1. Since common questions of law and facts are involved in these two appeals, it would be convenient to dispose them of by a single judgment.
2. The brief facts relevant for deciding these appeals are that Smt. Abnash Kaur and two others, appellants in S. A. O. No. 194 of 1972 and against Krishan Kumar, who is respondent in both these appeals, in respect of premises shop No. Ii in building No. 16-A/20, Western Extension Area, Karol Bagh, New Delhi on the ground that Kuldip Singh had sub-let the premises in question to Krishan Kumar without obtaining consent in writing from the landladies. An ex parte eviction order was passed to the said petition by Shri P. K. Bahri. Additional Rent Controller, Delhi, on 15th February, 1968. Krishan Kumar filed and application for setting aside the said ex parte order. The ex parte order was set aside by the Additional Rent Controller by his order dated the 22nd October, 1989. From the record it appears that the landladies had in the meantime taken out execution petitions in furtherance of the ex parte order passed in their favor and had taken possession of the premises in question from Krishan Kumar on 27th February, 1968, thought the Court on the basis of the execution petition. After the ex parte order had been set aside, Krishan Kumar on 23rd October, 1969, moved and application under Section 144 of the Code of Civil Procedure claiming that he be put back in possession of the premises in dispute as the ex parte decree in furtherance of which he was dispossessed had been set aside. This application was allowed by Shri K. B. Andley. Additional Rent Controller, by his order dated the 30th October, 1969, whereby be ordered that the possession of the premises in question be restored to Krishan Kumar forthwith.
3. Kuldip Singh tenant of the premises in question also filed a petition for eviction (Suit Nos. 385 of 1967 or 139 of 1967) against Krishan Kumar seeking an order for Krishan Kumar's eviction, on the ground that he was a chronic defaulter in payment of rent and suits for recovery of rent had to be instituted in Civil Courts. It was also alleged in the said petition that Krishan Kumar was a defaulter by way of arrears of rent to the extent of Rs. 29,000/-. A decree for eviction was passed against Krishan Kumar by Shri P. K. Bahri, Additional Rent Controller on 7th May, 1968 as is stated by Kuldip Singh in S. A. O. No. 192 of 1972. An appeal preferred by Krishan Kumar against the said order of eviction was dismissed by the tribunal on 13th August, 1968. No second appeal was filed against the order of the tribunal and the order passed by the Tribunal, thereforee, became final. Kuldip Singh took out execution proceedings against Krishan Kumar and recovered 5th August, 1970, as alleged by Kuldip Singh in S. A. O. No. 192 of 1972.
4. To these assertions of Kuldip Singh, Krishan Kumar in para 5 of his reply to the application dated the 10th July1972, filed by Kuldip Singh, under Order 41, Rule 5, C.P.C., read with Rule 23 of the Delhi Rent Control Rules in S. A. O. No. 192 of 1972, averred that the order passed by Shri. P. K. Bahri, Additional Rent Controller which was affirmed in appeal by the tribunal, was without jurisdiction in view of the fact that possession of the premises was obtained by Abanash Kaur and others, appellants in S. A. O. No. 194 of 1972 through Court on the 27th February, 1968, and that there was no property in possession of Krishan Kumar for which the Additional Rent Controller had jurisdiction to pass an electment order on 7th May, 1968 in favor of Kuldip Singh.
5. The contention of Shri S. S. Chadha, learned counsel for the appellants in S. A. O. No. 192 of 1972, was that Krishan Kumar having been dispossessed from the premises in question in pursuance of the warrants of possession issued in suit No. 365 of 1967 or 139 of 1967, he lost the status, right and interest as sub-tenant in the premises in dispute and he, thereforee, is not entitled to claim possession of the premises. On the contrary, the contention of Shri Gopal Narain Agrawal, learned counsel for Krishna Kumar was that the provisions of Section 144 are clear and Krishan Kumar having been dispossessed from the premises in question in furtherance of the execution taken out by the landladies on the basis of ex parte order that was passed in their favor, Krishan Kumar was entitled to restitution, namely, he be put in possession of the premises as the decree obtained by the landladies does not subsist and, thereforee, Krishan Kumar could not be deprived of his right to claim possession of the premises. Section 144 of the C.P.C. prescribes that where and in so far as a decree or an order is varied or reversed, the Court of first instance shall on the application of any party entitled to any benefit by way of restitution or otherwise, cause such restitution to be made as will, so far as may be, place the parties in the position which they would have occupied but for such decree or order or such part thereof as has been varied or reversed; and, for this purpose, the Court may make any orders, including orders for the refund of costs and for the payment of interest, damages, compensation and mesne profits, which are properly consequential on such variation or reversal.
6. It is a well-settled principle of law that where a decree is set aside any benefit which the decree-holder has derived under the decree, has to be restored to the party from which the benefit was derived because on the setting aside of the decree, parties are relegated to their original position before the passing of the decree. Considered in this light, there can be no dispute that Krishan Kumar was held to be entitled to claim possession of the property in question.
7. In Binayak Swain V. Ramesh Chandra Panigrahi. : 3SCR24 , it was observed,
'The principle of the doctrine of restitution is that on the reversal of a decree, the law imposes an obligation on the party to the suit who received the benefit of the erroneous decree to make restitution to the other party for what he has lost. This obligation arises automatically on the reversal or modification of the decree and necessarily carries with it the right to restitution of all that has been done under the erroneous decree and the Court in making restitution is bound to restore the parties, so far as they can be restored, to the same position they were in at the time when the Court by its erroneous action had displaced them from.'
8. In S. N. Benerji v. Kuchwar Lime and Stone Co. Ltd (in Liquidation). , observation of Lord Cairns in (1871) 3 Pc 455 to the effect 'one of the first and highest duties of all courts is to take care that the act of court does no injury to any of the suitors'. was approved.
9. In Shatrughan Badri Singh v. Mange Mir Singh : AIR1972Delhi212 , B. C. Misra, J., observed that the possession which is given to a party in no other way but way of execution of the decree of the Court below which has been set aside, must be restored and the parties must be relegated to the same position as they were in before the execution of the decree as on the date of the suit.
This being the state of law there would have been no difficulty in affirming the impugned judgment of the Tribunal. The difficulty in the case, however, arises because of the decree passed in favor of Kuldip Singh in suit No. 385 of 1967or 139 of 1967 and because of the possession which was taken by Kuldip Singh in respect of the premises in dispute through Court in pursuance of that decree on 5th August, 1970. It is the admitted case of the parties that ex parte decree passed in favor of the landladies was set aside on 22nd October, 1969 and Krishan Kumar applied for restitution under Section 144, C.P.C. on 23rd October, 1969. The question to be determined, thereforee, is that Krishan Kumar having been lawfully dispossessed from the premises in dispute in execution of the decree obtained by Kuldip Singh in suit No. 385 of 1967 or 139 of 1967 is it open to Krishan Kumar to claim possession of the premises because of the fact that the ex parte decree passed in favor of the landladies was set aside.
10. In Bhagwant Singh v. Sri Krishan Das, : 4SCR559 , their Lordships of the Supreme Court while dealing with the principles of doctrine of restitution observed at page 139.
'.................that on the reversal of a judgment the law raises an 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 the restitution would be clearly contrary to the real justice of the case.'
11. In the instant case to the assertions of Kuldip Singh petitioner in C. M. 689 of 1972 in S. A. O. No. 192 of 1972, to the effect that in the suit filed by him against Krishan Kumar (suit No. 385 of 1967 or 139of 1967) a decree was passed against Krishan Kumar by the Addl. Rent Controller on 7th May 1968 the appeal preferred by Krishan Kumar against the said order of eviction was dismissed by the tribunal on 13th August 1968 no second appeal having been filed thereafter against the aforesaid order of the Tribunal, the order of eviction against Krishan Kumar became final and conclusive and that in execution of the above said decree passed against Krishan Kumar the possession of the premises in dispute was taken by Kuldip Singh on 5th August, 1970, answer of Krishan Kumar in para 5 of his reply to the said application is that the order passed by Shri P. K. Bahri, Additional Rent Controller and affirmed in appeal by the Tribunal was without jurisdiction. This contention of Krishan Kumar that the order was without jurisdiction has to be rejected as the order was taken in appeal by him before the Tribunal and was affirmed and he did not take any further steps to challenge the said order. The order having become final it does notice in the mouth of Krishna Kumar now to assert that the said order was without jurisdiction and possession taken in pursuance thereof on the 5th August, 1970, is of no consequence regardless of the fact that he has lost right and interest to claim possession of the premises in dispute in his capacity as sub-tenant and that he should be restored to the premises in question merely because an ex parte decree passed in the suit filed against him by the landladies has been set aside by the Additional Rent Controller vide order dated 22nd October, 1969.
12. Shri Gopal Narain Agarwal next contended that Krishan Kumar having been dispossessed on 27th February, 1968, on the basis of ex parte order obtained by the landladies, the question of claiming possession from him by Kuldip Singh on 5th August, 1978 did not arise, Krishan Kumar being not in possession, it was urged, possession stated to have been taken on 5th August, 1970, was only a collusive act between Kuldip Singh and Abhash Kaur etc., appellants in these appeals to defeat the right of Krishan Kumar to be put in possession of the premises after the ex parte order was not aside by the Additional Rent Controller.
13. I am afraid, there is no merit in this contention. Section 16 of the Delhi Rent Control Act envisages that notwithstanding anything contained in any other law, where the interest of a tenant in any premises is determined for any reason whatsoever and any order is made by the Controller under the Act for the recovery of possession of such premises, the order shall, subject to the provisions of section 18 be binding on all persons who may be in occupation of the premises and possession thereof shall be given to the landlord by evicting all such persons there from.
14. The contention of Kuldip Singh is that he received possession from Devinder Singh who was found to be in occupation of the premises at the time the warrant of possession was executed. The possession in my opinion was rightly given to Kuldip Singh and the same was in consonance with the provisions of Section 25 of the Delhi Rent Control Act.
15. Krishan Kumar having not challenged the possession that was given to Kuldip Singh in execution of the decree passed in suit No. 385 of 1967 or 139 of 1967 and the said proceedings having become final, cannot find fault at this belated stage regarding possession given to Kuldip Singh. He having lost his right as a sub-tenant cannot invoke the provisions of Section 144 of the C.P.C in view of the changed circumstances because of the ejectment decree passed against him. Besides the term 'tenant' as defined in sub-section (1) of Section 2 of the Delhi Rent Control Act means any person by whom or on whose account or behalf the rent of any premises is or but for a special contract would be, payable and includes a sub-tenant and also any person continuing in possession after the termination of his tenancy but shall not include any person against whom any order of decree fro eviction has been made. According to the above said sub-section the mere making of an order or passing of a decree for eviction disentitles a person to claim the statue of a tenant or a sub-tenant. In the instant case order for eviction passed in favor of Kuldip Singh had actually been executed.
16. It is no doubt true that it is the duty of the Court to make restitution to a party for what he had lost as a re-suit of the decree or order passed by a Court, on the order or the decree being set aside but as held by their Lordships of the Supreme Court in Bhagwant Singh's case, Air 1953 Sc 186 (supra) that where 'it is shown that the restitution would be clearly contrary to real justice of the case' the court is under no obligation to enforce restitution. In the instant case Kuldip Singh having obtained an order for eviction against Krishna Kumar and having even got that order executed through the Court, in my opinion, restitution would be contrary to the justice of the case.
17. For the reasons stated above, the appeals are accepted and the impugned order passed by the Tribunal on the 11th April 1972 is set aside but in the circumstances of the case, with no order as to costs.
18. Appeal allowed.