S. Prabhavathi Vs. Rohini Kilaru and anr. - Court Judgment

Excerpt:
- - alternatively, learned counsel would urge that even if possession is directed to be redelivered, the order to demolish the structures on the suit schedule land is unsustainable especially when the defendants failed to plead as to when they were dispossessed by the plaintiff and as to when the construction took place on the suit schedule property. p-1 as well as ex. thus the plaintiff failed to prove prima facie case and in the absence of such criterion, she is not entitled to injunction. by reason of the amendment, section 144 of cpc was made applicable to a decree as well as an order. 12. it is now well settled that in the matter of restitution, section 144 of cpc is not exhaustive. as to the technical argument that the order is erroneous because it purports to have been passed.....orderv.v.s. rao, j.1. these two revision petitions arise out of the related proceedings in the suit and the parties are also same. hence, this common order. the petitioner is the plaintiff. she filed suit for injunction. in the suit being o.s. no. 1455 of 2004 on the file of the court of the additional junior civil judge (west and south), ranga reddy district, she also filed la. no. 3219 of 2004 for ad interim injunction. on 1 -12-2004, the trial court granted ex parte ad interim injunction but subsequently, by order, dated 14-12-2004, the trial court dismissed the application vacating the ex parte order. sometime thereafter defendants also filed application being i.a. no. 685 of 2005 before trial court under sections 144 and 151 of code of civil procedure, 1908 (cpc) seeking restoration.....

Judgment:
ORDER

V.V.S. Rao, J.

1. These two revision petitions arise out of the related proceedings in the suit and the parties are also same. Hence, this common order. The petitioner is the plaintiff. She filed suit for injunction. In the suit being O.S. No. 1455 of 2004 on the file of the Court of the Additional Junior Civil Judge (West and South), Ranga Reddy District, she also filed LA. No. 3219 of 2004 for ad interim injunction. On 1 -12-2004, the trial Court granted ex parte ad interim injunction but subsequently, by order, dated 14-12-2004, the trial Court dismissed the application vacating the ex parte order. Sometime thereafter defendants also filed application being I.A. No. 685 of 2005 before trial Court under Sections 144 and 151 of Code of Civil Procedure, 1908 (CPC) seeking restoration of possession by removing illegal constructions allegedly made by the plaintiff after obtaining ad interim ex parte injunction. The same was allowed by the trial Court on 19-10-2005. The plaintiff filed C.M.A. No. 1 of 2005 against order of the trial Court dismissing the injunction application and C.M.A. No. 204 of 2005 against the order of the trial Court directing the plaintiff to restore possession and remove the structures on the plaint schedule property. Both the civil miscellaneous appeals were dismissed by the Court of the Principal District Judge, Ranga Reddy, on 20-2-2006, by separate orders. C.R.P. No. 2146 of 2006 is filed against C.M.A. No. 1 of 2005 and C.R.P. No. 2145 of 2006 is filed against C.M.A. No. 204 of 2005. For the sake of convenience, the petitioner will be referred to as plaintiff and respondents as defendants.

2. The plaintiff pleaded that she is absolute owner of house bearing No. 8-7-180/9, plot No. 36 admeasuring 286.66 square yards (suit schedule) in survey No. 2063 of Old Boyenapalli village, that she acquired the same under registered gift deed executed by her father on 16-7-2003, that the property consists of two rooms with ACC sheets, that the plaintiff obtained building permission from Kukatapalli Municipality on 24-2-2004 but could not commence construction immediately due to paucity of funds and that when she commenced construction, defendants came to the suit schedule land on 30-11 -2004 and tried to prevent her from proceeding with the construction. She took similar pleas in her interlocutory application also.

3. Defendants opposed the applications. They allege that the premises with Door No. 8-7-180/9 relates to the property in Rajarajeswari Nagar of Kukatapalli, that the first defendant is the owner of the suit schedule property with Door No. 5-59/36 in Old Boyenapalli known as Samathanagar, that she purchased the property under registered sale deed, dated 6-8-1996 from Audil Pasha, that her vendor purchased the suit schedule property from G. Devender Reddy under registered sale deed, dated 22-1-1986, that the second defendant is an employee of South Central Railway, they also obtained permission from the employer, vide letter dated 7-1-1997, that the defendants have become members of Samathanagar Members Welfare Association, that the suit schedule property is open land without any structures thereon, that the plaintiff's father who was original owner and pattadar of the land sold away the land to Laxminath C. Seth on 24-9-1985 and delivered vacant possession of the property, and therefore, Balawantha Reddy had no right, title and interest over the suit schedule property and that he could not have executed gift deed in favour of the plaintiff. The first defendant also averred that Land Grabbing Case i.e., L.G.C. No. 77 of 1999 filed by the mother of the plaintiff against fifteen flat owners was also dismissed by the Special Court on 28-1-2004 and that the permission for construction, electricity service connection, obtained by the plaintiff relate to the property in Rajarajeswari Nagar.

4. Before the trial Court, the plaintiff marked Exs.P-1 to P-12 whereas defendants marked Exs.R-1 to R-23. On consideration of the issue of prima facie case and balance of convenience, the trial Court noticed that as per Exs. R-7 and R-8 Balawantha Reddy parted with the property under agreement of sale in favour of Laxminath C. Seth as held by Special Court in L.G.C. Nos. 77 and 130 of 1999 and that under Exs. R-10 to R-21, the first defendant is the owner who is in occupation of suit schedule property. The trial Court also observed that defendants being possessors under valid sale deed would suffer more harm if an injunction is granted in favour of the plaintiff and accordingly rejected the application.

5. The trial Court passed orders in I.A. No. 3219 of 2004 on 14-12-2004. The plaintiff filed C.M.A. No. 1 of 2005. When the same was pending before the Court of the Principal District Judge, the defendants filed I.A. No. 685 of 2005 on 11 -3-2005 seeking a direction to the plaintiff to deliver vacant possession to the defendants by removing the constructions that were made under cover and protection of the ad interim injunction. The learned Additional Junior Civil Judge, allowed the same on 19-10-2005 after having come to the conclusion that the plaintiff occupied the property and raised construction thereon though she was not in possession before filing the suit. Against the said order of the trial Court dated 19-10-2005, C.M.A. No. 204 of 2005 was filed before the Court of the Principal District Judge.

6. Learned Counsel for the plaintiff would submit that Ex.P-1 gift deed and Exs.P-7 and P-8 plan and building permission granted by the Municipality would prove prima facie case of the plaintiff and, therefore, the Courts below committed error in declining ad interim injunction in her favour. Learned Counsel also submits that defendants did not bring acceptable evidence in support of their case and, therefore, the Courts below ought to have accepted the case pleaded and proved by the plaintiff. In the case of restitution, learned Counsel for the plaintiff submits that even if the finding is against the plaintiff that she was not in possession before filing the suit, the Courts ought not have ordered restitution. According to the learned Counsel; Sections 144 and 151 of CPC do not confer such power on the Courts to order restitution at interlocutory stage. Alternatively, learned Counsel would urge that even if possession is directed to be redelivered, the order to demolish the structures on the suit schedule land is unsustainable especially when the defendants failed to plead as to when they were dispossessed by the plaintiff and as to when the construction took place on the suit schedule property.

7. Learned Counsel for the defendants submits that when the Courts below have considered the evidence regarding prima facie case and balance of convenience, and declined to grant injunction while exercising discretion, the same cannot be interdicted in a revision petition filed under Article 227 of Constitution of India. Secondly, learned Counsel would submit that when the Court comes to conclusion that by reason of its order a party to the proceedings has been prejudiced, the Court can always correct the situation by ordering restitution. The Court has such inherent power under Section 151 of CPC though not under Section 144 of CPC. He placed reliance on Arunachalam v. Pratapasimha Rajah AIR 1930 Madras 988, Cheni Chenchaiah v. Shaik Ali Saheb : AIR1993AP292 , Kavita Trehan v. Balsar Hygiene Products : AIR1995SC441 , Harishchandra Narayan Maurya v. Rajendraprasad Dargahi Varma 1997 AIHC 2588 (Bombay HC) and Jitendra v. Chiranji Lal 2000 AIHC 3301 (Rajasthan HC).

8. In the background of the facts and circumstances of the case, two points would arise for consideration. These are: whether the Courts below were justified in refusing ad interim injunction in favour of the plaintiff? Secondly, whether it is competent for the Court to grant restitution for a party at interlocutory stage without reaching of finality of the adjudication of the main suit?

9. In support of her injunction application, the plaintiff mainly relied on the registered gift deed executed by her father, Balawantha Reddy, on 3-7-2003 which was marked as Ex.P-1 as well as Ex.P-7 Building permission granted by Kukatpally Municipality dated 24-2-2004 and Ex. P-8 approved plan. The trial Court rejected these documents, placing reliance on Exs.R-7 and R-8, the judgment and decree of the Special Court under A.P. Land Grabbing (Prohibition) Act, 1982, in which it was held that Balawantha Reddy had parted with the property under agreement of sale in favour of Laxminath C. Seth. The appellate Court elaborately considered this aspect of the matter and came to the conclusion that when Balawantha Reddy himself had no title by reason of the transaction he entered into with Laxminath C. Seth, he could not have validly executed Ex.P-1 Gift deed in favour of his daughter. The inference and conclusion drawn by the Courts below, therefore, on prima facie considerations cannot be faulted. Further, the electricity bills produced by the plaintiff; Exs.P-7 and P-12- are found to be in respect of other property situated at Rajarajeswari Nagar. Thus the plaintiff failed to prove prima facie case and in the absence of such criterion, she is not entitled to injunction. When the plaintiff comes to the Court for permanent injunction, the entire burden lies on him/her to prove prima facie case, balance of convenience, irreparable loss and hardship. The weakness in the evidence of the defendants is of no avail to claim an order of injunction. Therefore, this Court does not find any infirmity much less grave error apparent on the face of record in the order passed by the learned District Judge. The first point is answered accordingly against the plaintiff.

10. Whether an application for restitution would lie in interlocutory proceedings? Section 144 of CPC deals with restitution. The same reads as under:

144. Application for restitution:- (1) Where and in so far as a decree or an order (High lighted portions were inserted by Central Amendment Act 66 of 1956) 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 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 (High lighted portions were inserted by Central Amendment Act 66 of 1956) 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.

Explanation,- For the purpose 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 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 would be obtained by application under Sub-section (1).

11. A plain reading of Section 144 of CPC would show that the provision as it stood prior to CPC Amendment Act 66 of 1956, did not apply to the proceedings at interlocutory stage. When a decree is varied or reversed in appeal or revision, the Court, which passed the decree, can order restitution whenever an application is made by the party, who is entitled to any benefit by way of a restitution. By reason of the amendment, Section 144 of CPC was made applicable to a decree as well as an order. Section 2(2) of CPC defines 'Decree' means the formal expression of an adjudication, which conclusively determines the right of the parties with regard to the matters in controversy in the suit. As per Section 2(14) of CPC, 'Order' means the formal expression of any decision of the civil court, which is not a decree. Therefore, an order necessarily refers to the formal expression of a decision by the Court in incidental, supplemental and other interlocutory proceedings. Therefore, in the opinion of this Court, Section 144 of CPC is also applicable at interlocutory stage and restitution need not wait till the matters in the suit are conclusively determined by the Court.

12. It is now well settled that in the matter of restitution, Section 144 of CPC is not exhaustive. There could be other situations where the Court is required to exercise its inherent power to cause restitution to be made to place the parties in the position, which they would have occupied, but for an interlocutory order. Secondly, the maxim 'Actus Curiae Neminem Gravabit' casts duty on the Court to ensure that no party gets undue advantage by its orders or no party is grossly prejudiced by its proceedings/orders. This view is also supported by the precedents cited at the Bar.

13. In Arunachalam v. Pratapasimha Rajah (supra), a Division Bench of Madras High Court considered this aspect of the matter and held as under:

As to the technical argument that the order is erroneous because it purports to have been passed under Section 144 and that that section will not apply because no decree has been varied or reversed, we are not satisfied that the principle of Section 144 is confined exclusively to matters in execution. The Privy Council has in Jai Barham v. Kedarnath Marwari AIR 1922 PC 269 : 69 IC 278 : 49 IA 351 : 2 Pat. 10 (PC) laid down that the power of restitution is inherent in the Court and should be exercised when necessary in order to do justice, This Court has so exercised that principle in a suit at a stage between preliminary decree and the final decree in a case, Cunnaiah Mudaly v. Rangaswami Mudaly (1918) 48 IC 7.

14. In Cheni Chenchaiah v. Shaik Ali Saheb (supra), the facts noticed by this Court are as follows. The petitioner therein filed suit on the file of the Court of the District Munsif for permanent injunction. He also filed an interlocutory application for temporary injunction, which was dismissed. The plaintiff filed interlocutory application along with miscellaneous Appeal and the appellate Court granted an order of injunction in the said application. In the meanwhile the defendants forcibly thrown out the belongings of the plaintiff and evicted him from the suit premises. Thereafter the defendants filed a Civil Revision Petition before this Court, aggrieved by the order of injunction granted by the appellate Court namely, the Court of Subordinate Judge. The said C. R. P. was disposed of by this Court ordering status quo with a direction to the Sub-Court to dispose of the C.M.A. itself. The C.M.A. was allowed and, therefore, the plaintiff filed an application under Section 144 read with 151 of CPC for restitution. The same was dismissed by the learned Subordinate Judge. Aggrieved by which the plaintiff filed CRP. A contention was raised before this Court that as the plaintiff was not dispossessed by virtue of any order of Court, restitution cannot be claimed under Section 144 of CPC and that the plaintiff should have recast a suit and not application under Section 144 of CPC. This Court rejected these contentions ordered restitution to the plaintiff as he was forcibly and unauthorisedly evicted by the defendants during the pendency of the proceedings. It was observed as under:. on a consideration of the decisions referred to above, it can be seen that in the absence of specific provision in the Code which deals with particular situation or unless there is any prohibition either express or implied, the Court is entitled to exercise its inherent powers under Section 151 of Code of Civil Procedure. In this case, as I stated above, Section 144 of CPC is not applicable to the facts of the case because possession was not taken by any order of the Court. There is no other provision, which applies to the facts of the case i.e., where the possession has been taken forcibly by a party during the pendency of the proceedings i.e., when the application is dismissed by the trial Court and before filing the appeal. In these circumstances, I agree with the contention of the learned Counsel for the petitioner that in such circumstances, the Court would be justified to do justice and put back the parties in the same position in which they were, but for the order of the trial Court by invoking the inherent jurisdiction. Therefore, I agree with the contention that the Court in exercise of its jurisdiction under Section 151 can grant restitution, even though Section 144 CPC may not strictly apply. That view of mine, as I have stated above, is supported by the two Division Bench decisions stated supra in State Government v. M. Jeevraj & Co. : AIR1973AP27 and P. Lingeswararao v. Venkata Subbarao 1966(2) An.W.R. 144.

15. The High Courts of Bombay and Rajasthan also took similar view in the decisions referred to supra. It is not necessary to refer to these decisions in detail. But a reference to Kavita Trehan v. Balsar Hygiene Products (supra) may be made. In this decision, the Supreme Court considered the question as to the scope of restitutionary jurisdiction of the Courts. The appellant firm was clearing and forwarding agents to the respondent. The principal terminated the agreement due to non-payment of large sums of commission amount. The appellant filed suit for declaration of the appellant's lien to an extent of about Rs. 16,00,000/- and obtained ex parte injunction directing the respondent not to interfere in the disposal of the stock by the plaintiff. The appellant then sold away the bulk of stocks under the authority of the Court's interim order and recovered a sum of Rs. 23,00,000/- when the goods were worth about Rs. 32,00,000/-. The suit was later transferred to Delhi High Court by order of the Supreme Court. The learned single Judge of Delhi High Court dismissed the suit as hit by Section 69(2) of Indian Partnership Act, 1932. The learned single Judge also considered the question of restitution of goods to the respondent or their money value. On that question, the learned single Judge directed the plaintiff to furnish security by way of an F.D.R. from a Nationalised Bank in the name of the Registrar of the Court. The view was confirmed by Division Bench. Before the Supreme Court, it was urged that Section 144 of CPC did not apply as no transfer of possession of any property pursuant to any order of the Court had taken place. It was also contended that Section 151 of CPC cannot be invoked in aid of jurisdiction that manifestly exist and cannot in itself be seen as a source of jurisdiction. The Supreme Court while observing that Section 144 of CPC incorporates only a part of the general law of restitution and not exhaustive, laid down as under:

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 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 the aggrieved party in such a case can appeal to the larger and general powers of restitution inherent in every court..... We have considered this submission of Sri Grover relying on Sakamma v. Eregowda (1974) 2 Kant. L.J. 357, that the mere fact that the suit for permanent injunction was dismissed resulting in the vacation of the interim order of injunction granted during its pendency, would not entitle the successful defendant to seek restitution under Section 144, C.P.C. That principle has no application in this case. In the case before us the injunction granted by the learned Senior Sub-Judge, Chandigarh, was not merely negative in terms interdicting interference from the respondent with the custody of the goods by the appellants; it went much further and expressly enabled the appellants to sell the goods, pursuant to this order, the appellants disturbed the status quo as on the date of the suit and sold away respondent's goods and converted them into money. The High Court while declining the prayer for payment of the sale proceeds to the respondent, however, sought to relegate the parties to the extent practicable, to the same position as obtained on the date of the suit. This the High Court did by directing furnishment of security to the extent of the value of the goods sold away under the cover of the interlocutory order. That an appeal filed against the said interlocutory order was withdrawn, does not, in our opinion make any difference. Upon dismissal of the suit, the interlocutory order stood set aside and that whatever was done to upset the status quo, was required to be undone to the extent possible. It is unfortunate that the learned Sub-Judge, Ist Class made an order which, we think, ought not to have been made. If the Trial Judge, felt that it was in the interest of justice that the goods required to be disposed of, he should have ordered the sale by or under the supervision of a Commissioner of the court ensuring that the sale proceeds were under the court's control.

16. Restitutionary law has many branches. When restitutionary claims are to be found in equity as well as in law in many situations and in many areas, an attempt to trace power of restitution only to Section 144 of CPC is to ignore the inherent power of the Court to do complete justice between the parties. This power can be exercised even in interlocutory matters. When a party to the proceedings in the guise of an ex parte order gets an undue advantage to which he was not entitled to when the case was not filed, it is the duty of the Court to place the parties in the decision (sic. position) which they would have occupied but for the order of the Court. In the present case, as found by the appellate Court based on the two photographs, Exs.R-22 and R-23, which were not disputed by the plaintiff, the plaintiff highhandedly constructed compound wall and other structures on the suit schedule and when she failed to prove her prima facie case of being in possession on the date of filing the suit, the inference drawn by the Courts below is unassailable. It was proper for any Court to place the defendants in the position, which they would have occupied before filing the suit. In that view of the matter this Court does not find any error apparent on the face of record requiring correction.

17. In the result, for the above reasons, both the Civil Revision Petitions are dismissed with costs.