The single-judge bench of the Patna High Court held that the power of Section 151 to pass an order of injunction in the form of restoration of possession of the code is not res integra.
Brief Facts:
The factual matrix of the case is that the title suit was filed by Plaintiff/Respondent No. 1 for the declaration of her title based on the sale deed and order of the defendants' ejectment. The plaintiff stated that the suit property is her ancestral and purchased land and that the defendants had partially encroached on her purchased land. Thereafter, the defendants stated that the suit land was amicably partitioned and a memorandum of partition was also prepared, which was duly signed by the parties. Furthermore, the petition was filed by the defendant under Section 151 of the CPC alleging that the Plaintiff forcefully disposed of the Defendants and took forceful possession. However, the learned court below rejected the application on the ground that the defendant has not filed any counterclaim in his written statement which resulted in the present petition.
Contentions of the Petitioner:
The petitioner contended that the learned trial court has neglected to take into account the fact that no one may be deprived of their property other than by the court's process. In this particular case, the plaintiff had admitted that the defendant was in possession, and the learned court below had a duty to retrieve the defendant's possession if it had been taken away from him. It was furthermore contended that as the CPC remains silent on the subject, the only appropriate prayer in this sort of circumstance is for a mandatory injunction; as a result, the petition for restoration of possession filed under Section 151 of the C.P.C. is justified.
The Petitioner relied upon the judgments titled Sushil Kumar Dey Biswas & Anr vs Anil Kumar Dey Biswas & Anr, and Meera Chauhan v. Harsh Bishnoi.
Contentions of the Respondent:
The Respondent contended that the trial court rightly rejected the application made by the Petitioner under Section 151 of the CPC. It was also contended that the defendant has tried to make out a case on wrong facts and due to previous enmity. Furthermore, the petitioner filed an application under Section 151 of the C.P.C. before the court below, but it was not maintainable because the petitioner could have chosen an alternative remedy under Section 6 of the Specific Relief Act, and Section 151 cannot be used as a substitute for bringing new suits, appeals, revisions, or reviews.
The Respondent relied upon the judgment titled My Palace Mutually Aided Co-operative Society Vs. B. Mahesh and Ors.
Observations of the Court:
The Hon’ble court observed that when it is the acknowledged case of the plaintiffs/respondents that the defendant/petitioner had the suit property and there is additional admission regarding the eviction of the defendant. Then, equity now requires that the defendant not be forced to pursue litigation in this case and that he be restored to possession of the area from which he was evicted. It is immaterial that the petition seeking repossession has been filed under Section 151 of the CPC.
The court further relied upon the judgment titled Meera Chauhan v. Harsh Bishnoi in which the apex court held that the issue is not res integra anymore.
It was noted that the defendant cannot be forced to seek remedy under Section 6 of the Specific Reliefs Act, 1963, and the plaintiff cannot take advantage of their own wrongdoing.
Based on these considerations, the court was of the view that the defendant/petitioner is entitled to restoration of his possession on the admitted portion of the suit property and the learned court below committed an error when it rejected the prayer for restoration of possession filed on behalf of the defendant/petitioner and did not exercise the jurisdiction vested in it.
The decision of the court:
With the above direction, the court set aside the decision of the court below and allowed the present petition.
Case Title: Altamish @ Monu Vs Md. Tarique
Coram: Hon’ble Mr. Justice Arun Kumar Jha.
Case No.: Civil Misc. Jurisdiction No. 994 of 2018
Advocates for the Petitioner: Mr. H. P. Singh, Sr. Advocate Mr. Rakesh Chandra, Advocate
Advocates for the Respondent: Md. Abu Haidar, Advocate Md. Abu Shajar, Advocate
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