are certain observations in that judgment in favour of the respondent. But, how far the same are applicable to the facts of this case, will be considered in the course of this judgment.
21. I have already said that by ordering restitution, a duty is cast on the party to respect the order of court which was subsequently varied or set aside. In the decision reported in L. Guran Ditta v. T.R. Ditta A.I.R. 1935 P.C. 12 : 68 M.L.J. 168, their Lordships held that the duty of the court is imperative and not optional, nor is there any discretion. It was held thus: "The duty of the court when awarding restitution under Section 144 of the Code is imperative. It shall place the applicant in the position in which he would have been if the order had not been made; and for this purpose the court is armed with powers (the 'may' is empowering, not discretionary) as to mesne profits, interest and so forth. Hence restitution ordinarily involves interest also and court can grant same.
22. In Binayak Swain v. Ramesh Chandra Parigranbi , in paragraph 4 of the judgment, it was held thus:
... At the time of the application for restitution, therefore, the appellant was entitled to restitution, because on that date the decree in execution of which the properties were sold had been set aside. 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 restored, to the same position they were in at the time when the Court by its erroneous action had displaced them from...
The said decision was followed by the Supreme Court again in the famous case of Union Carbide, viz., Union Carbide Corpn. v. Union of India . The Constitution Bench followed the above decision and also the decisions reported in Jai Barham v. Kedar Nath A.I.R. 1922 P.C. 269 and L. Guran Ditta v. T. RDitta A.I.R. 1935 PC. 12, and held in paragraph 148, as follows:
But, in the present case, Section 144, C.P.C. does not in terms apply. There is always an inherent jurisdiction to order restitution a fortiorari where a party has acted on the faith of an order of the court. A litigant should not go back with the impression that the judicial process so operated as to weaken his position and whatever it did on the faith of the court's order operated to its disadvantage. It is the duty of the court to ensure that no litigant goes back with a feeling that he was prejudiced by an act which he did on the faith of the court's order. Both on principle and authority it becomes the duty of the court as much moral as it is legal--to order refund and restitution of the amount to the U.C.C. --if the settlement is set aside.
23. From the above decisions, it is clear that it is an imperative duty on the part of the court to restore the parties to their original position, and the obligation arises immediately when the decree is varied or set aside. That obligation is not only on the parties, but also on the court. It could be further seen that any subsequent act or event also should not be taken into consideration, after the decree is set aside. Even though under the Rent Control Act, the principle of Section 144, C.P.C. is not applied, in view of the settled legal position, the power of restitution is inherent in every court and the court is also bound to see that the parties are restored to their original position. Even if we import the words 'so far as may be' as used in Section 144, C.P. C, into the inherent powers of Court, that also should be only in favour of the person from whose possession the property was taken. The words 'so far as may be' are not to be interpreted in favour of the person who has taken the property which he was not entitled to as was held in Chanda Sab v. Jamshad Khan A.I.R. 1993 Karn. 338. In that case, a learned Judge of the Karnataka High Court has said that, "... 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;... " Their Lordships further went on and said thus: "... the provisions of Section 144 being imperative, courts should aid restitution and not help obstruction to restitution on vague pleas of equity or technicalities.
24. Now I will consider the decision relied on by learned Counsel for the respondent to see how far that is helpful to him. According to me, on going through the facets of that case, the principle of restitution does not arise at all. Going by the facts as reported, it is seen that the ex parte decree was obtained in eviction proceedings and that had become final, execution petition was filed and possession was taken. Thereafter, two miscellaneous petitions were filed by the tenant, one, to set aside the ex parte order in the execution petition and another, to effect redelivery. Even in the application for redelivery, the request is to redeliver the demised property in as is where is condition. The executing court dismissed both the petitions. The matter was taken to this Court. this Court also dismissed the revision. So, if these are the only facts, there cannot be any question of restitution, in such cases. The decree was neither varied nor set aside, and the property was also taken delivery. So, naturally, the observations relied on by learned Counsel for respondent can only be obiter which could not have arisen for consideration in that case. In the case cited, learned Judge also found that the landlord has not committed any fraud, and the ex parte, order of eviction or for delivery of possession is valid. Having found that the ex parte order was valid and not required to be set aside, there cannot be any question of applicability of Section 144, and the question of restitution could not have arisen at all. It may also be noted that before the learned Judge, the decisions of the Supreme Court in Binayak Swain v. Ramesh Chandra Panigranhi and Union Carbide Corpn. v. Union of India were not cited. When the Supreme Court has said that subsequent events are not to be taken into consideration, and the only qualification for seeking restitution is, that the decree on the basis of which he was dispossessed has been set aside, any finding against it cannot be held as good law. In paragraph 16 of the Reports, it is seen that subsequent to the restitution petition, landlord sold portions of the property to others who have also put up construction. Learned Judge found that the subsequent purchasers are necessary parties, and when the old building is not in existence, restitution cannot be allowed. This goes against the tenor of the very Section and the principles enunciated by the Privy Council as well as by the Supreme Court. Learned Judge has also taken note of the fact that the new building is exempted from the purview of the Rent Control Act and that is also an added reason for disallowing restitution. The said finding is also against the principle of restitution. As stated earlier, the parties must be relegated to their original position without taking note of the subsequent events. Even Section 52 of the Transfer of Property Act, which has been incorporated in the Statute Book, as a matter of public policy, was held not to apply to the Rent Control Act. This also goes against the law enunciated by the Apex Court.
25. I may again repeat that none of the observations made by the learned Judge in Mahaveer Electric Corporation v. Ashok Kumar A.I.R. 1997 S.C. 1301 arises in this case for one more reason which could be seen from paragraph 21 of the judgment. Learned Judge has held that the revision itself is one under Article 227 of the Constitution of India, and on that preliminary ground itself, the revision is liable to be dismissed. Having held that the revision itself is not maintainable under Article 227 of the Constitution of India, and also after having held that the decreeholder has not committed any fraud and that no ground has been made out to set aside the ex parte order of eviction, the observations relied on by learned Counsel for the respondent in the judgment cited, cannot be said as having any binding force.
26. For the above reasons, it has to be held that the new construction alleged to have been made by the respondent or the exemption granted by the Government cannot be a ground for disallowing restitution. When the law imposes an obligation on the part of the decree-holder himself consequent on the wrong decree, he cannot take advantage of construction made on the basis of the wrongful dispossession. As held in Binayak Swain v. Ramesh Chandra Parigranbi , an obligation arises automatically on the reversal or modification of the decree. In this case, the ex parte order of eviction was set aside on 31.10.1990. If the rights of parties are to be considered as on that date, and as held by the Supreme Court, the respondent cannot prevent the same on the technical plea that he has put up a construction.
27. The said argument also can be defeated by another way. The word 'building' has been defined under the Rent Control Act thus:
'Building' means any building or but or part of a building or but, let or to be let separately for residential or non-residential purposes and includes-
(a) the garden, grounds and outhouses, if any, appurtenant to such building, Hut or part of such building or but and let or to be let along with such building or but,
(b) any furniture supplied by the landlord for use in such building or hut or part of a building or hut, but does not include a room in a hotel or boarding house;
28. Under the Kerala Buildings (Leads and Rent Control) Act, the definition for the word 'building' is the same. In the decision reported in Mumthas Begum v. Maitheen Sahib (1988) 1 K.L.T. 473, a converse case came for consideration. In that case before the Kerala High Court, the landlord obtained a decree for eviction and the same was confirmed upto the revisional court. The building was situated in Chalai Bazaar in Trivandrum. In 1982, there was a riot in Trivandrum, in which various buildings were demolished by the rioters. In that case, when execution petition was filed, tenant contended that the building which was already in existence was demolished by the rioters and he had constructed a new building, and the Municipality has also recognised the same by giving a new number. He contended that the old building which was in his occupation was not in existence and, therefore, delivery cannot be ordered. The executing court repelled the contention. The matter was taken to the District Court in revision, where the matter was remanded. The order of remand was taken in revision before the High Court. While disposing of the civil revision petition, their Lordships considered this question. In para 6, the effect of the meaning of the word 'building' under the Rent Control Act was considered, and thereafter, in paragraph 8, it was held thus:
In stroud's "Judicial Dictionary" (Vol. 1 of the 5th Edition) it is stated thus: "What is a building must always be a question of degree and circumstances. " Quoting from Victoria City v. Bishop of Vancouver Island 1921 A.C. 384 at 390, the learned Author has given its meaning thus:- "The ground on which it stands. " In Black's "Law Dictionary" (5th Edition) the meaning of the building is given as follows: "A structure or edifice enclosing a space within its walls, and usually, but not necessarily, covered with a roof. " The said description is meaningful, for, the space inclosed inside the superstructure of the building is the most important ingredient whereas even the roof is not a necessary adjunct (because there can be roofless building). In Bouvier's "Law Dictionary" (A Concise Encyclopaedia of the Law Vol. 1--3rd Revision) the meaning of building is given as "an edifice, erected by art, and fixed upon or over the soil, composed of brick, marble, wood, or other proper substance, connected together, and designed for use in the position in which it is so fixed.
In paragraph 9 of the said judgment, it was further said thus:
A reference to different shades of meaning of the word "building" would thus show that mere replacement of the superstructure does not completely destroy a building which existed before such replacement. If the walls and the roof of a building are incinerated in fire or other calamities or even pulled down, the ground and the space will continue to remain as part of the building. Even in the destroyed stage the space and the ground represent atleast a microcosm of the original edifice. This view is well bolstered up when the statute in the definition clause has engrafted the idea that even part of a building would be treated as building. If new roof or new walls are put up, it does not, in law, render the building totally different from the old. At most the building could then be called a renovated or reconstructed building. Thus the order of eviction obtained by the landlord in respect of the building continues to be executable and enforceable, albeit the replacement with different superstructure consequent on the destruction of the walls and even the roof of the building.
[Italics supplied] The said decision was approved by a Division Bench of the same Court in the decision reported in Kalpakam Amma v. Muthuramma Iyer Muthukrishna Iyer . The Division Bench (to which I was also a party) has held thus:
Without a site, the superstructure of the building on the land cannot normally exist. Thus, when there is lease of a building, such lease would normally take in the site unless it is specifically excluded from the land. There cannot be building without a site and once a structure is put up in the land, the site becomes part of the structure and thereafter, the site becomes part of the building. The definition of building' in the Rent Control Act also supports the view. Section 108 (e) of the Transfer of Property Act may not be helpful in deciding the relationship between the parties, when one has to consider the question on the basis of the definition under the Rent Control Act. Moreover, when there is no complete destruction of the building; only then the principle of Section 56 of the Contract Act read with Section 108(e) of the Transfer of Property Act can be applied. The relationship will continue till the tenant is evicted under due process of law. " If the tenant take refuge on the ground that he has put up a new building, though on the very same site. The same disability applies to the landlord also. 29. In this connection, it is also worthwhile to note a decision of the Punjab and Haryana in Amir Chand v. Chuni Lal . In that case, pursuant to an ex parte decree, possession was taken. Immediately the Municipal Committee issued notice to the landlord that the building must be demolished, and on the basis of that notice, the building was actually demolished. The ex parte decree was set aside, and the tenant applied for restitution under Section 144, C.P.C. An argument similar to the one advanced before this Court was put forward. In paragraph 4, it was held thus:
The doctrine of frustration embodied in Section 56 of the Contract Act which renders a contract void by reason of the impossibility of performing the act required on account of some event, which the promisor could not prevent, would not apply in the case of a lease. The rights of the parties after a lease was granted rest not in contract. Though under Section 4 of the Transfer of Property Act, the chapters and sections of the said Act relating to contracts are to be taken as part of the Contract Act yet that does not mean that the provisions of Contract Act are to be read into the Transfer of Property Act. The doctrine of frustration cannot apply to a lease of the present nature. Moreover, in this case even if this doctrine had been applicable, the facts do not show that the contract of lease had become impossible of performance. The landlord who demolished the premises in compliance with a notice issued by the Municipal Committee could rebuild the premises in the same form in which they existed before demolition and the rights of the lessor and the lease would then be available with respect to the new premises...
Their Lordships thereafter followed a decision of the Allahabad High Court reported in Rahim Bux v. Mohammed Shaft , wherein it was held thus:
When a leased building is demolished following a notice under Section 262(1), U.P. Municipalities Act, the lease does not become impossible of performance under Section 56 of the Contract Act because the doctrine of frustration which applies to purely contractual obligations and not to contracts creating estates or interests in land which had already accrued, does not apply to it. Further, even if it applied, such an impossibility does not arise since the lessee's rights will revive when the building is reconstructed. " [Italics supplied] Their learned Judge of the Punjab High Court gave direction to the landlord to put up a building as was in existence earlier, failing which the tenant was given the liberty to put up a building, permitting him to adjust the cost of construction in the rent.
30. In this case, the landlord also cannot be said to have put up a construction bona fide even though bona fides are not to be considered in the case of restitution. After the execution petition and before the restitution application was filed, there were other civil proceedings between the same parties. It is during the pendency of these proceedings, a construction has been put up. In such cases, it has to be held that what the landlord has done was only at his risk. While exercising the power of restitution, it is not the law that an identical building should be given. It is only restoring the parties to their original position. That means, the landlord and tenant relationship continues, and the tenant is entitled to be in possession of the property, which he was deprived of. That is also the reason why the words 'so far as may be' have been used in Section 144, C.P.C. which should also be taken into consideration while exercising the inherent powers.
31. In this connection, an old Bench decision of this Court also requires consideration, though that is not exactly on the point. The same is reported in Velusami Naicker v. Bommachi Naicker, 25 M.L.J. 324. In that case, after getting delivery of possession of the property, improvements were effected. When restitution was ordered, the value of improvements was claimed. At page 328 of the judgment, their Lordships repelled the contention and held thus:
... We cannot accept the contention that a party to the litigation is entitled to receive for the improvements made by him pendente lite with the full knowledge of the risk he runs in doing so. It cannot be held that he made the improvements bona fide when he was bound to be fully aware that the decree that he had obtained might be reversed in appeal...
The new building which the landlord has put up can only be said as improvement. Naturally, ignoring the improvements which were effected in" the property, landlord is bound to restore the same to the tenant.
32. The above decision was followed by the Mysore High Court in Anusuya Bai v. Ramaiah Raju A.I.R. 1961 Mys. 238.
33. In view of the above settled legal principles, I do not think that the order of the Court below could be sustained.
34. None of the grounds urged by learned Counsel for respondent could be an answer to prevent the petitioner from getting restitution so long as the ex parte decree was set aside.
35. In the result, I set aside the order of the court below and allow this revision. The court below is directed to restore M.P. No. 947 of 1993 in E.P. No. 288 of 1993 in R.C.O.P. No. 3678 of 1988 to its file and direct the respondent herein to redeliver possession of the demised premises to the petitioner. Court below is directed to see that possession of the property is handed over to the petitioner without fail, within a week from the date of receipt of a copy of this order. I also make it clear that who ever is in possession of the premises in question will have to be dispossessed, since their claim is only under the respondent herein, and the court below will see that possession of the building is given to the petitioner herein, and, for this purpose, it shall not insist on the petitioner herein to file any application. For implementing this order, it can also order necessary police aid to the Bailiff. Immediately after carrying out the above direction within the stipulated time, court below should report to this Court. The civil revision petition is allowed as indicated above, however, without any order as to costs. C.M.P. No. 13910 of 1997 for injunction is dismissed.