Satish Kumar vs Ram Kishore
2021 Latest Caselaw 11036 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

AFR
 
Court No. - 19
 
Case :- SECOND APPEAL No. - 554 of 1979
 
Appellant :- Satish Kumar
 
Respondent :- Ram Kishore
 
Counsel for Appellant :- R.S. Tripathi,Mohammad Aslam Khan,R.S. Tripathi,Rakesh Srivastava,Randheer Singh,Ravi Nath Tilhari,Sanjay Verma
 
Counsel for Respondent :- A.K. Bajpai,J.C. Srivastava
 

 
Hon'ble Jaspreet Singh,J.

1. In order to appreciate the controversy involved in the instant second appeal, the Court will have to travel back in time to trace the genesis of the dispute. The record indicates that Sri Badri Prasad as plaintiff had instituted a suit against Sri Ram Kishor seeking joint possession of the property in question situated in Village Parishar Khas, Tehsil and District Unnao. The said suit seeking joint possession was instituted in the Court of Munsif, North, Unnao registered as Regular Suit No. 7 of 1966. The said suit was decreed by the Court of Munsif, North, Unnao for joint possession over the plots as mentioned in para 1 of the plaint by means of judgment and decree dated 23.05.1968.

2. Sri Ram Kishore, the defendant of Regular Suit No. 7 of 1966 being aggrieved from the judgment and decree dated 23.05.1968 preferred a Regular Civil Appeal under Section 96 C.P.C. which was registered as Regular Civil Appeal No. 75 of 1968. The said appeal was dismissed by the Lower Appellate Court by means of a judgment dated 13.10.1969. Thereafter Sri Ram Kishore escalated the matter and filed a Second Appeal under Section 100 C.P.C. before this Court registered as Second Appeal No. 355 of 1969. During the pendency of the aforesaid Second Appeal Sri Badri Prasad died and he was substituted by his legal heir and widow Smt. Phoolkali. The aforesaid second appeal was allowed by a coordinate Bench of this Court by means of judgment and decree dated 26.04.1973 holding that the plaintiff (Badri Prasad) was not entitled to get possession of the property in suit. The judgment and decree of the two courts was set aside and the suit was dismissed with cost.

3. It is in this backdrop, that once the suit of Badri Prasad was dismissed, thereafter Ram Kishore preferred an application under Section 144 C.P.C. seeking restitution of possession as well as damages and mesne profit from Smt. Phoolkali (widow of Sri Badri Prasad) as by then Badri Prasad had died. This application was moved before the Court of Munsif North, Unnao and was registered as Misc. Case No. 53 of 1974.

4. The aforesaid application was contested by Smt. Phoolkali by filing her objections. It was contended that all the legal heirs of late Sri Badri Prasad has not been impleaded and for the said reason, the application under Section 144 C.P.C. was not maintainable and consequently was liable to be dismissed. Another objection of Smt. Phoolkali was that she nor her predecessor-in-interest namely Sri Badri Prasad were in possession of the property in question apart from the fact that since the possession was with Ram Kishore as he being a co-tenure-holder, hence, the application was not maintainable.

5. The record would indicate that during the pendency of the aforesaid application, two persons namely Bhagwat Prasad and Ram Narayan had also moved their objections seeking their impleadment on the ground that they are the legal heirs of late Badri Prasad and they are in possession of the property in question, hence, they are necessary and proper parties as their rights are also involved, accordingly, they may be impleaded and be allowed to contest the proceedings.

6. The Court of Munsif, North, Unnao by means of its order dated 27.04.1978 partly allowed the application under Section 144 C.P.C. The Court held that in so far as the relief for possession is concerned, the application was allowed but in absence of any evidence on the issue of damages/compensation/mesne profit, the said relief was refused. The Court also found that the application moved by the third parties namely Bhagwat Prasad and Prem Narayan was not maintainable and the same was also rejected.

7. Being aggrieved against the aforesaid judgment dated 27.04.1978, two appeals under Section 96 C.P.C. came to be filed. One appeal bearing No. 101 of 1978 was filed by Smt. Phoolkali against the judgment dated 27.04.1978 by which the Court had ordered the possession to be restored to Sri Ram Kishore. The other appeal was filed by Sri Ram Kishore registered as Civil Appeal No. 23 of 1978 against the part of the judgment dated 27.04.1978 in so far as it rejected the relief of compensation/mesne profit/damages on the ground that no evidence was led.

8. Significantly, after the order dated 27.04.1978 was passed, in pursuance of order of Munsif, North, Unnao, a warrant of possession was issued and in execution of the said warrant, the possession is said to be delivered to Sri Ram Kishore by the Court Amin.

9. After due contest, the appeal of Smt. Phoolkali bearing No. 101 of 1978 was dismissed while Civil Appeal No. 231 of 1978 filed by Sri Ram Kishore was allowed and the matter was remanded to the Trial Court to permit Sri Ram Kishore to lead evidence in so far as his claim of compensation/mesne profit was concerned. Liberty was also granted to Smt. Phoolkali to lead her evidence in rebuttal against the claim of Sri Ram Kishore for mesne profit.

10. Being aggrieved against the order of the First Appellate Court dated 12.02.1979, the instant second appeal has been preferred. It will be noted that during the pendency of the instant second appeal, both Smt. Phoolkali and Sri Ram Kishore have expired and they are now represented by their legal heirs who have been substituted in their place. The Court has made a reference to the original parties namely Badri Prasad, Phoolkali and Ram Kishore for ease, however, it shall also include their legal heirs and representatives who are parties before this Court.

11. A coordinate Bench of this Court by means of order dated 31.08.1979 had admitted the aforesaid appeal on the following substantial questions of law which reads as under:-

"Whether the Lower Appellate Court having held that the Trial Court had wrongly recorded that the parties did not want to adduce any oral evidence fell into error of not remanding the case for setting aside the remaining issue as well viz. whether possession had been transferred under the Court's order in the previous litigation."

12. Heard Sri Mohd. Arif Khan, learned Senior Counsel along with Sri Deepankar Kumar for the appellant. None responded on behalf of the respondents despite opportunity having been provided, hence, the appeal was heard in their absence.

13. The submission of learned counsel for the appellant is that the Lower Appellate Court had erred in dismissing the appeal preferred by Smt. Phoolkali especially when it had already arrived at a conclusion that the Trial Court was not justified in recording that the parties did not wish to lead evidence. Once, such a finding was recorded and the appeal of Ram Kishore was remanded permitting him to lead evidence, in the same earnestness, the appeal of Smt. Phoolkali was also liable to be allowed permitting her to lead the evidence as well.

14. He further urged that from the perusal of the order passed by the Trial Court would indicate that there is no mention regarding the fact whether the possession was delivered to Sri Ram Kishore as was contended by Smt. Phoolkali in her objections so also there is no consideration of the other objections raised by Smt. Phoolkali that either the application under Section 144 C.P.C. could be allowed as a whole and not in part. It is also urged that the issue regarding the other legal heirs of Sri Badri Prasad who were not impleaded and were necessary parties but this has also not been considered in the correct earnestness and all these issues were germane to the controversy to be resolved.

15. It is also urged by the learned Senior Counsel that the Lower Appellate Court by remanding the matter has only permitted Sri Ram Kishore to lead evidence on the question of compensation/mesne profit with liberty to the appellant to file the evidence in rebuttal but has erred in dismissing the appeal of Smt. Phoolkali since her objections regarding the fact that Ram Kishore was already in possession would not be permitted to be agitated and she would not be permitted to lead evidence, despite noticing that the Trial Court had erroneously prevented the parties from leading their respective evidence, thus, the order of remand in so far as the appeal of Ram Kishore is concerned and dismissal of the appeal of Smt. Phoolkali is an erroneous exercise of jurisdiction also resulting in substantial injustice, hence, the appeal deserves to be allowed.

16. The Court has heard the learned Senior Counsel for the appellant and also perused the material available on record.

17. At the outset, it may be noticed that the instant second appeal arises out of a decision rendered on an application under Section 144 C.P.C. It will be necessary to notice the aforesaid provision and Section 144 C.P.C. reads as under:-

"Section 144. Application for restitution.

(1)Where and in so far as a decree 1 [or an order] is 2 [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 1 [or order] or 3 [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 4 [consequential on such variation, reversal, setting aside or modification of the decree or order].

5[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 of appellate or revision 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)."

18. The aforesaid provision has been amended in the State of U.P. by means of U.P. Amendment Act No. 24 of 1954.

19. It will also be relevant to notice that the provisions of C.P.C. have undergone major amendments in the year 1976 which came into effect from 01.02.1977. Section 2 (2) of the C.P.C. after the amendment reads as under:

"2. (1). 					********
 

 
(2) "decree" means the formal expression of an adjudication which, so far as regards the Court expressing it, conclusively determines the rights of the parties with regard to all or any of the matters in controversy in the suit and may be either preliminary or final. It shall be deemed to include the rejection
 
of a plaint and the determination of any question within 2 *** section 144, but shall not include--
 
(a) any adjudication from which an appeal lies as an appeal from an order, or
 
(b) any order of dismissal for default.
 
Explanation.--A decree is preliminary when further proceedings have to be taken before the suit can be completely disposed of. It is final when such adjudication completely disposes of the suit. It may be partly preliminary and partly final;"
 

 

20. From the perusal of the aforesaid provisions, Section 2 (2), it would indicate that any determination of a question within Section 144 C.P.C. is deemed to be a decree, consequently, an order passed under Section 144 C.P.C. is appealable as a Regular Civil Appeal under Section 96 C.P.C. and so also the order of the Appellate Court is open to be assailed in a second appeal under Section 100 C.P.C.

21. The expression ''restitution' has not been defined in the C.P.C., however, it is a doctrine founded on a Maxim ''Actus Curiae Neminem Gravavit'. The maxim explains that the 'Act of the Court shall harm no one'.

22. In a Halsbury's Law of England 4th Edition, it has been stated "Any civilized system of law is bound to provide remedies for cases of what has been called unjust enrichment or unjust benefit, i.e. to prevent a man from retaining the money of, or some benefit derived from, another which is against functions that he should keep. Such remedies in English Law are generally different from remedies in contract and are now recognized to fall within a third category of the common law which has been called quasi contract restitution".

23. The principles underlying the doctrine of restitution is that on a reversal of a decree, the law imposes an obligation on the party to the suit who receives any unjust benefit of the erroneous decree to make restitution to the other party for what he has lost. The 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.

24. Thus, it would be seen that it is not only the duty of the Court of restoring the things to its proper owner but that also encompasses with it to make such other order including orders for refund of costs or for payment of interests damages and mesne profits which are properly consequential on such variation, reversal, setting aside or modification of the decree or order.

25. It is in this backdrop if the submissions of the learned Senior Counsel for the appellant are tested, it would be discernible from the record that initially Sri Badri Prasad (predecessor-in-interest of Smt. Phoolkali, the predecessors-in-interest of the present appellants) had instituted a suit for joint possession. The suit was decreed and Sri Ram Kishore, the defendant's appeal was dismissed. In the second appeal preferred before this Court bearing No. 355 of 1969 decided on 26.04.1973, the judgment and decree passed by the two Courts were set aside and the suit of Sri Badri Prasad was dismissed holding that Badri Prasad was not entitled to possession.

26. It is in the aforesaid backdrop that Sri Ram Kishore thereafter had moved an application seeking restitution as well as mesne profit. Apparently, the prayer made by Sri Ram Kishore seeking compensation and mesne profit is within the scope of Section 144 C.P.C. as evidenced and noticed hereinabove first.

27. The record further indicates that the ground of objection raised by Smt. Phoolkali before the Trial Court opposing the application for restitution, she had raised a plea that Badri Prasad was not in possession rather the possession was with Sri Ram Kishore himself. It was also stated that Badri Prasad did not remain in possession throughout and moreover that he was also entitled to a sum of Rs. 1,000/- which he had spent on sowing of the crop. Another objection was to the effect that the other heirs of Badri Prasad were not impleaded. This came to be decided by the Trial Court by means of order dated 27.04.1978.

28. From the perusal of the said order, it would indicate that primarily the Trial Court had framed two points for determination i.e. (i) Whether the appellant was entitled to the relief as prayed for ; (ii) the other as to whether Sri Bhagwat Prasad and Prem Narayan were entitled to be impleaded as a party in the said litigation.

29. The Trial Court found that the possession was with Badri Prasad who had died during the pendency of the earlier second appeal and was now represented by Smt. Phoolkali, hence, it permitted the prayer of possession in favour of Sri Ram Kishore against Smt. Phoolkali. As far as the other issue regarding the claim of compensation/mesne profit is concerned, the Trial Court noticed that the parties agreed not to lead any evidence, hence, the said issue regarding compensation was decided in the negative in absence of any evidence. It also rejected the application of Sri Bhagwat Prasad and Prem Narayan holding that they were not the parties to be impleaded.

30. Apparently, from the perusal of the order passed by the Trial Court, it would indicate that it has not discussed the issue regarding the possession and whether Ram Kishore was entitled to possession or not. The Trial Court has merely stated that since no evidence has been led by the plaintiff in support of his plea regarding mesne profits, hence, it cannot be ascertained as to how much damage or compensation can be awarded, hence, the said prayer was refused. The Trial Court thereafter concentrated mainly on the issue regarding the application of Prem Narayan and Bhagwat Prasad and abruptly ended by holding that the application of Ram Kishore for restitution of possession is liable to be allowed whereas the application for impleadment by Sri Bhagwat Prasad and Prem Narayan was rejected.

31. The record further indicates that by the same order dated 27.04.1978, the Trial Court had issued a warrant of possession which came to be executed and the same can be verified by means of document bearing Paper No. Ga-89 in the record of the Trial Court. However, the said document has not been considered by the Trial Court or the First Appellate Court nor there is any mention of the said document in the two impugned orders dated 27.04.1982 and 12.02.1979.

32. As already noticed above, two appeals were preferred and the Lower Appellate Court while considering the appeal of Smt. Phoolkali bearing No. 101 of 1978 has noticed that the learned Trial court did not properly decide the application under Section 144 C.P.C. It also noticed that neither the counsel for Ram Kishore namely Sri C.B. Tiwari, Advocate nor the counsel for Smt. Phoolkali made any such statement that they did not wish to lead evidence and the fact recorded by the Munsif in its order that the parties did not wish to lead evidence was not corroborated from the record and noticing the aforesaid, it found that the Trial Court ought to have taken up the application for impleadment separately and thereafter ought to have decided the application under Section 144 C.P.C. separately. It also noticed that since the possession has been restored to Sri Ram Kishore, hence, the only issue remaining was regarding the damages/compensation and mesne profit which was not decided by the Trial Court in view of absence of evidence and as noticed above that the very fact that neither counsel for the parties made any such submissions that they did not wish to lead evidence, hence, the appeal of Sri Ram Kishore was allowed an the matter was remanded permitting him to lead evidence regarding his claim for damages/compensation/mesne profit and dismissed the appeal of Smt. Phoolkali.

33. The record further indicates that in the memo of appeal preferred by Smt. Phoolkali which is on record bearing paper no. Ka 2/1. The grounds raised were that the application under Section 144 C.P.C. of Ram Kishore ought to have been dismissed in Toto. The other ground was that the Trial Court had erred in not impleading the other heirs of Sri Badri Prasad and the other was that the Lower Appellate Court did not give her an opportunity to lead oral evidence in respect of her case.

34. As already referred in the preceding paragraphs that after the order was passed by the Trial Court on 27.04.1978, a warrant of possession was issued in pursuance whereof Sri Ram Kishore was put in possession and the said paper bearing No. Ka-89/2 is on record. There is no finding recorded upon the aforesaid document. It will also be relevant to notice that if at all the possession was taken in pursuance of the order dated 27.04.1978 then there ought to have been a mention in the order including the date on which the said possession was delivered. The document does not mention any such date.

35. It is not disputed that both the parties were prevented from leading their respective evidence before the Trial Court. This fact has been affirmed by the Lower Appellate Court too. However, it has remanded the matter in so far as the appeal of Ram Kishore is concerned for determination of the mesne profits, if any, but dismissed the appeal of Smt. Phoolkali.

36. The question as to the quantum of compensation/mesne profits also necessarily involves the determination of the date from when such compensation/mesne profit would be payable and up to what date. This would be dependent on the finding from which date the possession of Sri Badri Prasad would be termed to be unlawful and liable to be restituted and the date on which the said restitution did actually take place.

37. The document bearing Paper No. Ga- 89/2 as referred to hereinabove would indicate that it only states that the possession has been received by Ram Kishore in pursuance of a warrant of possession issued by the Trial Court on 27.04.1978, however, there is no specific date mentioned. Apparently, there is no material on record to indicate that on what date the possession of the property was received by Ram Kishore. It has been stated in paragraph 3 that Sri Badri Prasad had taken the possession on 18.05.1970 and further in paragraph 7 of the said application bearing Paper No. Ga-3/1, it is stated that the appellant namely Ram Kishore is entitled to receive the exclusive possession of the property and has sought mesne profit from 18.05.1970 till the date the possession is to be delivered.

38. Thus, the issue regarding the quantum of compensation as indicated above, is inter-linked with the fact as to when the possession was with Badri Prasad and when it has reverted back to Sri Ram Kishore, this fact needs to be ascertained clearly and for this fact the parties are required to lead evidence. It is admitted that the Trial Court did not permit the parties to lead evidence. The Lower Appellate Court has found that the application under Section 144 C.P.C. has not been properly decided and the parties have been deprived from leading their evidence.

39. Once such a finding was recorded and even if noticing that the possession has been restored to Ram Kishore, the core question for determination of compensation as noticed above would require the determination of the date from which date to what date the compensation is to be paid but in absence of evidence, no such finding has been recorded and it requires evidence for both parties to establish their respective case.

40. The Lower Appellate Court while dismissing the appeal of Smt. Phoolkali as noticed that Smt. Phoolkali shall be given an opportunity to rebut the evidence of Ram Kishore on his claim of damages while the appeal of Ram Kishore has been allowed for the purpose of ascertain the amount of damages, if any, and then decide the application under Section 144 C.P.C. In the operative portion it has been mentioned that the order of Munsif in so far as it relates to restitution of possession is maintained, the Munsif shall give an opportunity to the appellant Ram Kishore to lead evidence on his claim for compensation or damages and Smt. Phoolkali shall be given opportunity to rebut the evidence of Sri Ram Kishore on this point then the Munsif shall ascertain the amount of damages and thereafter decide the application under Section 144 C.P.C. in accordance with law after giving opportunity to the parties to lead evidence.

41. Once such a direction was issued, it would be most unfair that Sri Ram Kishore would be entitled to lead evidence in so far as the quantum of compensation/mesne profit is concerned and Smt. Phoolkali would be entitled only to lead her evidence in rebuttal. As already noticed above, the quantum of mesne profit would be interlinked and dependent on the date and period when Sri Badri Prasad and thereafter Smt. Phoolkali remained in possession. It is not a case where it is admitted to the parties regarding the aforesaid dates nor the Trial Court or the First Appellate Court have recorded any finding in respect thereto.

42. In absence of any clear finding by the two courts, it would be a travesty of justice if some fact is assumed without being proved and even worse without providing an opportunity to the parties concerned to lead evidence. The Appellate Court ought to have exercised its appellate powers taking note of the aforesaid aspect which has not been done.

43. In this view of the matter, this Court is of the opinion that the order of the Lower Appellate Court dismissing the appeal of the appellant Smt. Phoolkali is erroneous. Merely by permitting her to lead evidence in rebuttal is not going to solve the purpose since the period for which the property remained in possession of Sri Badri Prasad and with Smt. Phoolkali was also required to be determined. This necessarily requires the parties to lead evidence especially when it was a disputed fact and there is no finding given by the two courts and the mention of the fact in the order that possession has been given to Ram Kishore, does not indicate when and what is the basis of such finding has also not been mentioned. Hence, in this view of the matter, this Court holds that the Lower Appellate Court has committed an error in dismissing the appeal of Smt. Phoolkali especially when it found that the parties were prevented from leading their evidence so also for the reason that the Lower Appellate Court found that the application under Section 144 C.P.C. has not been decided properly.

44. For the reasons aforesaid, this second appeal is allowed. The impugned order/judgment and decree passed by the Lower Appellate Court dated 12.02.1979 dismissing the appeal No. 101 of 1978 is erroneous and is set aside and since the appeal of Sri Ram Kishore bearing No. 23 of 1978 has been remanded by the same impugned judgment and order, that part of the order shall be maintained. This Second Appeal No. 554 of 1979shall stand allowed and it the matter of Smt. Phoolkali shall also be remanded to the Trial Court where the application under Section 144 C.P.C. shall be decided afresh by permitting the respective parties to lead their evidence. However, in so far as the issue of compensation/mesne profit is concerned while determining the same, the Court shall also record a finding as to from which date till when the possession remained with Sri Badri Prasad and when it was restored to Sri Ram Kishore strictly in light of the evidence led by the parties.

45. Since the instant appeal remained pending before this Court since 1979 and an application under Section 144 C.P.C. is of the year 1974, hence, the Trial Court is directed that it shall make an earnest endevour to decide the aforesaid application most expeditiously without granting any unnecessary adjournments to either of the parties, however, ensuring full opportunity of hearing as well as permitting the parties to lead their evidence so that the entire proceedings can be decided preferrably within a period of 8 months from the date a copy of this order is placed before the Court concerned.

46. The instant second appeal is allowed in the aforesaid terms. In the facts and circumstances, there shall be no order as to costs. The record of the Court concerned shall be remitted forthwith.

(Jaspreet Singh, J.)

Order Date :- 01.09.2021

Asheesh