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Ram Ratan Vs. Mathura Prasad and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtMadhya Pradesh High Court
Decided On
Case NumberMisc. Petn. Case No. 68 of 1969
Judge
Reported inAIR1971MP69; 1970MPLJ963
ActsCivl Procedure Code , 1908 - Sections 144; Constitution of India - Article 227
AppellantRam Ratan
RespondentMathura Prasad and ors.
Appellant AdvocateG.P. Patanker, Adv.
Respondent AdvocateB.D. Gupta, Adv. for Opposite Party Nos. 1 and 2
DispositionPetition allowed
Cases ReferredBhagwant Singh v. Sri Kishen Das
Excerpt:
- - comptoir d'escompte de paris, (1871) 40 lj pc 1. one of the first and highest duties of all courts is to take care that the act of the court does no injury to the suitors'.the doctrine of restitution contemplates that where property has been received by a party in pursuance of a decree or order in his favour, which decree or order is subsequently reversed or varied in other proceedings, the law raises an obligation on the party who received the benefit of the erroneous judgment or order to make restitution to the other party for what he had lost and this obligation, it is the duty of the courts to enforce, unless it is shown that restitution would be clearly contrary to the real justice of the case, bhagwant singh v. it will be clearly an abuse of the process of the court......constitution for quashing the orders of the commissioner, bhopal dated april 1, 1968, and of the board of revenue dated april 11, 1969.2. the petitioner was dispossessed in compliance with an order of the commissioner dated january 15, 1966 which order was eventually set aside by the board of revenue by order dated august 31, 1966. the question is whether the petitioner is entitled to restitution without an enquiry into his objection that the non-petitioners nos. 1 and 2 have given possession to a stranger, namely, one balabai.3. this case has had a chequered history and is an example of laws delays. the facts will have to be stated in four parts.part ion 22-2-1952, ramratan petitioner instituted proceedings under section 91 of the m. b. tenancy act, 1951, against mathura prasad and.....
Judgment:

Shiv Dayal, J.

1. This is a petition under Articles 226 and 227 of the Constitution for quashing the orders of the Commissioner, Bhopal dated April 1, 1968, and of the Board of Revenue dated April 11, 1969.

2. The petitioner was dispossessed in compliance with an order of the Commissioner dated January 15, 1966 which order was eventually set aside by the Board of Revenue by order dated August 31, 1966. The question is whether the petitioner is entitled to restitution without an enquiry into his objection that the non-petitioners Nos. 1 and 2 have given possession to a stranger, namely, one Balabai.

3. This case has had a chequered history and is an example of laws delays. The facts will have to be stated in four parts.

PART I

On 22-2-1952, Ramratan petitioner Instituted proceedings under Section 91 of the M. B. Tenancy Act, 1951, against Mathura Prasad and Ramnarayan, complaining that the latter threatened encroachment so that they be restrained from interfering with his possession.

On 27-2-1952, Ramratan prayed for an interim order restraining Mathuraprasad and Ramnarain from interfering with his possession. A prohibitory order was passed on the same day by the Tahsildar restraining Mathuraprasad and Ramnarain from interfering with Ramratan's possession.

On 20-6-1956, the Tahsildar dismissed Ramratan's main application on the ground that Section 91 provided for aremedy when there was actual dispossession (Madakhalat) but not for a case where dispossession was threatened (Mazahmat). Accordingly he discharged the personal bond executed by Mathura Prasad and Ramnarain.

PART II

On 11-5-1962, that is, after about six years. Mathuraprasad and Ramnarain made an application under Section 144, Civil P. C., for restitution. They prayed that possession be delivered to them which was taken in pursuance of the order dated 27-2-1952 (supra).

On 4-2-1963, the Tahsildar rejected that application holding that Mathuraprasad and Ramnarain were not in possession on 27-2-1952, nor possession was taken from them and given to Ramratan.

On 27-2-1965, the Sub-Divisional Officer dismissed Mathuraprasad and Ramnarain's appeal.

On 15-1-1966, the Commissioner allowed the appeal on a misconception of facts that the order dated 27-2-1952 was for possession so that Mathura Prasad and Ramnarain were dispossessed by virtue of that order.

On 31-8-1966, the Board of Revenue allowed the revision filed by Ramratan and set aside the abovesaid order dated 15-1-1966 passed by the Commissioner. It was held that the interim order dated 27-2-1952 'stated merely that the applicant's possession was found on the land and the order on the non-applicants was to restrain them from disturbing the applicant's possession. The final order also denoted that the applicant was in possession and was never dispossessed.' The learned Member of the Board of Revenue observed:--

'I do not agree, as contended by the learned counsel for the non-applicants that the applicant got any benefit (i. e. possession in the land) through the interim order and there is, therefore, no obligation on the part of the applicant to make restitution to the non-applicants for what they had lost.'

Accordingly, he upheld the order of the Tahsildar and the S. D. O., setting aside the order of the Commissioner;

PART III

On 16-3-1966, that is, after the order of the Commissioner but before the decision of the Board of Revenue, the Naib-Tahsildar, without giving any notice to the petitioner, passed an order of his dispossession and on 18-3-1966 the petitioner was accordingly dispossessed.

On 4-4-1966, the Naib-Tahsildar rejected the objections which were subsequently filed by the petitioner.

On 24-11-1966, the Sub-Divisional Officer allowed the petitioner's appeal because in the meantime the decision of the Board of Revenue had come.

On 15-3-1967, the Commissioner held that the S. D. O. committed an error in directing possession to be restored to the petitioner Ramratan because the appeal before him, was against the order dated 4-4-1966, which order did not direct delivery of possession from Ramratan to Mathuraprasad and Ramnarain, but it was by virtue of order dated 16-3-1966 that Ramratan had been dispossessed and there was no appeal before the S. D. O. against the order dated 16-3-1966. However, the learned Commissioner directed the Tahsildar to take proper action in compliance with the decision of the Board of Revenue dated 31-8-1966-

PART IV

On 5-4-1967, the petitioner applied for restoration of possession.

On 24-7-1967, Mathuraprasad and Ramnarain filed objections stating that after taking possession on 18-6-1966, they handed over possession to one Smt. Balabai.

On 4-8-1967, the Naib-Tahsildar made an order directing Mathuraprasad and Ramnarain to deliver possession to Ramratan within 15 days and report compliance. This order is the subject-matter of the present revision.

4. Aggrieved by the order dated 4-8-1967, Mathuraprasad and Ramnarain preferred an appeal before the Sub-Divisional Officer and reiterated their objections. The learned S. D. O. in his judgment dated 18-9-1967 held that the order dated 4-8-1967 was an interim order and was, therefore, not appealable. He observed that no doubt it was proper for the Naib-Tahsildar to have discussed the merits of the appellants' objections. However, he himself considered the objections and decided the matter. He held that actual possession was given on the spot to Mathura Prasad and Ramnarain. Mst. Balabai did not come in the picture at all and when the question was of restoration of possession, it is Mathura Prasad and Ramnarain who must restore possession, and further that if they wanted to introduce a stranger no notice could be taken by the lower Court. In the result, he dismissed the appeal.

5. Mathuraprasad and Ramnarain then preferred a second appeal in the Court of the Commissioner. Their grievance was that a notice ought to have been issued to Balabai and no restoration could be ordered in her absence. The Commissioner, by his judgment dated 1-4-1968, agreed with the S. D. O. that the order of the Naib-Tahsildar was not appealable but he said that the observations made by the S. D. O. were premature. In the result, he partly allowed the appeal and setting aside those observations remanded the case to the Naib-Tahsildar. The petitioner preferred a revision in theBoard of Revenue, which was dismissed by order dated 11-4-1969. Aggrieved by the order of the Board of Revenue and the order of the Commissioner, this petition was filed by Ramratan for setting aside those orders.

6. In our opinion, the order of the Tahsildar dated 4-8-1967 was not an interim order. It was a final order. It is quite clear from the order of the S. D. O. dated 18-9-1967 that on 5-4-1967, the petitioner made an application for restoration of possession which had been taken from him on 18-3-1966 and that Mathuraprasad and Ramnarain on 24-7-1967 filed their objections. Further, it is clear from para 4 of the order of the Commissioner dated 1-4-1968 that on 24-7-1967 both the parties were heard by the Naib-Tahsildar, who fixed 31-7-1967 for delivery of order. However, on the last-mentioned date, order was not delivered and the next date fixed was 4-8-1967 and then it was on 4-8-1967 that the Naib-Tahsildar passed his order directing Mathura Prasad and Ramnarain to return possession to Ramratan within 15 days and to report compliance.

Having regard to the sequence of the proceedings, as stated above, this was undoubtedly the final order. Nothing more was to be done. It is a different matter that the order does not contain the grounds for rejecting the objections filed by Mathuraprasad and Ramnarain on 24-7-1967. Indeed the objections filed by them deserved to be ignored inasmuch as they could not be heard to say in those proceedings that they had quietly passed on the possession to a third person, but this ought to have been said in the order. Even if this was not said, the order can be said to be defective but the defect does not alter the nature of order. A final order, even if it does not contain the reasons for the conclusions reached, is still the final order, although exception can be taken to it for not giving reasons. The only meaning of the order dated 4-8-1967 was that Mathuraprasad and Ramnarain were to quit and deliver possession to Ramratan and in case they did not obey, they would be removed.

7. It appears that the learned Commissioner, was in reaching the conclusion that it was an interim order, influenced by the fact that another date, 21-8-1967, was fixed by the Naib-Tahsildar. But it is patent enough that that date was fixed for reporting compliance and not for any other proceedings to be taken. It was not as if any evidence was to be recorded or arguments were to be heard; otherwise, such other purpose would have been specified in the order-The last words 'Tamili Report Prastut Karen' immediately precede 'D/- 21-8-67'. The only meaning of this expression is that 21-8-67 was fixed for report-ing compliance. In this view of the matter, the remand order passed by the Commissioner, as upheld by the Board of Revenue, must be quashed.

8. Otherwise also, we must quash the order of remand dated 1-4-1968 passed by the Commissioner because it is the duty of this Court to prevent abuse of the process of the Court. It was held in the order dated 31-8-1966 that possession had not been taken from Mathuraprasad and Ramnarain, and given to Ramratan. The Board of Revenue set aside the Commissioner's finding to the contrary, and his consequent order. However, in the meantime, that is, in pursuance to the Commissioner's order, but before it was set aside by the Board of Revenue, Ramratan was dispossessed and possession was physically delivered to Mathuraprasad and Ramnarain. In this situation, it was not only in exercise of its powers but it was in the discharge of its duty that the Court should have taken back possession from Mathuraprasad and Ramnarain and restored it to Ramratan. It is the cardinal principle of law that an act of the Court cannot be allowed to work injury on the litigant. As observed by Lord Cairns in Rodger v. Comptoir D'Escompte de Paris, (1871) 40 LJ PC 1.

'One of the first and highest duties of all Courts is to take care that the act of the Court does no injury to the suitors'.

The doctrine of restitution contemplates that where property has been received by a party in pursuance of a decree or order in his favour, which decree or order is subsequently reversed or varied in other proceedings, the law raises an obligation on the party who received the benefit of the erroneous judgment or order to make restitution to the other party for what he had lost and this obligation, it is the duty of the Courts to enforce, unless it is shown that restitution would be clearly contrary to the real justice of the case, Bhagwant Singh v. Sri Kishen Das, 1953 SCR 559 = (AIR 1953 SC 136). Mathuraprasad and Ramnarain could not be heard to say in these proceedings that after taking possession on 18-3-1966, they quietly passed it on to a third person, namely, Smt. Balabai. But, now under the remand order passed by the Commissioner, as upheld by the Board of Revenue, such an enquiry has to be held by the Tahsildar. It will be clearly an abuse of the process of the Court. That is where this Court must exercise its powers of superintendence under Article 227 of the Constitution.

9. The petition is allowed. The order of the Commissioner dated 1-4-1968 and the order of the Board of Revenue dated 11-4-1969 are both quashed. The case shall go back to the Tahsildar forenforcing his order dated 4-8-1967. Mathuraprasad and Ramnarain (respondents 1 and 2) shall pay Rs. 100/- as costs to the petitioner. The outstanding security amount shall be refunded to the petitioner.


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