V. BABULAL v. M. K. M. SHARIFF — 1980 DIGILAW 358 (KAR)

K. A. SWAMI, J. ( 1 ) THESE three revision petitions are connected. The parties and the subject matter of the litigation are also the same- Therefore, these civil revision petitions are disposed of by this common order. ( 2 ) CIVIL Revision Petition 3511 of 1980 and Civil revision petition 3418 of 1980 are directed against the order dated 6th October 1980 passed by the learned District Judge, Mysore, in h. R. C. R. P. 110 of 1980 modifying the order dated 16th August 1980 passed by the Principal First Munsiff, mysore, in Mis. No. 40 of 1980. ( 3 ) CIVIL revision petition 3419 of 1980 is directed against the order dated 6th October 1980 passed by the learned District Judge, Mysore, in h. R. C. R. P. 119 of 1980 confirming the order dated 30th August 1980 passed by the learned Principal First Munsiff, mysore, in H. C. R. No. 442 78. ( 4 ) THE facts necessary for the purpose of deciding the contentions raised in these civil revision petitions are as follows: - the petitioner in civil revision petition No. 3511 of 1980 is the landlord of the suit premises and the respondent is the tenant of the same. The petitioner-landlord has initiated the proceeding for eviction against the respondent in H. R. C. 442 of 1978 for recovery of possession of the suit premises on the ground that he bona fide and reasonably requires the; suit premises for his personal occupation. An ex parte order of eviction came to be passed on 17-10-1978 and that order came to be confirmed by the district Judge on 23-5-1979 in HCRP 115 of 1978. This order of the learned district Judge was challenged before this Court in C. R. P. 1394 of 1975 which was allowed by this Court on 8-2-1980 and the order of the District judge as well as that of the Munsiff were set aside and the case came to be remitted to the Munsiff court for deciding H. R. C. 442 of 1978 afresh and in accordance with law- Pursuant to the order of remand, the H. R. C. 442 of 1978 has been taken on file by the learned Munsiff, Mysore and the same is pending. During the pendency of this proceeding the landlord gqt, the order of eviction, executed on 26-5-79 and obtained possession of the suit premises. During the pendency of this proceeding the landlord gqt, the order of eviction, executed on 26-5-79 and obtained possession of the suit premises. ( 5 ) IN view of the order passed by this Court setting aside the order of eviction, the tenant has filed an application which is registered as Mis. No. 40 of 1980 under Section 144 read with Sec. 151 of the Code of Civil procedure for restitution. That application is resisted by the landlord on the ground that the same is not maintainable; that he has effected improvements in the suit premises after obtaining possession of the same and as such, the petitioner is not entitled for restitution. During the pendency of the restitution petition, the tenant has also filed an, application in H. R. C. 440 of 1978 for staying all further proceedings of the case pending the disposal of Misc. 40 of 1980. The learned Munsiff has allowed Mis. 40 of 1980 and has rejected I. A. No. 2 filed in H. R. C. 440 of 1978. Consequently, the landlord preferred the h. R. C. R, P. 110 of 1980 against the order directing restitution and the tenant preferred HRCR. P. 119 of 1980 against the order rejecting i. A. 2 filed in HRC 440178 before the district Judge, Mysore. By a common order dated 6-10-1980 the learned district Judge has modified the order passed in Mis. 40 of 1980 holding that the restitution should be ordered only on condition that the petitioner-tenant deposits Rs. 2,500 to be paid to the landlord and has confirmed the order dismissing LA. 2 filed in HRC 440 of 1978. ( 6 ) SRI Manohar Rao, Jagirdar, learned Counsel appearing for "the petitioner in C. R. P. 3511/80, submitted that in view of the fact that the landlord had obtained possession in execution of the order of eviction and after obtaining possession he had also made considerable improvements by spending Rs. 11,960 and the original cas?; was ready for hearing, therefore, in such a situation, the restituton should not have been ordered as the same would cause great hardship and loss to the landlord. It was also sub- mitted that the interest of justice and equity did not. in the instant case call for an order of restitution. 11,960 and the original cas?; was ready for hearing, therefore, in such a situation, the restituton should not have been ordered as the same would cause great hardship and loss to the landlord. It was also sub- mitted that the interest of justice and equity did not. in the instant case call for an order of restitution. It was further contended that the, application filed under Sec. 144 read with Sec. 151 of the Code of Civil Procedure. , was not maintainable because the court functioning under the provisions of the Karnataka Rent Control Act, 1961 (hereinafter referred to as the act) had no jurisdiction to exercise the power under Sec. 144 of the Code of Civil Procedure; that Rule 35 of the rules framed under the Act, did not enable the court to exercise the power under Sec. 144 of the Code of Civil procedure. ( 7 ) IN reply to the contention of Sri manohar Rao Jagirdar, Sri V. Tara- ii karam, learned Counsel for the tenant, submitted that the power of restitution was inherent in every court of justice inasmuch as no injury should be caused by reason of the wrong order passed by a Court and when a wrong order was set aside by the Superior court, the party obtaining the order by the Superior Court was entitled for restitution as a matter of right; that the right of restitution accrued to the petitioner tenant on the passing of the order by the superior Court. Regarding the amount of Rs. 2,500/- directed to be paid by the tenant, it was submitted by the learned counsel that the subsequent improve- ment alleged to have been made by the landlord was not pursuant to the order of the Court; th'at it was the making of the landlord himself and for that, the tenant should not be held to be liable. It was also submitted that the provisions contained in Sec. 14,4 of the Code of Civil Procedure were to, the effect that the restitution should be ordered as far as possible to the original position as it stood when the wrong order was passed. Regarding the order rejecting LA. It was also submitted that the provisions contained in Sec. 14,4 of the Code of Civil Procedure were to, the effect that the restitution should be ordered as far as possible to the original position as it stood when the wrong order was passed. Regarding the order rejecting LA. 2, it was submitted by the learned Counsel for the landlord that the two proceedings being independent, it was not necessary nor could it be stated as a principle of law that the Court must stay the eviction proceeding pending proceeding for restitution. It was also submitted that the Court below, on valid reasons had refused to stay the eviction proceeding and an order refusing to stay the proceeding being one passed in exercise of the discretion and under the circumstances of the case, it could not be said that there, was a wrong exerise of jurisdiction and as such, the order was not liable to be interfered with under Sec. 115 of the code of Civil Procedure especially when it had been confirmed by the learned District Judge. Sri Tarakram, learned Counsel for the tenant, further submitted that unless the proceedings on the original side were stayed, it was not possible for the tenant to have the restitution and a mere passing of an, order for restitution and allowing the original proceedings to go on without effecting actual restitution before proceeding with the original proceeding it would not be possible for the tenant to get possession and it would not serve any purpose- ( 8 ) HAVING regard to the contentions raised by the parties the following questions arise for consideration in these civil revision petitions: (1) Whether application under sec. 144 read with Sec. 151 of the code of Civil Procedure, was maintainable? (2) Whether the revision petition filed before the District. Court against the order directing restitution was maintainable? (3) Whether the order of restitution passed by the Munsiff was justified under the circumstances of the case? (4) Whether the condition, prescribed by the District Judge that the tenant must pay Rs, 2,500 before obtaining the restitution was legal and was justified under the circumstances of the case (5) Whether the order refusing to stay further proceedings in HRC 440 of 1978 calls for interference? (4) Whether the condition, prescribed by the District Judge that the tenant must pay Rs, 2,500 before obtaining the restitution was legal and was justified under the circumstances of the case (5) Whether the order refusing to stay further proceedings in HRC 440 of 1978 calls for interference? ( 9 ) THE legal position regarding the doctrine of restitution is well settled by the Supreme Court in the case of binayak Swain v. Ramesh Chandra, (1 ). The relevant portion of the decision is as follows: -"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. " ( 10 ) IT was contended by Sri Manohar rao Jagirdar, learned Counsel fojr the landlord, that the application for restitution filed under Sec. 144 read with Sec. 151 of the Code of Civil procedure was not maintainable. In my opinion, this contention is not well founded. An application for restitution under Sec. 144 of the Code of civil Procedure, is an application for execution of a decree or order as the the case may be. That it is so, is clear from the enunciation made by the supreme Court in the case of mahijibhai v. Manibhai (2 ). An order for eviction passed under the provisions of the Act, is executable under the provisions of the Code of Civil Procedure. This Court, in the case of meenakshamma v. Modur Rangamma (3), has held that the Court functioning for the purpose of part V of the Act, functions as a Civil court and as such, it is entitled to exercise jurisdiction under the pror visions of the Code of Civil Procedure. Consequently, it is entitled to exercise the powers under the provisions of the code of Civil Procedure. Consequently, it is entitled to exercise the powers under the provisions of the code of Civil Procedure. This decision is affirmed by a Division Bench of this Court, in the case of Periyakkal v. Co-operative Tourist and Transport society (4 ). That being so, the, application, under Sectiqn 144 of the Code of Civil Procedure being an application for the execution of the order passed under the provisions of the Act, the Court is entitled to exercise all the powers under the code of Civil Procedure. Consequently, the contention of Sri Jagirdar that the court functioning under the provisions of the Act, cannot exercise power under Sec. 144 of the Code of Civil procedure, becomes untenable. Thus, the application filed under Sec. 144 of the Code, of Civil Procedure was maintainable. ( 11 ) SRI Jagirdar, learned Counsel for the landlord, however relied upon a decision of the High Court'of Madras in the case of A. Arunagiri Nadar v. S. P. Rithinasami, (5 ). In that case, a division Bench decision of the Court in mayilsatnl Gounder v. Rammoorthi, (6) was followed. In Mayilsa mi's case, it was held as follows: -"it may be unfortunate that notwithstanding the reversal of the eviction, order, the tenant is unable to get restitution. But, it is for the legislature to provide for the situation. "following the aforesaid observation, it was held in the aforesaid Arunagiri Nader's case that in the absence of an express provision or a provision by necessary intendmeht which would enable a Civil Court to direct re-delivery, the civil court does not possess such power. With great respect. I find it difficult to agree with the aforesaid enunciation. The jurisdiction of the Civil Court to order restitution has never been doubted. Prior to amendment Act 66 of 1956, section 144 of the Code of Civil procedure in terms was not applicable to orders; even then it was held by the various courts that under the inherent powers of the Court, restitution could be ordered in case of reversal or modification of orders. In fact, the aforesaid enunciation does not appear to be consistent with the observations made by the Division bench in the aforesaid Myilsami "gounder's case. In fact, the aforesaid enunciation does not appear to be consistent with the observations made by the Division bench in the aforesaid Myilsami "gounder's case. The observations were as follows "unlike Courts of law which would have inherent powers, although there is no specific enabling statutory provision, the position of statutory bodies entrusted with specified powers is entirely different. The aforesaid observations go to show that a civil Court has got inherent powers to direct restitution. In myilsami Goundar's case, the Division bench was concerned with the scope of the power under Section. 4 (5) of the madras Cultivating Tenants Protection act, 1955. The authority empowered to exercise the jurisdiction under that provision was the Revenue divisional Officer and not a Civil Court. Therefore, their Lordships of the division Bench held that the powers of a statutory body were entirely limited and controlled by the statute which conferred them and it could not act outside the limits of the statute creating it. In the instant case, we are not concerned with the statutory body but we are concerned with the Civil Court as it has already been held that the execution of the order of eviction passed under the Act is made under the provisions of the Code of Civil Procedure and not under the provisions of the Act. That being so, the aforesaid decision is of no assistance to the learned Counsel for the landlord. ( 12 ) REGARDING the second question, it has already been held that the proceeding for restitution is an execution proceeding under the provisions of the Code of Civil Procedure. That being so, there is no appeal or revision provided under the Code of Civil procedure to the District Court against an order of restitution passed by the Executing Court. Section 50 of the Act, is not attracted in such a case inasmuch as the order for restitution is not passed under the provisions of the Act, as it is passed in exercise of the power under the Code of Civil procedure. Consequently, it followed that the revision petition filed before the District Court against the order directing restitution was not maintainable. ( 13 ) THE right to restitution accrues to the party on the reversal or modification of the decree or order. Consequently, it followed that the revision petition filed before the District Court against the order directing restitution was not maintainable. ( 13 ) THE right to restitution accrues to the party on the reversal or modification of the decree or order. Therefore, in the instant case, as a, result of reversal of the order of eviction, the tenant who was evicted pursuant to the order of eviction. became, as of right, entitled to seek restitution; therefore the learned Munsiff was justified in directing restitution. The contention of Sri Jagirdar that after obtaining possession of the suit premises, the landlord had effected improvements to the tune of Rs. 11,693/- and in such a situation, if the restitution was to be ordered, he would be put to irreparable loss and substantial injury; therefore, under the circumstances of the case, the restitution was not justified. This contention also cannot be accepted. The improvements if any effected by the landlord were not pursuant to the, order of eviction and they were not attributable to the act of the Court; therefore, the alleged improvements neither could be made as a ground for refusing restitution nor any condition to compensate the landlord be imposed for directing restitution. The principle of restitution is that the party who has suffered as a result of the wrong order is, as far as possible on the reversal of the said order, entitled to be placed in the same position which he occupied on the date of the passing of the wrong order. ( 14 ) THIS Court, in the case of Anasuyabai v. Ramaidh Raju (7) has held that the compensation payable under Sec. 144 of the Code, of Civil procedure, is what is payable to the person asking for restitution and not to the person from whom the restitution is asked and the order for refund of costs or for the payment of interests, damages, compensation or mesne profits can be made only in, favour of the person who is entitled to restitution. The injury, if any caused to the party from whom the restitution is sought cannot be held to be attributable to "an act of the Court but it is an injury in consequence of an act of the party himself. The injury, if any caused to the party from whom the restitution is sought cannot be held to be attributable to "an act of the Court but it is an injury in consequence of an act of the party himself. In the instant case also, it has already been pointed out that the improvements if any effected by the landlord in the suit premises are not attributable to the order of eviction passed by the court, but the same have been effected voluntarily by the landlord on his own accord. Therefore, the landlord was not entitled to be compensated by the tenant for the alleged improvements if any, effected in the suit premises by him voluntarily. Accordingly, questions 3 and 4 raised for consideration are answered against the landlord. ( 15 ) REGARDING Civil Revision petition No. 3419 of 1980, the contention of Sri V. Tarakaram, learned counsel for the tenant, is that unless proceedings on the original side in hrc 442 of 1978, are stayed till the restitution is obtained, the tenant will not have the benefit of an order of restitution. This contention cannot be accepted. In Binayak Swain's case it has been ruled by the Supreme court that the party is entitled for restitution notwithstanding anything which happens 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 is made. Thus the right of restitution is not affected by allowing the, proceedings on the original side to go on. Therefore the proceedings on the original side need not be stayed until the restitution is effected. Both the proceedings may go on simultaneously. At any rate, it cannot be stated as a principle of law that where an application for restitution is pending, the proceedings on the original side should be stayed- ( 16 ) HAVING regard to the facts and circumstances of the case, it cannot be held that the learned ' Munsiff has exercised his discretion erroneously in refusing to stay the proceedings in h. R. C. 442 of 1978. Hence, I do not see any ground to interfere with the said order. ( 17 ) FOR 4he reasons stated above, the civil revision petition 3418/80 is allowed and the order dated 6th october 1. 980 passed by the learned district Judge in HRC. Hence, I do not see any ground to interfere with the said order. ( 17 ) FOR 4he reasons stated above, the civil revision petition 3418/80 is allowed and the order dated 6th october 1. 980 passed by the learned district Judge in HRC. R. P. 110 (80 is set aside and that of the learned Principal First Munsiff, Mysore, passed in mis. No. 40 of 1980, darted 16-8-1880 directing restitution, is restored. The learned Munsiff is directed to execute the order of restitution forthwith. ( 18 ) CIVIL Revision Petitions 3511 and 3419 of 1980 are dismissed. ( 19 ) LET a copy of this order be despatched to the Munsiff Court, mysore, at the earliest. --- *** --- .