Judgment:
* IN THE HIGH COURT OF DELHI AT NEW DELHI % Order Pronounced on: September 18, 2013 + CM(M) No.620/2013 & C.M. No.9418/2013 SMT NEENA BHAGAT & ORS ..... Petitioners Through Mr.R.K.Mehta, Adv. with Mr.Elangbam P.S., Adv. versus SRD. LAJ SHARAN KAUR & ORS ..... Respondents Through Mr.Satish Sahai, Adv. with Mr.Ankur Aggarwal, Adv. for R-1, 2 & 4. CORAM: HON'BLE MR. JUSTICE MANMOHAN SINGH MANMOHAN SINGH, J.
1. By this order, I propose to decide the present petition filed by the petitioners under Article 227 of the Constitution of India assailing the order dated 7th May, 2013 whereby the application under Section 144 CPC filed on behalf of respondents No.1, 2 & 4 for passing an order for restitution of the possession of the premises bearing No.51, R.B. Boota Singh Building, Khyber Pass, near Timarpur, Delhi (hereinafter referred to as the ―Suit Premises‖) was allowed and the petitioners were directed to restore and put the said respondents into the possession of the suit premises.
2. Few relevant facts which are necessary to be mentioned for the purpose of deciding the present petition are that in the year 2003, Smt.Jasbir Kaur, the mother of the petitioners, filed a suit for possession and mesne profits against the respondents, bearing Suit No.61 of 2003, on the ground that the status of the respondents is that of trespassers. Smt.Jasbir Kaur died. An application under Order XXII, Rule 3 CPC was filed and the petitioners were substituted in place of Smt.Jasbir Kaur. As per the petitioners, the respondents despite of sufficient service did not appear and they were proceeded ex parte vide order dated 24th July, 2003. After recording the evidence, an ex parte judgment and decree was passed on 24th December, 2009 in favour of the petitioners and against the respondents.
3. An execution petition was filed by the petitioners in the year 2010 for execution of the ex parte decree being Execution Case No.14 of 2010. The petitioners obtained the possession of the suit premises on 18th July, 2012 through the Court process and police help.
4. It is the case of the petitioners that after obtaining the possession in the execution proceedings, the suit premises was renovated by the petitioners incurring substantial expenditure and thereafter, the same was leased out on 1st August, 2012 to Sh.S.Hardeep Singh Chadha who is in occupation of the premises in question.
5. Respondents No.1, 2 & 4 on 26th August, 2012 filed an application under Order IX, Rules 7 & 13 CPC read with Section 5 of the Limitation Act, for setting-aside the ex parte judgment and decree dated 24th December, 2009, mainly, on the ground that they were not served and the service was not proper upon them. Along with the said applications, an application under Section 144 read with Section 151 CPC for restitution of the possession of the suit premises was also filed. The same was duly replied by the petitioners.
6. By order dated 19th January, 2013, the learned trial Court condoned the delay and allowed the application under Order IX, Rules 7 & 13 CPC and the judgment and decree passed on 24 th December, 2009 was set aside. The petitioners thereafter filed a petition under Article 227 of the Constitution of India challenging the order dated 19 th January, 2013 before this Court, being CM(M) No.230/2013. The said petition was dismissed by order dated 26th February, 2013.
7. By the impugned order dated 7th May, 2013, the learned trial Court allowed the application under Section 144 CPC filed by respondents No.1, 2 & 4 and directed the petitioners to restore and put the said respondents into possession of the suit premises. The said order was challenged by the petitioners by way of filing the present petition. Along with the petition, the petitioners have also filed an application for stay of the execution of the impugned order.
8. When the matter was taken up on 1st July, 2013, it was informed by the learned counsel for the petitioners that the petitioners have filed a Special Leave Petition before the Supreme Court against the order dated 26th February, 2013 passed by this Court whereby their petition being CM(M) No.230/2013 was dismissed which was filed against the order dated 19th January, 2013 whereby the application of the respondents No.1, 2 & 4 under Order IX, Rules 7 & 13 CPC was allowed.
9. Notice of this petition was not issued. However, the learned counsel for respondents No.1, 2 & 4 was appearing from time to time. On 29th August, 2013, it was informed by the learned counsel for the parties that the Supreme Court has also dismissed the Special Leave Petition filed by the petitioners against the order dated 26th February, 2013.
10. Mr.R.K.Mehta, learned counsel for the petitioners has made a statement at bar that the possession of the suit property is now with the petitioners. He states that Sh.S.Hardeep Singh Chadha is not in occupation of the suit property. His main submission now is that it is not mandatory for this Court to pass the order of restitution under Section 144 CPC unless the Court feels that the facts and circumstances are required in order to meet the ends of justice. He states that the suit for possession was filed against the respondents in the year 2003 and the respondents avoided the service for six years and ultimately, the decree was passed in December, 2009. The possession of the suit property was also taken from the respondents on 18th July, 2012. Thus, in the interest of justice, equity and fair play, this Court should not confirm the impugned order for restoration of the possession to the respondents, coupled with the fact that it is the respondents‘ statement in the application under Order IX Rule 7 and 13 CPC that no summons by ordinary process or by registered post was ever tendered or intimated to the respondents as they were not residing or available at the said address. Thus, in equity now they are not entitled for possession by allowing the application for restitution.
11. Mr.Mehta makes his suggestion that instead of compliance of the impugned order, this Court may expedite the suit proceedings and the order be passed to keep the possession with the petitioners who had already spent amount on renovation. He also tries to refer the provisions of Section 144 CPC before amendment of the CPC as well as Section 144 in the amended provisions of CPC. His submission is that prayer made in the application for restitution of the suit property filed by the respondents No.1, 2 & 4 should not be granted under the amended provisions of Section 144 CPC, which reads as under:―144. Application for restitution.– (1) where and in so far as a decree or an order is varied or reversed in any appeal, revision or other proceedings 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 property consequential on such variation; reversal, setting aside or modification of the decree of the decree or order. Explanation: For the purposes of sub-section (1), the expression ―Court which passed the decree or order‖ shall be deemed to include,— (a) where the decree or order has been varied or reversed in exercise of appellate or revisional jurisdiction, the Court of first instance; (b) where the decree or order has been set aside by a separate suit, the Court of first instance which passed such decree or order; (c) where the Court of first instance has ceased to exist or has ceased to have jurisdiction to execute it, the Court which, if the suit wherein the decree or order was passed were instituted at the time of making the application for restitution under this section, would have jurisdiction to try such suit. (2) No suit shall be instituted for the purpose of obtaining any restitution or other relief which could be obtained by application under sub-section (1).‖ 12. Mr. Mehta, learned counsel in support of his submissions referred the following judgments:(i) Union Carbide Corporation and others vs. Union of India and others, (1991) 4 Supreme Court Cases 584, relevant para whereof reads as under:- ―147. Strictly speaking no restitution in the sense that any funds obtained and appropriated by the Union of India requiring to be paid back arises. The funds brought in by the UCC are deposited in the Reserve Bank of India and remain under this Court‘s control and jurisdiction. Restitution is an equitable principle and is subject to the discretion of the Court. Section 144, Code of Civil Procedure, embodying the doctrine of restitution does not confer any new substantive right to the party not already obtaining under the general law. The section merely regulates the power of the Court in that behalf.‖ (ii) South Eastern Coalfields Ltd. vs. State of M.P. and Others, (2003) 8 Supreme Court Cases 648, relevant para whereof reads as under:―26. 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, variation 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., AIR 1985 SC 39 In law, the term ―restitution‖ 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) compensation or reparation for the loss caused to another. (See Black's Law Dictionary, 7th Edn., 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 defendant is guilty of a non-tortuous misrepresentation, the measure of recovery is not rigid but, as in other cases of restitution, 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 recognized in Section 144 of the Code of Civil Procedure, 1908. Section 144 of the CPC speaks not only of a decree being varied, reversed, set aside or modified but also includes an order on a par with a decree. The scope of the provision 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 final 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 all expediency in demanding compensation and being placed in the same situation in which it would have been if the interim order would not have been passed against it. The successful party can demand (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 unless it feels that in the facts and on the circumstances of the case, the restitution far from meeting the ends of justice, 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.‖ 13. Mr. Mehta‘s further submission is that even at the time of taking the possession from the respondents, nobody was available at the site. Therefore, it is evident that the respondents were not residing at the suit premises and in view of the settled law, when the restitution is an equitable principle and is subject to the discretion of the Court, Section 144 CPC be not invoked in the facts and circumstances of the present case.
14. Mr.Satish Sahai, learned counsel appearing on behalf of respondents No.1, 2 & 4 has refuted all the arguments of Mr.Mehta. He states that the order dated 19th January, 2013 to set-aside the ex parte judgment and decree is upheld up to the Supreme Court. It was the obligation of the petitioners to restore back the possession to the respondents. He further states that the submission of Mr.Mehta has no force that the respondents were not residing at the given address at the time of alleged refusal of notice/summons, as alleged by the petitioners. He states that the petitioners are reading the statement made in the application under Order IX, Rules 7 & 13 CPC in a different context. Mr.Sahai states that the respondents No.1, 2 & 4 were very much residing at the suit premises. He states that even when the possession was taken by the petitioners, respondent No.1 Srd. Laj Sharan Kaur was present which fact was recorded by the Bailiff in his report dated 18th July, 2012 which is placed on record by the respondents, along with the list of documents dated 9th September, 2013. He further states that the said plea was not taken by the petitioners in the reply to the application under Order IX, Rules 7 & 13 CPC, nor in the reply to the application filed by respondents No.1, 2 & 4 under Section 144 CPC.
15. He further argues that the conduct of the petitioners is not at par, as in the present petition, the statement was made by the petitioners that after taking the possession from the respondents through bailiff the petitioners have leased out the suit premises to Sh.S.Hardeep Singh Chadha on 1st August, 2012, although nothing was mentioned in the reply to the application filed by the respondents No.1, 2 & 4 under Section 144 read with Section 151 CPC, although now the petitioners are admitting before this Court that the possession is with the petitioners.
16. Mr. Sahai, learned counsel appearing for respondents has referred large number of decisions in support of his submissions. Some of them are referred as under : i) Kandan (died) and Others Vs. K. Periaswamy, AIR 2004 Madras 425. Relevant para 9 reads as under : ―9. In the instant case, it is not in dispute that the very decree made in O.S. No.408 of 1978 was set aside in view of the restoration of the suit. In such case, the Court has got a duty to enforce its obligation to restitute the property to the applicant who was deprived of his possession based on the decree or order, inasmuch as it is a settled law that whenever an ex parte decree or orders is set aside, the party who was dispossessed or evicted in pursuance of such ex parte decree or order is entitled to restitution forthwith, in spite of the fact that, ultimately, on merits, he might loose the cause; and that whenever an ex parte decree or order is set aside, no person who has entered into possession through the party obtaining the ex parte decree or order, can resist or obstruct restitution on the ground that he is a bona fide transferee.‖ ii) Mrs. Kavita Trehan & Anr. Vs. Balsara Hygiene Products Ltd., 1995 (1) PLR 315. Relevant para 24 read as under : ―24. The jurisdiction to make restitution is inherent in every court and will be exercised whenever the justice of the case demands. It will be exercised under inherent powers where the case did not strictly fall within the ambit of Section 144. Section 144 opens with the words ―Where and in so far as a decree or an order is varied or reversed in any appeal, revision or other proceedings or is set aside or modified in any suit instituted for the purpose….‖. The instant case may not strictly fall within the terms of Section 144, but the aggrieved party in such a case can appeal to the larger and general powers of restitution inherent in every Court.‖ iii) Viswanath Bogar Vs. Gyarasilal Agarwalla. 2006(2) GLT 514. Relevant para 9 read as under : ―9. We find that the provisions of Section 141 CPC as well as Section 144 CPC, are included in part 9 of the Civil Code, providing for the Misc provisions and we do not find any substance in the submission that Order 9 Rule 13 proceeding is excluded from the purview of Section 144 CPC and that when an ex-parte decree is set aside under Order 9 Rule 13 CPC, the benefit of Section 144 CPC is not available and the same is available only when the said ex-parte decree is set aside in a separate suit. If the above proposition is accepted, it will provide for multiplicity of proceeding, whereas the Civil Procedure Code is amended to grant relief expeditiously, avoiding multiplicity of proceedings.‖ iv) Pushpa Ahuja Vs. Shri Sunil Nagpal & Ors., (2011) 163 PLR 117. Relevant portions of paras 7 and 8 read as under : ―7. Hence, the first argument raised by learned counsel for the petitioner is totally misconceived in view of the decision of the Supreme Court in the case of Kavita Trehan (Supra) in which it has been held that 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 even where the case do not strictly fall within the ambit of Section 144 of the CPC. In the case of Shri Subash Chander (Supra) and Shri Jaswant Kaur (Supra), it has been held that the Rent Controller has jurisdiction to restore possession to tenant in exercise of powers under Section 144 of CPC. Similar view has been expressed in the case of Maya Ram (Supra) in which it is held that if the Executing Court also happens to be an authority under the Rent Act, it will not affect its jurisdiction and it can ultimately pass the order of restitution under Section 144 of the CPC or even ex-debito justiciae. The second argument raised by learned counsel for the petitioner is that having lost in the ejectment petition filed by the landlord earlier, the tenants would at the most get the possession but not status of tenant and are thus, liable to pay the mesne profit. To my mind, this argument is totally misplaced because the relationship of landlord and tenant have never come to an end as in the earlier petitions the ejectment order has not been converted into final order and as such the relationship is continuous and is subsisting. The last and final argument is that soon after the ejectment of the tenants the landlord has inducted another tenant, therefore, third party right has crept in and possession cannot be ordered to be delivered. This argument of the learned counsel for the petitioner is contrary to the decision of the Supreme Court in the case of Gurjoginder Singh (Supra) in which it has been held that ―we are unable to share the view expressed by the High Court as in our considered opinion, 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 decree holder – 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‖.
8. Similarly, in the case of Basant Ram and others (Supra), it was held by this Court that once a person is held entitled to restitution of possession of property in dispute, he will have the right to get back such property in the same condition as it was already in the possession of the other person and improvement in the property will have no affect as it would not defeat the rights of the respondent merely on the ground that the property has been sold. It was held that the purchaser will be bound by the order passed against the original landlord.‖ In view of the abovesaid settled law, the present case is clearly covered within the four corners of the provisions of Section 144 CPC. The application under Order 9 Rule 13 CPC which is allowed is included in the expression of ‗other proceedings‘. As far as the judgments referred by the learned counsel for the petitioners are concerned, it is true that restitution is an equitable principle and is subject to the discretion of the Court. In the present case, the learned trial court has already exercised its discretion by ordering to restore and put the said respondents into possession of the suit premises. The question before this court is whether finding arrived at by the learned trial court by exercising discretion can be reversed in the petition under Article 227 of the Constitution of India.
17. Therefore, the word ‗other proceedings‘ appearing in Section 144 CPC includes a proceeding under Order 9 Rule 13 CPC and it cannot be confined or limited to an application under Article 226 and 227 of the Constitution of India. The argument addressed by Mr. Mehta has hence no force.
18. It is well settled principle of law that the High Court while exercising its power under Article 227 of the Constitution of India, cannot proceed to act as a Court of appeal by interfering in mere errors of finding fact which requires re-appreciation and re-weighing of evidence unless it results in manifest miscarriage of justice as a Court of appeal. The said power under Article 227 of the Constitution of India has to be exercised sparingly and circumspectly to ensure that decision making done by lower Court and tribunal below is within their bounds and limits. In the case of Bathumal Raichand Oswal vs. Laxmi Bai R. Tarta reported in 1975 (1) SCC 858, the Supreme Court speaking through Bhagwati J.
as his Lordship then was observed thus: ―If an error of fact, even though apparent on the face of the record, cannot be corrected by means of a writ of certiorari it should follow a fortiori that it is not subject to correction by the High Court in the exercise of its jurisdiction under Article 227. The power of superintendence under Article 227 cannot be invoked to correct an error of fact which only a superior Court can do in exercise of its statutory power as a Court of appeal. The High Court cannot in guise of exercising its jurisdiction under Article 227 convert itself into a Court of appeal when the legislature has not conferred a right of appeal and made the decision of the subordinate Court or tribunal final on facts‖ (emphasis supplied) The Supreme Court in the case of Bathumal Raichand (supra) approved the dictum of Morris L., J.
in Res v. Northumberland Compensation Appellate Tribunal, 1952 All England Reports 122. In the case of State of Maharashtra vs. Milind & Ors., 2001 (1) SCC 4, the Supreme Court observed: ―The power of the High Court under Article 227 of the Constitution of India, while exercising the power of judicial review against an order of inferior tribunal being supervisory and not appellate, the High Court would be justified in interfering with the conclusion of the tribunal, only when it records a finding that the inferior tribunal's conclusion is based upon exclusion of some admissible evidence or consideration of some inadmissible evidence or the inferior tribunal has no jurisdiction at all or that the finding is such, which no reasonable man could arrive at, on the materials on record.‖ (Emphasis supplied) Again in the case of State vs. Navjot Sandhu, (2003) 6 SCC 641, the Supreme Court observed: ―Thus the law is that Article 227 of the Constitution of India gives the High Court the power of superintendence over all Courts and tribunals throughout the territories in relation to which it exercises jurisdiction. This jurisdiction cannot be limited or fettered by any Act of the State Legislature. The supervisory jurisdiction extends to keeping the subordinate tribunals within the limits of their authority and to seeing that they obey the law. The powers under Article 227 are wide and can be used, to meet the ends of justice. They can be used to interfere even with an interlocutory order. However, the power under Article 227 is a discretionary power and it is difficult to attribute to an order of the High Court, such a source of power, when the High Court itself does not in terms purport to exercise any such discretionary power. It is settled law that this power of judicial superintendence, under Article 227, must be exercised sparingly and only to keep subordinate Courts and tribunals within the bounds of their authority and not to correct mere errors. Further, where the statute bans the exercise of revisional powers it would require very exceptional circumstances to warrant interference under Article 227 of the Constitution of India since the power of superintendence was not meant to circumvent statutory law. It is settled law that the jurisdiction under Article 227 could not be exercised as the cloak of an appeal in disguise.‖ (Emphasis supplied) The decisions of Bathumal Raichand (supra), State vs. Navjot (supra) and State of Maharashtra Vs. Milind (supra) have been approved by Hon‘ble Justice C.K. Thakkar as his Lordship then was in the case of Shamshad Ahmad & Ors. vs. Tilak Raj Bajaj (D) By LRs. & Ors., 2008 (9) SCC 1. Upon careful reading of observations in the above referred cases, it can be safely said that the scope of judicial interference under Article 227 is well settled and the Court ceased of the proceedings under Article 227 cannot act as a Court of appeal and should interfere with the decision of the inferior tribunal or Court only to keep the authorities and Courts within their bounds and in the cases where it results into manifest miscarriage of justice and not in all other cases to correct mere errors. The power under Article 227 is thus discretionary in nature and can be exercised in the cases where the lower Court ignores material piece of evidence or considers some evidence which it ought not to have considered thereby resulting into injustice and not in cases where there are two views possible and the view adopted by lower Court is reasonable and plausible one and the High Court would be unjustified to interfere in such cases merely to arrive at different view in the matter as this would be re-appreciating the evidence on finding of facts which is the role of the appellate Court and not the supervisory Court acting under Article 227 of the Constitution of India.
19. In view of the abovesaid reasons, facts and circumstances of the present case, the impugned order does not suffer from any infirmity.
20. The petition is accordingly dismissed. (MANMOHAN SINGH) JUDGE SEPTEMBER 18 2013