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The Allahabad theatres Ltd. Vs. Ram Sajiwan Misra - Court Judgment

LegalCrystal Citation
Subject Civil
CourtAllahabad
Decided On
Reported inAIR1949All730
AppellantThe Allahabad theatres Ltd.
RespondentRam Sajiwan Misra
Excerpt:
- - covers a case like the present one and our view is supported by the observations of malik j. after the setting aside of the ex parts decree by the court it was the duty of that court in view of the provisions of section 144 to cause such restitution to be made as would place the parties in the position which they would have occupied but for the ex parte decree that bad been passed by that court on 18th may 1948. but as laid down in the case of robert hercules skinner v......by means of a fiction. some such reason seems to be involved in those oases where orders for restitution passed under the inherent powers have been held appealable. this is not a case where one is purporting to act under 9. 144. it is a case where under the powers conferred by section 151 the court is giving a relief as if section 144 applied though it does not apply. it is clear that two views can be taken upon the subject. we prefer the above view which is consonant with the conclusions arrived at by the calcutta high court in amirannessa v. karimanessa a.i.r. (1) 1914 cal. 692 and gnanada sundari v. chandra kumar : air1927cal285 .5. to my mind, an order under section 151 will always remain an order under that section whether or not it is by its nature analogous to an order that.....
Judgment:

Harish Chandra, J.

1. This is a plaintiff's appeal arising out of a suit brought - by him against the respondent for arrears of rent and ejectment with respect to the building known as 'Jawahir Palace' situate in Mohalla Mirganj in the city of Allahabad. The plaintiff is a company known as the Allahabad Theatres, Limited and is the owner of the building in question, It had given a lease of that building to the respondent, Ram Sajiwan Misra. The suit was decreed ex parte on 18th May 1948, and possession was delivered in pursuance of the decree to the appellant on 7th July 1948. There is some dispute as to whether the possession that had been delivered was actual possession or merely formal possession. But we are not concerned with that matter at present. On 5th July 1948, however the respondent applied to the Court for the setting aside of the ex parte decree and the ex parte decree was set aside on 28th July 1948, on the respondent depositing into Court a sum of Rs. 9,288-13-0 representing the arrears of rent claimed, rent pendente lite and costs. After that, on 29th July 1948, the respondent put in an application for restitution by re-delivery of possession of the building in dispute to him. The application was made under Sections 144, 47 and 151, Civil P.C. The appellant objected and after hearing the par-ties the lower Court granted the application by an order dated 2nd August 1948. The Court held that S3. 144 and 47 did not apply to the case but granted the application for restitution acting under Section 151, Civil P.C.

2. A preliminary objection is raised on behalf of the respondent that no appeal lies. It is pointed out that the appellant himself had stated in his objection that Section 144, was not applicable to the present case inasmuch as the original decree had not been varied or reversed by an appellate Court but by the same Court by which the decree had been passed. This contention was apparently accepted by the Court below which was of opinion that Section 144 was not applicable.

3. There is a number of rulings of the Calcutta, Madras and Nagpur High Courts in which the view has been taken that in a case in which Section 144 is not strictly applicable, if the Court expands the remedy provided by that section in the exercise of its inherent jurisdiction under Section 151, Civil P.C., an appeal will lie as from an order passed under Section 144. (See the cases of Tarak Nath Boy v. Panchanan Banerjee : AIR1937Cal152 , Gopal Laskar v. Harihar Mukherjee : AIR1948Cal37 , Bijala Pedda Bali Reddi v. Bathula Chinna Nagi Reddi and Ors. A.I.R. (28) 1941 Mad, 564, S. Ayyaswami Ayyar v. Sivak-Mammal A.I.R. (20) 1933 Mad. 780, Sheonandan Lal Gurudayal Shrivastava v. Gopal Babaji Nafde and Ors. A.I.R. (30) 1943 Nag. 172 and Mst. Champabai v. Shree Daulatram Sharma and Ors. A.I.R. (25) 1938 Nag. 326. It will be noted that an order passed under Section 144 is according to the definition given in Sub-section 2) of Section 2 of the Code, a decree and an appeal would, therefore, lie from an order passed under Section 144. This view has not been followed by the Lahore and Patna High Courts. There is, however, no case of our own High Court in which the same point may have been specifically considered.

4. I have given the matter my earnest consideration and have, I regret, great difficulty in following the view taken in these rulings. In the case of Mt. Champabai A.I.R. (25) 1938 Nag. 326 their Lordships observe:

If however the inherent powers are used to expand a remedy in order to do justice to cover a case not within the exact words of, but within the purpose of a procedural section, the Court is in effect using its inherent powers to act as if the order were made under the section in question, in this case Section 144. In such a case even justice demanded that one side should be given a remedy, restitution as if Section 144 applied so the other side should, as a matter of justice, be allowed the right to appeal that would have existed, had Section 144 really applied instead of its being applied by means of a fiction. Some such reason seems to be involved in those oases where orders for restitution passed under the inherent powers have been held appealable. This is not a case where one is purporting to act under 9. 144. It is a case where under the powers conferred by Section 151 the Court is giving a relief as if Section 144 applied though it does not apply. It is clear that two views can be taken upon the subject. We prefer the above view which is consonant with the conclusions arrived at by the Calcutta High Court in Amirannessa v. Karimanessa A.I.R. (1) 1914 Cal. 692 and Gnanada Sundari v. Chandra Kumar : AIR1927Cal285 .

5. To my mind, an order under Section 151 will always remain an order under that section whether or not it is by its nature analogous to an order that may be passed under some other provision of the Code and the mere accident that it is analogous to an order which may be passed under some other section is not, in my opinion, sufficient to differentiate it from any other order that may be passed under Section 151 and I cannot see how an order which does not strictly come within the purview of Section 144, Civil P.C. could be regarded as a decree within the meaning of Sub-section (2) of Section 2 of the Code. An order under Section 144 does not strictly come under the general definition of the term 'decree' as contained in Sub-section (2) of Section 2 and is treated as a decree because it is specifically included in the definition of that term by that sub-section. An appeal is the creature of statute and it would appear that unless an order is made appealable by an express provision of law no appeal would lie from such order and there seems to be no war-rant for the view that because an appeal is provided from an order passed under a specific provision of law, an appeal would also lie from orders of an analogous nature though not falling within the purview of that provision. J. may, however, add that a decision on this question is, strictly speaking, not called for in this case in view of what follows:

6. The next question to consider is whether the present order does, in fact, fall within the purview of Section 144 or not. In the case of Bindeshri Prasad Tewari v. Badal Singh and Ors A.I.R. (10) 1923 ALL. 394 F.B., a Full Bench of this Court held that the words 'varied or reversed' used in Section 144 seemed

more applicable to a proceeding by way of appeal, revision or review than to a separate suit declaring that a decree is not binding on a particular party.

These observations are, however, obiter dicta, for the point in issue in that case was quite different although in fact the decree in that case had been set aside as the result of a separate suit. In another case, Bhawani Shanker v. Mahmud All and Durga Prasad : AIR1937All232 , a single Judge of this, Court took a similar view and held that the use of the phrase 'Court of first instance' in Section 144 contemplated the variation or reversal of the decree by a superior Court. He, however, conceded that the section applied where a decree had been reversed or varied upon appeal, revision or review and held that it was not applicable to a case in which the decree had been set aside by another Court. The question has, however, been considered in a recent case, Jagendra Nath Singh v. Hira Sahu and Ors. : AIR1948All252 by a Full Bench of this Court. The judgment in that case was delivered on 8th May 1947. In that case also the decree had been set aside in a separate suit and Malik, J. (now C.J.) in an elaborate judgment in which he has given full consideration to all the authorities on the subject that had been cited before him, held that the words 'varied or reversed' would cover a case in which a decree had been varied or reversed either by the same Court or by any other Court of concur. rent jurisdiction. The other two Judges agreed with him. I respectfully agree with the view taken by the Full Bench although the facts of that case were somewhat different from the facts of the present case. The language of Section 144 does not expressly rule out the case of a decree which has been varied or reversed by the same Court and although it may be conceded that the section is not very happily worded, the section seems to be couched in very general terms and there is nothing in it to rule out the case of such a decree from the purview of that section by necessary implication and my opinion is that the section would apply to the facts of the present case and that the order under appeal must be deemed to have been passed under that section.

7. No doubt, the learned Judge has granted the respondent's application purporting to act under Section 181 alone. But we have to look to the substance of the order and the mere fact that the Judge has said that Section 144 did not apply to the present proceedings is no reason why the order should be regarded as one under Section 161 alone. The application itself had been made under Section 144 and other sections of the Code and when, as I find, Section 144 does in fact apply, there is no reason why the order passed by the Judge should not be treated as one passed under that section.

8. I would, therefore, reject the preliminary objection that has been taken on behalf of the respondent in regard to the competency of the appeal.

Sapru, J.

9. I agree with the operative order proposed to be passed by my brother, Harish Chandra, in this case. In my opinion, Section 144, Civil P.C. covers a case like the present one and our view is supported by the observations of Malik J. (now C.J.) in the Full Bench case of Joyendra Nath Singh v. Hira Sahu and Ors. : AIR1948All252 . In view of the fact that the case before us is covered by Section 144, Civil P.C., it is, in my opinion, unnecessary to consider whether in a case in which Section 144 is not directly applicable, an order passed by a Court under S. 151, Civil P.C. in the exercise of its inherent jurisdiction will or will not be appealable as if it was an order passed under Section 144. On this point I mast not be understood to agree with the observations of my brother, Harish Chandra, that an order of restitution passed under Section 151 will not be appealable. The view taken in Sheonandan Lal Gurudayal Shrivastava v. Gopal Babaji Nafde A.I.R. (30) 1943 Nag. 172, was that where a Court has acted under Section 151, Civil P.C. in a case which is analogous to one under Section 144, (Civil P.C., an appeal will lie. It was explained by Stone C.J. and Digby J. in the case of Mt, Champabai v. Shree Daulatram Sharma A.I.R. (25) 1938 Nag. 326, that:

If however the inherent powers are. used to expand a remedy in order to do justice to cover a case not within the exact words of, but within the purpose of a procedural section, the Court is in effect using its inherent powers to act as if the orders were made under the section in question, in this case Section 144.

The point emphasised by them was that when acting in cases of this nature under Section 151, the Court is giving a relief as if Section 144 applied, though it does not apply.

10. I am not prepared to dissent from the two decisions of the Nagpur High Court to which I have invited attention. It is, however, unnecessary to discuss this question at any length as we have come to the conclusion that in this case on the facts found Section 144 applies. It is clear that an order passed under that section is an appealable one. Subject to the reservations which I have indicated above, I would express my agreement with the conclusion arrived at by my brother Harish Chandra.

11. Coming to the merits Mr. Sri Narain Sahai has taken us through the short history of these proceedings and his contention is that the conduct of the respondent defendant in this case has been throughout mala fide. But we are not called upon to consider that aspect of the matter in view of the clear provisions of Section 144, Civil P.C., which make it obligatory upon the Court to grant restitution where a decree has been varied or reversed. After the setting aside of the ex parts decree by the Court it was the duty of that Court in view of the provisions of Section 144 to cause such restitution to be made as would place the parties in the position which they would have occupied but for the ex parte decree that bad been passed by that Court on 18th May 1948. But as laid down in the case of Robert Hercules Skinner v. Lt. James R.B. Skinner : AIR1943All202 , a Court passing an order under Section 144 may 'take into consideration certain equities or place any parties upon terms.'. In the present case, according to the allegations contained in the plaint the respondent had not paid any rent to the appellant for the period 6th August 1946 to 5 th December 1947, and it seems necessary before restitution is allowed that he should be required to furnish security against any mesne profits to which the appellant may be entitled in case his suit is ultimately decreed.

12. We, therefore, while dismissing the appeal, direct that restitution by way of possession shall be allowed to the respondent only on his furnishing security to the satisfaction of the Court below to the extent of Rs. 2,000, We further direct that the respondent Shall file his written statement with as little delay as possible and that the Court below will dispose of the case, which appears to be of a fairly simple nature, with the utmost possible expedition.

13. The appellant will pay the respondent's costs in this appeal.


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