Delhi High Court
North Delhi Power Ltd. vs Wheels Polymers Pvt. Ltd. & Anr. on 10 January, 2014
Author: Valmiki J. Mehta
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ RSA No. 212/2010 & CM No. 20606/2010
% 10th January, 2014
NORTH DELHI POWER LTD. ......Appellant
Through: Mr. K.Datta and Mr. Manish
Srivastava, Advocates.
VERSUS
WHEELS POLYMERS PVT. LTD. & ANR. ...... Respondents.
Through: Mr. Pankaj Nagpal & Mr. Rajat
Bhalla, Advocates.
CORAM:
HON'BLE MR. JUSTICE VALMIKI J.MEHTA
To be referred to the Reporter or not? Yes
VALMIKI J. MEHTA, J (ORAL)
1. This regular second appeal is filed against the judgment of the
appellate court dated 7.7.2010 which allowed the appeal of the present
respondent no.1 and who was the applicant in the application under Section
144 read with Section 151 CPC filed in the trial court. The appellate court
allowed the appeal of the respondent herein and who was the appellant in the
appellate court. Trial court by its judgment dated 20.11.2002 had dismissed
the application, and against which judgment the respondent herein had filed
the appeal, and in which appeal the respondent-applicant was successful.
RSA 212/2010 Page 1 of 10
Hence the present appeal by the non-applicant in the trial court and the
respondent in the appellate court.
2. The facts of the case are that the respondent herein as a plaintiff
filed a suit against the appellant herein for permanent and mandatory
injunction questioning the charge of fraudulent abstraction of energy from
the electricity connection. In this suit, the respondent-plaintiff had filed an
interim application for restoration of electricity supply and which application
was disposed of with the direction that respondent-plaintiff will pay the
amount claimed by the appellant herein (defendant in the suit) by means of
installments. On the amount being paid by the plaintiff in the suit and the
respondent herein, electricity connection was restored. The suit filed by the
respondent-plaintiff was however dismissed by the judgment dated 6.9.1999.
Whereas issue no.2 was held in favour of the respondent-plaintiff that there
was no valid inspection report dated 24.4.1996, the suit was however
dismissed in view of the finding in issue no.4 that the respondent-plaintiff
was not a registered consumer. Therefore the final position which emerges
was that the suit of the respondent-plaintiff stood dismissed. None of the
parties challenged the judgment dated 6.9.1999, much less the respondent-
plaintiff, who is the applicant in the application under Sections 144 and 151
RSA 212/2010 Page 2 of 10
CPC. I am doubtful as to whether the appellant herein and who was the
defendant in the trial court could have challenged the decree because the suit
against the appellant-defendant was dismissed, and such a defendant cannot
under Section 96 CPC file an appeal only with respect to one issue against
the defendant, although the suit of the plaintiff was dismissed vide Deva
Ram Vs. Ishwar Chand 1995(6) SCC 733.
3. Respondent-plaintiff after the dismissal of the suit filed the
subject application claiming that the applicant-plaintiff is entitled to
restitution on account of the fact that the issue no.2 was held in favour of
respondent-plaintiff and that since the respondent-plaintiff had paid amount
under interim orders of the court in installments for restoration of the
electricity connection, the respondent-plaintiff should be restituted by
direction for refund of the amount paid by the respondent-plaintiff to the
appellant-defendant.
4. Trial court by its judgment dated 20.11.2002 dismissed the
application by making the following observations:-
"Defendant on the other hand states that it was not the
defendant who was enriched by the interim order. Rather,
plaintiff was enriched by the interim order and ultimately
it was found that plaintiff has no locus standi to file the
present suit. Since plaintiff was not having any locus
RSA 212/2010 Page 3 of 10
standi to file the suit the present applicant/plaintiff has
also no locus standi to file the present application.
I have seen the file the judgment of the Ld. predecessor
court, rulling cited by the plaintiff and application. I feel
that the argument on behalf of defendant is correct. If the
main suit has been dismissed as plaintiff was having no
locus standi then there is no locus standi of the
applicant/plaintiff in the present application. I also feel
and agree with the Adv of defendant that it was not
defendant who was enriched by the interim order as his
electricity was restored which cannot be reverted back. I
feel that the rulling cited by the plaintiff cannot favour
the plaintiff as it is reverse the case. The suit was
ultimately dismissed.
I find no substance in the application U/s 114 CPC
read with Section 151 CPC and the same is dismissed.
Main file alongwith the miscellaneous application be
consigned to RECORD ROOM."
5. The appellate court by the impugned judgment dated 7.7.2010
set aside the order of the trial court dated 20.11.2002 by making the
following observations:-
"4. Vide judgment dated 06.09.1999, the suit of the appellant
was dismissed on the ground that there was no privity of
contract between the appellant and the respondent.
However, all the other issues were decided in favour of
the appellant and against the respondent. While deciding
issue No.2, it was also held by the learned Trial Court
that the plaintiff discharged his onus in proving that no
theft was committed by the appellant but as the defendant
failed to discharge its onus, issue No.2 is decided in
favour of plaintiff and against the defendant. As no
appeal was preferred by either party thus the aforesaid
judgment dated 06.09.1999 attained finality.
RSA 212/2010 Page 4 of 10
5. Since the appellant had deposited the amount of Rs.
3,84,712/- in installments against the alleged FAE bill
raised by the respondent, in view of the finding given by
the learned Trial Court with respect to inspection report
on the basis of which the FAE bill was raised as illegal,
the appellant preferred an application before the learned
Trial Court u/s 144 read with section 151 CPC to refund
the aforesaid amount. The said application of the
appellant was dismissed holding that
"If the main suit has been dismissed as plaintiff was having
no locus-standi, then there is no locus-standi of the
applicant/plaintiff in the present application. I also feel and
agree with the advocate of defendant that it was not
defendant who was enriched by the interim order as his
electricity was restored which cannot be reverted back. I
find no substance in the application u/s 114 CPC read with
section 151 CPC and the same is dismissed".
...........
11. Learned counsel for the respondent also placed reliance
on a judgment of the Delhi High Court title as "DTC Vs.
International Avenues, reported as 161 (2009) DLT 16
(DB). The aforesaid judgment does not in any manner
help the case of the respondent. Rather, it reiterates the
principle of restitution. It was held therein
"The principle of law is well established that
where proceedings filed by any person have come to
an end whether by withdrawal or by the same being
dismissed then such person is bound to restitute the
benefit which he has received under interim orders
which he was successful in seeking during the
pendency of the proceedings. This principle is
unexceptionable because otherwise a person would
simply take benefit of interim orders and thereafter
no pursue either the interim proceedings or the final
proceedings till its conclusion because the same may
go against him and consequently he may prefer to
quietly withdraw the proceedings and pocket the
benefit derived out of interim orders which he had
obtained in his favour. In fact, even if, proceedings
are not withdrawn but are ultimately unsuccessful
i.e., the same are dismissed, even then the principle of
restitution will govern the parties".
12. Not only it has been held that if as a result of an interim
order passed by the court, certain payment is made and
utilised, then in the event of ultimate success, the party
will be entitled to recover not only the entire dues but
also interest thereon. In support of his contentions that
the interest also ought to be paid by the respondent,
learned counsel for appellant relied on a judgment
reported as "1989 RLR 251 wherein it has been held that
"if the party has utilised the amount to which it was
not legally entitled, it is required to pay interest
thereon".
13. In view of the aforesaid discussion, the finding of the
learned Trial Court in the impugned order dated
20.11.2002 is set aside as perverse and based on
conjectures. Accordingly, the respondent is directed to
refund Rs.3,84,712/- to the appellant alongwith simple
interest @ 18% p.a., from the date of deposit till
realization."
6. Since for the disposal of RSA substantial questions of law are
required to be framed, I frame the following substantial questions of law:-
"(i) Whether a plaintiff can seek execution of a judgment and
decree which dismissed the suit of the plaintiff by filing an
application under Sections 144 and 151 CPC?
(ii) Whether principle of restitution can be invoked by the
respondent-plaintiff in the present case where the appellant-
defendant has not taken benefit of any interim order or final
judgment passed in the suit.
(iii) Whether the decision of issue no.2 in the judgment passed in
the suit dated 6.9.1999 operates as res judicata in favour of the
respondent-plaintiff and against the appellant-defendant?
7. I may note that I have framed the aforesaid substantial
questions of law and which would be in reformulation of the substantial
question of law framed by a learned Single Judge of this Court by the order
dated 8.4.2013.
8. The raison d'etre of the principle of restitution comprised in
Section 144 CPC, and with respect to which provision of Section 151 is also
sometimes invoked, is that a person who has received benefit under a court
order/judgment which is subsequently set aside, must restitute the benefit
which he had received because of the interim or final order. Extending the
principle of Section 144 CPC applications under Section 151 CPC are also
entertained for restitution where any party to a suit takes benefit of an
interim order, but thereafter the main suit proceedings themselves are either
dismissed or not pursued. It is in such circumstances that a Division Bench
of this Court in the case of DTC Vs. International Avenues, 161(2009) DLT
16 (DB) applied the principle of restitution because petitioner who was an
advertiser in that case, took benefit of an interim order by the hoardings
remaining for a particular period at the licenced premises and earned
revenues, but the main petition was got dismissed for non-prosecution
without refunding/restituting the benefit of interim orders which were taken
by the petitioner in that case. In such circumstances, the observations were
made by the Division Bench (and to which I am a party) and which have
been relied upon by the appellate court in para 11 of its judgment which I
have reproduced above.
9. In the present case, admittedly, the principle of restitution does
not apply as per language of Section 144 because it is not as if that any party
to the suit took benefit of a final judgment of a court which has been set
aside by the appellate court and consequently restitution is prayed for. There
is also no benefit which is taken of an interim order by the appellant-
defendant herein, because it is not that the appellant-defendant, had
approached the court for an interim order by filing of an interim application
inasmuch as it was the respondent-plaintiff who sought an interim order for
restoration of the electricity supply and which was allowed subject to the
payment of the amount by the respondent-plaintiff in installments. Really
therefore, it is the respondent-plaintiff, who got benefit of the interim order
and it is not as if that the appellant-defendant got benefit of interim order
which benefit has to be restituted on disposal of the proceedings. Even if I
assume that the interim order was in favour of the appellant-defendant, but
the fact of the matter is that suit itself was dismissed, and therefore, in such a
case where the main suit itself is dismissed there does not arise any issue of
restitution in favour of the plaintiff-respondent and which amounts to
execution of a finding in a judgment by which the suit is in fact dismissed.
10. In view of the above, substantial questions of law stated above
are answered in favour of the appellant-defendant and against the
respondent-plaintiff by observing that the appellate court in fact by its
judgment allowed execution of a judgment and decree in favour of the
plaintiff where the suit itself had been dismissed. It is also observed that
there cannot be execution merely because one issue has been decided in
favour of the respondent/plaintiff/applicant although the main suit itself has
been dismissed because no appeal lies under Section 96 CPC by a defendant
against a judgment by which a suit is dismissed simply because one of the
issues is decided in favour of the plaintiff and against the defendant.
11. In view of the above, appeal is allowed. The impugned
judgment of the appellate court dated 7.7.2010 is set aside. Parties are left to
bear their own costs.
JANUARY 10, 2014 VALMIKI J. MEHTA, J.
ib
