Delhi High Court
Veena Devi & Anr vs Praveen Kumar Gupta & Ors on 22 March, 2021
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* IN THE HIGH COURT OF DELHI AT NEW DELHI
Reserved on: 10.03.2021
% Pronounced on: 22.03.2021
+ RSA 181/2019
MRS.VEENA DEVI & ANR ..... Appellants
Through: Mr. Jayant K. Mehta, Amicus
Curiae with Ms. Sunita Devi,
Appellant No.2 and daughter of
Appellant No. 1 in person.
versus
MR. PRAVEEN KUMAR GUPTA & ORS ..... Respondents
Through: None
CORAM:
HON'BLE MS. JUSTICE JYOTI SINGH
JUDGEMENT
1. This Regular Second Appeal has been filed under Section 100 read
with Order 42 Rule 1 of Code of Civil Procedure, 1908 (hereinafter
referred to as 'CPC') against the impugned judgment dated 06.05.2019
whereby the appeal of the Appellants against the judgment and decree
dated 24.09.2018 in Suit No. 607578/2016 has been dismissed.
2. Brief and relevant facts necessary for adjudication of the appeal are
that Respondent Nos. 1 to 3 herein/ Plaintiffs in the Suit, being the sons
of Late Shri Shankar Lal and Smt. Veena Devi, instituted a Suit for
permanent injunction against their parents. Late Shri Shankar Lal was
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Defendant No. 1 and Smt. Veena Devi was Defendant No. 2. The suit
was filed to restrain the Defendants from dispossessing them from shop
No. 5308, Shora Kothi, Paharganj, New Delhi (suit property). It was
alleged that (a) the Plaintiffs were carrying out their business from the
suit property at the time of institution of the suit; (b) Plaintiff No. 1 was
carrying on business of catering for the last 12 years and his goods and
other catering material were lying in the suit property; (c) Plaintiff No. 2
was carrying on business of tent/decorators and furniture for about 12
years and his tent material, utensils etc. were lying in the suit property;
(d) Plaintiff No. 3 was carrying on business of sweets for the last 5 years
and his articles were lying in the suit property; (e) Defendant No. 1 was
mentally disturbed and the Plaintiffs were taking care of him including
his treatment at various hospitals; (f) Plaintiffs were in settled possession
of the suit property and the Defendants were trying to dispossess the
Plaintiffs; (g) Defendant No. 2 was the owner of the suit property; (h)
Defendant No. 1 threatened to oust the Plaintiffs from the suit property on
21.08.2005 and again on 22.08.2005, which gave rise to cause of action
for filing the suit for permanent injunction. Together with the Plaint, the
Plaintiffs also filed an application for temporary injunction under Order
39 Rules 1 and 2 read with Section 151 of the CPC.
3. Written statement was filed by the Defendants alleging (a) the suit
was a gross abuse of the process of law; (b) Plaintiffs concealed material
facts from the Court; (c) Neither of the Plaintiffs were in possession of
the suit property; (d) Allegation that Defendant No.1 was mentally
disturbed was false, defamatory and derogatory; (e) Defendant No. 1 had
disowned the three sons by a notice, way back in January, 1994; (f) As
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none of the Plaintiffs were in possession on the date of institution of the
suit, the suit was not maintainable; (g) On 15.08.2005 suit property was
leased to one Radhey Shyam and this triggered the Plaintiffs coming to
the house of the Defendants and threatening the Defendants, which led to
a Police Complaint by the Defendants. Replication was filed to the
Written Statement by the Plaintiffs.
4. On 30.08.2005, Learned Trial Court appointed a Local
Commissioner to ascertain the factum of the possession of the suit
property. On 03.09.2005 a Report was rendered by the Local
Commissioner as per which the suit property was in possession of
Defendant No. 1/ Shri Shankar Lal. Based on the Report and relying on
the judgments on the issue, learned Trial Court vide order dated
10.09.2005 dismissed the application for temporary injunction.
5. On 06.02.2006, the Trial Court framed the following issues:-
"1. Whether the plaintiff is entitled for relief of permanent
injunction, as prayed for? OPP
2. Relief."
6. During the pendency of the suit Shri Shankar Lal expired on
05.04.2009 and his two daughters were brought on record vide order
dated 09.02.2011 and arrayed as Defendant Nos. 1(b) & 1(c), while Smt.
Veena Devi was arrayed as Defendant No.1(a). Defendant No.1(b),
namely, Sangeeta did not contest the suit and is Respondent No.4 in the
present appeal. In the meantime, on 27.09.2010 Smt. Veena Devi
executed a registered Gift Deed, gifting the suit property to Defendant
No. 1(c). For the sake of convenience, the Plaintiffs in the Suit are
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referred to as Respondents and Defendants 1(a) and 1(c), who are
Appellant Nos.1 and 2, respectively are referred to as Appellants
hereinafter.
7. Parties led evidence in support of their claims. Respondents
examined themselves as PW-1, PW-2 and PW-3, respectively and
tendered evidence by way of affidavits, apart from examining certain
other witnesses. Appellants examined Smt. Veena Devi as DW-1, who
tendered affidavit in Examination-in-Chief but did not subject herself to
cross-examination by the Respondents.
8. As per the case set up by the Appellants, on 22.02.2016, during the
pendency of the Suit, Respondents entered the suit property and after
removing the locks of the Appellants, placed their locks on the shutter of
the suit property, thereby forcefully dispossessing the Appellants.
9. Appellants filed an application under Section 151 CPC seeking
directions to the Respondents to remove the locks of the suit property.
Respondents resisted the application on the ground that the application
was not maintainable, in the absence of a counter-claim by the
Appellants, though admitting that Appellant No. 1 was the owner of the
suit property.
10. Learned Trial Court dismissed the application on 04.07.2018 on the
ground that the application ought to have been filed by Defendant No.
1(c) who was now the owner through the Gift Deed and that the
application disclosed a separate cause of action for which appropriate
proceedings ought to have been instituted by Defendant No. 1(c). The
said order was assailed by the Appellants by filing a Civil Revision
Petition No. 222/2018 before this Court.
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11. Learned Trial Court dismissed the suit by its judgment and decree
dated 24.08.2018, observing that Plaintiff No. 2 had admitted that
Plaintiffs were not in possession of the suit property at the time of filing
the suit and the use of the property by the Plaintiffs was merely
permissive/gratuitous. A finding was also rendered that it was undisputed
that Smt. Veena Devi was the owner of the suit property. Since the suit
was dismissed, this Court disposed of the Revision Petition as infructuous
vide order dated 08.10.2018. Appellants filed Special Leave Petition No.
4375/2019 before the Supreme Court against the said order, which was
dismissed as withdrawn with liberty to the Appellants to pursue the legal
remedy against the final judgment dated 24.09.2018 passed by the learned
Trial Court.
12. On 25.10.2018, Appellants No.1 filed another application in the
disposed of suit for restoration of possession against the Respondents.
Learned Trial Court vide order dated 03.11.2018 dismissed the
application on the ground that the suit had been dismissed and that the
application disclosed a separate cause of action for which the applicant
has to avail an appropriate remedy under the law. Appellants thereafter on
17.11.2018 filed an appeal being Civil Appeal No. 182/2018 under
Section 96 of the CPC before the First Appellate Court against the
judgment and decree dated 24.09.2018, on account of their forcible
dispossession by the Respondents and also filed an appeal being MCA
No. 85/2018 on 17.12.2018, under Section 47 CPC against the order
dated 03.11.2018, rejecting Appellant No.1's application for restoration
of possession.
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13. Vide order dated 06.05.2019, the appeal under Section 47 CPC was
dismissed on the ground that the impugned order was not appealable by
virtue of Section 104 CPC and Rule 1 of Order 43 CPC. Appeal under
Section 96 CPC was also dismissed vide a separate order dated
06.05.2019 and it is this order which is impugned in the present appeal by
the Appellants.
14. In a nutshell what emerges is that in the litigation between the
parties before the Courts below, learned Trial Court in the Suit decided
Issue No. 1 against the Respondents and held that they were not entitled
to relief of permanent injunction and this was based on the admission of
the Plaintiffs therein that Smt. Veena Devi was the owner of the property
and the Plaintiffs were not in possession when the Suit was instituted.
The possession of the Respondents was only gratuitous and thus no
injunction could be granted against the owner of the property. The Suit
was accordingly dismissed.
15. In appeal by the Appellants against the judgment and decree,
seeking restoration of possession, the First Appellate Court declined to
grant relief holding that (a) Trial Court dismissed the Suit only by
considering the admission made by Plaintiff No. 2 and did not consider
the extent to which the said admission would bind the other Plaintiffs; (b)
Plaintiffs never admitted that Defendants were in possession of the suit
property; (c) No order of injunction or status quo was violated by the
Plaintiffs; (d) Defendants did not lead evidence to show their forcible
dispossession during the pendency of the suit and Defendant No. 1 (c) did
not enter the witness box.
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16. In the present appeal, on 17.10.2019 this Court framed the
following substantial questions of law:-
"(i). Whether the civil court is duty bound to direct
restoration of possession to the defendant while dismissing
the suit of the plaintiff for injunction against forcible
dispossession if the material on record reveals that plaintiff
was not in possession at the inception but had taken over
during the pendency of the case?
(ii). Whether an appeal can be maintained by a defendant
in facts and circumstances mentioned in preceding issue
even though the suit against him has been dismissed?"
17. Arguments were addressed on factual aspects by Appellant No. 2
in person and on questions of law by Mr. Jayant Mehta, Amicus Curiae in
the matter. It was contended that power of a Court to grant restitution is
an inherent power and it encompasses all claims founded upon the
principle of unjust enrichment and in essence provides for reparation to a
wronged party for any wrongs committed in the course of a judicial
proceeding. The Principle of Restitution is embodied inter-alia in Section
144 of the CPC, 1908. The Courts have held in a Catena of judgments
that Section 144 of the CPC only incorporates part of the general law of
restitution and is not exhaustive. Power of a Court to direct restitution is
not limited to situations where party suffers an injury at the instance of
the Court in its order or decree, but extends to cases where party is
aggrieved by actions of another party. It was also argued that quite apart
from Section 144, the Court has wide powers under Section 151 CPC to
direct restitution in favour of an aggrieved party to meet the ends of
justice. Reliance was placed on the following judgments:-
(i). Tanusree Basu v. Ishani Prasad Basu, (2008) 4 SCC 791
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(ii). Kavita Trehan v. Balsara Hygiene Products Ltd., (1994) 5
SCC 380
(iii). Kartick Chandra Boroye v. Kashi Nath Mondal, 1996 SCC
OnLine Cal 365
(iv). State Govt. of A.P. v. Manickchand Jeevraj & Co., 1972
SCC OnLine AP 95
(v). Mohammad Salim v. Shahin Sah, 2006 SCC OnLine Raj 8
(vi). Pushap Raj v. Kuldeep Singh 1997 AHIC 3681
18. Relying on the aforesaid judgments, it was contended that the
Appellants herein were in possession of the suit property from the very
inception of the Suit, but were subsequently dispossessed during its
pendency. Having rendered a finding in favour of the Appellants to this
extent, the Trial Court ought to have exercised its jurisdiction under
Section 151 CPC to restore the possession of the Appellants, in the
interest of justice.
19. It was next contended that 'possession' has been given paramount
importance in law. Courts have recognized the right of a party to claim
possession and even a person in unauthorized possession is given
protection and can be dispossessed only after following due process of
law. Section 6 of the Specific Relief Act, 1963 also affirms this important
principle of substantive law i.e. 'protect possession' and for this reason
prescribes a summary procedure with the object of discouraging illegal
methods and means to dispossess a person. Reliance is placed on the
judgment in S.R. Ejaz vs. T.N. Handloom Weavers' Coop. Society Ltd.,
(2002) 3 SCC 137 and Adapa Tatarao vs. Chamantula Mahalakshmi,
2006 SCC Online AP 757. For the proposition that where a person is in
settled possession of a property, even on the assumption that he has no
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right to remain on the property, he cannot be dispossessed except in
accordance with law, reliance is placed on the judgment in Sameer
Sobhan Sanyal vs. Tracks Trade (P) Ltd. (1996) 4 SCC 144 and Krishna
Ram Mahale vs. Shobha Venkat Rao (1989) 4 SCC 131.
20. The next contention was that Respondents cannot be allowed to
reap the fruits of illegally dispossessing the Appellants. Respondents did
not dispute the ownership of the suit property being vested in Smt. Veena
Devi either in the Plaint or during evidence. The Local Commissioner
found that the suit property was in possession of Shri Shankar Lal.
Respondents failed to prove any right to possess the suit property and the
Trial Court in fact rendered a finding that they were disentitled to seek
injunction against the owner. It would thus be highly unjust if the owner
of the suit property is not given back the possession and those who have
been held disentitled in law to possess the property and seek injunction
are permitted to place their locks on the property and oust the Appellants.
21. Mr. Mehta also contended that the order dated 04.07.2018 passed
by the Trial Court in the application under Section 151 CPC stood
merged in the judgment and decree dated 24.09.2018, which is also
evident from the order dated 08.10.2018 passed in C.R.P. No. 222/2018.
Thus, the Trial Court while passing the decree erred in not considering
the events subsequent to the filing of the suit and failed to exercise its
inherent jurisdiction to do substantive justice between the parties and the
same error crept into the impugned order dated 06.05.2019. It is argued
that the Court has complete power to take into account subsequent events
which occur after the filing of the suit and this power is not limited to the
Trial Court but can be exercised even by the Appellate Courts. Reliance
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is placed on the judgment in Shipping Corporation of India Ltd. vs.
Machado Bros., (2004) 11 SCC 168 and Pasupuleti Venkateswarlu v.
Motor and General Traders, (1975) 1 SCC 770. Thus, it is urged that the
Courts below ought to have restored the possession to the Appellants,
once it came on record that Respondents were not in possession when the
suit was instituted.
22. With regard to the second question of law framed by the Court, Mr.
Mehta urges that as per Section 100 of the CPC a second appeal lies to
the High Court from every decree passed in appeal by any Court
subordinate to the High Court, if the High Court is satisfied that the case
involves a substantial question of law. Existence of a substantial question
of law is the sine qua non for exercise of jurisdiction. A plain reading of
Sections 96 and 100 CPC shows that it does not specify who can file a
second appeal and, therefore, as long as a party is 'aggrieved' by the
decision of the Lower Court, an appeal can be filed. In the facts of this
case, it is evident that the Appellants are aggrieved by the failure of the
Courts below to restore possession of the suit property despite there being
sufficient material on record to show that they were in possession from
the inception of the suit and, therefore, the present appeal is maintainable.
23. I have heard the learned Amicus Curiae and Appellant No. 2 in
person. In so far as Respondents are concerned, they have chosen not to
appear on 10.03.2021 when arguments were heard, despite the matter
having being called twice and there was no appearance even on the date
prior thereto. Hence, no arguments have been advanced to contest the
case of the Appellants.
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24. The first substantial question of law that needs consideration by
this Court is whether the Trial Court was bound to direct restoration of
possession to the Appellants while dismissing the suit of the Respondents
for injunction, if the material on record revealed that the Appellants were
in possession at the inception, but had been dispossessed during the
pendency of the suit and the second substantial question is whether the
Appellants can file the present appeal even though the suit against them
has been dismissed.
25. In order to answer the first question, I may examine the provisions
of Section 144 and Section 151 of the Civil Procedure Code, 1908.
Provisions of Section 144 CPC enable a Court, which has passed the
decree, to cause restitution, on an application of a party, entitled to seek
restitution, wherever a decree or an order is varied or reversed in an
appeal, revision or other proceedings or is set aside or modified. Sub-
Section (2) of Section 144 provides that no Suit shall be instituted for
obtaining any restitution which could be obtained by an application under
Sub-Section (1). It was held by the Supreme Court in Kavita Trehan
(supra) that the law of restitution encompasses claims founded upon the
principle of unjust enrichment and restitutionary claims are found in
equity as well as at law. It was also held that Section 144 incorporates
only a part of the general law of restitution and is not exhaustive.
Jurisdiction to make restitution is inherent in every Court and shall be
exercised whenever justice of the case demands. Significantly, it was also
held that jurisdiction will be exercised under inherent powers where the
case does not strictly fall within the ambit of Section 144. Relevant paras
of the judgment are as follows :-
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"16. The Law of Restitution encompasses all claims
founded upon the principle of unjust enrichment.
„Restitutionary claims are to be found in equity as well as at
law‟. Restitutionary law has many branches. The law of
quasi-contract is "that part of restitution which stems from
the common Inebriates counts for money had and received
and for money paid, and from quantum meruit and quantum
vale bat claims." [See 'The Law of Restitution" - Goff &
Jones, 4th Edn. Page 3]. Halsburys Law of England, 4th
Edn. Page 434 states :
"Common Law. Any civilised system of law is
bound to provide remedies for cases of what has
been called unjust enrichment or unjust benefit,
that is, to prevent a man from retaining the money
of, or some benefit derived from, another which it
is against conscience that he should keep. Such
remedies in English law are generically different
from remedies in contract or in tort, and are now
recognised to fall within a third category of the
common law which has been called quasi contract
or restitution.
For historical reasons, quasi contract has
traditionally been treated as part of, or together
with, the law of contract. Yet independently, equity
has also developed principles which are aimed at
providing a remedy for unjustifiable enrichment. It
may be that today these two strands are in the
process of being woven into a single topic in the
law, which may be termed „restitution‟."
xxx xxx xxx
"21. Section 144 CPC incorporates only a part of the
general law of restitution. It is not exhaustive. (See
Gangadhar and Ors. v. Raghubar Dayal and and State Govt.
of Andhra Pradesh v. Manickchand Jeevraj & Co. .
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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 court."
26. In Tanusree Basu (supra), it was held that it is a settled principle
of law that Order 39 Rules 1 & 2 CPC is not the sole repository of the
power of Court to grant injunction and Section 151 confers powers upon
the Court to grant injunction where the matter is not covered by Order 39
Rules 1 & 2. It was also held that it is not the law that a party to a suit
during the pendency can take law into his own hands and dispossess the
co-sharer. If a party takes recourse to dispossess another party, during
pendency of the Suit, either in violation of the order of injunction or
otherwise, Courts indisputably will have jurisdiction to restore the parties
to the same position as it was before filing of the Suit. Relevant paras are
as under:-
"16. It is now a well-settled principle of law that Order 39
Rule 1 of the Code of Civil Procedure (code) is not the sole
repository of the power of the Court to grant injunction.
Section 151 of the Code confers power upon the Court to
grant injunction if the matter is not covered by Rules 1 and 2
of Order 39 of the Code. (see Manohar Lal Chopra v. Seth
Hiralal and India Household and Healthcare Ltd. v. LG
Household and Healthcare Ltd.)"
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xxx xxx xxx
"23. It is not the law that a party to a suit during pendency
thereof shall take law into his hands and dispossess the other
co-sharer. If a party takes recourse to any contrivance to
dispossess another, during pendency of the suit either in
violation of the order of injunction or otherwise, the court
indisputably will have jurisdiction to restore the parties back
to the same position."
27. In Kartick Chandra Boroye (supra) Calcutta High Court observed
that while it is true that in certain cases Section 144 CPC may not be
attracted, when in pursuance to an order or decree a person is
dispossessed, which may not be a case of the decree being varied or set
aside, but even then to meet the ends of justice, Court can exercise power
of restitution under Section 151 CPC and can also order police help. To
the same effect are the decisions in Soudamini Roy Chowdhary vs.
Satyendra Nath Shankar, 85 CWN 958 and Sujit Pal vs. Pabitra Kumar
Sur, 1985 (II) CHN 433.
28. At this stage, I may also advert to the concept of restitution as
developed by judicial precedence. The earliest case on the point is Shama
Purshad Hurro Purshad, (1863-66) 10 Moo Ind. App. 203 (PC),
wherein the Judicial Committee observed as under:-
"If it (the original decree or judgment) has been so reversed
or suspended the money recovered under it ought certainly
to be refunded."
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29. The view was reiterated in the case of Alexender Roger vs.
Comptoir D'Escompte De Paris, 1871 L.R. 3 P.C. 465 by the Privy
Council as follows:-
"One of the first and highest duties of all courts is to take
care that the act of the Court does no injury to any of the
suitors"
30. The view expressed by the Judicial Committee was subsequently
incorporated in the Code as Section 583 of the Code of Civil Procedure,
1882 and Section 144(1) is the corresponding Section in the present
Code, 1908. Relevant would be to refer to the decision of the Privy
Council in Jai Berham vs. Kedarnath, AIR 1922 P.C. 269, wherein it
was observed that it is the duty of the Court under Section 144 CPC to
place the parties in the position they would have occupied but for the
decree that has been varied/reversed, but this duty or jurisdiction does not
merely arise under the said Section and is inherent in the general
jurisdiction of the Court to act rightly and fairly according to the
circumstances. Relevant para is as under:-
"It is the duty of the court under Sec. 144 of the Civil
Procedure Code to place the parties in the position which
they would have occupied but for such decree of 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."
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31. This view was reiterated by the Supreme Court in the case of
Bhagwant Singh vs. Kishen Das AIR 1953 SC 136 which is as follows:-
"......the doctrine of restitution....... is that on the reversal
of a judgment the law raises on obligation on the party to
the record who received the benefit of the erroneous
judgment to make restitution to the other party for what he
had lost and that it is the duty of the court to enforce that
obligation unless it is shown that restitution would be
clearly contrary to the real justice of the case."
32. Relying on the said judgments, the Andhra Pradesh High Court in
State Govt. of A.P. (supra) reaffirmed the principles and enumerated
them as follows:-
"7. The principle of restitution envisaged under section
144(1) of the code of civil procedure shall be applied for the
purpose of restoring the parties to a cause to their respective
places where a decree or order is varied or reversed by the
same court or appellate or revisional court. The essence of
this rule is to see that no party should derive any benefit or
advantage on account of an erroneous or illegal order or
decree of a court, which is ultimately varied or reversed in
due course of law. In other words, where parties have
pursuant to a decree or order passed by the court of first
instance obtained any advantage or benefit either by
execution of such order or decree or otherwise, the court,
under sec. 144, has a duty to restore the parties to their
respective original positions or places as if the original
decree or order which has been reversed or varied
subsequently either by the same, appellate or revisional
court was not passed or in existence. No party can take
advantage of the wrongful acts or orders or decrees of any
court. The provisions of section 144 are mandatory. The use
of the word „shall‟ makes it obligatory on the court, on the
application of any party entitled for restitution, to place the
parties in the position which they would have occupied but
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for such erroneous or illegal decree or order or any part
thereof as has been varied of reversed. The court has no
discretion to refuse the application to grant restitution if the
ingredients of section 144 are satisfied."
xxx xxx xxx
"12. It is well-settled that restitution can be ordered either
under section 144 or section 151 of the Code of Civil
Procedure. Vide Jai Berham v. Redar Nath] , J.P. Rego v.
Ananthamathi] , Palaniappa Chettiar v. Ramanathan
Chettiar] , Alapati Anakamma v. Pavuluri Basava Pumayya]
and Mohammed Hussain v. A.K.M. Pitchai] . Where the
ingredients of section 144 C.P.C. are satisfied, the Court has
no discretion to refuse restitution as the provisions of section
144 are mandatory. There may be cases where the
provisions of section 144 are not strictly satisfied but at the
same time it is just, proper and equitable to order restitution
as no party should be allowed to take advantage or benefit of
a wrong or illegal order of a court of law. In such cases, the
court must step in and exercise its inherent power invested
under section 151 and do real and substantial justice to the
parties, the very intendment and purpose of sec. 151 being
only to meet the ends of justice and to prevent miscarriage of
justice. The power vested under sec. 151 being discretionary
and to be used to do real and substantial justice to the
parties, must be exercised fairly, reasonably and objectively
but not arbitrarily. Even assuming that the provisions of
section 144 C.P.C. are not attracted, it admits of no doubt
that the court has inherent jurisdiction under section 151 to
order restitution and payment of reasonable rate of interest
on the amount directed to be paid back to the party from
whom it was erroneously or illegally collected. Admittedly
the respondent was deprived of the utility and benefit of the
sum of Rs. 24,000/- paid by it to the state. The State has had
really the advantage and benefit of the use of such sum.
Hence, in the circumstances, we are satisfied that this is a fit
case where the restitution must be ordered. We are also of
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the view that payment of 6% interest on the amount of the
deposit, i.e., 24,000/- is just, fair, proper and reasonable."
33. The High Court of Rajasthan in Mohammad Salim (supra)
observed that Section 151 CPC merely furnishes Legislative recognition
of an age-old principle that every Court has inherent power to do real and
substantial justice and to prevent abuse of process of Court. Reliance was
placed on an earlier judgment of the Rajasthan High Court in Pushap Raj
(supra) wherein the Defendant was forcibly dispossessed after filing the
Suit and the Court had invoked inherent powers to restore the position as
it stood on the date of filing of the Suit and granted mandatory injunction.
Relevant paras in Mohammad Salim (supra) are as follows:-
"21. Section 151 CPC is an addition in the Code of 1908,
which is based on many earlier decisions which clearly
reveal that what was implicit has been made explicit. The
Section merely furnishes legislative recognition of an age-
old and well established principle that every Court has
inherent power to act ex debito justitiae to do the real and
substantial justice for the administration of which alone it
exists or to prevent abuse of process of the Court. In 1868,
PEACOCK CJ, in case of Hurro v. Shoorodhonee, 9 WR 402
at page 406 said:" Since laws are general rules, they cannot
regulate for all time to come so as to make express
provisions against all the cases that may possibly
happen................It is the duty of the judges to apply the
laws, not only to what appears to be regulated by their
express dispositions but to all the cases to which a just
application of them may be made, and which appear to be
comprehended either within the express sense of the law or
within the consequences that may be gathered from it." (The
aforesaid observation of PEACOCK CJ has been taken from
page 697 of Sarkar's C.P.C., Xth reprint Edition, 2004, Vol.
I). The identical observations were made by the Supreme
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Court in Manohar v. Hiralal, AIR 1962 SC 532 in paragraph
Nos. 18 and 23 of the aforesaid judgment of the Supreme
Court, which are as follows:--
"18. ............ It is well settled that the provisions
of the Code are not exhaustive for the simple
reason that the Legislature is incapable of
contemplating all the possible circumstances which
may arise in future litigation and consequently for
providing the procedure for them............"
23. ............The section itself says that nothing in
the Code shall be deemed to limit or otherwise
affect the inherent power of the Court to make
orders necessary for the ends of justice. In the face
of such a clear statement, it is not possible to hold
that the provisions of the Code control the inherent
power by limiting it or otherwise affecting it. The
inherent power has not been conferred upon the
Court; it is a power inherent in the Court by virtue
of its duty to do justice between the parties before
it."
xxx xxx xxx
"23. In view of the discussions made herein above, I approve
the findings of both the Courts below on the issue of prima
facie case, balance of convenience and irreparable loss and
further agree with the specific observations in case where a
person has been dispossessed to overreach the proceedings
of the Court and make application infructuous and further in
case the possession is not restored, then the tendency of
taking the law in hands without following in the due process
of law will be increased. The aforesaid act of the party will
also result in possible increase of anarchy in the society. I
would also further like to add that in such type of cases,
restoration of the possession will not only do substantial
justice to the respondent-plaintiff but also restore the
confidence of the public in Courts. Thus, both the Courts
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below have rightly invoked the inherent powers of the civil
Court while passing the order of restoration of possession."
34. I may also usefully allude to a judgment by the Supreme Court in
Bansidhar Sharma (since deceased) Rep. by his Legal Representative v.
The State of Rajasthan and Ors. (2019) 19 SCC 701. In the said case,
the predecessor of the Appellant before the Supreme Court, had filed a
suit for possession and permanent injunction, which was dismissed and
the appeal was filed before the Rajasthan High Court. During the
pendency, the High Court passed an interim order directing that the
appellant shall not be dispossessed from the premises where he resided.
Finally, however, the appeal was dismissed and the challenge before the
Supreme Court was unsuccessful. After the dismissal of the SLP, the
Respondents sought possession of the premises and sent an intimation to
the Appellant. When no action was taken, interlocutory application was
filed under Section 151 read with Section 144 CPC, before the Single
Judge of the High Court. The Court allowed the application with liberty
to the Respondent/ State to take possession of the suit property with
police or other aid, if necessary. The order was thereafter challenged by
the Appellant. The bone of contention of the Appellant was that the
execution application would lie only before the Court of first instance and
not the High Court. Counsel for the Respondents, per contra, supported
the finding of the High Court and argued that there was no decree or
order of the Trial Court by virtue of which the appellant was given
possession of the subject property as a Suit came to be dismissed in the
first instance by the Trial Court and this was affirmed upto the Supreme
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Court. Relying on the decisions of the Supreme Court in Neelathupara
Kummi Seethi Koya Phangal (Dead) by L.Rs. v. Montharapalla
Padippua Attakoya and Ors. 1995 Supp (3) SCC 760 and Murti
Bhawani Mata Mandir Rep. Through Pujari Ganeshi Lal (D) Through
LR Kailash v. Rajesh and Ors. 2019 (3) SCC 707, the Court held as
under:-
"18. Indisputedly, in the instant case, there was no decree
or order of the trial Court by virtue of which the Appellant
was given possession of the subject property. On the
contrary, the suit filed at the instance of the Appellant-
Plaintiff came to be dismissed with costs and that came to be
confirmed on dismissal of the first appeal by the Single
Judge of the High Court and special leave petition filed
before this Court also came to be dismissed. The possession
was handed over to the Appellant of the subject property
under the interim order passed by the High Court pending
first appeal of which a reference has been made and after
the appeal came to be dismissed, its logical consequence
was noticed by the High Court in its judgment dated 20th
April, 2018 directing the Appellant to hand over possession
of the subject property to the Respondents-Defendants
obviously for the reason that on dismissal of the first appeal
preferred by the Appellant, he was under an obligation to
restore back peaceful possession to the Respondents on
vacation of the interim orders.
19. In the present facts and circumstances, the Respondents
have ot committed any error in taking decision to call upon
the Appellant for handing over possession of the subject
property at least after the special leave petition filed at the
instance of the Appellant came to be dismissed Under Order
dated 17th May, 2018 and in sequel thereto, there was no
other remedy left with the Respondents than to file an
application Under Section 151 Code of Civil Procedure
before the High Court for restoration of possession of the
subject property."
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xxx xxx xxx
"21. The submission of the learned Counsel for the
Appellant that execution application Under Section 144
Code of Civil Procedure would lie only before the Court of
first instance, which in the instant case is Additional District
and Session Judge, No. 1, Jaipur City and not the High
Court and the impugned judgment is without jurisdiction, is
without substance for the reason that there was no decree or
order of the trial Court which is varied or reversed in
appeal, revision or any other proceeding or is set aside or
modified in any suit instituted for the purpose. Indisputedly,
the possession was handed over to the Appellant-Plaintiff
pursuant to the interim order passed by the High Court,
pending first appeal which finally came to be dismissed, its
logical consequence was to restore back the peaceful
possession of the subject property to Respondents-
Defendants. In the given circumstances, the provisions of
Section 144 Code of Civil Procedure, in our view, are not
attracted as there being no variation or reversal of a decree
or order as contemplated by Section 144 Code of Civil
Procedure.
22. Before parting with the order, taking note of the fact that
the proceedings were initiated at the instance of the
Appellant-Plaintiff way back in the year 1961 and almost 59
years have rolled by now, to give a quietus to the litigation
and also the fact that the Appellant had failed at all the
stages, having no authority to hold possession of the subject
property, we, therefore, consider it appropriate to direct the
Appellant to hand over peaceful possession of the subject
property to the Respondents-Defendants in compliance of the
judgment of the High Court dated 20th April, 2018 followed
with order dated 21st August, 2019 positively within a
period of eight weeks from today failing which this Court
will take serious note of the matter and proceedings may be
instituted against the Appellant-Plaintiff for deliberate
defiance of the order of this Court."
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35. From the conspectus of the above judgments, there is no doubt that
powers of a Court under Section 151 are inherent powers to act ex debito
justitiae i.e. to do substantial justice. As reiterated and reaffirmed by the
Courts, it is the foremost duty of the Courts to take care that an act of a
Court does no injury to any of the parties and this is the essence of the
Doctrine of Restitution, which, in my view, explicitly mandates the
Court to place the parties in a position which they would have occupied
but for the order of the Court, to the contrary and also to ensure that a
party to a suit or any proceeding, who has received the benefit of an
erroneous order restitutes the other party. No party can be permitted to
take advantage of the wrongful acts or orders of a Court. Even assuming
that Section 144 CPC does not strictly apply to the facts of a case, there
being no reversal or variation of the decree, the Court can certainly
invoke its inherent powers under Section 151 CPC to do substantial
justice between the parties and must step in and exercise that power to
prevent miscarriage of justice.
36. In the present case, two facts are clearly undisputed. Appellant
No.1 was the owner of the suit property and had gifted the same to
Appellant No.2 and the Respondents were not in possession when the
Suit was instituted by them. This, in fact, needs no further elaboration as
this is a clear finding in the judgment and decree of the Trial Court dated
24.09.2018, which has admittedly attained finality between the parties to
the lis. Relevant would it be to extract hereunder the findings of the Trial
Court on this aspect:-
"1. Whether the plaintiff is entitled for relief of permanent
injunction, as prayed for? OPP
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Plaintiffs are the sons of defendant no. 1 and 2.
Plaintiffs have admitted in the plaint that owner
of the suit property i.e. shop no. 5308, Shora
Kothi, Pahar Ganj, New Delhi is defendant no.
2. The testimony of PW2 show that he admitted
that plaintiffs were not in possession of suit
property and adjoining shop no. 5307, Shora
Kothi, Pahar Ganj, New Delhi at the time of
filing of the suit. So the undisputed fact is that
the defendant no. 2 is the owner of the suit
property and plaintiffs were not in possession
of the suit property at the time of filing of the
suit. Plaintiffs have claimed permanent
injunction against the defendants for
restraining them from dispossessing the
plaintiffs without due course of law, on the
premise that they are in settled possession of
the suit property however, the testimony of PW2
reveals that they were not in a possession at the
time of filing the suit. Also in the plaint, the
plaintiffs have averred that plaintiff no. 1 is
carrying on business from the suit property for
the last 12 years, plaintiff no. 2 is also carrying
the business form the suit property for the last
12 years and plaintiff no. 3 is also carrying his
business for the last 5 years and the said
averment in the plaint appears to be without
foundation if seen in the light of testimony of
PW2.
"Injunction is an equitable relief and is
afforded to a party who comes to the court with
clean hands. This equitable remedy is not
available to any party who avers wrong facts
intentionally or is guilty of suppression of
material facts from the court. Where the
pleadings of a party stands contradicted from
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his own testimony before the court, the said
party is guilty of stating wrong facts before the
court in his pleadings as such makes that party
dis-entitled for seeking equitable relief."
In the present suit, plaintiffs themselves
admitted in the plaint that defendant no. 2 is
owner of the property and they have been doing
business from the suit property for the last
many years. However, the said claim to the
extent that plaintiffs had possession of the suit
property at the time of filing of the suit turned
flat from the admission of the plaintiff no. 2
during his cross examination where he said that
plaintiff were not in possession of the suit
property at the time of filing of the suit.
Further, plaintiffs were sons of
defendants and as such their stay/use of the suit
property was permissive/gratuitous and as such
they can not seek permanent injunction against
the true owner of the suit property. In this
regard, the judgment of the Hon‟ble Supreme
Court titled as "Maria Margarida Sequeira
Fernandes vs. Erasmo Jack D. Sequeira (2012)
5 SCC 370" is relevant wherein it was held
that:-
"a. No one acquires title to the property if, he
or she was allowed to stay in the premises
gratuitously. Even by long possession of years
of decades such person would not acquire any
right or interest in the said property.
b. Caretaker, watchman or servant can never
acquire interest in the property irrespective of
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his long possession. The caretaker or servant
has to give possession forthwith on demand.
c. The courts are not justified in protecting the
possession of a caretaker, servant or any
person who was allowed to live in the premises
for some time either as a friend, caretaker or as
a servant.
d. The protection of the court can only be
granted or extended to the person who has
valid, subsisting rent agreement, lease
agreement or license agreement in his
favour."......
The plaintiffs are the sons of the defendants as such they
were using the suit property under the permission of the
defendants. Further, their possession of the suit property is
gratuitous in nature. Once that permission to use and occupy
the suit property is revoked, plaintiffs are bound to
surrender the suit property to the defendants. Plaintiffs can
not seek permanent injunction against the defendants as
defendant no. 2 is the true owner of the suit property. On this
reason alone, the suit of the plaintiffs fails. Accordingly, this
issued is decided against the plaintiff and in favour of the
defendants."
37. On account of three clear findings viz.: (a) Plaintiff No.2 admitted
that plaintiffs were not in possession at the time of filing of the Suit; (b)
Defendant No.1(a) is the owner of the suit property; (c) Plaintiffs' use of
the suit property was merely permissive/gratuitous, the trial court
dismissed the Suit for permanent injunction filed by the Respondents
seeking to restrain the Appellants from dispossessing them from the suit
property. In my view, having so held it was the obligation and duty of the
Trial Court to have exercised the inherent powers and restored the
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possession to the Appellants, more particularly, having observed that the
Respondents were not in possession when the Suit was instituted and the
Appellant No.1 is the owner of the property.
38. Order of the First Appellate Court impugned herein, in my view,
also suffers from a clear error of law. The First Appellate Court dismissed
the appeal by the Appellants and declined to restore possession on the
ground that the Plaintiffs never admitted that the Defendants were in
possession and admission of one of the Plaintiffs did not bind the other
Plaintiffs and that the Local Commissioner's report did not indicate the
possession of the Defendants. Appellate Court also observed that the
Plaintiffs had not violated any order or injunction or status quo and the
Defendants have not led any evidence to show forcible dispossession.
Once the Trial Court had passed a decree dismissing the suit of the
Plaintiffs on the ground that Plaintiff No.2 had admitted that the Plaintiffs
were not in possession at the time of institution of Suit, it was not open to
the Appellate Court to go behind the decree and hold that the admission
did not bind the other plaintiffs, as the decree was un-assailed by the
plaintiffs and had become final qua the parties to the lis. The Trial Court
had also taken into account the Local Commissioner's report which
clearly stated that Defendant No.1/father of the Plaintiffs was in
possession and had accepted the report, against which no objections were
filed by the Plaintiffs. The Appellants herein had filed an application
during the pendency of the Suit bringing on record of the Trial Court the
fact of forcible dispossession as the Plaintiffs had broken their locks and
placed their own locks on the suit property. The Trial Court at this stage
did not take cognizance of this significant development and dismissed the
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application by holding that the application should have been filed by the
daughter who had become the owner by virtue of the Gift Deed and that
the application disclosed a separate cause of action. Appellants
challenged the order in a Revision Petition before this Court, which was,
however, disposed of as infructuous as in the meantime the suit was
dismissed. This Court, therefore, did not have an occasion to deal with
the order dismissing the application, but I may only pen down for the
sake of record that the observation of the Trial Court was completely
erroneous and contrary to the record, as a bare perusal of the application
shows that it was filed by both the Appellants herein, which included the
beneficiary of the Gift Deed.
39. What is important to note is that the order disposing of the
Revision Petition was assailed by the Appellants before the Supreme
Court in SLP No.4375/2019 and while disposing of the petition, the
Supreme Court granted liberty to the Appellants to pursue appropriate
legal remedies against the judgment and decree dated 24.09.2018. Being
a short order, the same is extracted as under:-
"Learned counsel appearing for the petitioner prays for
withdrawal of this petition with liberty to pursue the legal
remedy against the final judgment dated 24.09.2018 passed
by the learned Civil Judge, Tiz Hazari, Delhi, in the suit
being C.S. no. 607578 of 2016.
Prayer is allowed.
Accordingly, the special leave petition is dismissed as
withdrawn with the liberty aforesaid."
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40. Learned Appellate Court thus had sufficient material before it to
conclude that the Appellants had been dispossessed from the suit property
during the pendency of the Suit, in the form of a decree by the Trial
Court, which had attained finality, report of the Local Commissioner
forming a part of the decree and a clear admission of one of the Plaintiffs,
which formed the main premise for the decree. The Court committed an
error in declining to restore possession of the suit premises to the
Appellants and restitute status quo ante.
41. Having perused the entire record of the Trial Court, it is clearly
established that the Appellants were in possession and were forcibly
dispossessed during the pendency of the Suit. The facts were eloquent
and self speaking and needed no further evidence, more particularly, in
view of the findings in the decree. Being the owner of the suit property,
Appellants are moving from pillar to post for the last several years to get
justice and the Respondents, who are the sons/brothers, respectively
despite having lost in the Suit for permanent injunction, are enjoying the
possession of the property and have placed their locks on the same. This,
in my view, is a classic case of travesty of justice and high handedness by
the Respondents in forcibly dispossessing their mother and sister. I would
in this regard quote a passage from a judgment of Supreme Court in S.R.
Ejaz (supra) as follows:-
"In our view, if such actions by the mighty or powerful are
condoned in a democratic country, nobody would be safe
nor the citizens can protect their properties. Law frowns
upon such conduct. The Court accords legitimacy and
legality only to possession taken in due course of law. If
such actions are condoned, the fundamental rights
guaranteed under the Constitution of India or the legal
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rights would be given go bye either by the authority or by
rich and influential persons or by musclemen. Law of jungle
will prevail and 'might would be right' instead of 'right being
might'. This Court in State of U.P. and others vs. Maharaja
Dharmander Prasad Singh and others dealt with the
provisions of Transfer of Property Act and observed that a
lessor, with the best of title, has no right to resume
possession extra-judicially by use of force, from a lessee,
even after the expiry or earlier termination of the lease by
forfeiture or otherwise. Under law, the possession of a
lessee, even after the expiry or its earlier termination is
juridical possession and forcible dispossession is prohibited.
The Court also held that there is no question of Government
withdrawing or appropriating to it an extra judicial right of
re-entry and the possession of the property can be resumed
by the Government only in a manner known to or recognized
by law."
42. Further, Supreme Court in K.K. Velusamy vs. N. Palanisamy,
(2011) 11 SCC 275 has summarized the scope of Section 151 CPC. The
relevant paras are as under:-
"12. The respondent contended that Section 151 cannot be
used for reopening evidence or for recalling witnesses. We
are not able to accept the said submission as an absolute
proposition. We however agree that Section 151 of the Code
cannot be routinely invoked for reopening evidence or
recalling witnesses. The scope of Section 151 has been
explained by this Court in several decisions [see Padam
Sen v. State of U.P. [AIR 1961 SC 218 : (1961) 1 Cri LJ
322] , Manohar Lal Chopra v. Seth Hiralal [AIR 1962 SC
527] , Arjun Singh v. Mohindra Kumar [AIR 1964 SC 993]
, Ram Chand and Sons Sugar Mills (P) Ltd. v. Kanhayalal
Bhargava [AIR 1966 SC 1899] , Nain
Singh v. Koonwarjee [(1970) 1 SCC 732] , Newabganj
Sugar Mills Co. Ltd. v. Union of India [(1976) 1 SCC 120 :
AIR 1976 SC 1152] , Jaipur Mineral Development
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Syndicate v. CIT [(1977) 1 SCC 508 : 1977 SCC (Tax) 208 :
AIR 1977 SC 1348] , National Institute of Mental Health &
Neuro Sciences v. C. Parameshwara [(2005) 2 SCC 256]
and Vinod Seth v. Devinder Bajaj [(2010) 8 SCC 1 : (2010)
3 SCC (Civ) 212] ]. We may summarise them as follows:
(a) Section 151 is not a substantive provision
which creates or confers any power or
jurisdiction on courts. It merely recognises the
discretionary power inherent in every court as
a necessary corollary for rendering justice in
accordance with law, to do what is "right" and
undo what is "wrong", that is, to do all things
necessary to secure the ends of justice and
prevent abuse of its process.
(b) As the provisions of the Code are not
exhaustive, Section 151 recognises and
confirms that if the Code does not expressly or
impliedly cover any particular procedural
aspect, the inherent power can be used to deal
with such situation or aspect, if the ends of
justice warrant it. The breadth of such power is
coextensive with the need to exercise such
power on the facts and circumstances.
(c) A court has no power to do that which is
prohibited by law or the Code, by purported
exercise of its inherent powers. If the Code
contains provisions dealing with a particular
topic or aspect, and such provisions either
expressly or by necessary implication exhaust
the scope of the power of the court or the
jurisdiction that may be exercised in relation to
that matter, the inherent power cannot be
invoked in order to cut across the powers
conferred by the Code or in a manner
inconsistent with such provisions. In other
words the court cannot make use of the special
provisions of Section 151 of the Code, where
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the remedy or procedure is provided in the
Code.
(d) The inherent powers of the court being
complementary to the powers specifically
conferred, a court is free to exercise them for
the purposes mentioned in Section 151 of the
Code when the matter is not covered by any
specific provision in the Code and the exercise
of those powers would not in any way be in
conflict with what has been expressly provided
in the Code or be against the intention of the
legislature.
(e) While exercising the inherent power, the
court will be doubly cautious, as there is no
legislative guidance to deal with the procedural
situation and the exercise of power depends
upon the discretion and wisdom of the court,
and in the facts and circumstances of the case.
The absence of an express provision in the
Code and the recognition and saving of the
inherent power of a court, should not however
be treated as a carte blanche to grant any
relief.
(f) The power under Section 151 will have to be
used with circumspection and care, only where
it is absolutely necessary, when there is no
provision in the Code governing the matter,
when the bona fides of the applicant cannot be
doubted, when such exercise is to meet the ends
of justice and to prevent abuse of process of
court."
43. Thus, in my view, the Trial Court as well as the First Appellate
Court have fallen in error of law in not exercising their inherent powers
provided under Section 151 CPC and restoring the possession to the
Appellants.
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44. Insofar as the second question is concerned, I find merit in the
contention of Mr. Mehta that provisions of Sections 96 and 100 CPC do
not specify who can file an appeal. As long as a party is 'aggrieved' by
the decision of a subordinate court, a second appeal is maintainable. The
Appellants are clearly aggrieved by the decision of the courts below as
the possession was not restored to them, despite their ownership in the
Suit property and possession at the stage of institution of the Suit by the
Respondents. Hence, the Appellants are entitled to file the present appeal
and the same is maintainable before this Court.
45. In light of the above discussion, the substantial questions of law are
answered in favour of the Appellants and against the Respondents.
46. Accordingly, a decree is passed in the above terms and a direction
is issued to the Respondents/Plaintiffs in the Suit bearing No.
607578/2016 to forthwith hand over vacant and peaceful physical
possession of the suit property, bearing shop No. 5308, Shora Kothi,
Paharganj, New Delhi to the Appellants herein/Defendant Nos.1(a) and
1(c) in the Suit.
47. Appeal is allowed in the above terms.
48. At this stage, Court records its appreciation for the able assistance
rendered by Mr. Jayant Mehta, learned Amicus Curiae.
JYOTI SINGH, J
MARCH 22nd, 2021
yo/yg
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