Judgment:
Leila Seth, J.
(1) The only point urged in this Civil revision petition is, whether a Rent Controller has jurisdiction to order restitution of premises.
(2) The facts arc set out briefly. The petitioner, Ms. Jaswant Kaur the landlady of premises No. 8962 Naya Mohalla, Pul Bangash, Subzi Mandi, Delhi. Mr. Tikarn Dass the respondent is the tenant of the laid premises.
(3) The said landlady filed an eviction petition on the ground of bonafide requirement. The tenant did not appear and on 4th May, 1981, an ex parte eviction order was passed by the Additional Rent Controller. As a consequence, on 12th March, 19K3, the landlady took possession of the abovementioned premises from the said tenant.
(4) However, on 5th April, 19K3, the tenant. Mr. Tikarn Dass moved an application, under Order Ix rule 13, Civil Procedure Code for setting aside the ex parte order of 4th May, 1981 The tenant's said application was allowed by the Additional Rent Controller on 15th April, 1985.
(5) Thereafter, on 26th April 1985, Mr. Tikam Dass moved an application, under Sections 144 and 151, Civil Procedure Code, for restitution of the abovementioned premises. He also moved an application for leave to defend.
(6) In the meanwhile, the landlady filed a petition in this Court, under Article 227 of the Constitution of India, challenging the order of the Additional Rent Controller, dated 15th April, 1985, setting aside the ex parte order dated 4th May, 1981. This petition of the landlady was dismissed by this Court on 2nd August, 1985.
(7) On 8th January, 1986, the Additional Rent Controller allowed the tenant's application for leave to defend and also directed the landlady to restore possession of the disputed premises to the tenant on or before 4th February, 1986.
(8) The landlady then, filed the present civil revision petition which was admitted on 31st January, 1986 and an ex parte interim order staying the restitution of possession was passed on the same date.
(9) Both counsel requested that instead of hearing the application for stay independently, the civil revision itself should be heard and disposed of and the matter in controversy regarding restitution be settled.
(10) I accordingly proceed to do so.
(11) The Additional Rent Controller while ordering restitution had observed, that restitution was a natural corollary to the setting aside of the ex parte order of eviction. He also rejected the contention of the landlady that a Rent Controller has no jurisdiction to order restitution. He referred to Section 37(2) of the Act, which provides, that the Controller shall while holding an inquiry in any proceeding before him, follow, as far as may be, the practice and procedure of a court of small causes. Order L of the Civil Procedure Code refers to certain provisions of the Civil Procedure Code which are inapplicable to small cause courts. Since Section 144 of the Civil Procedure Code is not mentioned, the Additional Rent Controller observed that the procedure and practice of Section 144 was applicable and the Rent Controller could obviously exercise power under this provision.
(12) Mr. Sachdeva, appearing for the landlady, contends, that, as there is no specific provision in the Delhi Rent Control Act providing for restitution, the Rent Controller has no jurisdiction to direct restitution. In this connection, he relies on two decisions, being A Arunagiri Nadar v. S.P. Rathinasami Air 1971 Mad 162 and Syed Aiaz Khan and others v. Mohammad Rafiq and others, : AIR1974All178 .
(13) Mr. Y.K. Sabharwal, appearing for the tenant, on the other hand, contends that the Rent Controller has jurisdiction to order restitution and that, ai far as this court i(r) concerned, the matter is no longer rest integra. He says that this point has been considered in various decisions of this court, and in particular relies on three decisions. Chronologically, the first, is the decision of Hon'ble Mr. Justice DK. Kapur, as he then was, in Khairati Ram Nayyar v. K.B. Advani : 8(1972)DLT522 the second is the decision of Hon'ble Mr. Justice Avadh Behari Robtagi in Jugal Kishore v. Maharaf Bhadur, Sao No. 188 of 1978, reported as a short note in 1978 Rlr (Note) 80 ; and the third is a decision of a division bench of this Court in Shamlat v. Jaiwant Kaw etc. 1980 Rlr 362.
(14) In the case of Khairati Ram Nayyar (supra) the learned Judge referred to the decision of the Madras High Court in Arunagiri Nadar (supra) but did not accept it. Hon'ble Mr. Justice D.K. Kapur observed therein that the 'wording of Section 144 of the Code of Civil Procedure is mandatory. Once the eviction order had been let aside, any advantage obtained by the landlord from that order bad to be restored to the tenant. This meant that the tenant had to be put back in possession. Any other interest created by the landlord in the meantime would be subordinate to the tenant's rights regarding restitution.'
(15) He further held that the Controller did have jurisdiction to pass an order under Section 144 of the Code of Civil Procedure. Taking a cue from the decision of the Supreme Court in Mahijibhai Mohanbhai Barot v. Paul Maitibhai Gokalbhai, : [1965]2SCR436 , the learned Judge opined that 'if a Rent Controller can for the purpose of executing an appellate eviction order passed by say, the Rent Control Tribunal put back the tenant in possession, I cannot see why he cannot do likewise if the order sought to be executed is an order letting aside an eviction order which has already been executed. Prima Facic, the order setting aside an eviction order is also an order of the Controller which is executable by the Controller.'. The learned Judge further goes on to say, 'In my view the decision of the Supreme Court lays down that an application for restitution has to be treated as an application for execution.'
(16) In the case of JugalKishore (supra), Hon'ble Mr. Justice Avadh Behari observed that the 'principle of restitution is contained in Section 144, C.P.C. The doctrine of restitution is that on the reversal of a decree the law imposes an obligation on the party to a suit who received the benefit of an 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 at the time when court by its erroneous action had displaced them from.' The learned Judge further observed that, once, 'the ex parte order of eviction has been set aside, the landlords is not entitled in law to continue to remain in possession of the premises which he had secured in execution of the order. He cannot be permitted to earn profit from the premises to which, on the letting aside of the ex parte order, the tenant had at once become entitled. The landlord obtained possession under an order of the court which was subsequently found to be erroneous. In equity he should not be allowed to retain the benefit which he bad obtained under the wrong order.'
(17) In fact, the learned Judge opined that the 'transferee of the party, who obtained the advantage, would be within the reach of the arm of the Court. The party that has taken the benefit is under an obligation to restore possession and the Court is fully empowered, and 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.'
(18) In Sham Lot's case (supra), Hon'ble Mr. Justice Prakaih Narain, as he then was, speaking for the court opined as follows :-
'IN our view on a reading of Section 144 Civil Procedure Code . along with Sections 41 and 42 of the Rent Control Act there can be no doubt that inter parties on an earlier order of the Court being varied by an appellate court, the order of the appellate court or the varied order has to be given effect to and parties to the litigation cannot be heard to plead any excuse.'
(19) He further observed that parties to the lis cannot be heard to raise any objection against compliance of the appellate order. A party entitled to restitution must be granted that as against the opposite party in the suit or the original litigation.
(20) However, he joined issue with the observations of Hon'bic Mr, Justice Avadh Behari Rohtagi, abovementioned, on the question as to whether a bonafide third party would be bound. He opined that, 'A bona fide purchaser or transferee stands on a different footing. His right being an independent right cannot be disturbed in equity or in law. Even Section 144 C.P.C. does not warrant it.' Further, that 'Section 144 Civil Procedure Code . is available only inter parties i.e. parties to the original lis.'
(21) I need not dilate on this aspect, as in the present case, the question of third party rights is not in dispute. In any case, a perusal of the abovementioned judgments makes it abundantly clear, that as between the parties to the lis i.e. the landlord and the tenant, there is no doubt that restitution can and should be ordered. In fact, as noticed above, a division bench of this court, was of the view, that a party to the litigation cannot be heard to plead any excuse. In this view of the matter, I feel it is unnecessary to refer to any further decisions.
(22) Mr. Sachdeva, however, presses for a reference to the full bench decision of the Allahabad High Court in Syed Aiaz Ah Khan (supra). It is true, that in the said case, it has been observed that the provisions of Section 144 and 151, Civil Procedure Code, apply only to courts and not to authorities/Tribunals. However, this observation has been qualified to. the extent, 'unless, there is an express statutory provision.'. It appears that in the U.P. (Temporary) Control of Rent and Eviction Act, 1947, there was none.
(23) In the present case, Section 42 of the Delhi Rent Control Act specifically provides that an 'order made by the Controller or an order passed on appeal under this Act shall be executable by the Controller as a decree of a civil court and for this purpose, the Controller shall have all the powers of a civil court.'
(24) In this view of the matter, it is clear that the Controller has the power to execute its decree and order restitution. I hold accordingly.
(25) For the reasons outlined above, the civil revision petition is dismissed, but I make no order as to costs.