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2015 DIGILAW 286 (GAU)

Tulika Goswami Mahanta v. Mukul Saikia

2015-03-10

HRISHIKESH ROY

body2015
JUDGMENT Hrishikesh Roy, J. 1. Heard Ms. B. Choudhury, the learned counsel appearing for the petitioners the defendants in the T.S. No. 495 of 1996. Also heard Mr. Mr. P.K. Deka, the learned counsel appearing for the respondents (plaintiffs). This Revision Petition is directed against the order dated 25.7.2005 (Annexure-4) in Misc. Appeal No. 18/2002, whereby the learned Civil Judge, (Senior Division), No. 2, Guwahati reversed the restitution order by observing that the defendants' case does not come within the purview of Section 144 of the C.P.C. The Court held that dispossession of the defendants' is not attributable to the status quo order passed by the Court on 10.10.1996 in the Misc. (J) Case No. 353 of 1996. 2. The respondents/plaintiffs filed the T.S. No. 495 of 1996 against the predecessors of the defendants, seeking declaration and permanent injunction for the suit land measuring 2 katha covered by Dag No. 9026 (old), 1704 (new) of K.P. Patta No. 849 (new) of village Pub-Sarania Hill side under the Ulubari Mouza, Guwahati in Kamrup District. According to the plaintiffs, the defendants tried to trespass into the suit land on 5.10.1996, when the plaintiff No. 2 had gone to Mangaldoi and thereafter the plaintiff was threatened to vacate the land. Moreover on 9.10.1996, the defendants attempted to grab the suit land by trying to gather construction materials. The plaintiffs claimed to be in possession of the suit land on the basis of gift given by their maternal uncle (pro-forma defendants' father). 3. An injunction application under Order 39, Rule 1 & 2 read with Section 151 of the C.P.C. was also filed by the plaintiffs and in the resultant Misc. (J) Case No. 353 of 1996, the Court on 10.10.1996 issued notice to the defendants making it returnable on 13.11.1996 and in the meantime, directed the defendants to maintain status quo in respect of the suit land. 4. Alleging forcible dispossession by the defendants on 11.10.1996 from the suit land and inaction of the police despite the registration of the Chandmari PS. Case No. 413/1996, the defendants belatedly applied for restitution under Section 144 of the C.P.C. and this application was registered as Misc. (J) Case No. 272 of 1999. 4. Alleging forcible dispossession by the defendants on 11.10.1996 from the suit land and inaction of the police despite the registration of the Chandmari PS. Case No. 413/1996, the defendants belatedly applied for restitution under Section 144 of the C.P.C. and this application was registered as Misc. (J) Case No. 272 of 1999. But it may be noted herein that recourse to Section 144 was made about 2 1/2 years later only on 24.4.1999 and that too, long after the T.S. No. 495 of 1996 was dismissed for default on 4.7.1997. 5. The respondents/plaintiffs in their objection contended that the defendants were not dispossessed through any Court decree. They also claimed to be in continuous possession although attempted trespass by the defendants on 14.9.1996 and subsequent failed attempt to dismantle the plaintiffs' sheds was acknowledged to be the basis of the suit. Therefore plaintiffs categorically denied that they took forcible possession, in pursuant to the Trial Court's status quo order. 6. After considering the rival case, the learned Civil Judge (Junior Division), No. 1, Guwahati after observing that the possession of the plaintiff was on the strength of the status quo order in the Misc. (J) Case No. 453/1996, on 30.5.2002 ordered for restitution of the property to the defendants, under Section 144 of the C.P.C. 7. But in the resultant Misc. Appeal No. 18/2002, filed by the aggrieved plaintiffs, the Appellate Court through the impugned judgment dated 25.7.2005 (Annexure-4) reversed the restitution order by observing that the possession of the plaintiffs is not based on any Court's order and therefore it was held that invoking of restitution powers under Section 144 of the C.P.C. was unjustified in the case. 8. Since the aggrieved petitioners (defendants) have filed a Revision Petition under Section 115 of the C.P.C., the maintainability of the case is questioned first by the respondents. The learned Advocate for the respondents Mr. P.K. Deka refers to the definition of "decree" under Section 2(2) of the C.P.C. to project that determination of any question within Section 144 amounts to a decree of the Court and since the restitution orders are Court decrees, the Revision Petition is not maintainable, to challenge the legality of the Appellate Court's verdict. 9. On the maintainability objection of the respondents, Ms. 9. On the maintainability objection of the respondents, Ms. B. Choudhury, the learned counsel for the petitioners indirectly concedes that the restitution orders under Section 144 of the C.P.C. are decrees under Section 2(2) of the C.P.C. However she cites Charu Deka vs. Umeswari Nath, AIR 1995 Gau 9 , to contend that when Revision is not maintainable, it may be converted to Appeal. Therefore she submits that the Court should consider the merit of the challenge rather than dismissing the Revision Petition at the threshold on the issue of maintainability. 10. When Appellate remedy is provided under the Code of Civil Procedure, the Revision Petition is clearly barred under Section 115 and therefore the objection of the respondents can't just be overlooked. Nevertheless for the ends of justice, having regard to the submission made by the petitioners' lawyer, I'm inclined to examine the merit of the impugned order, to see whether any advantage was taken by the plaintiffs on the basis of the Court's status quo order, to dispossess the defendants. This scrutiny is undertaken only to decipher the truth, although the Revision Petition may not otherwise be maintainable. 11. In the South Eastern Coal Fields Ltd. vs. State of Madhya Pradesh, (2003) 8 SCC 648 , the Apex Court held that Section 144 is the statutory recognization of a pre-existing rule of justice, equity and fair play and power of restitution permits the Court to do complete justice between the parties. The Court made the following observation while explaining the scope of exercise of powers under Section 144 of the C.P.C.: "The principle of restitution has been statutorily recognized in Section 144 of the Code of Civil Procedure, 1908. Section 144 C.P.C. 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 a final decision going against the party successful at the interim stage. 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 a 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." 12. Bearing in mind the above legal proposition, let me now examine whether the plaintiffs dispossessed the defendants from the suit land on the strength of the status quo order passed by the Court on 10.10.1996. As earlier noticed, the suit was for permanent injunction and the plaintiffs claimed to be in possession, with the plaintiff No. 2 residing in the suit property since 1980. The occupied land was originally owned by Prafulla Ram Barooah and Kumud Ram Barooah (elder brothers of the plaintiff No. 1) and although a proceeding under the Land Ceiling Act was started, the plaintiffs claimed the right of settlement, on account of physical possession, since 1980. In fact the suit was filed when dispossession was threatened from the defendants' side. Therefore alongwith the suit, the plaintiffs applied for permanent injunction, to protect their possession. 13. In fact the suit was filed when dispossession was threatened from the defendants' side. Therefore alongwith the suit, the plaintiffs applied for permanent injunction, to protect their possession. 13. In the above backdrop, when the suit was filed on 10.10.1996 with plaintiffs claiming to be in possession and status quo order was passed on their injunction application, the defendants could not have been dispossessed forcibly on 11.10.1996 on the strength of the status quo order. Unless the plaintiffs' possession is attributable to the ex-parte status quo order, recovery is unjustified through restitution, under Section 144 of the C.P.C. In fact, the law is clear that restitution sought must be for dispossession through Court's decree and through restitution, the Court tries to undo the effect of interim order for ends of justice. Therefore unless an applicant establishes that they were dispossessed on account of the Court's decree, restitution of the dispossessed party, can't be ordered by invoking the powers under Section 144 of the C.P.C. 14. In this case the defendants received the Court's notice on the injunction application which was made returnable on 13.11.1996. But despite the allegation of forcible dispossession on 11.10.1996, they failed to appear on the due date. Moreover although a fresh cause of action accrued to the defendants through such alleged dispossession, they neither filed any restitution application immediately nor they filed any suit for restoration of possession. But two years after the T.S. No. 495/1996 was dismissed for default on 4.7.1997, the restitution application was filed by the defendants. This itself indicates the lack of bona fide of the defendants and there is greater probability of the defendants raising a false plea of dispossession. Therefore I am more inclined to believe that the plaintiffs were in possession when the T.S. No. 495/1996 was filed and the non-possession of the defendant is not attributable to the status quo order passed on 10.10.1996. 15. The principles of restitution under Section 144 of the C.P.C., as enunciated by the Apex Court in South Eastern Coal Fields Ltd. (Supra) clearly indicates that dispossession must be attributable to a Court's decree to allow restitution. 15. The principles of restitution under Section 144 of the C.P.C., as enunciated by the Apex Court in South Eastern Coal Fields Ltd. (Supra) clearly indicates that dispossession must be attributable to a Court's decree to allow restitution. The Trial Court however overlooked that the alleged dispossession was not on the basis of any decree or order passed by the Court and there was no material to suggest that the plaintiffs entered into the suit land by virtue of any order passed either in the T.S. No. 495/1996 or in the Misc. (J) Case No. 453/1996. Moreover the belated filing of the restitution application three years after the alleged dispossession makes the defendants' story untrustworthy. Therefore the Appellate Court in my assessment, has rightly reversed the restitution order by correctly holding that that the defendants' application does not come within the purview of Section 144 of the C.P.C. Having concluded thus, even on merit, no case is made out for interference with the impugned order and accordingly the case is dismissed. The parties will bear their own cost. The Registry should return the LCR alongwith a copy of this order.