Bhagwat Dayal vs Sunheri
1996 Latest Caselaw 648 Del

JUDGMENT

Manmohan Sarin, J.

(1) By this application, the applicant/ respondent Nos.1 and 2 arc seeking directions from this Court to the petitioner to deposit a sum of Rs.10 lacs and for withdrawal by them of the amount to be so deposited.

(2) The case of the respondents/applicants for the relief sought may be briefly noticed:- The present revision petition had been filed by the petitioners against the order dated 11-1-1996 of Sh. V.K. Khanna, Civil Judge, passed in Suit No-810/92 titled "Sunehri & Another Vs. Bhagwat Dayal & Others". The dispute between the parties relates to the performance of "Puja Sewa" in Kalka Devi Mandir and collection of the offerings made by the worshipers as well as of "Teh-Bazari" realized from shop keepers, who set up the stalls.

(3) The respondent No.1 had filed Suit No-610/92 claiming inter alia a declaration in respect of her share in collection of the offerings. The injunction had also been sought against the petitioner from collecting offerings. The monthly bari commenced from 31-12-1995 to 30-1' 1996. The trial court vide its order dated 11-1- 1996, passed on the application under Order Xxxix Rules 1 and 2 Cpc, directed the parties to hold an auction on 11-1-1996 itself, failing which the parties were directed to appear in Court on 12-1- 1996. The present revision petition had been filed by the petitioner against the order of trial Court dated 11-1-1996. In the event, petitioner obtained an ex parte stay on 15-1-1996. The Court heard the parties after service of notice on 25- 1-1996. Without prejudice to the rights of the parties, it was agreed that for the remaining period from 25-1-1996 till midnight 30-1-1996, the petitioner would deposit Rs.2 lacs in Court being 50% of the expected offerings for this period. The petitioner undertook to deposit on or before 31-1-1996 the said amount. The amount was deposited. Respondents No.5 was permitted to withdraw the said amount, for distribution amongst respondents.

(4) The case was adjourned from time to time. On 10-5-1996, Mr. Rajiv Nayyar, counsel for the petitioner, withdrew the petition in view of the developments subsequent to the filing of the petition. The petition was dismissed as withdrawn in the presence of Mr. G.N. Aggarwal, whose presence is recorded on the said date for respondent No.3.

(5) Mr. Tarun John arguing for the applicants/respondents submitted that the amount claimed i.e Rs.10 lacs is worked out for 25 days i.e. from 1st to 24th on the basis of the offerings being as Rs.2 lacs for five days, which were deposited by petitioners as the applicants/respondents' share. Learned counsel submits that the Court in the exercise of inherent powers should not permit the petitioner to abuse the legal process by first obtaining ex parte order and subsequently withdrawing the revision petition and thereby unjustly enriching themselves. Learned counsel for the petitioner relied on Commissioner of Income Tax & Another Vs. Vinod Kumar Didivanza (AIR 1987 S.C. 1260). This was a case where the assessee challenged the prohibitory orders passed under Section 132(3) of Income Tax Act in a Writ Petition. Ex parte injunction was obtained. The assessee on the strength of ex parte injunction removed the goods and thereafter withdrew the Writ Petition. The Apex Court deprecated the strategy, holding that the assessee cannot be allowed to retain the unfair advantage obtained. The above authority does not advance the applicant's case, as the facts are clearly distinguishable.

(6) Learned counsel relied on Gangadhar and Others Vs.Raghubar Dayal and Others and Kavita Trehan and Another Vs. Balsam Hygiene Products Ltd . These authorities lay down that Section 144 of Civil Procedure Code is not exhaustive and Court can order restitution in the exercise of its inherent power also Under Section 151 for the cases which do not fall under Section 144 CPC. Learned counsel relied on Kavita Trehan and Another Vs. Balsara Hygiene Products Ltd (Supra) to urge that even though the suit had been dismissed, yet the Court directed the appellants who had sold the goods to furnish security in the sum of Rs.25.4 lacs having found that the respondent was entitled to the restitution of the stocks. There is no quarrel with the principles laid down regarding restitution in these authorities. However, the present case is clearly distinguishable, as in this case the order dated 25-1-1996 was in the nature of a consent order and an arrangement agreed to between the parties.

(7) I have given my careful consideration to this application. The respondents are seeking a substantive relief by means of miscellaneous application in a Civil Revision petition, which is already dismissed as withdrawn. Moreover, the order dated 25-1-1996 was a consent order without prejudice to the rights and contentions of the parties and it recorded an agreement reached with regard to the sharing of the offerings for the period 25-1-1996 to 31-1-1996. It was completely silent as to the period prior to 25-1-1996. On the basis of this consent order, the petitioner cannot achieve the substantive relief which has to be claimed, if admissible, in independent proceedings. It cannot be lost sight of that the plaintiffs suit for declaration and injunction is pending trial. The share of offerings agreed to for the period 25-1-1996 to 31-1-1996 without prejudice to the rights of the parties can at best be a piece of evidence in support of the respondents' case in appropriate proceedings. However, the same cannot be used as a ground for getting the substantive relief in these proceedings on the plea of restitution. This is not a case of gross abuse of legal process, warranting invoking of the inherent powers of the Court. The application is not maintainable and is accordingly dismissed.