Bombay High Court
Bhaskar S/O Rushi Lanjewar And 3 Others vs Meerabai Wd/O Sadashiv Bankar And 6 ... on 26 August, 2025
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
: NAGPUR BENCH : NAGPUR.
SECOND APPEAL NO. 655 OF 2005
APPELLANTS : 1] Bhaskar S/o Rushi Lanjewar,
Aged about 33 years, Occu. Cultivation,
2] Vilas S/o Rushi Lanjewar,
Aged about 20 years, Occu. Cultivation
3] Archana D/o Rushi Lanjewar,
(Now Nanda W/o Narendra Korekar)
Aged about 19 years, Occu. Cultivation
4] Rushi S/o Kisan Lanjewar,
Aged about 50 years, Occu. Cultivation,
All residents of Palasgaon Jat,
Tah. Sindewahi, Dist. Chandrapur.
VERSUS
RESPONDENTS : 1] Meerabai Wd/o Sadashiv Bankar,
Aged about 60 years, Occu. Cultivation
(Dead, deleted as per Court's order dated
24.11.2022)
2] Sau. Sindhbai W/o Gulabrao Sawarkar,
Aged about 40 years, Occu. Cultivation,
3] Prakash S/o Sadashiv Bankar,
Aged about 38 years, Occu. Cultivation
4] Prashant S/o Sadashiv Bankar,
Aged about 26 years, Occu. Cultivation,
Nos.1 to 4 residents of Palasgaon Jat,
Tah. Sindewahi, Dist. Chandrapur (Mah.)
5] Latabai W/o Umaji Nimkar,
Aged about 34 years, Occu. Cultivation,
(Dead. Thru. Lehal heirs)
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5A] Nikesh Umaji Nimkar,
Aged 28 years, Occu. Cultivation
5B] Mahesh Umaji Nimkar,
Aged 23 years. Occu. Cultivation
5C] Sapna Umaji Nimkar,
Aged 26 years, Occu. Household
5D] Umaji Dinaji Nimkar,
Aged 28 years, Occu. Cultivation,
All R/o Thanegaon, Tah. Armori,
Dist. Gadchiroli.
6] Varsha D/o Sadashiv Bankar
(now Varsha Someshwar Sontakke)
Aged about 28 years, R/o Near Binba Gate,
Chandrapur, Tah. & Dist. Chandrapur
7] Kiran D/o Sadashiv Bankar,
Aged about 26 years, R/o Palasgaon Jat,
Tah. Sindewahi, Dist. Chandrapur (Mah.)
8] Sitaram Natthu Bankar,
Aged about 35 years, R/o Palasgaon,
Tah. Sindewahi, Dist. Chandrapur (Mah.)
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Mr. M. P. Khajanchi, Advocate for the appellants
Mr. R. D. Dharmadhikari, Advocate for the respondents.
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CORAM : M. W. CHANDWANI, J.
Date of Reserving Judgment : JULY 03, 2025
Date of Pronouncement of Judgment : AUGUST 26, 2025
JUDGMENT
1. Whether the Court can take aid of its inherent power
under Section 151 of the Code of Civil Procedure (for short "CPC") to
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restore the possession which has been lost pending the suit, is the
question raised in this appeal
2. This appeal challenges the order dated 06.07.2005
passed by the learned District Judge, Chandrapur in Regular Civil
Appeal No. 134/1996 whereby, the learned District Judge reversed
the order dated 04.05.1996 passed by the learned Civil Judge, Junior
Division, Sindewahi in M.J.C. No. 02/1995 and dismissed the
application filed by the appellants under Section 144 read with
Section 151 of the CPC for restoration of their possession over the suit
house.
3. The thumbnail sketch of the facts is as under :
The predecessor of respondent nos.1 to 7 - Sadashiv as
well as respondent no.8 filed Regular Civil Suit No. 128/1988 against
appellant no.4 and Sundarabai (since deceased) for injunction
restraining them from disturbing their peaceful possession over the
suit house. They obtained ex-parte temporary injunction against the
original defendants on 20.08.1988 and on the basis of the said ex-
parte interim order, they ousted the original defendants by
manipulating and winning over the Bailiff to get possession of the suit
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property. The original defendants reported the matter to Police
Station, Sindewahi but no cognizance was taken. Thereafter, the
original defendants appeared in the suit and got the order of
temporary injunction vacated on 16.03.1989. Thereafter, the original
defendants filed an application under Section 144 of the CPC before
the trial Court for restoration of possession of the suit property as well
as moveable property, the possession of which was taken by the
respondents/original plaintiffs under the guise of ex-parte injunction
order by playing fraud. The original plaintiffs herein resisted the
application. The learned trial Court, after conducting inquiry by
recording evidence of the parties, came to the conclusion that on the
date of filing of the suit, the original defendants were in possession of
the suit house and they were dispossessed by the original plaintiffs on
the day the ex-parte injunction order was served and therefore,
allowed the application thereby restoring the possession of the suit
house under Section 144 of the CPC.
4. The respondents, the legal heirs of the original plaintiff
no.1, challenged the order passed by the trial Court by filing an
appeal before the learned District Judge, Chandrapur. The learned
District Judge allowed the appeal by the impugned judgment and
order on the ground that the possession has not been taken by the
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original plaintiffs under the direction of the Court but under false
pretext of temporary injunction. The learned District Judge by strictly
going with the language of Section 144 of CPC, opined that the
application filed under Section 144 of CPC is not maintainable as the
original defendants were not dispossessed under a decree on an order
of the Court and dismissed the application, thereby reversing the
order passed by the trial Court. Feeling aggrieved, the present second
appeal came to be filed.
5. This Court admitted the appeal on 13.09.2010 on the
substantial question of law which was modified on 01.07.2025 as
under :
"Whether the application filed by the appellants for
restitution of possession was tenable under the
provisions of Section 144 read with Section 151 of the
Code of Civil Procedure ?
6. I have heard Mr. M. P. Khajanchi, learned counsel
appearing on behalf of the appellants and Mr. R.D. Dharmadhikari,
learned counsel appearing on behalf of the respondents. With their
able assistance, I have gone through the record and proceedings.
7. Before proceeding to deal with the substantial question, it
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would be necessary to state here that, the learned trial Court as well
as the first Appellate Court are ad idem on the fact that the original
defendants were in possession of the suit house on 23.08.1988 when
the suit came to be filed and the original plaintiffs dispossessed the
original defendants while serving the ex-parte injunction order
through the bailiff. Therefore, there are concurrent findings of fact by
the trial Court as well as the first Appellate Court. The learned First
Appellate Court has non-suited the original defendants only on the
ground that the original plaintiffs had not obtained the possession
under a decree or an order of the Court. The learned first Appellate
Court recorded a finding that, only in the circumstance when the
possession has been given to a party under a decree or an order of the
Court, the provisions of Section 144 of the CPC will be applicable. It
has further been held that the application filed by the original
defendants under Section 144 is not maintainable and even Section
151 of the CPC cannot be made applicable to the case in hand.
Feeling aggrieved, the present appeal came to be filed.
8. In order to appreciate the arguments of the learned
counsels for the respective parties, it is necessary to reproduce Section
144 of the CPC under which the appellants made the application for
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restitution of possession which reads as under :-
"Section 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 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
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any restitution or other relief which could be obtained by
application under sub-section (1)."
9. Section 144 empowers the Court to order the restitution
of any benefit by placing the party back in the position which was
disturbed on reversal of the decree or order. The Court is duty bound
to place a party in the position which they had occupied prior to
passing of the decree or order. Thus, if any person is dispossessed or
displaced under a decree or an order of the Court and if such a decree
or order is later on set aside or modified in any appeal, revision or any
other proceeding on an application by the person so displaced, the
Court shall place the said person in the position in which they were
prior to the passing of such an order or decree.
10. Here in this case, undisputedly, the ex-parte injunction
order passed by the trial Court was restraining the predecessor of
appellant nos.1 to 3 - Sundarabai and appellant no.4 from disturbing
the peaceful possession of the respondents over the suit house which
was obtained by the original plaintiffs/the respondents, by misleading
the Court that they are in possession of the suit house. In reality, the
predecessor of appellant nos.1 to 3 as well as appellant no.4 were in
possession of the suit house. The original plaintiffs got forcible
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possession of the suit house while serving the ex-parte injunction
order of the trial Court. Thus, the original plaintiffs did not get
possession of the suit house under any decree of the trial Court or
under the order of the Court. Now the question which arises is, in a
case where the plaintiff plays fraud and obtains ex-parte injunction
and thereafter, takes law into his own hands to dispossess the
defendant, can the defendant get his possession back under Section
144 with the aid of Section 151 of the CPC by way of speedy
remedy ?.
11. Mr. Khajanchi, learned counsel for the appellants would
submit that when fraud is played on the Court by making false
submissions about the factum of possession and ex-parte temporary
injunction has been sought; in that situation, the Court cannot act as a
mute spectator and need not direct the aggrieved party to file a
separate suit for possession. According to him, the Court always has
inherent powers to restore the party who has been put to loss by the
other party by playing fraud. To buttress his submission, the learned
counsel seeks to rely on the decisions in Bansidhar Sharma (since
deceased) represented by his legal representative vs. State of
Rajasthan and others, reported at (2019) 19 SCC 701 ; and South
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Eastern Coalfields Ltd. vs. State of M.P. and others, reported at
(2003) 8 SCC 648.
12. Conversely, Mr. R.D.Dharmadhikari, learned counsel for
the respondents submitted that restitution by the trial Court can be
done only when possession has been delivered under the order of the
Court. In the present case, the interim order of the trial Court did not
require the original defendants to hand over possession to the original
plaintiffs. There was no order by virtue of which the original
plaintiffs were given possession of the suit house. Therefore, the first
Appellate Court has rightly held that the possession has not been
given by the original defendants to the original plaintiffs under the
dictum of the Court. To buttress his submission, he seeks to rely on
the decision in Murti Bhawani Mata Mandir represented through
Pujari Ganeshi Lal (Dead) through legal representative Kailash vs.
Ramesh and others, reported at (2019) 3 SCC 707.
13. Mr. R.D.Dharmadhikari further submitted that the Court
can invoke the powers under Section 151 of the CPC sparingly when
no alternate remedy exists or there is no provision under the Code.
To buttress his submission, he seeks to rely on the decision in My
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Palace Mutually Aided Co-operative Society vs. B. Mahesh and others ,
reported at (2022) 19 SCC 806. According to the learned counsel, the
appellants could have filed a suit for possession, if at all they were
dispossessed during pendency of the suit. An application under
Section 144 of CPC is not maintainable in such a case. He supported
the judgment of the learned first Appellate Court.
14. The Legislature has equipped the Court with inherent
powers enumerated under Section 151 of CPC. The powers under
Section 151 are wide. If justice and equity demands, the Court under
inherent powers can pass appropriate orders to do complete justice
even in absence of statutory provisions. In exceptional cases, the
Court can pass an order under Section 151 of the CPC even when
specific provisions of the CPC do not apply; provided that, inherent
powers do not override any provisions of the CPC. It is also explicitly
clear from Section 151 CPC itself that such inherent power can also
be used to prevent abuse of the process of law.
15. On the other hand, restitution is the statutory recognition
of a pre-existing rule of justice, equity and fair play. The law of
restitution encompasses all claims founded upon unjust enrichment.
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Section 144 incorporates only a part of the general law of restitution.
It is not exhaustive. Therefore, restitution comes under the inherent
powers of the Court and can be exercised when the case demands
justice, even though it does not strictly fall within the ambit of Section
144 of the CPC.
16. Proved it is that the original plaintiffs, though were not in
possession of the suit property on the day of filing of the suit, got the
ex-parte order of injunction by misleading the Court and by abusing
the process of law. They went to the extent of managing the bailiff to
get possession and dispossessed the original defendants under the
guise of ex-parte injunction. In this situation, the Court cannot sit as
a mere spectator and ask a litigant to go through the tedious and
lengthy process of litigation by filing a separate suit for possession. A
wrong order should not be perpetuated by keeping it alive and
respecting it. If no remedial measure is taken, the injury suffered by
the litigant would aggravate. To prevent abuse of the process of law,
the Court has to not only set aside an order passed erroneously but
the party that suffered loss by such abuse also to be restituted. Thus,
to meet the ends of justice and equity as well as to prevent abuse of
the process of law, the Court in its inherent powers can restore the
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possession even though the case does not strictly fall under the ambit
of Section 144 of the CPC.
17. It will be useful to refer to the decision in Jai Berham and
others vs. Kedar Nath Marwari and others [(1921-22) 49 IA 351 : AIR
1922 PC 269] wherein, Their Lordships of the Privy Council observed
as under :
"....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."
18. Reference can be made to decision in the case of South
Eastern Coalfields Ltd. (supra) wherein, the Supreme Court in
paragraph 28 has observed as under :
"28. ......... The factor attracting applicability of
restitution is not the act of the Court being wrongful or
a mistake or error committed by the Court; the test is
whether on account of an act of the party persuading
the court to pass an order held at the end as not
sustainable, has resulted in one party gaining an
advantage which it would not have otherwise earned,
or the other party has suffered an impoverishment
which it would not have suffered but for the order of
the Court and the act of such party. ........
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There is nothing wrong in the parties demanding being
placed in the same position in which they would have
been had the court not intervened by its interim order
when at the end of the proceedings the court
pronounces its judicial verdict which does not match
with and countenance its own interim verdict.
Whenever called upon to adjudicate, the court would
act in conjunction with what is the real and substantial
justice. The injury, if any, caused by the act of the court
shall be undone and the gain which the party would
have earned unless it was interdicted by the order of
the court would be restored to or conferred on the
party by suitably commanding the party liable to do so.
Any opinion to the contrary would lead to unjust if not
disastrous consequences. Litigation may turn into a
fruitful industry. Though litigation is not gambling yet
there is an element of chance in every litigation. ......."
19. In the decision of Mrs. Kavita Trehan And Another vs
Balsara Hygience Products Ltd. [(1994) 5 SCC 380] the Supreme
Court in para 22 has observed as under:
"22. The jurisdiction to make restitution is inherent in
every court and will be exercised whenever the justice
of the case demands. It will be exercised under
inherent powers where the case did not strictly fall
within the ambit of Section 144. Section 144 opens
with the words "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 instant case may not
strictly fall within the terms of Section 144; but the
aggrieved party in such a case can appeal to the larger
and general powers of restitution inherent in every
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court."
20. This Court, in Harishchandra Maurya .vs. Rajeshprasad
Dargahi Varma, [1997 (3) Mh.L.J. 437], in similar facts and
circumstances has held that in such a case, Section 151 of CPC is
applicable and during the pendency of the suit, by filing a simple
application, the possession of the defendant who is dispossed under
the guise of ex-parte injunction order can be restored in the same suit.
The ruling clearly indicates that if such an order could not have been
passed under Section 144(1), the inherent powers under Section 151
can be exercised to restore the possession.
21. In the decision in Murti Bhawani Mata Mandir (supra),
relied upon by the respondent, the complaining party did not
approach the Court with an exceptional case, nor the equity was in
her favour. In the said case, the possession was not taken under the
guise of the order of the Court. Therefore, it will not be helpful to the
respondents.
22. So far as the decision in My Palace Mutually Aided
Cooperative Society (supra), relied upon by the respondent is
concerned, in the case before the Supreme Court, the final decree was
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recalled under the inherent powers of the Court which had the effect
of unsettling the proceedings and transactions having a history of
more than 60 years in a proceeding on the basis of the application
filed under Section 151 of the CPC. Whereas, in the present case
under the guise of ex-parte injunction order and by abusing the
process of law, the original defendants were dispossessed in the year
1988 i.e. 37 years ago. Relegating them to file a separate suit for
possession which will take years together, will be nothing but a
travesty of justice. The facts of the case in hand demand exercise of
inherent powers of the Court. In the background of the facts of the
present case, the decision in My Palace Mutually Aided Co-operative
Society (supra) will not be applicable.
23. In view of the above, the jurisdiction to make restitution
is inherent in every court and will be exercised whenever the case
demands justice. That apart, under Section 151 of the CPC, the
Court not only has inherent powers, but can also pass an appropriate
order to prevent the abuse of process of the Court. The act of the
plaintiffs of misleading and playing fraud to make the court believe
that they are in possession of the suit property and thereafter, taking
forcible possession from the original defendants is nothing but the
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abuse of process of the Court. In this background and the legal
position, the order of the trial Court, in my view, is expedient and
meets the ends of justice. The findings of the first Appellate Court in
such a case are erroneous. The second appeal succeeds.
24. Accordingly, the Second Appeal is allowed.
(i) The judgment and order dated 06.07.2005 passed by the
learned District Judge, Chandrapur in Regular Civil Appeal No.
134/1996 is set aside.
(ii) The order dated 04.05.1996 passed by the learned Civil
Judge, Junior Division, Sindewahi in M.J.C. No. 02/1995, is restored.
(iii) The appeal stands disposed of. No order as to costs.
(M.W.Chandwani, J.)
Diwale
Signed by: DIWALE
Designation: PS To Honourable Judge
Date: 26/08/2025 20:47:05
