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Madhya Pradesh High Court · body

2006 DIGILAW 1005 (MP)

SARASWATI SHISHU MANDIR v. PUSHPA LATA BAJPAI

2006-08-23

K.K.LAHOTI

body2006
Judgment (1) To hold that interim order dated 2-9-2002 is an odd final order dated 22-6-05 of W. P. No. 1392/02. (2) To direct the respondent No. 1 to return the entire amount with interest to the petitioner as received by her by way of interim relief dated 2-9-2002 and further direct to pay cost of the litigation throughout. (3) Any other appropriate writs, orders, directions as may be deemed just and appropriate in the circumstances of the case may kindly be issued in the interest of justice. " ( 2. ) THE facts of the case are that respondent No. 1 Smt. Pushpa Lata bajpai filed a writ petition which was registered as W. P. No. 1392/2002. In the aforesaid writ petition, an interim order was issued on 2-9-2002 Annexure P-1 by this Court by which the petitioner was directed to pay salary to Smt. Pushpa Lata bajpai from January, 2002. It appears that the aforesaid salary was not paid and a Contempt Petition was moved by Smt. Pushpa Lata Bajpai. During the pendency of the aforesaid contempt petition, the petitioner moved an application seeking review of the order dated 2-9-2002, but it is stated that the aforesaid review application was dismissed by the High Court. Thereafter the petitioner paid salary to Smt. Pushpa Lata Bajpai. Ultimately, on 22-6-2005, writ petition was dismissed in default of appearance as it reflects from order annexure P-6. Now this petition has been filed for the recovery of the amount which was paid by the petitioner in view of the ad interim writ issued in W. P. No. 1392/2002. ( 3. ) LEARNED Counsel for petitioner submitted that the salary to respondent No. 1 was paid because of the ad interim writ issued by this Court. Now the petition itself has been dismissed without making any direction in respect of the salary paid to respondent No. 1 because of ad interim writ in the matter. Respondent No. 1 was not entitled for the salary since January, 2002 but the petitioner was compelled to pay the salary of respondent No. 1 because of the ad interim writ and the contempt proceedings initiated against the petitoner for which respondent No. 1 was not entitled. Now the writ petition itselt as been dismissed. So the petitioner is entitled to get back the amount which was paid by the petitioner because of the interim order. ( 4. Now the writ petition itselt as been dismissed. So the petitioner is entitled to get back the amount which was paid by the petitioner because of the interim order. ( 4. ) IN this petition, the question is whether for the refund of the amount which was paid by the petitioner because of the ad interim writ issued in earlier Writ Petition No. 1392/02, another writ petition may be entertained for this purpose or the petitioner should have moved for the restitution of the aforesaid amount in the previous proceedings. In this regard, provision of section 144 of the CPC may be seen:- "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 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 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 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 or 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 ). " ( 5. ) AFORESAID provisions specifically provide that for restitution of the amount, no separate suit shall be instituted which could be obtained by an application under sub-section (1 ). Though before 1-2-1977 under Section 141 of the CPC, there was no provision for application of procedure provided in CPC to make it applicable in the proceedings under Article 226 of the Constitution of india but after insertion of an Explanation under Section 141, the proceedings under Article 226 of the Constitution have not been included. So the provisions of Section 144, CPC may not be made applicable but aforesaid analogy may be made applicable even for the writ petition. In this case, contention of the petitioner is that because of the ad interim writ issued in the earlier writ petition, petitioner was compelled to pay salary of respondent No. 1 since January, 2002 Though, petitioner moved an application seeking review of the interim order but it was dismissed. Respondent No. 1 also initiated contempt proceedings against the petitioner and in those circumstances, petitioner paid the salary. But even then whether another writ may be issued for this purpose to undo which has been done because of the ad interim writ issued in earlier matter. In this regard, legal position may be examined. The Apex Court considering the question of restitution, and law on the point in Mahijibhai Mohanbhai Barot Vs. Patel Manibhai Gokalbhai and others, (1965) II SCJ 29, held thus:- "the section, to avoid the earlier conflict, prescribes the procedure, defines the powers of the Court and expressly bars the maintainability of a suit in respect of a relief obtainable under this section. The section does not either expressly or by necessary implication change the nature of the proceedings. Its object is limited. It seeks to avoid the conflict and to make the scope of the restitution clear and unambiguous. It does not say that an application for restitution, which till the new Procedure Code was enacted, was an application for execution, should be treated as an original petition. Whether an application is one for execution of a decree or is an original application depends upon the nature of the application and the relief asked for. It does not say that an application for restitution, which till the new Procedure Code was enacted, was an application for execution, should be treated as an original petition. Whether an application is one for execution of a decree or is an original application depends upon the nature of the application and the relief asked for. When a party, who lost his property in execution of a decree, seeks to recover the same by reason of the appellate decree in his favour, he is not initiating any original proceeding, but he is only concerned with the working out of the appellate decree in his favour. The application flows from the appellate decree and is filed to implement or enforce the same. He is entitled to the relief of restitution, because the appellate decree enables him to obtain that relief, either expressly or by necessary implication. He is recovering the fruits of the appellate decree. Prima facie, therefore, having regard to the history of the section, there is no reason why such an application shall not be treated as one for the execution of the appellate decree. " ( 6. ) THEREAFTER, the Apex Court considering the question in Raunaq international Ltd. Vs. I. V. R. Construction Ltd. and others, (1999) 1 SCC 492 , in which considering the question held thus:- 18. The same considerations must weight with the Court when interim orders are passed in such petitions. The party at whose instance interim orders are obtained has to be made accountable for the consequences of the interim order. The interim order could delay the project, jettison finely worked financial arrangements and escalate costs. Hence the petitioner asking for interim orders, in appropriate cases should be asked to provide security for any increase in cost as a result of such delay, or any damages suffered by the opposite party in consequence of an interim order. Otherwise public detriment may out weight public benefit in granting such interim orders. Stay order or injunction order, if issued, must be moulded to provide for restitution. ( 7. ) THEREAFTER the Apex Court considering this question in South eastern Coalfields Ltd. Vs. State of M. P. (2003) 8 SCC 648 , wherein the Apex court considering the question held thus:- "25. Stay order or injunction order, if issued, must be moulded to provide for restitution. ( 7. ) THEREAFTER the Apex Court considering this question in South eastern Coalfields Ltd. Vs. State of M. P. (2003) 8 SCC 648 , wherein the Apex court considering the question held thus:- "25. On the principle which we have upheld just hereinabove, it would not have been necessary to enter into this aspect of the issue; however, it becomes necessary to deal therewith inasmuch as it was submitted on behalf of the consumers/purchasers that their non-payment of enhanced amount of royalty was protected by judicial orders, though of interim nature, passed by the Courts, and therefore they should not be held liable for payment of interest so long as the money was withheld under the protective umbrella of the Court order. Merely because the writ petitions were finally held liable to be dismissed, it cannot be urged that the interim orders passed by the Courts were erroneous. Soon on dismissal of their writ petitions, the payment of the enhanced amount of royalty which was disputed earlier was promptly cleared by the writ petitioners and, therefore, their act was bonafide. We find no merit in this submission either. 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 of decree or order of the Court or in direct consequence of a decree or order (See Zafar Khan and others Vs. Board of Revenue, U. P. and others, 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 Blacks Law Dictionary, Seventh edition, P. 1315 ). The Law of Contracts by John D. Calaman and 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. . . . . . . . "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-tortious 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 agree 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 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 would 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. 27. Section 144 of the CPC is not the fountain source of restitution; it is rather a statutory recognition of a pre-existing rule of justice, equity and fair play. That is why it is often held that even away from section 144 the Court has inherent jurisdiction to order restitution so as to do complete justice between the parties. In Jai Berham Vs. Kedar Nath Marwari, (1922) 49 IA 351, Their Lordships of the Privy council said : "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 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. Cairns, L. C. said in Roger Vs. Comptoir descompte de Paris, (1871) L. R. P. C. : "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". This is also on the principle that wrong order should not be perpetuated by keeping it alive and respecting it, A. A. Nadar Vs. S. P. Rathinasami, (1971)1 MLJ 220 . In the exercise of such inherent power the Courts have applied the principles of restitution to myriad situations not strictly falling within the terms of Section 144. AIR 1922 PC 269. " ( 8. S. P. Rathinasami, (1971)1 MLJ 220 . In the exercise of such inherent power the Courts have applied the principles of restitution to myriad situations not strictly falling within the terms of Section 144. AIR 1922 PC 269. " ( 8. ) IN view of the settled legal position by the Apex Court, the principle of restitution is applicable in the matter where one party has suffered because of ad interim writ issued by this Court and ultimately the matter is decided against the party in whose favour ad interim writ was issued. Though aforesaid, prayer ought to have been made by the suffering party at the time when the matter was finally decided but in this case, writ petition itself was dismissed in default and there was no occasion for the Court to determine this question. ( 9. ) THE Division Bench of this Court in Dangalia Vs. Deshraj, AIR 1974 MP 49 , considering this question held thus:- "in Hariram Beharilal Gujar Vs. Pooransingh Fatesingh, 1962 mplj 338 = (AIR 1962 Madh Pra 295) following that view, held that Section 144 would apply to cases of variation or reversal of a decree, either in appeal or revision or by separate suit or even by the subsequent legislation. We may add that the reversal can as well be in writ proceedings under Articles 226 and 227 of the Constitution of India and to restrict the operation of Section 144, cpc by excluding such orders passed in writ proceedings would, in our opinion, not be the correct way of interpretation of Section 144. Even apart from that we would hold that a Revenue Court has inherent power to order restitution so as to compensate a damage done to a party by; its wrong order which has been varied or reversed. The principle of actus curiae neminem gravabit will be applicable to such a situation and no act of Court shall prejudice any of the parties. " ( 10. ) CONSIDERING aforesaid legal position, there is no iota of doubt that the principle of restitution is applicable in the matter and when a writ petition is dismissed, even on merits, party who has suffered because of ad interim order passed in the matter is entitled to invoke the principle of restitution in the matter. " ( 10. ) CONSIDERING aforesaid legal position, there is no iota of doubt that the principle of restitution is applicable in the matter and when a writ petition is dismissed, even on merits, party who has suffered because of ad interim order passed in the matter is entitled to invoke the principle of restitution in the matter. The matter is to be considered in those proceedings and for this purpose, no separate writ petition can be entertained. ( 11. ) CONSIDERING aforesaid, it is held that this petition is not entertainable and is dismissed. However, liberty is granted to the petitioner to file an appropriate application in this regard as indicated hereinabove. No order as to costs. Writ Petition dismissed.